azardous Waste and Consolidated Permit Regulations 1980 bk 2 3 ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33417 Subpart might be advisable, Accordingly, changes have been made to § 124.15, 124.74. 124.75, and various provisions of this Subpart to make it easier to switch a permit into this Subpart in cases where it was not placed under this Subpart from the beginning. § 124.111 Applicability. 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 used 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 Quch 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. § 124.118 Submission of written comments on draft permit. One commenter argued that this provision violated the APA by failing to provide for rebuttal testimony. Rebuttal rights, however, are adequately conferred in § § 124.120 and 124.121. § 124.119 Presiding officer. This section has been amended to make clear that the Chief Administrative Law Judge has no obligation to assign an Administrative Law Judge 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 staff hearings 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. § 124.128 Final decision. One commenter took the title of this ection as the occasion to ask when the rinal permit was issued in proceedings under this Part. It is EPA’s position that the final permit is issued at the same time as the final “decision” described in this section. Appendix—Guide to Dscisionmaking Under Part 124 During the public comment period an the proposed Consolidated Regulations, the American Petroleum 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 how 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 NATIPNAL POLLUTANT DISCHARGE ELIMINATION 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 publication 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 Best Management Practices (BMP) 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) and 45 FR 17997 (March 20, 1980). In addition, §125.3 has been revised. These revisions were proposed along with the draft consolidated application forms in the June 14, 1979 Federal Register (44 FR 34393). Subpart A—CrIteria and Standards for Technology-Based Treatment Requirements Under SectIons 301(b) and 402 of the Act § 125.3(c)(4).—This section allows permit limits to be written in terms of toxicity to a particular species. 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 this regulation appears elsewhere In today’s 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 substances) which are conventional pollutants may be set at a level more stringent than the best conventional pollution control technology (BCT); 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 substance 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 FR 34393), and a proposal to extend it to include 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 proposal: 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 limitation on a toxic pollutant or hazardous substance. Note—The Environmental Protection Agency has determined that this document does not constitute a major regulation requiring preparation of an economic impact statement under Executive Order 12044. In accordance with Executive Order 12044, EPA will review the effectiveness and continued need for the provisions contained in these regulations no more than 5 years after promulgation. As part of this evaluation we will consider comments from the public, permit applicants, Regional and State permit writers, 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 reduced. As explained in the portion of the preamble discussing § § 122.38 and 122.45, EPA by this notice is inviting comment on all requirements for Class IV wells. Such comments must be received by July 15, 1980. Submit comments to: Alan Levis, Director, State Program Division (WH-550), Office of Drinking Water, Environmental ------- 33418 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations Protection Agency, Washington, D.C. 20460. 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 last from 9 a.m. to 5p.m., unless concluded earlier. Authority: These regulations are Issued under authority of the Resource Conservation and Recovery Act. 42 U.S.C. § 6901 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300(I) at seq.; the Clean Water Act. 33 U.S.C. § 1251 et seq.; and the Clean Air Act, 42 U.S.C. § 1857 et seq. Dated: May 2.1980. Douglas M. Costle, Adminisiretor. 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 ELIMINATION 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. 122.0 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 of 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. 122.16 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 RCRA permit application. 122.28 Permits by rule. 122.27 Emergency permits. 122.28 AdditIonal conditions applicable to all RCRA permits. 122.29 Establishing RCRA permit conditions. 122.30 Interim permits for UIC wells. Subpart C—Additional Aequlrements for Underground InjectIon Control Programs Under the Safe Drinking Water Act Sec. 122.31 Purpose and scope of Subpart C. 122.32 Clañiflcation of Injection wells. 122.33 Prohibition of unauthorized Injection. 122.34 Prohibition of movement of fluid into underground sotirces of drinking water. 122.35 Identification of underground sources of drinking water and exempted aquifers. 122.36 ElimInation of certain Class IV wells. 122.37 Authorization of underground injection by rule. 122.38 Application for a permit: authorization by permit. 122.39 Area permits. 122.40 Emergency permits. 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- .Additionai Requirements 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. 122.58 Aquaculture projects. 122.57 Separate storm sewers. 122.58 Silvicultural activities. 122.59 General permits. 122.60 Additional conditions applicable to all NPDES perniiLs. 122.61 Additional conditions applicable to specified categories of NPDES permits. 122.62 Establishing NPDES permit conditions. 122.63 Calculating NPDES permit conditions. 122.04 Duration of certain NPDES permits. 122.65 Disposal of pollutants into wells, Into publicly owned treatment works or by land application. 122.66 New sources and new dischargers. Appendix A to Part 122—NPDES Primary Industry Categories. Appendix B to Part 122—NPDES Criteria for Determining a Concentrated Animal Feeding Operation (f 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 (I 122.53). Authority: Resource Conservation and Recovery Act. 42 U.S.C. § 6901 et seq.; Safe Drinking Water Act, 42 U.S.C. § 300f et seq.: and Clean Water Act, 33 U.S.C. § 1251 et 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 under Subtitle C of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA) (Pub. L 94—580, as amended by Pub. L 95-809:42 U.S.C. § 6901 et seq.): (ii) The Underground Injection Contra! (IJIC) Program under Part C of the Safe Drinking Water Act (SDWA) (Pub. L. 95—523. as amended by Pub. L. 95—190; 42 U.S.C. § 300f et seq.); (iii) The National Pollutant Discharge Elimination System (NPDES) Program under sections 318, 402, and 405(a) of the Clean Water Act (CWA) (Pub. L. 92—500, as amended by Pub. L 95—217 and Pub. L 95—576; 33 U.S.C. § 1251 et seq.); (iv) The Dredge or Fill (404) Program under section 404 of the Clean Water Ac4 and (v) The Prevention of Sign if icant Deterioration (PSD) Program under regulations implementing section 165 of the Clean Air Act (CAA), as amended, (Pub. L. 88—206 as amended; 42 U.S.C. §74 O letseq.) (2) For the RCRA, UIC, and NPDES programs, these regulations cover basic EPA permitting requirements (Part 122). what a State must do to obtain approval to operate its program in lies of a Federal program and minimum requirements for administering the approved State program (Part 123), and procedures for EPA processing of permit applications and appeals (Part 124). For the 404 program, these regulations include only the requirements which must be met for a State to administer its own program in lieu of the U.S. Army Corps of Engineers in “State regulated waters,” and provisions for EPA vetoes of State issued 404 permits. For the PSD program, these regulations cover only procedures for EPA processing of PSD permits in Part 124. (b) Structure. (1) Coverage of Parts. These consolidated permit regulations are incorporated into three Parts of Title 40 of the Code of Federal Regulations: (I) Part 122. This Pa contains definitions for all of the programs except PSD. It also contains basic permitting requirements for EPA-administered RCRA. UIC, and NPDES programs, such as application requirements, standard permit conditions, and monitoring and reporting requirements. (ii) Part 123. This Part describes what States must do to obtain EPA approval of thefr RCRA, UIC. NPDES, or 404 programs. It also sets forth the minimum requirements for administering these permit programs after approval. (Ill) Port 124. This Part establishes the procedures for EPA issuance of RCRA. UIC, NPDES, and PSD permits. It also establishes the procedures for adminIstrative appeals of EPA permit decisions. ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33419 (2) Subparts. 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 provisions with requirements which apply to one or more specified programs. In case of any inconsistency between Subpart A and any program- specific subpart, the program-specific subpart is controlling. (3) Certain requirements set forth in Parts 122 and 124 are made applicable to approved 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) Relation to other requirements. (1) Consolidated permit application forms. Applicants for EPA-issued RCRA Part A, UIC, NPDES, or PSD permits and 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 ict EPA application form is used. See § 122.25.) These forms, like these consolidated regulations, contain a general form covering all programs plus several program-specific forms. Although application forms have been consolidated, they, like permits, have been coordinated without losing their separate legal identities. There is no “consolidated permit.” Each permit and application under a program is a separate document. Most of the information requested on these application forms (other than Form 5 for PSD) is required by these regulations. - The essential information required in the general form (Form 1) is listed in § 122.4. The additional information required for RCRA Part A applications (Form 3) is listed in § 122.24. for UIC applications (Form 4) in § 122.37, and for NPDES applications (Forms 2a—d) in § 122.53. Applicants for State-issued permits 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 § 123.94. (2) Technical regulations. The five permit programs which are covered in signaled by the following words at the end of the section or paragraph heading: (applicable to State programs, see § 123.7). If 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. Ifs State is the permitting authority, the applicant or permittee should read the State laws and program regulations which implement the requirements of Part 123 for the relevant 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 must be placed in permits if they are issued. These separate regulations are located as follows: RCRA 40 CFR Parts 260-266 utc 40 CFR Part 145 NPDES 40 CFR Parts 125. 129. 133. 126 40 CFR Subchapter N parts 400-460) 404 40 CFR Part 230 PSD 40 CFR Part 52 (d) Authority. The consolidation of these permit programs Into one set of regulations is authorized by sections 101(f) and 501(a) of CWA, sections 1006 and 2002 of RCRA, section 1450 of the SDWA. and section 301 of the CAA. (e) Public participation. This rule establishes the requirements for public participation in EPA and State permit issuance, enforcement, and related variance proceedings; and in the approval of State RCRA, UIC, 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 apply to actions covered under Parts 122, 123, and 124. (F) State authorities. Nothing in Parts 122, 123, or 124 precludes more stringent State regulation of any activity covered by these regulations, whether or not under an approved State program, except as provided for the RCRA program in § 123.33 (requirement that State RCRA programs under Final authorization be consistent with the Federal program and other State programs). § 122.2 Purpose and scope of Part 122. (a) Subpart A of Part 122 contains definitions ( 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 PSD permits are in Part 124, Subpart C. The permitting requirements apply to EPA administered RCRA, UIC, 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. UIC. NPDES, and 404 programs to the extent specified by cross-reference in § 123.7. (b) Subparts B, C. and D 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 § 123.7. § 122.3 DefInitions. The following definitions apply to Parts 122, 123, and 124, except Part 124 coverage of the PSD program (see § 124.2). 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. Administrator means the Administrator of the United States Environmental Protection Agency, or an authorized representative. Applicable standards and limitations (NPDES) means all State, interstate, and Federal standards and limitations to which a “discharge” or a related activity 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, 308, 307, 308, 403, and 405 of CWA. Application means the EPA standard national forms for applying for a permit, including any additions, revisions qr modifications to the forms; or forms approved by EPA for use in “approved States,” including any approved Program Coverage Part 122 Part 123 Part 124 RCRA uic NP OES 404 . PSO Subparts A and B Subparts A and c . Subparts A and I) . Subpart A . None Subparts A. B. and F Subparts A and C Subparta A and 0 Subparts A and E None Subparts A. B. E, and F Subparts A and F Subparts A, 0, E. and F Subpart A Subparts A, C. and F ------- 33420 Federal Register / Vol. 45, No. 98 / Monday, May 19, 980 / 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 Dispo al Act, as amended by the Resource Conservation and Recovery Act (RCRA); or Safe Drinking Water Act (SDWA3, whichever is applicable; and applicable regulations promulgated under those statutes. In the case of an “approved State program” appro iriate Act and regulations includes State program requirements. Approved program or approved 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 OT spring. Area of reviw (UIC) means the area surrounding an “injection well’ described according to the criteria set forth in § 148.08. Average monthly discharge limitation (NPDES) 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 iaverage of “daily discharges” over a calendar week, calculated as the sum of all daily discharges measured during a calendar week divided by the number of daily discharges measured during that week. Best management practices (“BMPs”) (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, BMPs also include methods, measures, practices, or design and performance standards, which facilitate compliance with section 404(b)(1) environmental guideline8 (40 CFR Part 230), 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 264. Contaminant (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 “discharge” which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities, CWA means the Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972) Pub. L 2—500, as amended by Pub. L. 95—217 and Pub. L. 95—576; 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 ofmass.ihe “daily discharge” is calculated as the total mass of the pollutantdischarged 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 1NPDES) means the “discharge of a pollutant.” Director means the Regional Administrator or the State Director, .as the context requires, or an authorized representative. When there is no “approved State program,” and there is an EPA administered program, “Director” means the Regional Administrator. When there is an approved State program, “Director” normally means the State Director. In some circumstances, however, EPA retains the authority to take certain actions even when there is an approved State program. (For example, when EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdiction over that permit after program approval; see § 123.71.) 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” from any “point source,” or (2) Any addition of any pollutant or combination of pollutants to the waters of the “contiguous zone” or the ocean from any ppint source other than a vessel or other floating craft which is being used ala means of transportation. (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 privately owned treatment works. This term does not include an addition of pollutants by any “indirect discharger.” Discharge Monitoring Report (“DMR”) (NPDES) means the EPA uniform national form, including any subsequent additions, 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, in place of EPA’s. Discharge of dredged material (404) means any addition from any “point source” of “dredged material” into “waters of the United States.” The term includes the addition of dredged material into waters of the United States and the runoff or overflow from a contained land or water dredged material disposal area. Discharges of pollutants into waters of the United States resulting from the subsequent onshore processing of dredged material are not included within this term and are subject to the NPDES program even though the extraction and deposit of such material may also require a permit from the Corps of Engineers or the State section 404 program. Discharge of fill material (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 the 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, residential, and other uses; causeways or road fills; dams and dikes; artificial islands; property protection and/or reclamation ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33421 devices such as riprap, groins, seawalls, reakwaters, and revetments; beach ..ourishment; 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 oJ 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 imensions. DMR (NPDES) means “Discharge ‘Monitoring Report.” Draft permit means a document prepared under § 124.6 indicating the Director’s tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a “permit.” A notice of intent to terminate a permit, and a notice of intent to deny a permit, as discussed In § 124.5, are types of “draft permits.” A denial of a request for modification, revocation and reissuance, or termination, as discussed in § 124.5, is not a “draft permit.” A “proposed permit” is not a “draft permit.” 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) means any restriction imposed by the Director on quantities, discharge rates, and concentrations of “pollutants” which are “discharged” from “point sources” into “waters of the United States,” the waters of the “contiguous zone,” or the ocean. Effluent limitations guidelines NPDES) means a regulation published ?Y the Administrator under section 104(b) of CWA to adopt or revise effluent limitations.” Effluents (404) means “dredged material” or “fill material,” including return flow from confined sites. Emergency permit means a RCRA, UIC, or State 404 “permit” issued in accordance with § § 122.27, 122.40 or 123.90, respectively. Environmental Protection Agency (“EPA”) means the United States Environmental Protection Agency, EPA means the United States “Environmental Protection Agency.” Exempted aquifer (UIC) means an “aquifer” or its portion that meets the criteria in the definition of “underground source of drinking water” but which has been exempted according to the procedures in § 122.35(b). Existing J-IWM 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 (b)(1) 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. lNote.—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 oqe no earlier than May of 1980; indications are that the conferees are considering October 30, 1980. 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 he law takes effect When those amendments are enacted, EPA will amend this definition.] Existing injection well (UIC) means an “injection well” other than a “new injection well.” Facility or activity means any “HWM facility,” UIC “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 § 3008(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 (UIC) 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.” Genera/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 UIC) 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 U1C) means a hazardous waste as defined in 40 CFR § 261.3. Hazardous Waste Management facility (“HWM facility”) means all contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of “hazardous waste.” A facility may consist of several “treatment,” “storage,” or “disposal” operational units (for example, one or more landfills, surface impoundments, or combinations of them). HWM facility (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 UIC) means a “well” into which “fluids” are being injected. Injection zone (UIC) means a geological “formation,” group of formations, or part of a formation receiving fluids through a “well,” ------- 33422 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 authorization (RCRA) means approval by EPA of a State hazardous waste program which has met the — requirements of § 3000(c) of RCRA and applicable requirements of Part 123, Subpart F. Interstate agency means an agency of two or more States established by or under an agreement or compact approved by the Congress, or any other agency of two or more States having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator under the “appropriate Act and regulations.” Major facility means ,.any RCRA, UIC, NPDES, or 404 “facility or activity” classified as such by the Regional Administrator, or, in the case of “approved State programs,” the Regional Administrator in conjunction with the .State Director. Manifest (RCRA and UIC) meahs the shipping document originated and signed by the “generator” which contains the information required by Subpart B of 40 CFR Paft 262. Maximum daily discharge limitation (NPDES) means the highest allowable “daily discharge.” Municipality (NPDES) means a city, town, borough, county, parish, district. association, or other public body created by or under State law and having jurisdiction over dispqsal 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. National Pollutant Discharge Elimination System means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, .and imposing and enforcing pretreatment requirements, under sections 307, 402, 318, and 405 of CWA. The term includes an “approved program.” Newthschorger (NPDES) means any building, structure, facility, or installation: (a)(1) 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 into “waters of the United States.” It also includes any existing mobile point source, such as an offshore oil drilling rig, seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a location for which it does not have an existing permit. New HWM facility (RCRA) means a “Hazardous Waste Management facility” which began operation or for which construction commenced after October 21, 1976. New injection well (UIC) niearIs a “well” which began injection after a UIC program for the State applicable to the well is approvecL 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 commenceth (a) After promulgation of standards of performance under section 306 of CWA whiah 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 Elimin ation System.” 0ff-site (RCRA) means any site which is not “on-site,” On-site (R RA) means on the same or geographically contiguous property which may be divided by public or private right(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 me ns 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” -( 122.26), UJC area permit ( 122.39), NPDES or 404 “general permit” ( § 122.59 and 123.95), and RCRA, UIC, or 404 “emergency permit”.( § 122.27, 122.40, and 122.96). Permit does not include RCRA interim status ( 122.23), UIC authorization by rule ( 122.37), or any permit which has not yet been the subjectof final agency action, such as a “draft permit” or a “proposed permit.” Permit by rule (RCRA) means a provision of these regulations stating that a “facility or activity” is deemed to have a RCRA permit if it meets the requirements of the provision. Person means an individual, association, partnership, corporation, municipality, State or Federal agency, or an agent or employee thereof. Phase I (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 promulgated. 40 CFR Parts 122, 123, 260, 261, 262, 263, and 265. Promulgation of Phase I refers to promulgation of the regulations necessary fbr Phase Ito begin. Phase II (RCRA) means that phase of Federal hazardous waste management program commencing Un 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 II 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 or process of stopping the flow of water, oil, or gas in “formations” penetrated by a borehole or “well.” Point source (NPDES and 404) means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit. well, discrete fissure, container, rolling stock, concentrated animal feeding operation, vessel, or other floating craft, from which pollutants are or may be - discharged. This term does not include return flows from irrigated agriculture. Pollutant (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 auider the Atomic Energy Act of 1954, as amended (42 U.S C. § 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industriaL municipal, and agricultural waste discharged into water. It does not mean: (a) Sewage from vessels; or (b) Water, gas, or other material which is Injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if the State determines that the injection or ------- Federal Register I Vol. 45, No, 98 I Monday, May 19, 1980 I Rules and Regulations 33423 disposal will not result in the 1egradation of ground or surface water resources. tNote.—Radioactive materials covered by the Atomic Energy Act re those encompassed In its definition of source, byproduct, or special nuclear materials. Examples of materials not covered include radium and accelerator-produced isotopes. See Train v. Colorado Public Interest Research Group, Inc., 426 u.s. 1 (1976).] PQTW means “publicly owned treatment works.” Primary industry category (NPDES) means any industry category listed in the NRDC settlement agreement (Natural Resources Defense Council et ai. v. Train, B E.R.C. 2120 (D.D.C. 1970), modified 12 E.R.C. 1833 (D.D.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 wastewater (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 Bent to EPA for review before final issuance by the State. A “proposed permit” is not a “draft permit.” Publicly owned treatment works (“POTW”) means any device or system used in the treatment (Including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which Is owned by a “State” or “municipality.” This definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment. Radioactive waste (UIC) 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 261, whichever is applicable. RCRA means the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery. Act of 1978 (Pub. L. 94—580, as amended by Pub. L. 95-809,42 U.S.C. § 0901 et - seq.). Recommencing dischai er (NPDES) eans a source which recommences _ischarge 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. L. 95—1900; 42 U.S.C. § 300f et seq.). Secondary industry category (NPDES) means any industry category which is not a “primary industry category.” Secretary (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 definition means any wastes, induding wastes from humans, households, commercial establishments, industries, and storm water runoff, that are discharged to or otherwise enter a publicly owned treatment works. Site means the land or water area where any “facility or activity” is physically located or conducted, including adjacent land used in connection with the facility or activity. State means any of the 50 States, the District of Columbia, Guam, the Conunonwealth 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 i inade. State/EPA Agreement means an agreement between the Regional Administrator and the State which coordinates EPA and State activities, responsibilities and programs including those under the RCRA, SDWA, and CWA programs. State 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 § 123.4(h)(1). The Secretary shall retain jurisdiction over the following waters (see CWA section 404(g)(1)): (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- ------- 33424 Federal Register / Vol. 4 , No. 98 I Monday, May 19, 1980 / Rules and Regulations hazardous, or less hazardous; safer to transport, store or dispose of; or amenable for recovery, amenable for storage, or reduced in volume. - UIC means 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 drinking water (“USDW”) (RCRA and UIC) means an “aquifer” or its portion: (a)(1) Which supplies drinking water for human consumption; or (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(RCRA and UIC) means “underground source of drinking water.” Variance (NPDES) means any mechanism or provision under sections 301 or 316 of CWA or under 40 CFR Part 125, or in the applicable “effluent limitations guidelines” which allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of CWA, This includes provisions which allow the establishment of alternative limitations based on fundamentally different factors or on sections 301(c). 301(g), 301(h), 301(i), or 316(8) 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), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters: (1) Which are or could be used by interstate or foreign travelers for recreational or other purposes; (2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (3) Which are used or.could be used for industrial purposes by industries In Interstate commerce; (d) All impoundments of waters otherwise defined as waters of the United States under this definition; (e) Tributaries of waters Identified in paragraphs (1)—(4) of this definition; (f) The territorial sea; and (g) “Wetlands” adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)— (I) of this definition. Waste treatment systems, including treatment ponds or lagoons designed to mpet the requirements of CWA (other than cooling ponds as defined in 40 CFR § 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (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. § 122.4 ApplicatIon for a permit. (Applicable to State programs, see § 123.7.) (a) Permit application. Any person whd 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 § § 122.23 (RCRA), 12238 (UIC), 122.53 (NPDES), and 123.94 (404). Pers ns currently authorized with interim status under RCRA ( 122.23) or UIC authorization by rule ( 122.37) shall apply for permits when required by the Director. Persons covered by RCRA permits by rule (* 122.26), and NPDES or 404 dischargers covered by general permits under § 122.59 or 123.97, respectively, need not apply. Procedures for applications, issuance and administration of emergency permits are found exclusively in § 122.27 (RCRA), 122.40 (UIC), and 123.96 (404). (b) Who applies? When a facility or activity is owned by one person but is operated by another person, it is the operator’s duty to obtain a permit, except that for RCRA only, the owner must also sign the permit application. (c) Completeness. The Director shall not issue a permit under a program before receiving a complete applicatioi fore permit under that progrém except for NPDES and 404 general permits, RCRA permits by rule, or emergency permits. An application for a permit under a program is complete when the Director receives an application form and any supplemental information which are completed to his or her satisfaction. The completeness of any application for a permit shall be judged independently of the status of any other permit application or permit for the same facility or activity. For EPA— administered RCRA 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) Information requirements. All applicants for RCRA. UIC, or NPDES permits (for State 404 permits see § 123.94) shall provideS the following Information to the Director, using the application form provided by the Director (additional information required of applicants is set forth in § § 122.24 and 122.25 (RCRA), 122.38 (UIC), and 122.53 (NPDES)). (1) The activities conducted by the applicant which require it to obtain permits under RCRA, UIC, NPDES, or 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 programs: (iiHazardoua Waste Management program under RCRA. (ii) UIC program under SDWA. (iii) NPDES program under CWA (iv) Prevention of Significant Deterioration (PSD) program under the Clean Air Act. (v) Nonattainment program under the Clean Air Act. (vi) National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under the Clean Air Act. (vii) Ocean dumping permits under th Marine Protection Research and Sanctuaries Act. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 1 Rules and Regulations 33425 (viii) Dredge or fill permits under ection 404 of CWA. (ix) Other relevant environmental permits, including State permits. (7) A topographic map (or other map If a topographic map is unavailable) extending one mile beyond the property boundaries of the source, depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground: and those wells, springs, 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. (e) Recordkeeping. 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 f an expired permit continue in force nder 5 U.S.C. § 558(c) until the effective ate of a new permit (see § 124.15) if: (1) The permittee has submitted a timely application under § § 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 § 124.15 on or before the expiration date of the previous permit (for example, when issuance is impracticable due to time or resource constraints). (b) Effect Permits continued under this section remaIn fully effective and enforceable. (c) EnforcemenL When the permittee is not in compliance with the conditions of the expiring or expired permit the Regional Administrator may choose to do any or all of the following: (1) Initiate enforcement action based upon the permit which has been continued; (2) Issue a notice of intent to deny the new permit under § 124.0. If the permit is denied, the owner or operator would then be required to cease the activities authorized by the continued permit or be ‘ bject to enforcement action for erating without a permit; (3) Issue a new permit under Part 124 Rh appropriate conditions; or (4) Take other actions authorized by these regulations. (d) State continuation. (1) An EPA I (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 is the permitting authority. States authorized to administer the RCRA, UIC, NPDES or 404 programs may continue either EPA (or Corps of Engineers) or State-issued permits until the effective date of the new permits, if State law allows. Otherwise, the facility or activity is operating without a permit from the time of expiration of the old permit to the effective date of the State-Issued new permit. § 122.6 SignatorIes to permit applications and reports. (applicable to State programs, see § 123.7.) (1) Applications. All permit applications, except those submitted for Class H 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 partner or the proprietor, respectively; or (3) For a municipality. State, Federal, or other public agency: by either a principal executive officer or ranking elected official. (b) Reports. All reports required by permits, other information requested by the Director, and all permit applications submitted for Class 11 wells under § 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 position.); and (3) The written authorization is submitted to the Director. (c) Changes to authorization. If an authorization under paragraph (b) of this section is no longer accurate because a different Individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of paragraph (b) of this section must be submitted to the Director. prior to or together with any reports, information, or applications to be signed by an authorized - representative. (d) Certification. Any person signing a document under paragraphs (a) or (b) of this section shall make the following certification: “I certify under penalty of law the; 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 t)iat 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.” § 122.7 CondItions applicable to all permits. (Applicable to State programs, see § 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), 122.60 and 122.61 (NPDES) and 123.97 (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 permiL 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 reappiy. If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee must apply for and obtain a new permit. (c) Duty to halt or,reduce activity. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. ,(d) Duty to mitigate. The permittee shall take all reasonable steps to minimize or correct any adverse impact ------- 33426 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 are installed or used by the permittee to achieve compliance with the conditions of t hia permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the conditions of the permit. (f) Permit actions. This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated 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 Jnformation which the Director may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. The permittee shall also furnish to the Director, upon request, copies of records required to be kept by this permit. (i) inspection and entry. The permittee shall allow the Director, or an authorized representative, upon the presentation of credentials and other documents as may be required by law, to: (1) Enter upon the permittee’s premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit (2) Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit; (3) Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and (4) Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the appropriate Act, any substances or parameters at any location. (J) Monitoring and records. (1) Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity. (2) The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation. copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least 3 years from the date of the sample, measurement, report or application. This period may be extended by request of the Director at any time. (3) Records of monitoring information shall include: (1) The date, exact place, and time of sampling or measurements; (ii) The individual(s) who performed the sampling or measurements; (iii) The date(s) analyses were performed; (iv) The individual(s) who performed the analyses; (v) The analytical techniques or methods used; and (vi) The results of such analyses. (k) Signatory requirement. All applications, reports, or information submitted to the Director shall be signed and certified. (See § 122.8.) (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 pennittee 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. (6) Twenty-four hour reporting. The permittee shall report any noncompliance which may endanger health or the environment. Any information shall be provided orally within 24 hours from the time the permittee 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 ha& 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 rep rted under paragraphs (1)(4), (5), and (6) of this section, at the time monitoring reports are submitted. The reports shall contain the information listed in paragraph (l)(6) of this section. (8) Other information. Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information. § 122.8 EstablishIng permit conditions. (Applicable to State programs, see § 122.7.) (a) All programs. In addition to conditions required in all permits for all programs ( 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) In di vidual 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 122.61 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 compliance with all applicable requirements of the appropriate Act and regulations. (2) For a State issued permit, an applicable requirement is a Stale statutory or regulatory requirement which takes effect prior to final administrative disposition of a permit. For a permit issued by EPA, an ------- Federal Register I Vol. 45, No. 98 / Monday, May 19. 1980 / Rules and Regulations 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 § 124.86(c) for RCRA, UIC and NPDES permits being processed under Subparts E or F of Part 124). Section 124.14 (reopening of comment period) provides a means for reopening EPA permit proceedings at the discretion of the Director where new requirements become effective during the permitting process and are of sufficient magnitude to make 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 § § 122.29 (RCRA), 122.42 (UIC), 122.02 and 122.63 (NPDES), and 123.98 (404). (c) Incorporation. All permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable regulations or requirements must be given in the permit. § 122.8 Duration of permits. (Applicable to State programs, see § 123.7.) (a) NPDES and section 404. NPDES and section 404 permits shall be effective for a fixed term not 10 exceed 5 years. (b) RCRA. RCRA permits shall be effective for a fixed term not to exceed 10 years. (See also § 122.30 (interim permits for UIC wells)). (c) Ut C. UIC permits for Class I and Class V wells shall be effective for a fixed term not to exceed 10 years. UIC permits for Class U and III wells shall be issued for a period up to the operating life of the facility. The Director shall review each issued Class II or III well UIC permit at least once every 5 years to determine whether it should be modified, revoked and reissued, terminated, or a minor modification made as provided in § § 122.15, 122.10, and 122.17. (d) Except as provided in § 122.5, the term of a permit shall not be extended by modification beyond the maximum duration specified in this section. (e) The Director may issue any permit r a duration that is less than the full allowable term under this section. § 122.10 Schedules of compliance. (a) General (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 pos ible. (i) For NPDES, in addition, schedules of compliance shall require compliance not later than the applicable statutory deadline under the CWA. (ii) For UIC, in addition, schedules of compliance shall require compliance not later than 3 years after the effective date of the permit. (2) For NPDES only. The first NPDES permit issued to a new source, a new discharger which commenced discharge after August 13, 1979, or a recomtnencing discharger shall not contain a schedule of compliance under this section. See also § 122.66(d)(4). (3) Interim dates. Except as provided In paragraph (b)(1)(ii) of this section, if a permit establishes a schedule of compliance which exceeds 1 year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement. (i) The time between interim dates shall not exceed 1 year. (ii) If the time necessary for completion of any interim requirement (such as the construction of a control facility) is more than 1 year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date. [ Note.—Examples of interim requirements Include: (1) submit a complete Step 1 construction grant (for POTWs); (2) let a contract for construction of required facilities; (3) commence construction of required facilities; (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)(ii) of this section is applicable. (b) Alternative schedules of compliance. A RCRA, UIC, or NPDES 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 issued: (i) The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or (ii) The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit. (2) If the decision to cease conducting regulated activities Is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination which will ensure timely compliance with applicable requirements, or for NPDES, compliance no later than the statutory deadline. (3) If the permittee is undecided whether to cease conducting regulated activities, the Director may issue or modify a permit to contain two schedules as follows: (I) Both schedules shall contain an Identical Interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities; (ii) One schedule shall lead to timely compliance with applicable requirements. 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 perinittee 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 perniittee’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 direct ors of a corporati ------- 33428 Federal Register / VoL. 45, No 98 1 Monday, May 19, 1980 I’ Rules and Regulations § 122.11 RequIrements for recording,and’ reporting,of monitoring results. (Applicable to State programs, see § 123.7.] All permits shall specify: (a) Requirements concerning the proper use, maintenance and’ installation,, when appropriate of monitoring equipment or methods (including biological monitoring methods when appropriate); (b) Required monitoring including type, intervals,’and frequency sufficient to yield data which are representative’of the monitored activity including, when appropriate, continuoug monitoring; (c) Applicable reporting requirements based upon the impact of the regulated’ activity and as specified in Parts 264 and 260 (RCRA), Part 146 (mc), § 122.02’ (NPDES), and, when applicable, 40 CFR Part 230 C404). Reporting shall be no less frequent than specified im 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 valuesi for which a national wild and scenic river was established. (b) The National Historic Preservation Act of 1966, 16 U.S.C. 470 at seq. Section 106 of the Act and implementingregulations (38 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 c ’onsultation with the Advisory Council on Historic Preservation. (c),The Endangered Species Act,, 16 U.S.C. 1531 et seq. Section 7 of the Act and implementing regulations’ (50 CFR. Part 402) require the Regional Administratorto ensure, in consultation with the Secretary of the’ Interior or Commerce, that any action, authorized by EPA is not likely to jeopardize the continued existence of any endangered’ or threatened ipecies or adversely affect its critical habitat. (d) The Coastal Zone Management Act. 10 U.S.C 1451 et seq. Section 307(c) of the Act and. implementing regulations (I5CFR 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 andt Wildlife Coordination Act,, 18 U.S.C. 661 et seq., requires that the Regional Administrator, before. issuing a permit proposing or authorizing the impoundment (with certain exemptians) diversion, or other control or modification of any body of water, consult with the appropriate State agency exercising,jurisdictlon over wildlife resources to conserve those resources. (f),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 inclusion of EIS-related,permit conditions, as provided in § 122.67(c). § 122.13 Effect of apermft. (a) (Applicable to’Stote programs, see § 123. 7(a)). Except for Class II and III’ 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 enfurcement, 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 § § 122.15 and 122.10. (b) (Applicable ta State programs, see § 123.7(a).) 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 toa new owner or operator only if the permit has been modified’ or revoked’ and’ reissued (under § 122.15(b)(2)), ora minor.’modification made (under § 12Z17(d)),, to identify the new permittee ’and incorporate auth other requirements’ as may, be necessary under the’appropriate AcL (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. transferred1 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 ofpermit responsibility, coverage,, and liability between them and, in the case of mc permits the’ notice demonstrates that the financial responsibility requirements of § 122.42(g)’ will be met by the new permittee; and (3) The Director doernot 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 thin subparagraph may also be a minor modification under § 122.17. If this notice is not received, the transfer is effective on’ the date specified in’ the agreement’ mentioned in paragraph’ (b)(2) of’ this section. § 122.15 ModificatIon or revocation and relssuance of permits. (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 f see. § 1223), receives a request for modification or revocation and reissuance under § 124.5, or conducts a review of the permit file) he or she, may determine whether or not one or more of the causes listed in paragraphs. ( a)’ and’ (b) of this section for modification or revocation and’ reissuance or both exist. If cause exists, the’ Director may modify or revoke and’ reissue the’ permit accordingly, subject to the’ limitations of paragraph (c) of this section, and may request an updated application if necessary. When a permit is modified. only the conditions subject to’ modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a’new term. See §. 124.5(c)(2). If cause does not exist under this section or § 122.17 the Director shall not modify or revoke and reissue the permit. if a permit modification satisfies the criteria in § 122.17 for “minor modifications” the ------- Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations 33429 rmit may be modified without a draft srmit or public review. Otherwise, a ‘aft permit must be prepared and other - ocedures in Part 124 (or procedures of an approved State program) followed. (a) Causes for modification. The following are causes for modification but not revocation and reissuance of permits.’However, for Class II or Ill wells 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) Alterations. There are material and substantial alterations or additions to the permitted facility or activity which occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit. [ Note.—For NPDES, 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 lB wells may be modified during their terms for this cause only if the information was not available at the time of permit issuance ther than revised regulations, jidance, or test methods) and would sve justified the application of ifferent permit conditions at the time of issuance. For UIC area permits (9 122.39), NPDES general permits (9 122.59) and 404 general permits (9 123.95) this cause shalt 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 III wells may be modified during their terms for this cause only as follows: (i) For promulgation of amended standards or regulations, when: (A) The permit condition requested to be modified was based on a promulgated Part 260—268 (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 proved a State action with regard to a iter quality standard on which the rmit condition was based; and (C) A permittee requests modification in accordance with § 124.5 wIthin ninety (90) days after Federal Register notice of the action on which the request is based. (ii) For judicial decisions, a court of competent jurisdiction has remanded and stayed EPA promulgated regulations or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on whlcl the permit condition was based and a request Is filed by the permittee in accordance with § 124.5 within ninety (90) days of judicial remand. (iii) For changes based upon modified State certifications of NPDES permits. see § 124.55(b). (4) Compliance schedules, The Director determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has - little or no control and for which there is no reasonably available remedy. However, in no case 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 permittee has filed a request for a variance under CWA sections 301(c), 301(g), 301(h), 301(i), 301(k), 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 § 9 124.61, 124.62, and 124.64. (ii) When required to incorporate an applicable 307(a) toxic effluent standard or prohibition (see 9 122.62(b)). (iii) When required by the “reopener” conditions in a permit, which are established in the permit under § 122.62(b) (for CWA toxic effluent limitations) or 40 CFR § 403.10(e) (pretreatment program). (iv) Upon request of a permittee 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)(ii)(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). (ix) 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 9 122.53(d)(9). (x) To establish a “notification level” as provided in 9 122.62(f). (xi) To modify a schedule of compliance to reflect the time lost during construction of an innovative or alternative facility, in the case of a POTW which has received a grant under section 202(a)(3) of CWA for 100% of the costs to modify or replace facilities constructed with a grant for innovative and alternative wastewater technology under section 202(a)(2). In no case shall the compliance schedule be modified to extend beyond an applicable CWA statutory deadline for compliance. (6) 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). (b) Causes for modification or revocation and reissuance. The following are causes to modify or, alternatively, revoke and reissue a permit: (1) Cause exists for termination under 9 122.16. 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 (9 122.14(b)) but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee. (c) Facility siting. For RCRA and UIC, suitability of the facility location will not be considered at the time of permit modification or revocation and reissuance unless new information or standards indicate that a threat to human health or the environment exists which was unknown at the time of permit issuance. 9122.16 TermInation of permits. (Applicable to State programs, see § 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; ------- •. 33430 Federal’ Register I VolL. 45, No. 98’ I’ M’onday, May’ 19, 1980 I ’ Rules and Regulations (2) The permittee’s failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee’s misrepresentation of any relevant’ facta 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 wheni there Is a change In any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled’ by thepermili (for example plant closure: or termination of discharge by cothiectioa 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. § 122.J7 Minor modifications of ’permlts.. 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 sectlon,’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 modifications may only: (a) Correct typographical errors; (b) Require more frequent monitoring or reporting.by the permittee; (c) (Change an interim compliance date in a, schedule of compliance, providbd the newid’ate 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 (dJAllow for a change in ownership or operational control of a facility where the Director determines that no other change in the permit is necessary,, provided that a written agreement containing a specific date for transfer oil permit responsibility, coverage, and liability between the current and new permittees has been submitted to the Director. (e) For RCRA only, change the lists of facility emergency coordinators or equipment in’ the permit’s contingency plan. (I) For UIC only, (1) Change quantities 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’ § 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 § 122.42(a) (establishing UIC permit conditions), provided that any such alteration shall comply with the requfrementeof this Part and’ Part 146. (g) For NPDES only, (1) Change the construction schedule for ai discharger which is. a’ new source. No such change shall affecti a discharger’s obligation to have all pollution control equipment installed and in operation prior to discharge’ under § 122.66. (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: inaccordance with permit limits. (h) For 4 04’only, extend the term of a State section 404 permit, so long as the modification does not extend the term of the permit beyond 5 years from its original effective date. § 122.18 Noncompliance and program reporting by the Director. (Applicable to State programs, see § 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 submit any reports required und’er this section to the Regional’ Administrator. When EPA is the permit-issuing authority, the Regional Administrator shall submit any report required under this section to EPA Headquarters. For purposes of this section only, RCRA permittees shall include RCRA interim status facilities, when appropriate. ‘ - (a) Quorterij reports for RCRA, UIC, 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 subcategorized as non.-POTWs, POTWs and Federal permittes; (ii) For facilities’ or activities with permits under more than one program, provide an additional list combining information on noncompliance for each such facility; (iii) Alphabetize each list by perm ttea name. When two or more permittees have the same name, the lowest permit number shall be entered first ( iv) For each entry’ on a’ list,, inciude the following’information’ in the following order: (TA) Name, location, and permit number of the noncomplying permittee. (B) A brief’ description’ and.date of each instance of’nonconipliance for that permittee. Instances’of’noncomplfance may include one or moreof the’kinds set forth in paragraph (a)( )of’ this section. When a permittee’hae’noncompli’ance of more than onekind’ under a single program, combine’the informationi into a single entry for each’ suchi permittee. (C) The date(s)’and a brief desceiption of the action(s) taken by’ the Dlrectbr to, ensure compliance. (D)jStatus ’ oil the’ insthace(s)i oil noncompliance with. the date of. the review ofthe status or the date of resoluUon. - (‘E] Any details which tend to explain or mitigate the instance(s) of noncompliance. (2) Instances of noncompliance. lobe reported. Any, instances’ of noncompliance within the following categories shall’ be reported’ in successive reports until: the noncompliance is reported’ as. resolved. Once noncompliance ih.reported’as resolved-it need notappear in subsequent reports (i) Eailuie’to complete construction elements. When the-permittee has failed to complete;,by the date’spccified in the. permit, an element of a’ compliance schedule involving either planning, for constructi on (for example, award of a contract, preliminary pl’ans) or a construction step (for example, begin construction, attain operation Ie.vel); and the permittee’ has not’retiirnedtb compliance by accomplishing- the required element of the. schedule within 30 days from the date a compliance schedule report is due under the permit. (ii))Modifications to schedules of compliance. When’ a’ echedjile’ of compliance in the permit has been modified under’H’122.15’or 122:17’ because of the permittee’s’ noncompliance. (iii) Failure to complete or provide compliance schedule or monitoring reports. When the’permittee han 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; andi the permittee has not submitted the complete report within 30 days from, the date it is due under the peimit for compliance schedules, or from the’date specified in the permit for monitoring reports. (iv) Deficientreports. When the required reports provided by the permittee are so deficient as to cause ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33431 .misunderstanding by the Director and thus impede the review of the status of compliance. (v) Noncompliance with at her perm it 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 a erages 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 RCR.A only, the Director shall submit, in a manner ahd form prescribed by the Administrator, quarterly 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, location, and permit number of each noncomplying permittee; (2) A brief description and date of each instance of noncompliance: which should include the fàllowing: (i) Any unauthorized discharges of dredged or fill material subject to the State’s jurisdiction or any noncompliance with permit conditions; and (ii) A description of investigations conducted and of any enforcement actions taken or contemplated. (c) Annual reports for RCRA, UIC, and NPDES. (1) 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 organizedto 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 characteristics and lists of hazardous wastes at 40 CFR Part 261. (4) For State-administered UIC programs only, in addition to the annual noncompliance report, the State Director shall: (i) Submit each year a program report to the Administrator (in a manner and form prescribed by the Administrator). consisting 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(f)) which are necessary to more accurately reflect the State’s progress jn 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 II wells based upon these regulations. (d) Annual reports for State 404 programs. The State Director shall submit to the Regional Administrator an annual report assessing the cumulative impacts of the State’s permit program on the integrity of State regulated waters. This report shall include: (1) The number and nature of individual permits issued by the State during the year. This should include the locations and types of water bodies where permitted activities are sited (for example, wetlands, rivers, lakes, and other categories which the Director and Regional Administrator may establish); (2) The number of acres of each of the categories of waters inparagraph (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, revokedand reissued, or terminated during the year. (4) The number and nature of permits issued under emergency conditions, as provided in § 123.96; (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 informatibn 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 Covered by Reports on Noncompliance by Major Dischargers. IDate for completion ol repo,tai Janusiy. February. and Maich . . May31’ pril. May. and Jane .. . . . Aug 31’ July, August, and September . . ,. .... Nov 30’ October. November. and December .. . Feb 25’ ‘Reports must be made available to the public to, inspec- lion and copying on thi5 date (2) For all annual reports. The period for annual reports shall be for the calendar year ending December 31, with reports completed and available to the public no more than 60 days later. § 122.19 Confidentiality of information. (a) In accordance with 40 CFR Part 2, any information submitted to EPA ------- 33432 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 f Rules and Regulations pursuant to these regulations may be claibied as confidential by the submitter. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words “confidential business information” on each page containing such information. If no claim is made at the time of submission, EPA may make the information available to the public without further notice. If a claim is asserted, the information will be treated in accordance with the procedures in 40 CFR Part 2 (Public Information). (b] (Applicable to State programs, see § 123.7.) Claims of confidentiality for the following information will be denied (1) The name and address of any permit applicant or permittee; (2) For U/C permits. information which deals with the existence, absence, or level of contaminants in drinking water; (3) For NPDES permits, permit applications and permits; and (4) For NPDES and 404 permits, effluent data. (c) (Applicable to State programs, see § 123.7.) For NPDES only, Information required by NPDES app’lication 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.) ForRCRA only, (1) Claims or confidentiality for permit application information must be ubstantiated at the time the application is submitted and in the manner prescribed in the application instructions. (2) 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—Additional Requirements for Hazardous Waste Programs Under the Resource Conservation and Recovery Act § 122.21 Purpose 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) A uthority 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, and (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 (c) Overview of the RCRA Permit Program. Not later than 90 days after the promulgation or revision of regulations in 40 CFR Part 261 (identifying and listing hazardous wastes) 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. Six months after the initial promulgation of the Part 261 regulations, treatment, storage, or disposal of hazardous waste by any person who has not applied for or received a RCRA permit is prohibited. A RCRA permit application consists of two parts, Part A (see § 122.24) and Part B (see § 122.25). For “existing HWM facilities,” the requirement to submit an application is satisfied by submitting only Part A of the permit application waste treatment, storage, and disposal facilities. (5) Section 3005 of RCRA requires EPA to publish regulations requiring each person owning or operating a hazardous waste treatment, storage, or disposal facility to obtain a RCRA permit. (6) Section 3006 of RCRA 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 3008 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 3006 and the public notice for section 3010 appear in the Federal Register. until the date the Director sets for submitting Part B of the application. (Part A consists of Forms 1 and 3 of the Consolidated Permit Application Forms.) Timely submission of both notification under section 3010 and Part A qualifies owners and operators of existing HWM facilities for interim status under section 3005(e) of RCRA. Facility owners and operators with interim status are treated as having been issued a permit until EPA or a State with interim authorization for Phase II or final authorization under Part 123 makes a final determination on the permit application. Facility owners and operators with interim status must comply with interim status standards set forth at 40 CFR Part 265 or with the equivalent provisions of a State program which has received interim or final Section of RCRA Coverage Final regulation Location Subtitle C . - Overview and definillone 40 CFR Part 260 45 FR 12724, Feb 26. 1980. and (45 FR —I 3001 identification and listing of hazardous waste 40 CFR Part 261 . (— FR —1 3002 . . Generators of hazardous waste 40 CFR Pa,t 262 . . 45 FR 12724, Feb. 26. 1980 3003 Transporters of hazardous waste 40 CFR Part 263 45 FR 12737. Feb 26. 1980 3004 Standards lot HWM facftties 40 CFR Pans 264. 265. and 286 C— FR —1 3005 . Permit requirements for HWM facilities 40 CFR Parts 122 end 124 These regulations 3006 . Guidelines for Slate 40 CFR Pait 123 . These regulations programs 3010 , Preliminary notification of HW activity (Public Notice) 45 FR 12748. Feb 26. 1980 , ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33433 authorization under 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 submission 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 and Part B of the permit application at least 180 days before physical construction is, expected to commence. (d) Scope of the RCRA permit requirement. RCRA requires a permit for the “treatment,” “storage,” or “disposal” of any “hazardous waste” as identified or listed in’ 40 CFR Part 261. The terms “treatment,” “storage,” “disposal,” and “hazardous waste” are defined’ in § 122.3. (11 Specific inclusions (applicable to State RCRA programs, see § 123.7). Owners and operators Qf certain faciliti s 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 waste, and associated surface facilities that treat, store, or dispose of hazardous waste. (See § 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 § 122.28(b) (permit by rule far injection wells). (ii) Treatment, storage, or disposal. of hazardous’ waste at facilities 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 permit for that waste if they comply with the requirements of § 122.26(c) (permit by rule for POTWs). (iii) Barges or vessels that dispose of hazardous’ waste by ocean disposal and onshore hazardous waste treatment or storage facilities associated with an ocean disposal operation. However, the owner and operator will be deemed to have a RCRA permit for ocean disposal from the barge or vessel itself if they comply with the requirements of § 122.26(a) (permit by rule for ocean disposal barges and vessels). (2) Specific exclusions. The following persons are among those who are not required to obtain a RCRA permit: (i) Generators who accumulate hazardous waste on-site for less than 90 days. as provided in 40 CFR § 262.34. (ii) Farmers who dispose of hazardous waste pesticides from their own use as provided in 40 CFR § 262.51. (iii) Persons who own or operate facilities solely for the treatment, storage, or disposal of hazardous waste excluded from regulations under this Part by 40 CFR § 261.4 or § 261.5 (imall generator exemption). (iv) Owners or operators of totally enclosed treatment facilities as defined in 40 CFR § 260.10. (v) Owners or operators of totally enclosed treatment facilities as defined in 40 CFR § 260.10. § 122.22 ApplicatIon for a permit. (Applicable to State RCRA programs, see § 123.7.) (a) Exist lag HWM facilities. (1) Not later than six months after the first promulgation of regulations in 40 CFR Part 261 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 Il 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 II 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 La’ full the information required by the Part B application, is grounds. for termination of interim status under Part 124, (b) New HWM FacilIties. (1) No person shall begin physical construction on a new HWM facility without having submitted Part A andPart 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 II. 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 for Phase 11 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 file an amended Part A application: (i) With the Regional Administrator, if the facility is located in a State which has not obtained interim authorization for Phase II or final authorization, within six months after the promulgation of revised regulations under Part 261 listing or identifying additional hazardous wastes, if the facility is treating, storing, or disposing of any of those newly listed or identifiedwastes. [ Note—EPA intends to promulgate regulations in June of 1980 listing or designating additional wastes beyond those listed or designated in its initial promulgation of Part 261. The wastes to’be listed or designated in June are set forth in an Appendix to ,the Initial promulgation. EPA encourages facilities applying for interim status beforathatsecond set of wastes is actually published to,list or designate any of the wastes in that set which they are treating, storing, or disposing of. That will avoid the need to extensively update the Part A application when the June 1980 promulgation occurs.J (ii) With the State Director, if the facility is located in a State which has obtained Phase II interim authorization or final authorization,, no later than the effective date of regulatory provisions listing or designating wastes as hazardous in that State in addition to those listed or designated under the previously’ approved State program, if the facility is treating, storing, or disposing of any of those newly listed or designated wastes: or (iii) As’ necessary to comply with provisions of §122:23 for changes during interim status or the analogous provisions of a State program approved for final authorization or Interim authorizaton for Phase II. Revised Part A applications necessary to comply with the provisions of § 122,23 shall be filed with the Regional Administrator if the State in which the facility in question is located does not have Phase II interim authorization or final authorization; otherwise it shall be filed with the State Director. (2) The owner or operator of a facility who fails to comply with the updating requirements of paragraph (c)(1) of this section does not receive interim status as to the wastes not covered by duly filed Part A applications. ------- 33434 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations (d) Reapplications. Any l-IWM facility with an effective permit shall submit a new application at lea8t 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) Qualifying for interim status. Any person who owns or operates an “existing HWM facility” shall have interim status and shall be treated as hav.ing 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 261 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 interim status period the facility shall not: (1) Treat, store, or dispose of hazardous waste not specified in Part A of the permit application; (2) Employ processes not specified in Part A of the permit application; or. (3) Exceed the design capacities specified in Part A of the permit application. (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 wpste 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: (i) 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 oroperational 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 l-IWM 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 § 122.4(d), Part A of the RCRA application shall include the following infonnation: - (a) The latitude and longitude of the facility. (b) The name, address, and telephone number of the owner of the facility. (c) An indication of whether the facility is new or existing and whether it is a first or revised application. (d) For existing facilities, a scale drawing of the facility showing the location of all past, present, and future 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. (f) 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 261 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. (Applicable to State RCRA programs, see § 123.7.) Part B of the RCRA application includes the following: (a) General information requirements. The following information is required for all facilities: (1) A general description of the facility. (2) Chemical and physical analyses of 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 § 264.14, or a justification demonstrating the reasons for requesting a waiver of - this requirement. (5) A copy of the general inspection schedule required by § 264.15(b). (6) 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, explosions, or toxic gases). (ii) Prevent hazards in unloading operations (for example, ramps, special forklifts). ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33435 (iii) Prevent runoff from hazardous waste handling areas to other areas of the facility or environment, or to prevent flooding (for example, berms, dikes, trenches). (iv) Prevent contamination of water supplies. (v) Mitigate effects of equipment failure end power outages. (vi) Prevent undue exposure of personnel to hazardous waste (for example, protective clothing). (9) Traffic pattern, volume and control (for example, show turns 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 requirements set forth in § 122.25(e) reflect those permit application equirements related to the initial promulgation of Part 204. Additional 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 operator: (1) Has a permit for ocean dumping issued under 40 CFR Part 220 (Ocean Dumping, authorized )y the Marine Protection. Research, and Sanctuaries Act, as amended, 33 U.S.C. § 1420 et seq.); (2) Complies with the conditions of that permit; and (3) Complies with the following hazardous waste regulations: (i) 40 CFR § 204.11, Identification number, (ii) 40 CFR § 284.71, Use of manifest system; (iii) 40 CFR § 264.72. Manifest discrepancies; (iv) 40 CFR § 264.73(a) and (b)(1), Operating record: (v) 40 CFR § 264.75, Annual report; and (vi) 40 CFR § 204.76, Unmanifested waste report. (b] Injection we/Is. The owner or operator of an injection well di posing of hazardous waste, if the owner or perator: (1) Has a permit for underground injection issued under Part 122, Subpart C or Part 123, Subpart C; and (2) Complies with the conditions of that pern it and the requirements of § 122.45 (requirements for wells managing hazardous waste). (c) Publicly owned treatment works. The owner or operator of a POTW - which accepts for treatment hazardous waste, if the owner or operator: (1) Has an NPDES permit; (2) Complies with the conditions of that permit; and (3) Complies with the following regulations: (i) 40 CFR § 264.11, Identification number (ii) 40 CFR § 264.71, se of manifest system; (iii) 40 CFR § 264.72, Manifest discrepancies; (iv) 40 CFR § 264.73 (a) and (b)(1), Operating record; .(v) 40 CFR § 264.75, Annual report; (vi) 40 CFR § 264.76, Unmanifested waste report; and (4) If the waste meets all Federal, State, and local pretreatment requirements which would be applicable to the waste if it were being discharged into the POTW through a sewer, pipe, or similar conveyance. § 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 permit; (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 authorizing it; and (5) Duration of the emergency permit; and (I) Shall incorporate, to the extent possible and not inconsistent with the emergency situation, all applicable requiróments of this Part and 40 CFR Parts 264 and 266. § 122.28 AdditIonal conditions applicable to all RCRA permits. (Applicable to State RCRA programu, 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 comply with the conditions of this permit to the extent and for the duration such noncompliance is authorized in an emergency permit.4See § 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 the 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 HWM facility, the permittee may not commence treatment, storage, or disposal of hazardous waste; and for a facility being modified the permittee may not treat, store, or dispose of hazardous waste in the modified portion of the facility, until: (1) The permittee has submitted to the Director by certified mail or hand delivery a letter signed by the permittee and a registered professional engineer stating th’ t the facility has been constructed or modified in compliance with the permit; and (2)(i) The Director has inspected the - modified or newly constructed facility and finds it is in compliance with 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 Director of his or her intent to inspect, prior inspection is waived and the permittee may commence treatment, storage, or , disposal of hazardous waste. (d) The following shall be included as information which must be reported orally within 24 hours under § 122.7(l)(6): (1) Information concerning release of any hazardous waste that may cause an ------- 33436 Federal Register I Vol. 45, No. 98 / 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 of the owner or operator (ii) Name, address, and telephone number of the facility; (iii) Date, time, and type of incident; (iv) 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 (vii) 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) freporting 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 § 264.72.] (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 § 264.75.) (4) [ Reserved.] [ Note.—The above reports are required in Part 264 as initially promulgated. Additional reports will be required and added to this section when remaining portions of Pars 264 are promulgated.J § 122.29 EstablIshing RCRA permit 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 CFR Parts 264 and 266. § 122.30 interIm permits for UIC wells. (Applicable to State programs, see § 123.7.) The Director may issue a permit under this Part to any Class I UIC well (see § 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 years. No such permit shall be issued after approval or promulgation of a UIC program in the State. Any permit under this section shall contain a condition providing thai it will terminate upon final action by the Director under a UIC program to issue or deny a UIC permit for the facility. Subpart C—Additional Requirements for IJIC Programs Under the Safe Drinking Water Act § 122.31 Purpose and scope of Subpart C. (a) Content of Subpart 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 § 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 that underground injection will not endanger drinking water sources” and to establish by regulation a program for EPA administration of UIC programs in the absence of an approved State program in a listed State. - (3) Section 1423 of SDWA provides procedures for EPA enforcement of UIC requirements 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 requirements “as the Administrator may reasonably require. . . to assist him in establishing regulations under this title,” and a “right of entry and inspection to determine compliance with this title, including for this purpose, inspection, at reasonable times, of records, files, papers, processes, controls, and facilities . . ..“ (8) Section 1450 of SDWA authorizes the Administrator “to prescribe such regulations as are necessary or appropriate to carry out his functions” under SDWA. (c) Overview of the UIC program. 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 Part 146. {d) Scope of the permit or rule requiremenL 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 SDWA, this Subpart provides that no Class I, II, or III well shall be authorized by permit or rule if it results In movement of fluid into underground sources of drinking water (USDWs) ( 122.34J. The technical requirements of Part 148 are designed to insure that such movement will not occur. No Class V well shall be authorized by permit or rule if it results iir the presence of any contaminant in USDWs which 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 9 122.36). 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 ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33437 Director must require remedial action or ;losure by order ( 122.34(c)). During LJIC program development, the Director nay identify aquifers and portions of aquifers which are actual or potential sources of drinking water (see § 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 USDWs. No aquifer is an “exempted aquifer” until it has been affirmatively designated under the procedures 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. (1) Specific inclusions. 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. (lii) Any septic tank or cesspool used by generators of hazardous waste, or by owners or operators of hazardous waste management facilities, to dispose of fluids containing hazardous waste. (iv) Any septic tank, cesspool, or other well used by a multiple dwelling, community, or Regional system for the injection of wastes. (2) Specific exclusions. The following are not covered by these regulations: (i) Injection wells located on a drilling platform or other site that is beyond a State’s territorial waters. (ii) Individual or single family residential waste disposal systems such as domestic ceaspools or septic systems. (iii) Any dug hole which is not used for emplacement of fhiids underground. § 122.32 ClassIfication of injection welts. (Applicable to State UIC programs,- see § 123.7.) 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, an underground source of drinking water. (b) Class II. Wells which inject fluids: (1) Which are brought to the surface in connection with conventional oil or natural gas production; (2) For enhanced recovery of oil or natural gas; and (3) For storage of hydrocarbons which are liquid at standard temperature and pressure. (c) Class III. Wells which inject for extraction of minerals 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, II, Ill, or IV. § 122.33 Prohibition of unauthorized Injection. (Applicable to State programs, see § 123.7.) Any UIC program shall prohibit, effective no later than the date of approval (for State programs) or the effective date of regulations establishing the program (for EPA-administered programs) any underground injection, except as authorized by permit or rule issued under 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. § 122.34 Prohibition of movement of fluid into underground sources of drinking water. (Applicable to State UIC programs, see § 123.7.) (a) No UIC authorization by permit or rule shall be allowed in the following circumstances: (1) Where a Class I, II, or III well causes or allows movement of fluid into underground sources of drinking water. (2) Where a Class 1V or V well causes or allows movement of fluid containing any contaminant into underground sources of thinking 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, II, and III wells, if any mopitoring indicates the movement of injection or formation fluids into underground sources of Irinking waler, 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 if cause exists, or appropriate enforcement action may be taken if the permit has been violated. In the case of wells authorized by rule, see § 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 CFR Part 142, he or she shall: (1) Require the injector to obtain an individual permit; (2) Order the injector to take such actions (including where required closure of the injection well) as may be necessary to prevent the violation; or (3J Take enforcement action. (d) Whenever the Director learns that a Class V wefl maybe otherwise adversely affecting the hea ih of persons, he or she may prescribe such actions as may be necessary to prevent the adverse effect, including any action authorized under paragraph (c) of this section. (e) Notwithstanding any other provision of this section, the Director may take emergency action upon receipt of information that a contaminant which is present in or is likely to enter a public water system may present an imminent and substantial endangerment to the health of persons. § 122.35 identificatIon of underground sources of drinking water and exempted aquifers. - (Applicable to State IJIC programs, see § 123.7.) (a) The Director may identify (by narrative description, illustrations, maps, or other means) and shall protect, except where exempted under paragraph (b) of this section, as an underground source of drinking water, all aquifers or parts of aquifers which meet the definition of an “underground ------- 33438 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations source of drinldng water” in § 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 4 122.3. (b) After notice and opportunity for a public hearing the Director may identify (by narrative description, illustrations, maps, or other means) and describe 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 propose.s to designate as exempted aquifers using the criteria in 40 CFR § 148.04. For StaLe 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 exempted aquifers shall be treated as program modifications under § 123.8(b)(8). § 122.36 EliminatIon of certain Class IV welle. (Applicable to State UIC programs, see § 123.7.) (a) b addition to the requirement of § 122.45, any UIC program shall prohibit: (1) The construction of any Class N well for the injection of hazardous waste directly into an underground source of drinking water; (2) The ânjection of hazardous waste directly into an underground source-of drinldng 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 injecting 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 rule. (Applicable to State UIC programs, see § 123.7] (a) Types of underground injection which may be authorized by rále. 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 § 122.33). (1) Injection into existing 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 wells must be issued permits within the five year period or close down at its end, unless the rule is continued under § 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 III 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 schedules for achieving applicable requirements of 40 CFR 146 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 § 146.44 within 90 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 § 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 following requirements applicable to permittees, except that the terms “permit” and “permittee” shall be read to include rules and those authorized by rule: - - (1) § 122.41(a)—(exemption from rule where authorized by temporary permits); (2) § 122.41(b)—(retention of records); (3) § 122.41(d)—(reporting within 24 hours); (4) § 122.41(e) —(180 days notice of abandonment); (5) Construction requirements under § 146.12 (Class I), § 146.22 (Class II), and § 148.32 (Class III); (8) For Class I, II, or ill wells, corrective action under § 146.07; (7) Operating, monitoring, and reporting requirements under § 146.13 (Class I), § 146.23 (Class II), and § 148.33 (Class UI); (8) § 122.42(g)—(Financia l responsibility); (9) Mechanical integrity requirements under § 148.08. (c) Requiring a permit. (1) The Director may require any Class I, II, Ill, or V injection well authorized by a rule to apply for and obtain an individual or area UIC permit. Cases where individual or area UIC permits may be required include: (i) The injection well is not in compliance with any requirement of the rule; (Note.—Any underground injection which violates any rule under this section is subject to appropriate enforcement action.] (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 USUWs requires that the injection operation be regulated by requirements, such as for corrective action, monitoring and reporting, or operation, which are not contained in the rule. (2) For EPA administered programs, the Regional Administrator may require the owner or operator authorized by a rule to apply for an individual or area UIC permit under this paragraph only if the owner or operator has been notified in writing that a permit application is required. The notice shall include a brief statement of the reasons for this decision, an application form, a statement setting a time for the owner or operator to file the application, and a statement that upon the effective date of the UIC permit the rule no longer applies to the activities regulated under the UIC programs. (3) Any owner or operator authorized by a rule may request to be excluded from the coverage of the rule by applying for an individual or area UIC permit. The owner or operator shall submit an application under § 122.38 with reasons supporting the request, to the Director. The Director may grant any such request. (d) In 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 fails to comply within the time specified in paragraph (c)(3) 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 approval of the UIC program ma State, the Director shall notify owners or operators of injection wells of their duty to submit inventory information. The method of notification selected by the Director must assure that the owners or operators will be ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980/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 year 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 Wells. The Director shall, within three years of the approval of the program in a State submit a report and recommendations to EPA In compliance with § 146.52(b). § 122.38 Application for a permit; authorization by permit. (Applicable to State UIC programs. see § 123.7.) (a) Permit application. Except as provided in § 122.37 (authorization by rule), all underground injections into Class I, H, 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 appiy. Any person who performs or proposes an underground injection for which a permit is or will be required shall submit an application to the Director in accordance with the 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 § 123.4(g), but no later than 4 years from the approval of the UIC program, or as required under § 122.45(b) for wells injecting hazardous waste. (2) For new injection wells, except new wells covered by an existing area permit under § 122.39(c). a reasonable time before construction is expected to begin. (See also § 122.41(b)). (c) Contents of UIC application. [ Reserved.] § 122.39 Area 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 the same State; (3) Of similar construction; (4) Of the same class 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 in 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 section; and (3) The cumulative effects of drilling and operation of additional injection wells are considered by the Director during evaluation of the area permit application and are acceptable to the Director. (d) If the Director determines that any well constructed pursuant to paragraph (c) of this section does not satisfy any of ‘the requirements of paragraphs (c)(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 determines that cumulative effects are unacceptable, the permit may be modified under § 122.15. § 122.40 Emergency permits. (a) Coverage. Notwithstanding any other provision of this Part or Part 124, the, Director may temporarily permit a specific underground injection which has not otherwise been authorized by -rule 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 H 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 fluida 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 II well and the temporary authorization will not result in the movement of fluids into an underground source of drinldng 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 section shall be for no longer than 90 days, except that if a permit application has been submitted prior to the expiration of the 90-day period, the Director may extend the temporary permit u. ntil 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 conditions applicable 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 UIC permits and shall be incorporated into all permits either expressly or by reference. if incorporated by reference, a 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 permittee 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 § 122.40. (b) In addition to § 122.7fl)(2) (monitoring and records): the permittee 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 ------- 33440 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / 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)(i) The Director has inspected or otherwise reviewed the new injection well and finds it is in compliance *ith the conditions of the permit; or (ii) The permittee has not received notice from the Director of hi8 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 § 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 146. Existing wells shall achieve compliance with such requirements according to a compliance schedule established as a permit condition. The owner or operator of a proposed new injection well shall submit plans for testing, drilling, and construction as part of the permit application. Except as authorized by an area permit, no construction may commence until a permit has been issued containing construction requirements (see § 122.33). New wells shall be in compliance with these requirementa prior to commencing injection operations. Changes In construction plans during construction may be approved by the Director as minor modifications ( 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 §122.44 and § 146.7. (c) Operation requirements as set forth in 40 CFR Part 146; the permit shall establish any maximum injection volumes and/or pressures necessary to assure that fractures are not initiated in the confining zone, that injected fluids do not migrate into any underground source of drinking water, that formation fluids are not displaced into any underground source of drinking water, and to assure compliance with the Part 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 146. The permittee shall be required to Identify types of tests and methods used to generate the monitoring data. (f) Plugging and abandonment. Any Class I, H or HI 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 meçts the requirements of this paragraph, the Director shall Incorporate it into the permit as a condition. Where the Director’s review of an application indicates that the permittee’s plan is inadequate, the Director shall require the applicant to revise the plan, prescribe conditions meeting the requirements of this paragraph, or deny. the application. For purposes of this paragraph, temporary intermittent cessation of injection operations is not abandonment. (g) Financial responsibility. The permit shall require the permittee 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 in any one State. (h) Mechanical integrity. A permit for any Class I. II, or III well or injection project which lacks mechanical integrity shall include, -and for any Class V well may include, a condition prohibiting injection operations until the permittee shows to the satisfaction of the Director under § 146.08 that the well has mechanical integrity. (i) Additional conditions. The Director shall Impose on a case-by-case basis such additional conditions as’are necessary to prevent the migration of fluids into underground sources of drinking water. § 122.43 Waiver of requirements by Director. (a) When injection does not occur into, through, or above an undez round source of drinking water, the Director may authorize a well with less stringent requirements for area of review, construction, mechanical integrity, operation, monitoring, 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. (b) When injection occurs into, through, or above an underground source of drinking 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, 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. (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 under State procedures) explaining the reasons for the action. § 122.44 Corrective action. (AppLicable to State UIC programs, see § 123.7.) (a) Coverage. Applicants for Class I, II (other than existing), or Ill injection well permits shall identify the location of all known wells within the injection well’s area of review which penetrate the injection zone. For such wells which are improperly sealed, completed, or abandoned, the applicant shall also submit a plan consisting of such steps or modifications as are necessary to / prevent movement of fluid into underground sources of drinking water (“corrective action”). Where the plan is adequate, the Director shall incorporate it into the permit as a condition. Where the Director’s review of an application indicates that the permittee’s plan is inadequate (based on the factors in § 146.07) the Director shall require the applicant to revise the plan, prescribe a ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33441 plan for corrective action as a condition of the permit under paragraph (b) of this section. or deny the appIication. The Director may disregard the provisions of § 146.06 (area of review) and § 146.07 (corrective action) when reviewing an application to permit an existing Class II well. (b) Requirements—(l) Existing - injection wells. Any permit issued for an existing injection well (other than Class II) requiring corrective action shall include a compliance schedule requiring any corrective action accepted or prescribed under paragraph (a) of this section to be completed as soon as possible. (2) New injection wells. No permit for a new injection well may authorize.. injection until all required corrective action has been taken. (3) fnjection pressure limitation. The Director may require as a permit condition that injection pressure be so limited that pressure in the injection zone does not exceed hydrostatic pressure at the site of any improperly completed or abandoned well within the area of review. This pressure limitation shall satisfy the corrective action requirement. Alternatively, such injection pressure limitation can be part of a compliance schedule and last until all other required corrective action has been taken. § 122.45 RequIrements for wells Injecllng hazardous waste. (Applicable to State UIC programs. see § 123.7.) (a) Applicability. The regulations in this section apply to all generators of hazardous waste, and to the owners or operators of all hazardous waste management facilities, using any class of well to inject hazardous wastes accompanied by a manifest. (See also § 122.36.) (b) Authorization. The owner or operator 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 6 months after the approval of an applicable,State program. (c) Requirements. In addition to requiring compliance with the applicable requirements of this Part and 40 CFR Part 146, Subparts B—F, the Director shall, for each facility meeting the requirements of paragraph (bJ of this section. require that the owner or operator comply with the following: (1) Notification. The owner or operator shall comply with the notification requirements of Section 3010 of Pub. L. 94—580. (2) Identification number. The owner or operator shall comply with the requirements of 40 CFR § 264.11. (3) Manifest system. The owner or operator shall comply with the applicable recordkeeping and reporting requirements for manifested wastes in 40 CFR § 264.71. (4) Manifest discrepancies. The owner or operator shall comply with 40 CFR § 264.72. (5) Operating record. The owner or operator shall comply with 40 CFR § 264.73(a), (b)(1), and (b)(2). (6) Annual report. The owner or operator shall comply with 40 CFR § 264.75. (7) Unmanifested wastes report. The owner or operator shall comply with 40 CFR § 264.75. (8) Personnel training. The owner or operator shall comply with the applicable personnel training requirements of 40 CFR § 264.16. (9) Certification of closure. When abandonment is completed, the owner or operator must submit to the Director certification by the owner or operator and certification by an independent registered professional engineer that the facility has been closed In accordance with the specifications in § 122.42(0. (d) Addition ci requirements for Class IV wells. (Reserved]. Subpart D—Add ltlonal Requirements for National Pollutant DIscharge ElIminatIon System Programs Under the Clean Water Act § 122.51 Purpose and scope of Subpart D. (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 States are indicated at the section heading as follows: (applicable to State NPDES programs, sea § 123.7). The regulations in this Subpart are supplemental to the requirements in Part 122, Subpart A, which apply to all programs. (b) Authority. (1) Section 301(a) of CWA provides that “Except as in compliance with this section and sections 302, 308, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.” (2) 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 combination of pollutants, upon condition that such discharge will meet either all applicable requirements under sections 301, 302, 306, 307, 308, and 403 of this Act, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this Act.” (3) Section 318(a) of CWA provides that “The Administrator is authorized, after public hearings, to permit the discharge of 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 result in any pollutant from such sewage sludge entering the navigable waters, such disposal is prohibited except in accordance with a permit issued by the Administrator under section 402 of this Act.” (5) Sections 402(b), 318(b) and (c), and 405(c) of CWA authorize EPA approval of State ermit programs for discharges from point sources, discharges to aquaculture projects, and disposal of sewage sludge. (6) Section 3 4(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 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 ass)sted 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.” (c) Scope of the NPDES permit requirement. 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 ------- 33442 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations “waters of the United States” are defined in § 122.3. (1) Specific inclusions. The following 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 aquaculture 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 facility, a storage facility or a seafood processing facility, or when secured to a storage facility or a seafood processing facility, or when secured to the bedof the ocean, contiguous zone or waters of the United States for the purpose of mineral or oil exploration or development. (ii) Discharges of dredged or fill material into waters of the United States which are regulated under section 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 exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other party not leading to treatment works. (iv) 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 aquaculture projects as defined in § 122.56, and discharges from silvicultural point sources as defined in § 122.58. (vi) Return flows from irrigated agriculture. (vii) Discharges into a privately owned treatment works, except as the Director may otherwise require under § 122.62(m). § 122.52 ProhibItions. (Applicable to State NPDES programs, see § 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 § 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; (e) When, in the judgment of the Secretary, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge; (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: (1) Before the promulgation of guidelines under section 403(c) of CWA (for determining degradation of the waters of the territorial seas, the contiguous zone, and the oceans) unless the Director determines permit issuance to be in the public int rest; or — (2) After promulgation of guidelines under section 403(c) of CWA, when insufficient 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 cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by section 301(b)(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 for the discharge: and (2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. § 122.53 Application for a 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 covered by general permits under § 122.59, excluded under § -122.51, or a user of a privately owned treatment works unless the Director requires otherwise under § 122.62(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 apply. Any person proposing a new discharge shall submit an application at least 180 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the Director. Persons proposing a new discharge are encouraged to submit their applications well in advance of the 180 day requirement to avoid delay. See also paragraph (h). (c) Duty to reapply. (1) Any POTW with a currently effective permit shall submit a ne Papplicafionat least 180 days before the expiration date of the existing permit, unless permission for a later date has been granted by the Director. (The Director shall not grant permission for applications to be submitted later than the expiration date of the existing permit.) (2) All other permittees with currently effective permits shall subthit a new application in accordance with the table below: ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33443 Permit expires Application Deadline Ion requirement Submission On or before (1) II applicant has Not applicable Nov 30, submitted new 1980 application before A af I 30. 1980. new application’ is not required (2)11 applIcant has Date on which permit not submitted new expires’ application before Apill 30. 1980, applicant must submit now sppl lcalioni Dec. t, 1980— New application’ 90 days before permit May 31, expires.” 1981 On or alter New application’. . 180 days before June I, permit eupres’ 1981 ‘The new application requirements are set forth in § 122 4(d) and itt paragraphs (C) and (e) of flits section Appll . cents to, EPA-lasued permits must use Founts I and either 2b or 2c Of EPAa consolidated parmil sppllcaUon forms to apply under those sections. ‘Applicants may request additional time for the submissIon of information required by paragraphs (C) (7), (9) and (10) of this section. The request must be in wilting and must slate the reasons thiS Inlormellon could not be submitted on tune Based upon this requost. the Director may ext end the time to submit all or some of this information up to six months beyond the deadline I, sI mIssion or June 30. 1981, which- ever is earlier ‘The Director may grant permission to Submit an applica- tion later tItan this date, but no later than the expiration date of the permit. (d) Application requirements for existing manufacturing, commercial, mining, and si/vicultural dischai ers. Existing manufacturing, commercial, mining, and silvicultural diachargers applying for NPDES permits shall provide the following information to the Director, using application forms provided by the Director: (1) Outfall location. The latitude and longitude to the nearest 15 seconds and the name of the receiving water. (2) Line drawing. A li te 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 identifit ation under paragraph (d)(3) of this section. The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined (for example, for certain mining activities), the applicant may provide instead a pictorial description of the nature and amount of any sources of water and any collection and treatment measures. (3) Average flows and ire atment. 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 contributes; and a description of the treatment the wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. Processes, operations or production areas may be described in general terms (for example, “dye-making reactor”, “distillation tower”.) For a privately owned treatment works, this information shall include the identity of each user of the treatment works. (4) Intermittent flows. If any of the discharges described in paragraph (d)(3) of this section are intermittent or seasonal, a description of the frequency, duration and flow rate of each discharge occurrence (except for storm water runoff, spillage, or leaks). (5) Maximum production. If an effluent guideline promulgated under section 304 of CWA applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant’s actual production reported in the units used in the applicable effluent guideline. The reported measure must reflect the actual production of the facility as required by § 122.83(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 characterislics. Information on the discharge, of pollutants specified in this subparagraph. When “quantitative data” for a pollutant is required, the applicant must collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136. When no analytical method is approved the applicant may use any suitable method but must provide a description of the method. When an applicant has two or more outfalls with substantially identical effluents, the Director may allow the applicant to test only one outfall and report that the quantitative data also applies to the substantially identical outfalls. The requirements in paragraphs (d)(7) (iii) and (iv) of this section that an applicant must provide quantitative data for certain pollutants known or believed to be present does not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant must report such pollutants as present. Grab samples must be used for pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, and fecal coliform. For all other pollutants. 24-hour composite samples must be used. An applicant is expected to “know or have reason to believe” that a - pollutant Is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant. or on any previous analyses for the pollutant. (For example, any pesticide manufactured by a facility may be expected to be present in contaminated storm water runoff from the facility.) (i)(A) Every applicant must report quantitative data for every outfall for the followng pollutants: (1) 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) (7) 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 th following pollutants in each outfall containing process wastewater: (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) f this section. Table II 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 chromotography/mass spectrometry. A determination that an applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the applicant’s inclusion in that category for any other purposes. (B) The pollutants listed in Table III of Appendix D (the toxic metals, cyanide, and total phenols). (iii) Each applicant must report for each outfall quantitative data for the following pollutants, if the applicant knows or has reason to believe that the pollutant is discharged from the outfall: (A) All pollutants listed in Table II or Table III of Appendix 0 (the toxic pollutants) for which quantitative data is not otherwise required under paragraph (d)(7)(ii) of this section except that an applicant qualifying as a small business under paragraph (d)(8) of this ------- 33444 Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 I Rules and Regulations section is not required to analyze for the pollutants listed in Table II of Appendix D (the organic toxic pollutants). (B) All pollutants in Table IV of Appendix 0 (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 pollutant. (v) Each applicant must report qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7.8- tetrachlorodibenzo-p-dioxin (TCDD) if (A) U3es or manufactures 2,4,5- trichlorophenoxy acetic acid (2,4,5-T); 2— (2,4,5-trichiorophenoxy) propanoic acid (Silvex, 2,4,5,TP); 2—(2,4,5- trichlorophenoxy) ethyl 2.2. dichloropropionate (Erbon); 0,0-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-tn- chiorophenol (TCP); or hexachiorophene (HCP); or (B) Knows or has reason to believe that TCDD is or may be present in an effluent. (8) Small business exemption. An applicant which qualifies as a small business under one of the following criteria is exempt from the requirements in paragraphs (d)(7)(ii)(A) or (d)(7)(i!i)(A) of this section to submit quantitative data for the pollutants listed in Table II 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 pollutant which the applicant does or expects that it will during the next 5 years use or manufacture as an intermediate or final product or byproduct. (10) Potential discharges. A description of the expected levels of and the reasons for any discharges of pollutants which the applicant knows or has reason to believe will exceed two times the values reported in paragraph (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 years on any of the applicant’s discharges or on a receiving water in relation to a discharge. (12) Contract analyses. If a contract laboratory or consulting firm performed any of the analyses required by paragraph (d)(7) of this section, the identity of each laboratory or firm and the analyses performed. (13) Additionalinformation. In addition to the information reported on the application form, applicants shall provide to the Director, at his or her request, such other information as the Director may reasonably require to assess the discharges of the facility and to determine whether to issue an NPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity of discharges to aquatic life and requirements to determine the cause of the toxicity. (e) Application requirements for new and existing concentrated animal feeding operations and aquatic animal production facilities. New and existing concentrated animal feeding operations (defined in § 122.54) 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 Director: v (1) For concentrated animal feeding operations: (i) The type and number of animals in open confinement and housed under roof. (ii) The number of acres used for confinement feeding. (iii) The design basis for the runoff diversion and control system, if one exists, including the number of acres of contributing drainage, the storage capacity, and the design safety factor. (2) For concentrated aquatic animal production facilities: (i) The maximum daily and average monthly flow from each outfall. (ii) The number of ponds, raceways, and similar structures. (iii) The name of the receiving water and the source of intake water. (iv) For each species of aquatic animals, the total yearly and maximum harvestable weight, (v) The calendar month of maximum feeding and the total mass of food fed during that month. (f) Application requirements for new and existing POTWs. [ Reserved.] (g) Application requirements for new sources and new diechargers. (Reserved.) (h) 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 122.3) and which is located in a State without an approved NPDES program must comply with the provisions of this paragraph. (2)(i) Before beginning any on-site construction as defined in § 122.60, 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 facility 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 § 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 6.600 et seq. (4) Any interested person may challenge the Regional Administrator’s initial new source determination by requesting an evidentiary hearing under Subpart E of Part 124 within 30 days of issuance of the public notice of the initial determination. The Regional Administrator may defer the evidentiary hearing on the determination until after a final permit decision is made, and consolidate the hearing on the determination with any hearing on the permit. (i) Variance requests by non -POTWe. A discharger which is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified in this paragraph: (1) Fundamentally different factors. A request for a variance based on the presence of “fundamentally different factors” from those on which the effluent limitations guideline was based shall be made by the close of the public comment period under § 124.10. The request shall explain how the requirements of § 124.13 and 40 CFR Part 125, Subpart 0 have been met. (2) Non -con ventional pollutants. A request for a variance from the BAT requirements for CWA section 301(b)(2)(F) pollutants (commonly called “non-conventional” pollutants) pursuant ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33445 to section 301(c) of CWA because of the economic capability of the owner or operator, or pursuant to section 301(g) of CWA because of certain environmental considerations, when those requirements were based on effluent limitation guidelines, must be made by: (i) Submitting an initial request to the Regional Administrator, as well as to the State Director if applicable, stating the name of 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 which is controlled by a BAT effluent limitation guideline promulgated before December 27. 1977; or (B) 270 days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 27. 1977; and (ii) Submitting a completed request no later than the close of the public comment period under § 124.10 demonstrating that the requirements of § 124.13 and the applicable requirements of Part 125 have been met. (iii) Requests for variance from effluent limitations not based on effluent limitation guidelines, need only comply with paragraph (i)(2)(ii) of this section and need not be precededby an initial request under paragraph (i)(2)(i) of this section. (3) Delay in construction of POTW. 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 en extension under paragraph (j)(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 301(k) from the statutory deadline of section 301(b)(2)(A) for best available technology based on the use of innovative technology may be requested no later than the close of the public comment period under § 124.10 for the discharger’s initial permit requiring compliance with section 301(b)(2)(A). The request shall demonstrate that, the requirements of § 124.13 and Part 125, Subpart C have been met. (5) Water quality related effluent limitations. A modification under section 3o2(b)(2) of requirements under section 302(a) for achieving water quaIiI 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. (8) 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.) (j) 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 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 request must be submitted In accordance with the filing requirements of 40 CFR Part 125, Subpart C, after that Subpafl 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)(i)(B) or (b)(1)(C) based on delay in the construction of the P01W must have been requested on or before June 26, 1978. (3) Water quality based effluent limitation. A modification under CWA section 302(b)(2) of the requirements under section 302(a) for achieving water quality based effluent limitations shall be requested no later than the 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 is issued under § 124.8 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 (i)(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 operations. (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 of the lot or facility. (2) Two or more animal feeding operations under common ownership are considered, for the purposes of these regulations, to be a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of wastes. (3) “Concentrated animal feeding operation” means an “animal feeding operation” which meets the criteria in Appendix B, or which the Director designates under paragraph (c) of this section. (c) Case-by-case designation of concentroted animal feeding operatioi._. (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 ------- 33446 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I 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; (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 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 inspectioi of the operation and determined that the operation should and could be regulated under the permit program. § 122.55 Concentrated aquatic animal production lacilfties. (Applicable to State NPDES programs, see § 123.7.) (a) Permit requirement. Concentrated aquatic animal production facilities, as defined in this section, are point sources subject to the NPDES permit program. (b) Definition. “Concentrated aquatic animal production facility” means a hatchery, fish farm, or other facility which meets the criteria in Appendix C, or which the Director designates und r paragraph (c) of this section. (c) Case-by-case designation of concentrated aquatic animal production facilities. (1) The Director may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a significant contributor of pollution to waters of the United States. In making this designation the Director shall consider the following factors: (1) The location and quality of the receiving waters of the United States; (ii) The holding, feeding, and production capacities of the facility; (iii) The quantity and nature of the pollutants reaching waters of the United States; and (iv) Other relevant factors. (2) A permit application shall not be required from a concentrated aquatic animal production facility designated under this paragraph until the Director has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program. § 122.56 Aquaculture 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) “Aquaculture project” means a defined managed water area which uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater, estuarine, or marine plants or animals. (2) “Designated project area” means the portions of the waters of the United States within which the permittee or permit applicant plans to confine the cultivated species, using a methbd 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, and be harvested within a defined geographic area. § 122.57 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 § 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 conveyapce or system of conveyances (including pipes, conduits, ditches, and channels) primarily used for collecting and conveying storm water runoff and which is either: (i) Located in an urbanized areas as designated by the Bureau of the Census according to the criteria in 39 FR 15202 (May 1, 1974); or (ii) Not located in an urbanized area but designated under paragraph (c) of this section. (2) Except as provided in paragraph (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 coptaminated by contact with wastes, raw materials, or pollutant- contaminated soil, from lands or facilities used for industrial or commercial activities, into waters of the United States or into separate storm sewers are point sources that must obtain NPDES permits but are not separate storm sewers. (4) Whether a system of conveyances is or is not a separate storm sewer for purposes of this section shall have no bearing on whether the system is eligible for funding under Title II of CWA see 40 CFR § 35.925—21. (c) 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 when: (1) A Water Quality Management plan under section 208 of CWA which contains requirements applicable to such point sources is approved; or (2) The Director determines that a storm sewer is a significant contributor of pollution to the waters of the United States. In making this determination the Director shall consider the following factors: (i) The location of the discharge with respect to waters of the United States; (ii) The size of the discharge; (iii) The quantity and nature of the pollutants reaching waters of the United States; and (iv) Other relevant factors. § 122.58 Silvlcuitural activities. (Applicable to State NPDES programs. see § 123.7.) ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33447 (a) Permit requirement. Silvicultural 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 silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not Include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material which may require a CWA section 404 permit (see 33 CFR § 209.120 and Part 123, Subpart E). (2) “Rock crushing and gravel washing facilities” means facilties which process crushed and broken stone, gravel, and riprap (see 40 CFR Part 436, Subpart B, including the effluent limitations uidelines). (3) “Log sorting and log storage facilities” means facilities whose discharges result from the holding of unprocessed wood, for example, logs or roundwood with bark or after removal of bark held in self-contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking). (See 40 CFR Part 429. Subpart J. Including the effluent limitations guidelines). § 122.59 General permits. (Applicable to State NPDES programs, see § 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; (iii) city, county, or State political oundaries; (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 (a)(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) Administrotion.—(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 § 123.76 for States and § 124.58 for EPA. (2) Requiring on individual permiL (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 § 122.57(c)(2); (B) The discharger is not in compliance with the conditions of the general NPDES permit; (C) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the 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) For 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. (iii) Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under § 122.53, 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 an individual NPDES permit is issued to an owner or operator otherwise subject to a general NPDES permit, the applicability of the general permit to the individual NPDES permittee is automatically terminated on the effective date of the individual permit. - (v) A source excluded from a general permit solely because it already has an individual permit may request that the individual permit be revoked, and that it be covered by the general permit. Upon revocation of the individual permit, the general permit shall apply to the source. § 122.60 Additional conditions applicable to all NPDES Permits. (Applicable to State NPDES programs, see § 123.7.) The following conditions, in addition to those set forth in § 122,7, apply to all NPDES permits: (a) In addition to § 122.7(a) (duty to comply): (1) The pernnuee shall comply with effluent standards or prohibitions established under section 307(a) of the Clean Water Act for toxic poUutants 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 ------- 33448 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations condition implementing sections 301. 302, 306, 307, 308, 318, or 405 of the Clean Water Act is subject to a civil penalty not to exceed $100,000 per day of such violation. Any person who willfully or negligently violates permit conditions implementing sections 301, 302, 308, 307, or 308 of the Clean Water Act is subject to a fine 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 § 122.7(c) (duty to halt or reduce activity), upon reduction, loss, or failure of the treatment facility, the permittee shall, to the extent necessary to maintain compliance with its permit, control production or all discharges or both until the facility is restored or an alternative method of treatment is provided. This requirement applies, for example, when the primary source of power of the treatment facility fails or is reduced or lost. (c) In addition to § 122.7(j) (monitoring): (1) Monitoring-must be conducted according to test procedures approved under 40 CFR Part 136, 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 ahy monitoring device or method required to be maintained under this permit shall, upon conviction, be punished by a fine of not more than $10,000 per violation, or by imprisonment fornot more than 0 months per violation, or by both. (d)ln addition to §i22 (lç) (signatosies): the 2ean 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 6 months per violation, or by both. (e) In addition to § 122.7(l)(3) (monitoring reports): (1) Monitoring,results must be reported on a Discharge Monitoring Report (DMR). (2) If the permittee monitors any pollutant more frequently than required by the permit, using test procedures approved under 40 CFR 136 or as specified in the permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR. (3) Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified by the Director In the permit. (fl(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 limjtation in the permit. (See § 122.60(g) below.) (ii) Any upset which exceeds any effluent limitation in the permit. (iii) Violation of a maximum daily discharge limitation for any of the pollutants listed by the Director in the permit to be reported within 24 hours. (See § 122.62(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 treatment facility. (ii) “Severe property damage” means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production. (2) Bypass not exceeding limitations. The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but onlyif it also is for essential majntenanne to -assure efficient operation. These bypasses are not subjedt to the provisions of paragraphs (g)(3) and (g)(4) of this section. (3) Notica.—(i) Anticipated bypass. If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least ten days before the date of the bypass. (ii) Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in paragraph (f) of this section (24-hour notice). (4) Prohibition of bypass. (i) Bypass is prohibited, and the Director may take enforcement action against a permittee for bypass, unless: (A) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; (B) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if the permittee could have installed adequate backup equipment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance: and (C) The permittee submitted notices as required under paragraph (g)(3) of this section. (ii) The Director may approve an anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions listed above in paragraph (g)(4)(i) of this section. (h) Upset.—(1) Definition. “Upset” means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation. - (2) Effect of an upset. An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limitations if the requirements of paragraph (h)(3) of this section are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review. (3) Conditions necessary for a demonstration of upset. A permittee who wishes to establish the affirm afive defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: (i) An upset occurred and that the permlttee can identify [ he specific cause(s) of the upset: (ii) The permitted facility was at the time being properly operated; and (iii) The permittee submitted notice of the upset as required in paragraph (F) of this section (24-hour notice). (iv) The permittee complied with any remedial measures required under § 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. § 122.61 Additional conditions applicable to specified categories of IIPDES permits. (Applicable to state NPDES programs, see § 123.7.) The following conditions, in addition to those set forth in § 122.7 and § 122.60, apply to all NPDES permits within the categories specified below: ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33449 — (a) Existing manufacturing, ommercia1, mining, and silvicultural iischargers. In addition to the reporting requirements under § 122.7(1) and § 122.60, all existing manufacturing, commercial, mining, and silvicultural dischargers muit notify the Director as soon as they know or have reason to believe: (1) That any activity has occurred or will occur which would result in the discharge of any toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following “notification levels:” (i) One hundred micrograms per liter (100 g/1); (ii) Two hundred micrograms per liter (200 Lg/1) for acrolein and acrylonitrile; five hundred micrograms per liter (500 a.g/i) for 2,4-dinitrophenol and for 2- methyl-4,0-dinitrophenol; and one milligram per liter (1 mg/i) for antimony; (iii) 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)(10); or (iv) 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) Publicly 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 directly discharging those pollutants; and (2) Any substantial change in the volume or character of pollutants being Introduced into that POTW by a source Introducing pollutants into the POTW at the time of issuance of the permit. (3) For purposes of this paragraph, adequate notice shall include information on (i) the quality and quantity of effluent introduced into the POTW, and (ii) any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW. § 122.62 Estabtlshing P’WDES permit conditions. (Applicable to State NPDES programs, see § 123.7.) In addition to the conditions stablished under § 122.8(a), each IPDES permit shall include conditions 1eeting the following requirements when applicable. (a) Technology-based effluent limitations and standards based on effluent limitations and standards promulgated under section 301 of CWA or new source performance standards promulgated under section 308 of CWA, on case-by-case effluent limitations determined under section 402(a)(1) of CWA, or on a combination of the two, in accordance with § 125.3. For new sources or new diachargers, these technology based limitations and standards are subject to the provisions of § 122,67(d) (protection period). (b) Other effluent limitations and standards under sections 301, 302, 303, 307, 318, and 405 of CWA. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) Is promulgated under section 307(a) of CWA for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the Director shall institute proceedings under these regulations to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition. See also § 122.60(a). (c) Reopener clause: for any discharger within a primary industry category (see Appendix A), requirements under section 307(a)(2) of CWA as follows: (1) On or before June 30, 1981: (i) If applicable standards or limitations have not yet been promulgated, the permit shall include a condition stating that, if an applicable standard or limitation is promulgated under sections 301(b)(2) (C) and (D). 304(b)(2), and 307(a)(2) and that effluent standard or limitation is more stringent than any effluent limitation in the permit or controls a pollutant not limited in the permit, the permit shall be promptly modified or revoked and reissued to conform to that effluent standard or limitation. (ii) If applicable standards or limitations have been promulgated or approved, the permit shall include those standards or limitations. (If EPA approves existing effluent limitations or 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 reissue any permit containing the clause required under paragraph (c)(1) of this section to incorporate an applicable effluent standard or limitation under sections 301(b)(2) (C) and (D), 304(b) [ 2), and 307(a)(2) which is promulgated or approved after the permit is issued if that effluent standard or limitation is more stringent than any effluent limitation in the permit, or controls a pollutant not limited in the permit. (d) Water quality standards and State requirements: any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318, and 405 of CWA necessary to: (1) Achieve water quality standards established under section 303 of CWA; (2) Attain or maintain a specified water quality through water quality- related effluent limits established under section 302 of CWA; (3) Conform to the conditions of a State certification under section 401 of CWA which meet the requirements of § 124.53 when EPA is the permit issuing authority; however, if a State certification is stayed by a court of competent jurisdiction or appropriate State board or agency, EPA shall include conditions In the permit which may be necessary to meet EPA’s obligation under section 301 (b)(1)(C) of CWA; (4) Conform to applicable water quality requirements under section 401(a)(2) of CWA when the discharge affects a State other than the certifying State; (5) Incorporate any more stringent limitations, treatment standards, or schedule of compliance requirements established under Federal or State law or regulations in accordance with section 301(b)(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) criteria under Part 125, SubpartM, for ocean discharges; (8) Incorporate alternative effluent limitations or standards where wai4 nted by “fundamentally different factors,” under 40 CFR Part 125, Subpart D; (9) Incorporate any other requirements, conditions, or limitations into a new source permit under the National Environmental Policy Act 42 U.S.C. fl 4321 et seq. and section 511 of CWA, when EPA is the permit issuing authority (see § 122.08), (e) Toxic pollutants: limitations established under paragraphs (a), (b), or ------- 33450 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / 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 § 122.50(b)(1)(i). (1) Limitations must control all toxic pollutaits which: (i) The Director determines (based on information reported in a permit application under § 122.53(d) (7) or (10) or in a notification under § 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 permittee under § 125.3(c); or (ii) 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 (eJ(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 125.3(c). (f) Notification level: a “notification level” which exceeds the notification level of § 122.61(a)(1) (i), (ii), or (iii), 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 § 125.3(c). (g) Twenty-four hour reporting: Pollutants for which the permittee must report violations of maximum daily discharge limitations under § 122.60(f)(3) (24-hour reporting) shall be listed as such in the permit. This list shall incl ide any toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance. (h) Durations for permits, as set forth in § § 122.9(a) and 122.64. (i) Monitoring requirements: In addition to § 122.11, the following monitoring requirements: . 4 (1) To assure compliance with permit limitations, requirementa to monitor: (1) 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; (iii) Other measurements as appropriate; including pollutants in internal waste streams under § 122.63(i); pollutants in intake water for net limitations under § 122.63(f); frequency, rate of discharge, etc., for noncontinuous discharges under § 122.63(e); and pollutants subject to notification requirements under § 122.61(a). (iv) According to test procedures approved under 40 CFR Part 138 for the analyses of pollutants having approved methods under that Part, and according to a test procedure specified in the permit for pollutants with no approved methods. (2) Requirements to report monitoring results with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year. (j) Pretreatment program for POTWs. Requirements for POTWs to: (1) Identify, in terms of character and volume of pollutants, any significant indirect dischargers into the POTW subject to 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 ancillary 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. (I) 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 § 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 meet the effluent limitations in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations. In this case the limitations in the renewed or reissued permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by the subsequently promulgated effluent limitation guidelines); (ii) In the case of an approved State, State law prohibits permit conditions more stringent than an applicable effluent 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 § 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 increased production and raw waste loads, but in no event shall permit limitations be less stringent than those required by subsequently promulgated standards and limitations. (m) Privately owned treatment works. For a privately owned treatment works, any conditions expressly applic ble to any user, as a limited co-permittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable 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 Directo?s decision to issue a permit with no conditions applicable to any user, to impose conditions on one or more users, to issue separate permits, or to require separate applications, and the basis for that decision, shall be stated in the fact sheet for the draft permit for the treatment works. (n) Grants. Any conditions imposed in grants made by the Administrator to POWs under sections 201 and 204 of CWA which are reasonably necessary for the achievement of effluent limitations under section 301 of CWA. (0) Sewage sludge. Requirements under section 405 of CWA governing thei disposal of sewage sludge from publicly ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 4c1 owned treatment works, in accordance yith any applicable regulations. (p) Coast Guard. When a permit is issued to a facility that may operate at certain times as a means of transportation over water, a condition that the discharge shall comply with any applicable regulations promulgated by the Secretary of the department in which the Coast Guard is operating, thai 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 NPDES permit conditions. (Applicable to Stale NPDES programs, see § 123.7.) (a) Outfalls and discharge points. All permit effluent limitations, standards, and prohibitions shall be established for each outfall or discharge point of the ,ermitted facility, except as otherwise ,rovided under § 122.62(k)(2) (BMP5 Nhere limitations are infeasible) and paragraph (I) of this section (limitations n internal waste streams). (b) Production-based limitations. (1) En the case of POTWs, permit imitations. standards, or prohibitions Ihall be calculated based on design low. (2) Except in the case of POTWs. calculation of any permit limitations, standards, or prohibitions which are based on production (or other measure of operation) shall be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility, such as the production during the high month of the previous year, or the monthly average for the highest of the previous 5 years. For new sources or new dischargers, actual prodqction shall be estimated using projected production. The time period of the measure of production shall correspond to the time period of the calculated permit • limitations; for example, monthly production shall be used to calculate average monthly discharge limitations. (c) Metals. All permit effluent limitations, standards, or prohibitions for a metal shall be expressed 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 ‘imitation has been promulgated under WA and specifies the limitation for the ietal in the dissolved or valent form; or 1(2) In establishing permit limitations rn a case-by-case basis under § 125.3, it is necessary to express the limitation on the metal in the dissolved or valent form in order to carry out the provisions of CWA. (d) Continuous discharges. For continuous discharges all permit effluent limitations, standards, and prohibitions, including those necessary to achieve water quality standards, shall unless impracticable be stated as: (1) Maximum daily and average monthly discharge limitations for all dischargers other than publicly owned treatment works; and (2) Average weekly and average monthly discharge limitations for POTWs. (e) Non-continuous discharges. Discharges which are not continuous, as 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); (2) 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 kilograms of zinc per minute); and (4) Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure (for example, shall not contain at any time more than 0.1 mg/I zinc or more than 250 grams (1/4 kilogram) of zinc in any discharge). (I) Mass limitations. (1) All pollutants limited in permits shall have limitations, standards, or prohibitions expressed in terms of mass except: (i) For pH, temperature, radiation, or other pollutants which cannot appropriately be expressed by mass; (ii) When applicable standards and limitations are expressed in terms of other units of measurement; or (iii) If in establishing permit limitations on a case-by-case basis under § 125.3, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of TSS from certai ,n mining operations and permit conditions ensure that dilution will not be used as a substitute for treatment. (2) Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations. (g) Pollutants in intake water. Except as provided in paragraph (h) of this section, effluent limitations imposed in permits shall not be adjusted for pollutants in the intake water. (h) Net limitations. (1) Upon request of the discharger, effluent limitations or standards imposed in a permit shall be calculated on a “net” basis; that is, adjusted to reflect credit for pollutants in the discharger’s intake water, if the discharger demonstrates that its intake water is drawn from the same body of water into which the discharge is made and if: (i)(A) The applicable effluent limitations and standards contained in 40 CFR Subchapter N specifically provide that they shall be applied on a net basis; or (B) The discharger demonstrates that pollutants present in the intake water will not be entirely removed by the treatment systems operated by the discharger; and (ii) The permit contains conditions requiring: (A) The permittee to conduct additional monitoring (for example, for flow and concentration of pollutants) as necessary to determine continued eligibility for and compliance with any such adjustments; and (B) The permittee to notify the Director if eligibility for an adjustment under this section has been altered or no longer exists. In that case, the permit may be modified accordingly under § 122.15. (2) Permit effluent limitations or standards adjusted under this paragraph shall be calculated on the basis of the amount of pollutants present after any treatment steps have been performed on the intake water by or for the discharger. Adjustments under this paragraph shall be given only to the extent that pollutants in the intake water which are limited in the permit are not removed by the treatment technology employed by the discharger. In addition, effluent limitations or standards shall not be adjusted to the extent that the pollutants in the intake water vary physically, chemically, or biologically from the pollutants limited in the permit. Nor shall effluent limitations or standards be adjusted to the extent that the discharger significantly increases concentrations of pollutants in the intake water, even though the total amount of pollutants might remain the same. . (i) Internal waste streams. (1) When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be Imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the ------- 33452 Federal Register I V’ol. 45, No. 98 I Monday, May’ 19 1980 I’ Rules and Regulations monitoring required by § 122.62(i) shall also be applied to the internal waste. streams; (2] Limits on internal waste streams will be i ’mposed only when the fact sheet under § 124.50 sets forth the exceptionall circumstances which make such limitations necessary, such as when the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at the point of discharge are so diluted as to make. monitoring impracticable, or the interferences among,pollutants at the point of discharge would make detection or analysis impracticable. (j) ,Disposal of pollutants into wells,, into POTWs, or by, land application; Permit limitations and standards shall. be cal ’culated as provided in § 122.65. § 122.64 DuratIon of certain NPDES permits (Applicable to State NPDES programs, see § 1237.)’ (a) On or before’ June 30, 1981, any permit issued to a discharger in a primar çindustry category see Appendix A): (1) Shall.meet one of the following conditions:. (i Expireon.June 30: 1981’; (ii) Incorporate effluent standards andi limitations’ applicable to the thschargpr which have Been promulgated or approved under sections 301(b ’)(2) (C]j and (D) 304(b’)(2), and 307(a)(2) of CWA, or (iii) Incorporate the “reopener clause” required by § 122.62(c)(1) and’ effluent limitations to meet the requirements of sections 3o1(’b)(2), (A), (C), (D), (!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 required 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 IA determination that a partkular discharger falls within a given industrial category for purposes of setting a permft 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 prefudice. any rights to challenge. orchange’ that inclusion at the time thaVa permit based on that’ determination is fbrmulated. § 122.65 DIsposal of pollutants into wells; Into publicly owned treatment works, or by’ land application. (Applicable to State NPDES programs, see § 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’ NPDES permit shall be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in thepermit shall be calculated by one of. the following methods:’ (1) lf’none of the waste fronT a particular process is discharged int’ol waters of the United States,. anti 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, effl’uent limitations’ shall be adjusted by multiply ,ing the effluent limitation derived’ by’ applying’ effluent limitation guidelines. to’the total waste stream by, the amount of wastewater. flow to be. treated and discharged. into waters of the United States, and dividing the result by the total wastewater flow. Effluent limitations and standards so calculated may be further adjusted under Part 125, Subpart D’to make them more stringentlil 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 U ’nited 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 foradjusting effluent limitations to account for well injection land application, or disposal into POTWs. (c) Paragraph (a)’of ’this. section does not alter a discharger’s obligation to meet any more’ stringent: requirements established’und’er § 122.7,, § 122 8,; § 122.60, § 122M1, andt §. 122.62. § 122.66 New sources and new dlschargers. (a) IDefinitions. (1) “New source” and 1 “new discharger” are’ defined in § 122.3 (2) “Source” means’ any buil’ding, structure, facility, or installation from which there is or may be a discharge of’ pol1utants (3)’ “Existing source” means’ any source which’ is not a source’or a new discharger. (4). “Site:’ is’ defined in § 122 3; (5) “Facilities.or equipment” means buildings, structures, process or production equipment or machinery, which’ form a permanent’part of the new. source and which’ will be. used in its, operation, if these facilities or equipment are of such value, as’ to represent a substantial commitment to construct. It excludes facilities or equipment used’ in connection with feasibility, engineering, and design studies regarding,the source or water pollution treatment for the source. (b) Criteria for new source determination. (1) ,The following construction activities result in, a new’ source: (i) Construction of’a source on a site at which no other source is located or (ii), Construction on a site at’ which another source is located of a.buildir g, structure, facility, or install’ation. from which there is or may be a’ discharge o 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 oil 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 o1. pollutants. but otherwise alters; repl’aces, or adds to existing process or production. equi’pment. (3) Construction’ of a new source’ as defined under § 122.3 has commenced if the owner or operator has: (i) Begun, or caused to begin, as part of a contirnjus , on-site construction program: (A) Any placement, assembly or installation of facilities, or equipment; ox (B), Significant site preparation work including clearing,, excavation, or removal of existing buildings, structures. ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33453 r facilities which is necessary for the lacement, assembly, or installation of tew 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) Requirement for an Environmental Impact Statement. (1) The issuance of an NPDES permit to new source: (i) By EPA may be a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969 (NEPA), 33 U.s.c. 4321 et seq. and is subject to the 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 riot require EPA to conduct an environmental review. (2) An EIS prepared under this paragraph shall include a recommendation either to issue or deny the permit. (i) If the recommendation is to deny the permit, the final EIS shall contain the reasons for the recommendation and list those measures, if any, which the applicant could take to cause the recommendation to be changed; (ii) If the recommendation is to issue the permit, the final EIS shall recommend the actions, if any, which the permittee should take to prevent or minimize any adverse environmental impacts; - (3) The Regional Administrator shall issue, condition, or deny the new source NPDES permit following a complete evaluation of any significant beneficial and adverse environmental impacts and a review of the recommendations contained In the EIS or nding of no significant impact. (4)(t) Na 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-binding writtei agreement which requires compliance with all such l’equirements, unless such construction is determined by the Regional Administrator not to cause significant or irreversible adverse environmental impact. The provisions of any agreement entered into under this paragraph shall be incorporated as conditions of the NPDES permit when it is issued. (ii) No on-site construction of a new source for which an EIS is not required shall commence until 30 days after issuance of a finding of no significant impact, unless the construction is determined by the Regional Administrator not to cause significant 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. If 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 3o1(b)(2) of CWA for the soonest ending of the following periods: (i) Ten years from the date that construction is completed; (ii) Ten years from the date the source begins to discharge process or other nonconstruction-related wastewater, or (iii) The period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954. (2) The protection from more stringent standards of performance afforded by paragraph (d)(1) of this section does not apply to: (i) Additional or more stringent permit cionditions which are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under section 307(a) of CWA; or (ii) Additional permit conditions in accordance with § 125.3 controlling toxic pollutants or hazardous substances which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous Bubstances. (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—NPDES Primary Industry Categories Any permit issued after June 30. 1981 to dischargers in the following categories shall include effluent limitations and a compliance schedule to meet the requirements of section 301(b)(2) (A), (C), (D), (E) and (F) of CWA, whether or not applicable effluent limitations guidelines have been promulgated. See § 122.62 and 122.64. Industry Calegory Adhesives and Sealants Aluminum Forming Auto and Other Laundries Battery Manufacturing Coal Mining Coil Coating Copper Forming Electrical and Electronic Components ------- 33454’ Federal Register I i Voli 45; Nb. 98 I Monday, May 19, t980 ’ / Ruibs, and Regulations; Eiectrop1ating Explosives Manufacturing Foundries Gum and’Wbod’Cheznicalst Inorgank Chemicals Manufacturing Iron and Steel’ Manufacturing Leather Tanning and Finishing Mechani’cal Products Manufacturing Nonferrous Metals Manufacturing Ore Mining Organic Chemicals Manufacturing Paint and hik Formulation Pesticides Petroleum Refining Pharmaceuticali Preparations Photographic Equipment. and Supplies. Plastics Processing Plastfl .and Synthetic Materials Manufacturing 1 Porcelain.Enameling - Printing ,and’Pubhi’shing Pulp and: Paper Mills Rubber ’Processing - Soap and’ Detergent’ Manufacturing’ Steam.Electric:Power Plants’ Textile Mills Timber Products ’ Processing Appendix S to’Part 122’—Ci’iteris for Determhiingss’Concentrated 1 AnimallFeeding’ Operation 0 122:54) An’animat feeding’operation is’s concenlrated’aniinal fiiding operatiàn’for’ purposes’ ofl 122.54 if either o tthe following:. criteri’a’ are met. (a) More than the numbers of animal’s specifledin any. of the following categories. are confined: (141,000 slaughter and feedea cattle, (2)’700’mature dairy’cattle (whether milked or dry eows), (3) 2,500 swi’ne’eaeh weighihg’over 251 kilogramsi(’appro omatel’ 5$ pounds);, (4) 500 horses (5) 10,000 sheep or lambs, - - (6) 55,000 turkeys, (7),100,000 laying, hens or broilers (if the facility has continuous overll’ow wateiihg) (6)’SO,OOO laying’ hens or’broilers’ (it the’ facility baa a li uid manure handling systamj; (9) 5,000’d’ucks, or (10).1’,OOO animal units;: or (b);More than. the following’nunthen’andi types of animals, are confined: (1) 300 slaughter or feeder cattle,, (2) 200 mature dairy, cattle (,whethermillced’ or dry cows), (3)’750.swi’ne asahi weighing oves’25 kilograms (approximately 55’poundafl (4) ,1’S oihorses,, (‘5), 3.000isheep. or lambs , (6) 10.500. turkeys,, (,7’)J30,000laying,hens.or broilers4lf the’ facility’ has’ continuoust ovedlow.’wateninaji (8)) 9,000.lay,ing’hensi on broil’ers. ( i fs the , facility has ailiquid manure handhingaystetn) 5 . (9) 1,500 ducks, or (10) 300 animal units; and either one of the following condtttons’ are’ met: pollutants are dischargedlintoinauigaljlbi waters through a manmadetditclz.flushingt system or other similar manmade’ dinnce or pollutants are discharged directl’y intbwatersi of the United States which originate outside’ of and pass over, across, or through the facility or otherwise come intoi direct contact. with the animals confinad’ in the operation. Provided, however, that noianimal’ feeding operation’ isa concentrated animal feeding operation as defined above if such animal feeding operation discharges.onl r in the - event of a25 year,. 24-hour storm event The’tetnr”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, pIes the number of mature dairy cattle multjplied by, 1 4, plus the number of swine weighing over 25’ kilograms (approximately 55 pounds) multiplied’ by 0.4; plus the number of sheep’multiplied by, 0.1. plus’the number of horses multiplied by 2.0. The term”manmede” means consfructed by man and! usedJor tlie’purpose’ot transporting wastes. AppendirC to Part’ 122—€ritbria far Dbtermining a Concentrated! Aquatle’ Animal Pioduct’ioa Facility ( 122.55 A.hatcllery, fish farm; or’otlierfacilit’yis’a concentrated’aquatic’animal’production facility for’purposes’of’ § 122155) if tic contains, grows, or holds aquatic animalkimeither of the following categories. (a).Cold.water flsh species or other cold water aquatic animals in ponds,.raceway,s, or’ other slmilhr, structures which. discharge at least 30 days per year but dbes not incl’ude: (1) Faciitias which produce less’ than 9,090’ harvest weikht kilograms ’ (‘approxilnately 20,000)pounds)’of aquatic’ animals per year and - (el) Faciliti’es.which feed’less than- 2,272’ kilogramsi(approximately ’s,ooo’pounds) 1 of ‘foothduring.tbe calendar months otmaximum feeding (bj Warm water fish speci’es or other warm water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days par year. but’does not include: (lCloaed’ponds which discharge only during periods-of excesstrunoff,:or (2);Faciliti’es.which.produee less than 45,4$4tharvest weight’ kilograms. (approximately. 100,000’poundst ofi aquatic animals pen year.. “Cold water aquatic aniinals ’ include,,but are not’ limited to, the Saiinornifàe family of fish; etg , trout’ and salmon: “Warm. water aquatic’sniinal’s”include; but are not hinited to, the’Amsibride; Centrcmhidoe and: Cyprthidbe-familiesio! fl’sh; e.g:..respecti’vely,,catflsli), sunfish. and. minnows. Appendix’ D t to’Part 122—NPDES’Pfrrmzp Application Testing Rëq,oii’ments 5 ! 122 :53)? Table (—Testing Requsements for O.ipsnic Toxic PoIIfrtants bylndustnaF’CategoqforExisung gets ihdusissl’csiagpry, Vula— OCYMS’ frection’ Acid’ Bäse/ Peru- Ides neuizsl’ cide Table l.—Testing,Reqrsrements for Orgsnic: Toxic Pollutsntsiby Industnslt?ategoryforEzisting, £ chstye t s—Cont inued lndusirisl’cstegoiy Gc/Msifrsc,ion.’ Vole- Acid’ tile Ease/ Pesli• nautrall side Ele c troplating ...... (‘) C) C)..... Explosives Msnufactunag r”’ — C) (‘)i Poundnas .,..,, () (‘) i i Gum and Wood Chemicals (?)t C (1) in) inorganic chenscsls Msnufactunng ......, iron end SteellManufactuitng (1, (‘)‘ (‘)i (‘)) (‘)‘ (‘P - Lesthsr Tsnning and Fiashing i’) (‘) i ii (fit Mechanical Products Manufactunng ,...,. i i’ C) t i Nbnlerrous’Metslai Msnulactunng .,. (P) 5 (fl (ii in) Ore Mining . ii’ (‘). (‘is i’) OrganicChemicals Manufactunng’ ...... ii) ; ii) mu Paint stidink Foirnulation C L C). C) CL Pesticides ... (‘is C) I’) fl Petroleum Refining.,.... (fl i t) ( (‘P 1’)) Pharmaceutical PreparatIons: (t) ill. it)’ Photographic Eqiupmanl-and Supplies ........ (?)i (‘ P ( (V Plastic and Synthetic. Materials Manufacturing .... Plans: Processing’ - Porcelain Enameling’ .._ (‘I C). i ’ ) -. (‘fl C) ins ( I’) ; (( p Periling and Publishing’ ..—. (0, it) it), ii’) , Pulp end’Peper Mills . (‘)‘ ((‘)‘ I’) , in; Rubber Prooessng ,,..,,... rp in: i i ) — Soap and Detergent Manufacturing . ... StesmiElacfnc Power Plants’ if) (‘is. (‘ p (fl I’) (‘P Textile Mills , . (‘) ii i’) i n) Timbeii ProductntProcesang... (fit in. l os I’) ‘The ionic-polfutsnts In each fraction, are laled In Tsble II Testing required’ Table II Oisanic 7’oxlb Pollutants. m i Eacihof Four Fractions In Analysis by, Gas Chromatography/Moss Spectroscopy (GC/j MS). Vol’otiles’,, acrolein acrylonitrile benzene bia (chl’oromethyi) ether bromoform carbon tet’richl’orid’e chlorobenzene clilorodfiSromomethane ’ ch loroethane’ 2Lchloroethyiv .in ,y,Fethen chloroform dzch lorobromometha.ne dichiorodifluoromethane . 1,1-dichloroethane. 1,2-di’chl’oroetliane tT-di’chlbroethylena l’.2 sdiclllbropropane 1,2’-diehlbropropyibne etiiylbenzene’ methyl bromide meth.yll chloride’ matluj lene chl’ori’de: t l,2-a2-tetrachloroethane , tetracli loroethylene totuene 1,2-trans di’chl’oroethyIena t l,1-trlchioroethane 1’,1,2-ti’ichloroethane’ trichioroethylene frichlorofl’uorometljane’ vinyl ch londe’ l’v 2V 3v 4V 5v 6V 7V 8V 9v. by liv 1211’ iav 14V ISV 16V’ 17V 16V WV 20W 2W 22W 23W 24W 25W 26W 27W’ 4’) 2W 29W 30V1 fit 31W AdhesIves and Sèslanls Aluminum Fomiaig. Auto arid Other Laundnes eeeery Manufacturing cbsliMining Coil Coabngt - . - Copper Foiming . Electiic snd’ElQclronlc Components (‘) (n. ii (flu (1) ii. i’) I’) ifl I’) I ’) , I’) i i’ I ”) I’)) ii’) I ’)’ (i), (), (,‘), ifs C) it) ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33455 lcid Compounds 15P endrin aldehyde Carbaryl A . 2-chiorophenol 16P heptachior Carbofuran A 2,4-dichiorophenol 17P .heptachlor epoxide Carbon disulfide A 2,4 -dimethyiphenol 18P PCB1242 .*A 4,6-dinitro-o-cresol 19P PCB4254 Chiorpyrifos 5A 2,4-diniLrophenol 20P PCB-1221 Coumaphos OA 2-nitrophenol 2W PCB-1232 Cresol 7A 4-nitrophenol 22P PCB-1248 Crotonaldehyde 8A p-chloro-m-cresol 23P PCB 1260 Cyclohexane 9A pentachlorophenol 24P PCB-1016 2,4-D (2,4-Dichlorophenoxy acetic acid) IOA phenol 25P toxaphene Diazinon hA 2,4,6 -trichlorophenol Table III Other Toxic Pollutants: Metals, Dicamba Base/Ne utrvl Cyanide, and To La! Phenols. Dichiobenil lB acenaphthene Antimony, Total Dichione 2B acenaphthylene Arsenic, Total 2,2-Dichloropropionic acid 38 anthracene Beryllium, Total Dichlorvos 4B benzidine Cadmium. Total Diethyl amine 58 benzo(a)anthracene Chromium, Total Dimethyl amine 88 benzo(a)pyrene Copper, Total Dintrobenzene 7B 3,4-benzofluoranthene Lead, Total Diquat 88 benzo(ghi)perylene Mercury, Total Disulfoton 98 benzo(k)fluoranthene Nickel, Total Diuron lOB ble(2.chloroethoxy)methane Selenium, Total Epichlorohydrin I1B bis(2-chloroethyl)ether Silver, Total 123 bls(2.chloroisopropyl)ether Thallium, Total Ethanolamine 138 bls(2 .ethylhexyl)phlhalate Zinc, Total Ethion 14B 4-bromophenyl phenyl ether Cyanide, Total Ethylene diamine 153 butylbenzyl phthalate Phenols, Total Ethylene dibromide 168 2 -chloronaphthalene Table IV Conventional and Nonconventional Formaldehyde Furfural 17B 4-chiorophenyl phenyl ether Pollutants Required to be Tested by Existing Guthion 183 chrysene 193 dibenzo(e,h)anthracene Discha, ers ,f Expected to be Present. Isoprene 208 1,2-dichlorobenzone Bromide 21B l,3-dichlorobenzene Chlorine, Total Residual lsppone 223 1,4-dichlorobenzsne Color Kelthane 23B 3.3’-dichlorobenzidine Fecal Coliform Kepone 43 diethyl phthalate Fluoride Malathion 53 dimethyl phthalate Nitrate-Nitrite Mercaptodime thur SB di-n-butyl phthalate Nitrogen. Total Organic Methoxychlor _7B 2,4-dinitrotoluene Oil and Grease Methyl mercaptan 28B 2,6-dinitrotoluene Phosphorus, Total Methyl methacrylate 293 di-n-octyl phthalate Radioactivity Methyl parathion 30B 1,2-diphenylhydrazine (as azobeazene) Sulfate Mevinphos 31B fluoranthene Sulfide Mexacarbate 328 fluorene Sulfite Monoethyl amine 333 hexachlorobenzene Surfactants Monomethyl amine 348 hexachlorobutediene Aluminum, Total 35B bexachiorocyclopentadlene Barium, Total Naled 868 hexachioroethane Boron, Total Napthenic acid 37B lndeno(1,2.3-cd)pyrene Cobalt, Total Nitrotoluene 388 Isophorone Iron. Total Parathion 39B naphthalene Magnesium. Total Phenolsulfanate 40B nitrobenzene Molybdenum, Total Phosgene 41B N-nitrosodimethylamine Manganese, Total PFopaT glte 423 N-nitrosodl-n-propylamine Tin, Total Propylene oxide 438 N-ni trosodiphenylamine Titanium, Total Pyrethrins 44B phenanthrene Table V Toxic Pollutants and Hazardous Quinoline 45B pyrene Substances Required to be Ident,7ied by Resorcinol 408 1,2,4-trichlorobenzene Existing D,schaz ers if Expected to be Strontium Pesticides Present. Strychnine IP aldrin Toxic Pollutants Styrene 2P a.BHC Asbestos 2,4,5-T (2,4,5-Trlchlorophenoxy acetic acid) 3I $-BHC TOE (Tetrachiorodiphenylethane) 4P y-BHC Hazardous Substances 2,4,5-TP 12-(2,4,5-Trichlorophenoxy) 5P 8-BHC Acetaldehyde propanoic acid) OP chiordane Allyl alcohol Trichlorofon 7P 4,4’-DDT Allyl chloride Triethylamine 8P 4,4’-DDE Amy! acetate Trimethylamine 9P 4,4’-DDD Aniline Uranium lOP dieldrln Benzonitrile Vanadium lip a-endosulfan Benzyl chloride Vinyl Acetate ‘‘P $-endosulfan Butyl acetate Xylene endosulfan sulfate Butylamine Xy!eno l endrin Captan Zirconium ------- 33456 Federal Register / Vol. 45. No. 98 I Monday, May 19, 1980 I Rules and Regulations PART 123—STATE PROGRAM REQUIREMENTS Subpart A—General Program Requirements Sec. 123.1 Purpose and scope. 123.2 DefinItions. - 123.3 Elements of a program submission. 123.4 Program description. 123.5 Attorney General’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 for revision of State programs. 123.14 Criteria for withdrawal of State programs. 123.15 Procedures for withdrawal of State programs. Subpart B—Additional Requirements 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 Requirements for generators of hazardous wastes. 123.35 Requirements for transporters of hazardous wastes. 123.36 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. 123.54 Approval process. 123.55 Procedures for withdrawal of State UIC programs. Subpart D—Additionai Requirements for State Programs Under the National Poiiutant Discharge Eiimination System 123.71 Purpose and scope. 123.72 Control of disposal of pollutants 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 process. Subpart E—Additional Requirements for State Programs Under Section 404 of the Clean Water Act Purpose and scope. Activities not requiring permits. Prohibitions. Permit application. General permits. Emergency permits. 123.97 Additional conditions applicable to all 404 permits. 123.98 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. 123.126 Memorandum of agreement. 123.127 Authorization plan. 123.128 Program requirements for interim authorization for Phase 1. 123.129 Additional program requirements for interim authorization for Phase U. 123.130 Interstate movement of hazardous waste. 123.131 Progress r,eports. 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 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.; Clean Water Act, 33 U.S.C. 1251 eS seq. Subpart A—Generai Program Requirements § 123.1 Purpose and 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 under: (I) 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 Pollutan t Discharge Elimination System—NPDES) of CWA; and (4) Section 404 (dredged or fill material) of CWA. (b) Subpart A contains requirements applicable to 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 hazardous waste programs operating under interim authorization.) Subpart A includes the elements which must be part of submissions to EPA for program approval, the substantive provisions 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 procedures 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 statement ( 123.5), a Memorandum of Agreement with the Regional Administrator ( 123.6) and with the Secretary In the case of section 404 programs ( 123.99). (d) The substantive provisions which must be included in State programs for them to be approved include requirements for permitting, compliance evaluation, enforcement, public participation, and sharing of information. The requirements are found both in Subpart A ( § 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 § 123.7. (e) Upon submission of a complete program, EPA will coffduct a public hearing, if interest is shown, and determine whether to approve or disapprove the program taking into consideration the requirements of this Part, the appropriate Act and any comments received. (f) The Administrator shall approve State programs which conform to the applicable requirements of this Part. (g) Upon ap *oval of a State program, the Administrator (or the Secretary in the case of section 404 programs) shall suspend the issuance of Federal permits for those activities subject to the approved State program. 12391 123.92 123.93 123.94 123.95 123.96 ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33457 (h) Any State program approved by ie Administrator shall at all times be nducted in accordance with the tquirements of this Part. (i) States 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. (j) Partial State programs are 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 State bee not seek this authority. (Note.—States are advised to contact the Inited States Department of the Interior, lurean of Indian Affairs, concerning .uthority 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 Part; (2) Operating a program with a greater scope of coverage than that required under this ParL 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. [ Note.—For example, when a State requires permits for discharges into publicly owned treatment works, these permits are not NPDES permits. Also, State assumption of the section 404 program is limited to certain waters, as provided in § 123.91(c). The Federal program operated by the Corps of Engineers continues to apply to the remaining waters in the State even after program approval. However, this does not restrict States from regulating discharges of dredged or fill materials into those waters over which the Secretary retains section 404 jurisdiction.) § 123.2 DefinitIons. The definitions in Part 122 apply to all ibparts of this Part. including Subpart § 123.3 Elements of a program submission. (a) Any State that seeks to administer a program under this Part shall submit to the Administrator at least three copies of a program submission. The submission shall contain the following: (1) A letter from the Governor of the State requesting program approval; (2) A complete program description, as required by § 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 § 123.6, and, in the case of State section 404 programs, a Memorandum of Agreement with the Secretary as required by § 123.99; (5) Copies of all applicable State statutes and regulations, including those governing State administrative procedures; (6) The showing required by § 123.39(c) (RCRA programs only) and § 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 State whether its submission is complete. If EPA finds that a State’s submission is complete, the statutory review period (i.e., the period of time allotted for formal EPA review of a proposed State program under the 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 Bhall Include: (a) A description in narrative form of the scope, structure, coverage and processes of the State program. (b) A description (including organization charts) of the organization and structure of the State agency or agencies which will have responsibility for administering the program, including the information listed below. If more than one agency is responsible for administration of a program, each agency must have statewide jurisdiction over a class of activities. The responsibilities of each agency must be delineated, their procedures for coordination set forth, and an agency may be designated as a “lead agency” to facilitate communications between EPA and the State agencies having program r aponsibiity. In the case of State RCRA programs, such a designation is mandatory (see paragraph (0(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 or limitations upon this funding. (c) A description of applicable State procedures, including permitting procedures and any State administrative or judicial review procedures. (d) Copies of the permit form(s), application form(s), reporting form(s), and manifest format the State intends to employ in its program. Forms used by States need not be identical to the forms used by EPA but should require the same basic information, except that State NPDES programs are required to use standard Discharge Monitoring Reports (DMR). The State need not provide copies of uniform national forms it intends to use but should note its intention to use such forms. State section 404 application forms must include the information required by § 123.94 and State section 404 permit forms must include the information and conditions required by § 123.97. INote. —States are encouraged to use uniform national forms established by the ------- 33458 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations Administrator. If uniform national forms are used, they may be modified to include the State Agency’s name, address, logo, and other similar information, as appropriate. In place of EPA’s.] (e) A complete description of the State’s compliance tracking and enforcement program. (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 progi ams and the Federal program regarding interstate and international shipments. (2) An estimate of the number of the following: (i) Generators; (ii) Transporters: and (iii) On- and off-site storage, treatment and disposal facilities, and a brief description of the types of facilities and an indication of the permit status of these facilities. (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 ageticy 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. (g) State UIC programs only. In the case of a submission for approval of a State UIC program the State’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 § 146.09) for issuing permits, Including the number of permits in each class of injection well which will be issued each year during the first five years of program operation; (3) A description of how the Director will implement the mechanical integrity testing requirements of 40 CFR § 146.08, including the frequency of testing that will be required and the number of tests that will be reviewed by the Director each year; (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 require’d by this paragraph shall require applications to be filed as soon as possible, but not later than four years after program approval for all injection wells requiring a permit; (5) A description of any rule under which the Director proposes to authorize Injections, including the text of the rule; (6) For any existing enhanced recoyery 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 maintain a 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 establish an inventory of Class V wells and to assess the need for a program to regulate Class V wells. (h) State 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. lNote.—States should obtain from the Secretary an ideptificatlon of those waters of the U.S. within the State over which the Corps of Engineers retains authority under section 404(g) of CWA I (2) A categorization, by type and quantity, of discharges within the State, and an estimate of the number of discharges within each category for which the discharger must file for a permit. (3) An estimate of the number and percent of activities within each category for which the State has already issued a State permit regulating the discharge. (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, forest roadt or temporary roads for moving mining equipment. (5) A description of how the State section 404 agency(ies) will interact wit other State and local agencies. (6) A description of how the State will coordinate its enforcement strategy with that of the Corps of Engineers and EPA. (7) Where more than one agency within a State has responsibility for administering the thate 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; (ii) 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 permits are required for a single project, a description of procedures for: (I) Ensuring that all the necessary State 404 permits are issued before any 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 attorney for those State or interstate agencies which have independent legal counsel) that the laws of the State, or an interstate compact, provide adequate authority to carry out the program described under § 123.4 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 “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 ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33459 Ii matters pertaining to the State rogram. (Note.—EPA will supply States with an 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 NPDES programs only. In the case of State NPDES 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 404 programs only. (1) In the case of State section 404 programs the State Attorney General’s statement shall contain an analysis of State law regarding the prohibition on taking private 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 tate program, the Attorney General’s tatement shall include certification that , ach agency has full authority to administer the program within its category of jwisdiction and that the State as a whole has full authority to administer a complete State section 404 program. § 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 State Director and the Regional Administrator and shall become effective when approved by the Administrator. In addition to meeting the requirements of paragraph (b) of this section, the Memorandum of Agreement may include other terms, conditions, or agreements consistent with this P rt and relevant to the administration and enforcement of the State’s regulatory program. The Administrator shall not approve any Memorandum of Agreement which contains provisions which restrict EPA’s statutory oversight responsibility. (b) The Memorandum of Agreement shall include the following: (1) Provisions for the prompt transfer -om EPA to the State of pending permit plications and any other Information levant to program operation not already in the possession of the State Director (e.g., support files for permit issuance, compliance reports, etc.). When existing permits are transferred from EPA to the State for administration, the Memorandum of Agreement shall contain provisions specifying a procedure for transferring the administration of these permits. If a State lacks the authority to directly administer permits issued by the Federal government, a procedure may be established to transfer responsibility for these permits. INote.—For example, EPA and the State and the permittee could agree that the State would issue a permit(s) Identical to the outstanding Federal permit which would simultaneously be terminated.] (2) Provisions specifying classes and categories of permit applications, draft permits, and proposed permits that the State will send to the Regional Administrator for review, comment and, where applicable, objection. [ Note—The nature and basis of EPA review of State permits and permit applications differs among the programs governed by this Part. See § § 123.38 (RCRA), 123.75 (NPDES) and 123.101 (404].] (3) Provisions specifying the frequency and content of reports, documents and other information which the State is required to submit to EPA. The State shall allow EPA to routinely review State records, reports, and files relevant to the administration and enforcement of the approved program. State reports may be combined with grant reports where appropriate. 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 State for EPA inspection. The Regional Administrator will normally notify the State at least 7 days before any such Inspection; and (ii) Procedures to assure coordination of enforcement activities. (5) When appropriate, provisions for joint processing of permits by the State and EPA, for facilities or activities which require permits from both EPA and the State under different programs. See § 124.4. [ Note.—To promote efficiency and to avoid duplication and inconsistency, States are encouraged to enter into joint processing agreements with EPA for permit Issuance. Likewise, Stales are encouraged (but not required) to consider steps to coordinate or consolidate their own permit programs and activities.] (6) Provisions for modification of the Memorandum of Agreement in accordance with this Part. (c) The Memorandum of Agreement, the annual program grant and the State! EPA Agreement should be consistent. If the State/EPA Agreement indicates that a change is needed in the Memorandum of Agreement, the Memorandum of Agreement may be amended through the procedures set forth in this part. The State/EPA Agreement may not override the Memorandum of Agreement. LNote.—Detailed program priorities and specific arrangements for EPA support of the State program will change and are therefore more appropriately negotiated in the context of annual agreements rather than in the MOA. However, it may still be appropriate to specify in the MOA the basis for such detailed agreements, e.g., a provision in the MOA specifying that EPA will select facilities in the State for inspection annually as part of the State/EPA agreement.J (d) State RCRA pro1 rams only. In the case of State RCRA programs the Memorandum of Agreement shall also provide that: (1) 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 State Director shall promptly forward to EPA copies of draft permits and permit applications for all major HWM facilities for review and comment. The Regional Administrator and the State Director may agree to limitations regarding review of and comment on draft permits and/or permit applications for non-major l-IWM 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 ------- 33460 Federal Register I Vol. 45, No. 98 / Monday, May 19,1980 / Rules and Regulations section 3010(a) of RCRA. The Regional Administrator and the State Director shall agree on procedures for the assignment of EPA identification numbers for new generators. transporters, treatment, storage, and disposal facilities. (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 Administrator and the State-Director shall establish a time within which this review must take place. (e) State NPDESprograins only. In the case of State NPDES programs the Memorandum of Agreement shall also specify the extent to which EPA will walve!its right to review, object to, or comment upon State-issued permits under sectibns 402(d)(3), (e) or (f)’ of CWA. While the Regional Administrator and the State may agree to waive EPA review of certain “classes or categories” of permits, no waiver of review may be granted for the following discharges: (1) Discharges into the territorial sea;, (2) Discharges which may affect the waters of a State other than the one in which the discharge originates; (3) Discharges proposed to be regulated by general permits (see § 122.59); (4) Discharges from publicly owned treatment works with a daily average discharge exceeding I million gall’ons 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 withiit any of the 21 industrial categories listed in Appendix A to Part 122; (7) Discharges from other sources.with a daily average discharge exceeding 0.5 (one-half) million gallons per day, except that EPA review of permits for discharges of non-process wastewater may be waived regardless of flow. (f) State section 404 programs only.. (1) In the case of State section 404 programs, the Memorandum of Agreementwith 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 Cbrps of Engineers, the US. Fish and Wildlife Service, and the Natibnal Marine Fisheries Service, may agree to waive Federal review of certain “classes or categories” of permits, no waiver may be granted for the following activities: (A) Discharges which may affect the waters of a State other than the one in which the discharge originates; (B) Major discharges; (C) Discharges into critical areas established under State or Federal law including fish and wildlife sanctuaries or refuges, National and historical monuments, wilderness areas and preserves, National and State parks, components of the National Wild and Scenic Rivers system, the.designated critical habitat of threatened or endangered species, and sites identified or proposed under the National Historic Preservation Act; (D) Discharges proposed to be - regulated by general permits; or (E) Discharges known orsuspected to’ contain toxic pollutants in toxic amounts under section 307(a)(’l) of CWA’ or hazardous substances in reportable quantities under section 311 of CWA. (ii) A definition of major discharges. (2) 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(i) 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 thecase of State section 404 programs, the Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Servcie (unless receipt is waived in writing), with copies of final permits. § 123.7 Requirements fer 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) § 122.4—(Application for a permit). except in the case of § 122.4(d) for State section 404 programs; (2) § 122.6—(Signatories); (3) § 122.7—(Applicable permit conditions); (4) § 122.8—(Establishing permit conditions); (5) § 122.9—.(Duration); (0) §- 122.10(a)—(Schedules of compliance); (7) § 122.11—(Monitoring requirements); 1 (8) § 122.13 (a).and (b).— .(Effect of permit); (9) § 122.14—(Permit transfer); (10), §‘122.15—(Permit modification); (11)) § 122.18—(Permit termination); (12) § 122.18—(Noncompliance reporting); (13) § 122.19 (b)—(d)—(Confidential information); (14) § 124.3(a)—(Application for a permit); (15) § 124.5 (a), (c), (d). and (I)— (Modification- of permits), except as provided ,In § 123.100(b)(2) for State section 404 programs;, (16) § 124.0 (a), (c), (d), and (e)—(Draft permit), except as provided in - 123.100(b)(2) for State section 404 programs; (17) § 124.8—(Fact sheets), except as provided in § 123.100(b)(2), for State section 404 programs; (18) § 124.10 (a)(1)(ii), (a)(1)(iii), (a ’)(l)(v), (b). (c), (d), and (e)—(Public notice); (19) § 124.11—(Public comments and requests for hearings); (20) § 124.12(a)—(Public hearings); and (21)’ § 124.17- (a),and (c)—(Response to. comments). [ Note.—States need not impl ment provisions identical to the above listed provisions or the provisions listed in- § §123.7 (b)—(d). Implemented provisions must, however, establish requirements at least as stringent as the.corresponding,ljsted’ provisions. While States may-impose more stringent requirements, they may not make one requirement more lenient as a tradeoff for-making another requirement more- stringent;,for example, by requiring that public hearings 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, § 122.5(d) (continuation of permits) and § 124.4 (consolidation of permit processing). (b) State RCRA programs only. Any State hazardous waste program shall have legal authority to implement each of the following provisions and must be administered in conformance with each, except that Stptes are not precluded from omitting or modifying any provisions to impose more stringent requirements: (1) § 122.21(d)(2)—(Specific. inclusions); ------- Federal Register / Vol. 45, No. 08 I Monday, May 19, 1980 I Rules and Regulations 33461 (2) § 122.22—(Application for a rmit); (3) § 122.24-.—(Contents of Part A); (4) § 122.25—(Contents of Part B); [ Note.—States 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) § 122.28—(Permit by rule); (6) § 122.27—(Emergency permits); (7) § 122.28—(Additional permit conditions); (8) § 122.29—(Establishing permit conditions); and (9) § 122.30—(Interim permits for UIC wells). (c) State UIC 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—(Classification of injection wells); (2) § 122.33—(Prohibition of unauthorized injection); (3) § 122.34—(Prohibition of movement of fluids into underground sources of drinking water); (4) § 122.35—(Identification of nderground sources of drinking water id exempted aquifers); (5) § 122.36—(Elimination of Class IV wells); (6) § 122.37—(Authorization by rule); (7) § 122.3B—(Authorization by permit); (8) § 122.39—(Area permits); (9) § 122.41—(Additional permit conditions); (10) § 122.42—(Establishing permit conditions); (11) § 122.44.—(Corrective action); and (12) § 122.45—(Requirements for wells managing hazardous wastes). (d) State NPDES programs only. State NPDES 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) § 122,52—(Prohibitions); (2) § 122.53 (a), (d)—(g) and (iHk)— (Application for a permit); (3) § 122.54—(Concentrated animal feeding operations); (4) § 122.55—(Concentrated aquatic animal production facilities); (5) § 122.56—(Aquaculture projects); (6) § 122.57—(Separate storm sewers); (7) § 122.58—(Silviculture); (8) § 122.59—(General permits), 9vided that States which do not seek to implement the general permit program under § 122.59 need not do so; (9) § 122.60—(Conditions applicable to all permits); (10) § 122.61—(Conditions applicable to specified categories of permits); (11) § 122.82—(Establishing permit conditions); (12) § 122.63—(Calculating NPDES conditions); (13) § 122.64—(Duration of permit); (14) § 122.65—(Disposal into wells); (15) § 124.56—(Fact sheets); (18) § 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 § 122.80 or by requiring more prompt notice of an upset.] (e) State NPDES and 404 programs only. (1) State NPDES and 404 permit programs shall have an approved continuing planning process under 40 CFR § 35.1500 and shall assure that the approved planning process is at all times consistent with CWA. (2) State 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 individual, including the Director, who has or shares authority to approve all or portions of permits either in the first instance, as modified or reissued, or on appeal. (B) “Significant portion of income” means 10 percent or more of gross personal income for a calendar year, except that it means 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving that portion under retirement, pension, or similar arrangement. (C) ‘Permit holders or applicants for a permit” does not include any department or agency of a State government, such as a Department of Parks or a Department of Fish and - Wildlife. (D) “Income” includes retirement benefits, consultant fees, and stock — dividends. (ii) For the purposes of this subparagraph, income is not received “directly or indirectly from permit holders or applicants for a permit” when it is derived from mutual 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 evaluation programs. (a) State programs shall have procedures for receipt, evaluation, retention and investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation for possible enforcement of failure to submit these notices and reports). (b) State programs shall have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements. The State shall maintain: (1) A program which is capable of making comprehensive surveys of all facilities and activities subject to the State Director’s authority to identify persons subject to regulation who have failed to comply with permit application or other program requirements. Any compilation, index, or inventory of such facilities and activities shall be made available to the Regional Administrator upon request; (2) A program for periodic inspections of the facilities and activities subject to regulation. These inspections shall be conducted in a manner designed to: (i) Determine compliance or noncompliance with issued permit conditions and other program requirements; (ii) Verify the accuracy of information submitted by permittees and other regulated persons in reporting forms and -other forms supplying monitoring data; and (iii) Verify the adequacy of sampling, monitoring, and other methods used by permittees and other regulated persons to develop that information; (3) A program for investigating information obtained regarding violations of applicqble program and permit requirements; and (4) Procedures for receiving and ensuring proper consideration of information submitted by the public about violations. Public effort in reporting violations shall be encouraged, and the State Director shall make available information on reporting procedures. (c) The State Director and State officers engaged in compliance evaluation shall have authority to enter any site or premises subject to ------- 33462 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I’ Rules and Regulations regulation or in which records, relevant’ to program operation are kept in order to copy any records, inspect, monitor’or’ otherwise investigate compliance with the State program including compliance’ with permit conditions and other program requirements. States whose law requires a search warrant before entry conform with this requirement. (d) Investigatory inspections shall be conducted, samples shall be taken and other information shall bV 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 onLy. State. NPDES compliance evaluation programs shall have procedures and abilit ’for: (1) Maintaining a comprehensive inventory of all sources covered by NPDES permits and a schedule of reports required to be. submitted’ by permittees to the, State agency; (2)’ Initial screening (i.e., pre- enforcement evaluation) of all permit or. grant-related compliance infbrmation to identify violations and to establish priorities for further substantive technical evaluation; (3) When warranted, conducting a substantive technical evaluation following the initial screening of all permit or grant-related compliance information to determine thern appropriate agency response; [ 4) aintaining 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. § 123.9 Requirements for enforcement authority. (a) Any State agency administering a program shall have available the following remedies for violations of State program requirements: (1.) To restrain immediately and effectively any person by order or by, suit in State court from engaging.in an unauthorized activity, which is endangering or causing damage to public health or the environment; lNote.—This paragraph requires that States have a mechanism (e.g, an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public. health or the environment.) (2) To.sue in courts. of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit - conditions, without the necessity of a prior revocation of the permit; (3) To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows: (i) State RCRA programs only. (A) Civil penalties shall be recoverable for 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 day for each violation, and imprisonment for at least six months shall be available. (ii) State UIC programs only. (A) For all wells except Class II wells, civil penalties shall be recoverable for any program violation in at least the amount of $Z500 per day. For Class II wells, civil’ penalties shall be recoverable for any program violation in at least the amount? of $1,000 per day. (B) Criminalfines shall be recoverable in at least the amount of $5,000 per day against any person who willfully violates any program requirement, or, for Class: II wells, pipeline (production) severance shall be imposable against any person who willfully violates any program requirement. (iii) State 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 requirement; any duty to allow or carry out inspection, entry or monitoring activities; or any regulation or orders issued by the State Director. Such penalties shall be assessable in at least the amount of $5,000 per day for each violation. (B) Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES.or section 404 permit’ condition; or any NPDES or.section 404 filing requirement. Such fines shall be assessable in at least the amount of 810,000? per day for each violation. LNote. ’—Stales which provide criminal remedies based on “criniinaFnegligence,” “gross negligence” or strict liability’satisfy the requirement of paragraph (a)(3)(iii)(B] of this section.J (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 requiredby an NPDES or section 404 permit, or who knowingi renders inaccurate any moitoring device 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, Slates the State Directur will be represented in State courts by the State Attorney General or other appropriate legal officer. Although the State Director need not appear in court actions he or she should have power to request that any of the above actions be brought.]. (b)(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 vi’olation is continuous, shall be assessable up to the maximum amount for each day of violation. (2) The burden of proof and degree of knowledge or intent required under State la iv for establishing violations under paragraph (a)(3) of this,section, shall be no greater than the burden of proof or degree of”knowledge or inteni EPA.must provide when it brings an action under the appropriate Act. [ Note.—For example, this requirement is nottmet if State law includes mentat.state as an element of proof’for civil violations.] (c) Any civil penalty assessed, sought or agreed upon by, the State Director under paragraph (a)(3) of this section shall be appropriate to the violation. A civil penalty, agreed upon by the State Director in settlement of administrative or judicial litigation may be adjusted by a percentage which.represents the’ likelihood of success in establishing the underlying violation(s) in such litigation. lf ’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 inibusiness, the payment of the penalty may be deferred or the penalty may be forgiven.in whole or part, as circumstances warrant. In the case of a penalty for a failure to’meet a statutory or final permit compliance deadline, “appropriate to the violation,” as used in this paragraph, means a penalty 1 which is eq alito: (1) An amountr appropriate to redress the harm or risk to public health or the’ environment; plus (2).An amount appropriate to remove the economic.benefit gained or to be gained from delayed compliance; plus (3) An amount appropriate as a penalty for the violator’s degree of recalcitrance, defiance, or indifference to requirements of the law; plus ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33463 (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) An amount appropriate to reflect any part of the noncompliance caused by factors completely beyond the violator’s control (e.g., floods, fires). lNote.—In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended; Procedures for assessment by the State of the costs of investigations, inspections, or monitoring surveys which lead to the establishment of violations; Procedures which enable the State to assess or to sue any persons responsible for unauthorized activities for any expenses incurred by the State in removing, correcting. or terminating any adverse effects upon human health and the environment resulting from the unauthorized activity, whether or not accidental; Procedures which enable the State to sue for compensation for any loss or destruction of wildlife, fish or aquatic life, or their habitat, and for any other damages caused by unauthorized activity, either to the State or to any residents of the State who are directly aggrieved by the unauthorized activity, or both; and Procedures for the administrative assessment of penalties by the Director.l (d) Any State administering a program shall provide for public participation in the State enforcement process by providing eithen (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: (i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified In § 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 shall be available to EPA upon request without restriction. If the Information has been submitted to the State under a claim of confidentiality, the State must submit that claim to EPA when providing information under this section. Any information obtained from a State and subject to a claim of confidentiality will be treated in accordance with the regulations in 40 CFR Part 2. If EPA obtains from a State information that is not claimed to be confidential, EPA may make that information available to the public without further notice. (b) EPA shall furnish to States with approved programs the information in its files not submitted under a claim of confidentiality which the State needs to implement its approved program. EPA shall furnish to States with approved programs information submitted to EPA under a claim of confidentiality, which the State needs to implement its approved program, subject to the conditions in 40 CFR Part 2. § 123.11 CoordInation with other programs. (a) Issuance of State permits under this Part may be coordinated with issuance & 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 4008(b) of RCRA (40 CFR Part 255) as responsible for the development and implementation of State solid waste management plans under section 4002(b) of RCRA (40 CFR Part 256). § 123.12 Approval process. The process for EPA approval of State programs is set out in § § 123.39 (RCRA), 123.54 (UIC), 123.77 (NPDES), and 123.104 (404). § 123.13 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 modifications to its basic statutory or regulatory authority, its forms, procedures, or priorities. (b) Revision of a State program shall be accomplished as follows: (1) The State shall submit a modified program description. Attorney General’s statement. Memorandum of Agreement, or such other documents as EPA determines to be necessary under the circumstances. (2) Whenever EPA determines that the proposed program revision is substantial, EPA shall issue public notice and provide an opportunity to comment for a period of at least 30 days. The public notice shall be mailed to interested persons and shall be published in the Federal Register and in enough of the 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 Administrator has reason to believe that circumstances have changed with respect to a State program, he may request, and the State shall provide, a supplemental Attorney General’s statement, program description, or such other documents or information as are necessary. (e) State RCRA 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, 262, 263, 264,265 or 268 8hall 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) Slate (JIG programs only. The State shall submit the information required under paragraph (b)(1) of this section within 270 days of any amendment to this Part or 40 CFR Parts 122, 124, or 140 which revises or adds any requirement ------- 33464 Federal Register I Vol. 45, No. 98 I Monday,_May 19, 1980 I Rules and Regulations respecting an approved State UIC program. (g) State NPDES programs only. All new programs must comply with these regulations immediately upon approval. Any approved State section 402 permit program which requires revision to conform to this Part shall be so revised within one year of the date of promulgation of these regulations, unless a State must amend or enact a statute in order to make the required - revision 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 § 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 expire after November 30, 1980 or [ 2) whose permits expire before November 30, 1980 and who have not reapplied for a permit prior to April 30, 1980, submit, as part of their application, the information required under § § 122.4(d) and 122.53 (d) or (e), as appropriate. (h) State section 404 programs only. The Regional Administrator shall consult with the Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service regarding any substantial program revision, and shall consider their recommendations prior to approval of any such revision. § 123.14 CriterIa for withdrawal of State programs. (a) The Administrator may withdraw program approval when a State program no longer complies with the - requirements of this Part, and the State fails to take corrective action. Such circumstances include the following: (1) When the State’s legal authority no longer meets the requirements of this Part, including: (I) Failure of the State to promulgate or enact new authorities when necessary; or (ii) Action by a State legislature or court strlkinj down or limiting State authorities. (2) When the operation of the State program fails to comply with the requirements of this Part, Including: (I) Failure to exercise control over activities required to be regulated under this Part, including failure to issue permits; (ii) Repeated issuance of permits which do not conform to the requirements of this Part; or (iii) Failure’to comply with the public participation requirements of this Part. (3) When the State’s enforcement program fails to comply with the requirements of this Part, including: (i) Failure to act on violations Df permits or other program requirements; (ii) Failure to seek adequate enforcement penalties or to collect administrative fines when imposed; or (iii) Failure to inspect and monitor activities subject to regulation. (4) When the State program fails to comply with the terms of the Memorandum of Agreement required under § 123.6. § 123.15 Procedures for withdrawal of State programs. (a) A State with a program approved under this Part may voluntarily transfer program resppnsibilities 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 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 (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 60 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, 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 U1C program. The process for withdrawing approval of State UIC programs is set out In § 123.55. (1) Order. The Administrator may order the commencement of withdrawal proceedings on his or her own initiative or in response to a petition from an interested person alleging failure of the State to comply with the requirements of this Part as set forth in § 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 withdrawal of the State’s program shall have the burden of coming forward with the evidence in a hearing under this paragraph. (2) Definitions. For purposes of this paragraph the definitions of “Act,” “Administrative Law Judge,” “Hearing,” “Hearing Clerk,” and “Presiding Officer” in 40 CFR § 22.03 apply in addition 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) “Perion” means the Agency, the State and any individual or organization having an interest In the subject matter of the proceeding. (iii) “Petitioner” means any person whose petition for commencement of withdrawal proceedings has been granted by the Administrator, (3) Procedures. The following provisions of 40 CFR Part 22 (Consolidated Rules of Practice) arc applicable to proceedings under this paragraph: (i) § 22.02—(use of number/gender): (ii) § 22.04(c)—(authorities of Presiding Officer); (iii) § 22.08—(fihing/service of rulings and orders); (iv) § 22.07(a) and (b)—except that, the time for commencement of the hearing shall not be extended beyond the date set in the Administrator’s order without approval of the Administrator—. (computation! extension of time); (v) § 22.08—however, substitute “order commencing proceedings” for “complaint”—(Ex Parte contacts); (vi) § 22.09—(examination of filed documents); (vii) § 22.11(a), (c) and (d), however, motions to intervene must be filed within 15 days from the date the notice ------- Federal Register I Vol. 45, No. 98 I Monday, May 191 1980 / Rules and Regulations 33465 of the Administrator’s order is first published—(iniervention): (viii) § 22.16 except that, service shall be in accordance with paragraph (b)(4) of this section. the first sentence in § 22.16(c) shall be deleted, and, the word “recommended” shall be substituted for the word “initial” in § 22.16(c)— (motions); (ix) § 22.19(a), (b) and (c}—4prehearing conference); (x) § 22.22—(evidence); (xi) § 22.23—{objections/offers of proof]; (xii) § 22.25—(fihing the transcript); and (xiii) § 22.26—(findings/conclusions). (4) Record of proceedings. (i) The hearing shall be either stenographically reported verbatim or tape recorded, and thereupon transcribed by an official reporter designated by the Presiding Officer (ii) All orders Issued by the Presiding Officer, transcripts of testimony, written statements of position, stipulations, exhibits, motions, briefs, and other written material of any kind submitted in the hearing shall e a part of the record and shall be available for lnspçctlon 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 to any person upon request, a list containing the name, service address, and telephone number of all parties and their attorneys or duly authorized representatives. (5) Participation by a person not a party. A person who is not a party may, at the discretion of the Presiding Officer, be.permi ted 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. (B) Rigflts 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. (71 Recommended decision. (i) Within 30 days after the filing of proposed findings and conclusions, and reply briefs, the Presiding Officer shall evaluate the record before him/her, the proposed findings and conclusions and any briefs filed by the parties and shall prepare a recommended decision, and shall certify the entire record, including the recommended decision, to the Administrator. (ii) Copies of the recommended decision shall be served upon all parties. (iii) Within 20 days after the certification and filing of the record and recommended decision, all parties may file with the Administrator exceptions to the recommended decision and a supporting brief. (8) Decision by Administrator. (i) Within 60 days after the certification of the record and filing f 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 U.S.C. §704. ( Lii) If the Administrator concludes that the State has not administered the program in conformity with the appropriate Act and regulations he shall list the deficiencies in the program and provide the State a reasonable time, not to exceed 90 days, to take such appropriate corrective action as the Administrator determines necessary. (iv) Within the time prescribed by the Administrator the State shall take such appropriate corrective action as required by the Administrator and shall file with the Administrator and all parties a statement certified by the State Director that appropriate corrective action has been taken. (v) The Administrator may require a further showing in addition to the certified statement that corrective action has been taken. (vi) If the State fails to take appropriate corre tive 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 Stale program must meet in order to obtain final authorization under section 3006(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 IL State programs under final authorization may not take effect until the effective date of Phase II. (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 free movement across the State border of hazardous wastes from or to other ------- 33466 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 f 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 which has no basis In human health or environmental protection and which acts as a prohibition on the treatment, storage or disposal of hazardous waste in the State may be deemed inconsistent. (c) If the State manifest system does not meet the requirements of this Part, the State program shall be deemed inconsistent. § 123.33 RequIrements for identification and Hating of hazardous wastes. The State program must control all the hazardous wastes controlled under 40 CFR Part 281 and must adopt a list of hazardous wastes and a set of characteristics for identifying hazardous wastes equivalent to those under 40 CFR Part 261. § 123.34 RequIrements for generators of hazardous wastes. (a) The State program must cover all generators covered by 40 CFR Part 282. States must require new generators to contact the State and obtain an EPA identification number before they perform any activity s bject 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 § § 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 and 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, and placarding of hazardous waste under 40 CFR § § 262.30 to 262.33, and are consistent with relevant DOT ‘ regulations under 49 CFR Parts 172. 173, 178 arid 179. (a) The State program shall provide requirements respecting international shipments which are equivalent to those at 40 CFR § 262.50, except that advance notification of international shipments, as required by 40 CFR § 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 State Director, or may require equivalent reporting procedures. [ Note.—Such notices shall be mailed to Hazardous Waste Export, Division for Oceans and Regulatory Affairs (A—107), U.S. Environmental Protection Agency. Washington, D.C. 20460] (fi The State must require that all generators of hazardous waste who’ transport (or offer for transport) such hazardous waste off-site: (1) Use a manifest system that ensures that interstate and intrastate shipments of hazardous waste are designated for delivery, and, In the case of intrastate 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 § § 282.23(c) and 203.20(e). The State program shall provide requirements for shipments by rail or water equivalent to those under 40 CFR § § 262.23(c) and 263.20(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 § 262.21) and may supplement the format to a limited extent subject to the consistency requirements of the Hazardous Materials Transportation Act (49 U.s.c. 1801 et seq.). §123.35 Requirements for transporters of hazardous wastes. (a) The State program must cover all transporters covered by 40 CFR Part 263. New transporters must be required to contact the State and obtain an EPA identification number from the State before they accept hazardous waste for transport. - (b) The State shall have the authority to require and shall require all transporters to comply with recordkeeping requirements equivalent to those found at 40 CFR § 263.22, States must require that records be kept at leasf 3 years. (c) The State must require the transporter to carry the manifest during transport, except in the case of shipments by rail or water specified In 40 CFR § 263.2ore), and to deliver wastes only to the facility designated on the manifest. The State program shall provide requirements for shipments by rail or water equivalent to those under 40 CFR § 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 § § 283.30 and 263.31. § 123.36 Requirements for hazardous waste management facilities, The State shall have standards for hazardous waste management facilities which are equivalent to 40 FR Parts 264 and 288. These standards shall include: (a) Technical standards for tanks, - containers, waste piles, incineration, chemical, physical and biological treatment facilities, surface Impoundments, landfills, and land treatment 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; (dJ 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; (I) Security to prevent unauthorized access to the facility; - (g) Facility personnel training; (h) Inspections, monitoring, recordkeeping, and reporting; (I) Compliance with the manifest system, including the requirement that facility owners or operators return a signed copy of the manifest to the generator to certify delivery of the hazardous waste shipment; (j) Other requirements to the extent that they are included in 40 CF ’R Parts 264 and 260. ------- Federal Register/Vol . 45, No. 98 / Monday. May 19. 1980 I Rules and Regulations 33487 § 123.37 RequIrements with respect to permits and permit applications. (a) State law must require permits for owners and operators of all hazardous 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 far interim status under the Federal program to remain in operation until a final decision is made on the permit application. Where State law authorizes such continued operation it shall require compliance by owners and operators of such facilities with standards at least as stringent as EPA’s interim status standards at 40 CFR Part 265. (b) The State 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 State 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 § 123.6. (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 R RA or regulations promulgated thereunder that support the comment); and (2) The actions that should be taken by the State Director in order to address the comments (including the conditions which the permit would include if it were issued by the Regional Administrator). (c) A copy of any comment shall be sent to the permit applicant by the Regional Administrator. (d) The Regional Administrator shall withdraw such a comment when satisfied that the State has met or refuted his or her concerns. (e) Under section 3008(a)(3) of RCRA, EPA may terminate a State-issued permit in accordance with the procedures of Part 124. Subpart E, or bring an enforcement action in accordance with the procedures of 40 CFR Part 22 in the case of a violation of a State program requirement. In exercising these authorities, EPA will observe the following conditions: (1) The Regional Administrator may take action under section 3008(a)(3) of RCRA against a holder of a State-issued permit at any time on the ground that the permittee is not complying with a condition of that permit. (2) The Regional Administrator may take action under section 3008(a)(3) of R RA against a holder of a State-issued permit at any time on the grounds that the permittee is not complying with a condition that the Regional Administrator in commenting on the permit application or draft permit stated was necessary to implement approved State program requirements, whether or not that condition was included in the final permit. (3) The Regional Administrator may not take action under section 3008(a)(3) of RCRA against a holder of a State- Issued permit on the ground that the permittee is not complying with a condition necessary to implement approved State program requirements unless the Regional Administrator stated in commenting on the permit application or draft permit that 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 Intent to seek program approval from EPA. This public notice shall: (1) Be circulated In a manner calculated to attract the attention of interested persons including: (i) Publication in enough of the largest newspapers In the State to attract statewide attention; and (ii) Mailing to persons on the State agency mailing list and to any other persons whom the agency has reason to believe are interested; (2) Indicate when and where the State’s proposed submission may be reviewed by the public; (3) Indicate the cost of obtaining a copy of the submission; (4) Provide for a comment period of not less than 30 days during which time Interested members of the public may express their views on the proposed program; (5) Provide that a public hearing will be held by the State or EPA if sufficient public interest is shown or, alternatively, schedule such a public hearing. Any public hearing to be held by the State on its application for authorization shall be scheduled no earlier than 30 days after the notice of. hearing is published; (8) Briefly outline the fundamental aspects of the State program; and (7) Identify a person that an interested member of the public may contact with any questions. (b) If the proposed State program is substantially modified after the public comment period provided in paragraph (a)(4) of this section, the State shall, prior to submitting its program to the Administrator, providq 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 U. The program submission shall Include copies of all written comments received by the State, a transcript, recording, or summary of any public hearing which was held by the State, and a responsiveness summary which Identifies the public participation activities conducted, describes the matters presented to the public, summarizes significant comments received and responds to these comments. (d) Within 90 days from the date of receipt of a complete program submission for final authorization, the Administrator shall make a tentative determination as to whether or not he expects to grant authorization to the State program. If the Administrator indicates that he may not approve the State program he shall Include a general statement of his areas of concern. The Administrator shall give notice of this tentative determination in the Federal Register and in accordance with paragraph (a)(1) of this section. Notice of the tentative determination of authorization shall also: (1) Indicate that a public hearing will be held by EPA no earlier than 30 days after notice of the tentative determination of authorization, The notice may require persons wishing to present testimony to file a request with the Regional Administrator, who may cancel the public hearing if sufficient ------- 33466 Federal Register / Vol. 45, No. 98 / Monday, May 19. 1980 / Rules and Regulations public interest In a hearing is not expressed; (2) Afford the public 30 days after the notice to comment on the States 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 11. The Adn inistrator 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 8tatement of the reasons for this determination, and a response to significant comments received. Subpart C—Additional Requirements f or 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 State 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 authonzedto administer the NPDES permit program under aection 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 authonty “to issue permits which • control the disposal of pollutants into wells.” In many instances. therefore, NPDES States will have existing statutory authority to regulate well disposal which satisfies the requirements of the UIC program. Note, however, that CWA excludes certain types of well injections from the definition of ‘pollutant.” If the State’s statutory authority contains a similar exclusion it may need to be modified to qualify for UIC program approval.j (d) If a State can demonstrate to EPA’s satisfaction that there are no underground injections within the State for one or more classes of injection wells (other than Class IV wells) subject to SDWA and that such Injections cannot legally occur in the State until the State has developed an approved program for those classes of injections, the State need not submit a program to regulate those injections and a partial program may be approved. The demonstration of legal prohibition shall be made by either explicitly banning new injections of the class not covered by the State program or providing a certification from the State Attorney General that such new injections cannot legally occur until the State has developed an approved program for that class. The State shall submit a program to regulate both those classes of injections for which a demonstration is not made and Class IV wells. - (e) When a State UIC program is fully approved by EPA to regulate all classes of injections, the State assumes primary enforcement authority under section 1422(b)(3) of SDWA. EPA retains primary enforcement responsibility whenever the State program is disapproved in whole or in part. States which have partially approved 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. § 123.52 RequIrement to obtthn a permIt. States may authorize certain well injections by rule rather than by permit. Any authorization by rule shall comply with § 122.37. § 123.53 Progress reports. States shall submit to the Administrator 6 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 process. (a) Prior to submitting an application to the Administrator for approval of a State UIC program, the State shall issue public notice of its intent to adopt a UIC program and to seek program approval from EPA. This public notice shall: (1) Be circulated in a manner calculated to attract the attention of interested persons. Circulation of the public notice shall include publication in enough of the largest newspapers in the State to attract Statewide attention and mailing to persons on appropriate State mailing lists and to any other persons ,whom the agency has reason to believe are interested; (2) Indicate when and where the State’s proposed program submission may be reviewed by the publicr (3) Indicate the cost of obtaining a copy of the submission; (4) Provide for a comme_nt period of not less than 30 days during which interested persons may comment on the proposed UIC program; (5) Schedule a public hearing on the State program for no less than 30 days after notice of the hearing is published; (6) Briefly outline the fundamental aspects of the State UIC program; and (7) Identify a person that an interested member of the public may contact for further information. (b) After complying with the requirements of paragraph (a) of this section any State may submit a proposed UIC program under section 1422 of SDWA and § 123.3 of this Part to EPA for approval. Such a submission shall include a showing of compliance with paragraph (a) of this section, copies of all written comments received by the State, a transcript, recording or summary of any public hearing which was held by the State, and a responsiveness summary which identifies the public participation activities conducted, describes the matters 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)(1) of this section. Such notice shall: (1) indicate that a public hearing will be held by EPA no earlier than 30 days’ after notice of the hearing. The notice may require persons wishing to present testimony to file a request with the Regional Administrator, who may cancel the public hearing if sufficient public interest in a hearing is not expressed; ------- Federal Register/ Vol. 45,’No . 98 I Monday, May 19, 1980 / Rules and Regulations 33469 (2) Afford the public 30 days after the notice to comment on the State’s submission; and (3) Note the availability of the State submission for inspection and copying by the public. (d) 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 accordance 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 bent to those who testified at the public hearing. and to others upon request. § 123.55 Procedures for withdrawal of State UIC 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 SDWA and this Part. (a) Notice to State of Public Hearing. 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 $0 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 attract statewide attention, and mailed to persons on appropriate State and EPA mailing Lists. This hearing shall be convened not less than 80 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. (c) Notice to State of Findings. Wherein the Administrator finds after the public hearing that the State is not in compliance, he or she shall notify the State by registered mail of the specific deficiencies in the State program and of necessary remedial actions. Within 90 days of receipt of the above letter, the 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 § 123,71 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(i) 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 § 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 activities or discharges. When more than one agency is responsible for Issuing permits, each agency must make a submission meeting the requirements of § 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 disposai 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. [ Note.—Statea 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 Slate UIC program under section 1422 of SDWA. Section 402(bJ(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 UIC program. Note, however, that CWA excludes certain types of well injections from the definition of “pollutant.” if the State’s statutory authority contains a similar exclusion it may need to be modified to qualify for UIC program approval.j § 123.73 ReceIpt and use of Federal information. Upon approving a State permit program, EPA shall send to the State agency administering the permit program any relevant information which was collected by EPA. The Memorandum of Agreement under § 123.8 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 ------- 33470 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980/Rules and Regulations relevant information collected before the approval of the State permit program and not already in the possession of the State Director. When existing permits are transferred to the State Director (e.g., for purposes of compliance monitoring, enforcement or reissuance), relevant information includes support files for permit issuance, compliance reports and recor Is of enforcement actions. (b) Procedures to ensure that the State Director will not issue a permit on the basis of any application received from the Regional Administrator which the Regional Administrator identifies as incomplete or otherwise deficient until the State Director receives information sufficient to correct the deficiency. § 123.74 TransmIssion of Information to EPA. (a) Each State agency administering a permit program shall fransiriut 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 Administrator of a copy of all complete permit applications received by the State Director, except those for which permit review has been waived under § 123.6(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 State agency related to the consideration of any permit a 5plication or general permit, including a copy of each proposed or draft permit and any conditions, requirements, or documents which are related to the proposed or draft permit or which affect the authorization of the proposed permit, except those for which permit review has been waived under § 123.6(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 CFR Part 403, upon request of the Regional Administrator, (2) A copy of any significant commepts presented in writing pursuant to the public notice of a draft permit and a summary of any significant comments presented at any hearing on any draft permit, except those comments regarding permits for which permit review has been waived under § 123.6(e) and for which EPA has not otherwise requested receipt, if: (i) The Regional Administrator requests this information; or (ii) The proposed permit contains requirements significantly different from those contained in the tentative determination and draft permit; or (iii) Significant comments objecting to the tentative determination and draft permit have been presented at the hearing or in writing pursuant to the public notice. (d) Any State permit program shall keep such records and submit to the Administrator such information as the Administrator may reasonably require to ascertain whether the State program complies with the requirements of CWA or of this Part. § 123.75 EPA review of and objections to State permits. (a)(1) The Memorandum of Agreement shall provide a period of time (up to 90 days from receipt of proposed permits) in which the Regional Administrator may make general comments upon, objections to, or recommendations with respect to proposed permits. EPA reserves the right to take 90 days to supply specific grounds for objection, notwithstanding any shorter period specified in the Memorandum of Agreement, when a general objection is 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 recommendations with respect to the prop sed general permit, and is not bound by any shorter time limits set by the Memorandum of Agreemeht for general comments, objections or recommendations. The EPA Deputy Assistant Administrator for Water Enforcement may commetit upon, object to, or make recommendations with respect to proposed general permits, except those for separate storm sewers, on EPA’s behalf. (b)(i) Within the period of time provided under the Memorandum of Agreement for making general comments upon, objections to or recommendations with respect to proposed permits, the Regional Administrator shall notify the State Director of any objection to issuance of a proposed permit (except as provided in paragraph (a)(2) of this section for proposed general permits). This notification shall set forth in writing the general nature of the objections. (2) Within 90 days following receipt of a proposed permit to which he or she has objected under paragraph (b)(1) of this section, or in the case of general permits within 90 days 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 Deputy Assistant Administrator for Water Enforcement, shall set forth in writing and transmit to the State Director: (i) A statement of the reason, for the objection (includ(ng the Bection 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 sby the Regional Administrator). [ Note.—Paragraphs (a) and (b) of this section, in effect, modify any existing agreement between EPA and the State which provides lees than 90 days for EPA to supply the specific grounds for an objection. However, when an agreement provides for an EPA review penod of less than 90 days, EPA must file a general 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 MOAs allows EPA to 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 arrangementj (c) The Regional Administrator’s objection to the issuance of a proposed permit must be based upon one or more of the following grounds: ------- Federal Register I Vol. 45, No. 98 I Monday, May 19,1980 / Rules and Regulations 33471 (1) The permit fails to apply, or to ensure compliance with, any applicable requirement of this Part; fNote.—For example, the Regional Administrator may object to a permit not requiring the achievement of required effluent limitations by applicable statutory deadlines.] (2) In the case of a proposed permit for which notification to the Administrator is required under section 402(b)(5) of CWA, the written recommendations of an affected State have not been accepted by the permitting State and the Regional Administrator finds the reasons for rejecting the recommendations are inadequate; (3) The procedures followed in connection with formulation of the proposed permit failed in a material respect to comply with procedures required by CWA or by regulations thereunder or by the Memorandum of Agreement (4) Any finding made by the State Director in connection with the proposed permit misinterprets CWA or any guidelines or regulations under CI4IAI or misapplies them to the facts; (5) Any provisions of the proposed permit relating to the maintenance of records, reporting, monitoring, sampling, or the provision of any-other information by the permittee are inadequate, in the judgment of the Regional Administrator. to assure compliance with permit • conditions, including effluent standards and limitations required by CWA, by the guidelines and regulations issued under CWA, or by the proposed permit; (6) In the case of any proposed permit with respect to which applicable effluent standards and limitations under sections 301, 302, 306, 307, 318, 403 and 405 of CWA have not yet been promulgated by the Agency, the proposed permit, in the judgment of the Regional Administrator, fails to carry out the provisions of CWA or of any regulations issued under CWA; the provisions of this subparagraph apply to determinations made pursuant to § 125.3(c)(2) in the absence of applicable guidelines and to best management practices under section 304(e) of CWA, which must be incorporated into permits as requirements under sections 301, 306, 307, 318, 403 or 405, as the case may be; (7) Issuance of the proposed permit would in any other respect be outside the requirements of CWA, or regulations issued under CWA, - (d) Prior to notifying the State Director of an objection based upon any of the grounds set forth in paragraph (b) of this section, the Regional Administrator: (1) Shall consider all data transmitted pursuant to § 123.74; (2) May, if the information provided Is inadequate to determine whether the proposed permit meets the guidelines and requirements of CWA, request the State Directdr 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 lull period of time specified in the Memorandum of Agreement for the Regional Administrator’s review shall recommence when the Regional Administrator has received such record or portions of the record; and (3) May, in his or her discretion, and to the extent feasible within the period of time available under the Memorandum of Agreement, afford to interested persons an opportunity to comment on the basis for the objection; (e) Within 90 days of receipt by the State Director of an objection by the Regional Administrator, the State or interstate agency or any interested person may request that a public hearing be held by the Regional Administrator on the objection. A public hearing in accordance with the procedures of § § 124.12 (c) and (d) shall be held, and public notice provided in accordance with § 124.10, whenever requested by the State or the interstate agency which proposed the permit or if warranted by significant public interest based on requests received. (f) A public hearing held under paragraph (e) of this section shall be conducted by the Regional Administrator, and, at the Regional Administrator’s discretion, with the assistance of an EPA panel designated by the Regional Administrator, in an orderly and expeditious manner. (g) Following the public hearing, the Regional Administrator shall reaffirm the original objection, modify the terms of the objection, or withdraw the objection, and shall notify the State of this decision. (h)(1) If no public hearing is held under paragraph (e) of this section and the State does not resubmit a permit revised to meet the Regional Administrator’s objection within 90 days of receipt of the objection, the Regional Administratorumay issue the permit in accordance with Parts 121, 122, and 124 of this chapter and any other guidelines and requirements of CWA. - (2) If a public hearing is held under paragraph (e) of this section, the Regional Administrator does not withdraw the objection, and the State does not resubmit a permit revised to meet the Regional Administrator’s objection or modified objection within 30 days of the date of the Regional Administrator’s notification under paragraph (g) of this section, the Regional Administrator may issue the permit in accordance with Parts 121, 122, and 124 of this chapter and any other guidelines and requirements of CIIVA. (3) Exclusive authority to issue the permit passes to EPA when the times s t 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 Water Enforcement” after “Regional Administrator” whenever it appears in paragraphs (c}-(h) of this section. (j) The Regional Administrator may agree, in the Memorandum of Agreement under § 123.6, 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 process. (a) After determining that a State program submission is complete, EPA shall publish notice of the State’s application in the Federal Register, and in enougirof the largest newspapers in the State to attract statewide attention, and shall mail notice to persons known to be interested in such matters, including all persons on appropriate State and EPA mailing lists and all permit holders and applicants within the State. The notice shall; (1) Provide a comment period of not less than 45 days during which interested members of the public may express their views on the State program; (2) Provide for a public hearing within the State to be held no less than 30 days, after notice is published in the Federal Register; (3) Indicate the cost of obtaining a copy of the State’s submission; ------- 33472 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations (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. (b) Within 90 days of the receipt of a complete program submission under § 123.3 the Administrator shall approve ‘or disapprove the program based on the i equirements of this Part and of CWA and taking Into consideration all comments received. A responsiveness summary shall be prepared by the Regional Office which Identifies the public participation activities conducted, describes the matters presented to the public, summarizes significant comments received and explains the Agency’s response to these comments. (c) If the Administrator approves the State’s program he or she shall notify the State and publish notice in the Federal Register. The Regional Administrator shall suspend the issuance of permits by EPA as of the date of program approval. (d) If the Administrator disapproves the State program he or she shall notify the State of the reasons for disapproval and of any revisions or modifications to the State program which are necessary to obtain approval. Subpart E—Additional Requirements for State Programs Under SectIon 404 of the Clean Water Act § 123.91 Purpose and scope. (a) This Subpart describes additional requirements, both procedural and substantive, for State permit programs under section 404 of CWA (regulating discharges of dredged.or fill material). 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. (1,) 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 § 122.3. (d) Under section 404(h)(5) of CWA, States are entitled, after p,rogram 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)(iii) of this section. (11) To fall under this exemption, the activities specified in paragraph (a)(1)(i) of this section must be part of an established (i.e., on-going) farming, silviculture, or ranching operation. Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation. Activities which bring an area Into farming, silviculture, or ranching use are not part of an established operation. An operation ceases to be established when the area on which it was conducted has been 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. (iii)(A) Cultivating means physical methods of soil treatment employed within established farming, ranching and silviculture lands on farm, ranch, or forest crops to aid and improve their growth, quality or yield. (B) Harvesting means physical measures employed directly upon farm, forest, or ranch crops within established agricultural and silvicultural lands to bring about their removal from farm, forest, or ranch land, but does not include the construction of farm, forest, or ranch roads. (C)(1) Minor Drainage means: (I) The discharge or dredged or fill material incidental to connecting upland drainage facilities to waters of the United States, adequate to effect the removal of excess soil moisture from upland croplands. (Construction and maintenance of upland (dryland) facilities, such as ditching and tiling, incidental to the planting, 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 permit.); (ii ) The discharge of dredged or fill material for the purpose of installing ditching or other such water control facilities incidental to planting, cultivating, protecting, or harvesting of rice, cranberries or other 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; (iii) The discharge of dredged or fill material for the purpose of manipulating the water levels of, or regulating the flow or distribution of water within, existing impoundments which have been constructed In accordance with applicable requirements of CWA, and which are in established ise for the production of rice, cranberries, or other wetland crop species: [ Note—The provisions of paragraphs (a)(1)(iiQ(C)(1)(ii) and (iii) of this section apply to areas that are in established use exclusively for wetland crop production as well as areas in established use for conventional wetland/non.wetiand crop rotation (e.g., the rotations of rice and - soybeans) where such rotation results In the cyclical or intermittent temporary dewatering of such areas.] (iv) The discharge of dredged or fill material incidental to the emergency removal of sandbars, gravel bars, or other similar blockages which are formed during flood flows or other events, where such blockages close or constrict previously existing drainageways and, if not promptly removed, would result in damage to or loss of existing crops or would impair or prevent the plowing, seeding, harvesting orcultivating 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 of, the affected drainageway as It existed prior to the formation of the blockage. Removal must be accomplished within ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33473 one year of formation of such blockages In order to be eligible for exemption. (2) Minor drainage In waters of the U.S. is limited to drainage within areas that are part of an established farming or silviculture operation. It does not include drainage assodated with the immediate or gradual conversion of a wetland to a non-wetland (e.g.. wetland species to upland species not typically adapted to life in saturated soil conditions), or conversion from one wetland use to another (for example, silviculture to farming). In addition, minor drainage does not include the construttion 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 Umted States. Any discharge of dredged or fill material into the waters of the United States incidental to the construction of any such structure or waterway requires a permit. (D) Plowing ‘means all forms of primary tillage, including moldboard, chisel, or wide-blade, plowing, discing, harrowing, and similar physical means utilized on farm, forest or ranch land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops. The term does not include the redistribution of spoil, rock, sand, or other surficial materials in a manner which changes any area of the waters of the United States to dry land. For example, the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing. Rock crushing activities which result in the loss of natural drainage characteristics, the reduction of water storage and recharge capabilities, or the overburden of natural water filtration capacities do not constitute plowing. Plowing will never involve a discharge of dredged or fill i ateriaI. (E) Seeding means the sowing of seed and placement of seedlings to produce farm, ranch,i r forest crops and includes the placement of soil beds for seeds or seedlings on established farm and forest lands. (2) Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures. Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption. (3) Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches. A simple connection of an irrigation return or supply ditch to waters of the U.S. and related bank stabilization measures are included within this exemption. Where a trap, weir, groin, wall, jetty or other structure within waters of the U.S., which will result in significant discemable 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 ajionstruction 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 necessary for construction and utilization of such structures, The term also includes any other land areas which involve land-disturbing excavation activities, including quarrying or other mining activities, where an increase in the runoff of sediment is controlled through the use of temporary sedimentation basins. (5) Any activity with respect to which a State has an approved program under section 208(b)(4) of CWA which meets the requirements of sections 208 [ b)(4J (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 State’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 dredged or fill material into waters of the U.S.; (iii) The road fill shall be bridged, culverted, or otherwise designed to prevent the restriction of expected flood flows; (iv) The fill shall be properly stabilized and maintained during and following construction to prevent erosion; (v) 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 itself; (vi) In designing, constructing, and maintaining roads, vegetative disturbance in the waters of the U.S. shall be kept to a minimum; (vii) The design, construction and maintenance of the road crossing shall not disrupt the migration or other movement of those species of aquatic life inhabiting the water body: (viii) Borrow material shall-be taken from upland sources whenever feasible; (ix) The discharge shall not take, or jeopardize the continued existence of, a threatened or endangered species as defined under the Endangered Species Act, or adversely modify or destroy the critical habitat of such species; (x) Discharges into breeding and nesting 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 supply intake; (xii) The discharge shall not occur in areas of concentrated shellfish production; (xiii) The discharge shall not occur in a component of the National Wild and Scenic River System; (xiv) The discharge of material shall consist of suitable material free from toxic pollutants in toxic amounts; and (xv) All temporary fills shall be removed in their entirely and the area restored to its original elevation. (b) If any discharge of dredged or fill material resulting from the activities listed in paragraphs (a) (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. ------- 33474 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations prohibition, md 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)—(O) of this section must have a permit if it is part of an activity whose purpose is to convert an area of the waters of the United States into a use to which it was not previously subject, where the flow or circulation of waters of the United States may be Impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration. [ Note.—For example, a permit will be required for the conversion of a cypress swamp to some other use or the conversion of a wetland from silvicultural to agricultural use when there Is a discharge of dredged or fill materials into waters of the United States In conjunction with construction of dikes, drainage ditches or other works or structures used to effect such conversion. A discharge which elevates the bottom of waters of the Unhted’Statea without con ertlng it to dry land does not thereby reduce the reach of. but may alter the flow or circulation of. waters of the United States.) (d) Federal projects which qualify under the criteria contained in section 404(r) of CWA (Federal projects authorized by Congress where an EIS has been submitted to Congress prior to authorization or an appropriation) are exempt from State section 404 permit requirements, but may be subject to other State or Federal requirements. §123.93 ProhibitIons. No permit 8hall be issued by the State Director in the following circumstances: (a) When the conditions of the permit do not comply with the requirements of CWA, or regulations and guidelines implementing CWA, including the section 404(b)(1) environmental guidelines (40 CFR Part 230). • (b) When the Regional Administrator has objected to issuance of the permit under section 404(j) of CWA and the objection has not been resolved. (c) When, in the judgment of the Secretary of the Army acting through the Chief of Engineers, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge. (d) When the proposed discharge would be into a defined area for which specification as a disposal site has been prohibited, restricted, denied, or withdrawn by the Administrator under section 404(c) of CWA, and the discharge would fail to comply with the Administrator’s actions under that authority. § 123.94 Permft application. (a) Publicity and preapplication consultation. The State Director shall maintain a program to inform, to the extent possible, potential applicants for permits of the requirements of the State program and of the steps required to obtain permits for activities In State regulated waters. The State Director is encouraged to include preapplication consultation as part of this program to assist applicants in understanding the requirements of the environmental guidelines issued under section 404(b)(1) of CWA (40 CFR Part 230) and in fulfilling permit application requirements. (b) Application for permft. Except when an activity is authorized by a general permit under § 123.95 or is exempt from the requirement to obtain a permit under § 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 State Director. State application forms are subject to EPA - review and approval. (c) Content of Application. A complete application shall Include the following information: (1) A complete description of the proposed activity including: (I) Name, address, and phone number of the applicant; the names, addresses, and phone numbers of owners of properties adjacent to the site; and, if appropriate, the location and dimensions of adjacent structures; (ii) A description of the source of the dredged or fill material and method of dredging used, if any: a description of the type, composition and quantity of the material; the proposed method of transportation and disposal of the material, including the type of equipment to be used and the extent (in acres) of the area of waters of the United States to be filled or used for disposal; - (iii) The purpose and intended use of the proposed activity (including whether It is water-dependent); a description of the use âf any structures to be erected on the fill; and a schedule for the proposed activity; (iv) A list of the approvals required by other Federal, interstate, State and local agencies for the activity, Including all approvals or denials received; and (v) A vicinity map Identifying the proposed disposal site and the local jurisdiction closest to the disposal site. (2) Information about the disposal site needed to evaluate compliance with 40 CFR Part 230, including the following: (i) A description of known alternatives to the proposed discharge, Including alternative disposal sites, coiistruction methods, methods of discharge, and reasons for rejecting the alternatives; (ii) A description of special aquatic sites, public use areas, wildlife refuges, and public water supply Intakes In the affected or adjacent areas that may require special protection or preservation; (iii) Plants, fish, shellfish, and wildlife In the disposal site which may be dependent on water quality and quantity; (iv) Uses of the disposal site which might affect human health and welfare; and (v) A description of technologies or management practices by which the applicant proposes to minimize adverse environmental effects of the discharge. Guidelines for minimizing the adverse effects of discharges of dredged or fill material are found in 40 CFR Part 230.- (Note.—The State shall provide permit applicants with guidance, either through the application form or on an individual basis, regarding the level of detail of information and documentation required under this paragraph. The level of detail shall be reasonably commensurate with the type and size of discharge, proximity to critical areas, likelihood of presence of long-lived toxic chemical substances, and degree of environmental degradation.) (3) One original set of drawings and maps, or one set of drawings and maps of reproducible quality, including: (I) A map showing the following In plan view: (A) Location of the activity site including latitude, longitude, and river mile, if known; (B) Name of waterway: (C) All applicable political (e.g., county, borough, town, city, etc.) boundary lines; (13) Names of all major roads in the vicinity of the site including the road providing the closest practicable access to the site; (E) North arrow; (F) Arrows showing flow and circulation patterns; (C) Existing shorelines or ordinary high watermark; (H) Location of known wetlands; (I) Water depths and bottom configuration around the project; (J) Delineation of disposal Bite; (K) Size-relationship between the proposed disposal site and affected waters (e.g., a ¼ acre fill in a 15-acre wetland); (L) Location of previously used dredged material disposal sites with remaining capacity in the vicinity of the ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I 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 inunedlately 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 map’l or drawings submitted, including: (A) A list of names of adjacent property owners whose property also adjoins the water and who are not shown in the plan view; (B) A title block for each sheet submitted identifying the proposed activity and containing the name of the body of water; 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 123.97, and the applicable requirements of § 123.98, each general permit shall contain conditions as follows: (1) Activities: A specific descriptlorr 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: (iii) The depth of fill permitted; (iv) 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 under the general permit unless the Director receives notice at least 30 days In advance of the date when the proposed activity Is to commence. The Director may require any information in the notice necessary to determine whether the conditions of the general permit will be satisfied. If within 15 days of the date of submission of the notice the owner or operator has not been Informed by the State Director of his or her intent to require an - Individual permit application, the owner or operator may commence operations under the general permit. (c) Requiring an mdi vidual permit. (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 that activity, the activity shall not be authorized by the general permit. (3) The Director may require any person authorized under a general permit to apply for an individual permit. § 123.96 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; and (2) The anticipated threat or loss may occur before a permit can be issued or modifie’d under the procedures otherwise required by this Part and Part 124. (b) Requirements for issuance. (1) The emergency permit shall Incorporate, to the extent possible and not Inconsistent with the emergency situa!ion, 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 complete restoration, the permit may be extended for this purpose only. (4) The emergency permit may be oral or written. If oral, it must be followed within five days by a written emergency permit. (5) Notice of the emergency permit shall be published and public comments received in accordance with applicable requirements of § § 124.10 and 124.11 as soon as possible but no later than 10 days after the Issuance date. (0) 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 § 123.96.) (1,) 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 in accordance with the requirements contained in this permit. (d) If any applicable water quality standards are revised or modified, or if a toxic effluent standard or prohibition under CWA section 307(a) is established for a pollutant present in the permittee’s discharge and is more stringent than any limitation in the permit, the permit shall be promptly modified to conform to the standard, limitation or prohibition. § 123.98 Establishing 404 permit conditions. In addition to the conditions established under § 122.8(a), each 404 permit shall include conditions meeting the following requirements, when applicable: (a) Jdentificption. A specific Identification and description of the authorized activity, Including: ------- 33476 Federal Register / Vol. 45. No. 98 I Monday. May 19, 1980 I 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 material; and (5) The location and boundaries of the discharge site(s), including a detailed sketch and the name and a description of affected State regulated waters. (bJ Enviromnentai,guidelines. Provisions ensuring that the discharge will be conducted in compliance with the environmental guidelines issued under section 404tb)(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 BMPs approved by a Statewide CWA section 208(b)(4) agency as provided in the agreement described in § 123.102(a)(1). (f) 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 Secretary. - Before a State program is approved under this Part, the State shall enter into - a Memorandum of Agreement with the Secretary. Where more than one agency within a State has responsibility for administering the State p ogram, 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 progra n 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 Direltor 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 o’f 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 404(g)(1) of CWA), the State is strongly encouraged to establish in this MOA procedures for joint processing of Federal and State permits, including loint public notices and public hearings.] § 123.100 TransmissIon of Information to EPA and other Federal agencies. (a) The Memorandum of Agreement under § 123.8 shall provide for the following: (1) Prompt transmission to the Regional Administrator (by certified mail) and to the Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service of a copy of all complete permit applications received by the State Director, except those for which permit review has been waived under § 123.8(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 (FIS) or similar document, end such EIS or other document is available, the EIS or other document shall accompany the permit application when transmitted to the Regional Administrator. (2) Prompt transmission to the Regional Administrator (by certified mail) and to the Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service of notice of every action taken by the State agency related to the consideration of any permit application, including a copy of each draft permit prepared, and any conditions, requirements, or documents which are related to the draft permit or which affect the authorization of the draft permit. A draft permit shall be prepared by the State and transmitted to EPA: (I) At the time of transmission of the complete permit application, for discharges listed in § 123.8(f)(1)(i)(A)— (E); (ii) Upon request of EPA in accordance with § 123.101(e)(3), for discharges not listed in § 123.6(f)(1)(i)(A)—(E), unless EPA has waived review under § 123.6(f)(1)(i). (3) Prompt transmission to the Regional Administrator, the Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service of a copy of each draft general permit A draft general permit shall be prepared by the State whenever the State intends to issue a general permit. (4) Transmission to the Regional Administrator, the Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service of a copy of every issued permit following issuance, along with any and all conditions and requirements. ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33477 (b)(1) State section 404 programs shall comply with the draft permit requirements of § § 124.6 (a), (c), (d), and (e) and 124,8 for those discharges which require a draft permit under paragraph (a)(2) of this section and for those discharges to be regulated by general permits. For discharges which require a draft permit under paragraph (a)(2) of this section, public review and EPA review, under § 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 § 123.6(f)(1)(l), shall be based on the permit application. For these discharges. States need not comply with § § 124.6 (a), (c), (d), and (e) or 124.8. § 123.101 EPA review of and objections to State permits. (a) The Memorandum of Agreement shall provide that the Regional Administrator may comment upon, object to, or make recommendations with respect to permit applications, draft permits (if prepared under § 123.100), or draft general permits Within 90 days of receipt. If the Regional Administrator intends to comment upon, object to, or make recommendations with respect to a permit application, draft permit, or draft general permit, he or she shall notify the State Director of his or her intent within 30 days of receipt. The Regional Administrator may notify the State within 30 days of receipt that there is no comment but reserve the right to object within 90 days of receipt, based on any new information brought out by the public during the comment period or at a hearing. The Regional Administrator shall send a copy of any comment, objection, or recomrni endation 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 Director: (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 has received an objection to a permit application, draft permit, or draft general permit under this section and has taken the steps required by the 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 based upon one or more of the following grounds: (1) The permit application, draft permit, or draft general permit fails to appiy, 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 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 (see § 123.102(c)); (3) The procedures followed in connection with processing the permit failed in a material respect to comply with procedures required by CWA, by this Part, by other regulations and guidelines thereunder, or by the Memorandum of Agreement; (4) Any finding made by the State Director In connection with the draft permit or draft general permit misinterprets CWAor any guidelines or regulations thereunder, or misapplies them to the facts; (5) Any provisions of the permit application, draft permit, or draft general permit relating to the maintenance of records, reporting, monitoring, sampling, or the provision of any other Information by the 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 CFR Part 230, or by the draft permit or draft general permit; (6) The information contained in the permit application is insufficient to judge compliance with 40 CFR Part 230; or (7) Issuance of a permit would in any other respect be outside the requirements of section 404 of CWA, or regulations implementing section 404 of CWA. (e) Prior to notifying the State Director of en 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 determine whether the permit application, draft permit, or draft general permit meets the guidelines and requirements of CWA. request the State Director to transmit to the Regional Administrator the complete record of the permit proceedings before the State, or any portions of the record, or other information, including a supplemented application, that the Regional Administrator determines are necessary for review. This request shall be made within 30 days of receipt of the State submittal under § 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 § 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 § 123.100(a)(2). When a draft permit is prepared under this subparagraph, Federal and public review 8hall recommence under § 123.100(b)(1). The Regional Administrator’s period for review shall begin upon receipt of the draft permit. [ Note.—It Is anticipated that draft permits will be requested only in exceptional and/or complex cases.I (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 Administrator on the objection. A public hearing in accordance with the procedures of § § 124.12 (c) and (d) shall be held, and public notice provided in accordance with § 124.10, whenever requested by the State Issuing the permit, or if warranted by significant public interest based on requests received. (g) A public hearing held under paragraph (f) of this section shall be conducted by the Regional ------- 33478 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations A dminisfrator, 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 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. (i)(1) If no public hearing is held under paragraph (f) of this section and the State oea not resubmit a permit revised to meet the Regional Administrator’s objection or notify EPA of its intent to deny the permit within 90 days of receipt of the objection, the Secretary may issue the permit in accordance with the guidelines and regulations of CWA, (2) If a public hearing is held under paragraph (1) 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) Genera.! coordination. (1) If the State has a Statewide CWA section 208(b)(4) regulatory program, the State Du’ector shall develop an agreement with the agency designated to administer such program. The agreement shall include: (i) A definition of the activities to be regulated by each program; (ii) Arrangements providing the agencies an opportunity to comment on prospective permits, BMPs, and other relevant actions; and (ill) Arrangements incorporating BMPs developed by the section 208(b)(4] program into section 404 permits, where appropriate. (2] Where a CWA section Z08(b)(4) program has been approved under section 208(b)(4)(C), no permit shall be required for activities for which the Administrator has approved 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(ies) with jurisdiction over fish and wildlife esources. (b) Coordination with other Federal and Federal-State review processes. State section 404 programs shall assure coordination of State section 404 permits with Federal and Federal-State water related planning and review processes. (1) The State Director shall assure that the impact of proposed discharges will be consistent with the Wild and Scenic Rivers Act when the proposed discharge could affect portions of rivers designated wild, recreational, scenic, or under consideration for such designation. (2) Agencies with jurisdiction over Federal and Federal-State water related planning and review processes, including the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service, shall notify the Regional Administrator that they wish to comment on a permit application, draft permit, or draft general permit within 20 days of receipt by the Regional Administrator of the permit application, - draft permit, or draft general permit. Such agencies should submit their evaluation and comments to the Regional Administrator within 50 days of receipt by the Regional Administrator of the permit application, draft permit, or draft general permit. The Regional Administrator may allow any such agency up to an additional 30 days to submit comments, upon request of 8uch agency. (3) All comments from the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service on permit applications, draft permits, and draft general permits shall be considered by the Regional Administrator. If the Regional Administrator does not adopt a recommendation of any such agency, he shall consult with that agency. The final decision to object or to require permit conditions shall be made by the Regional Administrator. (c) Coordination with other States. If the proposed discharge may affect the quality of the waters of any State(s) other than the State in which the discharge occurs the State Director shall provide an opportunity for such State(s) to submit written comments within the public comment period on the effect of the proposed discharge on such State(s) waters, and to suggest additional permit conditions. If these recommendations are not accepted by the State Director, he shall notify the affected State and the Regional Administrator in writing of his failure to accept these recommendations, together with his reasons for so doing. [ Note.—States are encouraged to receive. and use information developed by the U.S. Fish and Wildlife Service as part of the National Wetlands Inventory as it becomes available.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 Service, and the National Marine Fisheries Service. (b) After determining that a State program submission is complete, EPA shall publish notice of the State’s application in the Federal Register, and in enough of the largest newspapers in the State to attract Statewide attention, and shall mail notice to persons known to be interested in such matters, including all persons on appropriate State, EPA, Corps of Engineers, U.S. Fish and Wildlife Service, and National Marine Fisheries Service mailing lists and all permit holders and applicants within the 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 for a public hearing within the State to be held no less than 30 days after notice of the hearing is published in the Federal Register; (3) Indicate the cost of obtaining a copy of the State’s submission; (4) Indicate where and when the State’s submission may be reviewed by the public; (5) Indicate whom an interested member of the public should contact with any questions: and (0) Briefly outline the fundamental aspects of the State’s proposed program, and the process for EPA review and decision. (c) Within 90 days of receipt of a complete program submission under § 123.3, the Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service shall ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33479 submit any comments on the State program. - (d) Within 120 days of the receipt 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 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 and not identified in the program description under § 123.4(h)(1) as State regulated waters. (f) If the Administrator disapproves the State program he or she shall notify the State of the reasons for the disapproval and of any revisions or modifications to the State program whigh are necessary to obtain approval. Subpart F—Requirements for interim Authorization of State Hazardous Waste Programs § 123.121 Purpose and scope. (a) This subpart specifies all of the requirements a State program must meet in order to obtain interim authorization under section 3008(c) of RCRA. The requirements a State program must meet in 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 treatment, storage and disposal facilities (40 CFR Part 265). The second phase (Phase 11) allows States with interim authority for Phase Ito establish a permit program for hazardous waste treatment, storage and disposal facilities in lieu of and corresponding to the Federal hazardous waste permit program (40 CFR Parts 204 and 200). States may apply for interim authorization either sequentially (application for interim authorization for Phase I followed by an amendment of that application for Phase LI) or all at once (application for interim authorization for both Phases I and H 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 of Federal permits for those activities subject to the approved State program. (e) Any SLate 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. [ Noto. —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 predudes 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 I 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 IL At the end of this period all interim authorizations automatically expire and EM shall administer the Federal prbgramin any State which has not received final authorization. (c) 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 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 Phase II shall apply for interim authorization for both Phase I and Phase II, 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 finot later than 6 months after the effective date of Phase II. (d) No State may apply for interim authorization for Phase II unless it has received interim authorization for Phase I or is simultaneously applying for interim authorization for both Phase I and Phase II. § 123.123 Elements of a 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 can y out its responsibilities under this subpart; (3) An Attorney General’s statement as required by § 123.125; (4) A Memorandum of Agreement with the Regional Administrator as required by § 123.128; (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 date of receipt of the State’s submission. 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. ------- 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 interim 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 § 123.124 to 123.127. § 123.124 Program description. Any State that wishes to administer a program under this Subpart shall submit to the Regional Administrator a complete description of the program it proposes to administer in lieu of the Federal program under State law. A State applying only for interim authorization for Phase II shall amend its program description for interim authorization for Phase I as necessa y to reflect the program it proposes to administer to meet the requirements for interim authorization for Phase U. 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 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 dedicated 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 complete 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)(i) 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 substantially equivalent to 40 FR Part 265.1 (d) Copies of the forms and the manifest format the State intends to use in its program. Forms used by the State need not be identical to the forms used by EPA, but should require the same basic information. If the State chooses to use uniform national forms it should so note. (e) A complete description of the State’s compliance monitoring and enforcement program. (f) A description of the State manifest system if the State has such a system and of the procedures the State will use to coordinate information with other approved State programs and the Federal program regarding interstate and international shipments. (g) An estimate of the number of the following: - (1) Generators; (2) Transporters; and (3) On- and off-site treatment, storage and disposal facilities including a brief description of the types of facilities and an indication, if applicable, of the permit status of these facilities. § 123.125 Attorney General’s statement. (a) Any 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 counsel), that the laws of the State, or the interstate compact, provide adequate authority to carry out the program described under § 123124 and to meet th’e 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 program for Phase I was in existence within 90 days of the promulgation of Phase I In the case of a State applying for interim authorization for Phase II, the State Attorney General or independent legal counsel must certify that the enabling legislation for the program for Phase II was in existence within 90 days of the promulgation 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 State 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 interlin authorization for Phase I, the Attorney General’s statement shall certify that the authorization plan under § 123.127(a), if carried out, would provide the State with enabling authority and regulations adequate to meet the requirements for final authorization contained in Phase 1. (2) In the case of a State applying for interim authorization 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 to meet all the requirements for final authorization. (c) Where a State seeks authority over 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 a Memorandum of Agreement (MOA). In addition to meeting the requirements of paragraph (b) of this section, and, if applicable, paragraph (c) of this section, the Memorandum of Agreement may include other terms, conditions, or agreements relevant to the administration and enforcement of the State’s regulatory program which are not inconsistent with thissubpart. No Memorandum of Agreement shall be approved which contains provisions which restrict EPA’s statutory oversight responsibility. In the case of a State applying for interim authorization for ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33481 Phase U, the Meniorandwn of A greement shall be amended and xe- r ecuted 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 include the following: (1) Provisions for the prompt transfer from EPA to the State of information obtained in notifications 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 facilities, and any other information relevant to effective program operation not already in the possession of the State Director (e.g.. pending permit applications, compliance reports. etc.). (2) Provisions specifying the frequency and content of reports, documents, and other information which the State is required to submit to EPA. The State shall allow EPA to routinely review State records, reports, and files relevant to the administration and enforcement of the approved program. State reports may be combined with grant reports when appropriate. (3) Provisions on the State’s compliance monitoring and enforcement program, including: (i) Provisions for coordination of compliance monitoring activities by the State and EPA. These may specify the basis on which the Regional Administrator will select facilities or activities within the State for EPA inspection. The Regional Administrator will normally notify the State at least 7 days before any such inspection; and (ii) Procedures to assure coordination of enforcement activities. (4) Provisions for modification of the Memorandum of Agreement in accordance with this Part. (5) A provision allowing EPA to conduct compliance inspections of all generators, transporters, and HWM facilities during interim authorization. The Regional Administrator and the State Director may agree to limitations regarding compliance inspections of generators, transporters, and non-major HWM facilities. (6) A provision that no limitations on EPA compliance inspections 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 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 .les for permit issuance. 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. If a State lacks the authority to directly administer permits issued by the Federal government, a procedure may be established to transfer responsibility for these permits. (2) Provisions specifying classes and categories of permit applications and draft permits that the State Director will send to the Regional Administrator for review and comment. The State 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 non- major HWM 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 under different programs, from both EPA and the State. § 123.127 A ithorlzatIon plan. The State must submit an “authorization plan” which shall describe the additions and modifications neceisary forjhe 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 and modifications necessary for the State program to meet the requirements for final authorization contained in Phase I. (b) In the case of a State applying for interim authorization for Phase U, 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. § 123.128 Program requirements for Interim authotizatlon for Phase I. The following requirements are applicable to States applying for interim authorization for Phase I. If a State does not have legislative authority or regulatory control over certain activities that do not occur in the State, the State may be granted interim authorization for Phase I provided the State authorization plan under § 123.127 provides for the development of a complete program as soon as practicable after receiving interim authorization. (a) Requirements for k entJfication and listing of hazardous 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 genemtozu 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 gener&tors 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 § 262.40 and 262.41. (4) The State program must require that generators who accumulate hazardous wastes for short periods of time prior 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 § 262.50, except that advance notification of international shipment, as required by 40 CFR § 262.50(b)(1), shall be filed with the Administrator. The State may require that a copy of auth advance notice be filed with the State Director, or may require equivalent reporting procedures. [ Note.—Such notices shell be mailed to Hazardous Waste Export, Division for ------- 33482 Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations Oceans and Regulatory Affairs (A—107), U.S. Environmental Protection Agency, Washington, D.C. 20460.1 (6) The State program mu8t 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 H 262.23(c) and 263.20(e); and (iii) Shipments of hazardous waste that are not delivered to a designated facility are either identified and reported by the generator to the State in which the shipment originated or are independently identified by the State in which the shipment originated. (8) In the case of interstate shipments for which the manifest has not been returned, the State program must provide for notification to the State in which the facility designated on the manifest is located and to the State in which the shipment may have been delivered (or to EPA in the case of unauthorized States). (c) Requirements for transporters of ‘iazardous 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 § 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 § 263.20(e). (8) 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 H 263.30 and 263.31. (d) Limited exceptions from generator, transporter, and related manifest requirements. A State applying for interim authorization for Phase I which meets all the requirements for such interim authorization except that it does not have statutory or regulatory authority for the manifest system or other generator or transporter requirements discussed in paragraphs (b) and (c) of this section may be granted 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 § 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 I. If such application is made, it shall be made as part of 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 Fedefal Government. The universe of wastes for which these Federal requirements apply shall be the universe of wastes controlled by the State under paragraph (a) of this section. (e) Requirements for hazardous waste treatment, storage, and disposal facilities. States must have standards applicable to HVtTM facilities which are substantially equivalent to 40 CFR Part 285. 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 monitoring; (4) Security to prevent unknowing and unauthorized access to the facility: (5) Facility personn l training; [ 6) Inspection, monitoring, recordkeeping, and reporting; (7) Compliance with the manifest system including the requirement that the facility owner or operator or the State in which the facility is located must return a copy of the manifest to the generator or to the State in which the generator is located indicating delivery of the waste shipment; and (8) Other facility standards to the extent that they are included in 40 CFR Part 265, except that Subpart R (standards for injection wells) may be included in the State standards at the State’s option. (f) Requirements for enforcement authority. (1) Any State agency administering a program under this Subpart shall have the following authority to remedy violations of State program requirements: (i) Authority to restrain immediately by order-or by suit in State court any person from engaging In any unauthorized activity which is endangering or causing damage to public health or the environment; (ii) To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including, where appropriate, permit conditions, without the necessity of a prior revocation of the permit and (iii) For any program violation, to assess or sue to recover in court civil penalties in at least the amount of $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 civilor administrative action to obtain remedies specified in paragraph (f)(i) of this section by any citizen having an interest which Is or may be adversely affected; or (II) 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) of this section; (B) Not oppose intervention by any citizen where permissive intervention may be authorized by statute, rule, or regulation; and ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33483 (C) Publish and provide at least 30 lays for public comment on any roposed settlement of a State . nforcement action. (g) Requirementsfor compliance evaluation programs. (1) A State program under this Subpart shall have procedures for receipt, evaluation, recordkeeping, and investigation for possible enforcement of all required notices and reports. (2) A State program shall have Independent Inspection 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 have failed to comply with program requirements; (ii) A program for periodic inspections of the activities subject to regulation; (iii) The capability to Investigate evidence of violations of applicable program and permit requirements; and (iv) Procedures for receiving and ensuring proper consideration of information submitted by the public about violations. Public effort in reporting violations shall be encouraged, and the State Director shall make available Information on reporting procedures. (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 State program. States whose law requires a search warrant 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. § 123.129 AdditIonal program requirements for Interim authorization for Phase ii. In addition to the requirements of § 123.128, the following requirements are applicable to States applying for interim authorization for Phase II. (a) State programs must have itandards applicable to hazardous waste management facilities that provide substantially the same degree of uman health and environmental rotection as the standards promulgated Inder 40 CFR Parts 264 and 260. (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 permits issued by the State under this section shall require compliance with the standards adopted by the State in accordance with paragraph (a) of this section. (d) State programs shall have requirements for permitting which are substantially equivalent to the provisions listed in § § 123.7(a) and (b). (e) No permit may be issued by a State with interim authorization for Phase II 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 treated, stored, or disposed of in accordance with the law applicable in the State into which It has been transported. (c) In all cases of interstate movement of hazardous waste, as defined by 40 CFR Part 261, generators and transporters must meet DOT requirements in 49 CFR Parts 172.173, 178, and 179 (e.g., for shipping paper, packaging, labeling, marking, and placarding). § 123.131 Progress reposts. The State Director shall submit a semi-annual progress report to the EPA Regional Administrator within 4 weeks of the date B months after Phase I commences, and at 6-month Intervals thereafter until the expiration of interim authorization. The reports shall briefly - summarize, In a manner and form prescribed by the Regional Administrator, the State’s compliance In meeting the requirements of the authorization plan, the reasons and proposed remedies for any delay in meeting milestones, and the anticipated problems and solutions for the next reporting period. § 123.132 SharIng of information. (a) Any information obtained or used In the administration of a State program shall be available to EPA upon request without restriction. If the information has been submitted to the State under a claim of confidentiality, the State must submit that claim to EPA when providing information under this Subpart. Any information obtained from a State and subject to a claim of confidentiality will be treated in accordance with the regulations in 40 CFR Part 2. If EPA obtains from a State information that Is not claimed to be confidential. EPA may make that information available to the public without further notice. (b) EPA shall furnish to States with approved programs the information in its files not submitted under a claim of confidentiality which the State needs in order to implement its approved program. EPA shall furnish to States with approved programs information submitted to EPA under a claim of confidentiality, which the State needs in order to implement its approved program, subject to the conditions in 40 CFR Part 2. § 123.133 CoordInation with other programs. (a) Issuance of State permits under this Part may be coordinated, as provided In Part 124. wIth Issuance of NPDES, 404, and UIC permits whether they are controlled by the State, EPA, or the Corps of Engineers. (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 4005(b) of RCRA (40 CFR Part 255) as responsible for the development and implementation of ------- 33484 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 (40 CFR Part 256). § 123.134 EPA review of State permits. (a) The Regional Administrator may comment on perm t.applications and draft permits as provided In the Memorandum of Agreement under § 123.128. (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 FR Part 22 in the case of a violation of a State program requirement. In exercising these authorities, EPA will observe the following conditions: (1) The Regional Administrator may take action under section 3008(a)(3) of RCRA against a holder of a State-issued permit at any time on the ground that the permittee Is not complying with a condition of that permit. (2) The Regional Administrator may take action under section 3008(a)(3) of RCRA against a holder of a State-issued permit at any time on the ground that the permittee is not complying with a condition that the Regional Administrator in commenting on the permit application or draft permit stated was necessary to implement approved State program requirements, whether or not that condition was included in the final permit. (3) The Regional Administrator may not take action under section 3008(a)(3) of RCRA against a holder of a State- Issued permit on the ground that the permittee is not complying with a condition necessary to implement approved State program requirements unless the Regional Administrator stated in commenting on the permit application or draft permit that 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 Regional 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 submission; 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)(1) of this section, the Administrator shall make a final determination whether or not to approve the State’s program taking into account any comments submitted. The Administrator will give notice of this final determination in the Federal Register and in accordance with § 123.39(a)(1). The notification shall include a concise statement of the reasons for this determination, and a response to significant comments received. (c) Where a State has received interim authorization for Phase I 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. § 123.130 Withdrawal of-State 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 State 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 programs. (a) A State program approved for interim authorization for Phase I shall terminate on the last ddy of the 6th month after the effective date of Phase II and EPA shall administer and enforce the Federal program in the State commencing on that date if the State has failed to submit by that date an amended submission pursuant to - § 123.122(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 State if the Regional Administrator determines pursuant to § 123.135(c) that a program submission amended pursuant to § 123.122(c)(4) does not meet the requirements of the Federal program. PART 124—PROCEDURES FOR DECISIONMAKING Subpart A—General Program Requirements Sec. 124.1 Purpose and scope. 124.2 Definitions. 124.8 Applicajion for a permit. 124.4 Consolidation of permit processing. 124.5 Modification, revocation and reissuance, or termination of permits. 124.8 Draft permit. 124.7 Statement of basis. 1248 Fact sheet. 124.9 Administrative record for draft permits when EPA is the permitting authority. 124.10 Public notice of permit actions and public comment period. 124.11 Public comments and requests for public hearings. 124.12 Public hearings. 124.13 Obhgafton to raise issues and provide Information during the public comment period. — 124.14 Reopening of the public comment period. 124.15 Issuance and effective date of permit. 124.18 Stays of contested peiinit conditions. 124.17 Response to comments. 124.18 AdministratIve record for final permit when EPA is the permitting authority. 124.19 Appeal of RCRA. UIC and PSD permits. 124.20 Computation of time. 124.21 Effective date of Part 124. Subpart B—Specific Procedures Applicable to RCRA Permits Ireserved] Subpart C—Specific Procedures AppNcable to P50 Permits 124.41 Definitions applicable to PSD permits. 124.42 Additional procedures for P 50 permits affecting Class I areas. Subpart D—Speclflc Procedures Applicable to NPDES Permits 124.51 Purpose and scope. 124.52 Permits required on a case-by-case basis. ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33485 4.53 State certification. 4.54 Special provisions for State certification and concurrence on applications for section 301(h) variances. 124.55 Effect of State certification 124.50 Fact sheets. 124.57 Public notice. 124.58 Special procedures for EPA-issued general permits for point sources other than separate storm sewers. 12459 Conditions requested by the Corps of Engineers and other government agencies. 124.60 Issuance and effective date and slays of NPDES permits. 124.61 Final environmental impact statement. 124.62 Degision 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). 124.68 Special procedures for decisions on thermal variances under section 316(a). Subpart E—Evldenttary Hearing for EPA- Issued NPDES Permits and EPA-Terminated RCRA Permits 12471 Applicability. 124.72 Definitions. 12473 Filing and submission of documents. 124.74 Requests for evidentiary hearing. 124.75 Decision on request for a hearing. 124.70 Obligation to submit evidence and raise issues before a final permit is issued. 24.77 Notice of hearing. .24.78 Exparte communications. 24,79 Additional parties and issues. 124.80 Filing and service. 12481 Assignment of Administrative Law Judge. 124.82 ConsolidatIon and severance. 124.83 Prehearing conferences. 124.84 Summary determination. 124.85 Hearing procedure. 124.88 Motions. 124.87 Record of hearings. 124.88 Proposed findings of fact and conclusions: brief. 124.89 Decisions. 12490 Interlocutory appeal. 124.91 Appeal to the Administrator. Subpart F—Non-Adversary Panel Procedures 124.111 Applicability. 124.112 Relation to other Subparts. 124 113 Public notice of draft permits and public comment period. 124.114 Request for hearing. 124.115 Effect of denial of.or absence of request for hearing. 124.116 Notice of hearing. 124.117 Request to participate in hearing. 124.118 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. 124.120 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 Decisionmaking under Part 124. • Authority Resource Conservation and Recovery Act. 42 U.S.C. § 0901 et seq: Safe Drinking Water Act, 42 U.S.C. § 300(fl et seq; Clean Water Act, 33 U.S.C. § 1251 et 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 procedures for issuing, modifying, revoking and reissuing, or terminating all RCRA, UIC, PSD and NPDES “permits” other than RCRA and UIC “emergency permits” (see H 122.27 and 122.40) and RCRA “permits by rule” ( 122.26). The latter kinds of permits are governed by Subpart A of Part 122. RCRA interim status and UIO authorization by rule are not “permits” and are covered 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 F supplement these general provisions with requirements that apply to only one or more of the programs. Subpart A describes the steps EPA will follow in receiving permit applications, preparing draft permits, issuing public notice, inviting public comment and holding public hearings on draft permits. Subpart A also covers assembling an administrative record, responding to comments, issuing a final permit decision, and allowing for administrative appeal of the final permit decision. Subpart B is reserved for specific procedural requirements for RCRA permits. There are none of these at present but they may be added in the future. Subpart C contains definitions and specific procedural requirements for PSD permits. Subpart D applies to NPDES permits until an evidentiary hearing begins, when Subpart E procedures take over for EPA-issued NPDES permits and EPA-terminated RCRA permits. Subpart F, which Is based on the “initial licensing” provisions of the Administrative 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. Hearings Available Under This Part . Programs — Subparl (A) (E) (F) Public heanng Evudentiary hearing Panel hearing AcRA On draft permit, at Director’s discretion or on ro• 1 (1) Pernui termination (RCRA section 3008) (1) At RA’s discretion in lIeu of public hearing quest ( 124.12). (2) With NPDES evidentiary hearing (I 124.74(b)(2)) (54 124 12 and 124 I I1(a)(3)) (2) When cons9hdated with NPDE$ draft pernl,t processed under Subpart F (1124 11 1(aXlfti ) uic -. . On draft penmt, at Director’s discretion or en re’ With NPDES evrdentiary hewing (5124 74(b)(2)) . (I) At RA’s discretion in lieu of public hearing guest (112412) (5412412 and 124 i11(a)(3)) (2) When consolidated with NPDES draft permit processed under Subpart F (5124 II 1(e)(I)(i) PSO On draft permit, at Director’s discretion or on re. Not available (512471(c)) When consolidated with NPDES draft permit proc- quest (f 124 12) eased under Subpart F it RA determines that CAA one year deadline wilt not be violated NPDES (other elan general permit) On draft permit, at Director’s discretion or on io. (1) On request to challenge any permit coiidutionor (1) At RA’s discretion when Crst decaiOn on permit quest (1124 12) variance (112474) or vanance request (5124 I II) (2) At RA’s discretion for any 301(11) request (2) At RA’s discretion when request br evidentialy (5 124 64(b)). hearIng is granted under 5124 75(a)(2) ( Ii 124 74(c)(8) and 124 111(s)(2)) (3) At RA’s discretion br any 301 5i ) request ( 112464(b)) DES (general permit) On draft permit, at Directors discretion or on re- Not available (1124 llfta) . . . - .. At RA’s discretion in t ,eu 01 public Ileanrig quest (112412) (1124 111(a)(3)) . On drelt perndt or on application when no draft Not available (112471) Not available (1124 lii) permit, at Director’s dacretion or on request 812412) - ------- 33486 Federal Register / 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 under two or more of the listed programs to be processed separately or together at the choice of the Regional Administrator. This allows EPA to combine the processing of permits only when appropriate, and not necessarily in all cases. The Regional Administrator may consolidate permit processing when the permit applications are submitted, when draft permits are prepared, or when final permit decisions are issued. This Part also allows consolidated permits to be subject to a single public hearing under § 124.12, a single evidentiary hearing under § 124.75, or a single non- adversary panel hearing under § 124.120. Permit applicants may recommend whether or not their applications should be consolidated in any given case. (e) Certain procedural requirements set forth in Part 124 must be adopted by States in order to gain EPA approval to operate RCRA, UIC, NPDES, and 404 permit programs. These requirements - are listed in § 123.7 and signaled by the following words at the end of the appropriate Part 124 section or paragraph heading (applicable to State programs, see § 223.2). Part 124 does not apply to PSD permits issued by an approved State. (1) To coordinate decisioninaking when different permits will be issued by EPA and approved State programs, this Part allows applications to be jointly processed, joint comment periods and hearings to be held, and final permits to be issued on a cooperative basis whenever EPA and a State agree to take such steps in general or in individual cases. These joint processing agreements may be provided in the Memorandum of Agreement developed under § 123.6. § 124.2 Definitions. (a) The definitions in Part 122 apply to this Part except for PSD perrnltã 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 Administrafor and is used when the accompanying provision Is required of EPA administered programs and of State programs under § 123.7. The term “Regional Administrator” is used when the accompanying provision applies exclusively to EPA-issued permits and is tot applicable to State programs under § 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 Subpart F but does not mean a public hearing conducted under § 124.12. § 124.3 ApplicatIon for a permit. (a) (Applicable to State programs, see § 123.7). (1) Any person who requires a permit under the RCRA, UIC, NPDES, or PSD programs shall complete, sign, and submit to the Director an application for each permit required under § § 122.21 (RCRA), 122.31 (UIC), 40 CFR 52.21 (PSD), and 122.51 (NPDES). Applications are not required for RCRA permits by rule ( 122.26), underground injections authorized by rule ( 122.37), NPDES general permits ( 122.59) and 404 general permits ( 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 § § 122.4, 122.22 (RCRA] 122.38 (UIC), 40 CFR 52.21 (PSI)), 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 PSD permit issued to a facility or activity which 40 CFR § 52.21(k) exempts from the requirements of § 52.21 (I), (n), and (p), no proceedings under this Part shall be held to the extent that the Regional Administrator determines that proceedings providing the public with at least as much participation as this Part in the material determinations involved have already been held in the process of granting construction approval under the applicable State implementation plan. The Regional Administrator 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 § 124.8 and follow the applicable procedures under this Part the extent he or she is unable to make finding under this subparagraph. (c) The Regional Administrator shal, review for completeness every -application for an EPA-Issued permit. Each application for an EPA-issued permit submitted by a new HWM facility, a new UIC injection well, a major PSD stationary source or major PSD modification, or an NPDES new source or NPDES new discharger should be reviewed for completeness by the Regional Administrator within 30 days of its receipt. Each application for an EPA-issued permit submitted by an existing HWM facility (both Parts A and B of the application), existing injection well or existing NPDES source should be reviewed for completeness within 60 days of receipt. Upon completing the review, the Regional Administrator shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Regional Administrator shall list the information necessary to make the application complete. When the application is for an existing HWM facility, an existing UIC injection well or an existing NPDES source, the Regional Administrator shall specify in the notice of deficiency a date for submitting the necessary information. The Regional Administratr 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 RCR.A section 3008, SDWA sections 1423 and 1424, CAA section 167, and CWA sections.308, 309, 402(h), and 402(k). (e) If the Regional Administrator decides that a site visit is necessary for any reason in conjunction with the processing of an application, he or she shall notify the applicant and a date shall be scheduled. ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33487 (f) The effective date of an application the date on which the Regional Idministrator notifies the applicant that the application is complete as provided in paragraph (c) of this section. (g) For each application from a major new HWM facility, major new UIC injection well, major NPDES new source, or major NPDES new discharger, the Regional Administrator shall, no later than the effective date of the application, prepare and mail to the applicant a project decision schedule. (This paragraph does not apply to PSD permits,) The schedule shall specify target dates by which the Regional Administrator intends to: (1) Prepare a draft permit; (2) Give public notice; (3) Complete the public comment perIod, Including any public hearing; (4) Issue a final permit; and (5) In the case of an NPDES permit, complete any formal proceedings under Subparts E or F. 124.4 ConsolIdation of permit processing. (a)(l) Whenever a facility or activity requires a permit under more than one statute covered by these regulations. • processing of two or more applications r those permits may be consolidated. ‘he first step in consolidation is to repare each draft permit at the same me. (2) Whenever draft permits are prepared at the same time, the statements of basis (required under § 124.7 for EPA-issued permits only) or fact sheets ( 124.8), administrative records (required under § 124.9 for EPA- issued permits only), public comment periods ( 124.10), and any public hearings ( 124.12) on those permits should also be consolidated. The final permits may be issued together. They need not be issued together if in the judgment of the Regional Administrator or State 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 (&) or (b) of this ction may be consolidated as follows: (1) The Director may consolidate ermit processing at his or her iscretlon whenever a facility or activity requires all permits either from EPA or from an approved State. (2) The Regional Administrator and the State Director(s) may agree to consolidate draft permits whenever a facility or activity requires permits from both EPA and an approved State. (3) Permit applicants may recommend whether or not the processing of their applications should be consolidated. (d) Whenever permit processing is consolidated and the Regional Administrator invokes the “initial licensing” provisions of Subpart F for an NPDES. RCRA, or UIC permit, any permit(s) with which that NPDES, RCRA 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 § 124.3(1). § 124.5 Modification, revocation and reissuance, or termination of permits. (a) (Applicable to State programs, see § 123.2). 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 § § 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 maybe informally appealed to the Administrator by a letter briefly setting forth the relevant facts. The Administrator may direct thi 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 modiflcation evocation and reissuance, or termination, (c) (Applicable to State programs, see § 123.7). (1) If the Director tentatively decides to modify or revoke and reissue a permit under § 122.15, he or she shall prepare a draft permit un 1 der § 124.6 incorporating the proposed changes. The Director may request additional information and, in the case of a modified permit, ncay require the submission of an updated permit application. In the case of revoked and reissued permits, the Director shall require the submission of a new application. (2) In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit Is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued. (3) “Minor modifications” as defined in § 122.17 are not subject to the requirements of this section. (d) (Applicable to State programs, see § 123.7). If the Director tentatively decides to terminate a permit under § 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 § 124.0. In the case of EPA-issued permits, a notice of intent to terminate shall not be issued if the Regional Administrator and the permittee agree to termination in the course of transferring permit responsibility to an approved State under § 123.6(b)(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. (1) (Applicable to State progroms. see § 123.7). Any request by the permittee for modification to an existing 404 permit (other than a request for a minor modification as defined in § 122.17) shall be treated as a permit application and shall be processed in accordance with all requirements of § 124.3. (g)(1) [ Reserved for PSD Modification Provisions] (2) PSD permits may be terminated only by rescission under § 52.21(w) or by automatic expiration under § 52.21(s). Applications for rescission shall be - ------- 33488 Federal Register / Vol. 45, No. 98 / Monday, May19, 1980 I Rules and Regulations processed under § 52.21(w) and are not subject to this Part. § 124.6 Draft permits. (a) (Applicable to State programs, see § 123.1). Once an application is complete, the Director shall tentatively decide whether to prepare a draft permit (except in the case of State section 404 permits for which no draft permit is required under § 123.1 O0) 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 § 124.6(e). If the Director’s final decision ( 124.15) is that the tentative decision to deny the permit application was Incorrect, he or she shall withdraw the notice of intent to deny and proceed to prepare a draft permit under paragraph (d) of this section. (c) (Applicable to State programs, see § 123.7). If the Director tentatively decides to issue an NPDES or 404 general permit, he or she ,shall prepare a draft general permit under paragraph (d) of this section. (d) (Applicable to State programs, see § 123.7). If the Director decides to prepare a draft permit, he or she shall prepare a draft permit that contains the following information: (1) All conditions under § 122.7 and 122.6 (except for PSD permits); (2) All compliance schedules under § 122.10 (except for PSD permits); (3) All monitoring requirements under § 122.11 (except for PSD permits); and (4) For: (i) RCRA permits, standards for treatment, storage, and/or disposal and other permit conditions under § 122.28; (ii) VIC permits, permit conditions under § 122.42; (iii) PSD permits, permit conditions under 40 CFR § 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 122.61, including when applicable any conditions certified by a State agency under § 124.55, and alt variances that are to be included under § 124.63. (e) (Applicable to State programs, see § 223.2). All draft permits prepared by EPA under this section shall be accompanied by a statement of basis ( 124.7) or fact sheet ( 124.8), and shall be based on the administrative record ( 124.9), publicly noticed ( 124.10) and made available for public comment ( 124.11). The Regional Administrator shall give notice of opportunity for a public hearing ( 124.12), issue a final decision ( 124.15) and respond to comments ( 124.17). For RCRA, UIC or PSD permits, an appeal may be taken under § 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 basis. EPA shall prepare a statement of basis for every draft permit for which a fact sheet under § 124.8 Is i ot prepared. The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis shall be sent to the applicant and, on request, to any other person. § 124.8 Fact sheet. (Applicable to State programs, see §123.7.) (a) A fact sheet shall be prepared for every draft permit for a major HWM, UIC, 404, or NPDES facility or activity, for every 404 and NPDES general permit ( 123.95 and 122.59), for every NPDES draft permit that incorporates a variance or requires an explanation under § 124.56(b), and for every draft permit which the Director finds is the subject of wide8pread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Director shall send this fact sheet to the applicant and, on request, to any other person. (b) The fact sheet shall include, when applicable: (1) A brief description of the type of facility or activity which is the ‘subject of the draft permit; (2) The type and quantity of wastes, fluids, or pollutants which are proposed to be or are being treated, stored, disposed of, Injected, emitted, or discharged. (3) For a PSD permit, the degree of Increment consumption expected to result from operation of the facility or activity. (4) A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record required by § 124.9 (for EPA-issued permits); (5) Reasons why any requested variances or alternatives to required standards do or do not appear justified; (6) A description of the procedures foi reaching a final decision on the draft permit including: (I) The beginning and ending dates of the comment period under § 124.10 and the address where comments will be received; (ii) Procedures for requesting a hearing and the nature of that hearing; and (III) Any other procedures by which the public may participate in the final decision. (7) Name and telephone number of a person to contact for additional information. .(8) For NPDES permits, provisions satisfying the requirements of § 124.56. § 124.9 AdmInistrative record for draft permits when EPA is the permitting authority. (a) The provisions of a draft permit prepared by EPA under § 124.0 shall be based on the administrative record defined In this section. (b) For preparing a draft permit under § 124.6, the record shall consist of: (1) The application, if required, and any supporting data furnished by the applicant; (2) The draft permit or notice of intent to deny the application or to terminate the permit; (3) The statement of basis (* 124.7) or fact sheet (* 124.8); (4) All documents cited in the statement of basis or fact sheet: and (5) Other documents contained in the supporting file for the draft permit (6) For NPDES new source draft permits only, any environmental assessment, environmental Impact statement (EIS), finding of no significant impact, or environmental information document and any supplement to an ElS 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 is included in the administrative record under paragraphs (b) and (c) of this section, need not be physically included with the rest of the Iecord as long as it is specifically referred to In the Statement of basis or the fact sheet. (d) Thie section applies to all draft permits when nublic notice was aiven ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33489 ter the effective date of these gulations. 124.10 Public notice of permit actions and public comment period. (a) Scope. (1) The Director shall give public notice that the following actions have occurred: (iJ A permit application has been tentatively denied under § 124.8(b); (ii) (Applicable to State programs, see § 123.7). A draft permit has been prepared under § 124.6(d): (iii) (Applicable to State programs. see § 123.7). A hearing has been scheduled under § 124.12, Subpart E, or Subpart F; (iv) An appeal has been granted under § 124.19(c); (v) (Applicable to State programs, see § 123.7). A State section 404 appli ation 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 § 122.66. (2) No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under § 124.5(b). Written notice of’ that denial shall be iven to the requester and to the ermittee. (3) Public notices may describe more han one permit or permit action. (b) Timing (applicable to State programs. see § 123.7). (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 hearing shall be given at least 30 days before the hearing. (Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined.) (c) Methods (applicable to State programs, see § 123.7). 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 entitled to receive notice under this ragraph may waive his or her rights to eive notice for any classes and tegories of permits): (i) The applicant (except for NPDES and 404 general permits when there is no applicant); (ii) Any other agency which the Director knows has issued or is required to issue a RCRA, UIC, PSD, NPDES or 404 permit for the same facility or activity (including EPA when the draft permit is prepared by the State); (iii) Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, and other appropriate government authorities, including any affected States; (iv) For NPDES and 404 permits only, any State agency responsible for plan development under CWA section 208(b)(2), 208(b) ) or 303(e) and the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service: (v) For NPDES permits only, any user identified in the permit application of a privately owned treatment works; (vi) For 404 permits only, any reasonably ascertainable owner of property adjacent to the regulated facility or activity and the Regional Director of the Federal Aviation Administration if the discharge involves the construction of structures which may affect aircraft opera Lions 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 journals. (The Director may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Director may delete from the list the name of any person who fails to respond to such a request.) (2) For major permits and NPDES and 404 general permits, publication of a notice in a daily or weekly newspaper within the area affected by the facility or activity; and for EPA-issued NPDES general permits, in the Federal Register: (Note—The Director 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.] (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 oLher forum or medium to elicit public participation. (d) Contents (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 for which notice is being given; (ii) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of NPDES and 404 draft general permits under H 122.59 and 123.95; (iii) A brief description of the business conducted at the facility or activity described in the permit application or the draft permit, for NPDES or 404 general permits when there is no application. (iv) Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, as the case may be, statement of basis or fact sheet, and the application; and (v) A brief description of the comment procedures required by § 124.11 and 124.12 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision. (vi) For EPA-issued permits, the location of the administrative record required by § 124.9, the times at which the record will be open for public inspection, and a statement that all data submitted by the applicant is available as part of the administrative record. (vii) For NPDES permits only, a general description of the location of each existing or proposed discharge point and the name of the receiving water. For draft general permits, this requirement will be satisfied by a map ------- 33490 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations or description of the permit area. For EPA-issued NPDES permits only, if the aischarge 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 proposed, 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 anLicipated environmental effects of activities conducted under the permit; (13) 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, time, and place of the hearing; (iii) A brief description of the nature and purpose of the hearing, including the applicable rules and procedures; and (iv) For 404 permits only, a summary of major issues raised to date during the public comment period. (e) (Applicable to State programs, see § 123.7). In addition to the general public notice described in paragraph (d)(1) of this section. all persons identified in paragraphs (c)(1) (i), (ii), (lii), and (iv) of this section shall be mailed a copy of the fact sheet or statement of basis (for EPA-issued permits), the permit application (if any) and the draft permit (if any). § 124.11 PublIc comments and requests for public hearings. (Applicable to State programs, see § 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 § 123.100) and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final decision and shall be answered as provided in § 124.17. § 124.12 Public hearings. (a) (Applicable to State pro jrams, see § 123.7.) 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(i). 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 § 124.10. (b) Whenever a public hearing will be held and EPA is the permitting authority, the Regional Administrator shall designate a Presiding Officer for the hearing who shall be responsible for its scheduling and orderly conduct. (c) Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under § 124.10 shall automatically be extended to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing. (d) A tape recording or written transcript of the hearing shall be made available to the public. (e) At his or her discretion, the Regional Administrator may specify that RCRA and IJIC permits be processed under the procedures in Subpart F. 9124.13 OblIgation to raise issues and provide information during the public comment period. All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Director’s tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, must raise all reasonably ascertainable issues and submit all reasonably available arguments and factual grounds supporting their position, including all supporting material, by the close of the public comment period (including any public hearing) under § 124.10. All supporting materials shall be included full and may not be incorporated by reference, unless they are already part of the administrative record in the sam_ proceeding, or consist of State or Federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials. Commenters shall make supporting material not already included in the administrative record available to EPA as directed by the Regional Administrator. (A comment period longer than 30 days will often be necessary in complicated proceedings to give commenters a 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 § 124.6; (2) Prepare a revised statement of basis under § 124.7, a fact sheet or revised fact sheet under § 124.8 and reopen the comment period under § 124.14; or (3) Reopen or extend the comment period under § 124.10 to give interested persons an opportunity to comment on the information or arguments submitted. (b) Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice under § 124.10 shall define the scope of the reopening. (c) For RCRA, UIC, or NPDES permits, the Regional Administrator may also, in 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 shall be issued under § 124.10. 9124.15 issuance and effective date of permit. (a) After the close of the public comment period under § 124.10 on a draft permit, the Regional Administratc shall issue a final permit decision. The Regional Administrator shall notify th applicant and each person who has ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33491 nitted written comments or ested notice of the final permit sian. This notice shall include reference to the procedures for appealing a decision on a RcRA, UIC, or PSD permit or for contesting a decision on an NPDES permit or a decision to terminate a RCRA permit. For the purposes of this section, a final permit decision means a final decision to issue. deny, modify, revoke and reissue, or terminate a permit. (b) A final permit decision shall become effective 30 days after the service of notice of the decision under paragraph (a) of this section, unless: (1) A later effective date is specified in the decision; or (2) Review is requested under § 124.19 (RCRA, IJIC, 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 in mediately upon issuance. § 124.16 Stays of contested permits conditions. (a) Stays. (1) If a request for review of a RCRA or UIC permit under § 124.19 or 1PDES permit under § 124.74 or 4.114 is granted or if conditions of a A or UIC permit are consolidated tar reconsideration in an evidentiary hearing on an NPDES permit under § § 124.74, 124.82 or 124.114, the effect of the contested permit conditions shall be stayed and shall not be subject to judicial review pending final agency action. (No stay of a PSD permit is available under this section.) If the permit involves a new facility or new injection well, new source, new discharger or a recommencing discharger, the applicant shall be without a permit for the proposed new facility, injection well, source or discharger pending final agency action. See also § 124.60. (2) iJncoptested conditiohs which are not severable from those contested shall be stayed together with the contested conditions. Stayed provisions of permits for existing facilities, injection wells. and sources shall be identified by the Regional Administrator. All other provisions of the permit for the existing facility, injection well, or source shall remain fully effective and enforceable. (b) Stays based on cross effects. (1) A stay may be granted based on the grounds that an appeal to the - iinistrator under § 124.19 of one it may result in changes to another -issued permit only when each of Jermits 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 relssuance proceeding under § 124.5; and (2) To the extent conditions of any new permit are stayed umier 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). At the time that any final permit decision is issued under § 124.15. the Director shall issue a response to comments. States are only required to issue a response to comments when a final permit is Issued. This response shall: (1) Specify wjiich provisions, if any, of the draft permf0liave been changed in the final permit decision, and the reasons for the change; and (2) Briefly describe and respond to all significant comments on the draft permit or the permit application (for section 404 permits only) raised during the public comment period, or-during any hearing. (b) For EPA-issued permits, any documents cited in the response-to comments shall be included in the administrative record for the final permit decision as defined in § 124.18. If new points are raised or new material supplied during the public comment period, EPA may document its response to those matters by adding new materials to the administrative record. (c) (Applicable to State programs, see § 123.7). The response to comments shall be available to the public. § 124.18 Administrative record for final permit when EPA Is the permitting authority. (a) The Regional Administrator shall base final permit decisions under § 124.15 on the administrative record defined in this section. (b) The administrative record for any final permit shall consist of the administrative record for the draft permit and: (1) All comments received during the public comment period provided under § 124.10 (including any extension or reopening under § 124.14): (2) The tape or transcript of any hearing(s) held under § 124.12; (3) Any written materials submitted at such a hearing; (4) The response to comments required by § 124.17 and any new material placed in the record under that section: (5) For NPDES new source permits only, any final environmental impact statement and any supplement to the final E IS: (6) 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 andto all NPDES permits when the draft permit was included in a public notice after October 12, 1979. (e) Material readily available at the, issuing Regional Office, or published materials which are generally available and which are included in the administrative record under the 8tandards 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. § 124.19 Appeai of RCRA, (MC, and PSD 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 the public hearing may petition the Administrator to review any condition of the permit deôision. Any person who failed to file comments or failed to participate in the public hearing on the draft permit may petition for administrative review only to the extent of the changes from the draft to the final permit decision. The 30-day period within which a person may request review under this section begins with the service of notice of the Regional Administrator’s action unless a later date is specified in that notice. The petition shall include a statement of the reasons supporting that review, including a demonstration that any ------- 33492 Federa1 Register I VoL 45, No. 98 I Monday, Mny 19, 1980/Rules and. Regulations issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations and when appropriate, a 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 importan t policy consideration which the Administrator should, in his or her discretion, review. (b) The Administrator may also decide on his or her initiative t, review any condition of any RCRA, UIC , or PSD permit is ued 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 petition for revie , 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.Admlnistrator under paragraph (a) or (b) bfThis section shall be given as provided in §124.10. Public notice shall set forth a briefing schedule for the appeal and shall state that any interested person may file an amicus brief. Notice of denial 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 orUIC appeals; (2) The NPDES permit is likely to be appeale l; and (3) Eithec (1) The interests of both the facility or activity and the public are not likely to be materially adversely affected by the deferral: or (ii) Any adverse effect is outweighed by the benefits likely to result from a - consolidated decision on appeal. (e) A petition to the Administrator under paragraph (a) of this section is, under 5 U.S.C. § 704. a prerequisite to the seeking of judicial review of the final agency action. (f)(i) For purposes of judicial review under the appropriate Act, final agency action occurs when a final RCRA. UIC, or PSD permit is issued or denied by EPA and agency review procedures are exhausted. A final permit decision shall be issued by the Regional Administrator: (i) When the Administrator Issues notice to the parties that review has been denied: (ii) when the Administrator issues a decision on the merits of the appeal and the decision does not include a remand of the proceedings; or (iii) upon the completion of remand proceedings if the proceedings are remanded, unless the Administrator’s remand order specifically provides that appeal of thc 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. § 124.20 Computation of time. (a) Any time period scheduled to begin on the occurrence of an act or event shall begin on the day after the act or event. (b) Any time period scheduled to begm 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 prescribed time. § 124.21 EffectIve date of Part 124. (a) Except for paragraphs (b) and (c) of this section, Part 124 will become effective July 18,4080. Because this effective date will precede the processing of any RCRA or UIC permits, Part 124 will apply in its entirely to all RCRA end UIC permits. (b) AU provisions of Part 124 pertaining to the R RA program will become effective on November 19, 1980. (c) All provisions of Part 124 pertaining to the UIC program will become effective July 18,1980, but shall not be implemented until the effective date of 40 CFR Part 146. (d) This Part does not significantly change the way in which NPDES permits. are processed. Since October 12, 1079, NPDES permits have been the subject to almost identical requirements in the revised NPDES regulations which were promulgated on June 7, 1979. See 44 FR 32948. To the extent this Part changes the revised NPDES permit regulations, those changes will take effect as to all permit proceedings in progress on July 3, 1980. - (e) This Part also does not significantly change the way in which PSD permits are processed. For the most part, these regulations will also apply to PSD proceedings in progress on July 1 - 1980. However, becauselt would be disruptive to require retroactively a formal administrative record for PSD permits issued without one, H 124.9 and 124.18 will apply to PSI) permits for which draft permits were prepared after the effective date of these regulations. Subpart B—Specific Procedures Applicable to RCRA Permits [ Reserved] Subpart C—Specific Procedures Applicable to PSD Permits § 124.41 DefinitIons appilcabie to PSD permits. Whenever PSD permits are processed under this Part, the following terms shall have the following meanings: “Administrator,” “EPA,” and ‘Regional Administrator” shall have the meanings set forth in § 122.3. except when EPA has delegated authority to administer those regulations to another agency under the applicable subsection of 40 CFR § 52.21, the term “EPA” shall mean the delegate agency and the term “Regional Administrator” shall mean the chief administrative officer of the delegate agency. “Application” means an application for a PSI) permit. “Appropriate Act and Regulations” means the Clean Air Act and applicab 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 § 124.4 means the person(s) responsible for issuing PSI) permits under an approved program, or that person’s delegated representative. “Construction” has the meaning given in 40 CFR § 52.21. “Director” means the Regional Administrator. “Draft permit” shall have the meaning set forth in § 122.3. “Facility or activity” means a “malor PSI) stationary source” or “major PSI) modification.” “Federal Land Manager” has the meaning given in 40 CFR § 52.21. “Indian Governing Body” has the meaning given in 40 CFR § 52.21, “Major PSD modification” means a “major modification” as defined in 40 CFR § 52.21. “Major PSD stationary source” means a “major stationary source” as de0ne in 40 CFR § 52.21(b)(1J. “Owner or operator” means the ow or operator of any facility or activity ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33493 bject to regulation under 40 CFR i2.21 or by an approved State. ‘Permit” or ‘PSD permit” means a permit issued under 40 CFR § 52.21 or by an approved State. ‘Person” includes 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 Commonwealth of the Northern Mariana ‘slands. 1 24.42 AdditIonal procedures for PSO brmits affecting Class I areas. (a) The Regional Administrator shall provide notice of any permit application for a proposed major PSD 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 § 52.21(q)(3), and any variances sought by an owner or operator under § 52.21(q)(4) shall be requested in writing, together with any necessary supporting analysis, by the end of the public comment period under § § 124.10 or 124.118. (40 CFR § 52.21(q)(3) provides for denial of a PSD 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 § 52.21(q)(4) conversely authorizes EPA, with the ncurrence of the Federal Land anager and State responsible. to grant rtain variances from the otherwise - plicable emission limitations to a facility or activity whose emissions would affect a Class I area.) (c) Variances authorized by 40 CFR § 52.21(q)(5J through (q)(7) shall be handled as specified in those subparagraphs and shall not be subject to this Part. Upon receiving appropriate documentation of a variance properly granted under any of these provisions, the Regional Administrator shall enter the variance in the administrative record. Any decisions later made in proceedings under this Part concerning that permit shall be consistent with the conditions of that variance. Subpart D—Specific Procedures Applicable to NPDES Permits § 124.51 Purpose and scope. (a) This Subpart sets forth additional requirements and procedures for decisionmaking for the NPDES program. (b) Decisions on NPDES variance requests’ordinarily will be made during the permit issuance process. Variances and other changes in permit conditions ordinarily will be decided through the same notice-and-comment and hearing procedures as the basic permit. § 124.52 PermIts required on a case-by- case basis. (a) Various sections of Part 122. Subpart D allow the Director to determine, on a case-by-case basis, that certain concentrated animal feeding operations (* 122.54), concentrated aquatic animal production facilities ( 122.55), separate storm sewers ( 122.57), and certain other facilities covered by general permits ( 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 it, and shall send an application form with the notice. The discharger must apply for a permit under § 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 § 124.11 or § 124.118 and in any subsequent hearing. § 124.53 State 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 State in which the discharge originates or will originate. (b) Applications received without a State certification shall 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 State agency: (1) A copy of a draft permit; (2) A statement that EPA cannot issue or deny the permit until the certifying State agency has granted or denied certification under § 124.55, or waived its right to certify; and (3) A statement that the State will be deemed to have waived its right to certify unless that right is exercised within a specified reasonable time not to exceed 60 days from the date the draft permit is mailed to the certifying State agency unless the Regional Administrator finds that unusual circumstances require a longer time. (d) State certification shall be granted or denied within the reasonable time specified under paragraph (c)(3) of this section. The State shall send a notice of its action including a copy of any certification, to the applicant and the Regional Administrator. (e) State certification shall be in writing and shall include: (1) Conditions which are necessary to assure compliance with the applicable provisions of CWA sections 208(e), 301, 302, 303, 306, and 307 and with appropriate requirements of State law: (2) When the State certifies a draft permit instead of a permit application, any conditions more stringent than those in the draft permit which the State finds necessary to meet the requirements listed in paragraph (e)(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. § 124.54 Special provisions for State certification and concurrence on applications for section 30 1(h) variances. (a) When an application for a permit incorporating a variance request under CWA section 301(h) is submitted to a State, the appropriate State official shall either: ------- 33494 Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 I Rules and Regula lions (1) Deny the request for the CWA section 301(h) variance (and so notify the applicant and EPA) and, if the State is an approved NPDES State and the permit is due for reissuance, process the permit application under normal procedures; or (2) Forward a certification meeting the requirements of § 124.53 to the Regional Administrator. (b) When EPA issues a tentative decision on the request for a variance under CWA section 301(h), and no certification has been received under paragraph (a) of this section, the Regional Administrator shall forward the tentative decision to the State in accordance with § 124.53(b) specifying a reasonable time for State certiflcatinn 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 iii the issuance of a CWA section 301(h) variance. (c) Any certification provided by a State under paragraph (a)(2) of this section shall constitute the State’s concurrence (as required by section 301(h)) in the issuance of the permit incorporating a section 301(h) variance subject to any conditions specified therein by the State. CWA section 301(h) certification and concurrence under this section will not be forwarded to the State by EPA for recertification after the permit issuance process; States must specify any conditions required by State law, including water quality standards, in the initial certification. § 124.55 Effect of State certification. (a) When certification is required under CWA section 401(a)(1) no final permit shall be issued: (1) If certification is denied, or (2) Unless the final permit incorporates the requirements specified in the certification tinder § 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 if a court of competent jurisdiction or appropriate State board or agency stays, vacates, or remands a certification, a State which has issued a certification under § 124.53 may issue a modified certification or notice of waiver and forward it to EPA. If the modified certification is received before final agency action on the permit the permit shall be consistent with the more stringent conditions which are based upon State law identified in such certification. If the certification or notice of waiver is received after final agency action on the permit, the Regional Administrator may modify the permit on request of the permittee only to the extent necessary to delete any conditions based on a condition in a certification invalidated by a court of competent jurisdiction or by an appropriate State board or agency. (c) A State may not condition or deny a certification on the grounds that State law allows a less stringent permit condition. The Regional Administrator shall disregard any such certification conditions, and shall consider those conditions or denials as waivers of certification. (d) A condition in a draft permit may be changed during agency review in any manner consistent with a certification meeting the requirements of § 124.53(d). No such changes shall require EPA to submit the permit to the State for 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. (f) Nothing in this section shall affect EPA’s obligation to comply with § 122.12. See CWA section 301(b)(1)(C). § 124.56 Fact sheets. (Applicable to State programs, see § 123.7.) In addition to meeting lhe 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 9 122.52 and reasons why they are applicable or an explanation of how the alternate effluent limitations were deve oped; (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 § 122.82(e); (ii) Limitations on internal wastestreams under 9 122,03(i); or (iii) Limitations on indicator pollutants under § 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 § 122.02(m). (c) When appropriate, a sketch or detailed description of the location of the discharge described in the application; and (d) For EPA.issued NPDES permits the requirements of any State certification under § 124.53. § 124.57 Public notice. (a) Section 316(a) requests (applicable to State programs. see § 123.7). In addition to the information required under § 124.1O(d)(1), public notice of an NPDES draft permit for a discharge where a CWA section 318(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 306; and (2) A statement that a section 316(8). request has been filed and that alternative less stringent effluent limitations may be imposed on the thermal component of the discharge under section 316(a) and a brief description, including a quantitative statement, of the alternative effluent limitations, if any, included in the request. (3) If the applicant has filed an early screening request under § 125.7Z for a section 316(a) variance, a statement that the applicant has submitted such a plan. (b) Evidentiaz’y hearings under SubpartE. In addition to the informati required under § 124.10(d)(2), public notice of a hearing under Subpart E ahaii 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 seeking to be a party must file a request to be admitted as a party to the hearing within 15 days of the date of publication of the notic (ii) Any person seeking to be a party may, subject to the requirements of 9 124,78, propose material issues of fact or law not already raised by the original requester or another party; (Lii) The conditions of the permit(s) at issue may be amended after the evidentiary hearing and any person interested in those permit(s) must request to be a party in order to preserve any right to appeal or otherwise contest the fitial administrative decision. (c) Non-adversary pane/procedures under Subpart F (1) In addition to the information required under § 124.10(d)(2), mailed public notice of a draft permit to be processed under Subpart F shall include a statement ti any hearing shall be held under Subp F (panel hearing). ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980’ / Rules and Regulations 12) 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 b the Presiding Officer or by the Regional Adminisfrator (iii) The due ’date for filing a written request to participate in the hearing under § 124.11 ; and (LV ], The due date’ for filing comments unden 124-.t18 § 124 5 Special procedures for EPA- issued’generai permitsiorpoint sources other than separate storm sewers. (a) The Regional Administrator shall’ send a copy of the draft generaLpermit and the administrative record to the Deputy Assistant Administrator for Water Ehforcement during the’ public comment period. (b) The Deputy Assistant Administrator for Water Enforcement shall have 30 days from: receiptof the draft general permit.: air shall have until the end of the public comment period. whichever is later, to conrment upon, object to, or make recommendations with respect to the. draft gerrerall permit.. (c) If the Deputy Assistant Administrator for Water Enfbrcement objects toga dimftrgeneral’permitwithin’ the period specifl ’edimparagraplt (b of this section, the’ Regional Administrator shall’ not issue’ the finaL ganernl . permit until the Deputy Assistant Administrator for Water Enforcement concurs in writingS with the conditions. of the general permit. § 124.59 ConditIons requested by the Corpeof Engineers and ofher government agencies. (ApplicaMe to State programs, see § 123.7:) (a) If during’ the comment period ror an NPDES draft permit.. the District Engineer advises the Director in writiiig. that anchorage and navigution. oL any of the waters of the Unfte States would be substantially impaired by the granting of a permit.. the permit shall be denied and the applicant so notffled. If the District Engineer advised, the Director that iinposing specffled conditions upon the.permit is necessary to avoid any substantiar fmpairment’ of anchorage or navigation, then the Director shall incrude the specified conditions in the. permit Review or appeal of demal of a permit or of conditions specified by’ the District Engineer shall be made through the applicable procedur s of the Corps of Engineers, and may not be made through the’ procedures provided in this Part. If the conditions are stayed by a courti of competent jurisdiction or by applicable procedures of the Corps of Engineers, those conditions shell 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 j irisdictioir overfish, wildlife, or public. health advises the Ulrectorin writing that the imposition of specified’ conditions upon the permit is necessary’ to avoid substantial hnpafrment of fish, shellfish, or wildlife resources the Director may include the specified conditions in the permit to-the extant they are determined necessary tocarly out the provisions of §: 122Th2 arid of the CWA. (c) In’ appropriate cases the Director may consuiswlth 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.sheer, or the dI’aftpermlt. § 12&60 Issuance and effective date and stays otNPDES permits. 1ff ad’diion to the requirementeof § 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 hearhig. (a)(1) ha’ request fore’ formalihearing iagran ted under §124.75’ or 124.114 regarding the initial permit issuedtfora. new source, a new disdiarg,er,, or a recommencing dischargur, or cia petition for review ofthedenialoia request fora formal hearing, with respect to such a permit is. timeLy filed with the Administrator’undeir fi 124.91,. the’ applicant, shall be without a permit pending final Agency’ action under § 124.91. (2], Wherever a source subject. to this’ paragraph has’ received.a final permit. under § 124,15 which.is the subject of a hearing request under § i24 .74 oir a formal hearing under § 1 Z4 .35, 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 al1 conditions. of that final permit during, the period until final agency actlan% The Presiding. Officer may grant such a motion in. any case where no party opposL.or,.ifa’. party opposes the motion,, where the source demonstrates that ( i)i itiis lilcely to. prevail on the merits;: (il).iilreparable harm to the environment will nut result pending final agency action if itis 33495 allowed to. commence operations before final agency action; and (iii] the public. interest req,uires that the source be allowed to commence operations..Afl . the conditions’ of any permit covered by that order shall be fully, effective and enforceable. (b) The Regional Administrator, at any time prior to the rendering of an. initial decision in a formal hearing on a. permit, may withdraw the. permit and prepare a new draft permit under § 124.8 addressing, the portions so’wLthdrawn The new draft permlt .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 ataye under this section. shall remain in. effect. (c)(1) Ifs request for a formal hearing Is granted in whole or in part under § 124.75 regarding a permit for an existing source, or if.a petition for review of the denial of a request. for a formal hearing with respect to that permit is timely filed with, the Administrator under § 124.91. the farce and effect of the ’contested. conditions of .the final pennft chaff be. stayed..Tha Regional’ Adininisirator shall notify,. in accordance’ with 1124.75; the discharger and all parties of the, uncontested conditions of the ffnal 1 permitthar are enforceable obhi ations’ of the discharger. f2) Wherrefifuent Ifmi’t’ations are contested but the’ unrIer.lying’ control technology j i not, the’ notice’ shall identif rthe’1nsfaITati’on of the technology in’ accorriance’ with’ the permit. compliance sehedules’ (if uncontested) as’ air uncontested,, enforceaMe obligation’ of the’ permit. (3)’ When, a’ combination of technologies’ is. ccntested. but a’ portion of the combination’ is’ not contested, dint portion shall be’ identified as’ uncontested if compatible’ with the’ combination of technologies’ proposed by the requester: (4) Uncontested conditions, if inseverabie ’ from a’ contested condition, shall be considered confestb& (5) t ljncoritestedtconditforis. sFiaIP become’ enforceable’ 31) days. f!ep ’ the’ date of notice imdèirparagrapb (‘cj(?1J3 of this section granting the request. if,. however,, a, request for a formal hearing on a condition was denied arid the’ denial is appealed under § 124.91,. them that conchtibn shall become enforceable upon thedataofthe’rro&icemof the Administrator’s. dbcistonu on the appeal if the denial .is: affirmed,, orsIialI be stayed, in accordance with this section, LIthe Administratorreverses the denial and grants the evidentiary hearing.. ------- 33496 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations (6) Uncontested conditions shall include: (i) Preliminary design and engineering studies or other requirements necessary to achieve the final permit conditions which do not entail substantial’ expenditures; (ii) Permit conditions which will have to be met regardless of which party prevails at the evidentiary hearing; (Iii) When the discharger proposed a less stringent level of treatment than that contained in the final permit, any - permit conditions appropriate to meet the levels proposed by the discharger, if the measures required to attain that less stringent level of treatment are consistent with the measures required to attain the limits proposed by any other party; and (iv) Construction activities, such as segregation of waste streams or installation of equipment, which would partially meet the final permit conditions and could also be used to achieve the discharger’s proposed alternative conditions. (d) if at any time after a hearing is granted and after the Regional Administrator’s notice under paragraph (c)(1) of this section it becomes clear that a permit requirement is no longer contested, any party may request the Presiding Officer to issue an order identifying the requirements as uncontested. The requirement identified in such order shall become enforceable 30 days after the issuance of the order. (e) When a formal hearing is granted under § 124.75 on an application for a renewal of an existing permit, all provisions of the existing permit as well as uncontested provisions of the new permit, shall continue fully enforceable and effective until final agency action under § 124.91. (See § 122.5) Upon written request from the applicant, the Regional Administrator may delete requirements from the existing permit which unnecessarily duplicate uncontested provisions of the new permit. (f) When issuing a finally effective NPDES permit the conditions of which were the subject of a formal hearing under Subparts E or F, the Regional Administrator shall extend the permit compliance schedule to the extent required by a stay under this section provided that no such extension shall be granted which would: (1) Result in the violation of an applicable statutory deadline; or (2) Cause the permit to expire more than 5 years after issuance under § 124.15(a). [ Note.—Extenaions of compliance schedules under § 124.00(0(2) will not automatically be granted for a period equal to the period the stay is in effect for an effluent limitation. For example, if both the Agency and the discharger agree that a certain treatment technology is required by the CWA where guidelines do not apply. but a hearing is granted to consider the effluent limitations which the technology will achieve, requirements regarding installation of the underlying technology will not be stayed during the hearing. Thus, unless the hearing extends beyond the final compliance date in the permit, it will not ordinarily be necessary to extend the compliance schedule. However,_ when application of an underlying technology is challenged, the stay for installation requirements relating to that technology would extend for the duration of the hearing.) (g) For purposes of judicial review under CWA section 509(b). final agency action on a permit does not occur unless and until a party has exhausted its administrative remedies under Subparts E and F and § 124.91. Any party which neglects or fails to seek review under § 124.91 thereby waives its opportunity to exhaust available agency remedies. § 124.61 FInal environmental impact statement. No final NPDES permit for a new source shall be issued until at least 30 days after the date of issuance of a final environmental impact statement if one is required under 40 CFR § 6.805. § 124.62 DecIsion on variances. (Applicable to State programs, see § 123.7.) (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(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 request for: (1) A variance based on the presence of “fundamentally different factors” from those on which an effluent limitations guideline was based; (2) A variance based on the economic capability of the applicant under CWA section 301(c); (3) A variance based upon certain water quality factors under CWA section 301(g); or (4) A variance based on water quality related effluent limitations under CWA section 302(b)(2). (c) The Regional Administrator may deny, forward, or submit to the EPA Deputy Assistant Administrator for Water Enforcement with a ‘recommendation for approval, a request for a variance listed in paragraph (b) of this section that is forwarded by the State Director, or that is submitted to the Regional Administrator by the requester where EPA is the permitting authority. (d) The EPA Deputy Assistant Administrator for Water Enforcement may approve or deny any variance request submitted under paragraph (c) of this section. If the Deputy Assistant Administrator approves the variance, the Director may prepare a draft permit ‘incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under § 124.54. § 124.63 Procedures for variances when EPA Is the permitting authority. (a) In States where EPA is the permit issuing authority and a request for a variance is filed as required by § 122.53, the request shall be processed as follows: (1) If at the time that a request for a variance is submitted the Regional Administrator has received an application under § 124.3 for issuance or renewal of that permit but has not yet prepared a draft permit under § 124.8 covering the discharge in question, the Regional Administrator, after obtaining 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 in § 124.10, unless this would significantly delay the processing of the permit. In that case the proce ’ssing 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 § 124.10 of a draft permit covering the’ discharge in question, but that permit has not yet become final, administrative proceedings concerning that permit may be stayed and the Regional Administrator shall prepare a new draft permit including a tentative decision on the request, and the fact sheet required by § 124.8. However, if this will significantly delay the processing of the existing draft permit or the Regional Administrator, for other reasons, ------- Federal Register j Vol. 45 . No. 98 1 Monday, May 1.9, 1980’ / Rnleo and Roguiations 33497 considers’ combhuing,the.variance request and the. existing, draft permit inadvisable, the request may’ be separated from the permit in accordance. with paragraph (a)( of this section, and the administrative, disposition of the existing draft permit shall proceed without delay. (3) If the permit has . become finaLand no applìcatiorr under § 1Z4 3 cancerning it is pending or if the iathance reçuest has been separated. fram’ a draft permit as described in paragraphs. (a) 1. ) ? and. (2) of thin section, the’ Regional Administratbr may prepare a new draft permit and give notice of it under §, T24.10 This draft permit shalk be. accompaniedby the fact sheet requfred by § 124.8 except that the only matters considered shall rerate. to’ the req,uested variance. § 124.64 Appeals of variances, (a) When eState issues .a pernxiJ!oni which EPA has. made a variance decision, separate appeals of the State permit and of the E A variance decisiom are possible. If the’ owner oiroperator is. cha1Ienging the. same issues in both proceedings,. the Regionar Adminf trator willidecide , in’ cons’uitatiani with State. officials;, which case t re heardi first (b) Variance decisions made, by EPA\ may be appealed unilan either Subparts E or F, providrd the’ reqrdrementsi of the applicable Subpart are arab. However; wheneverr the basin permit decision is eligthle only finr air e.vfderitiary hearing under Subpart R while the variance decistoir is. eligthI only for a panel hearing under Subpart F, the’ issues relating to both the’ basic permit decision and . (he. variance decision shell be consideredL in: the. Subpart E preaeeding. No Subpart F hearirrgniay be held if a SubpartEheazingwnulcibe held in addition. See § 1 2 .1 1 1 (b ) ?.. (c) Stays for sectiozv(i1(gJ trar’fanc’eg. If a’ request far’an e’vfcferrtiary hearing is granted’ on a’ variarrce requested under CWA sentian3cl(gJ orifepetitfoirfcr’ review of the denial of a’ request for tFie hearing is filed und ’eirf 124.9T, any otherwise applica bla standard’s and limitations, under CWA sectiorr 3(i) shall not be stayed unless (1) In the’ jutfgnierrt of the Regional Administrator; the sl’ayar’ the variance soughtwilT not result in ifie discharge of pollutants. in’ quantities which may’ reasonably be anticipated to pose an unacceptable risks to human. health or the environment becaune of bioaccuniulation, persistency in the environment, acute toxicity, chronic toxicity; or synergistic propensities; and’ (2) Ia the judgment of the Regional Administrator,, there’ is a. substantial likelihood that the dischargpr will succeed’ on the merits of its appeal;, and (3] The discharger files-a bond’ or other appropriate security which. is’ required by the Regional Administrator to assure timely compliance whir the requirements. from which a variance is sought in the event that the appeal is. unsuccessfuL (d) Stays for variances, other than section 301(g) - are governed by § 124.50 . § 124.6S Special proced’ures’fordlscharge Into marine waters section 3O ’t(h) (aJ Where it is 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 Ad’mlnlstrator, may either: (‘1) Give, written authorization to a requester to submft inThrma lion requfred by Part 125 S iFipart C or the final request by a date certain,. not to exceed 9 months, il (i) The’ requester proposes to submit new or ad’ditfonal. information anti the request deinonsfrates that: (AJ The’ requester made consistent and diligent efforts to obtain such information prior to submitting the final request; (B) The failure toobtain.such. information: was due to circumstances beyund. the. confrol of the requester, and (C) Such’ inlerniatton can be submitted promptly;’ or [ ‘ii) The requester proposes’ to submit minor corrective information and’ such information can,be submitted promptly’, or (2) Make a written request of a. requester to-submit additional information by a’ certain date, not to exceed 9 months, if such information is. necessary to Issue a tentative’ decision under § 124.62(a)(’l). All additional information submitted under this paragrapb which,is timely received, shall he considered, part of the original req,uest. (cJ The otherwise applicable. sections of this Partapply tacfraftpernnits. incorporating section. 301(j4 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 substitutectfor the. term ,”Dtrector” as.. appropriate. (ci) No permit subject to a. 30 11h1 variance shalL be issued. unless. the appropriate State officials have concurred, or waived concurrence pursuant toPlZ4.M In. the case of a permit issued ta.a.req.uester lean approved State,. the State. Director may: (1) Revoke. any existing permit as of the’ effective date of the EPA.-issued permit subject to’ a 3G1(h ) ? variance; and (2) Co-sign the permit subject to the 301(h) variance, if the Director has indicated an intent in do soLo the’ written cnncnrren e § 124.66 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 ci final Agency decision before. the final permit is issued. under § 124.15 and 124.80 are whether alternative effluent. limitations would. be. justified. under CWA. section 310(a )’ antI whether cooling water intake structures will use the best available technology under section si8(J. Permit applicants who’ wish an. early decision on. these. issues should. request. it and furnish supporting reasons at the. time. their permit applications are flied under § The Regional Administrator will then decide whether or ant to make an. early decision.. If it La granted,. bath. 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 subjuct to the same. requirements’ of public notice ans i comment and the same opportucity for an evicientiary or panel beaning, under Subparts E or F (b), IL the Regional Administrator, on. review of the acfn ’ifnfstrative record,, determines’ that the information, necessary to decide whether or not the CWA section 3i6(a issue is not [ ikely to be avaffabre in time fir a decisi’crn.on, permit issuance,, the Regional Administrator may issue a periniL under § 124.1ff 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. 3161a after conducting, such studIes as are required under 40 CFRPartIZS , .SubpartlLA new discharger may act exceed the thermal efifuent. limitation whiith, is initially proposecf unless and until its. CWA section 316(a)’ variance request is finally approved. I (c), Any pruceedlug held. under paragraph. a) of this section shalL be publicly riaticed as. req,uiredl by §124.10 and shall he conducted. atl a time allowing the permittee tin take’ necessary’ measures to meet thefthal compliance date in the event its. req,uest for modification of thermal limits is denied. ------- 33498 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I 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—Evldentlary Hearings for EPA-issued NPDES Permits and EPA- Terminated RCRA Permits § 124.71 Applicability. (a) The regulations in this Subpart govern all formal hearings conducted by EPA under CWA section 402, except for those conducted under Subpart F. They also govern all evidentiary hearings conducted under RCRA section 3008 in connection with the termination of a RCRA permit. This includes termination of interim status for failure to furnish information needed to 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 certain cases, evidentiary hearings under this Subpart may also be held on the conditions of UIC permits, or of RCRA permits which are being issued, modified, or revoked and reissued, rather than terminated or suspended. This will occur when the conditions of the UIC or RCRA permit in question are closely linked with the conditions of an 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 § 122,60. (c) P50 permits may never be subject to an evidentiary hearing under this Subpart. Section 124.74(b)(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.S. Environmental Protection Agency. 401 M Street, S.W., Washington. D.C. 20460. “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 followingconditions: (a) A Judicial Officer shall be a licensed attorney. A Judicial Officer shall not be employed in the Office of Enforcement or the Office of Water and Waste Management, and shall not participate in the consideration or decision of any case in which he or she performed investigative or prosecutorial functions, or which is factually related to such a case. (b) The Administrator may delegate any authority to act in an appeal of a given case under this Subpart to a Judicial Officer who, in addition, may perform other duties for EPA, provided that the delegation shall not preclude a Judicial Officer from referring any motion or case to the Administrator when the Judicial Officer decides such action would be appropriate. The Administrator, in deciding a case, may consult with and assign the drafting of preliminary findings of fact and conclusions and/or a preliminary decision to any Judicial Officer. “Party” means the EPA trial staff under § 124.78 and any person whose request for a hearing under § 124.74 or whose request to be admitted as a party or to intervene under § 124.79 or § 124.117 has been granted. “Presiding Officer” for the purposes of this Subpart means an Administrative Law Judge appointed under 5 U.S.C. 3105 and designated to preside at the hearing. Under Subpart F other persons may also serve as hearing officers. See § 124.119. “Regional Hearing Clerk” means an employee of the Agency designated by a Regional Administrator to establish a repository for all books, records, documents, and other materials relating to hearings under this Subpart. § 124.73 FIling and submission of documents. (a) All submissions authorized or required to be filed with the Agency under this Subpart shall be filed with the Regional Hearing Clerk, unless othc wise provided by’ regulation. Submissions shall be considered filed on tl da1eon which they are mailed or delivered in person to the Regional Heaing Clerk. (b)Ril 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 requirement does not apply to State or Federal statutes and regulations, judicial decisions published in a national reporter system, officially issued EPA documents of general applicability, and any other generally available reference 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 the submission being excluded from consideration. If the Regional Administrator or the Presiding Officer, on motion by any party or sua sponte, determines that a submission fails to meet any requirement of this Subpart, the Regional Administrator or Presiding Officer shall direct the Regional Hearing Clerk to return the submission, together with a reference to the applicable regulations. A party whose materials have been rejected has 14 days to correct the errors and resubmit, unless the Regional Administrator or the Presiding Officer finds good cause to allow a longer time. (d) The filing of a submission shall not mean or imply that it in fact meets all - applicable requirements or that it contains reasonable grounds for the action requested or that the action requested is in accordance with law. (e) The original of all statements and documents containing factual material, data, or other information shall be signed in ink and shall state the name, address, and the representative capacity of the person making the submission, § 124.74 Requests for evidentiary hearing. (a) Within 30 days following the service of notice of the Regional Administrator’s final permit decision under § 124.15, any interested person may submit a request to the Regional Administrator under paragraph (b) of this section for an evidentiary hearing to ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33499 reconsider or contest that decision. 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 § 124.18. [ Noto.—This paragraph allows the submission of requests for evidentiary hearings even though both legal and factual issues may be raised, or only legal issues may be raised. In the latter case, because no factual issues were raised, the Regional Administrator would be required to deny the request. However, on review of the denial the Administrator is authorized by § 124.91(a)(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 will be final and subject to judicial revlew.l (2) Persons requesting an evidentiary hearing on an NPDES permit under this section may also request an evidentiary hearing on a RCRA or UIC 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 if: (I) Processing of the RCRA or UIC 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; (iii) The resolution of the NPDES permit issues is likely to make necessary or appropriate modification of the RCRA or UIC permit; and (iv) Ha PSD permit is involved, a permittee who is eligible for an evidentiary hearing under Subpart E on his or her NPDES permit requests that the formal hearing be conducted under the procedures of Subpart F and the Regional Administrator finds that consolidation is 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 ‘elephone number of the person making uch 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 sponle without cost or expense to any other party, the requester shall make available to appear and testify, the following: (i) The requester (ii) All persons represented by the requester: and (iii) All officers, directors, employees, consultants, and agents of the requester and the persons represented by the requester. (5) Specific references to the contested permit conditions, as well as suggested revised or alternative permit conditions (including permit denials) which, in the judgment of the requester, would be required to implement the purposes and policies of the CWA. (6) In the case of challenges to the application of control or treatment technologies identified in the statement of basis or fact sheet, Identification of the basis for the objection, and the alternative technologies or combination of technologies which the requester believes are necessary to meet the requirements of the CWA. f7) Identification of the permit obligations that are contested or are inseverable from contested conditions and should be stayed if the request is granted by reference to the particular contested conditions warranting the stay. (8) Hearing requests also may ask that a formal hearing be held under the procedures set forth in Subpart F. An applicant may make such a request even if the proceeding does not constitute “initial licensing” as defined in § 124.111. (d) If the Regional Administrator grants an evidentiary 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 g anted. Permit conditions which are not contested or for which the Regional Administrator has denied the hearing request shall not be affected by, or considered at, the evidentiary hearing. The Regional Administrator shall specify these conditions in writing in accordance with § 124.60(c). (e) The Regional Administrator must grant or deny all requests for an evidentiary hearing on a particular permit. All requests that are granted for a particular permit shall be combined in a single evidentiary hearing. (f) The Regional Administrator (upon notice to all persons who have already submitted hearing requests) may extend the time allowed for submitting hearing requests under this section for good cause. § 124.75 Decision on request for a hearing. (a)(1) Within 30 days following the expiration of the time allowed by § 124.74 for submitting an evidentiary hearing request, the Regional Administrator shall decide the extent to which, if at all, the request shall be granted, provided that the request conforms to the requirements of § 124.74, and sets forth material issues of fact relevant to the issuance of the permit. (2) When an NPDES permit for which a hearing request has been granted constitutes “initial licensing” under § 124.111, the Regional Administrator may elect to hold a formal hearing under the procedures of Subpart F rather than under the procedures of this Subpart even if no person has requested that Subpart F be applied. If the Regional Administrator makes such a decision, he or she shall issue a notice of hearing under § 124.116. All subsequent proceedings shall then be governed by H 124.117 through 124.121, except that any reference to a draft permit shall mean the final permit. (3) Whenever the Regional Administrator grants a request made under § 124.74(c)(8) for a formal hearing under Subpart F on an NPDES permit that does not constitute an initial license under § 124.111, the Regional Administrator shall issue a notice of hearing under § 124.116 including a statement that the permit will be processed under the procedures of Subpart F unless a written objection is received within 30 days. If no valid objection is received, the application shall be processed in accordance with § § 124.117 thro igh 124.121, except that any reference to a draft permit shall mean the final permit. If a valid objection is received, this Subpart shall be applied instead. (b) If a request for a hearing is denied in whole or in part, the Regional Administrator shall briefly state the reasons. That denial is subject to review by the Administrator under § 124.91. § 124.76 ObligatIon to submit evidence and raise Issues before a final permit Is issued. No evidence shall be submitted by any party to a hearing under this Subpart that was not submitted to the ------- 33500 Federal Register / Vol. 45, No. 98 / 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 § 124.15; or that it could not have reasonably anticipated the relevance or materiality of the information sought to be introduced. Good cause exists for the introduction of data available on operation authorized under § 124.60(a)(2). § 124.77 NotIce of hearing. Public notice of the grant of an evidentiary hearing regarding a permit shall be given as provided in § 124.57(b) and by mailing a copy to all persons who commented on the draft permit. testified at the public hearing, or submitted a request for a hearing. Before the issuance of the notice, the Regional Administrator shall designate the Agency trial staff and the members of the decisional body (as defined in § 124.78). § 124.78 Es parte communications. (a) For purposes of this section. the following definitions shall apply: (1) “Agency trial staff’ means those Agency employees, whether temporary or permanent, whit have been designated by the Agency under § 124.77 or § 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- ad ,ersary panel hearing,, the decisional body shall als o include the panel members, whether or not permanently employed by the Agency; (3) ‘Ex parte communication” means any communication, written or.oral, relating to the merits of the proceeding between the decisional body and an interested person outside the Agency or the Agency trial staff which was not originally filed or stated in the administrative record or in the hearing. Ex parte communications do not include: (i) Communications between Agency employees other than between the Agency trial staff and the members of the decisional body; (ii] Discussions between the decisional body and either: (A) Interested persons outside the Agency. or (B) The Agency trial staff, 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). ’lnterested 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 exparte communication on the merits of the proceedings. (3) A member of the decisional body who receives or who makes or who knowingly causes to be made a communication prohibited by this subsection shall file with the Regional Hearing Clerk all written communications or memoranda stating the substance of all oral communications together with all written responses and memoranda stating the substance of all oral responses. (c) Whenever any member of the decisionmaking body receives an ex pane communication knowingly made or knowingly caused to be made by a party or representative of a party in violation of this section, the person presiding at the stage of the hearing then in progress may, to the extent consistent with justice and the policy of the CWA, require the party to show cause why its claim or interest in the proceedings should not be,,dismissed, denied. disregarded, or otherwise adversely affected on account of such violation. (d) The prohibitions of this section begin to apply upon issuance of the notice of the grant of a hearing under § 124.77 or § 124.116. This prohibition terminates at the date of final agency action. § 124.79 AddItional parties and issues. (a) Any person may submit a request to be admitted as a party within 15 days after the date of mailing, publication, or posting of notice of the grant of an evidentiary hearing, whichever occurs last. The Presiding Officer shall grant requests that meet the requirements of § 124.74 and 124.76. (b) After the expiration of the time prescribed in paragraph (a) of this section any person may file a motion for leave to intervene as a party. This motion must meet the requirements of § § 124.74 and 124.76 and set forth the grounds for the proposed intervention. No factual or legal issues, besides those raised by timely hearing requests, may be proposed except for good cause. A motion for leave to intervene must also contain a verifi d statement showing good cause for the failure to file a timely request to be admitted as a party. The Presiding Officer shall grant the motion only upon an express finding on the record that: (1) Extraordinary circumstances justify granting the motion; (2) The intervener has consented to be bound by: (1) 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 Fi!ing and service. (a) An original and one (1) copy of all written submissions relating to an evidentiary hearing filed after the notice is published shall be filed with the Regional Hearing Clerk. (b) The party filing any submission shall also serve a copy of each submission upon the Presiding Officer and each party of record. Service shall be by mail or personal ilelivery. (c) Every submission shall be accompanied by an acknowledgement of service by the person served or a certificate of service citing the date. place, time, and manner of service and the names of the persons served. ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33501 (d) The Regional Hearing Clerk shall iaintain and furnish a list containing e name, service address, and telephone number of all parties and their attorneys or duly authorized representatives to any person upon request. § 124.81 AssIgnment of Administrative Law Judge. No later than the date of mailing, publication, or posting of the notice of a grant of an evidentiary hearing, whichever occurs last, the Regional Administrator shall refer the proceeding to the Chief Administrative Law Judge who shall assign an Administrative Law Judge to serve as Presiding Officer for the hearing. § 124.82 Consolidation and severance. (a) The Administrator, Regional Administrator, or Presiding Officer has the discretion to consolidate, in whole or in part, two or more proceedings to be held under this Subpart, whenever it appears that a joint hearing on any or all of he 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 io consolidation. (b) If the Presiding Officer determines :onsolidation is not conducive to an dxpeditious, 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, suci sponte, or at the request of any party, may direct the parties or their attorneys or duly authorized representatives to appear at a specified time and place for one or more conferences before or during a hearing, or to submit written proposals or correspond for the purpose of considering any of the matters set - forth in paragraph (c) of this section. (b) The Presiding Officer shall allow a reasonable period before the hearing begins for the orderly completion of all prehearing procedures and for the submission and disposition 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 -‘-He for beginning the hearing. (c) In conferences held, or in iggestions submitted, under paragraph of this section, the following matters ay be considered: (1) Simplification, clarification, amplification, or limitation of the issues. (2) Admission of facts and of the genuiness of documents, and stipulations of facts. (3) Objections to the introduction into evidence at the hearing of any written testimony, documents, papers, exhibits, or other submissions proposed by a party, except that the administrative record required by § 124.19 shall be received in evidence subject to the provisions of § 124.85(d)(2). At any time before the end of the hearing any party may make, and the Presiding Officer shall consider and rule upon, motions to strike testimony or other evidence other than the administrative record on the grounds of relevance, competency, or materiality. (4) Matters subject to official notice may be taken. (5) Scheduling as many of the following as are deemed necessary and proper by the Presiding Officer: (i) Submission of narrative statements of position on each factual issue in controversy; (ii) Submission of written testimony and documentary evidence (e.g., affidavits, data, studies, reports, and any other type of written material) in support of those statements: or (iii) Requests by any party for the production of additional documentation, data, or other information relevant and material to the facts in issue. (6) Grouping participants with substantially similar interests to eliminate redundant evidence, motions, and objections. (7) Such other matters that may expedite the hearing or aid in the disposition of the matter. (d) At a 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 written testimony, and other evidence may be added or amended upon order of the Presiding Officer for good cause shown. Agency employees and consultants shall be made available as witnesses by the Agency to the same extent that production of such witnesses is required of other parties under § 124.74(c)(4). (See also § 124.85(b)(10).) (e) The Presiding Officer shall prepare a written prehearing order reciting the actions taken at each prehearing conference and setting forth the schedule for the hearing, unless a transcript has been taken and accurately reflects these matters. The order shall include a written statement of the areas of factual agreement and disagreement and of the methods and procedures to be used in developing the evidence and the respective duties of the parties in connection therewith. This order shall control the subsequent course of the hearing unless modified by the Presiding Officer for good cause. shown. § 124.e4 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 countermotion for summary determination. When a motion for summary determination is made and supported, a party opposing the motion may not rest upon mere allegations or denials but must show, by affidavit or by other materials subject to consideration by the Presiding Officer, that there is a genuine issue of material fact for determination at the hearing. (c) Affidavits shall be made on personal knowledge, shall set forth facts that would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. (d) The Presiding Officer may set the matter for oral argument and call for the submission of proposed findings. conclusions, briefs, or memoranda of law. The Presiding Officer shall rule on the motion not more than 30 days after the date responses to the motion are filed under paragraph (b) of this section. (e) If all factual issues are decided by summary determination, no hearing will be held and the Presiding Officer shall prepare an initial decision under § 124.89. If summary determination Is denied or if partial summary determination is granted, the Presidin? Officer shall issue a memorandum opinion and order, interlocutory in ------- 33502 Federal Register I Vol. 45, No. 98 I 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 § 124.90. (I) Should it appear from the affidavits of a party opposing a motion for summary determination that he or she fannot for reasons stated present, by affidavit or otherwise, facts essential to justify his or her opposition, the Presiding Officer may deny the motion or order a continuance to allow additional affidavits or other information to be obtained or may make such other order as is just and proper. § 124.85 Hearing procedure. (a)(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. [ Note.—In many cases the documents contained in the administrative record, in particular the fact sheet or statement of basis and the response to comments, should adequately discharge this burden.l (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 either: (A) The inclusion of new or different conditions or requirements; or (B] The deletion of those conditions or requirements; or (ii) That the denial or issuance of a permit is otherwise improper or invalid, shall have the burden of going forward to present an affirmative case at the conclusion of the Agency case on the challenged requirement. (b) The Presiding Officer shall conduct a fair and impartial hearing, take action to avoid unnecessary delay in the disposition of the proceedings, and maintain order. For these purposes, the Presiding Officer may: (1) Arrange and issue notice of the date, time, and place of hearings and conferences; (2) Establish the methods and procedures to be used in the development of the evidence; (3) Prepare, after considering the views of the participants, written statements of areas of factual disagreement among the participants; (4) Hold conferences to settle, simplify, determine, or strike any of the issues in a hearing, or to consider other matters that may facilitate the expeditious disposition of the hearing; (5) Administer oaths and affirmations; (6) Regulate the course 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, testimony, and other written evidence, briefs, findings, and other submissions; (11) Rule on motions and other procedural matters pending before him, including but not limited to motions for summary determination in accordance with § 124.84; (12) Order that the hearing be conducted in stages whenever the number of parties is large or the issues are numerous and complex; - (13) Take any action not inconsistent with the provisions of this Subpart for the maintenance of order at the hearing and for the expeditious, fair, and impartial conduct of the proceeding; (14) Provide for the testimony of opposing witnesses to be heard simultaneously or for such witnesses to meet outside the hearing to,resolve or isolate issues or conflicts; (15) Order that trade secrets be treated as confidential business information in accordance with § 122.19 and 40 CFR Part 2; and (16) Allow such cross-examination as may be required for a full and true disclosure of the facts. No cross- examination shall be allowed on questions of policy except to the extent required to disclose the factual basis for permit requirements, or on questions of law, or regarding matters (such as the validity of effluent limitations guidelines) that are not subject to challenge in an evidentia.ry hearing. No Agency witnesses shall be required to testify or be made available for cross- examination on such matters. In deciding whether or not to allow cross- examination, the Presiding Officer shall consider the likelthood of clarifying or resolving a disputed issue of 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 direct and rebuttal evidence at an evidentiary hearing shall be submitted in written form, unless, upon motion and good cause shown, the Presiding Officer determines that oral - presentation of the evidence on any particular fact will materially assist in the efficient identification and clarification of the issues. Written testimony shall be prepared in narrative form. (d)(1) The Presiding Officer shall admit all relevant, competent, and / material evidence, except evidence that is unduly repetitious. Evidence may be received at any hearing even though inadmissible under the rules of evidence applicable to judicial proceedings. The weight to be given evidence shall be determined by its reliability and probative value. (2) The administrative record required by § 124.18 shall be admitted and received in evidence. Upon motion by any party the Presiding Officer may direct that a witness be provided to sponsor a portion or portfons of the administrative record. The Presiding Officer, upon finding that the standards in § 124.85(b)(3) have been met, shall direct the appropriate party to produce the witness for cross-examination. If a sponsoring witness cannot be provided. the Presiding Officer may reduce the weight accorded the appropriate portion of the record. (Note—Receiving the administrative record into evidence automatically serves several purposes: (1) it documents the prior course of the proceeding; (2) it provides a record of the views of affected persons for consideration by the agency decisionmaker and (3) it provides factual material for use by the decisionmaker.j (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 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 cr088-examination. (5) Rulings of the Presiding Officer on the admissibility of evidence or testimony, the propriety of cross- examination, and other procedural matters shall appear in the record and shall control further proceedings, unless reversed as a result of an interlocutory appeal taken under § 124.90. (6) All objections shall be made promptly or be deemed waived. Parties shall be presumed to have taken exception to an adverse ruling. No objection shall be deemed waived by further participation in the hearing. ------- Federal Register / Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations 33503 § 124.86 Motions. (a) Any party may file a motion (including a motion to dismiss a particular claim on a contested issue), with the Presiding Officer on any matter relating to the proceeding. All motions shall be in writing and served as provided in § 124.80 except those made on the record during an oral hearing before the Presiding Officer. (b) Within 10 days after service of any written motion, any part to the proceeding may file a response to the motion. The time for response may be shortened to 3 days or extended for an additional 10 days by the Presiding Officer for good cause shown. (c) Notwithstanding § 122.52. 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 it contrary to legislative intent. The Presiding Officer may grant a motion to apply a new regulatory requirement when appropriate to carry out the purpose of CWA. and when no party would be unduly prejudiced thereby. § 124.87 Record of hearings. (a) All orders issued by the Presiding Officer, transcripts of oral hearings or arguments, written statements of position, written direct and rebuttal testimony, and any other data, studies, reports, documentation, information and other written material of any kind submitted in the proceeding shall be a part of the hearing record and shall be available to the public except as provided in § 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 transcribed. After- the hearing, the reporter shall certify and file with the Regional Hearing Cleric (1) The original of the transcript, and (2) The exhibits received or offered into evidence at the hearing. (c) The Regional Hearing Cleric shall promptly notify each of the parties of the filing of the certified transcript of proceedings. Any party who desires a copy of the transcript of the hearing may obtain a copy of the hearing transcript from the Regional Hearing Clerk upon payment of costs. (d) The Presiding Officer shall allow witnesses, parties, and their counsel an opportunity to submit such written proposed corrections of the transcript of any oral testimony taken at the hearing, pointing out errors that may 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 conclusions; brief. Within 45 days after the certified transcript is filed, any party may ifie 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 § 124.90 and shall issue and file his initial decision with the Regional Hearing Clerk. The Regional Hearing Clerk shall immediately serve copies of the initial decision upon all parties (or their counsel of record) arid the Administrator. - (b) The initial decision of the Presiding Officer shall automatically become the final decision 30 days after its service unless within that time: (1) A party files a petition for review by the Administrator pursuant to § 124.91; or (2) The Administrator sua sponte ifies a notice that he or she will review the decision pursuant to § 124.91. § 124.90 interlocutory appeal. (a) Except as provided in this section, appeals to the Administrator may be taken only under § 124.91. Appeals from orders or rulings may be taken under this section only if the Presiding Officer, upon motion of a party, certifies those orders or rulings to the Administrator for appeal on the record. Requests to the Presiding Officer for certification must be filed in writing within 10 days of service of notice of the order, ruling, or decision and shall state briefly the grounds relied on. (b) The Presiding Officer may certify an order or ruling for appeal to the Administrator if: (1) The order or ruling involves an important question on which there is substantial ground for difference of opinion, and (2) Eitheir (I) An immediate appeal of the order or ruling will materially advance the ultimate completion of the proceeding; or (ii) A review after the final order is issued will be inadequate or ineffective. (c) If the Administrator decides that certification was improperly granted, he or she shall decline to hear the appeal. The Administrator shall accept or decline all interlocutory appeals within 30 days of their submission; if the Administrator takes no action within that time, the appeal shall be automatically dismissed. When the Presiding Officer declines to certify an order or ruling to the Administrator for an interlocutory appeaL it may be reviewed by the Administrator only upon appeal from the initial decision of the Presiding Officer, except when the Administrator determines, upon motion of a party and in exceptional circumstances, that to delay review would not be 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 ruling certified by the Presiding Officer for an interlocutory appeal, or upon the denial of such certification by the Presiding Officer. (e) The failure to request an interlocutory appeal shall not prevent taking exception to an order or ruling in an appeal under § 124.91. § 124.91 Appeal to the Administrator. (a)(1) Within 30 days after service of an initial decision, or a denial in whole or in part of a request for an evidentiary hearing, any party or requester, as the case may be, may appeal any matter set forth in the initial decision or denial, or any adverse order or ruling to which the party objected during the hearing, by filing with the Administrator notice of appeal and petition for review. The petition shall include a statement of the supporting reasons and, when appropriate, a showing that the initial decisiOn contains: ------- 33504 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations Procedures Adversary Panel (i) A finding of fact or conclusion of law which Is clearly erroneous, or (ii) An exercise of discretion or policy which is important and which the Administrator should review. (2) Within 15 days after service of a petition for review under paragraph (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 denying a request for an evidentiary hearing may be reviewed and changed by the Administrator in an appeal under this section. (b) Within 30 days of an initial decision or denial of a request for an evidentiary hearing the Administrator may, BUQ sponte, review such decision. Within 7 days after the Administrator has decided under this section to review an initial decision or the denial of a request for an evidentiary hearing, notice of that decision shall be served by mail upon all affected parties and the Regional Administrator, (c)(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 tb) 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 (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 mayO file a responsive brief within 21 days of service of the petitioner’s brief. The petitioner then may file a reply brief within 14 days of service of the responsive brief. Any person may file an amicus brief for the consideration of the Adminiinrator within the same Lime periods that govern reply briefs. If the Administrator determines, sua sponte, to review an initial Regional Administrator’s decision or the denial of a request for an evidentiary hearing, the Administrator shall notify the parties of the schedule for filing briefs, (h) Review by the Administrator of an initial decision or the denial of an evidentiary hearing shall be limited to the issues specified under paragraph (a) of this section, except that after notice to all parties, the Administrator may raise and decide other matters which he or she considers material on the basis of the record. Stibnart F—Non. § 124.111 AppIi bIIty. statutory deadline for issuing a final PSD permit under the CAA. (ii) “Initial licensing” includes both the first decision on an NPDES permit applied for by a discharger that has not previously held one and the first decision on any variance requested by a discharger. (iii) To the extent this Subpart is used to process a request for a variance under CWA section 301(h), the:term “Adminstrator or a person designated by the Administrator” shall be substituted for the term “Regional Administrator”. (2) In any proceeding for which a hearing under this Subpart was granted under § 124.75 following a request for a formal hearing under § 124.74. See § 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 perjnits (for which evidentiary hearings are unavailable under § 124.71), or draft RCRA or draft UIC permits. (b) EPA shall not apply these procedures to a decision on a variance where Subpart E proceedings are simultaneously pending on the other conditions of the permit. See § 124.64(b). § 124.112 RelatIon to other subparts. The following provisions of Subparts. A through E apply to proceedings under this Subpart: (a)(1) § § 124.1 through 124.10. (2) § 124.14 “Reopening of comment . period.” (3) § 124.16 “Stays of contested permit conditions.” (4) § 124.20 “Computation of time.” (b)(1) § 124.41 “Definitions applicable to PSD permits.” may summarily affirm without opinion an initial decision or the denial of a request for an evidentiary hearing, (e) A petition to the Administrator (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: (2) § 124.42 “Additional procedures for PSD permits affecting Class I Areas.” (c)(1) § § 124.51 through 124.56. (2) § 124.57 (c) “Public notice.” under paragraph (a) of this section for review of any initial decision or the denial of an evidentiary hearing is, under 5 U.S.C. § 704, a prerequisite to - .the seeking of judicial review of the final decision of the Agency. (f) If a party timely files a petition for review or if the Administrator sua sponte oders review, then, for purposes of judicial review, final Agency action on an issue occurs as follows: (1) If the Administrator denies review or summarily affirms without opinion as provided in § 124.91(d), then the initial decision or denial becomes the final Agency action and occurs upon the service of notice of the Administrator’s action, (1)(i) In any proceedings for the issuance of any NPDES permit which constitutes “initial licensing” under the Administrative Procedure Act, when the Regional Administrator elects to apply this Subpart and explicitly so states in the public notice of the draft permit under § 124.10 or in a supplemental notice under § 124.14. If an NPDES draft permit is processed under this Subpart, any other draft permits which have been consolidated with the NPDES draft permit under § 124.4 shall likewise be processed under this Subpart, except for PSD permits when the Regional Administrator makes a finding under § 124.4(e) that consolidation would he likely to result in missing the one year (3) § § 124.58 through 124.66. (d)(1) § 124.72 “Definitions,” except for the definition of “Presiding Officer,” see § 124.119. (2) § 124.73 “Filing.” (3) § 124.78 “Exparte communications.” (4) § 124.80 “Filing and service.” (5) § 124.85(a) (Burden of proof). (6) § 124.86 “Motions.” (7) § 124.87 “Record of hearings.” (8) § 124.90 “Interlocutory appeal.” (e) In the case of permits to which this Subpart is made applicable after a final permit has been issued under § 124.15, either by the grant under § 124.75 of a hearing request under § 124.74, or by notice of supplemental proceedings ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33505 under § 124.14, § § 124.13 and 124.76 shall also apply. § 124.113 Public notice of draft permits and public comment period. Public notice of a draft permit under this Subpart shall be given as provided in § 124.10 and 124.57. At the discretion of the Regional Administrator, the public comment period specified in this notice may include an Opportunity for a public hearing under § 124.12. § 124.114 Request for hearing. (a) By the close of the comment period under § 124.113, any person may request the Regional Administrator to hold a panel hearing on the draft permit by submitting a written request containing the followingi (1) A brief statement of the interest of the person requesting the hearing; (2) A statement of any objections to the draft perrnit (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 fact, 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 wider § 124.57(c). If the Regional Administrator determines that a request does not meet the requirements of paragraph (a) of this section or does not present genuine issues of fact, the Regional Administrator may deny the request for the hearing and shall serve written notice of that determination on all persons requesting the hearing. (c) The Regional Administrator may also decide before a draft permit is prepared under § 124.8 that a hearing should be held under this section. In such cases, the public notice of the draft permit shall explicitly so state and shall contain the information required by § 124.57(c). This notice may also provide for a hearing under § 12412 before a hearing is conducted under this section. § 124.115 Effect of denial of or absence of request for hearing. If no request for a hearing is made under § 124.114. or if all such request are denied under that section, the Regional Administrator shall then prepare a recommended decision under § 124.124. Any person whose hearing request has been denied may then appeal that recommended decision to the Administrator as provided in § 124.91. § 124.116 NotIce of tearing. (a) Upon granting a request for a hearing under § 124.114 the Regional Administrator shall promptly publish a notice of the hearing as required under § 124.57(c). The mailed notice shall include a statement which indicates whether the Presiding Officer or the Regional Administrator will issue the Recommended decision. The mailed notice shall also allow the participants at least 30 days to submit written comments as provided under § 124.118. (b) The Regional Administrator may also give notice of a hearing under this section at the same time as notice of a draft permit under § 124.113. In that case the comment periods under § § 124.113 and 124.118 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 § 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 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) 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. § 124.118 SubmissIon of written comments on draft permit. (a) No later than 30 days before the scheduled start of the hearing (or such other date as may be set forth in the notice of hearing), each party shall file all of its comments on the draft permit, - based on information in the administrative record and any other information which is or reasonably could have been available to that party. All comments shall includeS 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) of this section shall constitute the bulk 4 of the evidence submitted at the hearing. Oral statements at the hearing should be brief and in the nature. of argument. They shall be restricted either to points that could not have been made in written comments, or to emphasize points which are made in the comments, but which the party believes can more effectively be argued in the hearing context. (2) Notwithstanding the foregoing, within two weeks prior to the deadline specified in paragraph (a) of this section for the filing of comments, any party may move to submit all or part of its comments orally at the hearing in lieu of submitting written comments and the Presiding Officer shall, within one week, grant such motion if the Presiding Officer finds that the party will be prejudiced if required to submit the comments in written form. (c) Parties to any hearing may submit written material in response to the comments filed by other parties under paragraph (a) of this section at the time they appear at the panel stage of the hearing under § 124.120. § 124.119 PresidIng Officer. (a)(1)(i) Before giving notice of a hearing under this Subpart in a proceeding involving an NPDES permit, the Regional Administrator shall request that the Chief Administrative Law Judge - assign an Administrative Law Judge as the Presiding Officer. The Chief Administrative Law Judge shall then make the assignment. (ii) If all parties to such a hearing waive in writing their statutory right to have an Administrative Law Judge named as the Presiding Officer in a hearing subject to this subparagraph the Regional Administrator may name a Presiding Officer under paragraph (a)(2)(ii) of this section. (2) Before giving notice of a hearing under this Subpart in a proceeding which does not involve an NPDES permit or a RCRA permit termination, the Regional Administrator shall either fi) Request that the thief 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 ------- 33506 Federal Register I Vol. 45, No. 98 ‘ Monday, May 19, 1980 / 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 Officen (iii) 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)(2)(il) of this section. (b) It shall be the duty of the Presiding Officer to conduct a fair and Impartial hearing. The Presiding Officer shall have the authority: (1) Conferred by § 124.85(b)(1)—(15), § 124.83(b) and (c), and; (2) To receive relevant evidence, provided that all comments under § § 124.113 and 124.118, the record of the panel hearing under § 124.120, and the administrative record, as defined in § 124.9 or in § 124.18 as the case may be shall be received in evidence, and (3) Either upon motion or sua sponte, to change the date of the hearing under § 124.120, or to recess such a hearing until a future date. In any such case the notice required by § 124.10 shall be given. - § 124.120 Panel hearing. (a) A Presiding Officer shall preside at each hearing held under this Subpart. An EPA panel shall also take part in the hearing. The panel shall consist of three or more EPA temporary or permanent employees having special expertise or responsibility in areas related to the hearing issue, at least two 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 parte rules in § 124.78. The Regional Administrator may also designate Agency trial staff as defined in § 124.78 for the hearing. (c) At any time before the close of the hearing the Presiding Officer, after consultation with the panel, may request that any person having knowledge concerning the issues raised In the hearing and not then scheduled to participate therein appear and testify at the hearing. (d) The panel members may question any person participating In the panel hearing. Cross-examination by persons other than panel members shall not be permitted at this stage of the proceeding except when the Presiding Officer determines, after consultation with the panel, that the cross-examination would expedite consideration of the issues. However, the 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 panel hearing may submit a written request to cross- examine any issue of material fact. The motion shall be submitted to the Presiding Officer within 15 days after a full transcript of the panel hearing is filed with the Regional Hearing Clerk and shall specify: (1) The disputed issue(s) of material fact. This shall include an explanation of why the questions at issue are factual rather than of an analytical or policy nature, the extent to which they are in dispute in light of the then-existing record, and the extent to which they are material to the decision on the application; and (2) The person(s) to be cross- examined, and an estimate of the time necessary to conduct the cross- examination. This shall include a statement explaining how the cross- examination will resolve the disputed issues of material fact. (b) After receipt of all motions for cross-examination under paragraph (a) of this section, the Presiding Officer, after consultation with the hearing panel, shall promptly issue an order either granting or denying each requçst. 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 that 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. (d) The Presiding Officer a id, 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 aqthorlty 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-examination, a party may request that alternative methods of clarifying the record (such as the submission of additional written information) be used in lieu of or in addition to cross-examination. The Presiding Officer shall Issue an order granting or denying this request at the time he or she issues (or would have issued) an order granting or denying a request for cross-examination, under paragraph (b) of this section. If the request for an alternative method is granted, the order shall specify the alternative and any other relevant information (such as the due date for submitting written information). (2) In passing on any request for cross-examination submitted under paragraph (a) of this section, the Presiding Officer may, as a precondition to ruling on the merits of the request, require alternative means of clarifying the record to be used whether or not a request to do so has been made. The party requesting cross-examination shall ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33507 ave one week to comment on the ssults of using the alternative method. fter considering these comments the esidIng Officer shall issue an order granting or denying the request for cross-examination. (f) The provisions of § 124.85(d)(2) apply to proceedings under this Subpart. § 124.122 Record for final permit. The record on which the final permit shall be based in any proceeding under this Subpart consists of: (a) The administrative record compiled under H 124.9 or 124.18 as the case may be; (b) Any material submitted under § 124.78 relating to ex porte contacts: (c) All notices issued under § 124.113: (d) All requests for hearings, and rulings on those requests, received or issued under § 124.114; (e) Any notice of hearing issued under § 24.116: (f) Any request to participate In the hearing received under § 124.117; (g) All comments submitted under § 124.118, any motions made under that section and the rulings on them, and any comments filed under § 124.113; (h) The full transcript and other naterial received into the record of the )anel hearing under § 124.120; L) Any motions for, or rulings on, :ross-examina Lion filed or issued under § 124.121; (j) Any motions for, orders for, and the results of, any alternatives to cross- examination under § 124.121; and (k) The full transcript of any cross- examination held. § 124.123 FIling of brief, proposed findings of fact and conclusions of law and proposed modified permit. Unless otherwise ordered by the Presiding Officer, each party may, within 20 days after all requests for cross-examination are denied or after a transcript of the full hearing including any cross-examination becomes available, submit proposed findings of fact: conclusions regarding material 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 garding material issues of law, fact, or ‘scretion; and a proposed modified rmit where appropriate. Oral gument may be held at the discretion of the Presiding Officer on motion of any party or suo sponte. § 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 recommendation as to whether and in what respect the draft or final permit should be modified. After the recommended decision has been filed, the Regional Hearing Clerk shall serve a copy of that decision on each party and upon the Administrator. § 124.125 Appeal from or review of recommended decision. (a)(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 objected, and may appeal those exceptions to the Administrator as provided in § 124.91. except that references to “initial decision” will mean recommended decision under § 124.124. § 124.126 Final decision. As soon as practicable after all appeal proceedings have been completed, the Administrator shall issue a final decision. That final decision shall include findings of fact; conclusions regarding material issue of law, fact, or discretion, as well as reasons therefore; and a modified permit to the extent appropriate. It may accept or reject all or part of the recommended decision. The Administrator may delegate some or all of the work of preparing this decision to a person or persons without substantial prior connection with the matter. The Administrator or his or her designee may consult with the Presiding Officer, members of the hearing panel, or any other EPA employee other than members of the Agency Trial Staff under § 124.78 in preparing the final decision. The Hearing Clerk shall file a copy of the decision on all parties. § 124.127 Final decision if there is no review. If no party appeals a recommended decision to the Administrator, and if the Administrator does not elect to review it, the recommended decision becomes the final decision of the Agency upon the expiration of the time for filing any appeals. § 124.128 DelegatIon of authority; time limitations. (a) The Administrator may delegate to a Judicial Officer any or all of his or her authority under this Subpart. (b] The failure of the Administrator, Regional Adthinistrator, or Presiding Officer to do any act within the time periods specified under this Part shall not waive or diminish any right, power, or authority of the United States Environmental Protection Agency. (c) Upon a showing by any party that it has been prejudiced by a failure of the Administrator, Regional Administrator, or Presiding Officer to do any act within the time periods specified under this Part the Administrator. Regional Administrator, or Presiding Officer, as the case may be, may grant that party such relief of a procedural nature (including extension of any time for compliance or other action) as may be appropriate. Appendix A to Part 124—Guide to Decisionmaking Under Part 124 This Appendix is designed to assist in reading the procedural requirements set out in Part 124. II consists of two flow charts. Figure 1 diagrams the more conventional sequence of procedures EPA expecta to follow in processing permits under this Part. It outlines how a permit will be applied for, how a draft permit will be prepared and publicly noticed for comment, and how a final permit will be issued under the procedures in Subpart A. This permit may then be appealed to the Administrator, as specified both in Subpart A (for RCRA, UIC, or PSD permits), or Subpart E or F (for NPDES permits). The first flow chart also briefly outlines which permit decisions are eligible for which types or appeal. Part 124 also contains special “non- adversary panel hearing” procedures based on the “initial licensing” provisions of the Administrative Procedure Act. These procedures are set forth in Subpart F. In some cases, EPA may only decide to make those procedures applicable after it has gone through the normal Subpart A procedures on a draft permit. This process is also diagrammed in Figure 1. Figure 2 sets forth the general procedure to be followed where these Subpart F procedures have been made applicable to a permit from the beginning. Both flow charts outline a sequence of events directed by arrows The boxes set forth elements of the permil,process; and the diamonds indicate key decisionmaking points in the permit process. The charts are discussed in more detail below. ------- 33508 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations Figure 1—Conventional EPA Permitting Procedures This chart outlines the procedures for issuing permits whenever EPA does not make use of the special “panel hearing’ procedures in Subpart F. The major steps depicted on this chart are as Follows’ 1. The permit process can begin m any one of the following ways: a Normally the process will begin when a person 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 § 124.6. c. In-addition, the permittee or any interested person (other than for PSD permits) may request modification revocation and reissuance or termination of a permit under § 122 15,122.16 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. if the request is denied, an informal appeal to the Administrator is available. 2. The next major step in the permit process is the preparation of a draft permit. As the chart indicates, preparing a draft permit also requires preparation of either a statement of basis ( 124.7). a fact sheet ( 124.8) or, compilation of an “administrative record” ( 124.9), and public notice ( 124.10). 3. The next stage is the public comment period (* 124.11). A public hearing under § 124 12 may be requested before the close of the public comment period. EPA has the discretion to hold a public hearing, even if there were no requests during the public comment period. If EPA decides to schedule one, the public comment period will be extended through the close of the hearing. E1 A also has the discretion to cond ict 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 ( 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 a new draft permit and begin the process again from that point, or for RCRA and UIC permits, or for NPDES permits that constitute “initial licensing”, to begin “panel hearing” proceedings under Subpart F. These various results are shown schematically. 5 The public coment period and any public hearing will be followed by issuance of a final permit decisio ’n ( 124.15). As the chart shows, the final permit must be accompanied by a response to comments ( 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 § 124.19. b. NPDES permits which do not involve “initial licensing” may be appealed in an evidentiary hearing under Subpart E. The regulations provide ( 124.74) that if such a hearing is granted for an NPDES permit and if RCRA or UIC permits have been consolidated with that permit under § 124.4 then closely related conditions of those RCRA, or UIC permits may be reexamined in an evidentiary hearing. PSD permits, however, may never be. reexamined in a Subpart E hearing. c. NPDES permits which do involve “initial licensing” may be appealed in a panel hearing under Subpart F. The regulations provide that if such a hearing is granted for an NPDES permit, consolidated RCRA, UIC, or PSD permits may also be reexamined in the same proceeding. As discussed below, this is only one of several ways the panel hearing procedures may be used under these regulations. 7. This chart does not show EPA appeal procedures in detaiL Procedures for appeal to the Administrator under § 12419 are self- explanatory; Subpart F procedures are diagrammed in Figure 2, and Subpart E procedures are basically the same that would apply in any evidentiary hearing. However, the chart at this stage does reflect th provisions of § 124.60(b), which allows EPA, even after a formal hearing has begun, to “recycle” a permit back to the draft permit stage at any time before that hearing has resulted in an initial decision. Figure 2—Non-Adversary Panel Procedures This chart outlines the procedures for processing permits under the special “panel hearing” procedures of Subpart F These procedures were designed for making decisions that involve “initial licensing” NPDES permits Those permits include the first decisions on an NPDES permit applied for by any discharger that has not previously held one, and the first decision on any statutory variance In addition, these procedures will be used for any RCRA, UIC, or PSD permit which has been consolidated with such an NPDES permit, and may be used, if the Regional Administrator so chooses, for the issuance of individual RCRA or UIC permits. The steps depicted on this chart are as follows: 1. Application for a permit. These proceedings will generally begin with an application, since NPDES initial licensing always will begin with an application. 2. Preparation of a draft permit. This is identical to the similar step in Figure 1. 3, Public comment period. This again is identical to the similar step in Figure 1. The Regional Administrator has the opportunity to schedule an informal public hearing under § 124.12 during this period. 4. Requests for a panel hearing must be received by the end of the public comment period under § 124.113. See § 124 214 If a hearing request is denied, or if no hearing requests are received, a recommended decision will be issued based on the comments received. The recommended decision may then be appealed to the Administrator. See § 124.115. 5. If a hearing is granted, notice of the hearing will be published in accordance with § 124.116 and will be followed by a second comment period during which requests to participate and the bulk of the remaining evidence for the final decision will be received ( 124 117 and 124.118). The regulations also allow EPA to move directly to this stage by scheduling a 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 § 124.118 would occur at the same time. EPA anticipates that this will be the more frequent practice when permits are processed under panel procedures. This is also a stage at which EPA can switch from the conventional procedures 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. 6. After the close of the comment period, a panel hearing will be held under § 124 120, followed by any cross-examination granted under § 124.121. The recommended decision will then be prepared ( 124.124) and an opportunity for appeal provided under § 124 125. A final decision will be issued after appeal proceedings, if any. are concluded. BILLING CODE 65SO-O1-M ------- Figure 1-Conventional EPA Permitting Procedures 0.. C D C D C D -I 0 C , ’ z 0 0 C, Co. Co CD C, 0 CD 00 C, 0 Co Co 01 Co Co ------- [ EPA Appeal Procedures App.aI to I Adminu tratOr .-.) RCRA. uic a PSD p..mdaI §124.19 0 q9. 0 CD 0 C ,’ z 0 0 CD CD CD C D 0 - CD 00 — C, 0 CD CD ------- Figure 2-Non•Adversary Panel Procedures BILLING CODE 6560-01-C No .pp..I, 5124.127 oqu.st g .nted C D CD 0 CD CD 0 0 En z 0 CD CD CD p 1 CO CD CD CD 0 CD CD 0 CD En ------- 33512 Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations 2. 40 CFR Part 125 18 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 DefinitIons. For the purposes of this Part, any reference to “the Act” shall mean the Clean Water Act of 1977 (CWA). Unleis 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). § 125.3 Technoiogy-ba8ed treatment requirements In permits. (a) GeneraL Technology-based treatment requirements under section 301(b) of the Act represent the minimum level of control that must be imposed in a permit issued under section 402 of the Act. (See § § 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) Statutory variances and extensions. (1) The following variances from technology-based treatment requirements are authorized by the Act and may be applied for under § 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 § 122.53: * * * * * (c) * * * (1) Application of EPA-promulgated effluent limitations developed under * section 304 of the Act to diachargers 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 wI ere those determinations are not required to be reexamined by a court remanding the regulations. In addition, dischargers may seek fundamentally different factors variances from these effluent limitations under § 122.53 an,d Subpart D of this Part. * a a * * (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. - * * * * * (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 nonconventional 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 (ii)(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 § 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 technically 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)(A) The limitation reflects BAT- level control of discharges (or an appropriate level determined under section 301(c) 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 § 124.56 sets forth the basis for the limitation, including a finding that compliance with the limitations will result in BAT-level (or other appropriate level) control of the hazardous substances discharges identified in paragraph (g)(2)(ii)(B) of this section, and a finding that it would be economically or technically infeasible to directly limit the hazardous substance(s). (iii) Hazardous substances which are also toxic pollutants are subject to paragraph (g)(1) of this section. (3) The Director may not set a more stringent limit under the preceding paragraphs if the method of treatment required to 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 §122.61(a)(1) (notification of increased discharges of toxic pollutants above levels reported in the application form). C. Section 125.30 is amended by revising paragraph (b) to read as follows: § 125.30 Purpose and scope. * a * * * (b) In establishing national limits, EPA takes into account all the information it can collect, develop and solicit regarding the factors listed in sections 304(b), 304(g) and 307(b) of the Act. In 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 or 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’s 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 (f) to read as follows: § 125.72 Early screening of applications for sectIon 316(a) variances. * * a * a ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33513 (I) if an applicant desires a ruling on a ction 316(a) application before the uling 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 at the discretion of the Director. [ Note.—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 experience.) * * * E. Section 125.92 is revised to read as follows: § 125.92 Requests for permit modification and Issuance under section 301(I)(1) 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: 25.95 Requests for permit modification 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(i). C. Section 125.104 is amended by revising paragraph (c) to read as follows: § 125.104 Best management practices programs. * * * * (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 n the draft permit ( 124.6). The BMP rogram shall be subject to the pplicable permit issuance requirements of Part 124, resulting in the incorporation of the program (including any modifications of the program resulting from the permit issu3nce procedures) into the final permit. (2) Proposed modifications to the BMP 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 reissuance unless the Director specifies a later date in the permit. lNote.—A later date may be specified in .the permit, for example, to enable coordinated preparation 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 facilitys BMP or SPCC program.) * * * * * (FR Doc 60—14312 F,Iad s—ia—en 645 amj BILLING CODE 65GB-el-U ------- Monday May 19, 1980 Part XI Environmental Protection Agency Consolidated Permit Application Forms for EPA Programs ------- 33516 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 122, 123, 124, and 125 (FRL-1453-41 Consolidated Permit Application Forms for EPA Programs AGENCY: Environmental Protection Agency. ACTION. Publication of consolidated permit application forms. SUMMARY: Elsewhere in today’s Federal Register, EPA has published final consolidated regulations for several permit programs adminstered by the Agency. As part of its consolidation of permit programs, EPA is also developing a set of consolidated application forms for several of its permit programs. The complete set of consolidated application forms will consist of a brief general form requesting information common to all the consolidated permit programs (including an identification of the facility and a general description of the various pathways by which the facility releases pollutants to the environment) and several supplemental program-specific forms. Several of these forms, drafts of which were published for public comment on June 14, 1979 (44 FR 34346), are now available for use and are published in this notice. These are: Form 1—the general form for all applicants. Form 2b—a supplemental form for concentrated animal feeding operations and aquatic animal production facilities applying for National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act. Form 2c—a supplemental form for existing industrial dischargers applying for NPDES permits. Form 3—a supplemental form for hazardous waste management facilities applying for hazardous waste treatment, storage, or disposal permits under the Resource Conservation and Recovery Act. Additional forms will be developed in the future, as explained in the Supplementary Information section below. The consolidated application forms have been designed for use by applicants for EPA permits. States with EPA-approved permit programs m y adopt the EPA format in developing their own forms, or they may develop forms which differ from EPA’s, provided that their forms require submission of the information required by 40 CFR Part 122 of the consolidated permit regulations. EPA encourages States to consolidate their application forms in a manner which will, like EPA’s consolidated form, provide complete summaries of facilities’ total releases of pollutants to the environment. The Supplementary Information below discusses exten’sively the NPDES permitting strategy and related regulations, as well as the application forms. Drafts of the forms and proposed regulations and discussion of the permitting strategy were published together in Part III of the June 14, 1979 Federal Register (44 FR 34346). Today, the final regulations are published as part of the consolidated regulations. However, the regulations relating to the application requirements and permitting strategy are discussed here rather than in the preamble to the consolidated regulations to again allow a unified, detailed discussion of the future direction of the NPDES program. DATES: Forms 1, 2b, 2c, and 3 must be used in accordance with the following schedule: 1. New concentrated animal feeding operations and aquatic animal production facilities applying to EPA for NPDES permits must submit Forms I (EPA Form 3510-1, 0MB No. 158—R0175) and 2b (EPA Form 3510—2b, 0MB No. 158-R0174). EPA Form 7550-7(0MB No. 158.-R0103) will be superseded. Any existing facility applying for a new permit must submit Forms I and 2b, unless its permit expires on or before November 30, 1980 and it has already submitted EPA Form 7550—7. See 40 CFR 122.53(c) (published elsewhere in today’s Federal Register) for information on deadlines for submission. 2. Any existing industrial (manufacturing, commercial, mining or silvicultural) facility applying to EPA for an NPDES permit must submit Forms 1 and 2c (EPA Form 3510—2c, 0MB No. 158 —R0173), unless its permit expires on or before November 30, 1980 and it has already submitted EPA Forms 7550-8, 7550—9 or 7550—23. Forms 7550—8, -.9, and —23 are superseded for all such dischargers applying after May 19, 1980. l-lowever, they must still be used by NPDES new sources and new dischargers until Form 2d is made available. See 40 CFR 122.53(c) for information on deadlines for submission. 3. Hazardous waste management facilities must submit Forms I and 3 (EPA Form 3510-3, 0MB No. 158— S80004) to EPA no later than 180 days after promulgation of 40 CFR Part 261. (These facilities must also submit brief notification forms to EPA no later than 90 days after promulgation of 40 CFR Part 261. See 45 FR 12746, February 26, 1980.) FOR FURTHER INFORMATION CONTACT: 1. Forms 1, 2b, and 2c: Fanny Knox or Dov Weitman, Permits Division (EN— 336), Environmental Protection Agency 401 M Street SW, Washington, D.C. 20460 (202) 426—7010. 2. Form 3: Art Glazer or Allen Pearce, Office of Solid Waste (WH-583), Environmental Protection Agency, 401 M Street SW, Washington, D. C. 20460 (202) 755—9150. SUPPLEMENTARY INFORMATION: Contents of this Preamble: 1. Overview of Consolidated Application Forms II. General Application Requirements for All Permit Programs: § 122.4 and Form I Ill. NPDES Forms 2b and 2c and Related NPDES Regulations - A. Introduction 1. Overview of this Preamble Discussion 2. Use of a Single Form for all Existing Industrial Dischargers B. Strategy for Issuing Permits to Control Discharges of Toxic Pollutants 1. General Approach to Permit Writing 2. New Regulations to Insure the Control of Toxic Pollutants a. Summary of Requirements i. Requirement to Control all Significant Discharges of Toxic Pollutants through Permit Limits: § 122.62(e) ii. Regulation of Toxic Pollutants not Limited in Permits (A) Notification of Increased Dischargr_ of Toxic Pollutants: § 122.61(a) (B) Modification of Permit to Control Increased Discharges of Toxic Pollutants: § 122.15(a)(5)(viii)— [ x) b. Discussion of Changes from Proposed Requirements 3. Toxicity-based Limits: § 125.3(c)(4) 4. Indicator Limits to Control Toxic Pollutants or Hazardous Substances: §125.3(g) C. NPDES Application Requirements for Concentrated Animal Feeding Operations and Aquatic Animal Production Facilities: § 122.53(e) and Form 2b D. NPDES Application Requirements for - Existing Industrial Dischargers § 122.53(d) and Form 2c 1. General Discussion of Requirements; Public Availability of Information 2. Required Analyses and Estimates of Pollutant Discharges a. Toxic Pollutants: § 122.53(d)(7)(ii) and (v) and item V—C b. Other Pollutants i. Required Analyses: § 122.53(d)(7)(i) and item V—A ii. Required Reporting of Presence or Absence and, if Present, Required Analyses: § 122.53(d)(7)(iii) and item ,V-B iii. Required Reporting of Presence or absence of Asbestos and Hazardous ------- Federal Register f Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33517 Substances: § 122.53(d)(7)(iv) and item V-D c. General Concerns in Sampling, Analysis and Reporting of Testing Results i. Sampling Requirements ii. Reporting of Analytical Testing Results (A) Detection Limits (B) Miscellaneous d. Response to Comments Advocating Biological Monitoring for NPDES Permit Applications 3. Other Application Requirements a. Outfall Location: § 122.53(d)(1) and item I b. Flows, Sources of Pollution and Treatment Technologies: § 122.53(d)(2)—(4) and item II c. Maximum Production: § 122.53(d)(5) and item III d. Currently Required Construction, Upgrading or Operation of Waste Treatment Equipment: § 122.53(d)(6) and item IV e. Potential Discharges of Toxic Pollutants i. Toxic Pollutants Used or Produced by the Applicant: § 122.53(d)(9) and item Vl—A ii. Predicted Potential Increases in Discharges of Pollutants: § 122.53(d)(10) and item VI—B and C Results of Previous Biomonitoring: § 122.53(d)(11) and item VII g. Laboratory Conducting Analyses: § 122.53(d)(12) and item VIII h. Other Information Required by the Director on a Case-by-Case Basis: § 122.53(d)(13) 4. Proposed Application Requirements Deleted from the Final Regulations and Form a. Optional Reporting of Discharges of Hazardous Substances b. Submission of Data on Additional Pollutants c. Ancillary Activities which May Result in Discharges of Toxic Pollutants or Hazardous Substances—Best Management Practices Programs E. Monitoring Requirements 1. Chemical Monitoring 2. Biological Monitoring F. Economic and Resource Impacts 1. Unit Costs of Sampling and Analysis 2. Unit Reporting Costs 3. Total Incremental Costs 4. Economic Impact Upon Selected Industries 5. Impact Upon Independent Laboratory Capacity 6. Small Business Exemption a. General i Coal Mines 1. Part A of Hazardous Waste Application Requirements: § 122.24 and Form 3 I. OVERVIEW OF CONSOLIDATED APPLICATION FORMS Today EPA is publishing in final form the first major regulatory products of its permits consolidation efforts. These products, which were proposed on June 14, 1979 (44 FR 34244 and 44 FR 34348), are consolidated permit regulations and a consolidated set of permit application forms. The consolidated permit regulations are designed to promote consistency in several of EPA’s established and newly- developed permit programs. The regulations are promulgated as 40 CFR Parts 122—124 elsewhere in today’s Federal Register. They apply to five permit programs: (1) The Hazardous Waste permit program under section 3005 of the Resource Conservation and Recovery Act (RCRA); (2) The Underground Injection Control (UIC) permit program under Part C of the Safe Drinking Water Act (SDWA); (3) The National Pollutant Discharge Elimination System (NPDES) permit program under section 402 of the Clean Water Act (CWA); (4) The Dredged or Fill Material permit program under section 404 of - CWA; and (5) The Prevention of Significant Deterioration (PSD) permit program under Part C of the Clean Air Act (CAA). The EPA consolidated application forms will be used by applicants for EPA-issued permits under the above permit programs. However, since EPA does not issue any permits under the dredged or fill material program, it is not developing a form for that program. (These permits are issued by the U.S. Army Corps of Engineers and by States approved by EPA.) The consolidated application forms will, when complete. consist of the following: Form i—General Information (all permits). Form 2—Discharges to Surface Water (NPDES permits). a. Publicly Owned Treatment Works. b. Concentrated Animal Feeding Operations and Aquatic Animal Produc )ion Facilities. c. Existing Manufacturing, Commercial, Mining and Silvicultural Operations. d. New Manufacturing, Commercial, Mining and Silvicultural Operations. Form 3—Hazardous Waste Information Summary (RCRA permits). Form 4—Underground Injection of Fluids (UIC permits). Form 5—Air Emissions in or near Attainment Areas (PSD permits). The above organization aiffers slightly from that set out in the Eune 14 notice. In that notice, EPA proposed to combine all application requirements for proposed facilities into a single form. Upon reconsideration, EPA has determined that, apart from the common elements consolidated in Form 1, the Informational needs of the various programs differ significantly for proposed sources as well as existing sources. Thus it makes sense to keep them separate, as outlined above. This notice contains Forms 1, Zb, 2c, and 3, which must be used as set forth above under “Dates.” As mentioned in the June 14 preamble at page 34347, EPA had hoped to publish drafts of Forms 2a. 2d (proposed Form 5). and 5 in December 1979. Forms Za and 2d have been delayed somewhat due to the need to concentrate Agency resources on finalizing Forms 1, 2b, 2c, and 3, and on promulgating final consolidated regulations. Development of Form 5 has been delayed as a result of Alabama Power v. Castle (D.C Cir., 1979), which required EPA to substantially revise several major aspects of the PSD program regulations. EPA currently anticipates that drafts of Forms 2a. 2d, and 4 will be published in June 1980. The date for publication of a draft of Form 5 is currently uncertain. Applicants for PSD permits should contact their local EPA Regional offices for information on how to apply for PSD permits pending availability of Form 5. The set of consolidated application forms are required to be used only for applications to EPA. Where approved States have permit-issuing authority, they may use their own forms. These forms must, however, require at least the information required by the application requirements contained in 40 CFR Part 122. In addition, States may require information beyond that required by EPA. EPA encourages States to consolidate their programs and forms and hopes that the EPA consolidated application forms will provide a useful model to the States. Or course, States may choose to use EPA’s forms. EPA has in the past provided NPDES forms to States wishing to use EPA forms. This practice will continue in the future for all of the consolidated permit application forms. States may be able to consolidate State permit application forms for permit programs other than those covered by EPA’s consolidated forms, such as State dredged or fill material application forms. Combination of forms for PSD and nonattainment permit applications under Parts C and 0 of the Clean Air Act might prove particularly useful. ------- 33518 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations One commenter suggested that EPA require States to use the same form as EPA. This suggestion has not been adopted, because States are allowed by the applicablélaws to have more’ stringent application requirements than EPA. In addition. EPA sees no compelling need to require a uniform application for in all States. Inclusion of uniform minimum application requirements in 40 CFR Part 122, coupled with EPA approval of State program forms under 40 CFR 123.4(d), will provide sufficient uniformity to meet program needs. EPA was pleased to receive generally favorable comments from the public on the concept of consolidating the application forms. As Citizens for a Better Environment pointed out, this consolidation will not only reduce paperwork but will also provide a “concise and clear record of the ultimate fate of all of the pollutants generated by a facility, whether these pollutants are discharged to air, water or land.” States were also supportive of EPA’s effort. - Some industry commenters did, however, express two major concerns, although in general they did not object to the concept of consolidating application forms. The first concern expressed by industry was an extension of the general. concerns raised about the consolidated permits regulations: that application and permit requirements of one program should not be applied to another program and that application procedures under one program should not be allowed to delay procedures under another program. EPA agrees that consolidation should not affect substantive requirements of applicable law and that consolidated procedures should be used to expedite rather than delay permit issuance. The preamble to Parts 122 and 124 of the consolidated - regulations discusses these issues in detail. The important point is that different program-specific application forms (e.g.. Forms 2c and 3) may be submitted separately and, if necessary to avoid delay, processed separately. The second concern expressed by commenter from several industries (particularly farming and coal mining, but also oil and gas producing, steam electric generating, and cement and concrete industries) was that industry. specific forms should be developed for each industry, resulting in simplification. for applicants. EPA agrees that development of industry-specific forms may be useful in certain situations, although administrative resource constraints enerally preclude such development for each regulated industry. EPA has been able to take steps to develop specific requirements for the farming and coal mining industries. EPA has separated agricultural and aquatic operations from all other dischargers of pollutants by developing Form 2b. Similarly, EPA is working with the Department of the Interior’s Office of Surface Mining to develop a consistent set of specific application requirements for the coal mining industry (see section lII.F.6.b of this preamble; see also 44 FR 55322, September 25, 1979). II. GENERAL APPLICATION REQUIREMENTS FOR ALL PERMIT PROGRAMS: § 122 4 AND FORM I Form 1 of the consolidated application forms requires identification of the applicant and general information showing the various pathways by which the facility releases pollutants to the environment. This information is used by the applicant to determine what permits are needed by the facility and which supplemental forms must be submitted in addition to Form 1. Most of the requirements of Form I also appear in § 122.4 of the consolidated regulations. The June 14 draft of Form I has been changed in some minor respects in the final version. In addition, the instructions have been shortened and clarified by deleting reptitious information and making appropriate editorial changes. The instructions have also been amended to reflect program changes in the final consolidated (and other program) regulations and to reflect the changes in the PSD program required by Alabama Power v. GoaLie. Divergent philosophical viewpoints were expressed in comments by industry and environmental groups. Several industry commenters referring to Items II (draft item I) and XI (draft item X) questioned EPA’s authority to require information not directly related to the applied-for permits. Item U requires a facility applying for a permit under one program to state whether or not it engages in any activity regulated under any of the other consolidated EPA permit programs. Item XI requires submission of a map showing the various types of wastes which the facility releases to the environment and the various ways those wastes are released. For example, a facility needing an NPDES permit must also state whether it treats, stores or disposes of hazardous waste and, if so, must show on a map where it does so. Environmentalists argued tb the contrary that Form 1 should require much more detailed information showing the movement of all waste stream components in an industrial process, from the introduction of raw materials through processing to ultimate release. EPA has concluded, after considering both the industrial and environmental arguments that the middle course which it adopted in draft Form I should be retained as the most suitable one for the form’s purposes. EPA believes that responsible environmental management requires a unified examination of a facility’s total residual waste stream. In recent years, the interrelation of various environmental programs has become increasingly clear. See, for example, section 1006 of RCRA, requiring EPA to integrate all provisions of RCRA, for purposes of administration and enforcement, with the appropriate provisions of the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and certain other environmental laws administered by EPA. EPA is responding to this need through its consolidated permit regulations and through its consolidated application forms, particularly Form 1. Because the burden on a facility to list and to indicate on a map its releases of pollutants to the environment is minimal, the environmental benefit of providing this information is not ountervailed by a substantial burden on industry. However, because of the differing informational needs of the various consolidated programs, the detailed information desired by the environmental conimenters Is not required by Form 1. Rather, any detailed Information required to make permit issuance decisions under a particular program should be requested in that program’s supplemental form. Form I thus functions as a “road map,” leading the applicant to the detailed informational requirements relevant to its operation. Specific items on Form I which were of interest to coinmenters are discussed below: Item I (item II in the June 14 draft of Form I): EPA has renamed the “Facility ID Number;” it will now be referred to as “EPA ID Number,” In response to comments (particularly from farmers and oil and gas producers) that Dunn and Bradstreet (DUNS) numbers have not been assigned to certain facilities and are difficult to obtain, EPA has decided to provide DUNS numbers to facilities before they fill out their applications. In many instances, the ID number (which will be obtained by EPA from Dunn and Bradstreet where none has existed previously) will be on a preprin ted label mailed to the applicant which contains items L UI (facility name), V (facility mailing address), and ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33519 F! (facility location). In other instances, ‘PA will indicate the ID number on the utside of the envelope used to mail the ipplication form to the applicant. Item II (item I in the June 14 draft): A third column has been added to this item, as requested by some commenters,, for applicants to indicate which supplemental forms are being submitted in addition to Form 1. EPA has also adopted a comment requesting that the instructions state that a facility which uuiswers yes to a question but which already has a permit covering that activity need not file a new application, unless the applicant is filing for a permit renewal. Some commenters correctly noted that question E was overly broad. Questions E through H have been redrafted to clarify that only information related to the faGility seeking a permit is requested and not, for example, information concerning hazardous waste disposed of by the same owner or operator at a different facility in a distant location. Item IV: Two environmental commenters requested that each applicant be required to list a telephone number at which a technically competent person could be reached 24 hours a day. EPA believes this is innecessary. It is true that the -lazardous Waste Permit Program ippropriately requires each facility that reats, stores or disposes of hazardous waste to have an emergency coordinator present or on call 140 CFR Part 264). However, different people are. likely to function as emergency coordinators at different times; thus’ the identification of a single person or phone number in the application is likely to become obsolete soon after the application is filed. In the event of an emergency needing immediate attention by the permittee during non-business hours, high-level’ officials of the permitted facility may generally be contacted immediateLy without difficulty. Moreover,, the National Responses Center may be reached 24 hours a day at 800—424—8802 to respond to emergencies requiring immediate assistance or advice. Item VII: Several commenters requested clarification concerning SIC codes. The purposes of requesting SIC codes are: (1) to provide permit writers with an additional means of checking whether wastes or pollutants listed on a supplemental form include all of those which the applicant might be expeded to release; (2) to provide one means for NPDES and PSD permit writers to etermine whether a particular industry tndeline or standard applies; and (3) to rovide a data base to assist EPA in orrelating industrial subcategories (indicated in Item VII) to types of wastes or pollutants being released to the environment (indicated in Item II). EPA recognizes that determining SIC codes is an imprecise exercise and requires simply that each applicant use its best judgment to list at most four SIC codes, in order of priority, which most accurately define goods (final or intermediate) and services created or produced by the applicant. Applicants needing assistance in answering the question are, now directed by the instructions, as suggested by one commenter, to contact their EPA Regional offices. Two commenters noted that off.site hazardous waste management facilities have no specific SIC code; in such cases, SIC code 9999 (“nonclassifiable establishments”) would apply. The number 9999, together with the applicant’s responses to item I, Question E and item XII will indicate that the facility is an off-site HWM facility. Item VIII: Commenters correctly noted that facilities may be operated and applications may be submitted by persons who are not owners. Form 1 now presumes that the applicant is the operator of the facility. It should be noted that 40 CFR 122.6, which applies to the NPDES, Hazardous Waste and UIC programs, provides: “Where a facility or activity is owned by one person but is operated by another person, itis the operator’s duty to obtain a permit.” An additional question has been added to determine whether the operator/applicant is also the owner of the facility. Item IX: A new item asks whether the facility is located on Indian lands. The significance of this question is jurisdictional; see 40 CFR 123.1(1) and the accompanying preamble discussion. A reference in draft item VIlI—C to Indian lands’ was deleted, since that item is designed to identify the status of the operator, not of the land itself., Item X (draft item IX): One commenter questioned the need for more than one permit number per facility. EPA does intend iii the future to use a common’ number for each permit issued to a particular facility (except for a one-letter prefix indicating under which program the permit has been issued). However., existing NPDES and PSD permits as well as future permits under “other” permit programs, necessitate provision in the form for insertion of permit numbers. A few commenters objected to’ this item and suggested that only Federal permits or only permits relevant to the one applied for be required. However, EPA believes that identification of the various environmental permits issued to the facility will promote cooperation among various agencies and offices in regulating the facility and will ultimately benefit the facility as well. Item XI (draft item X): Several commenters objected to the requirement that the map extend at least one mile beyond the facility boundaries. However, this requirement has been retained, since the disposal or discharge of wastes is likely to pollute the adjacent environment through such means as surface or ground water movement. Several other commenters correctly noted that U.S. Geological Service topographic maps at appropriate scale are unavailable for certain regions of the United States. The instruction to this item have therefore been modified to allow the use of a plat map or other appropriate map where an appropriately sized topographic map is unavailable. Several’ commenters suggested that applicants not be required to show certain items on the map (e.g.. rivers which do not receive any discharge, and rivers, wells and springs uphill of a facility). EPA notes, however, that these features are often relevant to an understanding of the geological and hydrological consequences of a discharge or disposal at the site. Futhermore, most of this information is generally indicated on U.S.G.S. maps’ and requires no work by applicants. Several commenters [ particularly oil and gas producers) correctly pointed out that an instruction to this item was overly broad in requiring identification on a map of all wells contained within one mile of the facility’s property boundaries. The requirement is now limited to drinking water wells identified in the public record or otherwise known to the applicant. Some commenters suggested further that the map should only show such wells within ¼ mile of the facility. EPA has accepted this suggestion. In light of the slow movement of groundwater. this information should be sufficient to prevent well’ contamination in cases where the groundwater becomes contaminated through faully waste disposal or other practices. Item XIII (draft item XII): See 40 CFR 122.6 and the accompanying preamble, published elsewhere in today’s Federal Register, for a discussion of certification and signatory requirements. SeveraF environmental commenters requested that latitude and longitude information be required on Form 1. EPA has decided to require this information on appropriate program-specific forms. Forms 2c and 3, published today, require this information. By using the program- specific forms to require latitude and longitude, EPA obtains more precise ------- 33520 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980/ Rules and Regulations coordinates when wastewater dischargers and hazardous waste disposal facilities are severel miles apart. Ill. NPDES FORMS 2b AND 2c AND RELATED NPDES REGULATIONS A. Introduction 1. Overnew of This Preamble Discussion The NPDES regulations on application requirements for existing industrial discharger and the new EPA application form for those dischargers (Form 2c) have been developed primarily to help implement the Agency’s strategy for the control of discharges of toxic pollutants designated under section 307(a) of the Clean Water Act in the next round of permit reissuances. Because the application requirements and permitting strategy are closely related, the application form and regulations were published together as Part III of the June 14, 1979 Federal Register (44 FR 34393). The pçoposed regulations and draft Form 2c were prefaced by a lengthy preamble, which explained the context in which the NPDES application and related requirements were developed. The discussion covered the need for a case-by-case determination of limits in the absence of effluent limitations guidelines, the use of limits on toxicity and indicator parameters, the requirement to analyze for the 129 toxic pollutants, the purpose of application- based limits, some suggested monitoring schemes to be required by permits, and the economic and resource impacts of the reporting requirements. The regulations which were proposed in Part III of the June 14, 1979 Federal Register are published in final form elsewhere in today’s Federal Register as part of EPA’s consolidated permit program regulations. This is being done so that all program regulations may be read in one place. However, this preamble, rather than the preamble to those regulations, will discuss the topics and regulations relating to the NPDES application requirements and permitting strategy to explain the final regulations in a unified manner and to respond to comments received on the proposal. The following regulations which are promulgated as part of the consolidated permit regulations are discussed in this preamble instead of in the preamble to the consolidated permit regulations: 1. § 122.53(d): Application requirements for existing industrial di chargers (paralleling Form 2c). 2. § 122.53(e): Application requirements for concentrated animal feeding operations and aquatic animal production facilities (paralleling Form 2b). 3. § 122.61(a): Application-based notification requirements for toxic pollutants. 4. § 122.15(a)(5)(viii)—(x): Modification of permits to address toxic pollutant discharges not anticipated in applications or permits. 5. § 122.62(e): Requirement to set case- by-case limits to control significant discharges of toxic pollutants. 6. § 125.3(c)(4): Toxicity-based limits. 7, § 125.3(g): Indicator limits. 2. Use of a Single Form for all Existing Industrial Dischargers Some commenters expressed concern that existing Short Forms C and D for simple discharges are not being replaced by new short forms: rather Form 2c must be used. The reason is that determining “simple” discharges is complex, given the new emphasis on toxic pollutants. Many factors would be relevant in determining “simplicity,” such as size of flow, toxicity of discharge, and type of operations producing discharges. Factors relevant to the need to respond to one application requirement may not be relevant to another. For example, although flow was used as a criterion for determining who must fill out Short Forms C and D, the new form requires a primary industry discharger with a small flow, to test for toxic pollutants, while a secondary industry discharger with a large flow may not need to do so. EPA has simplified Form 2c and clarified the instructions to assist applicants in completing the form rapidly. Some of the more burdensome requirements will immediately be understood not to apply to simple non- toxic discharges and therefore may be marked Not Applicable. For example, any secondary industry discharger which does not discharge any toxic pollutants or hazardous substances need not test for pollutants in item V—C. list toxic pollutants in item VI—A or hazardous substances in item V—D, or predict future increases of toxic pollutant discharges in item VI—B and C. Similarly, many of the remaining questions also apply only to certain applicants. Item lI—C applies only to applicants with intermittent or seasonal discharges. Item III applies only to applicants whose discharges are covered by effluent guidelines. Item IV applies only to applicants subject to waste treatment construction schedules. Item VII applies only to applicants who have conducted biological monitoring tests. A few commenters suggested that Form 2c require only minimal information, with the permit writer able to go back to the applicant to ask for any additional information. However, this would impose too great a burden on the permit writer. It also would result in the imposition of unequal burdens on similar applicants. B. Strategy and Regulations for Issuing Permits To Control Discharges of Toxic Pollutants 1. GeneralApproach to Permit Writing The 1977 Amendments to the Clean Water Act placed a new emphasis on. the control of toxic pollutants in the NPDES program. EPA is implementing the Amendments by developing effluent limitations guidelines, water quality criteria, and test methods for these pollutants. EPA will soon begin applying the new statutory and regulatory standards to specific dischargers through the issuance of NPDES permits requiring dischargers to control toxic pollutants in accordance with limits reflecting the best available technology economically achievable (BAT), as soon as possible but no later than the statutory deadline of July 1, 1984. The new permit writing strategy will be an extension of that used in issuing first-round NPDES permits. As before, permits must contain limitations reflecting the most stringent of technology-based, water quality-based, or other standards required by CWA (such as criteria for ocean discharges under section 403 and toxic standards or prohibitions under section 307(a)). For most organic toxic pollutants, however, numerical State water quality standards generally will not have been set by the time that the next round of permits are reissued. (Permits are issued for maximum terms of five years as required by CWA, and permits may not be reopened solely to incorporate new State water quality standards unless requested by the permittee.) Thus technology-based limitations will generally be the chief standard for setting permit limits on most toxic pollutants during the next round of permit reissuance, The rules for setting technology-based limitations are set forth in 40 CFR 125.3 Technology-based limitations are generally established on the basis of effluent limitations guidelines promulgated under section 304 of CWA. As in the past, permit writers must set limits on a case-by-case basis under section 402(a)(1) of CWA to control discharges which are not covered by effluent guidelines. This will occur in two types of situations: (1) when new BAT effluent guidelines addressing toxic pollutants in the applicant’s industrial category have not been promulgated or ------- Federal Register I Vol. 45,No.9! / Monday, May 19. 1980 1 Rules and Regulations 33521 - we been withdrawn or remanded; or when the applicant has certain scharges which are not covered by an herwise applicable guideline. The Agency has been daveloping new effluent limitations guidelines for toxic pollutants in accordance with the NRDC Settlement Agreement [ Natural Resources Defense Council, 8 E.RC. 2120 (D.D.C. 1976),, modified 12 E.R.C. 1833 (D,D.C. 1979J) and with the 1977 Amendments to the Cl an Water Act. To focus EPA’s resources on the more widespread and significant toxics problems, Paragraph 8 of the NRDC Settlement Agreement allows the Agency to exclude certain categories of industries and certain types of pollutants from coverage under national effluent guideline regulations. For example, pollutants which have been found at only one or two plants in an’ Industrial category need not be included in the guidelines for that category, and pollutants which are in general (though not always) adequately controlled by guideline limitations on other pollutants need not be explicitly limited m guidelines. As recognized in Paragraph 8 of the NRDC Settlement Agreement and demonstrated in EPA and State perience in issuing NPDES permits, n if a discharger’s category is ered by promulgated effluent utahans guidelines, the discharger may be discharging pollutants not adequately covered by those guidelines. A major feature of the Agency’s NPDES permittting strategy is the development of ways to identify and address situations in which significant discharges of toxics are not. covered by guidelines and thus must be controlled on a case-by-case basis. Permit writers will use several sources of information to determine appropriate BAT limits in the absence of guidelines. These sources include development documents for effluent guidelines in draft or final versions a treatability manual prepared by EPA, and any other information available to the permit writer (including information provided by the permit applicant). The treatability manual is a five-volume compilation of historical data on the levels of reductions of toxic pollutants achievable by various types of treatment equipment or methods, together with associated costs. The manual is being developed with the participation of several EPA offices, including the Effluent Guidelines Division. Thus, the information it rnntajns should be consistent with that d to develop proposed effluent itations guidelines. The manual will continually updated to reflect any new or newly discovered data on technologies and associated costs. It would be inappropriate to promulgate the treatability manual as a regulation, as requested by several commenters, because the manual contains no requirements. Rather, it compiles and summarizes historical data; it does not state conclusions, based on the data. Futhermore. EPA expects to continually update the manual to incorporate new or newly-discovered data. Any rulemaking proceeding would thus be endless. EPA plans to publish a Federal Register notice announcing availabillty of the treatability manual in June 1980. Comments are welcome and will, where appropriate, be incorporated into future editions of the manual. More important, EPA emphasizes that the manual is not a binding document (unlike, for example, a promulgated effluent limitations guideline) but is merely one source of relevant information. The permit writer’s case-by-case development of permit limits, based on Information contained in the manual or elsewhere, rema’lns subject to challenge under the appropriate procedures of 40 CFR Part 124. EPA agrees with several conimenters who advocated national uniformity of permit limitations for similar discharges. Promulgated effluent guidelines will guarantee uniformity for commonly- occurring discharges. Even when plant- specific discharges require individualized permit limits, the manual and other guidance developed by EPA should further promote national consistency. Of course, the very existence of plant—specific discharges implies a need to set permit limits for such plants which differ from those set for other plants within the same industrial category. 2. New Regulations To Insure the Control of Discharges of Toxia Pollutants a. Summary of Requfremeiris. Today’s regulations provide that permit writers must set permit limits to control all - significant discharges of toxic pollutants. Such a requirement is already implicit in section 301(bl of the Clean Water Act. However, today’s regulations specify certain steps to see that this is done. The approach is two- fold, as follows: (i) Requirement Ta’ Control all Significant Discharges of Toxic Pollutants Through’Permit Limits: § 122.62(e). Significant discharges of toxIc pollutants must be limited in the permit either directly or through the use of limits on other parameters which assure control of the-toxic pollutants, “Significant” pollutants are defined to include: • Pollutants reported in the permit application at levels exceeding the level which the permit writer determines could be achieved by BAT; or • Pollutants used or manufactured. or expected to be used or manufactured as intermediate or final products or byproducts. The fact sheet for each permit (see 40 CFR 124.56) must explain how the permit limits comply with this. requirement. (ii) Regulation of Toxic Pollutants Not Limited in Permits. All non-”significant” pollutants (i.e., those considered not likely to be discharged above BAT levels based upon the levels reported in the application or upon expected use or manufacture at the facility) need not be specifically controlled in the permit (although the permit writer retains authority to do so under § 125.3). This will allow permitting authorities to focus their resources on significant discharges of toxic pollutants. To prevent future significant discharges of non-limited pollutants, two regulatory requirements have been established: (A) Notification of Increased Discharges of Toxic Pollutants: § 122.61(a) A permittee must notify the permitiing authority as soon as it becomes aware that: Some activity has occurred or will occur to cause it to discharge a toxic pollutant at more than the greatest of 100 pjg/i (or 500 p.g/1 for 2,4 dinitrophenol and 2-methyl-4,6- dinitrophenol 200 &g/i for acrolein and acrylonitrile. and 1 mg/i for antimony) or 5 times the maximum concentration reported for that pollutant in the permit application (or a different notification level established by the Director); or It has been begun or will begin to use or manufacture a toxic pollutant as an intermediate or final product or byproduct. (B) Modification of Permit to Control Increased Discharges of ToxIc Pollutants: 8 122.15(a)(5)(viil)—(x). The permit may be modified to control a toxic pollutant when: • The perniittee discharges or expects to discharge the pollutant at a leyel higher than can be achieved by BAT; or • The permittee begins or expects to - begin to use the pollutant or to manufacture it as an intermediate or final product or byproduct. In developing the concept of significance for determining when permit limits should be set for toxic pollutants, when notification should be required, and when permits may be ------- 33522 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations modified, EPA considered commenters’ suggestion that toxicity be used as a criterion. EPA has not accepted the suggestion; all pollutants listed as toxic under section 307(a) of the Clean Water Act must be controlled by BAT. The concept of significance is used only to determine which pollutants are likely to be discharged at levels greater than achievable by BAT and thus must be limited in the permit. An assessment of toxicity does not pertain to this determination. b. Discussion of Changes from Proposed Requirements. This section discusses the proposed “application- based limits” regulation (proposed § 122.68(a)), its deletion from the final regulation in response to comments, and the Agency’s rethinking which led to the regulations discussed in section (a) above. In the June 14 proposal, EPA did not provide guidance on when toxic pollutants should be limited. While the preamble noted that “significant” toxics should be limited in permits, the proposed regulations did not contain the specific requirements promulgated today in § 122.62(e). On the other hand, the regulations and preamble focused upon the control of all present and future discharges not specifically limited through effluent guidelines or by setting case-by-case limits. The Agency proposed in § 122.68(a) a stringent approach of application-based limits: the discharge of any pollutant would have been limited to 5 times (or a higher multiplier if a certain showing could be made by a permit applicant) the level reported in the application (or to 5 times the pollutant’s detection limit, if a zero discharge was reported), unless the pollutant was limited directly. The proposed application-based limit was intended to serve two purposes. First, it would have assured some control over significant discharges identified in the permit application which were for any reason not otherwise controlled in the permit. Second, It would have assured control of future significant discharges of pollutants which were discharged at insignificant levels at the time of the permit application and thus were not specifically limited in the permit. Commenters almost unanimously criticized proposed § 122.68(a), although a few industrial commenters stated that the proposed approach was i easonable and several environmental groups supported it with reservations. Most commenters argued that the proposed regulation would not contribute any substantial environmental benefits justifying the significant burden on all permittees and that it-was insupportable legally and technically. Some commenters suggested th’at EPA could better achieve its stated goals by focusing more closely at the permit- writing stage on those pollutants which are likely to be discharged at significant levels and by using notification requirements for other pollutants which first become significant after the permit is issued. These comments, some of which were quite detailed and lengthy, convinced EPA that the imposition of application- based limits could not be supported at present and assisted the Agency in rethinking its approach to the problem of controlling discharges which are not covered sufficiently by effluent guidelines. The major comments are summarized below: SUMMARY OF COMMENTS ON PROPOSED § 122.68(a) (APPLICATIQN. BASED LIMITS) (1) The values reported in the permit application may not be representative of existing or future discharges of pollutants, both because of normal random fluctuations in concentration and because of future changes in processes or operations which were not anticipated in the permit application or which result In discharges not easily predicted, Insufficient data exist to select a multiplier which is adequate to relate the results of one sample to future discharges. If such data did exist, it would show that an appropriate multiplier would be much higher than five. Further variability is introduced by errors in sampling and analysis, variations of pollutant levels in intake water, and the use of batch processes which result in continually changing levels of pollutants. To avoid liability based upon an unduly low multiplier, applicants would have to spend a great deal of money for alternate testing to be eligible for a higher multiplier under proposed § 12268(a)(3), and even then they could not be completely assured of compliance with that multiplier. (2) Setting permit limits on all reportable pollutants is an inappropriate and unduly costly way to regulate permittees’ discharges. Perinittees could often be subjected to liability for minor violations (e g., discharges at 50 gf I). As a result, permittees would either have to spend a great deal of money on compliance monitoring to assure that they were complying with all application-based limits, or they would have to rely on assurances that, under EPA’s enforcement discretion, only large violations would be prosecuted. It would be unfair to impose near-certain liability on dischargers on the assurance that they will not be enforced against except for significant violations. It would be particularly unfair when analysis of a pollutant had not been required or when the pollutant had not been detected in the sample(s) analyzed and thus had been reported as absent in the application. (3) Application-based hmits are illegal. The Clean Water Act requires permit limits to be based on technology-based, water quality-based, or certain other standards; application-based limits are not authorized by any of these standards. In particular, application-based limits which are lower than the levels achievable by BAT (which would often occur where a pollutant was reported as zero in the application) are Improper. (4) Pollutants of concern should be limited directly using technology-based limits, rather than indirectly using application-based limits. EPA should focus on limiting significant discharges. Monitoring and reporting requirements should be relied upon to assure the discovery and subsequent control of new significant discharges occurring after the permit is issued. (5) Existing NPDES regulations already provided sufficient controls over large potential discharges of pollutants not limited in the permit, because (a) substantial changes In production were required to be reported and were grounds for permit modification, and (b) large discharges of pollutants not limited in the permit would have occurred only when permit limits on other pollutants would have been violated. (8) Application-based limits, if used atoll in the final regulations, should be based on a multiple of the amount of discharged pollutants rather than on concentrations of the pollutants. Otherwise, EPA would discourage desirable flow reduction practices. (7) Application-based limits could result in differing limits for dischargers in the some industrial subcategory. EPA does not agree with all of the above comments. In particular, EPA continues to believe that an application- based limit is legal if the multiplier accurately reflects waste stream variability. Any limit currently being achieved by a discharger is obviously no more stringent than the be8t available technology economically achievable. Thus ifs variability-based multiplier times a reported value is the maximum level currently being discharged, it clearly may be adopted as BAT. However, EPA is persuaded by the comments, considered collectively, that its proposed approach must be revised. In particular, EPA agrees with the commenters that the insufficiency of data on waste stream variability and the problem of continually changing feedstocks and batch processes both present severe technical difficulties for the concept of across-the-board application-based limits. Similarly, EPA acknowledges that the proposed approach had the potential for imposing unduly severe monitoring costs upon applicants wishing to demonstrate that a multiplier higher than 5 should be used and upon permittees wishing to assure that they are complying with application-based limits. Finally. EPA agrees that a better-focused alternative exists to address most of EPA’s concerns. ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33523 e revised approach, as outlined ye, focuses the permit writer’s ntion (in § 122.62(e))’more clearly man before on the specific control of all significant discharges of toxic pollutants by specifying various factors (reported discharge levels and the use or manufacture of toxic pollutants) indicating significance. The possibility that currently insignificant discharges of certain pollutants may be transformed later into significant discharges is addressed through notification requirements ( 122.81(a)) and through an authorization to modify permits to address such problems ( 122.15(a)(5)(viii)—(x)). The multiplier used in § 122.61 (a) as one means to trigger the notification requirement is still set at five, despite the comments criticizing it. The Agency believes that the available data supports a value of five to distinguish between random fluctuations and significant increases, at least for the purposes of a notification requirement. If the Director becomes aware of sampling or analysis errors, or fluctuations in pollutants in the intake water, the Director may modify the permit to establish a higher notification level to account for these fluctuations, as provided in § 122.62(f). :reuses from other causes are exactly at this requirement was designed to [ ulate. fwo changes have been made, however, in the way the multiplier of five will operate in the notification requirement. First, the lower threshold for notification has been raised to 100 .tg/l (and higher for several pollutants which have high detection limits). Multiples of detection limits are not used as a basis for application-based notification. Second, the multiplier applies to the maximum, rather than the average value reported in the application, of either the tested or the predicted value. This approach was suggested by some commenters. Of course, when only one sample is tested for toxic pollutants (which is all that is required), maximum and average values are indeñtical. However, the maximum value has been defined to include values predicted by the applicant under § 122.53(d)(1O) and item VI of Form 2c (discussed below in section III.D.3.e.ii). This change responds to several comments noting the difficulties in applying the proposed regulation to batch discharges and other nonrandom changes. Applicants are discouraged from reporting ‘“‘realistically high values in item VI by 22.62(e), which requires that their nits contain limits to control toxic utants reported at levels greater than w T under § 122.53(d)(10) and item VI. Any variations In levels of pollutants which cannot be predicted at the time of the application will be subject to the notification requirements in § 122.01(a). The requirement to submit 10 samples to get a higher multiplier has been deleted. The Director may set a higher notification level based on a higher maximum value, not a higher multiplier, Thus several comments received on the alternate multiplier provision (proposed § 122.68(a)(3)) no longer apply. EPA recognizes that the revised approach falls short of the propqsal in some respects. There is still some possibility (though less likely as the result of § 122.62(e)) that a permittee may discharge a large amount of a pollutant not limited in its permit, and EPA will not be able to take enforcement action against the permittee as long as the permittee complies with the notification requirements of § 122.01(a). Although EPA will now have authority under § 122.15(aJ(5)(vlil).-(x) to modify (or revoke and reissue) the permit to require control of the pollutant, permit modification can be a lengthy process. EPA will continue to examine the problem of pollutants which are not limited in permits and to seek solutions to what it still considers to be a regulatory gap, although the gap is made smaller by the regulations published today. EPA welcomes suggestions on how best to develop a technically and legally supportable approach. In addition, the final regulations control discharges only of the pollutants listed in the permit application, which consist primarily of the listed toxic pollutants and designated hazardous substances. (Proposed § 122.68(a) also was limited to the pollutants listed in the application form.) This list.is by no means exhaustive of all, chemicals which may be discharged. EPA intends to continue to study other pollutants, to make’ appropriate additions to the toxic pollutant and hazardous substance lists and to consider appropriate technological controls in the development of future effluent guidelines. Some of this work has already begun. However, some will not begin until currently listed toxics and hazardous pollutants are fully addressed. Even at present, however, permit writers may set limits on any pollutant believed to be of concern. In certain cases, bioassays and further toxicity testing may result in the identification and control of additional harmful pollutants (see sections III.D.2.d and E.2 of this preamble). The new authorities provided to EPA under the Toxic Substances Control Act- (TSCA) may help further to reduce threats of toxic discharges. Under TSCA, EPA may regulate the manufacture, use and disposal of toxic substances. Regulation under TSCA may indirectly (or, in certain instances, directly) result in the reduction or elimination of particular pollutants from discharges. 3. § 125.3(c) (4): Toxicity-Based Limits § 125.3(c)(4) provides that permit limits may be expressed in terms of effluent toxicity if they reflect the appropriate requirements of the Clean Water Act, such as technology-based or water quality-based standards. This aspect of the regulations is essentially unchanged from the proposal. Several minor editorial changes have been made, including the elimination of the reference to subparagraph (c)(2), which implied that toxicity-based limits may be used only on a case-by-case basis. The regulation now provides that toxicity-based limits may also be applied in effluent guidelines, provided the requirements of subparagraph (c)(4) are otherwise met. At this time, however, EPA does not contemplate including toxicity-based limitations in forthcoming effluent guidelines. Many comments were received concerning the issue of establishing toxicity-based permit limits. Many commenters expressed unqualified support for biomonitoring and toxicity. based permit limits, arguing that chemical limits alone are insufficient to control the many unknown toxic chemicals and the results of their interactions. Indeed, this issue was of great interest to many private citizens. Several other commenters agreed that toxicity-based limits are appropriate in certain situations but, because of the expense and delay Involved in determining and enforcing such limits, argued that they should be used only for demonstrated toxic discharges when other limits are inadequate or unavailable. EPA agrees and Is recommending that toxicity limits be used when (1) it is suspected that the discharge is toxic based on ongoing or previous toxicity testing or a history of fish kills or related toxicity problems, and (2) effluent guidelines are either absent, or it is believed that significant toxicity will remain in an effluent after the appropriate guidelines control technology is installed. Thus, toxicity- based limits should be used when the chemical limits approach is inadequate. Examples of such situations include primary industry discharges when the listed toxic pollutants are not found but serious toxicity problems exist, and ------- 33524 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations secondary industry discharges when chemical analyses are not required. Several commenters expressed concern over the determination of toxicity limits by permit writers. They argued that toxicity-based limits should reflect BAT as defined in the Clean Water Act. Other commenters opposed rigid protocols, advocating instead that the most appropriate type of toxicity- based limits should be worked out between the permittee and permit writer to correspond to the particular situation. EPA agrees that toxicity-based limits must reflect BAT or other requirements of the Clean Water Act. EPA also agrees that considerable flexibility should be allowed the permit writer to determine the permit limits most appropriate for a particular situation. There are two approaches for determining toxicity-based permit limits. The first approach is based on State water quality standards. All State standards include a 8tatement to the effect that no toxic substances may be discharged in toxic amounts. Additionally, many States such as California and Arizona specify acute or chronic levels which are not to be exceeded and define methods of measurement and reporting. The second approach is technology-based; the permit writer makes a case-by-case determination of BAT or other appropriate technological standard, using his or her best professional judgment. Such determinations must be based on an evaluation of the available technology to achieve a particular toxicity reduction. For example, when information on treatabifity is lacking, studies can be conducted to assess the reduction in toxicity resulting from various treatment systems or process alternatives. Technology-based limits using toxicity units may then be set based on this data. EPA recognizes the significant cost of this procedure and recommends that it be used only when it is not possible to adequately control toxic chemicals using appropriate chemical limits. Several commenters argued that because too much discretion was being allowed permit writers in setting toxicity limits, non-uniformity would result. EPA recognizes that some non-uniformity is inherent in a case-by-case approach, whether that approach uses chemically- based or toxicity-based permit limits. As discussed in section 111.8.1 of this preamble, case-by-case limits are a necessary approach when applicable guidelines are not available or do not result in the installation of BAT for all pollutants. To assist the permitting authorities and to promote uniformity, EPA has distributed the May 1, 1978, draft Biomonitoring Protocol Guidance for the NPDES Permits Program, which discusses the use of toxicity.based permit limits. In addition, a guidance document entitled Use of Biological Toxicity Testing in the Second Round of NPDES Permit Issuance is being developed and will be available in mid- 1980. EPA is continuing at pre8ent to rely primarily on chemical limits to control toxicity; therefore, toxicity-based limits will be employed only when these chemical limits are inadequate. The Agency believes, however, that toxicity testing and toxicity-based permit limits must play an ever-increasing rote in order to address the problems of toxic pollutant control. 4. Indicator Limits To Control Toxic Pollutants and Hazardous Substances § 125.3(g). Proposed § 125.3(g), which established certain criteria for the use of limits on indicator parameters to control toxic pollutants, has been retained in the final regulations. However, a provision has been added in paragraph (g)(3) to preserve the discharger’s ability to determine the most cost-effective method for reducing its discharges of toxic pollutants. In addition, paragraph (g)(2) has been added to provide for the use of indicator parameters to control hazardous substances, as proposed on August 29, 1979 (44 FR 50780). The use of indicators and final § 125.3(g) are discussed below. While the discussion below focuses on the control of toxic pollutants, most of the discussion pertains to hazardous substances as well. a. Outline of Strategy. EPA generally will use the word “indicator” to refer to conventional and nonconventionai pollutants used as authorized in § 125.3(g). Several commenters pointed out the BAT limits on toxic pollutants, BCT limits on conventional pollutants - and modified (e.g., to BPT levels) limits on nonconventional pollutants may, in appropriate circumstances, be used as ‘ indicator” pollutants. EPA agrees. However, the use of such pollutants as indicators does not require any new regulations. As described above In section ffl.B.1 of this preamble, permit writers must set technology-based limits to control pollutants by applying guidelines or, in the absence of applicable guidelines, by setting case-by-case limits under section 402(a) [ 1) of CWA. In some cases, ills not feasible to set limits on each discharged pollutant. This is particularly true in the case of organic pollutants, because they can be expensive to sample and analyze and because there is relatively limited experience’and historical data demonstrating achievable levels of removals by van •types of technology. EPA believes that the most appropriate way to regulate toxic pollutants is to limit toxic pollutants. As discussed in section 111.8.1 of this preamble, EPA has prepared a five- volume treatability manual, compiling data on treatabiity levels of specific toxic pollutants which have been achieved by particular technologies, to help permit writers to limit toxic pollutants directly when guidelines do not apply. However, as noted above, direct limita Lion of all toxic pollutants in a waste stream is not always feasible. In such cases, limiting indicator pollutants (or selected toxic pollutants) is sometimes an appropriate alternative. When a certain treatment system is the most cost-effective method for limiting toxic pollutants, and where limits on certain other pollutants (e.g., BOD, COD, chràmium and total phenols) Found in the discharge would require installation of the treatment system, then those other pollutants are referred to as “indicator” pollutants. The term “indicator” is not intended to denote a statistical relationship between the limited pollutants and ft nonlimited toxic pollutants. It means simply that the limits on the indicatoi will reflect (I.e.. result in installation of) the best available technology economically achievable to reduce discharges of the toxic pollutants. Note that the identification of BAT technology for the toxic pollutants does not require precise knowledge of the numerical levels of those pollutants to be achieved by installation of that technology. Of course, to be defensible as BAT, the general effectiveness of the technology as compared to alternative technologies must be known. Such qualitative relationships are more easily discerned and agreed-upon, based on existing treatability data, than the actual numbers which may be achieved to a desired confidence interval by the compared technologies. An approach similar to the indicator approach was used frequently in developing existing BPT guidelines, although the term “indicator” was not used. Such guidelines include various mining (coal, ore, mineral) and metals industries. A typical example is the use of limits on pH, TSS, and one or two metals to assure the precipitation not only of the limited metals, but of other as well. If a pollutant Is used as an indicatoi for toxic pollutants, its limit must reflE BAT for those toxic pollutants. This is ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33525 - arly required by section 301(b) of AlA, which states that limits to control ic pollutants must reflect BAT. Therefore, § 125.3(g) provides that, for conventional pollutants listed under section 304(a)(4) of CWA which are used as indicators for toxic pollutants, the Director may set limits at levels which are more stringent than the best conventional pollutant control technology (BCT). Similarly, for nonconventional pollutants (those not listed as either conventional or toxic pollutants) which are used as indicators for toxic pollutants, the Director may set limits which are not subject to modification under sections 301 (c) or (g) of CWA, (As one commenter pointed out, and as directly acknowledged in § 125.3(g)(2). noncenventional pollutants used as indicators for hazardous substances not listed as toxic under section 307(a) of CWA are subject to requests for 301 (c) and (g) modifications.) EPA stresses that the Director may Invoke § 125.3(g) only after establishing that direct limitation of the toxic pollutant is not feasible for economic or technical reasons and that limitation of the indicator will result in BAT-level rnntrol of the toxic pollutant discharges. re permit applicant may challenge the ‘e of an indicator and offer evidence to ipport direct limitations of toxic illutants. EPA intends to apply the indicator strategy reasonably, with toxic limits remaining the preferred approach whenever feasible. b. Response to Comments. EPA received many comments on proposed § 125.3(g). The comments almost uniformly favored the use of Indicators in appropriate circumstances when agreed upon by both the permitting authority and permit applicant. Several industries strongly encouraged the use of indicators. However, most commenters expressed reservations concerning the scope of proposed § 125.3(g). Several commenters were concerned that proposed § 125.3(g) might authorize the Director to impose indicator limits which would require the discharger to control discharges of toxic pollutants in a cost-ineffective manner by requiring too stringent control of the indicator. For example, segregation of toxic waste streams, process changes and raw materials substitutions are possible means of controlling particular toxic pollutant discharges without controlling any parameter intended to serve as an indicator. EPA agrees that limits on indicators ould not be used to require greater or bre expensive effluent control than would be required if all pollutants were regulated directly. § 125.3(g) has therefore been amended by the addition of a requirement that the Director may not impose a more stringent limit on a pollutant intended to be used as an Indicator when the limit would effectively require the permittee to use a method 9 f treatment which differs from that which would be required if the toxic pollutants were limited directly. In the event that the Director uses an indicator limit in the draft or final permit that the discharger believes would preclude the use of more cost-effective measures to regulate the indicated toxic pollutants, the discharger can make appropriate objections challenging the limits under the procedures In 40 CFR Part 124. Several commenters requested that the concurrence of the permittee be obtained before an indicator limit is set in the permit. Another requested simply that the permittee be given an opportunity to comment on the proposed use of indicator limits. EPA believes that it is administratively Infeasible to obtain the permittee’s concurrence in each situation before setting indicator limits. However, the procedures in 40 CFR Part 124, which include opportunities for permittees to comment on the draft permit, request an evidentiary hearing after the permit is issued (unless an expanded non-adversary hearing has been held during the comment period under Part 124, Subpart F) and appeal to the Administrator, will afford significant opportunity for permit writers and permittees to resolve disagreements. The strict restrictions placed by § 125.3(g) upon the use of indicators, together with the possibility of administrative and judicial review, will insure that permit writers do not use indicators improperly. Some commenters argued that the limitation of conventional indicators beyond BCT and the denial of variance opportunities for nonconventional indicators is contrary to the requirements of CWA. EPA disagrees. When limits on indicators are used as a means to control toxic pollutants, they must reflect the best available technology economically achievable [ BAT) to control the toxic pollutants. As long as the requirements of § 125.3(g) are met (i.e., that Indicators be used only where direct limitation of toxic pollutants is infeasible and that Indicators not be used to require control technology which is not needed to control the toxic pollutants), discharges will effectively be subject to precisely those technology-based requirements required by section 301 of CWA. Many commenters expressed concern over the possible lack of correlation between lcv IB of indicators and the controlled toxic pollutants. The commenters noted that certain indicators may be present in concentrations several orders of magnitude greater than the toxic pollutant. This comment was most imaginatively expressed by the Chemical Manufacturers Association. which stated: “To select an ‘indicator’ controlled to concentrations several orders of magnitude greater than the toxics indicated is almost like trying to determine the weight of a flea by weighing a dog with and without the flea.” Still other commenters attempted to support their objections by submitting charts demonstrating the poor correlation between what they termed an indicator and a specific pollutant (e.g., total suspended solids and zinc) in their discharges. EPA believes that the above commenters have misconstrued the “indicator” concept and regulation. EPA does not assert that indicators and specific toxic pollutants controlled through the indicator limits must be or are likely to be statistically correlated. Nor does it assert that any pollutant used as a m asure of a class of compounds will necessarily be statistically correlated to each or any compound In that class. Rather, the function of an Indicator limit is to assure the Installation and maintenance of BAT controls for toxic pollutants. Sufficiently low limits on one or more indicators may require installation of treatment equipment known to constitute BAT for certain toxic pollutants. In that case (and only in that case), the indicator limits will have served their purpose of assuring BAT control of the toxic pollutants, whether or not a correlation exists between the indicators and toxics. Two commenters urged the use of bloassays instead of indicators or to calibrate indicators. The use of bioassays is discussed below in sections III.D.2.d and lII.E.2 of this preamble. It is - noted here, however, that bioassays and indicators generally serve different purposes and are not generally substitutable for each other. Some industrial commenters argued that if the indicator concentrations are not statistically correlated with the toxic concentrations, a violation of an Indicator limit may occur even when the Indicated toxics are not being discharged at signficant levels. EPA does not expect this to be a problem. Indicators will be used only where necessary to control discharges of toxic pollutants. If a toxic pollutant will not be discharged at levels above those ------- 33526 Federal Register I Vol. 45, No. 98 / Monday, May 19. 1980 I Rules and Regula Lions achievable by BAT, then an indicator limit will not be authorized by § 122.3(g). if an indicator limit is violated by the permittee, this demonstrates improper operation or maintenance by the permittee of its treatment system. In such a situation, the violation may properly result in an enforcement action. Of course, a situation may arise where indicator limits are set to control toxic pollutants which are discharged above BAT levels at the time of permit application, but which are later no longer present at levels requiring control. In that case, the permittee may apply for a permit modification to eliminate the indicator limit or to modify it to a less stringent level authorized by law. Some environmental groups used similar logic to that used In the preceding comment by industrial commenters and argued that if indicator concentrations are not correlated with toxic pollutant concentrations, a significant discharge of toxic pollutants may not result in a violation of the indicator limit. EPA agrees, as it acknowledged in the June 14 preamble, that this is a possibility in some cases. However, the proper selection of indicators should assure that violation of the indicator limits will occur whenever the treatment system is not properly operated or maintained. When the system is properly operated or maintained, the indicated toxics should generally be reduced to levels below BAT. Furthermore, as noted above, the regulations allow the use of indicators only where the direct limitation of toxic pollutants is infeasible. EPA also notes that occasional monitoring of specific toxic pollutants as required by the permitting authority would reveal whether an indicated toxic is being discharged. at high levels. If so, the application-based notification requirements of § 122.61(a) would be triggered. The permitting authortly could then, if necessary and feasible, modify the permit to limit the toxic directly. EPA has rejected the suggestion by one environmental commenter that EPA specify technology in conjunction with the use of indicators. Such an approach is inconsistent with the general statutory approach that, except for the specification of best management practices in certain instances (see § 122.62(k)), permits should specify effluent limitations rather than technologies or control practices. Some commenters suggested that indicators be used only for monitoring purposes. EPA disagrees. Although direct limitation of toxic pollutants is required whenever feasible, indicators may be necessary as permit limits in certain situations. However, indicators may be used for frequent monitoring purposes when toxics are limited directly. In such situations, the indicatorB would be monitored frequently, and the toxics would be monitored less frequently to reduce monitoring costs. Some environmentral commenters suggested that any violation of an indicator limit should trigger automatic monitoring of the indicated toxics, as was suggested in the preamble. Such monitoring will often be appropriate when indicator limits are violated. However, in many instances, the source of the violation may be discerned and corrected without such testing. Therefore, EPA has rejected this suggestion. The Director thus retains the flexibility to take the most appropriate approach to discover and remedy the cause of the violation. In addition, the final consolidated regulations (in § 122.62(g)) require permits to specify that violations of maximum daily discharge limitations on indicators, as well as limitations on toxic pollutants and hazardous substances,. must be reported within 24 hours, so that the Director may takrapproprlate action. One conunenter noted that the statutory deadlines for an indicator and the indicated pollutants may differ in certain cases under section 301(b) of the Clean Water Act. When a parameter Is used as an indicator, any earlier statutory deadline for the indicated pollutant controls. Finally, some commenters argued that application-based limits (proposed § 122.68(a)) should not apply to indicated toxic pollutants. As explained in section .Bi of this preamble. EPA has deleted its proposed application- based limits from the final regulations. Thus, under the final rule. indicated toxics will not be subject to application- based limits. They will, however, be subject to the much less burdensome application-based notification requirements in § 122.61(a). C: NPDES Application Requirements for Concentrated Animal Feeding Operations and Aquatic Animal Production Facilities: § 122.53(e) arid Form 2b The requirements for applications from concentrated animal feeding operations and aquatic animal production facilities appear in § 122.53(e) of the final regulations and in Form 2b. Although these requirements were inadvertently omitted from the proposed regulations, draft Form 2b was published in the June 14, 1979 Federal Register (44 FR 34393) and was the subject of several comments. The State of Nebraska expressed approval of Form 2b and noted its similarity to the form used by their State. The American Farm Bureau had two suggestions which were adopted. First, the question on the location of the operation has been changed to require a detailed description of the location only if the answer to item VI of Form 1 was not sufficient. Second. the question about the number of acres available for manure disposal has been omitted; EPA agrees that it was not relevant to the NPDES program. The Department of Water Resources of Texas stated that the form was too technical and crowded, but suggested that questions should be added requiring a description of the method for disposing contaminated runoff, the water detention facilities, the pesticides used, and the plans for constructing a runoff control system. These suggestions have not been adopted, because the Agency has decided that the suggested additional information is not routinely needed to set appropriate permit limits for these facilities. Of course, Texas and other States may require this information on their application forms. D. Minimum NPDES Application Requirements for Existing Industrial Dischargers: § 122.53(d) and Form Zc 1. General Discussion of Requfrement Public Availability of hifoirnadon On June 14, 1979, EPA proposed new application requirements and a new Form 2c to be used by existing industrial dischargers. Consistent with the Clean Water Act’s mandate that EPA focus upon the control of toxic pollutants and with EPA’s new permitting strategy for toxic pollutants in response to that mandate, EPA proposed thai’exlsting indus trial dischargers be required to submit in their NPDES permit applications, in addition to other information, detailed information concerning discharges of toxic (and certain other) pollutants. The requirements reflect the Agency’s belief (which was supported by many commenters) that dischargers have a duty to be aware of any significant pollutant levels in their discharge. In addition, they serve two specific purposes. Most important, they provide the information which permit writers need to determine what pollutants are likely to be discharged in significant amounts and to set appropriate permit limits. Second. they will be used as a basis for application-based notification requirements under § 122.61(a). The final regulations retain the es pntial components of the proposed application requirements of June 14, ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33527 p79. Some testing requirements were odified for certain industries based on A’s continuing review of data on ose industries’ discharges. In addition, certain requirements were added with respect to hazardous substances designated under section 311 of CWA, based on EPA’s August 29, 1979 proposal (44 FR 50780) responding to the 1978 Amendments to section 311(a)(2). Diechargers will generally be required to submit applications in three situations: when an initial permit is needed, when an existing permit will soon expire and a new permit will thus be needed, and when a permit is being revoked and reissued under 40 CFR 122.15. However, § 124.5 provides that an application may also be required, if specifically requested by the permitting authority, when grounds for permit modification exist. This requirement was also contained in previous NPDES regulations in § 122.14(e) (44 FR 32905). A more extensive requirement in § 122.10(b), that new applications be submitted for certain types of modifications, has been deleted in, response to comments pointing out that a new application is not always necessary in such situations. The new application requirements and Form 2c apply only to existing schargers. Until Form 2d is developed, A Forms 7550—8, —9 and —23 should ntinue to be used by new sources and w dischargers as well as by existing facilities which will first begin to discharge through particular outfalls in the future. Applicants should note that section 402( 1) of CWA requires that any information contained in a NPDES permit application must be made available to the public. (This rule set forth in 40 CFR 122.19 and is highlighted in the instructions to Form 2c.) Therefore, EPA has riot accepted the suggestion by some commenters that certain portions of the application be confidential. However, EPA has attempted to address this potential concern by minimizing requests for information which may be regarded by certain applicants as sensitive. First, information on the applicant’s volume of production (or other measure of total operation) is requested only of applicants who are subject to production-based effluent limitation. guidelines. Applicants subject only to concentration-based guidelines or to case-by-case development of individualiied permit limits (when no guidelines apply), for example, need not giibrnit such information. Second, all luent discharge reporting luirements ask only for end-of-pipe luent data, rather than in-process waste stream data. While permit writers may request additional information not required in the EPA application form (under § 122.53(d)(13), discussed below in section III. D.3.i of this preamble), such information is subject to the protections afforded by 40 CFR Part 2. Some industrial commenters argued that product information submitted by applicants subject to production-based guidelines should be held confidential. Some argued that if all application information must be available to the public, then product information should be deleted as an application requirement and obtained by permit writers on a case-by-case basis, such as under the authority of section 308 of CWA. EPA must reject the above suggestion for several reasons. First, it is not administratively feasible to require permit writers to individually request many thousands of permit applicants to submit such information separately from the standard application process. While permit writers will in some instances need to request information in addition to that required in the application form, they cannot be expected to do so on a regular basis for routine information. This would result in unacceptable delays in issuing permits. Second, much of the information in the permit application is “effluent data” within the meaning of 40 CFR 2.302(d)(2) and therefore would have to be disclosed under section 308 of CWA. For example, if the applicant is sublect to an effluent limitations guideline of 7 pounds of BOD per 1000 pounds of product produced, a production figure is necessary to determine the amount of DOD discharge authorized by the applicable limitation. Even if the production figure could be protected from public disclosure, the figure could easily be calculated from the permit limitation. Third and most important, EPA believes that the requested product information is not sensitive. Applicants are requested in the instructions to the form to report product information based on past production, such as highest month of the past year or the monthly average of the highest year of the past five years. (This reflects the requirements of 40 CFR 122.63(b).) The applicant need not identify in the application which basis was used to determine production volume. Moreover, the reported information does not indicate the applicant’s estimate of future product demand or its anticipated future production. The final application requirements include one new item which might be regarded as touching upon sensitive data. Applicants are now required to list any toxic pollutants which they use or manufacture as intermediate or final products or byproducts. EPA has tried to minimize the possibility that reporting this information will result in revelation of trade secrets. First, applicants need not indicate on this list the specific basis for listing any particular pollutant; the basis will be assumed to be one of the above factors. Second, applicants need not list the aihount used or manufactured. Certain wording changes have been made in response to comments in other questions on Form 2c to minimize the amount of potentially sensitive information required. These changes are discussed in more detail in section IlI.D.3 of this preamble. 2. Requfred Analyses and Estimates of Pollutant Discharges a. Toxic Pollutants: § 122.53(d)(7)(ii) and item V—C. The chief innovation of the new NPDES application requirements is that applicants must report discharges of toxic pollutants. The proposal required applicants in 36 industries (the 34 primary industries listed in the modified NRDC Settlement Agreement, plus the Asbestos and Ferroalloys industries) to test for all toxic pollutants (except for asbestos and TCDD, which are discussed below). The final regulations have modified this requirement for certain industries. The reporting requirements for toxic pollutants may be summarized as follows; (1) All applicants in the 34 primary industries listed in the NRDC Consent Decree must analyze their process wastewater outfalls and report quantitative results for the 13 metals on the toxic pollutant list and for cyanide and total phenols. (2) All applicants in the 34 primary industries must analyze their process wastewater outfalls and report quantitative results for some or all of the 114 organic toxic pollutants. The organic toxic pollutants have been grouped into the four fractions which are used in the gas chromatography/mass spectrometry (GC/MS) analytical test method. The regulations and Form 2c each contain tables showing the fractions which applicants in each of the 34 industries must test for. (3) All applicants must indicate the presence of any toxic pollutants which they know or have reason to believe are or will be discharged from any outfall. They are required to analyze only for those pollutants which they know or have reason to believe are currently discharged. ------- 33528 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations An exemption from the second and third requirements listed above is provided for small businesses whose average annual gross sales total less than $100,000 (or, in the case of coal mines, those whose average annual production is less than 100,000 tons of coal). See section lIl.F.6.b of this preamble. The proposed requirement that applicants in the 36 industries analyze for the 129 toxic pollutants was heavily commented upon. Environmental groups, many private citizens, and some State agencies expressed strong support for the analysis of the 129 toxic pollutants as a minimum requirement. (Many, of these commenters argued, in fact, that the requirement is insufficient in itself and should be supplemented by biomonitoring requirements. See discussion in section III.D.2.d of this preamble.) On the other hand, many industrial commenters argued that the requirement was too broad, imposing significant costs to sample and analyze for pollutants which may be absent from applicants’ waste streams. In particular, commenters from certain industries (pulp and paper, mining, oil and gas extraction, metal finishing, steam electric generating plants, textiles, rubber processing, and laundries) argued for full or partial exemptions for their industries or for all industries. In the June 14 preamble, EPA stated in support of its proposed reporting requirements that although EPA has sampled plants in each industrial category as part of the effluent guidelines development process, plant- unique situations could be discovered only through waste stream analysis by each discharger. As described today in section III.B of this preamble, EPA needs to be aware of those specific situations to write adequate permits. The Agency restricted its proposed requirements to the 36 industries which EPA concluded were likely to discharge at least some toxic pollutants. The Agency noted. however, that it would continue to investigate existing data and would add or delete requirements to ensure that waste streams be analyzed only for pollutants which may be discharged. In response to EPA’s specific request for comments on this issue, several suggestions were received. The comments and EPA’s responses are set forth below: 1. CommenL EPA should require applicants to test only for the pollutants regulated in the relevant effluent limitations guidelines. Response: EPA has not adopted this approach because it ignores the diversity among plants which the application requirements are designed to address. It also would require EPA to wait for guidelines to be finally promulgated before setting application requirements. That approach would delay the permitting process and possibly result in failures to meet the statutory 1984 deadline. 2. Comment: EPA should require applicants to test only for those toxic pollutants which they know or have reason to believe are present in their discharges. Response: EPA has not adopted this approach for primary industries because, as EPA has learned durjng its industry sampling efforts, it can be difficult to predict what toxic pollutants will be discharged from an outfall. However, this approach is-bang used for secondary industries and for primary industries’ non-process wastewater outfalls, since their discharges are much less likely to be toxic. 3. Comment: EPA should leave the application requirements to be determined on a case-by-case basis by the Director or should allow the Director to waive requirements on a case-by-case basis. Response: EPA has not adopted either approach. EPA is required by section 304(i) of CWA to develop “uniform application forms and other minimum requirements.” While this does not preclude EPA from making valid distinctions among industries with differing discharges. EPA should not burden permit writers with.the obligation of determining the pollutants which each particular applicant must test for. Indeed, as noted in the preceding paragraph, it would be difficult for permit writers and applicants to determine whether certain toxic pollutants will be discharged by the applicant without testing the discharge. Furthermore, allowing application requirements to be established on a case-by-case basis would result in unfairly disparate application requirements for similar applicants. (Note that EPA does not bar permit writers from requesting further information where appropriate for a particular.discharge. However, the minimum requirements should be uniform as required by law.) 4. Comment: EPA should allow the substitution of biomonitoring for chemical monitoring. Response: Although biomonitoring provides information on the toxicity of a discharge, it does not identify particular pollutants whichmay be causing the toxicity (certain biological methods of identifying specific chemicals are in the development stage, however). To control the toxicity, it is important to identify and address the sources of that toxicity. Thus biomonitoring is not a suitable replacement for chemical monitoring, although it may be a useful supplement 1 in certain situations (see discussion in section IILD.2.d and III.E.2 of this preamble). 5. Comment: Toxic pollutants in certain effluents may be better controlled through Best Management Practices programs; thus testing is not necessary. Response: Regardless of the appropriate method of control, one first needs to identify the toxic pollutants being discharged and the means ‘of the discharge. Furthermore. Best Management Practices will be used to regulate process wastewater discharges through outfalls only in relatively few circumstances (see § 122.62(k)); end-of- pipe BAT controls generally will be use for such discharges. 6. Comment: Applicants should be required to test only for those pollutant detected or likely to be detected at significant levels, based on data available to EPA, such as from its industry sampling efforts. Response: While EPA has not selected precisely this approach, the final regulation (described immediately below) takes a similar approach and imposes similar costs. EPA has decided to use different approaches for the metals and the organic chemicals on the toxic pollutani list. All applicants in the primary industries (the 34 NRDC Consent Decre industries) must test their process wastewater discharges for all the toxic metals, because almost all primary industry applicants discharge some metals and because the incremental cos of testing for all 13 toxic metals over thc cost of testing for a few metals is relatively small, On December 3, 1979 (44 FR 69464), EPA proposed a new method for testing metals in addition to those already promulgated in 40 CFR Part 136. The method is ICP (inductively coupled plasma optical emission spectroscopy). which provides a simultaneous determination of several metals in a sample. When this method i; promulgated, it may make the cost of testing for all 13 toxic metals comparable to testing for fewer metals using other methods, All applicants in primary industries must also test their process wastewater discharges for cyanide and total phenol The proposed requirement that all applicants test all discharges for these pollutants has been deleted, as several commenters suggested, because they an not likely to be found in most discharge other than primary industry process wastewater discharges. However, applicants must lest for them whenever 1 they expect them to be discharged. ------- Federal Register / Vol. 45, No. 98 f Monday, May 19, 1980 I Rules and Regulations 33529 “Process wastewater” is defined in the Glossary of the instructions to the consolidated application forms. In cases of uncertainty in applying the definition, applicants should contact their permitting authorities. EPA has modified its proposed requirements for organic toxic pollutants by exempting certain industries from testing for certain pollutants. The approach used by EPA applies two factors. First, as suggested inihe sixth comment listed above, is the likelihood that an applicant may discharge a particular pollutant. Second is the extent to which deletion of a toxic pollutant or group of toxic pollutants from the list of reportable pollutants results in cost savings. EPA has determined the likelihood of discharge by using an approach suggested by many comnienters. EPA decided that any pollutant which has been detected at greater than 10 g/l (different cutoffs are ‘med for several pesticides) in one or more samples in an industry should be to ted for by all applicants in the industry. This approach has been seler.ted because, in most industries, EPA ha sampled only a small percentage of the pin nts. Thus the appearance of a pollutant in the data base for an industry implies ‘hat it may be discharged by several plaotn in that industry. In analyzing the costs of vario ’s levels of testing requirements, EPA considered bOoth sampling and analytical costs. (Detailed derivations of costs assumed in this discussion are contained below in section llI.F of this preamble.) Sampling costs for one outfall ($1,550) are not affected by the number of pollutants analyzed. Thus, the cost of collecting a sample to analyze for all 114 organic toxic pollutants is equivalent to the cost of sampling for only a few of them. Analytical costs, however, are somewhat dependent on the number of pollutants analyzed. Using gas chromatography/mass spectrometry (GC/MS), pollutants are grouped into four fractions which are based upon similar chemical and physical properties. Within a fraction, virtually identical analytical costs are incurred whether one pollutant or all pollutants in a fraction are tested. Moreover, since pollutants in the same fraction share similar chemical and physical properties, the presence of a pollutant in a discharge indicates some likelihood that other pollutants in the fraction may also be discharged. However, elimination of entire fractions from esting requirements can reduce costs. Thus, assuming that testing for all four fractions may cost $2,000, deletion of one fraction may save $150 to $500. depending on the fraction deleted. Based on the reasoning outlined above, EPA has decided to require applicants in each primary industry to test process wastewater for any pollutant which has been found in discharges from plants in that industry, plus any other pollutants which are contained in the same GC/MS fraction as that pollutant (since this additional analysis is virtually costless and may yield further information of significance). (Applicants with sales of less than $100,000 per year, or production of less than 100,000 tons per year in the case of coal mines, are exempt from testing for organic toxic pollutants under § 122.53(d)(8). See the discussion in section lII.F.6 below.) When no pollutants of a particular fraction have been detected in any sampled plant in an industry, that fraction has been deleted as a requirement for applicants in that industry. After formulating the rule for testing requirements as outlined above, the Agency reviewed the data which has been generated in its effluent guidelines sampling efforts to determine which pollutants have been found in each of the 34 primary industries. The Agency recognizes the technical problems in its approach. Most important, EPA’s data base, the most comprehensive data base available, is to some extent subject to errors in sampling, analysis and reporting. On one hand, there is some possibility that a pollutant shown by the data to have been found in a plant’s discharge was not actually present. On the other hand, it is possible that a pollutant which was present in a discharge will be shown in the data to be absent. Another problem is that there is limited data for certain categories and especially for subcategories. Given the shortcomings in the Agency’s data base, it became necessary to decide whether to base testing requirements for a CC/MS fraction on a single detection of a pollutant in the fraction, a greater number of detections, or upon some minimum ratio of detections to samples. The Agency decided to adopt the approach of one detection at concentrations above 10 .ig/l. First, this approach is less arbitrary than the alternatives, which would have required a judgment without any technical basis that some other number correctly represents the degree of error in the data base. The selection of a single detection as a criterion acknowledges the difficulty of making such a judgment and relies rather on the assumption that a detection indicates a reasonable likelihood of actual presence of a toxic pollutant in a discharge. - S cond, as noted above, the cost savings of deleting a particular fraction from the testing requirements for a particular industry are only a small part of the remaining sampling and analysis costs. Therefore, it is appropriate to require testing of a fraction whenever a reasonable likelihood exists that a pollutant in the fraction is being discharged. Third, the adopted approach is the most environmentally protective alternative to EPA’s proposed approach: requiring testing for all four fractions without exception. Any further relaxation of the proposal would result in a higher probability that some plants would not be required to test for certain toxic pollutants which they discharge. The need for stringent testing requirements is particularly strong in light of the Agency’s decision not to require biomonitoring for toxic effects on a uniform basis. As noted elsewhere in the preamble, many private citizens as well as environmental groups have urged that EPA require biomonitoring. EPA’s chief argument for not requiring biomonitoring at this time is that it is more appropriate to focus the testing requirements at this stage upon monitoring of specific toxic pollutants. This argument would be weakened substantially by a further relaxation of the toxic pollutant testing requirements. The final toxic pollutant testing requirements for primary industries strike a reasonable balance between the competing considerations of cost and environmental protection by exempting industries from testing those CC/MS fractions in which toxic pollutants have not been found. This criterion has resulted in the exemption of 16 out of the 34 primary industries from testing for the pollutants in the pesticide fraction. In addition, 3 industries are exempted from testing for pollutants in the acid fraction, 1 industry is exempted from testing for the pollutants in the volatile fraction, and 1 industry is exempted from testing for pollutants in the base/neutral fraction. See Part 122, Appendix D, Table I, and Table 20—2 of the instructions to Form 2c. EPA has deleted the proposed requirement that applicants in the Ferroalloys and Asbestos Manufacturing industries test for all toxic pollutants. EPA’s industry toxic pollutant sampling efforts covered only the primary industries. EPA thus lacks the data to support a supposition that secondary industries are dis charging toxic pollutants. Thus secondary industries, ------- 33530 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations including the Ferroalloys and Asbestos industries, are exempted from mandatory testing for toxic pollutants. However, in,addition to the testing requirements specified for process wastewater discharges from primary industries, all applicants are required to report discharges of any toxic pollutant which they know or have reason to believe may be discharged through any outfall. This requirement includes pollutants in CC/MS fractions not marked in Table 2c—2 of the instruction to Form 2c, pollutants discharged by primary industries through nonprocess wastewater outfalls, and pollutants discharged by secondary industries through any outfall. This requirement is similar to the proposal, with one change. The propoèal allowed applicants to estimate such discharges. The final regulation allows estimation of presence or absence; however, applicants are now required to test for any pollutant known or believed to be present in the discharge. EPA has decided to require testing for one toxic pollutant for which the proposal allowed estimates: TCDD (2,3,7,8-Tetrachlorodibenzo-p-dioxin). Testing for TCDD was excluded from the proposal because the routine shipping and use of analytical standards of TCDD needed to perform quantitative analyses would endanger the public due to the extreme toxicity of TCDD. The National Wildlife Foundation correctly noted that due to TcDD’s toxicity, “added rather than lessened precautions must be taken to avoid its undetected discharge into the environment.” Accordingly, EPA will require certain dischargers to screen for TCDD in a manner which does not require the shipping of analytical standards. Applicants who produce or use the following compounds must screen for TCDD: 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4 ,5-TP) 2-(2,4,5-trichlorophenoxy) ethyl 2,2- dichioropropionate (Erbon) 0,0-dimethyl O-(2,4,5-trichlorophenyl) phosphorothinate (Ronnel) 1-lexachlorophene (HCP) 2,4,5-Trichlorophenol (TCP) This list is based upon a recent draft study conducted by EPA’s Office of Toxic Substances: Dioxins: Sources, Tranèport, Exposure and Control (April 1979). These studies indicate that TCDD is likely to be a contaminant in the six compounds listed above. TCDD screening will be done by the use of GC with an electron capture detector. This method will reveal the presence of dioxin but will not separate its isomers. However, positive results may then be used by the permit writer as a basis for requiring the use of GC/ MS and a TCDD standard to identify and quantify TCDD (see method ’613, proposed in 40 CFR 136 on December 3, 1979, 44 FR at 69526). EPA is retaining the proposed exemption from testing for one other toxic pollutant: asbestos. Due to the lack of a suitable test method for asbestos, applicants are required only to indicate whether asbestos is expected to be discharged and, if so, to describe the source of the discharge and to submit any available analytical data. Applicants whose outfalls were analyzed by EPA during EPA’s industry sampling program may submit quantitative data generated by EPA rather than retest their discharges, if the data is less than three years old and remains representative of the present discharge. When data has not been developed by EPA for a particular pollutant, the exemption does not apply to that pollutant. The exemption should affect at least 100 applicants, The June 14 proposal required data to be no more than two years old; commenters pointed out that more than two years will generally have elapsed since EPA tested the applicant’s effluent. In response, EPA has changed the time to three years. (This period is consistent with regulations requiring permittees to retain monitoring records for three years.) For the applicants who are required to test their waste streams, EPA has reduced its sampling requirements from the proposed 72-hour single flow proportional composite sample to a 24- hour sample. This change was adopted in response to comments and after reconsideration of the relative costs and benefits of using 24-hour samples and 72-hour samples. The Agency has used 24-, 48-, and 72- hour samples in its data collection efforts. Although a 72-hour sample may in some instances be more representative of a discharge than a 24- hour sample, other factors such as the retention times of treatment facilities would have to be considered in each instance to determine the most appropriate sampling time. Furthermore, preserving a 72-hour sample may introduce errors which cancel the benefits of the longer time period. Although the incremental benefits of using a 72-hour sample instead of a 24- hour sample are questionable, the cost savings of using a 24-hour s mple are substantial. The cost of sampling a single outfall for 72 hours is estimated to be $2,500, while the cost for 24 hours is $1,550; thus a 24-hour sample results in a savings of $1,000 per outfall. EPA cannot conclude that the benefits of using a 72- hour sample justify the costs. Several commenters objected to the lack of standard EPA-approved sampling methods. However, as discussed in the June 14, 1979 preamble, the art of sampling is dependent on experience and often not amenable to standardization of methods. Accordingly, only general guidance on sampling is given in the instructions to Form 2c. Sampling should be supervised by an experienced contractor, as assumed by EPA inits sampling cost estimates (section lll.F.1 below). (Certain sampling issues are discussed later in this section of the preamble.) Many comments were received concerning the lack of promulgated methods for the analysis of the organic toxic pollutants. EPA proposed methods for analysis of the organic toxic pollutants on December 3, 1979 (44 FR 69484). The comment period on the methods, which include CC, HPLC, and CC/MS was extended to April 28, 1980. (See 45 FR 15950, March 12; 1980.) Comments on the adequacy of the test methods will be considered in that rulemaking proceeding and will not be addressed here, except to note that the elimination of proposed application- based limit requirements has reduced the importance of high precision and accuracy in data reported in NPDES applications. Because the comment period for the test methods for organic toxic pollutants was extended, the methods may not be promulgated in 40 CFR Part 136 by the time that some applicants test their waste streams. As a result, EPA will allow applicants to use any suitable method to test for any pollutant for which Part 136 methods do not exist. To assure quality control, applicants will be required in such cases to describe the method used, including sample preservation techniques. When an independent laboratory conducts the analysis, the applicant should request this information so that it may be included in the application. Applicants are encouraged (but not required) to use the December 3, 1979 proposed methods for organic toxic pollutants until the final methods are promulgated in Part 136. b. Other Pollutants. In addition to the toxic pollutant8, all applicants will be required to report other pollutants in all types of discharges. Some of these pollutants are conventional and nonconventional (pollutants not listed as toxic under section 307(a) or conventional under section 304(b)) pollutants which have traditionally been ------- Federal Register / VoL .45, No. 98 I Monday, May 19, 1980 1 Rules and Regulations 33531 of concern in the NPDES program, and others are nonconventional pollutants which have not generally been regulated before, such as certain hazardous substances. Fewer commenters addressed these requirements than the requirements for testing of toxic - pollutants, perhaps because of the relatively smaller costs. There are three groups of pollutants, other than toxic pollutants, with differing reporting requirements: (1) All applicants must test all their discharges for the first group of pollutants. (2) All applicants must indicate whether they know or have reason to believe that any of a second group of pollutants is present in any discharge. They must then test for any of those pollutants known or believed to be discharged. (3) All applicants must indicate whether they know or have reason to believe that any of a third group of pollutants is present in any discharge. They must then describe the source of any pollutant known or believed to be discharged and provide any analytical data which they possess. These requirements are discussed immediately below. (i) Required Analyses: § 122.53(d)(7)(i) and item V—A. All applicants must analyze for three conventional pollutants (BOO, TSS, AND pH) and four nonconventional pollutants (temperature, COD, TOC, and ammonia). Certain minor revisions have been made from the proposed requirements. First, the toxic pollutants cyanide and total phenols have been mOved from this list to item V-C. Thus applicants other than primary industries, which must test their process wastewater outfalls, are not required to test for cyanide and total phenols unless they expect them to be present. This change. advocated by several commenters, was made because these two pollutants are less likely to be discharged by secondary industries or from non-process wastewater outfalls than the other parameters in item V—A. Second, the required measure of nitrogen compounds in item V—A has been changed from total Kjeldahl nitrogen (11(N) to ammonia. Ammonia is the nitrogen compound of most concern in terms of water quality. EPA has recently proposed to add ammonia to the section 307(a) list of toxic pollutants (45 FR 803, January 3, 1980). Total organic nitrogen, which measures nitrogen compounds, which are generally nutrients, Is now required in item V—B. (Total Kjeldahl nitrogen is the sum of ammonia nitrogen and total organic nitrogen.) Some commenters requested deletion or selected waiver of the uniform testing requirements, the development of industry-specific requirements, or the addition of pollutants (total oxygen demand and total organic halogen). EPA believes that the requirements of item V—A are generally appropriate for two reasons. First, the parameters in item V- A are commonly found in many different types of discharges. Second, taken together they are generally indicative of the nature of a discharge. In addition, the testing costs are small. However, in response to comments, the regulations have been modified to provide that the Director may waive testing requirements, on a case-by-case basis, for one or more pollutants in item V—A. This selected waiver is reasonable in light of the substalitlal experience which permit writers have in regulating the parameters included in item V—A. (ii) RequiredReporting of Presence or Absence and, if Present, Required Analysis: § 122.53 (d)(7) (iii) and item V— B. All applicants must indicate expected presence or absence of discharges of 2 conventional pollutants (fecal coliform and oil and grease) and 23 nonconv ntional pollutants and report at least one analysis for each pollutant expected present. These pollutants either are of less significance or are less likely to be found than toxic pollutants or the pollutants in item V—A, for which testing is automatically required. Commenters on the proposal made many of the same general criticisms and suggestions as on item V—A. EPA has not made changes in response to these general comments (although some specific comments were adopted, as discussed below), particularly because the requIred level of reporting presents minimal burdens; actual testing is required only where the applicant knows or has reason to believe that it is discharging a pollutant. Furthermore, testing costs are relatively inexpensive. As noted earlier in this preamble, permit writers need to know what pollutants are present in an effluent to determine appropriate permit limits in the absence of applicable effluent guidelines. Therefore, EPA does not feel it is appropriate to make the requirements of item V—B any less stringent. One significant change has been made from the proposal, which allowed applicants to estimate the levels of pollutants known or believed to be discharged. The final regulations and item V—B require applicants to test for all such pollutants. This change was made because EPA felt that the increased reliability of a test over an estimate justifies the increased cost in those cases where one or more of these pollutants is expected to be discharged. The change also responds to industry comments pointing out that providing a quantitative estimate is technically difficult and to one comment suggesting that EPA require analysis of expected pollutants. Other changes have been made in response to suggestions by commenters. The pesticides required to be reported in proposed item V—C are now listed specifically in item V—D (discussed below). Radioactivity has been subdivided into alpha, beta, radium and radium 228. Nitrate and nitrite have been combined as a single pollutant, in accordance with the usual practice of measuring their sum. Finally, the form’s instructions and the regulations specify that applicants need not test for pollutants expected to be present solely as a result of their presence in intake water, but need only indicate that they are expected to be present. EPA rejected certain other suggestions. EPA has retained the use of total residual chlorine (rather than the suggested free available chlorine) because it measures both free available chlorine and chlorinated anlines, because most existing toxicity data is in terms’ of residual chlorine, and because EPA expects to use total residual chlorine as a pollutant measure in forthcoming new effluent guidelines for the Steam Electric Power Generating Industry. Aluminum has been retained. despite one commenter’s argument that aluminum has low toxicity and solubllity, because aluminum remains of sufficient concern to require limitations in some cases (see, e.g.. 40 CFR 421.32 and 404.32). (iii) Required Reporting of Presence or Absence of Asbestos and Hazardous Substances: §122.53(d)(7)(iv) and item V—D. All applicants must indicate expected presence or absence, and briefly describe the source (or levels, if data is available) if present, of discharges of pollutants listed in item V— D. These pollutants include one toxic pollutant (asbestos) and 79 nonconventional pollutants which have been designated as hazardous substances under section 311 of the Clean Water Act but not listed as toxic pollutants and reportable in item V—C and which retain their undissociated form in water. The proposed requirement for asbestos was controvergial and has been changed. Applicants must now state briefly the source of any discharge of asbestos instead of testing or estimating the level of discharge. However, if they have analytical data ------- .33532 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 1 Rules and Regulations on any such discharges, applicants must report them. Proposed item V—C required applicants to estimate or test for certain pesticides for which EPA had developed (interim) test methods. In response to comments, EPA has now listed specifically (in item V—D) each pesticide required to be reported. EPA has decided to list only those pesticides which have been designated as hazardous substances. These pesticides are contained in the list of 79 hazardous substances required by item V—D. EPA feels that focusing attention on pesticides formally recognized as hazardous in water is a realistic approach at this time. Reporting requirements for the hazardous substances (other than those also listed as toxic pollutants) evolved out of 1978 Amendments to the Clean Water Act, which changed the relationship between the NPDES program amd section 311 of CWA. Proposed § 122.64(d)(19) and item IX of the draft application form provided to permit applicants the option of submitting information on discharges of hazardous substances designated under section 311 of CWA to obtain exclusion of those discharges from the various requirements of section 311. The proposal reflected proposed 40 CFR 117.12 (44 FR 10271, February 16,1979) in which EPA tentatively interpreted the 1978 amendments to section 311(a)(2) to grant exclusions for continuous or intermittent discharges which are caused by events pccurring within the scope of relevant operating or treatment systems only if certain information identifying those discharges is submitted to the permitting authority. In the final regulations (40 CFR 117.12, 44 FR 50766, August 29, 1979), EPA revised § 117.12 to acknowledge that such discharges by permittees or permit applicants are exempt from section 311 even when information on the discharges is not submitted to the NPDES permitting authority. Concurrently with promulgating 40 CFR 117.12 on August 29, 1979, EPA published a notice (44 FR 50780) modifying the June 14 proposed application requirements by adding a requirement concerning the reporting of certain discharges of hazardous substances in NPDES applications. This action was taken in recognition of Congressional intent that continuous or anticipated intermittent discharges of hazardous substances are appropriately regulated under the NPDES program rather than under section 311. The new proposal required reporting of 73 hazardous substances (in addition to the June 14 proposal’s requirement that hazardous substances which are on the section 307(a) toxic pollutant list must be reported) and of seven dissociation products of hazardous substances. The proposal required each applicant to report any of these pollutants which it knows or has reason to believe it is discharging. In addition, all applicants in 36 industries were required to test for vanadium. Estimates were permitted except for 16 substances (13 pesticides, 2 chlorinated hydrocarbons and vanadium) for which official EPA test methods had already been developed; actual testing was required for these if expected present. Commenters generally supported the approach of requiring reporting of a hazardous substance discharge only where the applicant knows or has reason to believe it is discharging the substance. This is a less stringent approach than used for toxic pollutants for several reasons. First, toxic pollutants are required to receive the closest possible scrutiny in the NPDES program under the 1977 Amendments to CWA; thus they may reasonably be distinguished from hazardous substances in formulating application requirements at this time. Second, test methods are lacking for most of the hazardous substances listed in the August 29 proposal. Third, most of the hazardous substances for which interim test methods exist are highly unlikely to be discharged except by a few industries (most notably, the Pesticides industry). Thus a more relaxed uniform reporting requirement for hazardous substances makes sense. Several commenters contended that the test methods for 14 of the 16 hazardous substances for which EPA claims to have published test methods have not been properly promulgated in 40 CFR 136 under section 304 of CWA and that EPA is therefore barred from requiring any such analysis. They argued that the published methods had not been properly incorporated by reference in Part 136. EPA believes it has legal authority to require testing for those substances, whether by use of the Part 136 methods or by allowing applicants to choose any appropriate method. However, commenters further argued that the methods for pesticides have been less widely tested than the methods for toxic pollutants. EPA agrees with those commenters. In response to the above comments, the proposed requirements have been - modified. Applicants are now required only to indicate the source of the discharges for all hazardous substances unless they have analytical data. Of course, as always, the permit writer may require further testing if necessry. EPA feels this more individualized approach makes sense at this stage of the NPDES program, since less is known about the analysis and treatability of many of these pollutants in discharges than is known for other pollutants to be regulated in the next round of permit issuance. In response to EPA’s request for comments on the list of hazardous substances for which application reporting was proposed, one commenter suggested that vanadium and uranium be omitted, and one commenter suggested that dicamba (a pesticide) be omitted. EPA was not persuaded by these comments. All of these pollutants have been designated by EPA as hazardous substances, which are designated to a large extent on the basis of toxicity criteria. Certain hazardous substances, such as acetic acid, are omitted from reporting requirements because they are toxic only in cases of spills causing shock effects; they are not toxic at the concentrations generally found in continous discharges. However, vanadium, uranium and dicathba are of sufficient concern in continous discharges to require reporting. The burden of such reporting is minimal, since the reporting is based on the inexpensive estimation of presence or absence rather than on more expensive testing. c. General Concerns in Sampli .ng, Analysis and Reporting of Testing Results. Several additional aspects of the sampling of waste streams and the reporting of analytical results were of concern to commenters and are discussed below. (i) Sampling Requirements. The instructions to item V of Form 2c include some general requirements about when samples should be collected. (Not all aspects of these instructions are set forth in the regulations.) The proposed instructions included the statement that samplesshould be representative of the previous twelve months of operation. Several commenters pointed out that this requirement was incompatible with the minimum requirement of testing one sample. Based on the comments, this statement has been deleted from the final instructions. The instructions retain the statement that applicants should choose sampling times which are representative of their normal operations. If operations are so variable that no representative time can be selected, as claimed by a few commenters, applicants may describe in item VI of Form 2c any types of discharge which differ from those ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33533 tested (see section lll.D.3.e of this preamble). Two commenters objected to the requirement that all composite samples be flow.proportional and suggested that time.proportional samples be allowed when retention times are long enough. This suggestion has not been adopted because flow proportional samples give a more accurate measurement of the total mass discharged when flows are not constant. When flows are constant, there is no difference between flow- proportional and time.proportional samples. One of these commenters also requested clarification of the definitions of grab and composite samples; this has been done. Several commenters pointed out that the proposed requirement that all samples be preserved by cooling to 4 Celsius was unnecessary for some pollutants. paticularly metals. This requirement has been deleted from the instructions, but applicants must comply with specific requirements for individual pollutants covering sampling containers, holding times, and preservation procedures when they are promulgated (proposed at 44 FR 69484, December 3, 1979). Until these requirements are promulgated, applicants must describe the holding times and preservation procedures which they use. (ii) Reporting of Testing Results. (A) Detection Limits. The proposal required applicants to report detection limits for all pollutants in draftitem V—C found to be not present. This requirement has been deleted because the proposed application-based limits have been deleted and the promulgated application-based notification requirements of 122.61(a) are not based upon multiples of detection limits. Therefore, the comments which were received on reporting of detection limits are no longer relevant, and the table in the proposed instructions setting forth detection limits has been deleted. (B) Miscellaneous Issues. One commenter pointed out that reporting of flow was required in both draft items V— A and V—B. The purpose was to have the applicant report the flow once to correspond to the concentration levels reported for the toxic pollutants, and a second time to indicate the average and maximum flow over the course of one year. Flow is now reported only once because of reorganization of the form, as described in the next paragraph. EPA has adopted certain suggestions by environmental groups advocating more detailed presentation of analytical results. Both concentration and mass of pollutant loadings must be reported in the application. In addition, pollutant loadings must now be reported as maximum daily value and as maximum 30-day value and long-term average value, if available. This change does not require any additional testing but does require additional calculations. ‘ Maximum daily value”, “maximum 30- day value” and “long-term average value” are explained in the instructions to Form 2c. Requirements for types of samples (grab or composite) are now specified in the instructions; therefore, they no longer have to be specified in item V of the form. The application form does not require applicants to aitalyze intake water, but they may do so if they wish to be eligible for net limitations under § 122.63(h). - In response to a comment, a provision has been added to the final regulation allowing the Director to limit testing of substantially identical outfalls to a single outfall. The applicant must state in the application which outfalls were actually tested and which were not and explain why the outfalls are considered substantially identical. Pollutants required to be reported in item V are listed on separate sheets at the end of Form 2c, numbered V—i to V—9. In order to provide applicants with some flexibility in reporting, the instructions state that applicants may submit some or all of the required information on separate sheets instead of filling out pages v—I to V—9, if they provide all the required information in the same format (to allow EPA to computerize the data). For example, applicants (or laboratories conducting analyses for applicants) may program CC/MS data systems to print the data in the required format, eliminating the need to copy the information onto a form. d. Response to Comments Advocating Biological Monitoring for NPDES Permit Applications. The final regulations, like the proposed regulations, do not require biomonitoring of effluents as part of the application process. However, as discussed in the preamble to the proposal at 44 FR 34400, the permitting authority is encouraged to require toxicity testing when the information is needed to assess the toxicity of a present discharge. Toxicity information may be necessary, for example, (1) when BAT is basically equivalent to BPT (that is. no treatment beyond BPT is necessary to control 307(a) toxic pollutants); (2) when guidelines for BAT are absent and permit limits will be case-by-case; or (3) when pollutants will not be chemically analyzed (e.g.. secondary industries or non-process wastewater) but toxicity is suspected. The results of such tests would then allow the permit writer to decide whether to require a process evaluation to determine whether additional treatment is required. The option of using toxicity tests also provides the permitting authority with the flexibility to respond to specialized cases when the source of toxicity is something other than the listed toxic pollutants. Permitting authorities have the authority to require acute biological toxicity testing when toxic conditions have occurred in the past, when toxicity information is needed for establishing priorities for permit issuance, or when reported effluent data is insufficient. This authority is clearly provided in section 308 of CWA, which lists biological monitoring as an available method for the purpose of developing permit limitations. A significant number of comments were received, particularly from private citizens and public interest groups, strongly supporting toxicity testing as a mandatory permit application requirement. At a minimum, most of these commenter8 wanted all Group I industries (defined in the proposal as the primary industries plus the Ferroalloys and Asbestos Manufacturing categories) to perform a two-tiered testing program consisting of: (1) a 96- hour, acute, statiC LC5O toxicity test on several appropriate species; and (2) persistency testing by sediment uptake of priority pollutants or bioacàumulation test of animal tissues. Commenters argued that such a testing program would not be an overly-restrictive burden on Group I industries. EPA disagrees and feels that these suggested requirements are inappropriate at this time. Toxicity testing is not being required of all applicants because, in many cases, additional or modified treatment will be required by BAT limits for specific pollutants. In these situations, the results of toxicity testing may not be çelevant because specific pollutants which are sources of possible toxicity will be identified chemically and permittees will be required to reduce the concentration of these pollutants. When specific toxic pollutants are identified in the permit application, it may be assumed that the effluent has acute or chronic toxicity, which would make biomonitoring duplicative. EPA believes, therefore, that biomonitoring currently should be required on a case-by-case basis by. the permitting authority in situations such as those indentified above, where the information is needed to make a permitting decision. However, after installation of BAT treatment,. ------- 33534 Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 I Rules and Regulations biomonitoring *ill play an increasingly important role in the NPDES program. Several commenters argued that EPA cannot require biomonitoring for pollutants other than those regulated by a discharger’s NPDES permit, apparently misunderstanding that biomonitoring does not test for specific pollutants. One of theadvantages of biomonitoring is that total toxicity is measure regardless of the interactions of the constituents contributing to that toxicity. Therefore, toxicity tests measure the effects of chemical mixtures which cannot otherwise be limited in a permit. One commenter argued that the Agency, not the regulated industry. should bear the burden of data gathering unrelated to determining permit compliance. EPA disagrees. Section 308 of CWA requires the discharger, not the permitting authority, to provide any information necessary to determine permit limits. Some commenters argued that the cost of toxicity testing is prohibitive. Although testing for chronic toxicity and bloaccumulation can be expensive, the cost of acute toxicity testing is not prohibitive. Many industries have in- house testing capability and many companies have already generated toxicity information on their discharges. In addition, a substantial number of laboratories, including many environmental engineering firms, perform toxicity testing on a contract basis at conipetitive prices. The following table represents typical present-day costs of several types of acute toxicity tests: Contractor Acute toxicity test Un-house Offsite Ons8e 24 hr Static... $1 00-200 0200-500 02,000-3.000 $6 Pit Static $200-soc 0500-2.500 08.000-6.000 Renewal 98 hr 0300-600 5800—2,500 $6.000—I0.000 Flowthrough Other commenters suggested that no biomonitoring be required until EPA publishes biomonitoring protocols. Several comments were directed at the lack of standardized test methods, particularly for chronic toxicity testing. Standardized test methods for acute toxicity testing are available (see Methods for Measuring the Acute Toxicity of Effluents to Aquatic Organisms, EPA-.600/4—78-012) and EPA will soon propose formal rules under section 304(h) of CWA to include these acute toxicity test methods in 40 CFR Part 136. However, test methods for chronic toxicity and bioaccumulat on are less standardized. In particular, tests used for the analysis of carcinogenic, mutagenic, and teratogenic properties of pollutants are still undergoing development and evaluation. Therefore, test results on these measures should be carefully evaluated before they are used in the NPDES permit program. Although biological toxicity testing will be used only on a case-by-case basis during the next round of permit issuance, EPA believes that biological testing must play a major role in future toxic pollutant control strategy. Therefore, EPA will propose rules in the near future to require all dischargers in selected subcategories to evaluate their effluents after BAT treatment processes are in operation using a standard biological screening protocol. The screening protocol will be relatively inexpensive and will identify effluents still containing significant toxicity. Further testing and preparation of a toxicity reduction plan may be required if screening reveals significantly toxic discharges. In cases where severe toxicity problems remain, the permit may be reopened and modified accordingly under § 122.15(a)(2). Data thus generated will also be used to assess problems associated with specific discharge types or chemical classes which could be involved in human health problems. The information will identify those instances where the magnitude of discharge would pose particularly hazardous and long term problems. EPA-expects that many post-BAT discharges will not have the acute toxicity problems which have been associated with industrial dischargers in the past. Of increasing importance in future pollution control will be problems involving chronic toxicity, persistence, and bioaccumulation. EPA plans to incorporate the developing technology in these area into future biomonitoring requirements. 3. Other Application Requirements a. Outfall Location: § 122.53(d) (1) and Item 1. A new requirement has been added that applicants list the latitude and longitude and the name of the receiving water for each outfall. Applicants should be able to generate this information easily from the map provided in Form 1. This information, suggested by environmental groups, will be useful to EPA and States in water quality studies and planning activities. b. Flows, Sources of Pollution, and Treatment Technologies: § 122.53(d) (2)— (4) and Item H. The major change from the proposal is that, in response to comments, information required on a line drawing and in tabular form are better coordinated. The line drawing now must show average flows for all types of wastewater, and item V—A requires reporting of the maximum daily total flow from each outfall (as well as average flows). The information in item II is useful to the permit writer because it reveals what processes use or contribute pollutants to water in the facility, and what kinds of treatment wastewater currently receives. Therefore, comments suggesting that these requirements be deleted as unnecessary and burdensome have been rejected. EPA has also rejected the suggestion of environmental groups that all flows should be measured, not estimated. Estimated average flows are sufficient to give the permit writer a general picture of the facility’s water use. However, when actual flow measurements already exist, they must be reported. All sources of flow to an outfall must be identified in the line drawing, including cooling water, sanitary wastewater, and stormwater runoff. The instructions have been modified to emphasize that similar processes or operations may be shown on the line drawing as a single unit, labeled to correspond to the more detailed listing in item I l—B. This responds to comments objecting that extensive reporting of flows between manyindividual processes would be burdensome. The National Coal Association commented that the requirement to provide a line drawing is not appropriate for coal mines. In response, the question allows the applicant, when a water balance is not possible, to ‘describe the source of the water (e.g., active surface mine, regraded area, or preparation plant) and its route before being discharged. Average flows contributed by each operation to an outfall must now be reported in § 122.53(d)(3) and item Il—B to enable the permit writer to determine the proportion of the total flow contributed by operations which are covered by an effluent guideline. Identification of treatment systems is now requested in a coded form which will allow loading of this information into an automated data system. The appropriate codes are listed in the form’s instructions. The instructions have been modified, in several other ways. First, processes and operations may be described in general terms, in response to commenters who feared that this requirement would reveal trade secrets. This general identification of processes contributing to wastewater effluent is necessary to identify the standards and limitations applicable to the discharge. Second, any reasonable measure of the flow contributed by stormwater, such as ------- Federal Register / Vol. 45, No. 98 I Monday, Ma ,y 19, 1980 I Rules and Regulations 33535 ation or frequency of storm events. y be used. This responds to ments pointing out the difficulties of predicting flows resulting from rainfall. Finally, a description of the final disposal of any solid or li uid waste other than by discharge is required, so that the permit writer may determine the amount of the effluent discharged and identify the fate of all wastes. Other suggestions made by commenters have’ not been adopted. One cornmenter suggested that estimates of future increased flows be allowed in calculating permit limits However, the general policy of the NPDES program is to base present limits on present operation, rather than on potential increases. Another commenter stated that the question should not ask for the design flow of the treatment units, because the method of treatment may change. However, the description in the permit application is not binding, but simply must be representative of the facility’at that time. Perinittees may meet their permit limits by’ selecting any appropriate treatment equipment or methods. The question requiring additional description of discharges which. are intermittent or seasonal ( 122.53(d)(4) id item 11—C) has been modified ghtly. Columns for ouffall and intributing operation have been parated, and the. column for volume of flow has been expanded to allow reporting of flow rate and duration if applicable. c. Measure of Maximum Production: § 122.53(d) (5) and item III. Applicants must report maximum production when production-based guidelines apply to their discharges. This requirement has been changed slightly from the proposal. Applicants must now report only a maximum measure of their actual production, not an average measure as well. The instructions have been modified to give examples of guidelines expressed in terms of production or other measures of operation. They state that an applicant that discharges only non-process wastewater is not covered by a guideline and thus need not complete this item. Another modification is that applicants now must indicate which outfalls are affected. d. Currently Required Construction, Upgrading or’Qperotion of Waste Treatment Equipment: § 122.53(d) (6) and item I V Applicants must report any current requirements for construction of waste treatment equipment. The proposed requirement to describe non- quired projects proposed by’ the pplicant is now optional. One environmental group wanted item i expanded to require listing all interim dates In the construction schedule (as proposed § 122.64(d)(15) required). However, the Agency has decided that the application is not an appropriate mechanism to collect this information, which is usually publicly available anyway. The final compliance date is required to enable the permit writer to determine how soon the’ discharge’ will be affected or to decide whether to check other records for more information. Item tV—B, which asks about planned projects, was made optional in response to several comments noting that the applicant’s tentative project plans are an internal matter. Thus, applicants may report any projects they have in planning stages if they feel that this information will assist the permit writer in developing permit conditions; however, applicants are not required to reveal their plans. e. Potential Discharges of Toxic Pollutants: § 122.53(d)(9)—(1O) and item VI. Certain information on toxic pollutants must be reported in addition to the testing discussed above in section IILD.2 of this preamble. This additional information will help identify any toxic pollutants which may be discharged from the applicant’s facility and’ thus should be controlled through permit limits. It will’ alsobe used as one basis for application-based notification requirements. (See section 11l.B.2.a.iii of this preamble.) (I) Toxic Pollutants Used or Produced by the Appiicant § 122! 53(d) (9) and item, VI—A. Applicants must identify toxic, pollutants which they use or manufacture as Intermediate or final products or byproducts. This requirement supports § 122.62(e).. which requires that permits be written to control toxic pollutants which are used, or manufactured by the applicant. Several commenters’ noted that pollutants which are used or manufactured at a facility are likely, to be discharged by’ the facility. In addition, several commenters (including an environmental group and’ State permit-issuing authorities)’ suggested that the application form include a requirement for an. inventory of raw materials and products. This item responds to the above comments. The Agency considered excluding from this application requirement those pollutants which are used or manufactured in small amounts. This approach requires a determination of cutoff levels of use or manufacture. However, because even relatively small’ amounts of a toxic pollutant can be of substantial concern in certain circumstances, the cutoff levels would have to be quite low. The Agency concluded, therefore, not to use a cutoff but rather to uniformly require submission of information Identifying any toxic.pollutant used, or manufactured by,’ the applicant. (ii) Predicted Potential Increases in Discharges’of Pollutants: § 122.53(d)(’lO). and item. VI—B and C. Applicants musL describe and explain the causes of discharges of pollutants which may’ during the next five years exceed two. times the maximum levels reported in. waste stream analyses. This information will be used by permit writers to identify any pollutants which are expected to be discharged at significant levels and thus require control under’ § 125.3 (see section lll.B.2.a.i of this preamble.) In addition, § 122.61(a) requires notification of future discharges at levels’ exceeding five times any levels reported in this question (see III.B.2.aii of this preamble.) Items ‘il—B and C are essentially the same as the draft items Vr—A, B, and C, except that the applicant is’ now required to report any discharges expected to exceed two times the maximum level reported in. item V instead of five times the average level. One commenter argued that since the Diredtor may modify a permit if the discharge exceeds five times the reported level after the permit is’ issued, information on expected increases should be optional. This suggestion was rejected. It is appropriate to identify future discharges in. the application and to set appropriate limits in the permit. This will help insure the installation of’ any equipment necessary to treat the potential discharges prior to commencement of the discharges. Reliance on future reporting, and permit modification would result in delays in control and should be used only to control discharges which are not foreseeable at the time of permit issuance. Some commenters contend’ed that this question would be difficult or impossible to answer. However, the question requires only that predictable discharges or fluctuations. be identified. When applicants have no reason to believe that such discharges or fluctuations will’ occur, they may answer “No” to item Vl—B. If discharges or fluctuations are not predicted in item VI—B but later do occur, they’ will trigger application-based notification. When applicants believe that fluctuations may occur but cannot predict their degree, they should state their reasons for believing that the fluctuations may occur the permit writer will then determine whether more information is necessary. ------- 33536 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 f Rules and Regulations One commenter requested that some provision be made to exempt applicants from liability for false reporting if the estimates reported in item VI turn out later to be inaccurate. No such provision is necessary because applicants would not be liable to prosecution for incorrect estimates made in good faith. f. Results of Previous Biomonitoring: § 122.53(d)(l1) and item VIL Each applicant must indicate whether or not biological tests for acute or chronic toxicity have been performed on its discharge and describe the results of those tests. The proposed requirement that the test results be reported has been deleted. Two commenters strongly opposed the requirement to report the results of previous biological toxicity testing because the data in many cases would have been developed by EPA in cooperation with the industries to assist in effluent guidelines development. Another commenter suggested that the proposed reporting requirement unfairly penalized industries who have been diligent in their cleanup efforts and would create serious legal or public relations problems for those dischargers who in the past have had effluent quality problems but have now installed extensive treatment facilities. - EPA agrees that requiring dischargers who have voluntarily conducted biomohitoring toxicity tests in the past to report the results could be unfair, particularly If their cleanup efforts have resulted in substantial toxicity reductions. The Agency has eliminated. the requirement to provide the results of such testing on the application form. Instead, item VII requires applic nts to report whether or not biological tests for acute or chronic toxicity have been performed on the discharge or on the receiving water in close proximity to the outfall. When the results of such tests are likely to indicate the present situation (e.g., when no new treatment system has been installed or when no production and process changes have occurred since the tests were conducted), the permit writer can review these factors and decide whether or not to request further information relating to those tests. g. Laboratory Conducting Analyses: § 122.53 (di (12) and/tern VIII. If any of the analyses reported on the application form were performed by contract laboratory or consulting firm, applicants must Identify each laboratory and the analyses which it performed. In the proposal, applicants were not required to identify which analyses were performed by which laboratories. This requirement was added in response to the single comment received on this uestion. It imposes only a minimal reporting burden, while providing useful information for quickly following up on problems relating to the data. h. Other Inform at/on Required by the Director on a Case-by-Case Basis: § 122.53(d)(13). In addition to complying with specific information requirements on the application form, the applicant must provide such other information as may reasonably be required to assess the discharges of the facility and to determine whether to issue an NPDES permit. This information may include additional quantitative data and bioassays to assess the relative toxicity of discharges to fish and other aquatic life, and requirements to determine the cause of such toxicity. This regulation is essentially the same as proposed § 122.64(d)(20), except for minor changes. The word “reasonably” has been added as suggested by one commenter. In addition, the sentence concerning bioassays, which appeared as a comment in the proposal, now has been incorporated into the regulation, with chemical analysis also mentioned explicity. Several commenters stated that permit writers were being given too much discretion to ask applicants to generate new and costly data, and that the regulation was too open ended and should be deleted. One commenter suggested that the specific informational requirements were so complete that this regulation was unnecessary. Another suggested that EPA develop a list of pollutants of concern by industry category, and limit requirements to that list. None of these suggestions was adopted, however, except for addition of the word “reasonably,” which should provide protection against unreasonable requests for information. The need for “other information” on a case-by-case basis for certain discharges has been demonstrated by prior experience in the NPDES program. While the uniform requirements should suffice for most applicants, the flexibility to request — further infolination in appropriate circumstances must be retained. 4. Proposed Application Requirements Deleted From the Final Regulations and Form a. Optional Reporting Requirements for Hazardous Substances. Proposed § 122.64(d)(19) gave applicants the option of submitting information on discharges of hazardous substances designated under Section 311 of CWA to allow them to apply for exclusions of those discharges from the requirements and penalties of secion 311. Item IX of the draft NPDES application form contained a format for submitting such optional information to EPA. Both the regulation and item have been deleted from the final regulation and form. EPA has deleted this queltion because it is unnecessary, in accordance with 40 CFR 117.12 (44 FR 50768, August 29, 1979) which states that to obtain exclusions from section 311, applicants need not report in their applications any• information concerning continuous or anticipated intermittent discharges of hazardous substances which are caused by events occurring within the scope of relevant operating or treatment systems. (See section III.D.2.b.iii of this preamble for further background.) Certain discharges by NPDES permittees or permit applicants, such as spills, remain subject to section 311 coverage absent the submission of appropriate information to the NPDES permitting authority and coverage in the NPDES permit. However, since this information may be submitted at an applicant’s option under 40 CFR 117.12(a)(2) (dealing with “exclusion 2”), no regulatory requirement is needed in § 122.53(d). Furthermore, no single format will serve the purposes of each applicant seeking to exclude potential spills from section 311 coverage under exclusion 2. Instead, the instructions to Form 2c direct applicants seeking such exclusions to attach the information required by § 117.12(c)(1) to their application forms on additional sheets of paper. Information on continuous or anticipated intermittent discharges of many hazardous substances is now routinely required of certain applicants by § 122.53(d)(7)(iv) and item V—D of Form 2c. These requirements reflect Congressional intent that such discharges be regulated under the NPDES program rather than under section 311 of CWA. b. Submission of Data on Additional Pollutants. The proposed application form contained a question requiring applicants to report data on any pollutants in addition to those reported in item V (proposed § 122.64(d)(18) and draft item VIII). This requirement has been deleted from the final form. The deletion is in response to several comments objecting that the proposal was burdensome and required reporting of data that was inaccurate and not useful. The Agency agrees that the information would generally not be useful to permit writers in this round of permit issuances. An environmental group suggested that EPA require applicants to submit or to keep on file any GC and GC/MS profiles they generate to provide information on additional pollutants. EPA considered establishing such a ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33537 equirement; however, investigation evealed several drawbacks. Only a omputer-readable form of the raw data 1 that is, nine-track magnetic tape) would provide data on additional pollutants, and the cost of storing data in this form can be significant. The cost of reanalyzing the tapes ranges up to half of the cost of analyzing a new sample. Therefore, potential cost savings are not great and do not outweigh the advantages of conducting new sampling and analyses, when necessary, rather than retaining raw data on a routine basis. The retained data would be less current and would reveal only a limited number of additional pollutants. c. Ancillary AcLivities Which may Result in Discharges of Toxic Pollutants or Hazardous Substances—Best Management Practices Programs. Proposed H 122.64(d) (11) and (13) and draft items Ill—B and Ill—C of Form 2c required each applicant to d scribe any actual or potential discharges of toxic pollutants or hazardous substances from ancillary activities and to attach a copy of its Best Management Practices (BMP) program for controlling these discharges. The requirement to develop a BMP program was contained in Part 125. Subpart K of the fInal NPDES regulations published on June 7, 1979 (44 FR 32854, 32954). The effective date of Part 125, Subpart K was deferred on August 10, 1979 (44 FR 47063) pending the availability of a BMP guidance document. On March 20, 1980 (45 FR 17997) the guidance document was made available for a 45-day public comment ending May 5, 1980 (see 45 FR 21635; April 2. 1980). T herefore,, at this time 40 CFR Part 125, Subpart K is not et effective. In light of this timing problem, EPA decided to omit the requirement to submit a BMP program from Form 2c at this time. When Part 125. Subpart K becomes effective Form 2c’ will be amended as appropriate. This will allow EPA to make any adjustments to the requirements necessary to respond to public comments on the BMP’manual as well as those previously submitted on proposed H 122.64(d) [ 11) and (13) and draft items [ 11—B and Ill—C. In particular, EPA is considering comments submitted on the draft form which suggested that a summary of the BMP program. rather than the entire program,, be included with the application, and that the description of actual and potential discharges (draft item Ill—B) be combined with Lhis summary. E. Monitoring Requirements I. Chemical Monitoring Specific monitoring requirements for an individual permittee are established by the permit writer when the permit is issued. § 122.11(b) requires that permits contain monitoring requirements which are sufficient to yield data representative of the monitored activity. However, it does not establish any specific requirements for monitoring type and frequency, but rather leaves that to the judgment of the permit writer. This case-by-case approach to setting monitoring requirements, which has been used En the past in the’ NPDES program, reflects the need to consider outfall-specific factors such as the flow rate, the types of pollutants discharge, the nature of the receiving water, and the existence of downstream intakes for drinking water. Because monitoring requirements are related to many of the issues in the application form and permit regulations, the preamble to the proposed regulations contained (at 44 FR 34407; June 14, 1979) a description of a typical monitoring stheine under the new toxics-oriented permitting strategy. The scheme depicted the usual frequent monitoring for pollutants limited in the permit as well as periodic monitoring for some or all of the toxic pollutants and. in some cases, periodic biological monitoring. In addition, the proposed regulations included a provision (proposed § 122.71 [ a)(1)) allowing monitoring requirements to be set for pollutants controlled by the proposed application-based limits regulations, although, again no frequency was specified. The preamble also discussed the coste which might be associated with’ particular compliance monitoring requirements. Two major differences’ between the final regulations,and the’proposal affect monitoring requirements. First, the proposal on application- based limits has been deleted, and the final regulations contain an application- based notification requirement and a provision authorizing permit modification when a toxic pollutant is discharged at a leveL exceeding that achievable by BAT. Although application-based limits might, as some commenters argned, have, forced permittees to monitor their discharges frequently to ensure’ that the limits would not be violated and that the p,ermittees would not be subject to enforcement actions, application-based notification requirements do not impose similar burdens. Notification is required only when the permittee knows’ or. has reason to believe’ that some activity has occurred or will occur which would result in increased discharges. No obligation is imposed by the regulation to monitor for pollutants which are not expected to be present. Of course, permits for discharges of toxic pollutants are likely to require some testing for toxic pollutants during the life of the permit to determine whether significant amounts of toxics are being discharged. See § 122.62(1)(i)(4), which allows permit writers to require monitoring for pollutants not limited in the permit. Second, the final regulations ( 122.82(e)) require that permits contain limits to control all toxic pollutants which are used or manufactured by applicants or which are reported at high levels. These limits will include limits on specific toxic pollutants unless the permit writer determines that the discharge of the toxics will be adequately controlled by limits on other polluLants. Limits on individual tonics will require compliance monitoring for the toxics, which could be expensive in some instances. However, this follows inevitably from the statutory requirements that permits assure installation of BAT-level treatment to control discharges of toxic pollutants. § 122.62(e) merely provides certain criteria governing which toxic pollutants may be discharged in significant amounts. EPA expects that where toxics testing would be very expensive, the use of indicator limits or indicator monitoring may help alleviate this problem. 2. Biological Monitoring In the preamble to the proposed regulations, one of the options presented for compliance monitoring and reporting was the use of toxicity tests in addition to chemical analyses. Under this strategy, toxicity tests would supplement chemical analyses so that chemical testing would be required “sparingly” and acute toxicity tests “on a more frequent basis.” EPA reasoned that because toxicity tests are generally less expensive than chemical analyses and may lead to the detection of additional sources of toxicity not controlled by the permit, a useful check on wastestream toxicity could be economically provided as part of the compliance monitoring requirements Several commenters, however, argued that biological toxicity informatioi is not relevant or necessary when a permit is based solely on chemical’ limits’and when chemical monitoring is required. Several other commenters’ favored biomonitoring but objected to performing both chemical and biological’ testing. The Agency agrees that. in most ------- 33538 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations cases where th e permit contains only chemical limitations, toxicity tests should not be required for the purpose of compliance monitoring. However, there may be circumstances where considerable doubt exists concerning the adequacy of the chemical limits employed as permit limits to control all sources of toxicity. In these cases. toxicity tests should be required as part of the monitoring plan not to test for compliance, but to trigger investigations of the cause of remaining toxicity. The investigations could lead to the reopening of the permit to control the newly-found problem. Of course, when -t’oxicity limits are specified in the permit, the appropriate toxicity tests are necessary to ensure compliance. Several commenters suggested that biomonitoring could completely replace chemical analysis and serve as a compliance indicator to trigger more expensive chemical analysis. However, toxicity testing alone is inadequate because many toxic pollutants are not acutely toxic but bioaccumulate or are carcinogenic or mutagenic. It is important to know whether those pollutants are being discharged. These pollutants would often be discharged bçlow the levels of acute toxicity and not be adequately monitored by acute toxicity tests; long-term threats would Thus remain undiscovered. Therefore, toxicity tests should not be used exclusively for compliance monitoring in these cases. EPA intends to continue to rely on chemical testing to insure compliance with permit limits for specific pollutants. However, the Agency believes that biological toxicity testing is useful to help determine whether the toxicity of discharges in compliance with BAT perthit’limits has been adequately reduced to assure achievement of fishable and swimmable waters as required by Section 101 of CWA. Therefore, EPA *ill soon enter into a rulemaking proceeding to require toxicity screening tests for certain dischargers after they have installed BAT. F. Economic and Resource Impacts of Application Reporting Requirements 1. Unit Costs of Sampling and Analysis The incremental costs (over those associated with existing application requirements) imposed by the new sampling and analysis requirements consist of the following two elements: (1) costs imposed by the new requirement that certain applicants sample and analyze certain waste streams for some or all of the organic toxic pollutants; and (2) costs imposed by the revision of current reporting requirements for pollutants other than the organic toxics. including additions to and deletions from the current list of pollutants which must be reported and changes in the nature of reporting for certain pollutants retained on the list. a. Sampling and analysis of organic toxics. For the purpose of calculating a probable cost impact, the Agency is assuming that sampling consists of 24- hour composites (a change from the proposed requirement of 72-hour composites). Analysis is assumed to consist of GC/MS quantification. Applicants may use any method of analysis before the publication of final 304(h) test methods, but the Agency expects that GC/MS will be used most often because of the designation of testing requirements by CC/MS fraction. Cost data to support the proposal were developed from a variety of sources, which yielded figures over a relatively large range. These data were published in the proposal’s preamble and comments were received. The Agency verified the data with additional checking, but some uncertainties remain, including the effect of laboratories’ Increased use of and familiarity with the analytical methods, the impact of the entry of i ew laboratories into the market, and the level of quality assurance/quality control (QA/QC) which will be required by final regulations under 40 CFR Part 136. The following cost estimates represent conservatively high judgments based upon unit prices as of Fall 1979. The Agency received comments from a number of sources on the unit cost of sampling and analysis in the preamble to the proposal. These comments ranged from one which indicated that the Agency cost estimate of $4500 was an overestimate by $2,000 of the cost of sampling and analysis to one which suggested that the Agency figure was an underestimate of that cost by a factor of two. Several commenters remarked that the Agency estimates for the cost of sampling and for the cost of GC/MS screening were correct; another commenter confirmed the overall Agency cost estimate. The cost of GC/ MS quantification was viewed as an underestimate by several commenters because of their expectations about the cost of quality assurance procedures. However, it was unclear from these comments what the commenters assumed about the nature of the QA/QC procedures to be employed. Among the comments on the unit cost of sampling and analysis, only those concerning the cost of quality assurance procedures specified. the manner in which EPA-assumed unit costs were regarded as underestimates. The Agency recognizes that GC/MS costs vary with the QA/QC procedures used but feels that today’s cost estimates reflect a reasonable upper limit on the cost of the QA/QC procedures which will be used in performing CC/MS analysis. A second group of comments received by the Agency concerned the assumptions about the number of samples which will be taken by permit applicants. One commenter from the coal mining industry argued that the overall cost calculation was an underestimate because some plants in its industry have as many as 10 outfalls. The Agency acknowledges that the total cost for some applicants will be several times the average cost fi ure. but also emphasizes that the figures are used to calculate the total incremental cost for the average plants. In addition, it is noted that today’s regulations provide for testing exemptions for identical outfalls, which should reduce individual impacts in some cases. Some commenters regarded the one- sample assumption as an underestimate because of the requirement in the proposal that the sample be representative of the operations of the plant for the previous 12 months. In, response to these comments, the requirement in today’s instructions is that the time for sampling be representative of the applicant’s normal operations. This modification means that the instructions no longer potentially require multiple sampling, but only a somewhat careful choice of sampling time. - The application-based limits provision has been replaced by an application- based reporting requirement in § 122.61(a). This change from the proposal strengtherisihe likelihood that each applicant will need to collect and analyze only one sample. It makes the potential cost of the application-based hmit provision a moot issue. (i) Sampling Costs. Sampling costs will vary significantly, depending on the extent to which the applicant has to rely on an independent contractor rather than in-house personnel to perform the sampling. The instructions state that sampling should be supervised by an experienced supervisor. The sampling costs will also depend. on the degree to which the costlier, manual (rather than automated) sampling must be used. The analysis below assumes that the sampling will be performed manually, although either sampling method is allowed. . As noted above, this anlaysis reflects the change from the proposed requirement for a 72-hour sample to a ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33539 24-hour sample, resulting in substantial cost reductions. U8ing current prices, the approximate sampling cost breakdown in the case of complete reliance upon independent contractors (assuming the use of a 4- person -sampling team for a 2.day sampling trip) is as follows: T chnicians @ $80/day, X3 Samplifl8 shifts =$240x2=$480 Supervisor @ $120/day=$120X2=$240 Reports (1 person.day, supervlsor]=$120 Overhead on contract salaries (15O%)=$l,260 Equipment set up on site, 2 man-days=$160 Disposable equipment, sample container preparation =$130 Sample air lransport $10O Subtotal less personnel air fares, local travel and per diem=52,490 Personnel air fare (estimated average)—$200/ ea. $800 Personnel per diem/local travel—S50/day/ person = $400 Total=$3,690 Costs in a number of these categories, such as salaries, overhead rates, and air fare may vary significantly. However, the Agency believes that $3,690 is a reasonable estimate of the discharger’s cost to have an independent 4.person team to undertake a 2-day sampling trip. The situation described above is the most expensive case. By using an experienced contract supervisor and possibly contract sampling equipment together with in-house technicians, sampling costs may be reduced by approximately $1850 because overhead, travel, and salary expenses associated with the three contractor technicians are eliminated. This leaves a net sampling cost of approximately $1825 per 24-hour composite sample collected manually. If a sampling team can sample at least two outfalls simultaneously, additional savings can be achieved because personnel-related costs need not be duplicated. The cost of a two outfalls sample is $2,520; $1260 per outfall. The increase in cost of nearly $700 is due to additional expenditures for report preparation, overhead, equipment, sample transport, and equipment set-up. For computing the total incremental cost of complying with the application requirements (section F(3) below), an average sampling cost of $1,550 per outfall, which is halfway between $1,260 and $1825, will be assumed. (ii) Cost of Analysis by CC/MS Quantification. For the purpose of determining the cost of CC/MS testing, it is assumed that applicants will forward their samples to independent laboratories for analysis. The Agency has received data on CC/MS costs from several sources, including Agency experience with effluent guidelines development, industry, independent laboratories, and CC/MS equipment manufacturers. The data from these sources, together with the fact that increased volume and improved technology have been steadily reducing costs, indicate that a reasonable estimate of CC/MS testing costs (with some QA/QC) is $1,500 to $2,000. This estimate does not take into account that applicants in more than half of the industries can omit analysis of at least one CC/MS fraction, and is thus an overestimate of the total cost. The potential for savings from this exclusion is up to $500 per applicant. For purposes of computing the total Incremental cost of complying with the application requirements, the Agency is. assuming the cost of GC/MS testing is $2,000. Adding $2,000 for analysis to the assumed average sampling cost of $1,550, the average cost of sampling and analyzing the toxic organics is estimated to be $3,550 per outfall. b. Sampling and analysis of pollutants other than the oiyanic toxic pollutants. The methods for analyzing for most of the pollutants other than the organic toxics (e.g., metals, ammonia, and other inorganic pollutants) are well established. Cost data for these • pollutants are therefore more certain • than the cost data for organic pollutants. Section lll.D.2.B of this preamble discusses the new requirements and indicates changes from the June 14 proposal. The modifications in the - testing requirements from the proposal will result in little or no change in cost from those assumed in the proposal. Little or no change in sampling costs will result from today’s requirements. Analytical cost will increase slightly. The Agency estimates that incremental sampling and analysis costs for pollutants other than the organic toxics will range between $180 to $400. For purposes of computing the total incremental economic impacts in section llI.F.3 below, an incremental cost of $300 is assumed. - 2. Unit Reporting Costs The preparation of the information which is required by § 122.53(d) (discussed in section III.D of this preamble) will require stafftime, resulting in costs in addition to the analytical testing costs. These reporting costs include data development; collection and compilation by various levels of the applicant’s staff (clerical, administrative and professional); and review by legal advisors, professional supervisors, and managers. Unit reporting cost are summarized in Table V. Table V reflects two modifications in the Agency analysis made since the proposal. One is the elimination of the itejn requiring attachment of a BMP program. The other modification is thern result of a change in reporting requirements for section 311 discharges. In the proposal an applicant had the option of reporting discharges of hazardous substance in order to claim exemption from section 311 requirements. The final Agency regulations (44 FR 50768; August 29, 1979) provide that an applicant need not report hazardous substances discharges as part of its NPDES application to obtain a section 311 exclusion if the discharges have otherwise been made a part of the public record. Therefore, the costs to prepare this information have been omitted from Table V. (For the remaining application requirement on hazardous substances see item V—D of Form 2c.) The net result of these modifications is a significant reduction in unit reporting costs. The unit reporting costs will vary depending on the nature and extent of the applicant’s relevant activities and on the applicability of various reporting requirements to the applicant. The Agency chose in the proposal to calculate total costs by examining the burden for a typical plant in each of four categories: primary major, primary minor, secondary major, secondary minor. Costs are highest for primary majors and lowest for secondary minors. The chief assumptions underlying the calculations are: 1. Primary industry dischargers will in general expend greater effort to study waste stream variability for toxic pollutants (including an examination of processes and raw materials) than secondary industry dischargers. 2. Major dischargers will generally have more complex operations than minor dischargers. For major dischargers, large numbers of different processes may create complex waste streams which are then discharged through several outfalls. These considerations will require major dlschargers to expend significantly more resources than minor dischargers. The unit reporting cost of the new application form, on which no substantive comments were received, are summarized in Table V. Table V.—Un,tflepomng Costs of New Application Form (Mows/Source) P,I i i i y 5 ,.. , i ,y lndustiy Industry discharger Type of question Major Minor discharger Major Minor • General information . ... 3 2 3 Environmental engineenna data - 22 8 16 2 ------- 33540 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980/Rules and Regulations Management of anatytical data Graphics - - Potential discharges not covered by analysis . - Total. .. ._ __ a9 55 48 20 To assess the incremental reporting impact of the new form over the old form, the total unit reporting costs of the old form were also assessed. It should be noted that the reporting cost assessments performed for Office of Management and Budget on the original NPDES application form indicated an unusually low unit cost of completing that form. This low original baseline cost is attributable to the fact that a large portion of the NPDES application requirements were fulfilled in many cases by submitting applications completed under the old Refuse Act Permit Program (RAPP) administered by the U.S. Army Corps of Engineers. When the NPDES program came into being, these RAPP applications were often accepted as NPDES applications, so that the reporting costs of the original form were reported as incremental costs. For this reason, the total cost of the old form was recalculated. These recalculated unit reporting costs are summarized in Table VI. Table Vl.—Un,tRepo,ting Cost of OldAppilcation Form (Hours/Source) .0my industry industry - dschaiger Type of question Major Minor discharger Major Mmcc Total hour). (No adjustments for inflation have been made in the compensation levels - -— since the proposal.) Based on the above, the incremental unit reporting cost of the new form is 2 presented in Table VII.. Table Vll.—Incremental Unit Costs 0/New Appication Form Pili .wy Sm unduiy industry industry discharger discharger Major Minor Major Minor OldFormCoat . . $1855 $765 $1520 $665 r 4ewFonnCost _... . 2715 1565 1790 775 Inoremental Coat $860 $800 $270 $110 Table VII illustrates that while the unit reporting cost of the new form is greater than the cost for the old form, the new form focuses reporting requirements on those industries with the greatest potential for toxic discharges (primary industries). Note, however, that the incremental cost shown above for secondary industry minor dischargers is probably understated since some of these dischargers completed a special “short form” rather than the complete NPDES application form analyzed in Table VI above. 3. Total Incremental Costs of Complying With the Proposed Application Requirements This section discusses the total additional costs imposed by the application requirements of § § 122.53(d) and 122.4(d) over those imposed by - existing requirements. The Agency has computed the total incremental costs of 2 3 2 its new requirements during fiscal years 1981—1985 (the period for which the new 44 18 38 18 application requirements will be 17 7 14 4 effective) by multiplying the unit costs 4 4 4 4 derived above by the number of 0 0 applicants or activities which are expected to incur those costs during the 68 31 57 28 - period FY 1981—FY 1985. The facts, estimates and assumptions used to compute the total incremental costs of the form are summarized in Table VIII. a. Number of applicants. The number of existing industrial dischargers who will use the new application form during FY 1981—FY 1985 is based upon the Agency’s records of dischargers who currently have permits and may be expected to reapply upon permit expiration. It should be noted that some dischargers will have had their effluents tested by EPA as part of EPA’s effluent guidelines development program. In general, those test results may be reported and the applicant need not perform the sampling and analysis. Ills estimated that approximately 100 The reporting burdens imposed by the new application requirements are comparable to those imposed by the expiring form. A number of unnecessary and burdensome requirements in the expiring application form have been deleted, but these deletions are largely offset by expanded and new requirements. The hourly reporting costs shown in Tables V and VI were translated into dollars by determining the time spent answering each type of question shown in those tables by three levels of personnel: administrative and clerical (assumed to be $10/hour); mid-level business and technical ($25/hour); and professional, legal and managerial ($50! applicants will be able to take advantage of this provision. However, the analysis below assumes that all applicants will do their own testing; thus the estimated total cost is probably an overestimate. b. Number of outfolls per applicant. The Agency has estimated the average number of outfalls per discharger, based upon information received from EPA’s Regional offices and from State offices. Due to information received from the Regional offices since the proposal, the estimated average number of non- process wastewater outfalls per major discharger has been reduced. Major dischargers are now assumed to average one and a half non-process wastewater outfalls and one and a half process wastewater outfalls each. Minor dischargers are assumed to average one non-process wastewater outfall and one half of a process wastewater outfall each. These are averages used for computation of total impacts; particular plants may differ significantly. For example, as some commenters stated. certain major dischargers have as many as 10 process wastewater outfalls. However, these situations are balanced by those in whish dischargers have no process wastewater outfalls. c. Number of intakes to be tested by applicants. In addition to sampling and analyzing outfalls, some applicants will be testing their intakes to obtain credit for pollutants in their intakes under 40 CFR 122.63(h). EPA took several factors into account in coming up with its estimate that one- third of all applicants will test one intake point. First, credit is available dnly under certain circumstances. For example, the intake source must be the same body of surface water (as opposed to a well, piped-in supply or other source) that receives the discharge for which the credit is sought. Also, plants with many outfalls generally have only one source of surface water influent (e.g., a single adjacent stream or lake). Furthermore, the elimination of application-based limits from the regulations will reduce the number of analyses below the number contemplated in the proposal. Based on the number of dischargers, tested intakes, process wastewater outfalls and nonprocess wastewater outfalls summarized below, Table IX sets forth subtotals and totals of the costs imposed by the regulations during FY 1981—1985. The total incremental cost of complying with the application requirements over a five year period is approximately $51 million. More than three-fourths of that cost will be borne by primary industry applicants. Table V.—Un,t Reporting Costs olNewApplicihon Form (Hours/Source) 34 26 21 4 4 4 26 14 4 General information. Environmental engineenng data - Management of analytical data .. .. .. . Graphics .. -. Potential discharges not covered by analysis - ------- Federal Register I Vol. 45, No. 98 / Monday, May 191 1980 / Rules and Regulations 33541 Approximately 45% of this primary industry cost will be incurred between April 1980 and June 1981; more than a third of this cost will be borne between July 1981 and June 1984. Therefore, calculation of a meaningful annualized cost figure presents difficulties. Because the total cost over five years is less than $100 million (the threshold for a regulatory analysis), the annualized cost clearly would not exceed the threshold no matter how the annualized cost is calculated. The Agency believes that the aggregate cost figure overestimates the impact of the application requirements for several reasons. Most important, some primary industry applicants whose permits expire prior to December 1, 1980 are not required to submit the new application forms. (See discussion in preamble to the consolidated regulations found elsewhere in today’s Federal Register, at 40 CFR 122.53(c).) Approximately one-sixth of the primary industry applicants and probably a similar portion of the secondary industry applicants fall into this category. (However, if issued short-term permits, they will be required to reapply before June 1981. using the new application form.) - Second, the Agency is assuming that each applicant will hire an independent contractor to perform sampling and that each applicant will send its samples 4 to an independent laboratory for analysis. To the extent that applicants can perform the sampling and analysis internally, substantial savings can be achieved. Third, the Agency’s assumptions about the number of pipes per plant and about the number of intake pipes which will be tested are probably high. Fourth, the cost figure does not take into account that applicants in more than half of the primary industries will not have to test for certain CC/MS fractions when analyzing their samples. This could result in savings of up to a fourth of the analytical costs in these industries. Fifth, the aggregate cost figure does not reflect the savings which will result from the general small business exemption and from the small coal mine exemption (discussed in section IlI.F.6 below). These savings could be substantial for the coal mine exemption because several thousand applicants are involved. The Agency is assuming that there will be no cost for secondary industry applicants to sample and analyze for organic toxics. However, secondary industry applicants are required to test for those organic toxic pollutants which they know or have reason to believe are present in their discharge. Therefore. some secondary industry applicants will test for some of the organic toxics if they know or have reason to believe that they are discharging those toxics. However, the Agency believes that the above assumption results in only a slight underestimate because these applicants are unlikely to have to test for many organic toxic pollutants because of the nature of their discharges. The Agency believes that any underestimate is compensated for by overestimates elsewhere and has not attempted to quantify the amount of additional testing, because little or no information is available (none was supplied by commenters). 4. Economic Impacts Upon Selected Industries The Agency conducted an analysis of the economic impact of the revised application reporting requirements upon primary industry dischargers with process wastewater discharges (upon whom the chief burden of the new requirements falls). The analysis focused primarily on those facilities which will be most affected: marginal, small volume facilities in primary industries. The analysis was conducted for five industries—leather tanning, wood preserving, electroplating, foundries, and iron and steel. The first four industries were selected because many of the plants are small and thus more sensitive to newly imposed cost burdens than other industries. The iron and steel industry was selected to examine the analytical costs for a typical plant which contains a large number of process wastewater outfalls, resulting in correspondingly large analytical costs. No industry was discovered which consisted predominantly of small firms with more than one process wastewater outfall, Costs vary significantly from plant to plant depending on the number of outfalls at a particular plant. The combined analytical and reporting costs for a plant with one process wastewater outfall will be small, on the order of $5,000, while the cost to a steelmaking facility with 10 process wastewater outfalls may be as high as $35,000. The impact on prices, profits, and plant closures should be small for most Industries although impacts may be significant in individual cases. Although the Agency has concluded that the application requirements will not force closures, small businesses with highly toxic, variable, or complex discharges may find the requirements burdensome. In an effort to minimize this burden, the Agency is including a small business exemption in the testing requirements (see Section lll.F.6 below). The key economic indicators examined to estimate economic impacts are the ratios of testing costs to sales, to profits, and to total pollution control investment. The ratio of testing cost to sales indicates impact on price increases while the ratio of testing cost to profit provides a rough indication of impact on profits and of the possibility of closures. Table X summarizes the results for average small plants in each industry analyzed during the year that the permit application is submitted. These results represent changes from Table X in the proposal due to the decrease in the estimated testing costs. Table Vlll.—Bes/s or Calculating Incremental Costs (For fiscal years 1981—851 Plenary Industry scharger Secondary industry dscheiger Major Minor Major Minor Total Number of dischar ra . 1.500 6.300 700 16.100 Number of intakes tested .. 500 2.100 230 5,370 Numberot ocesSwaStew8Ier0utf8Ila . .. . 2.250 3.150 1.050 8.050 Number of non-process wastawater outlets. . . 2,250 6,300 1.050 16.100 24,600 8,200 14,500 25,700 Table IX.—TotaF Incremental Costs ol New Application Form CRoundad to the nearest thcusandj Pnmary Industiy discharger Secondary industry discharger Total Major Minor Major Minor Cost of Sampling and Ana ng for Organic Tox icS . .. . . . . $9,763,000 $18,638,000 0 0 Incremental Cost of Sampling and Analyzmg for Pollutants Other Than Organic Toxics 1,500,000 3,465,000 $699,000 58856,000 Incremental Reporting Cost 1,290.000 5040,000 189.000 1,771,000 $25,401,000 . 14.520.000 0290,000 Total Incremental Coal .. .. . . ... 51211,000 ------- 33542 Federal Register / Vol. 45, No. 96 / Monday, May 19, 1980 / Rules and Regulations For a more detailed analysis of the impact of the regulation on each of the five industries, the reader is referred to the preamble of the proposed regulation (44 FR 34393 at 34412—3, June 14, 1979). That discussion should be read with the modifications in Table X below in mind. The Agency received no comments on that portion of the analysis. Table X.—Econom,c Impacts 01 Testing Costs lAgures bi percentagesi lndustty Ratio of testing costs to— Sales Profll PollutiOn Control Cost Small Tennenes .. ._ Wood Preservers - Electroplsters (1—4 person job shops) Foundries (10 person shops) Iron end Steel . 09 4 a 2.4 N/A’ 44 55 IS 315 N/A N /A ii 55 N/A’ N/A’ 75—I 5 N A means information us not available 5. Impact of Reporting Requirements Upon Independent Laboratory Capability The Agency received several comments on the proposed regulation which suggested that the NPDES analytical requirements would exceed laboratory capacity for GC/MS analysis. One commenter noted that CC/MS instruments are very expensive and that many applicants will not be able to obtain one. The analysis of demand for independent laboratory GC/MS analyses is based on the assumption that all analyses will be done by independent laboratories and not by the applicants themselves. To the extent that industry associations and individual applicants possess laboratory capacity for these analyses, the estimate of demand for independent lab capability below is an overestimate. The impact gf other Agency programs has been included in the discussion below in response to a comment Although it is expected that regulation of toxic pollutants will result in some increase in monitoring requirements fo! toxic pollutants (see section llI.E.1 of this preamble), the Agency has not included the effect of monitoring on the demand for laboratory capacity, as suggested by one commenter, because it anticipates that any increase in monitoring requirements would occur after the period during which lab demand will be at its peak due to the application requirements. In addition, monitoring may in some cases be conducted for a selected group of pollutants by use of CC rather than CC, MS. After reevaluation, the Agency has concluded that CC/MS laboratory capacity should be sufficient to meet expected demand, although some delays in obtaining analytical services may occur during the peak period from April 1980 to June 1981. The Agency evaluated expected demand on CC/MS capacity from the application form testing requirements by assuming that all required analyses will be done using CC/MS and that, on average, one analysis will require two runs through the machine. Since the number of process wastewater outfalls and intakes to be testedfor the primary industry applicants is estimated to be 8,000, the number of runs should be between 8,000 and 16,000. Analysis of the permit expiration dates for the primary industry applicants indicates that about 45% of CC/MS tests will be performed between April 1980 and June 1981. The range of demand for CC/MS tests is projected to be between 240 and 480 analyses per month during this peak period. Demand for CC/MS capacity from other programs within EPA during the same period is expected to be 650—850 analyses per month. Agency information and a recent manufacturers survey of available laboratories identified 66 laboratories with 129 CC/MS systems capable of performing the required analyses. (These figures represent increases from those reported in the proposal.) Current laboratory experience indicates that larger laboratories (with 3 or more GC/ MS systems and an independent data system) are capable of analyzing 60—80 samples per month. The smaller laboratories are capable of performing 20—25 analyses per month. Approximately one quarter of laboratories are of the larger type. A conservatively low estimate of current laboratory capacity, with a 25% allowance for machine failure, appears to be 2,000 analyses per month on a single shift basis and 4,000 analyses per month on a double shift basis. This capacity is in addition to the in-house CC/MS capacity which many industries and universities have for research and other purposes. Some growth in capacity can be anticipated; CC/MS capability in service laboratories doubled over the two years prior to Summer 1979. This increase is a reflection of how rapidly additional laboratory capacity becomes available to meet demand. Thus, sufficient capacity appears to exist, especially if the existing equipment is used on a double shift basis. 6. Small Business Exemption a. General. EPA is exempting any business with annual sales lesLthan $100,000 (in second quarter 1980 dollars) from the requirement to test for the organic toxic pollutants. To qualify for the exemption the permit applicant must submit to the permitting authority annual sales figures for the most recent three years. The average of those three years must be less than $100,000 for the applicant to qualify. In developing the $100,000 ceiling for this exemption, the Agency used as a guideline its final report implementing Executive Order 12044 (44 FR 30988, May 29, 1979). This report indicates that an analysis of the potential economic impact should be conducted when the additional. costs of a regulation exceed 5% of a product’s selling price. In this instance, the Agency is using 5% of annual sales as an indicator that the reporting requirements may have an adverse impact on a firm. As noted above, the average costs of the application requirements are $3,550 for sampling and analysis of organic toxic pollutants. The incremental unit reporting costs for primary industry minor dischargers, $1,250 (see Table VII above), are expected to be more typical of the small business firm than the repngting costs of the primary industry major discharger. The sum of these analytical and reporting costs is approximately $5,000. This would exceed 5% of annual sales if a firm has annual sales of $100,000 or less. Based on data secured by the Agency during the development of effluent guidelines, the Agency estimates that between 2 and 5% of primary industry applicants will be eligible for the exemption from the sampling and analysis requirements for the organic toxic pollutants in process wastewater. The typical savings for the individual applicant are expected to be on the order of $4,100, which is the sum of the cost of analysis for organic toxics dnd Ihe reporting costs associated with managing the organic toxics data. The estimated total savings from this exemption are expected to be between $1 million and $2 million. These reductions in the total number of applicants performing the sampling and analysis of discharges for the organic toxic pollutants have not been taken into account in the calculation of the total incremental cost of this regulation. It should be noted that this exemption does not preclude the permitting ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33543 authority from exercising any of its options to obtain information on organic toxic pollutants under section 308 of CWA. However, the Agency expects that permitting authorities will need to exercise those options in a small number of cases, because these applicants generally exert a minor environmental impact. b. Coo/Mines. EPA has fashioned a separate exemption for small coal mines which is somewhat analogous to the general small business exemption discussed in the preceding section. Coal mines which are likely to produce less than 100.000 tons of coal per year, based on predicted or historical production figures. are not required to test for organic toxic pollutants. In section 507 of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), Congress established a subs Lantial set of application requirements for coal mines, including En part a description of mining methods; maps of land to be affected: identification of affected watersheds; a determination of probable hydrologic consequences of mining and reclamation operations; results of test borings or case samplings; analyses of chemical properties of the coal; the sulfur content of coal seams: chemical analyses of potentially acid or toxic forming sections of the overburden; and chemical analyses of the stratum immediately underneath the coal to be mined. Due to the appropriately extensive application requirements of SMCRA, EPA is seeking to minimize its requests for either duplicative or overly burdensome information. This is part of the broad efforts by EPA and the Department of Interior’s Office of Surface Mining (OSM), which regulates coal mines under SMCRA (see 30 CFR Chapter VII), to coordinate their permitting and other activities. See, e.g., 44 FR 55322. September 25, 1979 (announcing the availability for public comment of a draft Memorandum of Understanding on permit coordination between EPA and OSM). EPA has therefore decided to require testing for orgonicioxic pollutants only in the case of large coal mines, whose discharges, if toxic, are likely to have more significant impact on receiving waters than those of small mines. In addition, they should generally be able to afford both to provide the information required under SMCRA and to test for the organic toxic pollutants. - In selecting 100,000 tons annual production as the criterion for distinguishing large coal mines from small ones, EPA was guided by sections 502(c) and 507(c) of SMCRA. Section 507(c) provides that certain hydrological and other information shall, upon written request of the operator of a small coal mine, be developed by a laboratory and paid for by the regulating authority rather than by the coal mine. The cutoff used in that section is 100,000 tons annual production. Section 502(c) uses the same cutoff to provide small coal mines with an extended transition period to comply with the initial regulatory program under SMCRA. EPA feels that the cutoff selected by Congress in sections 502(c) and 507(c) of SMCRA is similarly appropriate here. EPA expects that the exemption for small coal mines will exempt approximately 80% of all coal mine applicants. Because these small coal mines produce only about 20% of all coal produced in the United States, discharges from larger mines producing 80% of our nation’s coal will remain subject to the organic toxic pollutant testing requirements. (Percentages stated in this paragraph are based upon Figures 2 and 3 on pages 8 and 7 of OSM’s Final Regulatory Analysis, OSM— RA—1, March 1979.) The estimated total savings from this exemption are expected to be approximately $8 million, which was not taken into account in Table IX. IV. PART A OF HAZARDOUS WASTE APPLICATIONS REQUIREMENTS: § 122.24 AND FORM 3 The RCRA permit program differs from the other permit programs covered by these Consolidated Application Forms in providing for an application in two stages. Six months after the promulgation of regulations setting up the RCRA program in its initial form, every facility which is treating, storing, or disposing of hazardous waste must file Part A of the permit application form. These initial regulations are being promulgated today. Part A of the permit application consists of Forms I (discussed in Section II of this preamble) and 3 of the Consolidated Permit Application Forms. Form 3 tracks the regulatory requirements of 40 CFR 122.24. Upon filing a Part A permit application in satisfactory form, a hazardous waste management facility (HWM facility) becomes entitled to “interim status,” which means that it is not subject to enforcement for operating without a permit. About a year from now the full RCRA permit program will become effective. Facilities may then be required by the permitting authority to complete their permit applications by submitting Part B of the permit application. Part B will also be submitted by persons wishing to construct and operate new HWM facilities. The permitting authority wilL then proceed to process the application and issue a permit. Part B will be submitted as a narrative; EPA is not promulgating a form for it. Only limited portions of the requirements for Part B of the permit application are being promulgated today. They are set forth at 40 CFR 122.25. The remaining portions will be promulgated with the rest of the initial set of RCRA requirements in the fall of 1980. Form 3 is required to be used presently by all existing HWM facilities and by new HWM facilities seeking EPA permits. Under RCRA, States may in the future operate the permit program. Although EPA encourages States with approved RCRA permit programs to use the Federal application forms, or forms as similar to those forms as possible, it is not requiring the use of EPA forms. States may use their own forms, subject to EPA approval, provided that those forms incorporate the application requirements of 40 CFR Part 122, Subpart B. The above Is a simple sketch of the basic features of the RCRA permit program. A far more detailed description is contained in 40 CFR Parts 122, 123 and 124, and the preambles to them, published elsewhere in today’s Federal egister. The general outlines of the program will not be discussed further here. Instead, the balance of this preamble discusses the comments received on the Part A application requirements which are specific to RCRA, namely the comments on Form 3 of the Consolidated Application Forms (Part A). Comments on the provisions of 40 CFR 122.24, which discusses Part A, are also discussed. However, comments on Part B application requirements are discussed in Part 122 and not here, both because there is no set “form” for Part B and because the complete requirements have not yet been promulgated. Probably the single point most emphasized in the comments on Form 3 was that it was too long and cumbersome to fill out. Commenters stressed that EPA would be receiving many thousands of these forms in a very short time, at the same time that other aspects of the RCRA program were starting up. Therefore, commenters felt, EPA would probably not have the time to review extensive forms in detail: thus the information would not serve a significant regulatory purpose and would be in conflict with Congressional intent that interim status be relatively easy to apply for. EPA agrees with these comments and has accepted many of them. Specifically: ------- 33544 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations - 1. EPA has reduced the specificity with which waste must be described. The proposal would have required the DOT shipping name, the EPA-assigned hazardous waste number, and the common name for all wastes. In the final version, EPA will require the EPA number only. 2. The proposal would have required a listing of the exact quantity of each type of waste to be handled at the facility. In. response to comments, this has been changed to an estimate of the quantities. 3. The requirements for submitting “all available” drawings and specifications relating to a HWM facility, contained in the proposal, has been greatly cut back. All that will now be required is a scale drawing and photographs of the existing structures. EPA agreed with the commenters that argued that the proposed requirements could have resulted in the submission of vast quantities of paper that would have had little practical regulatory use. 4. The requirement to submit the zoning status of the site set forth in the proposal has been dropped, as some commenters suggested. EPA assumes that as a general rule existing facilities conform to the applicable zoning requirements and that applications for new facilities as a practical matter will - only be filed for locations where the local land use laws would permit it. Accordingly, no general regulatory purpose would be served by requiring this information to be listed in all cases. EPA acknowledges that there may be cases where zoning questions may become extremely important to a decision on an individual facility, and where questions of Federal pre-emption may arise. The preamble to the Part 123 regulations discusses some of the points involved. However, those instances should be rare enough to permit the necessary information to be gathered on a case-by-case basis. 5. There will no longer be special requirements for experimental or health care facilities since those special permit categories have been dropped from the final regulations. However, EPA has not accepted all the suggestions for simplification and in some cases has added items to the form as proposed or has changed items while leaving basic substantive requirements in place. Specifically, EPA will still require a list of the exact wastes that will be handled in each facility, broken down by EPA code number, and a list of the treatment, storage, and disposal methods that will be used. The latter requirement replaces the one in the proposal for listing a “handling code.” This information is needed to establish how the existing pattern of HWM facilities deals with the national “universe” of hazardous wastes which will have been defined at the same time, That information will tell EPA which facilities are most in need of regulatory attention (for example, because they are dealing with large quantities of wastes, or because the wastes they deal with are particularly hazardous, or because their treatment, storage, or disposal methods from the description given seem open to question). In addition to the above, several less significant changes have been made in Form 3: 1. A listing of the latitude and longitude of each facility is now required. This will furnish EPA with more precise data on the location of - HWM facilities. 2. The proposed form would have required applicants to specify whether the facility was existing, proposed, or under construction. This requirement has been replaced in the final form with a requirement to list whether the facility is new or existing, whether the permit application is new or revised, and whether the facility has a RCRA permit or interim status. These are the permitting categories which the statute and the implementing regulations lay down, and to require the forms to reflect them will make it easier to handle those forms and assign the action required under them to its proper category. 3. Applicants with existing facilities are now required to indicate the date that operation began or the date construction commenced at their facility. This information will help EPA verify that the facility qualifies for interim status. For new facilities, applicants are required to provide the date that operation is expected to begin. This information will assist EPA in setting priorities for processing applications for new facilities, 4. As discussed in the preamble to Part 122, RCRA permits bind both the owner and the operator of HWM facilities where those two persons are different. Accordingly, the form provides for the signature of both these persons. Impact of Form 3 reporting requirements. It is estimated that approximately 26,400 owners and operators of hazardous waste management facilities will be required to complete and submit Form 3. The estimated workload and economic burden on these applicants is summarized in Table Xl. Table XI.—Summary of Form 3 Impact Number of respondents 26.400 Frequency of response once Work hours to prepare response...15.1 per re- sponse Coat to prepare response $472 per response Evaluation Plan. EPA will review the usefulness and continued need for the consolidated application forms no later than 5 years from their effective date. The review will consider the effectiveness of the consolidated format; the usefulness of the required information in issuing permits and meeting other program needs; the need to change certain requirements to reflect statutory and regulatory changes and changing program priorities; financial and administrative burdens placed upon EPA, State agencies, and the regulated community; and any more effective or less costly alternative, to fulfill the purposes intended by the current application requirements. The review will be conducted, as the present requirements have been developed, through various means calculated to encourage participation by all interested members of the public as well as by permit writers and permittees. Note.—Executive Order 11821, as amended by Executive Order 11949, and 0MB Circular A—197 require the preparation of economic impact statements for major regulations, defined as those with incremental annual Impacts exceeding one hundred million dollars, As demonstrated in this preamble, theEnvironmental Protection Agency has examined costs and economic impacts as part of its decision-making process. It has determined, based on this analysis, that this document does not constitute a major regulation requiring the preparation of a separate economic impact statemement. However, it believes that the detailed analysis contained In section 111—F of this preamble complies with the spirit and purpose of the executive orders and 0MB circular. Dated: May 2, 1980. Douglas M. Costle, Administrator. Instructions for Consolidated Permit Application Forms The Consolidated Permit Application Forms are: Form 1—General Information Form 2—Discharges to Surface Watef (NPDES Permits) a. Publicly Owned Treatment Works IReservedi b. Concentrated Animal Feeding: Operations and Aqua lic Animal Production Facilities c. Existing Manufacturing. Commercial, Mining, and Silvicultural Operations d. New Manufacturing. Commercial, Mining and Silvicultural Operations IReservedi Form 3—Hazardous Waste Application Form (RCRA Permits) Form 4—Underground Injection c i Fluids (UIC Permits) IReservedi ------- Federal Register / Vol. 45, No. 98 I Monday , May 19, 1980 / Rules and Regulations 33545 Form 5—Air Emissions in Attainment Areas (PSD permits) IReserved ) Toble of Contents of This Pocket A. General Instructions B. Instructions for Form I C. Activities Which Do Not Require Permits 0. Glossary E Form I Instructions for Consolidated Permit Application Forms Section A. General Instructions Who Must Apply? With the exceptions described in section C of these instructions, Federal laws prohibit you from conducting any of the following activities without a permit. NPpES (National Pollutant Discharge Elimination System under the Clean Water Act, 33 U.S.C. 1251). Discharge of pollutants into the waters of the United States. RCRA (Resource Conservation and Recovery Act, 42 U.S.C. 6901). Treatment, storage, or disposal of hazardous wastes. UIC (Underground Injection Control under the Safe Drinking Water Act, 42 U.S.C. 300f). Injection of fluids underground by gravity flow or pumping. PSD (Prevention of Significant Deterioration under the Clean Air Act, 72 U.S.C. 7401]. Emission of an air pollutant by a new or modified facility in or near an area which has attained the National Ambient Air Quality Standards for that pollutant. Each of the above permit programs is operated in any particular State by either the United States Environmental Protection Agency (EPA) or by an approved State agency. You must use this application form to apply for a permit for those programs administered by EPA. For those programs administered by approved States, contact the State environmental agency for the proper forms. If you have any questions about whether you need a permit under any of the above programs, or if you need information as to whether a particular program is administered by EPA or a State agency or if you need to obtain application forms, contact your EPA Regional office (listed in Table 1). Upon your request, and based upon information supplied by you, EPA will determine whether you are required to obtain a permit for a particular facility. Contact your EPA Regional office (listed in Table 1). Be sure to contact EPA if you have a question, because Federal laws provide that you may be heavily penalized if you do not apply fora permit when a permit is required. Form I of the EPA consolidated application forms (attached to these instructions) collects general jnformation applying to all programs. You must fill out Form 1 regardless of which permit you are applying for. In addition, you must fill out one of the supplementary forms (Forms 2—5) for each permit needed under each of the above programs. Item II of Form I will guide you to the appropriate supplementary forms. You should note that there are certain exclusions to the permit requirements listed above. The exclusions are described in detail in section C of these instructions. If your activities are excluded from permit requirements then you do not need to complete and return any forms. Note: Certain activities not listed above also are subject to EPA- administered environmental permit requirements. These include permits for ocean dumping, dredged or fill material discharging, and certain types of air emissions. Contact your EPA Regional office for further information. Table 1.—Addresses of EPA Regional Offices and Slates Within The ,, Jurisdiction Region I Permit Contact, Environmental and Economic Impact Office, U.S. Environmental Protection Agency, John F. Kennedy Building, Boston, Massachusetts 02203, (617) 223—4635, FTS 223—4635. Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont. Region I! Permit Contact, Permits Administration Branch, Room 432, U.S. Environmental Protection Agency, 26 Federal Plaza, New York, New York 10007 (212) 264—9580, FTS 264-9880 New Jersey, New York, Virgin Islands, Puerto Rico. Region III Permit Contact (3 EN 23), U.S. Environmental Protection Agency, 6th & Walnut Streets. Philadelphia, Pennsylvania 19108, (215) 597—8810, FTS 597—8816. Delaware District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia. Region IV Permit Contact, Permits Section, U.S. Environmental Protection Agency, 345 Courtland Street, N.E., Atlanta, Georgia 30365 (404) 881—2017, FTS 257—2017. Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee. Region V Permit Contact (5EP), U.S. Environmental Protection Agency. 230 South Dearborn Street. Chicago. Illinois 80604, (312) 353— 2105, FTS 353—2105. Illinois, Indiana, Michigan, Minne8ota. Ohio, Wisconsin. Region VI Permit Contact (6AEP), U.S. Environmental Protection Agency, First International Building. 1201 Elm Street, Dallas, Texas 75270, (214) 767—2765, FTS 729—2765. Arkansas, Louisiana, New Mexico. Oklahoma. Texas. Region VII Permit Contact, Permits Branch, U.S. Environmental Protection Agency, 324 East 11th Street, Kansas City, Missouri 64106, (816) 758—5955, Fl ’S 758—5955. Iowa, Kansas, Missouri, Nebraska. Region VIII Permit Contact (SE—WE), Suite 103, U.S. Environmental Protection Agency. 1816 Lincoln Street, Denver, Colorado 80203, (303) 837—4901, FTS 837—4901. Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming. Region IX Permit Contact Permits Branch (E—4). U.S. Environmental Protection Agency. 215 Freemont Street, San Francisco, California 94105, (415) 556—3450 FTS 556—3450. Arizona, California, Hawaii, Nevada, Guam. American Samoa, Trust Territories. Region X Permit Contact. (M/S 521), U.S. Environmental Protection Agency, 1200 6th Avenue, Seattle, Washington 98101. (206) 442—7176, FTS 399—7176. Alaska, Idaho. Oregon, Washington. Where To File The application forms should be mailed to the EPA Regional office whose Region includes the State in which the facility is located (see Table 1). If the State in which the facility is located administers a Federal permit program under which you need a permit, you should contact the appropriate State agency for the correct forms. Your EPA Regional Office (Table 1) can tell you to whom to apply and can provide the appropriate address and phone number. When To File Because of statutory requirements, the deadlines for filing applications vary according to the type of facility you operate and the type of permit you need. These deadlines are as follows: Table 2.—Filing Oates for Permits Form (permit) When io fiie Se (tJPOES) 180 days before your present NPDES permit expires Sb (NPDES). . - _... 180 days before your present NPDES permit expires 2 or 180 days pnor to startup i i you area new facility I Please note ihot seine at these farina are not yet available for use and are hated as Reserved’ at the beginning of those instructions Contact your EPA Regional oFCce for information on cuwent application requirements and forms ------- 33546 Federal Register /Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations - Table 2.—Filing Dates for Penn/is—Continued Fonn (permit) When to file 2c (NPDES) 180 days bolero your preseni NPD€S permit expires’ 2d(NPDES) - l eOdayspncrtostartup 3 (Hazardous Waste) - Existing facility 180 days following publication 01 regulations listing - hazardous wastes New facility 180 days before commencing physical COnStruction 4 (UIC) .. A reasonable lime prior to constwction for now wells: as directed by the Director for existing welts 5 (P50) Pnor to commencement of ccnatrucbOn If your present permit expire, on or before November * 1980, the Cling date is the date eu which your permit expires. If your permit expires during the penod December 1. 1980-May 31. 1981. the 01mg date leSS days before your permit expires Federal regulations provide that you - may not begin to construct a new source in the NPDES program, a new hazardous waste management facility, a new injection well or a facility covered by the PSD program before the issuance of a permit under the applicable program. Please note that if you are required to obtain a permit before beginning construction, as described above, you may need to submit your permit application well in advance of an applicable deadline listed in Table 2. Fees The U.S. EPA does not require a fee for applying for any permit under the consolidated permit programs. (However, some States which administer one or more of these programs require fees for the permits which they Issue.) Availability of Information to Public Information contained in these application forms will, upon request, be made available to the public for inspection and copying. However, you may request confidential treatment for certain information which you submit on. certain supplementary forms. The specific instructions for each supplementary form state what information on the form, if any, may be claimed as confidential and what procedures govern the claim. No information on Forms I and 2 may be claimed as confidential. - Completion of Forms Unless otherwise specified in in8tructions to the forms, each item in each form must be answered. To indicate that each item has been considered, enter “NA,” for not applicable, if a particular item does not fit the circumstances or characteristics of your facility or activity. If you have previously submitted information to EPA or to an approved State agency which answers a question, you may either repeat the information in the space provided or attach a copy of the previous submission. Some items in the form require narrative explanation. If more space is necessary to answer a question, attach a separate sheet entitled “Additional Information.” Financial Assistance for Pollution Control There are a number of direct loans,. loan guarantees, and grants available to firms and communities for pollution control expenditures. These are provided by the Small Husiness Administration, the Economic Development Administration, the Farmers Home Administration, and the Department of Housing and Urban Development. Each EPA Regional office (Table 1) has an economic assistance coordinator who can provide you with additional information. EPA’s construction grants program under Title II of the Clean Water Act is an additional source of assistance to publicly owned treatment works. Contact your EPA Regional office for details. Section B. Ins inactions for Form 1— General Information This form must be completed by all applicants. Completing this form. Please type or print in the unshaded areas only. Some items have small graduation marks in the fill-in spaces. These marks indicate the number of characters that may be entere4 into our data system. The marks are spaced at W’ intervals which accommodate elite type (12 characters per inch). If you use another type you may ignore the marks, If you print, place each character between the marks. Abbreviate if necessary to stay within the number of characters allowed for each item. Use one space for breaks between words, but not for punctuation marks unless they are needed to clarify your response. Item I. Space is provided at the upper right hand corner of Form 1 for insertion of your EPA Identification Number. If you have an existing facility, enter your Identification Number. If you don’t know your EPA Identification Number, please contact your EPA Regional office (table 1), which will provide you with your number. If your facility is new (not yet constructed), leave this item blank. Item II. Answer each question to determine which supplementary forms yotineed to fill out. Be sure to check the glossary in section D of these instructions for the legal definitions of the bold faced words. Check section C of these instructions to determine whether your activity is excluded from permit requirements. If you answer “no” to every question, then you do not need a permit, and you do not need to complete and return any of these forms. If you answer “yes” to any question, then you must complete and file the supplementary form by the deadline listed in Table 2 along with this form. (The applicable form number follows each question and is enclosed in parentheses.) You need not submit a supplementary form if you already have a permit under the appropriate Federal program, unless your permit is due to expire and you wish to renew your permit. Questions (1) and (J) of Item H refer to major new or modified sources subject to Prevention of Significant Deterioration (PSD) requirements under the Clean Air Act. For the purpose of the PSD program, major sources are defined as (1) sources listed in Table 3 which have the potential to emit 100 tons or more per year emissions, and (2) all other sources with the potential to emit 250 tons or more per year. See section C of these instructions for discussion of exclusions of certain modified sources. ‘I able 3.—28 Industrial Categories Listed in Section 169(1) of the Clean Air Act of 1977 Fossil fuel-fired steam generators of more than 250 million OTU per hour heat - input Coal cleaning plants (with thermal dryers) Kraft pulp mills Portland cement plants Primary zinc smelters Iron and steel mill plants Primary aluminum ore reduction plants Primary copper smelters. Municipal incinerators capable of charging more than 250 tons of refuse per day Hydrofluoric acid plants Nitric acid plants Sulfuric acid plants Petroleum refineries Lime plants Phosphate rock processing plants Coke oven batteries Sulfur recovery plants Carbon black plants (furnace process) Primary lead smelters Fuel conversion plants Sintering plants Secondary metal production plants Chemical process plants. ------- Federal Register I Vol. 45, No. 88 I Monday, May 19, 1980 I Rules and Regulations 33547 Fossil fuel boilers (or combination thereof) totaling more thdn 25Omillion BTU per hour heat input Petroleum storage and transfer units with a total storage capacity exceeding 300.000 barrels Taconite ore processing plants Glass fiber processing plants Charcoal production plants. Item III. Enter the facility’s official or legal name. Do not use a colloquial name. Item IV. Give the name. title, and work telephone number of a person who is thoroughly familiar with the operation of the facility and with the facts reported in this application and who can be contacted by reviewing offices if necessary. hem V. Give the complete mailing address of the office where correspondence should be sent. This often is not the address used to designate the location of the facility or activity. Item VI. Give the address or location of the facility identified in Item Ill of this form. If the facility lacks a street name or route number, give the most accurate alternative geographic information (e.g., section number, quarter section number, or description). Item VII. List, in descending order of significance, the four 4-digit standard industrial classification (SIC) codes which best describe your facility in terms of the principal products or services you produce or provide. Also, specify each classification in words. These classifications may differ from the SIC codes describing the operation generating the discharge, air emissions; or hazardous wastes. SIC code numbers are descriptions which may be found in the “Standard Industrial Classification Manual” prepared by the Executive Office of the President, Office of Management and Budget, which is available from the Government Printing Office, Washington, D.C. Use the current edition of the manual. If you have any questions concerning the appropriate SIC code for your facility, contact your, EPA Regional office (see Table 1). Item Vt/I—A. Give the name, a it is legally referred to, of the person, firm, public organization, or any other entity which operates the facility described in this application. This may or may not be the same name as the facility. The operator of the facility is the legal entity which controls the facility’s operation rather than the plant or site manager. Do not use a colloquial name. Item VIII—B. Indicate whether the entity which operates the facility also owns it by marking the appropriate box. Item Vt/I—C. Enter the appropriate letter to indicate the legal status of the operator of the facility. Indicate “public” fork facility solely owned by local government(s) such as a city, town, county, parish, etc. Items VIII—D—H. Enter the telephone number and address of the operator identified in item VIII—A. Item IX. Indicate whether the facility is located on Indian lands. Item X. Give the number of each presently effective permit issued to the facility for each program or, if you have previously filed an application but have not yet received a permit, give the number of the application, if any. Fill in the unshaded area only. If you have more than one currently effective permit for your facility under a particular permit program, you niay list additional permit numbers on a separate sheet of paper. List any relevant environmental Federal (e.g., permits under the Ocean Dumping Act, section 404 of the Clean Water Act or the Surface Mining Control and Reclamation Act), State (e.g., State permits for new air emission sources in nonattainment areas under Part D of the Clean Air Act or State permits under section 404 of the Clean Water Act) or local permits or applications under “other.” item XL Provide a topographic map or maps of the area extending at least to one mile beyond the property boundaries of the facility which clearly show the following: • The legal boundaries of the facility; • The location and serial number of each of your existing and proposed intake and discharge structures; a All hazarous waste management facilities; • Each well where you inject fluids underground; and • All springs and surface water bodies in the area, plus all drinking water wells within ¼ mile of the facility which are identified in the public record or otherwise known to you. If an intake or discharge structure, hazardous waste disposal site, or injection well associated with the facility is located more than one mile from the plant, include it on the map, if possible. If not, attach additional sheets describing the location of the structure, disposal site, or well, and identify the U.S. Geological Survey (or other) map corresponding to the location. On each map, include the map scale, a meridian arrow showing north, and latitude and longitude at the nearest whole second. On all maps of rivers, sh’ow the direction of the current, and in tidal waters, show the directions of the ebb and flow tides. Use a 7¼ minute series map published by the U.S. Geological Survey, which may be obtained through the U.S. Geological Survey Offices in Washington, D.C., Denver, Colorado or Anchorage, Alaska. Ifs 7¼ minute series map has not been published for your facility site, then you may use a 15 minute series map from the U.S. Geological Survey. If neither a 7Y2 nor 15 minute series map has been published for your facility site, use a p1st map or other appropriate map, including all the requested information; in this case, briefly describe land uses in the map area (e.g., residential, commercial). You may trace your map from a geological survey chart, or other map meeting the above specifications. If you do, your map should bear a note showing the number or title of the map or chart it was traced from. Include the names of nearby towns, water bodies, and other prominent points. An example of an acceptable location map is shown in Figure A of these instructions. (Note—Figure A is provided for purposes of illustration only, and does not represent any actual facility.) BILLING CODE 6560-01-U ------- Hamilton 9.4 miles * At4 GN UTM GRID AND t9 O MAGNETIC NORTH DECLINATION AT CENTER OF SHEET Scale 1:24,000 1000 0 Feet USGS Map C.ntral City, Ohio Location Map Central Processing Co. Central City, Ohio 11 E 400 47 30” I 75° 37’ 30 ” SiWNO cooc eaeo-oi.c FlGUR A ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33549 iteni Xli. Briefly describe the nature of your business (e.g., products produced or services provided). item Xiii. Federal statues provide for severe penalties for submitting false information on this application form. 18 U.S.C. section 1001 provides that “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes or uses any false writing or document knowing same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five year , or both.” Section 309(c)(2) of the Clean Water Act and section 113(c)(2) of the Clean Air Act each provide that “Any person who knowingly makes any false statement, representation, or certification in any application,. shall upon conviction, be punished by a fine of no more than $10,000 or by imprisonment for not more than six months, or both.” In addition, section 3008(d)(3) of the Resource Conservation and Recovery Act provides for a fine up to $25,000 or imprisonment up to one year for a first conviction for making a false statement in any application under the Act, and for double these penalties upon subsequent convictions, Federal regulations require this application to be signed as follows: (1) For a corporation, by a principal executive officer of a least the level of vice president. However, if the only activity in item II which is marked “yes” is Question C, the officer may authorize a person having responsibility for the overall operations of the well or well field to sign the certification. In that case, the authorization must be written and submitted to the permitting authority. (2) For partnership or sole proprietorship, by a general partner or the proprietor, respectively; or (3) For a municipality, State, Federal, or other public facility, by either a principal executive officer or ranking elected official. Section C. Activities Which Do Not Require Permits 1. National Pollutant Discharge Elimination System Permits under the Clean Water.Act. You are not required to obtain an NPDES permit if your discharge is in one of the following categories, as provided by the Clean Water Act (CWA) and by the NPDES regulations (40 CFR Parts 122—125). However, under section 510 of CWA a discharge exempted from the federal NPDES requirements may still be regulated by a State authority; contact your State environmental agency to determine whether you need a State permit. A. Discharges from Vessels. Discharges of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, and ani other discharge incidental to the normal operation of a vessel do not require NPDES permits. However, discharges of rubbish, trash, garbage, or other such materials discharged overboard require permits, and so do other discharges when the vessel is operating in a capacity other than as a means of transportation, such as when the vessel is being used as an energy or mining facility, a 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. B. Dredged or Fill Material. Discharges of dredged or fill material into waters of.the United States do not need NPDES permits if the dredging or filling is authorized by a permit issued by the U.S. Army Corps of Engineers or an EPA-approved State under section 404 of CWA. C. Discharges into Publicly Owned Treatment Works (POTW). The introduction of sewage, industrial wastes, or other pollutants into a POTW does not need an NPDES permit. You - must comply with all applicable pretreatment standards promulgated under section 307(b) of CWA, which may be included in the permit issued to the POTW. If you have a plan or an agreement to switch to a POTW in the future, this does not relieve you of the obligation to apply for and receive an NPDES permit until you have stopped discharging pollutants into waters of the United States. [ Note: Diechargers into privately owned treatment works do not have to apply for or obtain NPDES permits except as otherwise required by the EPA Regional Administrator. The owner or operator of the treatment works itself, however, must apply for a permit and identify all users in its application. Users so identified will receive public notice of actions taken on the permit for the treatment works.) D. Discharges from Agricultural and Silvicultural Activities. Most discharges from agricultural and silvicultural activities to waters of the United States do not require NPDES permits. These include runoff from orchards, cultivated crops, pastures, range lands, and forest lands. However, the discharges listed below do require NPDES permits. Definitions of the terms listed below are contained in the Glossary section of these instructions. (1) Discharges from Concentrated Animal Feeding Operations. (See Glossary for definitions of “animal feeding operations” and “concentrated animal feeding operations.” Only the latter require permits.) (2) Discharges from Concentrated Aquatic Animal Production Facilities, (See Glossary for size cutoffs.) (3) Discharges associated with approved Aquaculture Projects. (4) Discharges from Silvicultural Point Sources. (See Glossary for the definition of “silvicultural point source,”) Non- point source silvicultural activities are excluded from NPDES permit requirements. However, some of these activities, such as stream crossings for roads, may involve point source discharges of dredged or fill material which may require a section 404 permit. See 33 CFR 209.120. E. Discharges in Compliance with an On-Scene Coordinator’s Instructions. II. Hazardous Waste Permits under the Resource Conservation and Recovery Act. You may be excluded from the requirement to obtain a permit under this program if you fall into one of the following categories. Generators who accumulate their own hazardous waste on-site for less than 90 days; Certain small generators; Owners or operators of totally enclosed treatment facilities; or Farmers who dispose of waste pesticide from their own use. Check with your Regional office for details. Please note that even if you are excluded from permit requirements. you may be required by Federal regulations to handle your waste in a particular manner. Ill. Underground Injection Control Permits under the Safe Drinking Water Act. You are not required to obtain a permit under this program if you: Inject into existing wells used to enhance recovery of oil and gas or to store hydrocarbons (note, however, that these underground injections are regulated by Federal rules); or Inject into or above a stratum which contains, within ¼ mile of the well bore, an underground source of drinking water (unless your injection is the type identified in item Il-H, for which you do need a permit). However, you must notify EPA of your injection and submit certain required information on forms supplied by the Agency, and your operation may be phased out if you are a generator of hazardous wastes or a hazardous waste management facility ------- 33550 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations which uses wells or septic tanks to dispose of hazardous waste. IV. Prevention of Significant Deterioration Pernuts under the Clean Air Act. The PSD program applies to newly constructed or modified facilities (both of which are referred to as “new sources”) which increase air emissions. The Clean Air Act Amendments of 1977 exclude small new sources of air missions from the PSD review program. Any new source in an industrial category listed in Table 3 of these instructions whose potential to emit is less than 100 tons per year is not required to get a PSD permit. In addition, any new source in an industrial category not listed in Table 3 whose potential to emit is less than 250 tons per year is exempted from the PSD requirements. Modified sources which increase their net emissions (the difference between the total emission increases and total emission decreases at the source) less than the significant amount set forth in EPA regulations are also exempt from PSD requirements. Contact your EPA Regional office (Table 1) for further information. Section D. Glossary Note: This Glossary includes terms used in the instructions and in Forms 1, 2b, 2c, and 3. Additional terms will be included in the future when other forms are developed to reflect the requirements of other parts of the consolidated permit program. If you have any questions concerning the meaning of any of these terms, please contact your EPA Regional office (Table 1). “Aliquot” means a sample of specified volume used to make up a total composite sample. “Animal feeding operation” means a lot or facility (other than an aquatic animal production facility) where the following conditions are met: 1. 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 2. 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 a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal. of wastes. “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. “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 means “Application, Part B.” “Application, Part A” means that part of the consolidated permit application forms which a RCRA permit applicant must complete to qualify for interim status under section 3005(e) of RCRA and for consideration for a permit. Part A consists of Form I (General Information) and Form 3 (Hazardous Waste Application Form). “Application, Part B”, means that part of the application which a RCRA permit applicant must complete to be issued a permit. (Nate: EPA is not developing a specific form for Part B of the permit application, but an instruction booklet explaining what information must be supplied is available from the EPA Regional office.) “Approved program” or “approved State” means a State program which has been approved or authori;ed by EPA under 40 CFR Part 123. “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. “Designated area” means the portions of the waters of the United States within which the applicant plans to confine the cultivated species, using a method of plan or operation (including, but not limited to, physical confinement) which. on the basis of reliable scientific evidence, is expected to ensure the specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants and be harvested within a defined geographic area. “Aquifer” means a geological formation, group of formations, or part of a formation that is capable of yielding a significant amount of water to a well or spring. “Area of review” means the area surrounding an injection well which is described according to the criteria set forth in 40 CFR § 146.06. “Area permit” means a UIC permit applicable to all or cerfain wells within a geographic area, rather than to a specified well, under 40 CFR § 122.37. “Attainment area” means, for any air pollutant, an area which has been designated under section 107 of the Clean Air Act as having ambient air quality levels better than any national primary or secondary ambient air quality standard for that pollutant. Standards have been set for sulfur oxides, particulate matter, nitrogen dioxide, carbon monoxide, ozone, lead and hydrocarbons. ‘or purposes of the Glossary, “attainment area” also refers to “unclassifiable area,” which means, for any pollutants, an area designated under section 107 as unclassifiable with respect to that pollutant due to insufficient information. “Best Management Practices” (“BMP”) 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. BMPs 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. “Biological monitoring test” means any test which includes the use of aquatic algal, invertebrate, or vertebrate species to measure acute or chronic ‘ toxicity, and any biological or chemical measure of bioaccumulation. “Bypass” means the intentional diversion of wastes from any portion of a treatment facility. “Concentrated animal feeding operation” means an animal feeding operation which meets the criteria set forth in either (1) or (2) or which the Director designates as such on a case- by-case basis: / 1. More than the numbers of animals specified in any of the following categories are confined: (A) 1,000 slaughter or feeder cattle, (B) 700 mature dairy cattle (whether milked or dry cows), (C) 2,500 swine each weighing over 25 kilograms (apprpximately 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 handling system), [ I) 5,000 ducks, or U) 1,000 animal units; or 2. 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), ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 1 Rules and Regulations 33551 (C) 750 swine each weighing over 25 ilograms (approximately 55 pounds). (D) 150 horses. (E) 3.000 sheep or lambs, (F) 16500 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 manmade ditch, flushing system or other similar manmade device (“manmade” means constructed by man and used for the purpose of transporting wastes); or pollutants are discharged directly into waters of the United States which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined In the operation. Provided, however, that no animal feeding operation is a concentrated animal feeding operation as defined above if such animal feeding operation discharges only in the event of a 25 year, 24 hour storm event. “Concentrated aquatic animal roduction facility” means a hatchery, ish farm, or other facility which contains, grows or holds aquatic animals in either of the following categories, or which the Director designates as such on a case-by-case basis: 1. Cold water fish species or other cold water aquatic animals including, but not limited to, the Salmonidae family of fish (e.g.. trout and salmon) in ponds, raceways or other sim lar 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 animals 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. 2. Warm water fish species or other warm water aquatic animals including, but not limited to. the Ameiuridae, Cetrarchidae, and Cyprinidoe families of fish (e.g., respectively, catfish, sunfish and minnows) in ponds, raceways, or other similar structures which discharge at least 30 days per year, but does not Include: (a) Closed ponds which discharge ,nly during periods of excess runoff; or (b) Facilities which produce less than 15,454 harvest weight kilograms (approximately 100.000 pounds) of aquatic animals per year. “Contact cooling water” means water used to reduce temperature which comes into contact with a raw material, intermediate product, waste product other than heat, or finished product. “Contiguous zone” means the entire zone established by the United States under article 24 of the convention of the Territorial Sea and the Contiguous Zone. “CWA” means the Clean Water Act (formerly referred to the Federal Water Pollution Cpntrol Act) Pub. L. 92—500, is amended by Pub. L. 95—217 and Pub. L 95—576, 33 U.S.C. 1251 et seq. “Direct discharge” means the discharge of a pollutant as defined below. “Director” means the EPA Regional Administrator or the State Director as the context requires. “Discharge (of a pollutant)” means: (1) Any addition of any pollutant or combination of pollutants to waters of the United States from any point source, or (2) 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 which is 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 person which do not lead to POTW’s; end discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger. “Disposal” (in the RCRA program) means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land or water so that the hazardous waste or any constitutent of it may enter the environment or be emitted into the air or discharged into any waters, including ground water, “Disposal facility” means a facility or part of a facility at which hazardous waste is Intentionally placed into or on land or water, and at which hazardous waste will remain after closure. “Effluent limitation” means any restriction imposed by the Director on quantities, discharge rates, and concentrations of pollutants which are discharged from point sources into waters of the United States, the waters of the COfltiflguOu8 zone, or the ocean. “Effluent limitation guideline” means a regulation published by the Administrator under section 304(b) of the Clean Water Act to adopt or revise effluent limitations. “Environmental Protection Agency” (“EPA”) means the United States Environmental Protection Agency. “Exempted aquifer” means an aquifer or its portion that meets the criteria in the definition of USDW, but which has been exempted according to the procedures in 40 CFR § 122.35(b). “Existing HWM facility” means a Hazardous Waste Management facility which was in operation, or for which construction had commenced, on or before October 21, 1976. Construction had commenced if (1) the owner or operator had obtained all necessary Federal, State and local preconstruction approvals or permits, and either (2a) a continuous on-site, physical construction program had begun, or (2b) the owner or operator had entered into contractual obligations, which could not be cancelled or modifed without substantial loss, for construction of the facility to be completed within a reasonable time. [ Note: 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 the conferees are considering October 30, 1980. Accordingly, EPA encourages every owner or operator of a facility which was built or under construction as of the promulgation date of the RCRA program 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 definition.) “Existing source” or “existing discharger” (in the NPDES program) means any source which Is not a new source or a new discharger. “Existing injection well” means an injection well other than a new injection well. “Facility” means any HWM facility, UIC underground injection well, NPDES point source, PSD stationary source, or any other facility or activity (Including land or appurtenances thereto) that is subject to regulation under the RCRA, UIC, NPDES or PSD programs. “Fluid” means material or substance which flows or moves whether in a semisolid, liquid, sludge, gas, or any other form or state. “Generator” means any person by site location, whose act or process produces hazardous waste identified or listed in 40 CFR Part 261. ------- 33552 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations “Groundwater” means water below - the land surface in a zone of saturation. “Hazardous substance” means-any of the substances designated under 40 CFR Part 116 pursuant to section 311 of CWA. [ Note: These substances are listed in Table 2c—4 of the instructions to Form 2c.] “Hazardous waste” means a hazardous waste as defined in 40 CFR § 261.3. “Hazardous waste management facility” (‘i-I’WM facility”) means all contiguous land, structures, appurtenances, and improvements on the land, used for treating, storing, or disposing of hazardous wastes. A facility may consist of several treatment, storage or disposal operational units (for example, one or more landfills, surface impoundments, or combinations of them). “In operation” means a facility which is treating, storing, or disposing of hazardous waste. “Indirect discharger” means a non- domestic discharger introducing pollutants to a publicly owned treatment works. “Injection well” means a well into which fluids are being injected. “Interim authorization’ means approval by EPA of State hazardous waste program which has met the requirements of section 3006(c) of RCRA and applicable requirements of 40 CFR Part 123, Subparts A, B, and F. “Listed State” means a State listed by the Administrator under section 1422 of SDWA as needing a State UIC program. “MGD” means millions of gallons per day. “Municipality” means a city, village, town, borough, county, parish, district, association, or other public body created by or under State law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved managment agency under section 208 of CWA. “National Pollutant Discharge Elimination System” (“NPDES”) means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring, and enforcing permits and imposing and enforcing pretreatment requirements, under sections 307, 318,402 and 405 of CWA. The term includes an approved program. “New discharger” means any building, structure, facility, or installation: (1) from which there is or may be a new or additional discharge of pollutants at a site at which on October 18, 1972, it had never di charged pollutants; (2) which has never received a finally effective NPIJES permit for discharges at that site; and (3) which is not “new source.” Thi8 definition includes an indirect discharger which commences • discharging into waters of the United States. It also includes any existing mobile point source, such as an offshore oil drilling rig, seafood processing vessel, or aggregate plant that begins discharging at a location for which it does not have an existing permit, “New HWM facility”means a Hazardous Waste Management facility which began operation or for which construction commenced after October 21, 1976. “New injection well” means a well whicH begins injection after a UIC program for the State in which the well is located is approved. “New source” (in the NPDES program) means any building, structure, facility, or installation from which there is or may be a discharg of pollutants, the construction of which commenced: (i) After promulgation of standards of performance under section 306 of CWA which are applicable to such source, or (ii) 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. “Non-contact cooling water ’ means water used to reduce temperature which does not come into direct contact with any raw material, intermediate product, waste product (other than heat), or finished product. “Off-site” means any site which is not “on-site.” “On-site” means on the same or geographically contiguous property which may be divided by public or private right(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. “Outfall” means a point source. “Permit” means an authorization, license, or equivalent control document issued by EPA or an approved State to implement the requirements of 40 CFR Parts 122, 123, and 124. “Physical construction” (in the RCRA program) means excavation, movement of earth, erection of forms or structures, or similar activity to prepare a HWM facility to accept hazardous waste. “Point source” means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from Irrigated agriculture. “Pollutant” means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. § 2011 et seq.)), heat, wrecked or discarded equipment, rocks, sand, cellar dirt and industrial, municipal, and agriculture 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 facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well Is located, and if the State determines that the injection or disposal will not result in the degradation of ground or surface water resources. [ Note: Radioactive materials covered by the Atomic Energy Act are those encompassed in its definition of source, byproduct, or special nuclear materials. Examples of materials not covered include radium and accelerator produced isotopes. See Train v. Colorado Public interest Research Group, Inc., 428 U.S. 1 (1976).] “Prevention of significant deterioriation” (PSD) means the national permitting program under 40 CFR 52.21 to prevent emissions of certain pollutants regulated under the Clean Air Act from significantly deteriorating air quality in attainment areas. “Primary industry category” means any industry category listed in the NRDC Settlement Agreement (Natural Resources Defense Council v. Train, 8 ERC 2120 (D.D.C. 1976), modified 12 ERC 1833 (D.D.C. 1979)). “Privately owned treatment works” means any device or system which is (1) used to treat wastes from any facility whose operator is not the operator of the treatment works and (2) not a POTW. “Process wastewater” means any water which, during manufacturing or processing, comes into-direct contact with or results from the production or use of any raw material, intermediate product, finished product, by-product, or waste product. ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33553 “Publicly owned treatment works” or OTW” means any device or system ed in the storage treatment, recycling, ,id reclamation of municipal sewage or industrial waste of a liquid nature which is owned by a State or municipality. This definition includes any sewers that convey wastewater to a POTW, but does not include pipes, sewers, or other conveyances not connected to a POTW. ‘Rent” means use of another’s property in return for regular payment. “RCRA” means the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 (Pub. L. 94—580, as amended by Pub. L. 95—609, 42 U.S.C. § 6901 et seq.). “Rock crushing and gravel washing facilities” are facilities which process crushed and broken stone, gravel, and riprap (see 40 CFR Part 436, Subpart B, and the effluent limitations guidelines for these facilities). “SDWA” means the Safe Drinking Water Act (Pub. L. 95—523, as amended by Pub. L. 95—1900, 42 U.S.C. § 300(f) et seq.). “Secondary industry category” means any industry category which is not a primary industry category. “Sewage from vessels” means human body wastes and the wastes from toilets nd other receptacles intended to eceive or retain body wastes that are Iischarged from vessels and regulated under section 312 of CWA, except that with respect to commercial vessels on the Great Lakes this term includes graywater. For the purposes of this definition, “graywater” means galley, bath, and shower water. “Sewage sludge” means the solids, residues, and precipitate separated from or created in sewage by the uiiit processes of a POTW. “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. “Silvicultural point source” means any discemable, 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. This term does not include non- point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, -est and fire control, harvesting perations, surface drainage, or road nstruction and maintenance from ‘hich there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material which may require a CWA section 404 permit. “Log sorting and log storage facilities” are facilities whose discharges result from the holding of unprocessed wood, e.g., 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 limitations guidelines for these facilities.) “State” means any of the 50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands (except in the case of RCRA), and the Commonwealth of the Northern Mariana Islands (except in the case of CWA). “Stationary source” (in the PSD program) means any building, structure, facility, or installation which emits or may emit any air pollutant regulated under the Clean Air Act. “Building, structure, facility, or installation” means any grouping of pollutant-emitting activities which are located on one or more contiguous or adjacent properties and which are owned or operated by the same person (or by persons under common control). “Storage” (in the RCRA program) means the holding of hazardous waste for a temporary period at the end of which the hazardous waste is treated, disposed, or stored elsewhere. “Storm water runoff” means water discharged as a result of rain, snow, or other precipitation. “Toxic pollutant” means any pollutant listed as toxic under section 307(a)(1) of CWA. “Transporter” (in the RCRA program) means a person engaged in the off-site transportation of hazardous waste by air, rail, highway, or water. “Treatment” (in the RCRA program) 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 recover energy or material resources from the waste, or so as to render such waste non-hazardous, or less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for storage, or reduced in volume. “Underground injection” means well injection. “Underground source of drinking water” or ‘USDW” means an aquifer or its portion which is not an exempted aquifer and: (1) Which supplies drinking water for human consumption, or (2) In which the ground water contains fewer than 10,000 mg/I total dissolved solids. “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. “Waters of the United States” means: 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. All interstate waters, including interstate wetlands; 3. All other waters such as intrastate lakes, rivers, streams (including inte rmittent streams), mudflats, sandflats, wetlands. sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds, the use, degradation, or destruction of which would or could affect interstate or foreign commerce including any such waters: (a) Which are or could be used by interstate or foreign travelers for recreational or other purposes; (b) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; (c) Which are used or could be used for industrial purposes by industries in interstate commerce; 4. All impoundments of waters otherwise defined as waters of the United States under this definition: 5. Tributaries of waters identified in paragraphs (1)—(4) above: 6. The territorial sea; and 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (1)— (6) of this definition. Waste treatment systems, including treatment ponds or lagoons designed to meet requirement of CWA (other than cooling ponds as defined in 40 CFR § 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the ------- 33554 Federal Register I -Vol. 45, No. 98 / Monday, May 19, 198ó I Rules and Regulations impoundments of waters of the United States. “Well injection” or “underground 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. “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. BILLING CODE 6560-OI-M ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations II l ii Form Approved 0MB NA 158 R0175 FORM I us ENVIRONMENTAL PROTECTION AGENCY 1 ‘6EPA GENERAL INFORMATION Consolidated Permits Program GENERAL I (Read the “General Instructions” beforeslartlng ) - I EPA ID NUMBER . , , . • , I id ‘ I ’ ’ . LABEL ITEMS I. EPA l.D. NUMBER \ \\\\\ \ III FACILITY NAME FACILITY MAILING ADDRESS \ \\\\\ \ - PLEASE PLACE LABEL IN TIllS SPACE If a preprintod label has been provided, affix It In the designated space. Review the inform. - ation carefully, if any of It ii incorrect, cross through is and enter the correct date in the appropriate full-in area below Also, it sny of the preprunted data us absent (the area to the left of the label rpace lists the information thet chould eppear), please provide it in the proper fill’ufl area(s) below. If the label us complete and correct, you need not complete Items I, Ill, V, end VI (except VI ’S which roust be completed ,egerdlessj. Complete oil items if no label has been provided. Refer to the instructions for detailed Item descrip tions and for the legal authorizations under which this data is collected. INSTRUCTIONS: Complete A through J to determine whether you ReeL to submit any permit epplication forms to the EPA. If you answer “yes” to any qusstuonL you must submit this form and the supplemental form listed in the parenthesis following the question. Mark “X” in the box in the third column if the supplemental form is attached, If you answer “no” to each question, you need not submit any of these forms. You may answer “no” if your activity is excluded from permit requirements; tee Section C of the instructions. See also, Section D of the instructions for definitions of bold.faced terms. A. C. BPECIFIC QuLaysoNa which results in a discharge to waters f Ii this facility a publicly owned treatm) (FORM 2A) Is this a facility which currently r 5suIts’ ischa, to wates, of the U.S. other than those describ A or B ebovs? (FORM 2C) I R’ , i ii I i.: ’. , . B. 0 .. BPEC1F1C QUESTIONS Doss or will this facility (roth ., eaIs ring or proposed) include a cosscentsxtsd anImal feeding operation or aquatic animal production facility which results in a discharge to water. of the U.S.? (FORM 2B) Is this a proposed facility (other than those described In .4 or 8 above) which will result In e discharge to watenofth.U.&?(FORM2DI ,•, ii- w .sJ , ,, r ‘Sr j , , ,. ,, E. Does or will thIs facility treat, store, or dispose of hazardous wsetee? (FORM 3) C. Do you or will you inject at this facility any produced water or other fluids which are brought to the surface In connection with conventional oil or natural gas pro’ duction, inject fluids used for enhanced recovery of oil or natural gas, or Inject fluids for storage of liquid hydrocarbons? (FORM 4) I. Is this facility a proposed itationary source which Is one of the 28 Industrial categories listed In the In. structions and which will potentially emIt 100 tons per year of any air pollutant regulated under the Clean Air Act and may affect or be located In an attaInment wee ? (FARM Si Ill. NAME OF FACILi .5_i I I I .,..,..i,., ija leuP - - - ill.—’ . 5_J 111511 l ii i liii 11111 11111 Ij iii 21 ‘i i V. FACILITY MAILING ADORES A. STREET OR P0 BOR I i I I I I i I I I I I I I I I I U I U U I I U U U I I I B. CITY OR TOWN IC STATEI o zip CODE ‘Ill-si, liii’ ii 1 Ir ’lt.. I U I I iU ’Ui I I I U I U I U ‘ I- you or will you in5sct at thus facility industrial or psi effluent below the lowermost stratum con- lin one quarter mile of the wall bore. ‘‘i’ ’ es of drinking water? (FORM 4 ) 14 ., ,i 1 ,, ‘qi thu facility fluids for spe- i a I i ui flhu . , , ‘if sulfur by the Frssch proc..r’ lit ii .,i ,i i ‘Pus, in situ combus- tion of sri ii ’ _ ‘.1 u li’i ,tharmsl energy? (FORM 4) J. Is thit facility a pr..,p tationsfy source which is NOT one of the 28 indusu,iol calegorues listed in the Instructions and which will pnue’itieily emit 250 tOns per year of any eur pollutant regulated under the Clean Air Act and may affect or be located In an attainment sr,r ss ‘Sr Please print or type in the unshaded crow only (lill’,n areas are spaced for elite type, I.., 12 characters/Inch) 33555 vi FACILITY \ Z \ I I. POLLUTANr ‘ HI IV. FACILI A NAME & TITLE (lost, first, & title) I a PHONE (area code & no, I 5 , j I I I I I I I 5 5_ A. STREET. ROUTE NO OR OTHER SPECIFiC IDENTIFIER C COUNTY NAME I I I i I I I ii I I I I I i I I I I I U U i ------- 33558 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations i’flMTiIJiICF FROM THE FRONT VII. SIC CODES (4 digit, in order of priority) A FIRST — e SECOND I(spec lfy) : 1 1 I (specify) . ‘ill C THIRD - 0 FOURTH ‘ I(specsJy) I I 6 ,i VIII. OPERATOR INFORMATION . t.J ‘ ‘ ‘ I (specify) 7 1 I . . lathe name lined In - A NAME I Item VlII.A duo the i• I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I owner? 81 .. . ‘EIVESDNO I — II C STATUS OF OPERATOR (Enter the appropriate fer rer into the answer box. if Orher specify) P PHONE (area code & no) C I I I I I I P-PRIVATE l’.- ‘i F FEDERAL M PUBLIC (other than federal or state) (specify) - I •.-. . I S STATE, 0 • OTHER (apecify) A E STREET ORPO BOX I 11111111111,11111111 III F CITY OR TOWN 0 STATEI H ZIP CODE IX. INDIAN LAND Is the lecility located on Indian lands? CIII 1111111111111111111111 11111111 DYES E:JNO 81 ‘ ‘I , ’ A NPDEG (Discharges to Surface Ware,) as 1— — cI. CIiI I I I I I I I I X. EXISTING ENVIRONMENTAL PERMITS I II 1111 Proposed Sources) 9INI I 9’P I •(J. I ,. 10 I , . 11 I 11 1 i.ii. I I B u.c (Underground Injection of Fluids) a ii I I I I I I ci. I I I I ‘I dip) glui I gi ] I 1.1,, I ‘ ‘ . 10 iii. C. RCRA (Hazardous Wastes) S. 01C 1 ,i I I I I I I I I I CIVIII , I O I ,.I ,, I , , . I i i I I 9 1 R 1 I 9 J I I Attach to this application a topographic map of the area extending to at least one mile beyond p b ity bounderies. The map must show the outhne of the facilIty, the location of each of its existing and proposed intake and discharge sti (ctures, each of its hazardous waste treatment, storage, or disposal facilities, and each well where it injects fluids underground. Include all springs, rivers and othei surface water bodies in the map area. See instructions for precise requirements. I certify under penalty of law that! have personally examined and am familiar with the information wbmltted in this application and all attachments and that, bawd on my inqufry of those peisons immediately responsible for obtaining the information contained in the application, I believe that the information is true, accurate end complete. Ism aware that there we significant penalties for Submitting false inforrnat on, including the posetbility of fine and Imprisonment A NAME B OFFICIAl. TITLE (type or print) B SIWNATuRL C DATE SIGNED COMMENTS FOR OFFICIAL USE ONLY __________ C 11111111111 II 1111111111111 11111 11 EPAPoqinS5lQ.1t5IQI REVCRSE BILLING CODE 6560-01-C ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33557 Instructions—Form 2b—Application for Permit To Discharge Wastewater Concentrated Animal Feeding Operations and Aquatic Animal Production Facilities This form must be completed by all applicants who check “yes” to item lI—B in Form 1. Not all animal feeding operations or fish farms are required to obtain NPDES permits. Exclusions are based on size and occurrence of discharge. See the description of these statutory and regulatory exclusions the General Instructions which accompany Form 1. In particular, for animal feeding operations, the size cutoffs depend on whether or not pollutants are discharged through a man-made device or by direct contact with the facility or animals. A facility for laying hens or broilers is not required to have a permit unless it has a liquid manure handling system or continuous overflow watering. Also, facilities which discharge only in the case of a 25 year, 24 hour storm event are not required to have a permit. For aquatic animal production facilities, the size cutoffs are based on whether the species are warm water or cold water, on the production weight per year in harvestable pounds, and on the amount of feeding in pounds of food (for cold water species). Also, facilities which discharge less than 30 days per year, or only during periods of excess runoff (for warm water fish) are not required to have a permit. item I—A. See the note above and the General Instructions which accompany Form I to be sure that your facility is “concentrated.” item I—B. If your answer to item VI of Form I does not give a complete legal description of your facility’s location, use this space to provide a complete description, such as quarter, section, township, and range. Item i—C. Check “proposed” if your facility is not now in operation, or not now “concentrated” under the definition in the glossary found in the General Instructions which accompany Form I. item ii. Supply all information in item II if you checked (1) in item I—A. Item 11—A. Give the maximum number of each type of animal in open confinement or housed under roof (either partially or totally) which are held at your facility for a total of 45 days or more in any 12 month period. Use the following categories for type of animals: Slaughter Cattle; Feeder cattle; Mature Dairy Cattle (milked or dry); Swine (each weighing over 55 pounds); Horses; Sheep; Lambs; Turkeys; Laying Hens; ‘Broilers; I Ducks. Item If—B. Give only the area used for the animal confinement or feeding facility. Do not include any area used for growing or operating feed, item 11—C. Check “yes” if any system for collection of runoff has been constructed. Supply the information under (1), (2), and (3) to the best of your knowledge. Item III. Supply all information in item III if you checked (2) in item I—A. Item Ill—A. Outfalls should be numbered to correspond with the map submitted in item XI of Form 1. Values given for flow should be representative of your normal operation. The maximum daily flow is the maximum measured flow occurring over a calendar day. The maximum 30-day flow is the average of measured daily flows over the calendar month of highest flow. The long-term average flow is the average of measured daily flows over a calendar year. Item Ill—B. Give the total number of discrete ponds or raceways in your facility. Under “other,” give a descriptive name of any structure which is not a pond or a raceway but which results in discharge to waters of the United States. item Ill—C. Use names for the receiving water and source of water which correspond to the map submitted in item Xl of Form 1. item III—D. The names for fish species should be proper, common, or scientific names as given in special Publication No. B of the American Fisheries Society, “A List of Common and Scientific Names of Fishes from the United States and Canada.” The values given for total weight produced by your facility per year and the maximum weight present at any one time should be representative of your normal operation. item I11—E. The value given for maximum monthly pounds of food should be representative of your normal operation. Item IV. The Clean Water Act provides for severe penalties for submitting false information on this application form. Section 309(c)(2) of the Clean Water 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 no more than $10,000 or by imprisonment for not more than six months, or both.” Federal regulations require the certification to be signed as follows: ‘A permit is not required unless the facility has a liquid manure handling system or continuous overflow watering. (1) For corporation, by a principal executive officer of at least the level of vice president; (2) For a partnership or sole. - proprietorship, by a general partner or the proprietor, respectively; or (3) For a municipality, State, Federal, or other public facility, by either a principal executive or ranking elected official. BILLINC CODE 6560-O1-M ------- 33558 Federal Register / Vol. 45. No. 98 I Monday. May 19, 1980 I Rules and Regulations lo RUMULR(COPY Tram Item I or Form 1 Foffa Approved 0MB No. ?59.R0774 FORM I - U S ENVIRONMENTAL PROTECTION AGENCY APPLICATION FOR PERMIT TO DISCHARGE WASTEWATER 2 B CONCENTRATED ANIMAL FEEDING OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES NPOES I Consolidated Permits Program - I.GENERALINFORMATION A. TYPE OF DUSINESS S LEGAL DESCRIPTION OF FACILITY LOCATION - C FACILITY OPERATION STATUS CONCENTRATED ANIMAL FEEDING 0’ OPERATION (complete Item, B. C, and Section II ) CONCENTRATED AQUATIC ANIMAL tents - WI Meiwn I I . Di EXISTING FACILITY Os PROPOSED FACILIIV - II CONCENTRATED ANIMAL FEEDING OPEF lION CHARACTERISTICS — A TYPE & NUMSER OF ANIMALS IN OPEN CONFINEMENT a HOUSED UNDER ROOF CSN ?N 2 ERI EI G I. TYPE 2 NO IN OPEN CONFINEMENT 3 NO. HOUSED UNDER ROOF . C If there ii open cOnt.nement. has a runoff diver .,on and Control .ystem been constructed? 0 VES (complete Item, 1. 2. & 3 below) DNO (go to Section Il ) 1 What is the design basis for the control system? — a 50 YEAR. ‘“ ‘ 23 V A Is’’” ” o 24—HOURSTORM 24— TORJi e ’ (specify inches) (apoc ins •i Sc. — 2 R.port the number of acres Of contributing C. OTHER ‘ . ‘ . 0 (speci(yi ,che & type)- tIle design safety facto, cAre ts FACTOR III CONCENTRATED AQUATIC ANIMAL PRODUCTION Fee IL ‘V CHA flISTI S — fr A For each outfall give the maximum daily flow, maximum 30 day 0ow FI.ow(g:tt:nsperd ,y) BelLY U CAY AVeRAGE i . ste the total number of ponds, racewayt, and similar structuret in I 1 S RACEWAYS I OTHER (/ ,. - cpri f 2 of the siving water and the source of water used by your fat..’ - I I RECEIVIN S WATER SOURCE I O List the species of fish or aquatic an of harvestable weight, and also give t male held and fed at your facility For e he maximum weight present at any one S ch species, give the total weight produced by your facility per year in pounds r oe. I COLD WATER SPECIES 2. WARM WATER SPECIES a SPECIES b HARvEaTABLE WEIGHT (pound,) C SPECIES HARVESTABLE WEIGHT (pound,) TOTAL YEARLY MAXII SM Ii) TOTAL YEARLY f.f MAxIMUM E Report the total pound, of food fed during the calenda, month of maximum feeding. . I MONTH 2. POUNDS OF F’...)D IV. CERTIFICATIONT — - — ‘ -- ——-------—- I certify under penelty of law that I have peisonally eiamlnadendwn fwnil,er seth the Infom,aeion wbmltt,d in this epplication soda!! attachments and thal based on my lnqulr 1 r of those inthvIo jaIa immediately meponssble for obtaining th. !nfonraaf,on. I believe that the infom,at,on Is ma., accu,.re a id completft lam asiera that these a ,. significant penalties for subse itting false infom,abon, including the poatibabjy of fine end imprisonment A, NAME S orFiciAL TITLE (print or type) C. PHONE NO. (urea code & no) C SIGNATURE P DATE SIGNED Please print or type in the unshaded areas Only EPA Form 3310.28 5.8O) BILUNG CODE 6560-01-C ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33559 nstructions.—Form 2c—Application for ‘ermit To Discharge Wastewater xisting Manufacturing, Commercial, Mining, and Si! vicultumi Operations This form must be completed by all applicants who check “yes”to item If—C ’ in Form 1. Public Availability of Submitted Information. Your application will not be considered complete unless you answer every question on this form and on Form 1. If an item does not apply to you, enter “NA” (for not applicable) to show that you considered the question. You may not claim as confidential any information required by this form or Form 1, whether the information is reported on the forms or in an attachment. This information will be made available to the public upon request. Any information you submit to EPA which goes beyond that required by this form and Form I you may claim as confidential, but claims for information which is effluent data will be denied. If you do not assert a claim of confidentiality at the time of submitting the information, EPA may make the information public without further notice to you. Claims of confidentiality ,ill be handled in accordance with PA’s business confidentiality gulations at 40 CFR Part 2. Definitions. All significant terms used in these instructions and in the form are defined in the glossary found In the General Instructions whicb accompany Form 1. EPA I.D. Number. Fill in your EPA Identification Number at the top of each page of Form 2c. You may copy this number directly from item I of Form 1. Item I. You may use the map you provided for item Xl of Form 1 to determine the latitude and longitude of each of your outfalls and the name of the receiving water. Item Il—A. The line drawing should show generally the route taken by water in your facility from intake to discharge. Show all operations contributing wastewater, including process and production areas, sanitary flows, cooling water, and stormwater runoff. You may group similar operations into a single unit, labeled to correspond to the more detailed listing in item Il—B. The water balance should show average flows. Show all significant losses of water to products, atmosphere, and discharge. You should use actual measurements whenever available; otherwise use your best estimate. An example of an eptable line drawing appears in lure 2c—1 to these instructions. rten, fl—B. List all sources of stewater to each outfall. Operations may be described in general terms (for example, “dye-making reactor” or “distillation tower”). You may estimate the flow contributed by each source if no data is available, and for stormwater, you may use any reasonable measure of duration, volume, or frequency. For each treatment unit, indicate its size, flow rate, and retention time, and describe the ultimate disposal of any solid or liquid wastes not discharged. Treatment units should be listed iii order and you should select the proper code from Table 2c—1 to fill in column 3—b for each treatment unit, Insert “XX” into column 3—b if no code corresponds to a treatment unit you list. If you are applying for a permit for a privately owned treatment works, you must also identify all of your contributors in an attached listing. BILUNG CODE 6560-01-N ------- LINE DRAWING BLUE RIVER 90.000 GPD RAW MATERIALS 45,000 GPD 30.000 GPD MUNICIPAL WATER SUPPLY BLUE RIVER 10.000 GPO COOLING WATER 5.000 GPD MAX: 20.000 GPD OUTFALL 002 50.000 GPD 001 70.000 GPD + STORM WATER BIWNO CODE 5560-01-C FIGURE 2c-1 SCHEMATIC OF WATER FLOW BROWN MILLS. INC CITY. COUNTY. STATE S. S. Cl as as I C C;’ z 0 0 E.. a C. I ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33561 Table 2c—1.—Codes for Treatment Units Physical Treatment Processes 1—A—Ammonia Stripping 1—B-—Dialysis 1—C—Diatomaceous Earth Filtration 1—D—Distillation 1—E—Electrodialysis 1—F—Evaporation 1—C——Flocculation 1—H—Flotation 1—I—Foam Fractionation 1— I—Freezing 1—K—Gas-Phase Separation 1—L-—Grinding (Comminutors) 1—M—Crit Removal 1-N—Microstraining 1—0—Mixing 1—P—Moving Bed Filters 1—Q——Multimedia Filtration l—R—Rapid Sand Filtration 1—S—Reverse Osmosis (Hyperfiltration) 1—T—Screening 1—U—Sedimentation (Settling) 1—V—Slow Sand Filtration 1—W—Solvent Extraction 1—X—Sorption Chemical Treatment Processes 2—A—Carbon Adsorption 2—B—Chemical Oxidation 2—C——Chemical Precipitation 2 —D—Coagulation 2—E—Dechlorination 2—F—Disinfection (Chlorine) 2—C——Disinfection (Ozone) 2—H—Disinfection (Other) 2.—l---Electrochemical Treatment 2.-J—lon Exchange 2-K—Neutralization 2—L—Reduction - Biological Treatment Processes 3—A—Activated Sludge 3—B—Aerated Lagoons 3—C—Anaerobic Treatment 3—D—Nitrification-Denitrification 3—E—Pre-Aeration 3—F—Spray Irrigation! Land Application 3—C—Stabilization Ponds 3—H—Tnckling Filtration Other Processes 4—A—Discharge to Surface Water 4—B——Ocean Discharge Through Outfall 4—C—Reuse/Recyle of Treated Effluent 4—D—Underground Injection Sludge Treatment and Disposal Processes 5—A—Aerobic Digestion 5—B—Anaerobic Digestion 5—C—Belt Filtration 5—D--—Centrifuga lion 5—E—Chemical Conditioning 5—F—Chlorine Treatment 5-C-—Composting 5-H—Drying Beds 5—1—Elutriation 5-J—Flotation Thickening 5—K—Freezing 5—L——Gravity Thickening 5—M—Heat Drying 5-N—Heat Treatment 5—0—Incinceration 5-P—Land Application 5—Q-—Landfill 5—R—Pressure Filtration 5-S—Pyrolysis 5—T—Sludge Lagoons 5-U—Vacuum Filtration 5-V—Vibration 5—W—Wet Oxidation Item I l—C. A discharge is intermittent unless it occurs without interruption during the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities. A discharge is seasonal if it occurs only during certain parts of the year. Fill in every applicable column in this item for each source of intermittent or seasonal discharges. Base your answers on actual data whenever available: otherwise, provide your best estimate. Report the highest daily value for flow rate and total volume in the “Maximum Daily” columns (columns 4—a—2 and 4—b—2). Report the average of all daily values measured during days when discharge occurred within the last year in the “Long Term Average” columns (columns 4—a—i and 4—b—I). Item ill—A. All effluent guidelines promulgated by EPA appear in the Federal Register and are published annually in 40 CFR Subchapter N. A guideline applies to you if you have any - operations contributing process wastewater in any subcategory covered by a BPT, BCT, or BAT guideline. If you are unsure whether you are covered by a promulgated effluent guideline, check with your EPA Regional office (Table 1). You must check “yes” if an applicable effluent guideline has been promulgated. even if the guideline limitations are being contested in court. If you believe that a promulgated effluent guideline has been remanded for reconsideration by a court and does not apply to your - operations, you may check ‘no.” Item Ill—B. An effluent guideline is expressed in terms of production (or other measure of operation) if the limitations are expressed as mass of pollutant per operational parameter: for example, “pounds of BOD per cubic foot of logs from which bark is removed,” or “pounds of TSS per megawatt hour of electrical energy consumed by smelting furnace.” An example of a guideline not expressed in terms of a measure of operation is one which limits the concentration of pollutants. Item Ill—C. This item must be completed only if you checked ‘yes” to item Ill—B. The production information requested here is necessary to apply effluent guidelines to your facility and you may not claim it as confidential. However, you do not have to indicate how the reported information was calculated. Report quantities in the units of measurement used in the applicable effluent guideline. The figures provided must be a measure of actual operation over a one-month period, such as the production for the highest month during the last twelve months, or the monthly average production for the highest year of the last five years, or other reasonable measure of actual operation, but may not be based on design capacity or on predictions of future increases in operation. Item IV—A. If you check “yes” to this question, complete all parts of the chart, or attach a copy of any previous submission you have made to EPA containing the same information, Item IV—B. You are not required to submit a description of future pollution control projects if you do not wish to or if none is planned. Item V—A, B, C, andD. These items - require you to collect and report data on the pollutants discharged from each of your outfalls. Each part of this item addresses a different set of pollutants and must be completed in accordance with the specific instructions for that part. The following general instructions apply to the entire item. General Instructions: Part A requires you to report at least one analysis for each pollutant li8ted. Parts B end C require you to report analytical data in two ways. For some pollutants, you may be required to mark “X” in the “Testing Required” column (column 2—a, Part C), and test (sample and analyze) and report the levels of the pollñtants in your discharge whether or not you expect them to be present in your discharge, For all others, you must mark “X” in either the “Believe Present” column or the “Believe Absent” column (columns 2—a or 2—b, Part B, and columns 2—b or 2— c, Part C) based on your best estimate, and test for those which you believe to be present. Part D requires you to list any of a group of pollutants which you believe to be present, with a brief explanation of why you believe it to be present. (See specific instructions on the form and below foi Parts A through D.J Base your determination that a pollutant is present in or absent from your discharge on your knowledge of your raw materials, maintenance chemicals, intermediate and final products and byproducts, and any previous analyses known to you of your effluent or of any similar effluent. (For example, if you manufacture pesticides, you should expect those pesticides to be present in contaminated stormwater runoff.) If you would expect a pollutant to be present solely as a result of its presence in your Intake water, you must mark “Believe Present” but you are not required to analyze for that pollutant. ------- 33562 Federal 1 egister / Vol. 45, No. 98 I Monday, May 19, 1980 1 Rules and Regulations Instead, mark an “X” in the “Injake” column. a. Reporting. All levels must be reported as concentration and as total mass. You may report some or all of the required data by attaching separate sheets of paper instead of filling out pages V—i to V—9 if the separate sheets contain all the required information in a format which is consistent with pages V—i to V—9 in spacing and in identification of pollutants and columns. (For example, the data system used in your GC/MS analysis may be able to print data in the proper format.) Use the following abbreviations in the columns headed “Units” (column 3, Part A, and column 4, Parts B and C). Concentration ppm—parts per million mgf I—milligrams per liter ppb—parts per billion ugh—micrograms per liter Mass lbs—pounds ton—tone (English tons) mg—milligrams 5—grams kg—kilograms T—tonnes (metric tons) If you measure only one daily value, complete only the “Maximum Daily Values” columns and insert “1” into the “Number of Analyses” columns (columns 2—a and 2—d, Part A, and columns 3—a and 3—d, Parts B and C). The permitting authority may require you to conduct additional analyses to further characterize your discharges. For composite samples, the daily value is the total mass or average concentration found in a composite sample taken over the operating hours of the facility during a 24-hour period; for grab samples, the daily value is the arithmetic’or flow- weighted total mass or average concentration found in a series of at .least four grab samples taken over the operating hours of the facility during a 24-hour period. If you measure more than one daily value for a pollutant, determine the average of all values within the last year and report the concentration and mass under the “Long-term Average Values” columns (column 2—c, Part A, and column 3—c, Parts B and C), and the total number of daily values under the “Number of Analyses” columns (column 2—d, Part A, and column 3—d, Parts B and C). Also, determine the average of all daily values taken during each calendar month, and report the highest average under the “Maximum 30-day Values” columns (column 2—c, Part A, and column 3—b, Parts B and C). a. Sampling: The collection of the samples for the reported analyses should be supervised by a person experienced in performing sampling of industrial wastewater. You may contact your EPA or State permitting authority for detailed guidance on sampling techniques and for answers to specific questions. Any specific requirements contained in the applicable analytical methods should be followed for sample containers, sample preservation, holding times, the collection of duplicate samples, etc. The time when you sample should be representative of your normal operation, to the extent feasible, with all processes which contribute wastewat’er in normal operation, and with your treatment system operating properly with no system upsets. Samples should be collected from the center of the flow channel, where turbulence is at a maximum, at a site specified in your present permit, or at any site adequate for the collection of a representative sample. Grab and composite samples are defined as follows: Grab sample: An individual sample of at least 100 milliliters collected at a randomly-selected time over a period not exceeding 15 minutes. Composite sample: A combination of at least 8 sample aliquots of at least 100 milliliters, collected at periodic intervals during the operating hours of a facility over a 24 hour period. For volatile pollutants, aliquots must be combined in the laboratory immediately before analysis. The composite must be flow proportional; either the time interval between each aliquot or the volume of each aliquot must be proportional to either the stream flow at the time of sampling or the total stream flow since the collection of the previous aliquot. Aliquots may be collected manually or automatically. c. Analysis: You must use test methods promulgated in 40 CFR Part 136; however, if none has been promulgated for a particular pollutant, you may use any suitable method for measuring the level of the pollutant in your discharge prnvided that you submit a description of the method or a reference to a published method. Your description should include the sample holding times, preservation techniques, and the quality control measures which you used. If you have two or more substantially identical outfalls, you may request permIssion from your permitting authority to sample and analyze only one outfall and submit the results of the analysis for other substantially identical outfalls. If your request is granted by the permitting authority, on a separate sheet attached to the application form identify which outfall you did test, and describe why the outfalls which you did not test are substantially identical to the outfall which you did test. - d. Reporting of Intake Data: You are not required to report data under the “Intake” columns unless you wish to dexhonstrate your eligibility for a “net” effluent limitation for one or more pollutants, that is, an effluent limitation adjusted by subtracting the average level of the polluta t(s) present in your intake water. NPDES regulations allow net limitations only in certain circumstances. To demonstrate your eligibility, under the “Intake” columns report the average of the results of analyses on your intake water (if your water is treated before use, test the water after it is treated), and attach a separate sheet containing the following for each pollutant: 1. A statement that the intake water is drawn from the body of water into which the discharge is made. (Otherwise, you are not eligible for net limitations.) 2. A statement of the extent to which the level of the pollutant is reduced by treatment of your wastewater. (Your limitations will be adjusted only to the extent that the pollutant is not removed.) 3. When applicable (for example, when the pollutant represents a class of compounds), a demonstration of the extent to which the pollutants in the intake vary physically, chemically, or biologically from the pollutants contained in your discharge. (Your limitations will be adjusted only to Lh extent that the intake pollutants do not vary from the discharged pollutants.) Part V—A. Part V—A must be completed by all applicants for all outfalls, including outfalls containing only noncontact cooling water or storm runoff. However, at your request, the permitting authority.may waive the requirements to test for one or more of these pollutants, upon a determination that testing for the pollutant(s) is not appropriate for your effluents. Use composite samples for all pollutants in this Part, except use grab samples for pH and temperature. See discussion in General Instructions to item V for definitions of the columns in Part A. The “Long Term Aver8ge Values” column (column 2—c) and “Maximum 30-day Values” column (column 2—b) are not compulsory but should be filled out if data is available. Part V—B. Part V—B must be completed by all applicants for all outfalls, including outfalls containing only noncontact cooling water or storm runoff. Use composite samples for all pollutants you analyze for in this Part, except use grab samples for residual chlorine, oil and grease, and fecal coliform. The “Long-term Average Values” column (column 3-c) and “Maximum 30-dOy Values” column (column 3-b) are not compulsorybut should be filled out if data is available. ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 1 Rules and Regulations 33563 Part V—C. Table 2c—2 lists the 34 “primary” industry categories in the left- hand column. For each outfall, if any of your processes which contribute wastewater falls into one of those categories, you must mark “X” in “Testing Required” column (column .2—al and test for (1) all of the toxic metals, cyanide, and total phenols, and (2) the organic toxic pollutants contained in the gas chromotography/mass spectrometry (GC/MS) fractions indicated in Table 2c—2 as applicable to your category, unless you qualify as a small business (see below). The organic toxic pollutants are listed by GS/MS fractions on pages V-4 to V—9 in Part V-C. For example, the Organic Chemicals Industry has an asterisk in all four fractions; therefore, applicants in this category must test for all organic toxic pollutants in Part V—C. If you are applying for a permit for a privately owned treatment works, determine your testing requirements on the basis of the industry categories of your contributors. When you determine which industry category you are in to find your testing requirements, you are not determining your category for any other purpose and you are not giving up your right to challenge your inclusion in that category (for example, for deciding whether an effluent guideline is applicable) before your permit is issued. For all other cases (secondary industries, non-process wastewater outfalls, and non-required GC/MS fractions), you must mark “X” in either the “Believed Present” column (column 2—b) or the “Believed Absent” column (column 2—c) for each pollutant, and test for those you believe present (those marked “X” in column 2—b). If you qualify as a small business (see below) you are exempt from testing for the organic toxic pollutants, listed on pages V.4 to V—9 in Part C. For pollutants in intake water, see discussion in General Instructions to this item. The “Long-term Average Values” column (column 3—c) and “Maximum 30-day Values” colwnn (column 3—b) are not compulsory but should be filled out if data is available. Use composite samples for all pollutants in this Part, except use grab samples for total phenols and cyanide., Table 2c-2.—Testlng Requirements for Organic Toxic Pollutants by industry Category GCIMS traction’ Industry category Volatile Acid Bagel Paul. - neutral dde Adhesives and sealanls (1 I’) I’) Alunilnum lorming ...... Auto and other laundries , (‘) () (‘) ‘) (‘) ‘) (‘) Battery manulactunng Coal mining - — Cod coating Copper forming ii I’) r) ‘) I’) (‘) (‘) I’) r r (‘) industry category GC/MS fraction’ Volatile Acid Basef Peati- neutral ode Electnc and elactronic compounds (‘) (‘) (‘) (‘) Eleciroplating . . (‘) (‘) I’) — Explouivea manufacturing ... I’) (‘) Foundries . (‘) (‘) (‘) Gum and wood chemicals (‘) (‘) (‘) (‘) Inorganic dienuicels manufacturing . (‘) (‘) () tern and steel manufacturing . (‘) I’) (‘) Leather tanning and finishing (‘) (‘) (‘) t’) Mechanical products manufacturing ... . r) (‘) (‘) ..... Nonferrous metals manutacturing (‘) (‘) (‘) () Ore mining (‘) (‘) (‘I (‘) OrganIc chemicals manufacturing . .. C’) 1’) (‘) (‘) Paint and ink formulation .... C’) (‘) (‘) (‘) Pesticides . . C’) (‘) r) C’) Petroleum refilang . - Pharmaceutical preparations C’) r) C’) C’) (‘) (‘) - Photographic equipment and supplies . C’) C’) C’) C’) Ptsatic end synthetic materials manufacturing .. C’) C’) C’) C’) Plastic processing C’) Porcelain erian’eling C’) (‘I C’) Pflnting and publishing C’) (‘) C’) C’) Pulp and paperboard mills ... C’) C’) C i C’) flubbor processing .... Soap and detergent )‘) r) C’) - manufacturing C’) C’) C’) Steam electric power plants.... C’) C’) C’) .. Textile m Is C’) C’) C’) C’) Timber products processing.... r) C’) C’) C’) You are required to mark “Testing Required” for dioxin if you use or manufacture one of the following compounds: (a) 2,4,5-trichlorophenoxy acetic acid, (2,4,5-T); (b) 2-(2,4,5- trichiorophenoxy) propanoic acid, (Silvex, 2,4,5-TP); (c) 2-(2,4,5- trichlorophenoxy) ethyl 2,2. dichloropropionate, (Erbon); (d) 0,0- dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate, (Ronnel); (e) 2,4,5- trichlorophenol, (TCP); or (f) hexachlorophene, (HCP). If you mark “Testing Required” or “Believe Present,” you must perform a screening analysis for dioxins, using gas chromotography with an electron capture detector. A. TCDD standard for quantitation is not required. Describe the results of this analysis in the space provided; for example, “no measurable baseline deflection at the retention time of TCDD” or “a measurable peak within the tolerances of the retention time of TCDD.” The permitting authority may require you to perform a quantitative analysis if you report a positive result. The Effluent Guidelines Division of EPA has collected and analyzed samples from some plants for the pollutants listed in Part C in the course of its BAT guidelines development program. If your effluents were sampled and analyzed as part of this program in the last three years, you may use this data to answer Part C provided that the permitting authority approves, and provided that no process change or change in raw materials or operating practices has occurred since the samples were taken that would make the analyses unrepresentative of your current discharge. Small Business Exemption. If you qualify as a “small business,” you are exempt from the reporting requirements for the organic toxic pollutants, listed on pages V.4 to V—9 in Part C. If your facility isa coal mine, and if your probable total annual production is less than 100,000 tons per year, you may submit past production data or estimated future production (such as a schedule of estimated total production under 30 CFR § 795.14(c)) instead of conducting analyses for the organic tq xic pollutants. If your facility is not a coal mine, and if your gross total annual sales for the most recent three years average less than $100,000 per year (in second quarter 1980 dollars), you may submit sales data for those years instead of conducting analyses for the organic toxic pollutants. The production or sales data must be for the facility which is the source of the discharge. The data should not be limited to production or sales for the process or processes which contribute to the discharge. unless those are the only processes at your facility. For sales data, in situations involving intra- corporate transfers of goods and services, the transfer price per unit should approximate market prices for those goods and services as closely as possible. Sales figures for years after 1980 should be indexed to the second quarter of 1980 by using the gross national product price deflator (second quarter of 1980=100). This index is available in National Income and Product Accounts of the United States (Department of Commerce, Bureau of Economic Analysis). Part V—D. List any pollutants in Table 26—3 that you believe to be present and explain why you believe them to be present. No analysis is required, but if you have analytical data, you must report it. Note: Under 40 CFR 117.12(a)(2), certain discharges of hazardous substances (listed in Table 2c—4 of these Instructions) htay be exempted from the requirements of section 311 of CWA, which establishes reporting requirements, civil penalties, and liability for clean-up costs for spills of oil and hazardous substances. A discharge of a particular substance may be exempted if the origin, source and Table 2c-2.—Testlng Requirements for Organic Toxic Pollutants by industry Category—Continued ‘The poflutants In each fraction are listed in uteri V-C. Tesllng required. ------- 33564 Federal Register 7 Vol. 4 . No. .98 I Monday, May 19, 1980 I Rples and Regulations an ount of the discharged substance are identified in the NPDES permit application or in the permit, if the permit contains a requirement for treatment of the discharge, and if the treatment is in. place. To apply for au exclusion of the discharge of any hazardous substance from the requirements of section 311, attach additional sheets of paper to your form, setting forth the following information: 1. The substance and the amount of each substance which may be discharged. 2. The origin and source of the discharge of the substance. 3. The treatment which is to be provided for the discharge by: a. An on-site treatment system separate from any treatment system treating your normal discharge; b. A treatment system designed to treat your normal discharge and which is additionally capable of treating the amount of the substance identified under paragraph 1 above; or c..Any combination of the above. See 40 CFR § 117.12(a)(2) and (cJ, - published on August 29, 1979. in 44 FR 50766, or contact your Regional office (Table 1), for futher information on exclusions from section 311. Table 2c—3.—Toxlc Pollutants and Hazardous Substances Required to be Identified by Applicants If Expected to be Present Toxic Pollutants Asbestos Hazardous Substances Acetaldehyde Allyl alcohol AlIyl chhnide Amyl acetate Aniline Benzonitrile Benzyl chloride Butyl acetate Butylamine Captan Carbaryl Carbofuran Carbon disultIde Chiorpyrifos Coumaphos Cresol Crotonaldehyde Cyclohexane 2,4—D (2,4-Dichlorophenox Diazinon Dicamba Dichlobenil Dichlone 2.2-Dichloropropionic acid Dichiorvos Diethyl amine Dimethyl amine Dintrobenzene Diquat Disulfoton Diuron Epichlorohydrin Ethanolamine Ethion Ethylene diamine Ethylene dibromide Formaldehyde Furfural Guthion Isoprene lsopropanolamine Kelthane Kepone Malathion Mercaptodimethur Methoxychlor Methyl mercaptan Methyl methacrylate Methyl parathion Mevinphos Mexacarbate Monoethyl amine Monomethyl amine Naled Napthenic acid Nit.rotoluene Parathion Phenolsulfonate Phosgene Propargite Propylene oxide Pyrethrins Quinohne Resorcinol Strontium Strychnine Styrene 2,4,5-T (2,4,5-Trichlorophenoxyacetic acid) i DE (Tetrachlorodiphenyl ethane) 2,4.5-TP (2-(2,4,5-Trichtorophenoxy) propanoic acid) Trichiorofon Triethylamine Trimethylamine Uranium Vanadium Vinyl acetate Xylene Xylenol Zirconium Bern V1—A. You may not claim this information as confidential; however, you do not have to distinguish between use or production of the pollutants or list the amounts. Under NPDES regulations your permit will contain limits to control all pollutants you report in answer to this question, as well as all pollutants reported in item V or VI—B at levels exceeding the tecl nology-based limits appropriate to your facility. Your permit will also require you to report to EPA if you in the future begin or expect that you will begin to use qr manufacture as an intermediafe or final product or byproduct any toxic pollutant which you did not report here, and your permit may be modified at that time if necessary to control that pollutant. Item VI—B. For this item, consider only those variations which may result in concentrations of pollutants in effluents which may exceed two times the maximum values you reported in item V. These variations may be part of your routine operations, or part of your regular cleaning cycles. Under NPDES regulations your permit will contain limits to control any pollutant you report in answer to this question at levels exceeding the technology-based limits appropriate to your facility. Your permit will also require you to report to EPA if you know or have reason to believe that any activity has occurred or will occur which would make your discharge of any toxic pollutant five times the maximum values reported in item V-C or in this item, and your permit may be modified at that time if necessary to control the pollutant. Do not consider variations which are the result of bypasses or upsets. Increased levels of pollutants which are discharged as a result of bypasses or upsets are regulated separately under NPDES regulations. Item VI-C. Examples of the types of variations to be described here include: Changes in raw or intermediate materials; Changes in process equipment or materials; Changes in product lines; Significant chemical reactions between pollutants in waste streams; and Significant variation in removal efficiencies of pollution control equipment. You may indicate other types of variations as well, except those which are the result of bypasses or upsets. The permitting authority may require you to further investigate or document variations you report here. Base you prediction of expected levels of these pollutants upon your knowledge of your processes, raw materials, past and projected product ranges, etc., or upon any testing conducted upon your effluents which indicates the range of variability that can be expected in your effluent over the next five years. Example: Outfall 001 discharges water used to clean six 500-gallon tanks. These tanks are used for formulation of dispersions of synthetic resins in water (adhesives). Use of toxic pollutants which can be expected in the next 5 years is: 1. Copper acetate inhibitor, Va lb. per tank 2. Dibutyl phthalate, 50 lbs. per tank 3. Toulene, 5 lbs. per tank 4. Antimony oxide, 1 lb. per tank. Based on normal cleaning, an average of 1% and a maximum of 3% of the contents of each tank is collected and discharged once every two weeks in the 150 gallons of water used for cleaning. Treatment (pH adjustment, flocculation, ------- Federal Register -/ Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulatiozis 33565 filtration) removes 85% of metals and 50% of organic compounds. Item V II. Self explanatory. The permitting authority may ask you to provide additional details after your application is received. Item VII!. Self explanatory. Item IX. The Clean Water Act provides for severe penalties for submitting false Information on this application form. Section 309(c)(2) of the Clean Water 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 no more than $10,000 or by imprisonment for not more than six months, or both.” F derol RegulationiRequire the Certification To Be Signed as Follows: (1) For a corporatidn, by a principal executive officer of at least the level of vice president: (2) For a partnership or sole proprietorship, by a general partner or the proprietor, respectively; or (3) For a municipality, State, Federal, or other public facility, by either a principal executive officer or ranking elected official. Table 2c—4.—Hazardous Substances 1. Acelaldehyde 2. AceLic acid 3. Acetic anhydride 4. Acetone cyanohydrin 5. Acetyl bromide 8. Acetyl chloride 7. Acrolein 8. Acrylonitnle 9. Adipic acid 10. Aldrin 11. Allyl alcohol 12. Allyl chloride 13. Aluminum sulfate 14. Ammonia 15. Ammonium acetate 16. Ammonium benzoate 17. Ammonium bicarbonate 18. Ammonium bichromate 19. Ammonium bifluoride 20. Ammonium bisulfite 21. Ammonium carbamate 22. Animonium carbonate 23. Ammonium chloride 24. Ammonium chromate 25. Ammonium citrate 26. Ammonium fluoroborate 27. Amnionium fluoride 28. Ammonium hydroxide 29. Ammonium oxalate 30. Ammonium silicofluoride 31. Ammonium sulramate 32. Ammonium sulfide 33. Ammonium sulfite 34. Ammonium tartrate 35. Ammonium thiocyanate 30. Ainmonium thiosulfate 37. Amyl acetate 38. Aniline 39. Antimony pentachloride 40. Antimony potassium tartrate 41. Antimony tribromide 42. Antimony trichioride 43. Antimony trifluoride 44. Antimony trioxide 45. Arsenic disulfide 46. Arsenic pentoxide 47. Arsenic trichloride 48. Arsenic trioxide 49. Arsenic trisulfide 50. Barium cyanide 51. Benzene 52. Benzoic acid 53. Benzonitrile 54. Benzoyl chloride 55. Benzyl chloride 56. Beryllium chloride 57. Beryllium fluoride 58. Beryllium nitrate 59. Butylacetate 60. n-Butylphthalate 61 Butylamine 62. Butyric acid 63. Cadmium acetate 64. Cadmium bromide 65. Cadmium chloride 66. Calcium arsenate 07. Calcium arsenite 68. Calcium carbide 69. Calcium chromate 70. Calcium cyanide 71. Calcium dodecylbenzenesulfonate 72. Calcium hypochlorite 73. Captan 74. Carbaryl 75. Carbofuran 76. Carbon disulfide 77. Carbon tetrachloride 78. Chlordane 79. Chlorine 80. Chlorobenzene 81. Chloroform 82. Chloropyrifos 83. Chlorosulfonic acid 64. Chromic acetate 85. Chromic acid 88. Chromic sulfate 87. Chromous chloride 88. Cobaltous bromide 89. Cobaltous formate 90. Cobaltous sulfamate 91. Coumaphos 92. Cresol 93. Crotonaldehyde 94. Cupric acetate 95. Cupric acetoarsenite 96. Cupric chloride 97. Cupric nitrate - 98. Cupric oxalate 99. Cupric sulfate 100. Cupric sulfate ammoniated 101. Cupric tartrate 102. Cyanogen chloride 103. Cyclohexane 104. 2,4-D acid (2,4-Dichlorophenoxyacetic acid) 105. 2,4-D esters (2,4.Dichlorophenoxyacetlc acid esters) 100. DDT 107. Diazinon 108. Dlcamba 109. Dichlobenil 110. Dichlone 111. Dichlorobenzene 112. Dichloropropane 113. Dichloropropene 114. Dichloropropene-dichloproropane mix 115. 2,2 Dichloropropionic acid 116. ljichlorvos 117. Dleldrln 118. Diethylamine 119. Dimethylamine 120. Dinitrobenzene 121. Dinitrophenol 122. Dinitrototuene 123. Diquat 124. Disulfoton 125. Diuron 128. Dodecylbenzesulfonic acid 127. Endosulfan 128. Endrin 12% Epichlorohydrin 130. Ethion 131. Ethylbenzene 132. Ethylenediamine 133. Ethylene dibromide 134. Ethylene dichloride 135. Ethylene diaminetetracetic acid (EDTA) 136. Ferric ammonium citrate 137. Ferric ammonium oxalate 138. Ferric chloride 139. Ferrlc fluoride 140. Ferric nitrate 141. Ferric sulfate 142. Ferrous ammonium sulfate 143. Ferrous cJ loride 144. Ferrous sulfate 145. Formaldehyde 146. Formic acid 147. Fumaric acid 148. Furfural 149. Guthion 150. Heptachlor 151. Hexachlorocyclopenladiene 152. Hydrochloric acid 153. Hydrofluoric acid 154. Hydrogen cyanide 155. Hydrogen sulfite 156. lsoprene 157. Isopropanolamine dodecylbenzenesulfonate 158. Kelthane 159. Kepone 180. Lead acetate 161. Lead arsenate’ 162. Lead chloride 163. Lead fluoborate 164. Lead flourite 165. Lead iodide 166. Lead nitrate 167. Lead stearate 168. Lead sulfate 169. Lead sulfide 170. Lead thiocyanate 171. Lindane 172. Lithium chromate 173. Malathion 174. Maleic acid 175. Maleic anhydride 170. Mercaptodimethur 177. Mercuric cyanide 178. Mercuric nitrate 179. Mercuric sulfate 180. Mercuric thiocyanate 181. Mercurous nitrate 182. Methoxychlor 183. Methyl mercaptan 184. Methyl methacrylate 185. Methyl parathion 186. Mevinphoa 187. Mexacarbate ------- 33566 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 188. Monoethylamine 189. Monomethylamine 190. Naled 191. Napthalene 192. Napthenic acid 193. Nickel ammonium sulfate 194. Nickel chloride 195. Nickel hydroxide 196. Nickel nitrate 197. Nickel sulfate 198. 4itric acid 199. Nitrobenzene 200 Nitrogen dioxide 201. Nitrophenol 202. Nitrotoluene 203. Paraformaidehyde 204. Parathion 205. Pentachlorophenol 206. Phenol 207. Phosgene 208. Phosphoric acid 209. Phosphorus 210. Phosphorus oxychloride 211. Phosphorus pentasulfide 212. Phosphorus trichioride 213. Polychlorinated biphenyls (PCB) 214. Potassium arsenate 215. Potassium arsenite 216. Potassium bichromate 217. Potassium chromate 218. Potassium cyanide 219. Potassium hydroxide 220. Potassium permanganate 221. Propargite 222. Propionic acid 223. Propionic anhydride 224. Propylene oxide 225. Pyrethrins 226. sQuinoline 227. ResorcinoI 228. Selenium oxide 229. Silver nitrate 230. Sodium 231. Sodium arsenate 232. Sodium arsenite 233. Sodium bichroinate 234. Sodium bifluoride 235. Sodium bisulfite 236. Sodium chrornate 237. Sodium cyanide 238. Sodium dodecylbenzenesulfonate 239. Sodium fluoride 240. Sodium hydrosulfide 241. Sodium hydroxide 242. Sodium hypochiorite 243. Sodium methylate 244. Sodium nitrite 245. Sodium phosphate (dibasic) 246. Sodium phosphate (tribasic) 247. Sodium selenite 240. Strontium chromate 249. Strychnine 250. Styrene 251. Sulfuric acid 252. Sulfur monochioride 253. 2,4.5-T acid (2,4.5- Trichlorophenoxyacetic acid) 254. 2.4.5-T amines (2.4,5-Trichlorophenoxy acetic acid amines) 255. 2,4,5-T esters (2,4 ,5-Trichlorophenoxy acetic acid esters) 256. 2,4,5-T salts (2.4.5-Trichiorophenoxy acetic acid salts) 257. 2,4,5-TP acid (2,4,5-Trichiorophenoxy propanoic acid) 250. 2.4.5-TP acid esters (2,4,5- Trichlorophenoxy propanoic acid esters) 259. TOE (Tetrachiorodiphenyl ethane) 260. Tetraethyl lead 261. Tetraethyl pyrophosphate 262. Thallium sulfate 263. Toluene 264. Toxaphene 265. Trichiorofon 266. Trichloroethylene 267. Trichlorophenol 268. Triethanolamine dodecylbenzenesulfonate 269. Triethylamine 270. Trimethylamine 271. Uranyl acetate 272. Uranyl nitrate 273. Vanadium pentoxide 274. Vanadyl sulfate 275. Vinyl acetate 276. Vinylidene chloride 277. Xylene 278. Xylenol 279. Zinc acetate 280. Zinc ammonium chloride 281. Zinc borate 282. Zinc bromide 283. Zinc carbonate 284. Zinc chloride 285. Zinc cyanide 280. Zinc fluoride 287. Zinc format 9 288. Zinc hydrosulfonate 289. Zinc nitrate 290. Zinc phenolsulfonate 291. Zinc phosphide 292. Zinc silicofluoride 293. Zinc sulfate 294. Zirconium nitrate 295. Zirconium potassium flouride 296. Zirconium sulfate 297. ZirconIum tetrachloride BILLING CODE 6560-OI-M ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 335fi7 ID. NUMOER(COPY from i tem I of Form 1) lease print or type in the unshaded areas only Ferns Approved 0MB No. 158 -AO?73 FORM U.S ENVIRONMENTAL PROTECTION AGENCY APPLICATION FOR PERMIT TO DISCHARGE WASTEWATER Lu EXISTING MANUFACTURING 1 COMMERCIAL, MINING AND SILVICULTURAL OPERATIONS NPDES Consolidated Permits Program I. OUTFALL LOCATION For each outfall, list the latitude and longitude of Its location to the nearest 15 seconds and the name of the receiving water. A OUTFALL B LATITUDE C LONGITUDE NUMUER 0. RECEIVING WATER (name) (list) , ... a...ist a.e.c .. st. . .i. a.s.st. , A. Attach a line drawing showing the water flow thrcu h the facility. Indicate sources of Intake water, operationa contributing waatewater to the effluent, and treatment units labeled to correspond to tile more lIed descrIptions In Item B. Construct a water balance on tI ’s lIne drawing by Viewing average flows between Intakes, operations, treatment units, falls. If a water balance cannot be determined (ti. cerTain mining activities), provides pictorial description of the nature and amount of any I water and any collection or treatment measures . B. For cacti outfall, provide a description of: I I one tributing wastawater to the effluent, Including procese westewater, unitary wastewate,, coolIng water, and storm water runoff; (2) The ributad by each operation; and (3) The treatment received by the wastewater. Continue on additional sheets If necessary, — — -i-J-— — , I OUT- S OPERATION(S) CONTRIBUTI N f4 * ) , S. TREATMENT b. 1 ’if .i,,Ui. L DESCRIPTION ‘ a. OPERATION (list) LIST CODES . • , • EPA Fonn35 lO2C (S -BD) PAGE 1 OF 4 UNTINUEUN ------- 33568 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations :ONTINUED FROM THF FRONT’ 2 AFFECTED OUT PA LLS (list outfall numbers) C. except tor storm runoff, leaks, or spills, are any of the discharges described in Items Il.A or B intermittent or seasonal? DYES (complete (he following table) ONe (go to Section till I OUTFALL NUMOER (list) 2 OPERATION(S) - CONTRISUTING FLOW . (list) 3. FREQUENCY 4 FLOW a. DAYS PER WEEK (specify average) b MONTHS PER YEAR (specify avenge) S. FLOW RATE (iv. mgd) b TOTAL VOLUME (specify with unit.) DUR ATiON (in disys) ‘ ‘.°“ ..5 enRAGE 5. ,..Aveui. SAInT i I.DND T5I, ,. , AVUNAS E 5. .a.t.v.u ,., DAILY . . , Ill. MAXIMUM RODUCTION A Does an effluent guideline limitation promulgated by EPA under Section 304 of the Clean Water Act apply to your facility? DYES (complete Item III Rb DM0 (to to Section IV) B. Ar. the limitations in the applucebi DYES (complete Item , 1 l , 5 nt guideline expressed in terms of production (or other measure of operation)? DNO (go to Section IV) 5 SUANTITY PIN DAY b uNIT. or ucasu.. C. If you enswered “Yes’ to h represents an actual me. and units used in the aPPlicsble enJ i. ? ateiheaffectsdoutfalls_surament of your maximum level of production, expressed in the terms -F- ‘ “ t”\I/I . m. PRODUCT, MATERIAL, ETC. \‘]II/II I I T 1 øV e I ROVEMENTh A. Are you now required by any Federal, State or local authority to meet any implementation schedule for the construction, upgrading or operation of wasteS waler Treatment equipment or practices or any Other environmental programs which may affect the discharges described in this spplication? This includes. but is not limited to. permit conditions, administrative or enforcement orders, enforcement compliance schedule letters, stipulations, court orders, and grant or loan conditions. DYES (complete She following Sable) DM0 (go to Item IV.8) I. IDENTIFiCATiON OP CONDITION AGREEMENT, ETC. LAFFECTEO OUTFALLS I. SNIEF DESCRiPTION OP PROJECT S RU. SU1RED • PRO. ISCYRD 5 ND. b.SSu .C. Re esSONARGU S B. OPTIONAL You may attach additional sheets describing any additional water pollution control programs (or other environmental projects v ,sSIch may affect your duches esl you now have underway or which you plan. Indicate whether each program is now underway or planned, and indicate your actual or planned schedules for construction. DMARK “X” IF DESCRiPTiON OF ADDITIONAL CONTROL PROGRAMS a ATTACHED EPA Fesni 401U- 5 1 teess, PAGE 2 OF 4 WNIiNUL UPS FAtsL 3 ------- Federal Register f Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33569 CONTINUED FROM PAGE 2 IPA 1.0. NUMSER(cOfl rrom item I OtOflflij Ferns Approved 0MB No 158.AO 173 A, B. & C. - See Instructions before proceeding — Complete one set of tables for each outfall — Annotate the outfall number In the space provided. NOTE. Tables V.A. V 5. end VC are included on seperete sheets numbered V .1 through V4. D. Use the space below to lilt any of the pollutants listed in Table 2c-3 of the in ltructions . which you know or have reason to believe Is discharged or mey be discharged from any outfall. For awry pollutant you list, brIefly describe the reasons you believe It to be present and report any analytical data In your potsawion. I VI. POTE POLLUTANT 2 SOURCE P4 / ? NTIAI. DISCHARGES NOT C0t B( NMV4T ’ ... I POLLUTANT . 2 SOURCE r- — - - - - - I ich you do or expect that you will over the next 5 years use or manufacture A. Is any pollutant listed in Item V C a substance as an intermediate or final product or byproduc t0 9 One (tut sit such pollutants DNO (go to 1 1 c m V1 .B) B. Are your operetlons such that your rew materials, processes, or products can reasonably be expected to vary so that your dischtgas of pollutants may during the next 5 years exceed two times the maximum values reported in Item VP OvEa (complete Item IPI.C below) Dwo (go to Section V I I) C. If you answered “Yes” to Item VI•B. explain below and describe in detail the sources and expected levels of such pollutants which you anticipate will be discharged from each outfall over the next 5 years, to the best of your ability at this time Continue on additional sheets it you need more space LDA E •sclstr tAJtIl PAGE 3 OF 4 CONTINUE ON REVERSE ------- %a57O Federal Register ‘4/ Vol. 45, N6 98 / ‘19,’198O I Rules and Regulations cONTINUED FROM THE FRONT Do you have any knowledge or reason to believe that eny biological test for acute or chronic toxicity has been made on any of your discharges or on a re iving water in relation to your discharge within the last 3 years? Jves (identify the fret(s) and describe their purpoaea below) - NO (to to Section VIII) (IIIS ONTRACT ANALYSIS INFORMATION — - Ware any of the analyses reported in Item V performed bye contract laLaor jlirm? I eIyzed by, each such Iebomlo orft below) ELEPHONE POLLUTANTS ANALYZED D ES (bat the name, address, and telephone number of, and J t41 !5 [ 3 NO (go to Section IX) A NAME S ADDRESS (urea codeS no) ( hat) 1 I S — !X.CERTIFICATION — - - —- - 1 I certify under penahy of law that I have personally examined and em familiar with the informauon submitted in this application and all attachments and that, based on my inquiry of those individuals immediately re8.sonsible for obtaining the information, I believe that the in- formation is title, accurate and complete. I am aware that there are significant penalties for submitting false ,nformat,on, including the powbility of fine and imprisonment. A. NAME & OFFICIAL TITLE (type or print) 0 PHONE NO (area code & no) C SIGNATURE 0 DATE SIGNED EPA Form 3510-2C (580) PAGE 4 OF 4 ------- PLEASE PRINT OR TYPE IN THE UNSHADED AREAS ONLY. You may report tome or all of this information on separat, sheets (use the wag format) instead of camplottag theig pages. SEE INSTRUCTIONS. V. INTAKE AND EFFLUENT CHARACTERISTICS (continued Iron, p 3 of Form 2.C I. POLLUTANT a. MAXIMUM OAILY VALUE I ,, (.) MASS Ii ) (a) MASS EPA 1.0. (copy from Item 4 of Form 1) PART A . You must provide the results of at least one analysis for every pollutant in this table. Complete one table for each outfall See Instructions t MAXIMUM SI 2 EFFLUENT VALUE 4 . S .- MASS - -- .aa.,pi :onc.NTNA,,o, ;o,. p ,... .ay,c. a gioch.mlcal Osygun Demand (BOO) . . — - . b. ChwnLcal Oaiygen Demand (COD) c. Total Organic Carbon (TOC) - - - - d Total Suapandad Solids (TSS ) , • Ammonia (as N) . VALUE VALUE VALUE . . JAL I.JE Flow o Temperature VALUE VALUE VALUE (winter) VALUE JAI.UE JALUE h Tnsperetura VALUE VALUE (summer) MAXIMUM MINIMUM • pH MAXIMUM UINIMUM know u, ft eis ST ANDARD UNITS present. Mark “X’ in column 2 b for each pollutant you believe to be absent If you mark PART B - Mark X ” in column 2-a for each pollutant y column 2-a for any pollutant, you must provide the I fs ?t one analysis for that pollutant. Complete one table for each outfall. See the instructions for additional details and requirements. I.POLLUT. ANT AND CAB NO. (if available) 2MARICX . - 4. UNITS — 3. INTAKE (optional) VALUE (aP MASS No. 01 ANAL- YSES a CONCEN- TRATION ASS b M TERM VALUE (a) MASS coucr NO OF ANAL YSES a s . b_ a. MAXIMUM DAILy VALUE :::; SeNT ,0MCSNTSaTiOS (a) MASS - • Bromids (24959-67-9) — , . b Chiorins. Total Residual c. Color d Fetal Coliforra • Fluoride (16984-48-a) f NItrate— ‘ EPA Fenn 3510-2C IS-dO) PAta V-i CONTINUE ON REVERSE 0 CD CD 98 CD -A- 0 — i C ,’ z 0 to -A- 0 Os CD 0) I & to I-A to -A- C CD CD 0) 0) Os CD Co C 0) 0 0) CD c ia cia C l i erl ima - 1.1 (a) . 55 d NO.OP ANALYSES feDeral, If blank) a CONCEN- TRATION Law (a) MASS b.NO OF ANALYSES ------- V-D ..ur”• unuci, rn...,. rnurdI Z MARIt ’X 3 EFFlUENT AND . 0 MAXIMuM VAL.UE .1 LONG TERM NO. ‘ F I MAXIMUM DAILY VALUE VALUE d NO 01 ANAL- .aT •E .T M* conc.LJaa..ow (a) N*’I onca..y.ay.ow 1) MASS YSES — — 4 UNITS 5 INTAKE (optional) —. CONCEN- TRATION MASS Ac?1 MP V l I!tE no OF ANAL YSES 0 0 00flTR ATION I . ) ... Organic and - — Total — . RadIoactivity - Radium. . — ‘ . — — — , I , AlumInum, — 39-3) 429) - c , — . ‘ Total — Magnsalum, — Molybdanum, I - . — - Total — i . C!3 c l i 0. . C D t. EPA Form 3510-2C (5 -aol PAGE V-Z CONTINUE ON PAGE V-S ------- Faim Approvcd 0MB Na 158-R0173 PART C. If you are a primary industry and this outfall contains process wastewater refer to Table 2c-2 in the instructions to determine which of the GCIMS fractions you must test for. Mark X in column 2-a for all such GCIMS fractions that apply to your industry end for ALL toxic metals cyanides, and total phenols. If you are not required to mark column 2-a jrgju, ,j.,,nc ,p_.p,’ccaeswset.vateroutfelli. arid non—iegu,r.dGC/MS fractions), mark “X ’ in column 2-b for each pollutant you know or have reason to believe ii present Mark X in column 2-c for each pollutant you believe to be absent If you mark either columns 2-a or 2-b for any pollutant, you must provide the re- sults of at least one analysis for that pollutant. Note that there are seven pages to this part; please review each carefully. Complete one table (all w’en pages) for each outfall. See instructions for additional details and requirements. I. POLLUTANT I a MARK W I 3. EFFLUENT NUBER AND CAB S. MAXIMUM DAILY VALUE D. MAXI ,39 , V VALUE i.LONM VALUL NO (If w .ialigbfrj •“ :: . .? • Iii hi ——S. (• ) It) SS hi I.) YSES CONCENTUATIOY VONC• nT.nflor 0NCUNTUfliCfl METALS. CYANIDE, AW TO Lpl - NOLS tM Antimony. Tot. 1 1744 0-38-O) - 4. UNiTS • CONCEN- b MASS TRATION 5. INTAKE fopt Ie.wJJ S LONG TERM ,ioep AVERAI VALUE hi COnCUR hi S. YSES nATION 3M. Amnic. Total (744038-2) . , 3M Beryllium. Total, 7440.41 7) 4M Cadmium. Total (7440-43-9) 5M Cl romium. TOtal (7440-47-3) 6M Copper. Total (755030-a) — — — 1 eM Msrcu , Total 7M Lead. Total (7439-97-6) (7439-97-a) , 8M. Nickel. Total (7440-02-0) IOM Selenium. Total (7782-49-2) - ‘ - 11M S,lver.TOtal (7440-22-4) - 12M Thallium. Total (7440 28-0) - . ‘ 13M Zinc. Total (7440-666) I 4M Cyanide. Total (67 12-C) - . 15M Ph.nol., Total . DIOXIN - 2 3.7.8-Tat,. I chiorod,benzo P- I (1764-01 6 )! I I 1 DescRleE RESULTS ‘ONTINUED FROM PAGE 3 OF FORM 2-C EPA 1.0. NUMBER (copy From Item 1 of Fómi 1) OUTPAI.I. NUMBER I I I EPA Foam tu . ai. a680) PAGE V-S CONTINUE ON REVERSE ------- ‘ S .6- U’ z 0 0 N N 02 ‘• ‘1 FROM ThE FRONT 0 1 I. POLL.UTANTI S MAR14 AND CAS NUMBER (if ,vadabte) I • • 3 EFFLUENT . MA8IMUN DAILY VALUE b. MAXIIiflJM 3 ag VALUE C.LONG T pM ftf, f. VALUE d NO OF ANAL Canct.NTNCTIO• C CNC.t.Tna?.o. ONC.I.,N.T.Ot (•) ip e. g l’ .I..a.. YSES 4 UNITS CONCEN MASS TRATION 5 INTAKE fuptio wIi a LONG TERM ONe OF AVERAG - VALUE ANAL. ynevuon CO CC I.) Rg Y5ES GCIM$ FRACTION —VOLATILE COMPOUNDS IV Acrol.In (107-028) . ) 2V Acrylonitf us (107-131) . 3V. Ban.., .. (71-432) - 4V Big (Chioro- m.thyl) 8th., (542-88-i) — SV Brornoform (78-25-2) — — — 6V Carbon Tetr.chlorlde (56-235) ‘ - 7V ChIorob.nzsn. (10890-7) - By Chiorodi- bromont.than, (124-48-1) 9V. Chioro.than. (75-003) by 2-Crnôro- athylvinyl 8th ., (110.76-8) liv Chloroform (67-66-3) 12V Dishloro. bromom.than (75-27-4) 13V Dickloro- d .f iuOrOm.than. (75-71-8) 14V. 1.1-OIchIOro- sth.n. (75-34.3) ‘ ) . 15v i .2.Dichloro- ath ena (107-06-2) . i6V ij-Dlchtero- ethylene (75-35-4) 17V i2-D chIoro- propane (78-875) - ISV 1.2-Dichloro- propylene (542756) . 19V Ethylb.nlena (100-41 4) — - 20V Methyl Brom,d. 74 83-9) , - 2iV Methyl Chlo,,d, (7487 3) . — — ..- EPA Foam 3510.2C (6-80 ) PAGE V4 LtJlS U UISUE tJlI MME V—S ------- V.A CD CD qg. CD CD 0 CR z 0 0 CD CD 14 m ‘4 co I -I — CD CD CD CD ( 5 00 CD — CD — —. 0 CD CD Form Approved 0MB No. 158-RO 73 L11 I II.uc.,rn .I,Ir..,.,r — - I. POLLUTANT ’ a MAR11 A 3 EFFLUENT AND LAS b .e .I C Sa- 4 MAZIMUM OAILY VALUE MAXIsv,MsQ ,lr VALUE .L.ONG rp/ 1M VALUE C NO OF NUMBER ? -*:.5 1.1 ANAL- (if available) i ° ir I ‘“ ‘“ COFILLIIinaTIolil 1 ens. I’) (ii can s s VCNC..fl anT,Or flaI.C 5NTan,Iar GCIMS FRACTION —VOLATILE COMPOUNDS (cuntbwsd) 22V. Methylane ChiorId. (7549-2) 4. UNITS • CONCEN- - 5 . MASS TRATION S. INTAKE fopIeo.,gI) a UONG TERM bNooc AVERAC VALUE (I, canes.- ( vats y aaT,rn. 23V. 11,2.2-nt , .- ch loroethan• (79-3451 — — — — — . 24V. qthyl.n. (127.18.4 25V.TOluanS (19888-3) — — — 2ev. 1,2-Trans. DIchIoroethylafla (156.60.53 , 27V. 1,1. 1-Tn- ChIOrOithafla (71-85-SI — — — . 28V 1,1,2-Tv )- chIe r o .th ana _________ (79-CO-SI - 29V. Trichioro- ethylene (79-014) 30V. Trlchloro- (75-69-4) I luoromsihane - • 31V. VInyl ChlorIde (75-01-4) GCIMS FRACTION —AC 0 COMPOUNDS 1*. 2-Chloroph.no (96-574) 2A 2.4 DichIoro. phenOl ( 120-63-21 phenol (105-67-91 34 2.4-DImethyl- 4*. 4.6-DInltrO-O- Cnasol (534-62-I) GA 2,4-Olnitro- phenol (51-28-8) ‘ . 6*. 2-Nllroph.nol (88-75-5) 74 4-Nltrophenol (100-02-7) • 8*. P-ChIoro-M- Crawl (59-50-7) 9* P.ntachl ro- phenOl (87-86-5) IOA Phenol (102-95-2) — — f• 11 A 2,4.6-TrI- chlorophenol (88-06-2) - - - SPA Finn 3510-2C (RIO) - PAGE V-S CONTINUE ON REVERSE 0 2 01 ------- 0 0 . 5. I ‘T C l , C l , C l i J1 1 11t1Ct1 mu.. - I.POLLUTANTI 0 MAA AND CA8 Il .i . 1 b.. c.. NUMBER — (ila .WIable) I—! r :: ; .fl, I. MAXIMUM DAILY VALUE I i.i —a.. CCNCENTNSTIONI 3 EFFLUENT . MAAIl.fl/M3 D 4 YVALU( .l.OND T /eMffY . VALUE I . )—... I ) —... tS C liSTflflt,ON okc NTN*viOr Ll•0 AMAL 4. UNIT3 • CONCEN MASS TRATION S. INTAKE fuplionaI ) S LONG TEAM bNOOA AVERAC VALUE l ii oC• T.flTiOPi SCflhlS FRACTION COMPOUNOS . IS. Acen .phthSslS (83-32-9) 20. Ac.naphiylsn. (200 -9 5 6) 30. AnthrScSnS (120.12.7) 4L Bunildins (92-87-6) OBBun iO(.I Anthnsun. (5655-3) 60. BingO (a) PyruiM (50.32.8) • 70.3.4-B., ,..- fluor.nthsn . (205-99-2) 80. 01010 (gIst) PMYISA S (191-242) 9B.Bifll O(k) PIuorunth i nS (207-88-9) — — — , —- - 100.01. (2-CIiIoro- .thoxy) Mithans (111-9 1-1) II B. Si. (2-ChIoro- ethyl) Eth (111444) 128.01. (2-Chio,io- Isopropyl) Edsur (39638-324) — — — — — — 130. BIa(2-Ethyl- h exyl) Phthalat. (11781-7) ph.nyIPh.ny l 140. 4 -8,omo - Eth (101-55.3) — - — 150. Biltyl Bunlyl PhtIi.I.ts (85-68-7 160. 2-ChIoro- fl.pllth.IIflS (91-58-7) . . 170. 4-ChIoro- phenyl Phinyl ECho- (7005-72-3) 180. Chryionu (218.01-9) 190 Dubunlo CAts) AnthrSc.flS (53-70-3) I 200 1.2 DiehIoro- bunion. (96-50.1) 210. 1.3-Olchloro. bunion. (541 73-1 a — — - ..-. -..- , - .r ran. eoi m (5-99) PAGE V-S l.U .V in... u . n . PAGE V.? ------- P8GM PAGE V.4 Fern, Approved 0MB Ne. 758-RO 773 I •1 . C z I I EPA ID. NUMUER (com. from ilem I of Form 1) OUTFALL NUM8ER -- WIIIIIIUEU---— I.POLLUTANTI C MARKS AND CAS L ..j b.. IC. •‘ NUMBER (if .va.IobIrI 3 EFFLUENT S MAXIMUM DAILY VAlUE b. MAXIMUM VALUE .L.ONGTffpMft F?.VALIJE ANAL- I I I hi ... 1. 1 hI “ hi YSES ?IOI to..C.NT.A,SOr 4. UNITS CONCEN b. MASS TRATION 5 iNTAKE f,,pI,ona( S LONG TERM bROOF AVERAr VALUE I•I cm.c. hi —a.. TCATIRN GCIMS FRACTION -BASE/NEUTRAL COMPOUNDS (continued) ‘ 22B I .4 -O,chIerO b.nzSn. 106-46-7 238 3.3-Dlchlora b .flZIdIfl. (91-94-1) — — — . - 248. OiethyI PhthuI.t. (84-66-2) • 258. Ohn .thvl Phth.I .t . (131.11.3) — — — . — 268. OI-N-BuIyI PhtIl S Ilt. (84-74-2) — 278. 2 4-OInIVo- toIuene (121.142) 28B. 2 .B.OinItro . WIuuns (008-202) 298 Di-N-OctyI Phth .late (117.84.0) — — — - - 308. 1 2-DIphsnyI- hydrazin. (ui Azo- benzeni) 112246-7 318. FIuor.nthSn. 1208-44-0) - 4T 328 FluorsnO (86- 3-7) — . 338. HSx. ChIOrObflZSfl S (118-71-I) — — — - 348. Mm.- ch lerobutdlsn s (87-68-3) — — — ‘ 358. H.xmhloro- cyeIapsn uo n . (77.47.4) S - 368. HDx .chIorO. ethine (67.72.1) — — — — — — 378. Indeno (3.2.3-cd) Pyrens (193-39.5) 385. I,ophoron . (78-59-1) 298 N.phth .Nne (91-203) 408 Nltrobenzene (98-95-3) - 418 N-NftrO. sod in,ethy lwnin. (62-75-9) — - . 428 N-NItrO,OdI. N-Propyl.mln. (621 64-7) . 5 . — — — - EPA Form 3510 .2C (5.80) PAGE V.7 IAIII I RUE UN RE VERSE 10 C O En ------- rn POLLUTANT 1 1 In c rn’.aI. U I a MAR 11 ‘::- 1 L v :: , • 3 EFFLUENT 4. U ITS 5 INTAKE (op,sonaI 4. MAXIMUM DAILY VALUE b. MAXItfl M39 7 VALUE .LONG Y / ftVJ f. VALUE YSES • CONCEN- TRATION 5 . MASS A ERAC t I 11 SNOOP (.( YSES (ila&uIIiibfrJ 1.1 .1 t• • ,I• ; , 1 ( t• FRACTI ON — B4SEINE UTRAI. COMPOUNDS (continued) Ph.r.nthrsn. - - . - - • FRACTIO N — FE STICIDES - - - - I I - - - . ‘ G.-Endoiulfan $-Endo iIfan . Endoeulfan . - . Hupt.eItIor . - —— — . — — an IC flal I I n c ta_a II , I L I -O C li 0 EPA Fo,m 3510 .2C io ii PAGE V-S ------- CONTINUED FROM PAGE V.8 EPA ID. NUMBER (Cep (rem 11 111 1 01 Form lJ OUTFALL NUMBER Fern, Approv.d 0MB No. ?58 -A0173 1.POI.I.UTANT 1 S MANNA HUMSER (.Iw.rodablrj . . 3 EFFLUENT L MAXIMUM DAILY VALUE • MAXI VALUE .LDNS TM ?. VALUE 1.1 hI (.1 — .• YSES 4 UNITS • CONCEN- b MASS TRATION 5 INTAKE f .pSionalj A E ê 9 ° bIlOOF ‘:: — i.I YSES GCIMS FRACTION — PESTICIDES (conginued) 17?. HSPISCNIBr EpoxIda (102457-31 , ISP. PCB-1242 (53469-21-9) ISP. PCB-12 54 (1109749-1) . 20P. PCB-1221 (11104-2 5-2) 21P. PCS-1232 (11141.16-6) • 22?. PCB-1248 (12672-294) : : III f ” — (12674.11-2) — — — 25P ToxaphenS (8001-35-2) EPA Fosm 3510-SC (6-80) BILUNG CODE 5560-01.C V - S 0 . 0 0- x l 0 0: 0 0 02 I-S 02 E . C D 0 CD 0 . CD 00 — CD — 0 CD C,, C l ’ ------- 33580 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations lnstructions.—Form 3—RCRA Hazardous Waste Permit Application This form must be completed by all applicants who check e ”to Item iI—E in Form 1. General instructions Permit Application Process.—There are two parts to a RCRA permit application—Part A and Part B. Part A consists of this form and Form I of the Consolidated Permit Application. Part B requires detailed slte.speclfic information such as geology, hydrology,. and engineering data. 40 CFR 122.25 specifies the information that will be required from hazardous waste management facilities in Part B. RCRA established a procedure for obtaining “interim status” which allows existing hazardous waste-management facilities to continue their operations until a final hazardous waste permit is issued. In order to qualify for interim status, existing hazardous waste management facilities must submit Part A of the permit application to EPA within six months after the promulgation of regulations under section 3001 of RCRA (40 CFR Part 261]. In order to receive a hazardous waste permit, existing facilities must submit a complete Part B within six months after it is requested by EPA. New facilities must submit both Part A and Part B to EPA at least 180 days before physical construction is expected to commence. Operation During interim Status.—As provided in 40 CFR 122.23(b), Part A of the permit application defines the processes to be used for treatment, stora e, and disposal of hazardous wastes: the design capacity of such processes; and the specific hazardous wastes to be handled at a facility during the interim status period. Once Part A is submitted to EPA, changes in the hazardous wastes handled, changes in design capacities, changes in processes, and change8 in ownership or operational control at a facility during the interim status period may only be made in accordance with the procedures in 40 CFR 123.23(c). Changes In design capacity and changes in processes require prior EPA approval. Changes in the quantity of waste handled at a facility during interim status can be made without submitting a revised Part A provided the quantity does not exceed the design capacities of the processes specified in Part A of the permit application. Failure to furnish all information required to process a permit application is grounds for termination of interim status. Confidential Inform ation.—All information submitted in this form will be subject to public disclosure, to the extent provided by RCRA and the Freedom of Information Act, 5 U.S.C. Section 552, and EPA’s Business Confidentiality Regulations, 40 CFR Part 2 (see especially 40 CFR 2.305). Persons filing this form may make claims of confidentiality. Such claims must be clearly indicated by marking “confidential” on the specific information on the form for which confidential treatment is requested or on any attachments, and must be accompanied, at the time of filing, by a written substantiation of the claim, by answering the following questions: 1. Which portions of the information do you claim are entitled to confidential treatment? 2. For how long is confidential treatment desired for this information? 3. What measures have you taken to guard against undesired disclosure of the information to others? 4. To what extent has the information been disclosed to others, and what precautiolis have been taken in connection with that disclosure? 5. Has EPA or any other Federal agency made a pertinent confidentiality determination? If so, include a copy of such determination or reference to it, if available. 8. Will disclosure of the information be likely to result in substantial harmful effects on your competitive position? If so, what would those harmful effects be and why should they be viewed as substantial? Explain the causal - relationship between disclosure and the harmful effects. Information covered by a confidentiality claim and the above substantiation will be disclosed by EPA only to the extent and by means of the procedures set forth in 40 CFR Par 2. If no claim of confidentiality or no substantiation accompanies the information when it is submitted, EPA may make the information available to the public without further notice to the submitter. Definitions.—Terrns used in these instructions and in this form are defined in the Glossary section of these instructions. For additional definitions and procedures to use in applying for a permit for a hazardous waste management facility, refer to the regalations promulgated under Section 3005 of RCRA and published in 40 CFR Parts 122 and 124. Line by Line Instructions Completing this form. Please type or print in the unshaded areas only. Some items have small graduation marks or boxes In the fill in spaces. These marks indicate the number of characters that may be inputted into our data system. The marks are spaced at ‘/6” intervals which accommodate elite type (12 characters per inch—one space between letters). If you do not have a typewriter with lite type then please print, placing each character between the marks. Abbreviate if necessary to stay within the number of characters allowed for each item. Use one space for breaks between words, but not for punctuation marks unless the space is needed to clarify your information. item I. Existing hazardous waste - management facilities should enter their EPA Identification Number (if known). New facilities should leave this item blank. Item II. A. First Application.—If this is the first application that is being filed for the facility place an “X” in either the Existing Facility box or the New Facility box. - 1. Existing Faci/ity.—Existing facilities are: (1) Those facilities which received hazardous waste for treatment, storage, and/or disposal on or before October 21, 1976, or (2) Those facilities for which construction had commenced on or before October 21, 1976. Construction had “commenced” only if: (a) The owner or operator had obtained all necessary Federal, State, and local pre-construction approvals or permits; and (bi) A continuous physical, on-site construction program had begun (facility design or other preliminary non-physical and non-site specific preparatory activities do not constitute an on-site construction program), or (b2) The owner or operator had entered into contractual obligations (options to purchase or contracts for feasibility, engineering, and design studies do not constitute contractual obligations) which could not be - cancelled or modified without substantial loss. Generally, a loss is deemed substantial if the amount an owner or operator must pay to cancel construction agreements or stop construction exceeds 10% of the total project cost. (Note—This definition of “existing facility” 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 the conferees are considering October 30, 1980. When those amendments are enacted, EPA ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33581 will amend the definition of “existing facility.” Accordingly. EPA encourages every facility built or under construction on the promulgation date of the RCRA program regulations to notify EPA and file Part A of the permit application so that it can be quickly processed for Interim status when the change in the law takes effect.) Existing Facility Date.—If the Existing Facility box is marked, enter the date hazardous waste operations began (i.e.. the date the facility began treating, storing, or disposing of hazardous waste) or the date construction commenced. 2. New Facility.—New facilities are all facilities for which construction commenced, or will commence, after October 21, 1976. New Facility Dale—If the New Facility box is marked, enter the date that operation began or is expected to begin. B. Revised Application.—If this is a subsequent application that is being filed to amend data filed in a previous application, place an “X” in the appropriate box to indicate whether the facility has interim status or a permit. 1. Facility Has Interim Status.—Place an ,. ç, in this box if this is a revised application to make changes at a facility during the interim status period. 2. Facility Has a Permit.—Place an “X” in this box if this is a revised application to make changes at a facility for which a permit has been issued. (Note—When submitting a revised application, applicants must resubmit in their entirety each item on the application for which changes are requested. In addition, items I and IX (and item X if applicable) must be completed. It is not necessary to resubmit information for other items that will not change). Item IL !. The information in item III describes all the processes that will be used to treat, store, or dispose of hazardous waste at existing facilities during the interim status period, and at new facilities after a permit is issued. The design capacity of each process must be provided as part of the description. The design capacity of injection wells and landfills at existing facilities should be measured as the remaining, unused capacity. See the form for the detailed instructions to item Ill. Item IV. The information in item IV describes all the hazardous wastes that will be treated, stored, or disposed at existing facilities during the interim status period, and at new facilities after a permit is issued. In addition, the processes that will be used to treat, store, or dispose of each waste and the estimated annual quantity of each waste must be provided. See the form for the detailed instructions to item IV. Item V. All existing facilities must include a drawing showing the general layout of the facility during interim status. This drawing should be approximately to scale and fit in the space provided on the form. This drawing should show the following: • The property boundaries of the facility; • The areas occupied by all storage, treatment, or disposal operations that will be used during interim status; • The name of each operation. (Example.multiple hearth incinerator. drum storage area. etc.); • Areas of past storage treatment, or disposal operations; • Areas of future storage, treatment, or disposal opera lions; and • The approximate dimensions of the property boundaries and all areas See Figure 3—1 for an example of a facility drawing. New facilities do not have to complete this item. BILUNO COOE 6560-Ot-M ------- 33582 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations Continued from page 4. Fame Apow,vdOMB No. 75838004 V. FACILITY DRAWING (see page 4) EXANPLE _____ oo Pt PC-atr swNoPZ’f O FlCE T 4 WLTIP IE j N(IMEø o 9 T L Jofl t AeEA’. t i_ — - — 4•• G .vrE - ‘!‘ k - I 0 10 L———- ——‘ /5b r 02Ul 14 I”. 1 5ftoøIC L 1 ,Go.I .IS (2) I ‘ .4 . ’ ,1 - r /OOFT -S 3 a ___ 7çFr 0 c o 0 LI. 0 LII ______________________ 4. Fr I— — ——— ___i i rt4IL4ILE IIj. I I L 3ot, FT 6cALE.:I I Foo t FIGURE 3-1 EPA Fame 3510.3 (5 . 5 W PAGE 5 OF 5 ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33583 Item VI. All existing facilities must nclude photographs that clearly lelineate a//existing structures; all existing areas for storing, treating, or disposing of hazardous waste; and a/I known sites of future storage, treatment, or disposal operations. Photographs may be color or black and white, ground- level or aerial. Indicate the date the photograph was taken on the back of each photograph. Item VII. Enter the latitude and longitude of the facility in degrees, minutes, and seconds. For larger facilities, enter the latitude and longitude at the a proximate mid-point of the facility. You may use the map you provided for Item XI of Form I to determine latitude and longitude. Latilude and longitude information is also available from Regional Offices of the U.S. Department of Interior, Geological Survey; from State Agencies, such as the Department of Natural Resources; and from the National Cartographic Information Center, U.S. Geological Survey, 12202 Sunrise Valley Dr., Reston, VA. 22092. Item VIII. See the form for the instructions to item VIII. Item IX and Item X. All facility owners must sign Item IX. If the facility ill be operated by someone other than e owner, then the operator must sign m X. Federal regulations require the . . rtification to be signed as follows. (1) For a corporation, by a principal executive officer at least the level of vice president; (2) For a partnership or sole proprietorship, by a general partner or the proprietor, respectively: or (3) For a municipality, State, Federal, or other public facility, by either a principal executive officer or ranking elected official. The Resource Conservation and Recovery Act provides for severe penalties for submitting false information on this application form. Section 3008(d) of the Resource Conservation and Recovery Act provides that “Any person who knowingly makes any false statement or representation in any application, . . . shall, upon conviction be subject to a fine of not more than $25,000 for each day of violation, or to imprisonment not to exceed one year. or both.” BILUNG CODE 6510-OI-M ------- 33584 Federal Register / .Vol. 45, No. 98.1 Monday, May 19, 1980 / Rules and Regulations US ENVIRONMENTAl. PROTECTION AGENCY HAZARDOUS WASTE PERMIT APPLICATION Consoisdeted Pemi its Program (7hZ. lnforn,affoii Is rvjulred end,, Section 3005 of ISCI1A ) Place en “X” in the appropriate box in A or B below (mark on. bori only to indicate whether tins is-the first apphcetion you are sub itting for your facility or a revised application. If this II your first application and you already know your facility’s EPA LD. Number, or if this isa revised ep ion, enter your facility’s EPA 1.0. Number in Item I above. - LO ll I .LTI(vM h,L ,. •7• f..Jn.. , .,d n nld. Th d i.i 5. .. . - . Ll... . . ._ ipiece an .i Delis allis complete item s aoovei Ds . FACILITY HAS INTERIM STATUS A. PROCESS CODE — Enter the cads from the lilt of process codes below that best describes each process to u at t c,’ity. Ten lines era provided for entering codat. If more lines are needed, enter the code(a1 in the space provided. If a process will be used that ii dad in the list of codes below, then describe the process iofssg I s design capacity, In the space provided on the form (Iron , III’Cil. B. PROCESS DESIGN CAPACITY — For each code entered in column A enter the capacity of the process. I. AMOUNT - Enter the amount. 2. UNIT OF MEASURE — For each amount entered in column DI I), enter the coda from di unit measure codas below that describes the Unit of measure used. Only the units of measure that are listed below should be used. PRO- APPROPRIATE UNITS OF CESS MEASURE FOR PROCESS PROCESS CODE DESIGN CAPACITY _______________________________ ______ Treatment : TANK TO, SURFACE IMPOUNDMENT TO C INCINERATOR 703 SOt GALLONS OR LiTERS 502 GALLONS OR LITERS SO) CUCIC YARDS OR CUDiC METERS 504 GAllONS OR LITERS 075 GALLONS OR LITERS 050 ACRE-FEET ( eli. volume (hat (Use for h steal. chemical, would cover One OC S to a blolog treal,nenf depth of one fool) OR , ,oS occunfng In tank., NECTARE-METER r poundmenlaop lrsclrser. OSI ACRES OR HECTARES ‘i Oncibe (lie processes In D I I GALLONS PER DAY OR provIded, Item 111-C) LITERS PER DAY nas GALLONS OR LITERS UNIT OS Ur&EIJRE GALLONS G PER DAY V ACRE-FEET A LITERS 1 . R1P OUR 0 NECTARE-METER F CUSICYARDS V 0 PERNOUR W ACRES S CUSIC METERS C 5 N HOUR HECTARES G GALLONS PER DAY U L E PEN NOUN H EXAWLE FOR COMPLETING ITEM ill (sheen hi (1n risen 7 arid X-2b .Iowl: A facility has two storage tanks, one tank can hold 200 gallons and the other can hold 400 gallons. The facility also lies en Incinerator can burn up to 20 gallons par hour. *. PRO !$ :. C-S02 (-T03 — B. PR OCESS 600 20 .lI l.I, I CAPACITY W3 G E R L PRO D PROCESS DESIGN CAPACITY ‘I I.AMOUNT ,, 5 6 I 7 2 8 . 3 . 9 , : I •. l• .. a, • , ., . . .I0 .: . , - a. — uP S .:. I C —, I Please print or type in the unshaded areas only ....a 1... _l. s . .,.. . runm jAI EPA FOR OFFICIAL USE ONLY Form Anoroved 0MB No l58 S8OOO4 Ii EPA ID . NUMBER I I •i _ i i iii liii, iii ’ COMMENTS A.PINWI,-... D I. EXISTING FACILITY (See In.trvcelons for definition of “existing” facatly. fl CHEW rAt (. tw(gLpj# )u ,em below) Complete (lens below.) ‘ 9%f EW FACILITIES. _______________ - - . ViDE THE I TE F [ 1’YIbN SEGAN OR IS “i I ps n .y j FOR EXISTING FACILITIES. PROVIDE THE DATE (yr • mo • & day) fj on L.riAy. 1vr, mo • & day) OPERA 8 I”T”i OPERATION SEDAN OR TUE DATE CONSTRUCTION COMMENCED 1J1 EXPECTED TO SEGIN W 7S a Jfl P1 “ “ “ N 7’ L_I_J (ii . . the boxes to the lets) • Tin — floor i .piflflI - - - fl C FACILITY HAS A RCRA PERMIT Sta,eaa : CONTAINER (beeveS, deans, eta) TANK WASTE PILE SURFACE IMPOUNDMENT - D pc.t : INJECTION WELL LANDFILL PRO- APPROPRIATE UNITS OP CESS MEASURE FOR PROCESS CODE Therm., rAoflrlry LAND APPLICATION OCEAN DISPOSAL SURFACE IMPOUNDMENT LiP.IIT OS USAELIRE UNIT OF MEASURE eons GALLONS PER DAY OR LITERS PER DAY GALLONS PER DAY OR LITERS PER DAY TONS PER HOUR, METRIC TONS PER HOUR. GALLONS PER HOUR ON LITERS PER NOUN TOS GALLONS PER DAY OR LITERS PER DAY UNIT OF MEASURE UNIT OF MEASURE COnE D UP SPA Penn 3510-3(510) PAGE I OF B CONTINUE ON REVERSE ------- Federal Register / Vol. 45, No.98 I Monday, May19, 1980 ‘1 Rules and Regulations 33585 Continued from the front Ili.PROCESSESfranr ,nued/” ’- —- - —— C. SPACE FOR ADDITIONAL PROCESS CODES OR FOR DESCRIBING OTHER PROCESSES (cods ‘704”). FOR EACH PROCESS ENTERED HERE INCLUDE DESIGN CAPACITY. IV. DESCRIPTION OF HAZARDOUS “ A. EPA HAZARDOUS WASTE NUMBER. - handle hazardous wastes whIch are not listed in 40 t numbe.i tics end!or the toxic contamInants of those hazardous ._._j. B. ESTIMATED ANNUAL QUANTITY — For each listed waste entered in column A esti he tlty of that waste that . .lII be handled on en annual basis. For each alsaracteristlc or toxic conteml,wnt entered Iii column A estimate the t n tlty of all the non—tIlted waste(s that will be handled which possess that characterIstIc or contaminant. C. UNIT OF MEASURE — For each quantity entered in column B ente, the unit of measure code of measure whIch must be used end the appropriate codes are: ENEUSH UNIT OF MFAStJRE CODE METRiC UNIT OF MEASURE ‘ CODE POUNDS P KILOGRAMS K TONS T METRIC TONS M If fecitlty records use any other unit of measure for quantity, the unite last be converted rota one of the required units of measure taking Into account the appropriate density or specific gravity of the waste. .1. PROCESSES 1. PROCESS CODES: For listed huardcua waste: For each listed hazardous waste ant A select the codekt from the list of process codes contained in item Ill to indicate how the waste sell be stored, treated, end/or disposed of at t ty. For nan-listed hazardous wastes: For each characteristIc or toxIc contam At elnared In column A, select the codth) from the list of process codes contained in Item ill to indicate all the processes that will be uaed to store, treat, end/or ditpoee of all the non—listed hazardous wastes that possess that characterIstIc or toxic contaminant. Note: Four spaces are provided for enterIng codes, if more wa needed: (II Enter the fIrst three as descrIbed ebove; (2) Enter “000” In the extreme right box of Item IV.D (l), end (3) Enter ovided on page 4, the line number and the eddituonal codefs). 2. PROCESS DESCRiPTION: If a code I, not lIsted fe, ill be used, describe the prooras In the spwa provided on the form. NOTE: HAZARDOUS WASTES DESCRIBED BY MORE N NE EPA HAZARDOUS WASTE NUMBER — Hazardous wastes that can be described by more than one EPA Hazard ue Waste Number shall be dascribed fomi a follow,: 1. Select one of the EPA Hazardous Waste Numbers mid enter in column A. On the .me line complete columns B.C. and 0 by estimating the total annual quantity of the waste end describing all the procaseas to be used to treat, store, or dispose of the waste. 2. In column A of the next line enter the other EPA Hazerdow Waste Number that can be used to describe the waste. in column D C ?) on that line enter ‘induded with above” and malta no other entries on that line; 3. Repeat step 2 for each other EPA Waste Number that can be used to describe the hazerdaw waste - EXAMPLE FOR COMPLETING I C llisesswnbera X l, X ’2. k . ?, aid X4 below) — A facIlIty will treat and dispose of en estimated 900 pounds per year of chrome ehavinga from I m finishing operation. In addition, the facility will treat and dispose of three non—listed wastes. Two wastes are oonosive only end there will be ad pounds per year of each weate. The othe, waste Ia coezehe end ignitable end there will be an estimated 100 pounds per yem of that waste. Treat t I ii wi Incliw.tor and diesceal will be Ins landfill. U Z 6 X.1 A.EPA HAZARD. (ASTENO ( .iitir cod.) . K054 B.ESTIMAFEDANNUAL QUANTITY OF WASTE 900 - . CURlY ‘ D.PROCE SSES - )PMEA I. PROCESS CODES 1 . 1 1 5 1 ? ) i r ir -ri- P T03D80 , 5. pRocace DESCRIPTION (if a coda Is not antersd InDIA)) I . L . . - . -. , Ii X.2 01 00 400 P TO) D80 X-3 010 0 100 P i TO) ri D80 r -rr X-4 - 1 0 ‘ 0 0 -r r r included with above — D, enter the four—C From rr art C that descr. ,asa the therecterii ’ EPA Form 351D (B ’BO) PAGE 2 OF 5 tsur ssiiwsursPAGE3 ------- 33586 Federal Register I Vol, 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations EPAFoem351G I 54OJ PAGE3_OF S (enie, A”, 3!, C” etc. behind the 3” to ldentif photocopied page.) Cont,nued tram pegs 2. NOTE. Fhotoccpj, f’, ‘ ‘f you hav, more than 26 ivestes to list Fom, Approved 0MB Na ?5&S80004 PA,I.lj. TTT1TiT, \\ , FOR or;;; UU ONLY DESCRIPTION OF HAZARDOUS WASTES (COIUT led) A EPA C.UNIT .PROCESSES HAZARD. B. ESTIMATED ANNUAL JFMEA WASTE NO QUANTITY OF WASTE I. PROCESS CODES S. PROCESS DESCRIPTION (enter coda) coda) (enter) (lie code I. nd entered in DU)) •• 5 -. - Y ,. - - - ‘I &r .TM •Lr: tIA - .- II II •• - r ‘- -r - - - - - -. r - - - -r -r- - - I. “ - - - - T-r r , ‘ . - - -. - - r , - - r ,, - r . r .. - - - - -----____ - - - T f -r . -. - - - - r r - ________ r r - - - - - vi -. - -____ —. . -. - - - . v—i- ... - -r-,- -r- r . . - - • . - r r .. -r * - - - - - - - - -. ‘sr r—r -i-;-i— rr , . • - - 1T Tr rr ri • r r - - -. ( - - - r r - r . . - ‘ ,r -i—i- -r-r -vi- - . - i-r -r ,,- r - - r , r -r • - - r -r 1 1 - r . -. - , -. - r -r r . - - - - - ri -i-r ‘-I- b — ‘ - I. - - . f .--n CONTINUE ON REVERSE ------- Continued from the front Federal Register f Vàl. 45, No. 98 I Mànday. May 19,1980 / Rulesand Regulations E. USE THIS SPACE TO LIST ADDITIONAL PROCESS CODES FROM ITEM 5(1) ON PAGE 3. EPA i 0 NO. (enter from page 1) ‘ 911111111111 I., C All .xsting facilities must include in the space provided on page 5 a scale drawing of the facility ft Tf..j-. rtions for mere detwi). All existing facilities must include photographs (aerial or ground—level) that clearly delineate all existing structures; existing storage. treatment and disposal areas, and sites of future storage, treatment or disposal areas (see instructions for more detail). — LoNGiTuDE (degree.. minute.. & ageonda) LATiTUDE (dagree.. minute.. a second.) VII FACILITY GEOGRAPHIC LOCA ON Information”, place an “X” in the box to the left and ‘ ‘ IJ ! S ‘ ‘ - Lj. L.L1LIJ VIII. FACILITY OWNER 0 A. If the facility owner is also the facility operator as listed In S skip to Section IX below. B. If the facility owner is not the facility oper.toc listed in Section VIII on Form I,complete the following items. I 2 PHONE NO. (gireacode&no) 5. NAME OF 9ALOWNER I’’ ’’’’-’’’’ .3. I. . • •• — SI St Si S. ZiP CODE 1. aTREE? OR P.O •ox iTY R TOWN IX. OWNER CERTIFICATIO)I !Lr ’ I certify under penalty ella at ave ersonally examined and am familiar with the information wbm tted in this end all attached documems, end that based o ui f those individuals immediately responsible for obtaining the information, I believe that the - submitted information is true, u at d complete. I am aware that there ire significant penalties for submitting false information, including the possibility of fine a isonment. A. NAME (print or type) 9PERAToR CERTIFICATION _ r- 1 S SIGNATURE C. DATE SiGNED —• I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all attached documents, end that based on my Inquiry of those individuals immediately responsible for obtaining the in formation, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false in formation, including the possibility of fine and imprisonment. A NAME (pi nf or typ.) B SiGNATURE C DATE SiGNED 33587 EPA Fog 3510-3 (54 ) PAGE 4 OF 5 •tU&G ,u PAGE 5 ------- 33588 Federal Register / Vol. 45. No. 98 I Monday. May 19. 1980 / Rules and Regulations Continued from page 4 q EPA Point 3510-3 (5.80) IFR Dcc 80—14313 Filed 5—16—80.845 aml PAGE 5 OF 5 Form Approved 0MB No 758-SBOX4 BILLING CODE 6560-01-C ------- Advance Orders are now BeingAccepted for Delivery in About 6 Weeks CODE OP FEDERAL REGULATIONS - (Revised as of April 1, 1980) Title 20—Employees’ Benefits (Parts 0 to 399) Title 21—Food and Drugs (Parts 800 to 1299) Price Amount $5.50 $ 5.50 Total Order $ PLEASE DO NOT DETACH MAIL ORDER FORM To: Superintendent of Documents, Government Printing Office, Washington, D.C. 20402 Enclosed find $ — (check or money order) or charge to my Deposit Accoant No Please send me copies of: PLEASE FILL IN MAILING LABEL Name _..—- - - - - — —-- - - — —-------——-----—---- — - BELOW Street address — —------ —-- — - CityandSrats _ZWCode _ _ _ (A Cumulative checklist of CFR issuances for 1980 appears in the back of the first issue of the Federal Register each month In the ReaderAids section. In addition, a checklist of current CFR volumes, comprising a complete CFR set, appears each month in the LSA. (List of CFR Sections Affected).] FOR PROMPT SHIPMENT. PLEASE PRINT OR TYPE ADDRESS ON LAB L BELOW. INCLUDING YOUR ZIP CODE SUPERINTENDENT or DOCUMENTS POSTAGE AND FEES PAID U.S. GOVERNMENT PRiNTING oFFICE U S. GOVERNMENT PRINTING OFFiCE WASHINGTON. C c. 20402 OFFICIAL BUSINESS SPECIAL FOURTH-CLASS RATE Name — — Street address Quantity Volume To be mailed .._Iater FOR USE OFSUPT. oocs. tnrlnerd Subscription Poatage Foreign hand1ing ___ City and Stats ZiP Cods__ ------- Monday May 19, 1980 Part III Environmental Protection Agency Aazardous Waste Management System Identification and Listing .oLHa rdoui Waste ------- 33084 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules nd Regulations ENVIRONMENTAL PROTECTION AGENCY - 40 CFR Part 261 [ FRL 1471—3] Hazardous Waste Management System: Identification and Listing of Hazardous Waste AGENCY: Enviromental Protection Agency. ACTION: Final rule, interim final rule, and request for comments. SUMMARY: Subtitle C of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (“RCRA”), requires the Environmental Protection Agency (“EPA”) to promulgate regulations establishing a Federal hazardous waste management system. The keystone of Subtitle C is Section 3001, which requires EPA to identify the characteristics of and to list those solid wastes which must be mahaged as• hazardous wastes under that system. This regulation is the first phase of EPA’s implementation of Section 3001. It identifies four characteristics of hazardous waste to be used by persons handling solid waste to determine if that waste is a hazardous waste. In addition, t lists 85 process wastes as hazardous wastes and approximately 400 chemicals as hazardous wastes if they are discarded. Persons who generate, transport, treat, store or dispose of hazardous wastes identified or listed in this regulation must comply with all -.app able requirements of. Parts 122, 124, olthisqhapter and the notification requirements of ----.. Section 3010 of RCRA. In addition to identifying and listing hazardous wastes, this regulation also sets forth the criteria used by EPA to identify characteristics of hazardous wastes and to list hazardous wastes. DATES: Effective Date: These regulations, in the form published today, complete EPA’s initial rulemaking on the subjects covered and are final agency action. jhey become effective on November 19, 1980, which is six months from the date of promulgation as Section 3010 reqL Today’s promulgation begins the us schedules provided by RCRAtor filing notifications and permit applications, and for States to apply for interim authorization. Comment Dates: EPA will accept public comments on these regulations as follows: Regulation and Deadline for Submission of Comments Final regulations—technical errors only (e.g.. typographical errors, inaccurate cross references); July 18, 1980. Use, re-use, recycling and reclamation of wastes (see section IV.B. of the preamble and § 261.4(c) of the regulations); August 18, 1980. Interim final regulations ( § 261.2, 261.4(a)(1) and 261.11, Subpart D and .Appendix VIII); July 18, 1980. Public Meetings: EPA will hold three all-day public meetings each beginning at 9 a.m. on the following dates: May 30, 1980—San Francisco, California. June 2, 1980—Washington, D.C. June 6, 1980—Chicago, Illinois. ADDRESSES: Comments on interim final portions should be sent to Docket Clerk [ Docket No. 3001], Office of Solid Waste (WH—562), U.S. Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460. Public Docket: The public docket for this regulation is located in Room 2711, U.S. Environmental Protection Agency. 401 M Street, S.W., Washington, D.C., and is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, excluding holidays. Among other things, the docket contains background documents which explain, in more detail than the preamble to this regulation, the basis for many of the provisions in this regulation. Copies of Regulations: Single copies of this regulation will.be available approximately 30 days after date of publication from Ed Cox, Solid Waste Information, U.S. Environmental Protection Agency, 26 W. Saint Clair Street, Cincinnati, Ohio 45268, (513) 684— 5382. Multiple copies will be available from the Superintendent of Documents, Washington,.D.C. 20402. Pubhc Meetings: EPA will hold three all-day public meetings, each beginning at 9 a.m., to answer questions about all of its final and interim final Subtitle C regulations. The dates and locations -of these meetings are: f May 30, 1980—Sheraton PalaciHotel- 839 Market Place, San Francisco, California. June 2, 1980—HEW Auditorium, HEW North Building, 330 Independence Avenue, S.W., Washington, D.C. June 6, 1980—Palmer House Hotel, 17 East Monroe Street,Chicago, Illinois. FOR FURTHER INFORMATION CONTACT: For general information, contact Alan S. Corson, Office of Solid Waste, U.S. Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460, (202) 755—9187. For inf 6 rmation-on implementation, conta t: Region I, Dennis Huebner. Chief, Radiation, Waste Management Branch, John F. K ennedy BuIlding, Boston, Massachusetts 02203 (617) 223—5777. Region II, 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 & Walnut Streets, Philadelphia, Pennsylvania 19106, (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. Klepitsch, Jr., Chief, Waste Management Branch, 230 South Dearborn Street, Chicago, Illinois 60604, (312) 888—6148. Region VI, R. Stan Jorgensen, Acting Chief, Solid Waste Branch, 1201 Elm Street, First International Building, Dallas, Texas 75270. (214) 767—2645. Region V I I, Robert L. Morby, Chief, Hazardous Materials Branch, 324 E. 11th Street, Kansas City, Missouri 64106, (816) 374—3307. Region VIII, Lawrence P. Gazda, Chief, Waste Management Branch, 1880 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 6th Avenue, Seattle, Washington 98101, (206) 442—1260. For further information about these meetings, contact Geraldine Wyer, Public Participation Officer, Office of Solid Waste (WH—562), U.S. Environmental Protection Agency. Washington, D.C. 20460, (202) 755—9157. SUPPLEMENTARY INFORMATION: I. Introduction The improper management of hazardous waste is probably the most serious environmental problem in the United States today. EPA estimates that in 1979 the United States generated almost 60 million metric tons of hazardous waste, but that only 10 percent of this waste was managed in an environmentally sound manner. The remainder—over 50 million tons—was transported, treated, stored or disposed of in a manner which potentially threatens human health and the environment. This mismanagement has tragic consequences. EPA has on file hundredi of cases of damage to human health or the environment resulting from the ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations ________________________________________ 33085 indiscriminate dumping or otli’ (Sectiont, f Q 5 3003 and 3004). Under ljecemberl8, 1978, proposal (43 FR t!pi 3006 of Su title C, EPA may 58946). Several hundred persons ient of hazardous t o i ’a1 t ’ál ”’ testified at these hearings. In a ’ i )T” ’ ri of groundwater— hazardous waste program in lieu of the EPA received an estimated 1,000 sets of nuui ,u ui uiiiu ing water for about Federal program if they meet certain written comments on its proposed half the nations’s population—from the requirements. Section 3001 regulations. open dumping of wastes or from The centerpiece of this system is Based in part on these comments. EPA improperly operated landfills and Section 3001 of Subtitle C, which proposed a supplemental list of surface impounthnents. In many of these requires EPA to identify and list those hazardous wastes on August 22. 1979 (44 cases, groundwater supplies were so solid wastes which must be managed as FR 49402—49404). The Agency also held a badly contaminated with toxic or hazardous wastes according to the hearing on this proposal and received a cancer-causing chemicals and heavy standards established by EPA under number of vritten comments. metals that residents in the area had to Sections 3002 through 3005. This The Agency has carefully considered obtain drinking water from other identification is a two-part process. the comments received on its December sources. In other more tragic cases, First, EPA is required to develop criteria 18, 1978, and August 22, 1979, proposals, residents were not aware of the - for identifying the characteristics of as well as comments received on a contamination, continued to drink the hazardous waste and for listing number of reports, studies and other water, and suffered serious health hazardous wastes (Section 3001(a)). documents associated with its Section effects. Then, based on these criteria, EPA must 3001 rulemaking which were noticed for Groundwater pollution is not the only actually identify specific characteristics public comment after the close of the problem posed by improper hazardous of hazardous waste and list particular comment period on the proposed. waste management. EPA’s damage case hazardous wastes (Section 3001(b)). regulations,’ in developing the final and file also includes incidents where the EPA began developing regulations to interim final regulations published improper disposal of hazardous waste implement these requirements shortly today. has polluted streams, rivers, lakes and after RCRA was enacted. During 1977 other surface waters, killing aquatic life, and 1978, the Agency met extensively H. Organization of Regulations and destroying wildlife, and denuding areas with experts in hazardous waste Preamble of vegetation. In other cases, the management, States, Federal agencies, In response to comment that its vaporization of volatile organic industry, environmental groups and proposed Subtitle C regulations were materials from wastes which were other individuals and organizations to difficult to read. EPA has totally improperly disposed of has been linked discuss possible criteria, and to obtain reorganized them. Regulations to respiratory illnesses, skin diseases suggestions for characteristics and listed implementing Section 3001, which were (including skin cancer) and elevated wastes. Drafts of proposed regulations originally proposed as Subpart A of Part kvels of toxic materials in the blood were developed and widely 250 of Title 40 of the Code of Federal I tissues of humans and domestic disseminated to the public for comment. Regulations have been recodified as Part -- - stock. In still other cases, the Based on these meetings, several public 261 of Title 40. Similar changes have mismanagement of hazardous waste has hearings, written comments on its draft been made in the remainder of the resulted in fires, explosions or the regulations and information collected by Subtitle C regulations. The following generation of toxic gases which have EPA, a final proposed regulation was table shows the correlation between the killed or seriously injured workers and developed and published in the Federal• statutory provisions of Subtitle C and firemen. It is against the backdrop of such Register on December 18, 1978 (43 FR the sections of EPA’s proposed and final 58949—58968). regulations which implement those incidents that Congress enacted the EPA held five public hearings on its provisions: Resource Conservation and Recovery _____________________________________________________________________________ Ptct of 1976, as amended, 42 U.S.C. 6901 rt seq. (“RCRA” or “Act”). Although the _________________________________________________________________________ tct has several objectives (including the promotion of resource recovery and the proper management of non-hazardous solid waste), C ngress’ “overriding concern” (H.R. Rep. No. 96—1461, 96th Cong., 1st Sess. 3 (1976) (“H.R. Rep.”)) in snacting RCRA was to establish the statutory framework for a national system which would insure the proper management of hazardous waste. The recodification of EPA’s Section generation and handling process when a That framework is contained in 3001 regulations from a Subpart of Part hazardous waste must begin to be ubtitle C of the statute. It requires EPA 250 to Part 261 has necessitated some managed in accordance with EPA’s .o establish a Federal “cradle to grave” - major reorganization of those Parts 262 through 265 standards and nanagement system for hazardous regulations. Proposed § 250.10 is now explains when a hazardous waste waste, including standards for largely incorporated in Subpart A. The ceases to be a hazardous waste. Finally, enera tars of hazardous waste (Section purpose of this subpart is to tell the it establishes special requirements for 1002), standards for transporters of reader what materials are subject to the small quantity generators of hazardous iazardous waste (Section 3003), Federal hazardous waste management waste (originally contained in tandards and permit requirements for system established by Parts 282 through § 250.29(a) of EPA’s proposed generator wners and operators of facilities that 265, 122 and 124. It contains a definition standards). eat, store or dispose of hazardous of solid waste, a definition of hazardous ,.aste (Sections 3004 and 3005) and a waste, and a list of materials which are ‘See 44 FR 49277, 49278 (August 22, 1979) 44 FR rianifest system which will track the excluded from all or a portion of the 58724 (October 2.1979), 44 FR 76827 (December 28. riovement of the waste from the point of requirements in those parts. It also 1979), 45 FR 2059 (January 10.1980): 45 FR 14232 eneration to the point of disposal designates the points in the waste (March 5, i980) Statutory section - Proposed rule Final rule General provisions and sf250 12(c). 25011. 25021, 25031,25041 .. . Pail 260 definitions 3001 - 3002 § 250 10 (a) and (b), 250 12 through 250 15. 250 29(a) § 250 22 through 250 28. 250 29(b) Part 261 Pail 262 3003 § 25032 through 250 38 Part 263 3004 (permittIng standards) §52504 (a), (b). Cd), and (e). 25042 through 250 46-6 Past 264 3004 (inienm atalua §525040(c). 25046 - . - Past 265 standards) 3005 . . . Pans 122 and 124 - - Parts 122 and 124 3006 Pail 123, §5250 10(c), 250 20(b). 250 30(d) . Past 123 3010 Part 250. Subpart E . - . . 45 FR 12146 (Feb 26. 1980) ------- 33086 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and- Regulations Except for some broad issues which cut across all the Section 3001 regulations (and in some cases EPA’s Section 3002 through 3004 standards), the preamble to this regulation will generally follow the structure of the final regulations. It will discuss some of the more significant issues raised during the public comment period on EPA’s proposed regulations and the revisions made in response to those comments. Background documents which address these comments and revisions and explain the basis for these regulations in more detail are available as noted above. - HI. General Issu s A. Phasing of Regulations - Several months prior to the proposal of EPA’s Section 3001 regulations, the State of Illinois, several environmental groups, and a solid waste trade association sued the Agency under Section 7004 of RCRA to obtain a court order requiring EPA to promulgate-final regulations under Section 3001 (and other sections of the Act) by a date certain. On January 3, 1979, the court - issued an order directing EPA to issue final regulations under Section 3001 by December 31, 1979. State of Illinois v. Costle, 12 ERC 1597 (D.D.C. 1979). This order was subsequently modified to require EPA to use its best efforts to meet an April 1980, promulgation date - (Order of December 18, 1979). Given our limited resources, it has not been possible both to meet this deadline and to make final decisions on every segment of the very ambitious regulatory program which the Agency proposed on December 18, 1978, and August 22, 1979. We have tried to prioritize our efforts, insofar as possible, to deal with the most serious environmental problems first (e.g., ones that are national in scope, are not dealt with by other State or Federal regulations) and to finalize those portions of the proposed regu [ tions which must be issued if a core hazardous waste management program is to 8° into effect. For these reasons, the fin’al regulation published today defers final action on a number of aspects of the proposed regulation, including integrating the regulation of polychlorinated biphenyls (“PCBs”) under RCRA and the Toxic Substances Control Act (“TSCA”); fully regulating wastes that are used, re-used, reclaimed or recovered; and a number of proposed listed wastes. To assist States in developing hazardous waste programs under Section 3006 of RCRA and the regulated community in preparing to comply with future regulatory requirements, EPA is providing the following information on its current schedule for acting on these deferred portions: 1. PCB Integration. On February 17, 1978 (43 FR 7150) EPA issued final regulations under Section 6(e) of TSCA establishing storage, landfilling, one. EPA expects to complete the task of integrating the RCRA regulations and TSCA PCB rules by the fall of 1980, and to amend Parts 261 through 265 to bring waste PCBs into the Subtitle C system at the same time that it promulgates its final Phase II Section 3004 standards. In the interim, the handling and disposal of waste PCBs will continue to be regulated under TSCA and other EPA statutes. 2. Regulation of Wastes Which Are Used, Re-Used, Recovered or Reclaimed. As discussed in some detail in section 1V.B. of this preamble, EPA will be deferring the promulgation of standards to regulate hazardous waste recycling and reclamation operations and the actual use and re-use of hazardous waste until beginning in the fall of 1980. 3. Radioactive Wastes. In its December 18, 1978, regulation, EPA proposed to list the following radioactive materials as hazardous wastes: waste rock and overburden from uranium mining; overburden and slimes from phosphate surface mining; waste gypsum from phosphoric acid production; and slag and fluid bed prillt from elemental phosphorous productior ( 250.14(b)(2)). At the same time, it proposed to establish special management standards for these wastes Subpart B (H 250.12 and 250.14 of the in the definition of hazarthwr aste in incineration, packaging, markin proposed r 1 i J 1es the criteria Subpart A, these, i ts ic.the arding and recordkeep” . ty EPA in identifying the ‘ orners Lone lof the i dëf flazardous req di7 meni Th i”* characteristics of hazardous waste and waste management system because they to these regulations were listing particular hazardous wastes. identify which solid wastes will be May 31, 1979 (44 FR 3151 . Subpart C (proposed § 250.13) contains regulated as hazardous wastes under Because of the potential overlap the hazardous waste characteristics that system. — between the RCRA hazardous waste which EPA has identified and Subpart D The following table provides a rough management standards and the TSCA (proposed § 250.14) the particular correlation between the various PCB marking and disposal regulations, hazardous wastes which EPA has listed - provisions of EPA’s proposed and final in its proposed Section 3004 regulations. to date based on those criteria. As noted Section 3001 regulations: EPA requested comment on five alternative ways of integrating the two sets of regulations (43 FR 58993—58994). See also 43 FR 31539 (May 31, 1979). Based on the comments received, and EPA’s own review of the two sets of regulations, the Agency has made a tentative decision that the best way to regulate PCBs is to merge the TSCA PCB rules into the final RCRA regulatiois. Unfortunately, it has not been possible to complete this task to date. Both rules are lengthy and complicated, and must be carefully coordinated to avoid regulatory loopholes and disruption of the ongoing TSCA PCB program. Completing this coordination by April of this year would have required diverting personnel from the task of finalizing the RCRA hazardous waste program. EPA decided that it made little sense to focus its limited resources on revising an existing regulatory program when so much w neededto be done to develop a new Subject Proposed nile Final nile Purpose of regulations ‘ § 250 10( 5) § 261 1 General definitions . § 25011 . §1 26010.2612,2613 Definition of sold waste § 25010(b) § 2612 Definition of hazardous waste § 250 10(d)(1) § 261 3 Exclusions §1 250 10(d)(2). 250 1 1(a)(7), 250 20(c)(4) § 261 4 Small quantity generators § 250 29(a) . § 261 5 Cnlena §1 25012(a) and (b), 25014 Subpart B For identifying characteristics. § 250 12(a) . § 26110 Forlisting §125012(b).25014 §26111 Characteristics § 25013 - Subpart C lgi’.te.hility § 250 13(a) § 261 21 Corrosivity § 250 13(b) . § 261 22 Reactivity 250 13(c) . § 261 23 Toxicity 25013(d) § 261 24 Lists § 25014 Subpart 0 Nonspecific sources . § 25014(a) . § 261 31 Specific sources - ... § 250 14(b)(2). . § 261 32 Discarded chemicals § 250 14(e) . § 26133 Procedures for exempting listed § 250 15 §126020. 26022 wastes from particular generating facilities - . Petitions Revision of list and § 250 12(c) . § 26020 characteristics Equivalent methods §1 250 13(s)(1)(.). (a)(2). (b)(1)(i). (b)(l)(ii). (d)(2Xii) §126020. 26021 ------- Federal Register / Vol. 45,No. 98 I Monday, May 19, 1980 I Rules and Regulations 33087 which would regulate their disposal 250.46—2 and 250.46—4) and prevent ieir being used as fill in land used for ‘sidential development or in building products unless radon emissions and gamma radiation could be reduced to specified levels ( 250.46—3(c) and 250.46—4(b)). The purpose of these latter use restrictions was to reduce the - amount of radiation to which persons living or working in buildings constructed either on land where these wastes were deposited or with materials containing these wastes would be exposed. In February, 1980, the House of Representatives passed a bill which would amend RCRA to temporarily suspend EPA’s authority to regulate these wastes under Subtitle C except as necessary: to prevent radiation exposure which presents an unreasonable risk to human health from the use in construction or land reclamation (with or without revegetation) of solid waste from the extraction, beneficiation or processing of phosphate rock or the extraction of uranium ore (Section 3(d) of - H R. 3994) Because Congressional action on this provision is imminent (see section III.E. of this preamble), we are deferring the development of final or interim final egulations establishing a criterion for isting radioactive wastes, listing idioactive phosphate and uranium vastes, and establishing management standards for those wastes until Congress has spoken. Assuming Congress acts by the end of the summer, we would hope to promulgate regulations for radioactive wastes by the fall of 1980. This would give EPA some time to better refine its final standards and conform them to any legislative amendments, to fully respond to comments on its proposal and to coordinate its final standards with its other regulations on used, re-used, recovered and reclaimed wastes (see section IV.B.4. of this preamble). Although the use of radioactive mining wastes in residential landfill and Construction materials may pose a serious health hazard, this hazard is limited to approximately half a dozen states where these wastes are generated. Thus, in contrast with many of the wastes covered by today’s regulation, which are more ubiquitous and are frequently transported across state lines, these wastes can probably be regulated effectively at the state level pending EPA action. 4. Infectious Wastes. In its proposed regulation, EPA listed as hazardous astes infectious wastes generated by rtain departments in health care Lcilities and veterinary hospitals, by Laboratories handling etiologic agents, and by sewage treatment facilities, unless the wastes were sterilized or incinerated in accordance with the methods prescribed in Appendix VI or § 250.14(b) [ 1)(iii). - EPA received a number of comments - on this propásal, particularly the absence of an infectious waste listing criterion, the breadth of sources covered and the Agency’s proposed treatment methods. Although EPA has completed its evaluation of these comments and has developed a criterion for listing infectious wastes and refined its proposed list, it has not been able to complete the work necessary to identify the treatment methods it would allow to be used to exempt these wastes from regulation. Because logic dictates that these three parts of the regulation should be promulgated simultaneously, EPA is deferring action on infectious wastes until it can finish this last segment. It expects to complete this task by the fall of 1980. In the meantime, none of these wastes will go entirely unregulated. Many will _be subject to State disposal regulations or State laws governing hospitals and other health care facilities. Because of public health considerations, the operations of these facilities are generally closely scrutinized by State and local officials. In addition, during this interim period, these wastes will be subject to the “open dumping” prohibition under Section 4005(c) of RCRA. EPA’s regulations defining those practices which constitute “open dumping” expressly prohibit the land disposal of infectious wastes unless measures have been taken to minimize disease vectors (40 CFR 257.3—6). 5. Other Listed Wastes. The other waste streams on which EPA has deferred final action fall into four basic categories: Wastes which EPA intends to list as hazardous but for which revised background documents could not be completed in time for promulgation as part of this regulation; wastes for which EPA currently has insufficient data to make a final determination that the wastes are hazardous; wastes which available data suggests are not hazardous; and wastes which are no longer produced. It is EPA’s intent to amend this regulation to add most of the wastes included in thg first category of deferred ‘wastes by June 15, 1980 (see Appendix A) and the remainder by fall, 1980 (see Appendix B). Persons handling wastes -identified or listed in both this regulation and Appendix A may, if they desire, save themselves the expense and inconvenience of a second notification under Section 3010 of RCRA by - including Appendix A wastes in the notification required to be filed on August 18, 1980. Owners and operators of facilities which treat, store or dispose of the wastes in both categories may similarly avoid having to amend their Part A permit application (see 40 CFR 122.22) by including Appendix A wastes in their initial application. EPA will take action on the second category of deferred wastes—wastes for which EPA currently h s insufficient data to make a final listing determination—as soon as it is able to obtain the information necessary to make those decisions. To enable the Agency to gather such information without the ex porte contact restraints normally imposed on post-proposal rulemaking activities, EPA will in the future be reopening the comment period on its December 18, 1978, proposal to list these wastes. EPA does not plan on taking any further action on the final two categories of wastes. EPA does not believe, that phasing the promulgation of Section 3001 in this fashion will frustrate the objectives of the statute or unduly complicate implementation of the hazardous waste program. Sections 2002(b), 3001(c) and 7002 of the Act clearly contemplate that regulations under Section 3001 will be periodically expanded or otherwise revised. See also H.R. Rep. at 25. The preview of the content and timing of future regulations provided above should help to minimize the disruption that phased promulgation of major portions of the Section 3001 regulations might cause for the regulated community and for States which are attempting to formulate their hazardous waste programs. In light of these considerations and the pressing need to begin implementation of a national hazardous waste program as soon as possible, EPA sees no reason to postpone publication of those portions of its Section 3001 regulations which it is ready to finalize today pending a final decision on the remaining portions. Such an approach would cause an unwarranted delay in the commencement of the program. B. Interim Final Provisions’ The following portions of this regulation are being published as “interim final”regulations: the lists of hazardous wastes (Subpart D), the criteria for listing hazardous wastes ( 261.11), and the definitions of ‘solid waste” ( 261.2) and “domestic sewage” ( 261.4(a)). This means that, although these regulations are promulgated for purposes of the 90-day notification requirement under Section 3010(a), the six-month effective date under Section 3010(b) and the 90-day petition deadline under Section 7006, the public will have an additional opportunity to comment on them before they are published as “final final” regulations. The lists of hazardous wastes under Subpart D are being published in interim final form to allow the public an opportunity to comment on the ------- 33088 - Federal Register / Vol . 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations additional data EPA has collected since the close of the public comment period to support the listing of these wastes. Because EPA received comments on only approximately twenty-five percent of the wastes listed in its December 18, 1978, and August 22, 1979, proposals, the Agency does not anticipate receiving very many comments on its revised support documents or having to make major changes in the list of wastes - published today before issuing a “final final” regulation. The criteria for listing ( 261.11) have been substantially revised in response to public comment. While EPA believes that these changes are a logical outgrowth of the public comment period, it also recognizes that they would probably benefit from the fine tuning that an additional round of public comment would provide. For this reason, the Agency is also publishing § 261.11 in interim final form. EPA’s proposed definition of “solid waste” has been clarified and a new definition of “domestic sewage” has been added in response to public comment. Because of the difficulties inherent in devising workable, broadly applicable definitions of these terms, and their potential regulatory impact, we would like to obtain some additional comment on them before publishing them in final form. It is EPA’s intent to act on all interim final portions of these regulations prior to the compliance date of Parts 262 and 263 and the effective date of Parts 264 and 265. C. Data Base for Regulations EPA received a number of comments on its December 18, 1978, and August 22, 1979, proposals urging it to postpone the promulgation of final regulations under Section 3001 (and the rest of Subtitle C) until it could develop an extensive data base on hazardous waste characteristics and individual hazardous wastes, including extensive industry-specific waste studies, risk assessments, and in- depth waste analyses. In the final regulation published today, the Agency has made every attempt to base its rules on the data available on waste generation, composition and management, on the potential health and environmental hazards posed by waste constituents, and on exposure pathways. It has also exercised its best efforts to use good scientific analysis and judgment to supplement available data and to respond to comments received on its proposed regulation. In some instances, within time and budget constraints. EPA has undertaken additional waste analyses and testing. - While the acquisition of more information is often a scientific objective, Section 3001 requires the Agency to establish regulations where it has limited, but meaningful data. The broad discretion provided to EPA under the statute, the tight statutory promulgation deadlines coupled with Congress’ acknowledged recognition of the lack of available data on hazardous waste management (see H R. Rep. at 26), and the critical nature of th .hazardous waste problem (see HR. Rep.’ t 3, 4, 11, 17—23; S. Rep. No. 94—988, 94th Cong. 2d Sess. at 3, 4 (“S. Rep.”)) all suppo”I t EPA’s going forward with a regulat’bry program even though its data base and regulations are less than perfect. The courts have repeatedly sanctioned this approach under other EPA statutes where, as here, the Agency is implementing a complex program in an area “fraught with scientific uncertainty” where Congress has directed EPA “to act quickly and decisively despite the lack of exact data”. Weyerhaeuser Company v. Costle, 590 F.2d 1011, 1025—1026 [ D.C. Cir. 1978). See also Ethyl Corp. v. EPA, 541 F.2d 1, 24 (D.C. Cir. 1976); Society of Plastics Industries, Inc. v. OSHA, 509 F.2d 1301, 1308 [ 2d Cir.). cert. denied, 421 U.S. 992 [ 1975). We are committed to improving our data base for these regulations and refining them in the future. The Agency has recently instituted a multi-year, multi-million dollar program to survey specific industries, and collect waste samples and other information which will expand its data base on the hazardous waste generated by these industijes. EPA also anticipates that implementation of the Subtitle C regulations—particularly the waste testing requirements--’will, over the next several years, substantially increase the national pool of information on hazardous wastes. The petitioning procedures set forth in § 260.20 through 260.22 should provide yet another revenue of information which can be - used to improve this regulation in the future. D. Developing a National Hazardous Waste Management System EPA received a number of comments on its proposed regulations identifying particular wastes or management situations where a strict application of EPA’s proposed regulations would result in overregulation of the wastes at issue. For exampe. commenters identified several wastes which exhibited EPA’s proposed characteristics but which would not normall be thought of as hazardous, and described situations where the application of EPA’s proposed Section 3004 standards was arguably unnecessary. In the regulations promulgated today, particularly the Part 264 and 265 regulations, we have tried to address some, of these criticisms, to the extent feasible, and to achieve a better balanc between the often competing goals of regulatory specificity and broad applicability. Where we think specific standards are appropriate, we have promulgated specific standards; where more flexibility is required, we have either used broader standards or used specific standards and articulated exceptions or provided for individual variances. We have done our best to lay the groundwork for a hazardous waste management system which is workable and understandable, and which provides appropriate regulation of most hazardous wastes identified or listed in this Part. This system may not work perfectly for every waste, however. It may overregulate in some instances and underregulate in others. This is an unavoidable consequence of attempting.. to develop a national hazardous waste managment program which has to regulate thousands of wastes in literally hundreds of thousands of individual transportation, treatment, storage and disposal situtations. To develop a program which would provide precisely the right degree of environmental and health protection in each management situation would require regulations that would be either so vague that they would offer little guidance to the regulated community and would be largely unenforceable orso extensivc and so encumbered with provisions for case-by-case variances that they would be an administrative nightmare for both EPA and the hundreds of thousands of persons and facilities which are potentially subject to them. We think that the system we have promulgated today, although not perfect in all aspects, is within the scope of what Congress intended when, in 1976, it directed EPA to establish hazardous waste management standards which were “necessary to protect health and the environment” in eighteen months. We do not think that Congress expected EPA to develop a program which it could not implement or enforce or to indefinitely postpone the issuance of regulations until it could develop standards which would provide the degree of precision desired by’some commenters. Neither of these approaches would provide any health or environmental protection at all. In these regulations we have tried to strike a balance between these two extremes. Where we have failed to achieve the right balance, we suspect that this will become apparent in the early stages of implementing the ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33089 program. If there are situations where a rid application of the standards pntained in these rules would bring iout a result which was obviously not itended. we would appreciate being advised of it so that we can take appropriate action. We are prepared to react to these problems with regulatory amendments, interpretive guidance and reasonable implementation and enforcment, as appropriate. E. Pending Legislative Amendments The United States Senate and House of Representatives have each recently passed a bill to reauthorize and amend RCRA (S. 1156 and H.R. 3994). Both bills contain amendments to Section 3001 which, if enacted, would repeal or temporarily suspend EPA’s authority to regulate certain utility and energy development wastes as hazardous wastes under Subtitle C. These bills are now awaiting action by a conference committee. Because it appears likely that Congress will act before November 19, 1980 to exempt these wastes, EPA has temporarily excluded them from this regulation (see § 261.4(b)). This exclusion will be revised, if necessary, to conform to the legislation which is ultimately enacted. F. Consideration of Economic Impact of “e Development of the -Regulations In its proposed regulations, EPA pressed uncertainty on the .ppropriate role that cost considerations and economic impact should play in the development of the hazardous waste regulations: Itis also not clear to what extent RCRA allows economic impact to be taken into account, since the Act is silent on this point Thus, the Agency is faced with the problem of how to deal with these potential Impacts with little economic data and without clear Congressional guidance. (43 FR 58971) A variety of comments were received on this issue, expressing three predominant themes: (a) The Act and its legislative history require the Agency to analyze its regulations in terms of costs and benefits; (b) the legislative materials preclude any consideration of costs in the development of regulations; and. (c) -EPA must prepare an economic impact analysis. EPA has re-examined the legislative history of RCRA. Although the legislative history is sparse, it does contain sufficient indications of Congressional intent to lead the Agency to the conclusion that EPA may not consider cost burden upon industry in choosing the level of its standards. The Agency may, however, take cost insiderations in account in order to lect the most effective regulation among various alternatives that meet the statutory requirement of being “necessary to protect human health and the environment.” In addition, the Agency may prepare economic analyses to supplement its regulations as an aid to congressional, intergovernmental, or public understanding of the regulatory program. EPA disagrees with the position of several commenters that cost, or economic considerations more generally, must be a factor in EPA’s decisions under Subtitle C. There is no explicit requirement in the Act directing EPA to consider costs in the development of its intitial regulations. The singular focus of protecting human health and the environment distinguishes RCRA from the other major pollution control statutes. For example, in developing effluent guideline limitations under the Clean Water Act, the Administrator is to consider, among other things, “the total cost of the application of technology in relation to the the effluent reductions to be achieved. . .“ Section 304(b)(1)(B), 33 U.S.C. 1314(b)(1)(B). See also Section - 304(b)(2)(B). The Clean Air Act also directs that in establishing new source performance standards for stationary sources of air pollution the - Administrator should “consider the cost of achieving such emission reduction and any nonair quality health and environmental impact and energy requirements.” Section 111(a)(1)(C), 42 U.S.C. 7211(a)(1)(C). The silence of the statute itself appears especially significant because earlier drafts of the legislation had contained language which either explicitly called for considerations of cost or implicitly sanctioned such consideration. A draft bill for use by the relevant House Subcommittee would have required that hazardous waste regulations “shall be such as will minimize the risk of adverse effects on human health while taking to the greatest extent possible, into account the economic cost and benefits of achieving such standards.” Section 351(e), Subcommittee on Transportation and Commerce, Draft of the Solid Waste Utilization Act (December 8, 1975). When this bill was redrafted for introduction to the House of Representatives as H.R. 14496, this provision calling for consideration of costs and benefits had been deleted. The House bill, however, required that hazardous waste regulations “reasonably protect” human health and the environment. H.R. 14496, 94th Cong., 2d Sess., § 306 (1976). The legislative materials accompanying HR. 14496 provided no guidance on what effect, if any, the draftsmen intended the potentially moderating phrase “reasonably protect” should have on the development of regulations. In the compromise bill reconciling the differences between the Senate and House bills, the adverb “reasonably” was deleted. In the debate in the House prior to the Act’s passage there was no discussion of the effect of this deletion on the intended operation of the Act. Congress was aware that the hazardous waste regulation would impose substantial costs on the regulated community. See, e.g., H.R. Rep. at 4, 5. Rep. at 4. Despite this recognition, Congress deliberately rejected provisions that would require consideration of cost burden on industry or to moderate the Act’s environmental objectives. For these reasons, the Agency concludes that the Act prohibits it from considering such costs in the development of Subtitle C regulations as a basis for lessening the standards it considers necessary to ensure protection of human health or the environment. The Agency has, however, considered cost-effectiveness in choosing among alternatives that meet the requirements of the statute. In addition, the Administrator may refer to other considerations such as energy or environmental impacts, and implementation and enforcement burdens, For instance, the information received or developed in the course of rulemaking on the cost implications of its proposed regulations may be used by EPA to determine the relative cost- effectiveness of various methods to- implement a particular requirement. Information on economic impacts may also be useful in informing Congress about the implementation of the hazardous waste program, developing new legislative or Agency intitatives which might affect the regulatory program, and advising the public about the projected impacts of the program. See Hercules, Inc. v. Environmental Protection Agency, 598 F. zd 91, 113 (D.C.Cir. 1978). EPA has prepared an economic impact analysis on the entire Subtitle C regulatory program. This analysis provides detailed information on the projected economic impacts of these regulations. The report should facilitate public understanding of the task that the Agency is undertaking. C. Rulemaking Petitions EPA’s December 18, 1978, proposed Section 3001 regulations contained no special procedures for petition’ing the Agency to identify a new characteristic or list a new hazardous waste, or to modify or revoke an existing ------- 33090 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulatiojis characteristic or listing. They simply provided that a petition to identify a characteristic or list a solid waste as a hazardous waste would be granted if EPA found that the proposed characteristic or waste met EPA’s criteria for characteristics or listing (proposed § 250.12(c)). EPA received a number of comments urging it to establish standardized procedures for the submission and processing of petitions to modify its characteristics or list of wastes. Some of these commenters simply wanted to know how to file a petition and how EPA would act on it. Others insisted that EPA establish rulemaking procedures which complied with the Administrative Procedures Act, mistakenly thinking that because proposed § 250.12(c) did not articulate the procedures EPA would follow in acting on petitions, the Agency would grant petitions, thereby modifying its regulations,without going thropgh normal rulemaking procedures. To provide the guidance desired by the first set of commenters and to assuage the concerns of the second, we have included in Subpart C of Part 260 procedures for the submission and processing of petitions to add to, revoke or otherwise modify any of the Subtitle C hazardods waste regulations, including the hazardous waste characteristics and lists. This provision expressly requires that a tentative decision to grant a petition be made in the form of an advance notice of proposed rulemaking or a proposed regulation, thus starting the rulemaking process. EPA received a number of comments suggesting that unless EPA specified the information to be contained m petitions to amend its charactenstics or lists of hazardous wastes, petitioners would not know what type of data to submit to the Agency and that the Agency would have to expend a substantial amount of time reviewing incomplete petitions. EPA agrees that this may have been a problem with its proposed regulation. The Agency’s proposed criteria for listing were not particularly well- articulated. In addition, the background documents for characteristics and for individual wastes also failed, in some cases, to provide meaningful guidance as to the kinds of information which should be submitted in a rulemaking petition. We think we have remedied most of these deficiencies in this regulation. In response to comment, we have substantially expanded the criteria for listing, so that the factors which EPA will be using in making a listing decision are much better stated. The background documents for both the characteristics and lists have been mateñally upgraded, so that they now provide a good model for rulemaking petitions. In short, we think the regulations published today, with their supporting materials, will enable petitioners to intellig nfly frame rulemaking petitions. For this reason, EPA thinks it is probably unnecessary to establish detailed informational requirements for petitions. Moreover, developing a list of such requirements would be very difficult, because the types of data and degree of detail required will vary substantially from waste to waste and from characteristic to characteristic. IL in the future, EPA finds that most petitioners are submitting insufficient information, we will reconsider establishing more specific data requirements for these petitions. EPA recognizes that some organizations—primarily environmental groups—may not have the skills, resources, or data collection authority to fashion rulemaking petitions which contain all of the information which EPA will need to make a decision to establish a new characteristic or list a new waste. If such petitions, although incomplete, appear to have merit, EPA will attempt to obtain the supplemental - data necessary to make a tentative rulemaking determination. These - organizations should recognize, however, that this will necessarily delay any final action on their petitions. - IV. SuSpartiA.: A: Section 261.1 (Purpose, Scope and Applicability) - Although this section is la gely self- - explanatory, two points regarding the function of EPA’s Section 3001 regulation, which were apparently a source of misunderstanding during the comment period, are deserving of special attention. First, the purpose of this regulation is to identify those wastes which, because of the hazards they may pose in transportation, treatment, storage or disposal, should be subject to appropriate management requirements under Subtitle C. It does not dictate how wastes should be managed (a lthough it may identify properties of the waste which will affect management practices). Management standards and permitting requirements are imposed under Sections 3002 through 3005 and Section 3010. Second, although this regulation limits what may be regulated as a “hazardous waste” under Sections 3002 through 3005 and 3010 of RCRA, it does not limit those materials which may be cohsidered “hazardous wastes” under other sections of the statute, particularl Section 3007 (which authorizes EPA to obtain information on “hazardous waste” in order to develop regulations or enforce RCRA) and Section 7003 (which authorizes the Agency to institute civil actions to abate imminent and substantial hazards caused by “hazardous wastes”). Unlike Sections 3002 through 3004 and Section 3010, Congress did not confine the operations of Sections 3007 and 7003 to “hazardous - wastes identified or listed under this subtitle” (emphasis added). To avoid future confusion on this point, EPA has stated it explicitly in § 261.1(b). B. Section 261.2 (Definition of Solid Waste) Because no material can be a “hazardous waste” without first being a “solid waste” iSection 1004(5)), what constitutes a “solid waste” is really the definitional starting point for the hazardous waste management system. Section 1004(27) of RCRA defines a solid waste as: any garbage, refuse, sludge from a wastewater treatment plant, water supply treatment plant or air pollution control facility and other discarded material, mcluding solid, liquid, semisolid, ‘or contained gaseous mstenal resulting from industrial, commercial or mining and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows, or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act. . . or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954. . . (Section 1004(27)). In its proposed regulations, EPA adopted this definition, with its exclusions, in its entirety ( 250.11(a)(7)). In addition, it proposed to construe the term “other discarded material” in ection 1004(27) to include: (1) Any material which is not re-used— i.e., is abandoned or committed-to final disposal; (2) Any material which is re-used by being placed in or on the land or water so that the material or any constituent thereof is released into the environment; and (3) Waste oil burned as fuel. EPA noted that it would add other uses to the third category of discarded matirials if it found that it was necessary to control such uses (43 FR 58954). This definition of “other discarded material” was based on four major considerations. First, after reviewing both the language and framework of ------- Federal Register / Vol. 45, No. 98 / Mdnday, May 19, 1980 / Rules and Regulations 33091 RCRA and its legislative history, EPA ‘ncluded that Subtitle C was mtended regulate hazardous wastes respective of their end use—i.e., regardless.of whether they are committed to final disposal or intended to be used, re-used, recycled or reclaimed. Second, the Agency concluded that all hazardous wastes, regardless of their end use, may pose significant health and environmental hazards. Wastes that present a hazard in storage or transport arguably pose the same danger in storage or transport irrespective of whether they are destined for disposal or for use, re-use, recycle or reclamation. Wastes which are used or re-used by being placed on the land—e.g, chemical-bearing sludges used as fertilizers, contaminated waste oil used as a dust suppressant on roads and radioactive mining wastes used as residential land fill—may pose almost the same hazards as if they were simply dumped there. Wastes which are used. re-used, recycled or reclaimed in some other fashion, and the facilities which ecycle or reclaim them, may also create serious health or environmental problems. For example, waste drums containing hazardous residues which were used as municipal trash cans have ijured children; waste solvent clamation facilities have caused erious air pollution problems. Third, EPA decided that excluding wastes that are used, re-used, recycled or reclaLmed from the Subtitle C system would make the regulatory program largely unworkable and create a major regulatory loophole not intended by the Act. Without a manifest system (or its functional equivalent) there would be no way of assuring that wastes which were intended to be used, re-used, recycled or reclaimed were in fact delivered to their intended destination. Whether a waste was subject to Subtitle C requirements would be based primarily qn the intent of the person handling it. This would make the requirements difficult to enforce and theoretically allow wastes to move in and out of the hazardous waste management system depending on what the person then handling the waste planned to do with it. Finally, the Agency decided that, insofar as feasible, its regulations should try to achieve a workable balance between the requirement in Subtitle C that hazardods waste be properly managed and RCRA’s overall objective of promoting the use, re-use, recycling and reclamation of wastes. use, re-use, recycling and clamation of wastes not only helps ‘eserve valuable natural resources and reduces the environmental problems which stem from the exploitation of those resources, but, if properly conducted. may eliminate or reduce some of the hazards associated with other types of waste management and alleviate the strain on national disposal capacity. For this reason, EPA proposed to regulate only those uses and re-uses which could readily be expected to pose significant health and environmental hazards. EPA received a substantial number of comments on its proposed construction of the statutory definition of “solid waste” and “other discarded materials.” Virtually all commenters agreed that the terms encompassed materials which were destmed for disposal. There was substantially less consensus on EPA’s proposed regulation of used, re-used, recycled or reclaimed wastes. Some commenters argued that EPA had no authority under RCRA to regulate wastes which were used, re-used, recycled or reclaimed. Others contended that the Agency did have such authority and that comprehensive regulation of the use and recycling of hazardous waste was essential to protect public health and the environment and to make the hazardous waste management system workable. Still other commenters claimed that imposing stringent Subtitle C requirements on waste use, re-use. recycling and recovery would discourage such activities, thwarting one of the primary objectives of RCRA and further aggravating hazardous waste management problems. 1. Legal Authority to Regulate Wastes That Are Used, Re-used, ‘Recycled or Recovered. Most commenters who challenged EPA’s authority to regulate the use, re-use, recycling or reclamation of wastes based their contention on the term “other discarded material” in the statutory definition of “solid waste”. The common meaning of this term, they argued, would preclude regulating as ‘solid waste” wastes which were not intended to be “thrown away” or “abandoned” or which were of “no further use”. The United States Court of Appeals for the D.C. Circuit has-already rejected this argument in United States Brewers’ Association, Inc. v. EPA, 600 F.2d 974 (D.C. Cir. 1979), a lawsuit challenging a beverage container recycling guideline issued by EPA under Section 1008(a)(1) of RCRA. The petitioners in that proceeding contended, inter aha, that beverage containers were not “solid waste” until “discarded” and therefore that EPA had no authority under Section 1008(a)(1) to issue solid waste management guidelines requiring that beverages be sold in returnable containers, or that a minimum deposit be charged on containers (to encourage their return). The Court of Appeals gave short shrift to this contention, noting that it: flies squarely in the face of the explicit definition in the statute. Section 1008(a) directs EPA to publish “suggested guidelines for solid waste management”, which, as defined in section 1004(30) expressly includes “planning or management respecting resource recovery and resource conservation”, and “utilization of recovered resources” 1600 F. 2d at 982—983] We think the Court’s conclusion is applicable to the rest of RCRA as well. It seems highly improbable that Congress would have intended the term “solid waste” to include recycled wastes under Section 1008(a)(1) but not under Subtitle C. Indeed, RCRA and its legislative history evidence a clear Congressional intent that the terms “solid waste” and “hazardous waste” encompass wastes that are used, re- - used, recycled or recovered wherever such terms are used in the statute. For example, Section 1004 of RCRA contains numerous definitions— including the definition of “Hazardous Waste Management”, the title of Subtitle C—which would be self contradictory if the terms “solid waste” and “hazardous waste” did not include wastes which were used, re-used, recycled or recovered. See, e.g., Sections 1004(7), (18)—(24), (29) and (34). The repeated references to resource recovery and conservation in the statute would be similarly meaningless if solid wastes were never recycled, recovered or reclaimed. See, e.g., Sections 1002(c)(2) and (3), 1003(1) and (5)—(8), 2003, 4002(c)(10), 4003(5) and (6), 4008(a)(2)(A) and (d). 5001, 5002 and 6002(c)—(g). The legislative history of RCRA further supports this construction of the terms “solid waste” and “discarded material”. The report of the House Committee on Interstate and Foreign Commerce on RCRA, for example, makes it clear that the term “discarded material” is meant to expand, not limit, the common meaning of the term “solid waste” (H.R. Rep. at 2). Other references in the legislative history confirm that the term “discarded material” covers wastes which are being recycled (see, e.g., H.R. Rep. at 3, 10). Several of the damage incidents cited by Congress as justification for establishing a national hazardous waste management system resulted from recycling or re-use activities (H.R. Rep. at 17, 19 and 22).- Discussions of resource conservation and recovery activities presume the existence of a solid waste from which valuable resources can be reclaimed. ------- 33092 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations See, e.g.. HR. Rep. at 3, 4, 10, 11; S. Rep. at 2, 4. 6 (1976). In short, under RCRA solid wastes do not cease to be solid wastes simply because they are being used, re-used, recycled or reclaimed. Rather, use, re- use, recycling, resource rçcovery and reclamation are ways of managing solid wastes which, if properly conducted, can avoid environmental hazards, protect scarce land supply. and reduce the nation’s reliance on foreign energy and materials (H.R. Rep. at 4). A number of commenters suggested that Congress could riot have intended the term “solid waste” to include hazardous wastes which are used, re- used, recycled or reclaimed because the regulation of such wastes under Subtitle C would thwart RCRA’s broad resource conservation and recovery objectives. EPA does not agree. Although promoting waste re-use and recovery is certainly one of the goals of RCRA, Subtitle C does not require EPA to consider resource recovery implications in establishing hazardous waste management standards; nor does it suggest that promoting resource recovery should take precedence over assuring prop?r management of hazardous wastes. Furthermore, EPA does not agree that frustrating resource recovery is an inevitable result of requiring hazardous waste to be properly managed. As discussed below, EPA believes it may be possible to achieve a workable balance between Subtitle C’s mandate that hazardous wastes be handled in an environmentally sound manner and RCRA’s overall objective of encouraging th re-use and reclamation of wastes. However, in the event such a balance cannot be achieved, Congress’ “overriding concern”—the safe handling of hazardous wastes (H.R. Rep. at 3) and the elimination of “the last remaining loophole” in environmental regulation (H.R. Rep. at 4)—must prevail. 2. Assuring Proper Management of Hazardous Waste and Encouraging Resource Recovery. The comments which EPA received on its proposal to regulate the use, re-use, recycling and recovery of hazardous waste in many ways mirrored the competing objectives which the Agency was trying to achieve in its proposal. Many commenters argued that EPA’s approach would discourage the beneficial use and recycling of hazardous wastes by so escalating the cost of using or recycling wastes that they could no longer compete with virgin products, by increasing administrative burdens for the waste user or reclaimer, and by labeling recycling activities as another form of “hazardous waste” management. These commenters also suggested that the regulation of waste uses and reclamation would pose serious practical problems—e.g., distinguishing between wastes and commercial by-products and intermediates, issuing permits for certain types of re-uses—and that EPA’s proposed Section 3004 standards were not appropiate for many waste use and reclamation activities. Other commenters, citing the types of considerations-outlined above, applauded EPA’s regulation of the use and reclamation of hazardous wastes and urged that its proposed list of regulated waste re-uses and recycling operations be expanded to include the reclamation of waste solvents, the burning of spent catalysts and other organic wastes for energy, the use of metal-bearing sludges as fertilizers, the use of waste acids, and the re-use of contaminated drums. Still other commenters suggested that, at a minimum, wastes destined for re-use, or reclamation be properly stored and manifested. EPA does not agree with the largely unsubstantiated claims of commenters that controlling the use and recycling of hazardous waste will necessarily discourage bona fide, environmentally sound re-use and reclamation activities. The impact of EPA’s regulations on waste use and recovery will, in the Agency’s opinion, hinge almost exclusively on the relative costs of re- use versus disposal. As disposal costs increase, it seems reasonable to expect that it will become profitable or more profitable to recycle or re-use wastes (even if regulated) than to dispose of them. EPA received no data during the comment period to suggest the contrary. Commenters’ claims about the chilling effect of regulating recycle and re-use. activities also seem somewhat exaggerated. In many cases, Federal or State regulation of these activities should legitimatize, not stigmatize, them in the eyes of the public and increase the flow of wastes to well-operated facilities. Indeed. EPA received comments from several waste recyclers urging the Agency to extend Subtitle C control to their operations for these very reasons. EPA does agree, however, that its proposed Section 3004 treatment and disposal standards (as well as the standards promulgated today) may not be well-suited for regulating all hazardous waste recovery and reclamation facilities or for regulating all uses and re-uses of hazardous waste. These standards are designed primarily to minimize the health and environmental hazards posed by traditional hazardous waste treatment and disposal facilities—such as incinerators and landfills. In many cases, the health and environmental dangers associated with the use or re- use of hazardous waste or with the recycle and reclamation operations are different in nature or degree, and therefore may justify the imposition of different management standards. For example, air emissions generated by the burning of waste oil for energy recovery can probably be effectively controlled without requiring boilers to meet hazardous waste inqinerator requirements. Similarly, the leaching of metals from slag used in roadbeds can probably be successfully minimized without requiring compliance with Section 3004 landfill criteria. At the same time, EPA also concedes that its proposed Section 3001 regulations probably did not go far enough in controlling the re-use and reclamation of hazardous waste. For example, there are a number of waste recycling operations which were not covered by EPA’s proposed regulation. e.g., solvent reclamation—which have been known to cause serious health and environmental hazards and should be subject to Subtitle C regulation. The long-term storage of hazardous wastes prior to recycling is another area where there have been damage incidents (e.g., the incident at the Silresim Chemical Company) and where Subtitle C controls would appear to be essential for environmental protection. In short, EPA acknowledges that it could have done a better job in its proposed regulations of attempting to balance Subtitle C’s mandate that hazardous wastes be properly managed with RCRA’s overall objective of promoting resource recovery. As we discovered during the comment period, however, this is not an easy task, and given o her priorities in developing the regulations promulgated today, we have only been able to complete the first phase of it to date. That first phase, as well as EPA’s long term plans for regulating the use, re-use, recycling and reclamation of hazardous wastes are discussed in sections IV.B.3. and IV.B.4., respectively, of this preamble. As indicated in those sections, we believe this program, when completed, will be responsive to the two major deficiencies in E1 A’s proposed regulation identified above. 3. Regulating the Storage and Transportation of Hazardous Wastes Prior to Use, Re-use, Recycling or Reclamation; Defining “Waste “ As discussed above, EPA generally agrees ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33093 that many of its proposed (and final) treatment and disposal standards were riot particularly well-suited for iazardous waste recycling and reclamation operations or for uses and re-uses of hazardous wastes. Because of the need to resolve other, more pressing issues in the rule published today, we have not been able to formulate more appropriate standards to date. We are therefore deferring Subtitle C regulation of the actual use and re-use of hazardous wastes and hazardous waste recycling and reclamation activities until such standards can be developed (* 281.8(a)). As noted in section IV.B.4., we hope to begin issuing those standards later this year. This temporary deferral, it should be noted, is confined to bonofide “legitimate” and “beneficial” uses and recycling of hazardous wastes. Sham uses and recovery or reclamation .activities—e.g., “landfilling” or “land reclamation” which is actually disposal and burning organic wastes that have little or no heat value in industrial boilers under the guise of energy recovery—are not within its scope and, if conducted in violation of Subtitle C requirements, will be subject to enforcement under Section 3008 of RCRA. In enforcing this provision, EPA will be particularly suspicious of use, and reclamation operations which were not conducted prior to the publication of these regulations. We do not think that the types of criticisms which have been made of EPA’s proposal to apply its treatment and disposal standards to the use, re- use, recycling and reclamation of hazardous waste are applicable to those regulations which govern, waste management prior to actual use, re-use, recycling or reclamation—i.e., the standards for generators, transporters and owners and operators of storage facilities. During these stages of the waste handling process, wastes present essentially the same hazards, and should therefore require essentially the same management, irrespective-of whether they are destined for disposal or for re-use and recycling. EPA has concluded, therefore, that although we are not now prepared to issue standards regulating the actual use, re-use, recycling and reclamation of hazardous wastes, we can and should begin to control the transportation and storage of wastes prior to use, re-use, recycling and reclamation, and that the general management standards set forth in Parts 262, 263 and selected sections of Parts 264 and 285 are entirely appropriate for that purpose. The decision to regulate hazardous waste use and recycling necessitates the development of a working definition of “waste” which can appropriately distinguish between “wastes” and other materials (such as products and chemical intermediates) for purpqses of determining whether their use is subject to RCRA’s jurisdiction. Indeed, many commenters criticized EPA for failing to clearly distinguish between wastes and other materials in its proposed regulations and suggested language or conceptual approaches which they contended would draw that distinction. We have carefully reviewed these suggestions; most, however, were not very useful. For example, a number of commenters suggested that the line of demarcation between a “waste” and other materials was whether a substance had value. This definition makes no sense in the context of recycle and re-use activities, since a waste which is being re-used or recycled by definition “has value”. See H.R. Rep. at 3. Definitions keyed to whether a waste has a commercial use raise similar problems. Other commenters contended that the pIoper inquiry was whether a material was “historically reused” or was “sometimes discarded”. We think this is a much more productive line of analysis and is more consistent with the language and legislative history of RCRA and the purposes of Subtitle C. A review of both RCRA and its legislative history indicate that Congress intended to regulate four broad categories of materials as solid wastes under RCRA, and particularly Subtitle C, irrespective of their ultimate disposition. The common thread linking all these materials is that they are “sometimes discarded.” Because they are “sometimes discarded,” they not only fall within the general rubric “waste”, but also may become part of the “discarded materials disposal problem” (H.R. Rep. at 2) which Congress sought to remedy under RCRA.- Proper tracking and management of -‘these materials under Subtitle C would assure that they did not become part of this problem because they would be either properly disposed of or properly used or reclaimed. The first category of materials which are regulated as “wastes” under RCRA ,are “garbage, refuse (and) sludge” (Section 1004(27)). These materials are almost always thrown away, and it is clear from both Section 1004(27) of the statute and its legislative history (H.R. Rep. at 2—4; S. Rep. at 5) that Congress regarded them as “wastes” regardless of their intended end use. Of those materials which are not garbage, refuse or sludge, it also seems clear that any material which is intended to be or is in fact thrown away, abandon?d or destroyed is a “waste.” As noted above, there appears to be no disagreement among commenters on this point and of course it is fully supported by the legislative history of ECRA. Of those materials which do not fall into either of these two categories—i.e., materials other than garbage, refuse or sludge which are (or are intended to be) used, re-used, recycled or reclaimed—it appears that there are two types of substances which Congress intended to be regulated as “wastes” under RCRA. The first a re materials like waste solvents, paint wastes, waste acids, used drums and waste oil. These are what Congress referred to in the legislative history as “post-consumer wastes” or wastes which have “served their intended purpose” (H.R. Rep. at 2 and 9). While acknowledging that some of these post-consumer wastes might be recycled (see H.R. Rep. at 3, 10), Congress also recognized that they were sometimes discarded, and therefore were “wastes” (see H.R. Rep. at 9—10). The second are tars, residues, slags and other materials which are incidentally generated as part of a manufacturing or mining process. A major concern of Congress in enacting RCRA was to assure regulation of “the waste by-products of the nation’s manufacturing processes” (H.R. Rep. at 2) and “the by-products of the productive process” (H.R. Rep. at 9). There is nothing in the legislative history which suggests that these terms refer only to the by-products of pollution control. Indeed, even the definition of sludge in Section 1004(26A) indicates Congress was not simply concerned about wastewater treatment slurries and sludges and emission-control dusts, but also materials having “similar characteristics and effects”. The term “similar characteristics” would suggest that such materials not only contain similar types of substances but, like pollution control sludges and-dusts, are also incidentally produced as a result of industrial processes; the term “similar effects” implies that such materials, like wastewater and emission control sludges, are also sometimes discarded in ways that pose environmental problems. EPA has incorporated these concepts into a definition of “solid waste” in § 261.2. This term is defined to include “garbage”, “refuse”, “sludge” and “other waste material” ( 261.2(a)). “Other waste material” is in turn defined as (i) materials which are discarded (or stored or accumulated for that purpose), (ii) materials which have served their original intended purpose and are sometimes discarded and (iii) materials which are incidentally generated during ------- 33094 Federal Register I Vol. 45, No: 98 I Monday, May 19, 1980 I Rules and Regulations manufacturing or mining operations and are sometimes discarded ( 281.2(b)). This latter category of materials expressly excludes primary products and product intermediates ( 281.2(d)). We are fairly confident that this definition will properly differentiate between “wastes” and other material with respect to those particular solid wastes that have been listed as hazardous wastes in Subpart D. In developing Subpart D, EPA has been careful to list only those materials that are either sludges, used materials which are typically discarded (e.g., spent solvents) or manufacturing by-products which are typically discarded (e.g., distillation residues). We have tried to avoid listing materials that are always used for manufacturing other products, because we believe that those are actually product intermediates, not wastes. Given the complexity of many manufacturing operations, however, it is,, possible that we might have erred in a few cases and we urge the public to bring these to our attention. We are somewhat less confident that our definition of solid waste, particularly its inclusion of used materials and by-products, will work for all the materials which might exhibit the Subtitle C characteristics. For this reason, we are at the present time confining our regulation of the storage - and transportation of wastes prior to use, re-use, recycling and reclamation to sludges, wastes listed in Subpart D and waste mixtures containing wastes listed in Subpart D ( 261.8(b)). As discussed above, we are fairly sure that all these materials are “wastes” whose use, re- use, recycling and reclamation is subject to jurisdiction under RCRA. As noted in Section Ill.B., the definition of “solid waste” is being issued as an interim final regulation. We a e expressly soliciting comment on whether its application to unlisted materials (as well as listed wastes) leads to absurd results, and, if so, what these situations are and how they might be remedied by specific revisions to § 261.2. 4. Regulating the Actual Use, Re-Use, Recycling and Reclamation of Hazardous Wastes. One approach to regulating the use, re-use, recycling and reclamation of hazardous wastes which a number of commenters suggested and which EPA is considering very seriously is waste-specific, use-specific management standards. This approach would help avoid the problems, discussed above, of attempting to apply standards which are designed to deal with traditional waste disposal and treatment operations, such as landfills, to re-use and recycle activities. EPA intends to begin issuing such standards in the fall of 1980. In some cases, these standards may require full or partial compliance with existing Subtitle C requirements; in others, they may include a special set of requirements (to be established in Part 266) which have been developed for a particular hazardous waste use or recovery operation. Using this regulatory approach, we believe we can not only better tailor Subtitle C management standards to the health and environmental hazards posed by use and recycling activities but also achieve a better balance between RCRA’s dual goals of protecting human health and the environment and promoting resource conservation and recovery. In the fall of 1980, we expect to start dealing with the following hazardous waste use and recovery operations: Waste Use or Recovery Spent sohents bated in Redamation SubpartD Radioactive uranium mining Bumingasafuet Land redamation and phosphate mining and Use in building products processing wastes Wasteod Roadoilingandusernother land applications Braning as a fuel Redaiming and re-retining Residues from the production Burning as a fuel of chlorinated hydrocarbons These operations were identified by commenters as being among those which posed the most serious potential health or environmental hazards and/or were the most ubiquitous. EPA agrees, and therefore will begin establishing standards for these activities first. At a later date, possibly by the fall of 1981, we intend to address the re-use and recycling of other hazardous wastes, including, but not limited to the following: Waste Use or Recovery Residues from the production of Burning as a fuel organic chemicals listed in Sub- pail 0 (other than chlonnated hydrocarbons) Activated carbon used to treat Regeneration hazardous wastes Wastewater and air emission Fertilizers and soil treatment sludges listed in Sub- conditioners part D Othar uses on the land Eventually, EPA hopes to regulate the use, re-use, recycling and reclamation of all hazardous wastes listed in Subpart D which are known to be used, ru-used or recycled. Our plans for extending regulatory coverage to unlisted hazardous wastes are less certain at this time because we do not have a good inventory of these wastes. As data are collected through the Section 3010 notification and annual reporting under Parts 262, 264 and 265, we hope to develop a more specific plan for regulating the use and recycling of thest wastes. EPA is anxious to obtain public comment on this approach. We specifically invite comments on the following questions: 1. Are there other hazardous wastes, particularly wastes listed in Subpart D, that should be placed on the above lists and given priority? 2. Are the above-listed wastes used or recycled in other ways that require regulation? If so, what types of regulatory controls would be appropriate? 3. Is there any reason not to prohibit the land disposal of spent solvents listed in Subpart D and require’ that they be reclaimed or destroyed? Is it necessary to manifest these wastes to assure that they are delivered to reclamation or treatment facilities? Can such facilities - be effectively regulated by rule—i.e., without individual permits? - 4. Can the radiation hazards posed by radioactive mining wastes and phosphate mining and processing wastes be adequately controlled by (a) prohibiting the use of these wastes in residential construction and (b) imposing a few simple requirements on the use of these wastes as fill for land where habitable structures might be built? 5. Can facilities which burn waste oil • as a fuel or reclaim or refine waste oil be adequately regulated by rule—i.e., without individual permits? Is there any reason not to prohibit the use of waste oil for road oiling, dust suppression and other land (and water) applications? 6. Should full Subtitle C standards be applied to the dse, re-use, recycling and reclamation of residues from the production of chlorinated hydrocarbons? From the production of other organic chemicals? If not, for what residues and uses should special standards be applied and vhat should those stahdards be? 7. Should full Subtitle C standards be applied to the regeneration of activated carbon? If not, what standards should be applied? 8. Can sites where waste treatment sludges are used as fertilizers, as soil conditioners or in other land applications be effectively regulated by rule—i.e., without individual permits? In each of the foregoing areas of inquiry, EPA would appreciate the submission of any relevant facts and data. Unsubstantiated opinions are generally not very helpful to us in coming to grips with these types of issues. On the other hand, information on the quantity of waste which is used ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations • recycled, management practices, ivironmental emissions that attend use recycling, health and environmental _.Tects resulting from use and recycling and other specific data are very useful. We also invite commenters to submit specific proposed standards or suggestions for how standards might be developed. For example, where wastes might be burned as a supplemental fuel in industrial boilers, proposals on fuel ratios, burning temperatures, emission control requirements and residue disposal requirements would be useful.’ Obviously, the more specific and constructive the suggestions, the more helpful they will be in our rulemaking. C. Section 261.3 (Definition of Hazardous Waste) This section is a new provision which does not have a direct counterpart in the proposed regulations. It has been added for purposes of clarification and in response to questions raised during the comment period concerning waste mixtures and when hazardous wastes become subject to and cease to be subject to the Subtitle C hazardous waste management system. If a material is a hazardous waste within the meaning of this section it must be managed in accordance with 1 PA’s Part 262 through 265 standards md its Part 122 through 124 permitting equirements unless covered by one of the exclusions in those regulations or one of the Part 261 special management provisions ( 261.5 and 261.6). 1. What is a Hazardous Waste? Paragraph (a) of this section defines what a hazardous waste is. It provides that a solid waste is a hazardous waste if it is not excluded under § 261.4(b) and it either (1) is listed as a hazardous waste in Subpart D. (2)is a waste mixture containing one or more hazardous wastes listed in Subpart D or (3) exhibits one or more characteristics of hazardous waste identified in Subpart C. A listed waste or a solid waste mixture containing a listed waste which is generated by a particular facility may be excluded under the rulemaking procedures prescribed in § 260.20 and 260.22 (see section VlI1.C., below). In that event, it will be considered a - hazardous waste only if it exhibits one or more of the characteristics. - Except for waste mixtures, all these provisions were contained in EPA’s December 18, 1978 proposal (see § 250.10 (b) and (d)(2], 250.13 and 250.14). The waste mixtures provision is a clarification which has been added in response to inquirie s about whether riixtures of hazardous and Lonhazardous wastes would be subject o Subtitle C requirements. This is a very real issue in real-world waste management, since many hazardous wastes are mixed with non-hazardous wastes or other hazardous wastes during storage, treatment, or disposal. Although it was not expressly stated in the proposed regulation, EPA intended waste mixtures containing listed hazardous wastes to be considered a hazardous waste and managed accordingly. Without such a rule, generators could evade Subtitle C requirements simply by commingling listed wastes with nonhazardous solid waste. Most of these waste mixtures would not be caught by the Subpart C characteristics because they would contain wastes which were listed for reasons other than that they exhibit the characteristics (e.g., they contain carcinogens, mutagens or toxic organic materials). Obviously, this would leave a major loophole in the Subtitle C management system and create inconsistencies in how wastes must be managed under that system. EPA recognizes that designating all waste mixtures containing listed wastes as hazardous wastes under Subtitle C may create some inequities. For example, this approach may result in some waste mixtures which contain only very small amounts of listed hazardous wastes or which commingle waste in a way which renders them norihazardous (e.g., neutralization) having to be managed under Subtitle C. We have tried to address this problem by establishing provisions for amending this paragraph to exclude waste mixtures produced by individual facilities, if they can show that the mixture (or each constituent listed hazardous waste) is not hazardous, based on the criteria for which the consistuent hazardous wastes were listed. Because this is a rulemaking procedure, it will, as a practical matter, only be useful for facilities which - routinely mix wastes in relatively constant proportions With a regulated community potentially numbering in the hundreds of thousands, we simply do not have the resources to process petitions for exempting “one-shot” waste mixtures. Moreover, in most of these one-time cases, it seems likely that the burden of having to manage a waste mixture as a hazardous ‘waste could be easily avoided by carefully segregating hazardous and non-hazardous waste. We know of no other effective regulatory mechanism for dealing with waste mixtures containir g listed hazardous wastes. Because the potential combinations of listed wastes and other wastes are infinite, we have been unable to devise any workable, broadly 33095 applicable formula which would distinguish between those waste mixtures which are and are not hazardous. If any members of the public have suggestions for other approaches, we would appreciate having them brought to our attention for future rulemaking. - Waste mixtures containing only wastes which meet the characteristics are treated just like any other solid waste i.e., they will be considered hazardous only if they exhibit the characteristics. EPA recognizes that this may not be an altogether satisfactory regulatory approach. While it would no doubt encourage some desirable mixing of wastes, it would also allow some wastes (principally wastes caught by EPA’s extraction procedure) to escape regulation merely by being mixed with other wastes or other materials. We know of no solution to this problem which does not create major inconsistencies in the way wastes are determined to be hazardous under Subpart C of this regulation Again, if the public has suggestions for other ways of dealing with this issue, we would like to receive them. 2. When Does a Waste Become a Hazardous Waste?Paragraph (b) provides three simple rules for determining when a solid waste becomes a hazardous waste and therefore must be managed under Subtitle C. It has been provided in response to comment requesting clarification on this issue. Paragraph (b) states that a solid waste which is a hazardous waste because it is listed in Subpart D must begin to be managed as a hazardous waste when it first meets the Subpart D listing description. Most of the hazardous wastes listed in § § 261.31 and 261 32 of Subpart D are process residues, emission control dusts, or wastewater treatment sludges, and the point in time when they are created is generally well- defined. For those used materials which are listed as hazardous wastes in those sections or § 261.33 (e.g, spent solvents), the point at which they meet the listing description is somewhat less well- defined, but generally occurs when their intended use has ceased, artd they begin to be accumulated or stored for disposal, re-use or reclamation. In the case of a waste mixture containing a listed hazardous waste, paragraph (b) requires that the waste mixture be managed as a hazardous waste as soon as the listed waste is added to it. The listed waste, of course. must be handled as a hazardous waste prior to that time. Finally, paragraph (b) provides that a solid waste is a hazardous waste - ------- 33096 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations whenever it exhibits one or more of the characteristics. As a practical matter, this means that persons handling solid wastes must determin’é whether they meet the characteristics whenever the nianagement of the solid wastes would potentially be subject to EPA’s Part 262 through 265 regulations. The following examples illustrate how this provision would operate in practice: • The ABC Company stores waste acid on-site in containers prior to transport off-site for disposal. The company must determine whether the acid meets Subpart C characteristics when it is poured into the containers. • The DEF Company pipes waste acid into a tank, where it is neutralized by adding lime. The company must determine whether the acid meets Subpart C characteristics when it enters the neutralization tank. The neutralization operation is a treatment process. • The GHI Company pipes waste acid into a tank truck for transport to an off- site treatment facility. The company must determine whether the acid meets Subpart C characteristics when it enters the tank truck. • The JKL Company produces a wastewater which is piped into a surface impoundment, for the purposes of treatment prior to point-source discharge into surface waters. During treatment a sludge forms. This sludge is periodically dredged from the impoundment and disposed of. The company must determine (1) whether the wastewater meets Subpart C characteristics when it enters the impoundment and (2) whether the sludge meets Subpart C characteristics when it begins to accumulate on the - bottom of the impoundment. In drafting paragraph (b), EPA has attempted to cover the, most common types of waste generation and management scenarios. The Agency recognizes, however, that some companies may generate and handle wastes in ways not contemplated by EPA and for which a strict application of paragraph (b) would make no sense. We would appreciate having those instances brought to our attention so that we can decide whether additional rulemaking or issuing guidance is appropriate for dealing with these situations. 3. When Does a Hazardous Waste Cease to be a Hazardous Waste? Paragraphs (c) and (d) of this section explain when a hazardous waste ceases to be a hazardous waste and therefore is no longer subject to Subtitle C requirements. These are new provisions which have been added both in response to comment and as a logical outgrowth of paragraph (b). Paragraph (c) provides that a hazardous waste remains a hazardous waste unless and until (1) it does not exhibit any of the characteristics identified in Subpart C and (2) where the waste is listed in Subpart D (or is a mixture containing a waste listed in Subpart D), the waste (or each of its constitutent listed wastes) is also excluded from paragraph (c) under the rulemaking procedures outlined in § § 260.20 and 260.22. As a practical matter, this means that facilities which store, dispose of or treat hazardous waste must be considered hazardous waste management facilities for as long as they continue to contain hazardous waste and that any wastes removed from such facilities—including spills, discharges or leaks—must be managed as hazardous wastes. - EPA believes this is a very reasonable’ and rational rule. Wastes are typically stored for relatively short periods of time. Although solids in the waste may settle and the volume of the waste may be reduced by evaporation during this period, major chemical or biological changes affecting the hazardous character of the waste are unlikely to occur. Hazardous wastes which are disposed of in a landfill are more likely to undergo change (principally through leaching and anaerobic degradation). but only very slowly and over a long period of time. Hazardous wastes placed in treatment facilities (including incinerators, surface impoundments and land treatment facilities) will, by definition, change character. However, treatment does not necessarily “render [ a] waste nonhazardous” (Section 1004(34)). It may only make it “amenable for recovery, amenable for storage or reduced in volume”; or it may only eliminate one of several hazardous properties. Moreover, even in those cases where treatment does ultimately render a waste “nonhazardous”, the waste will generally have been hazardous during part or all of the treatment process. Paragraph (c) establishes a similar rule with respect to solid wastes generated by storage, disposal and treatment—including leachate and treatment residues such as sludges and incinerator ash. Here, too, it is reasonable to assume that these wastes, which are derived from hazardous wastes, are themselves hazardous. Leachate is produced by the percolation of liquid through wastes; it typically contains solubilized heavy metals and organic materials and is virtually always highly toxic. Treatment residues, by definition, contain waste constituents which were removed during treatment or which were not completel-- destroyed by treatment. Sludges from wastewater treatment typically contaii concentrated amounts of the toxic substances which were in the wastewater. Ash from the incineration of hazardous wastes often contains heavy metals and, if combustion is not complete, undestroyed toxic organic materials. This is the best regulatory approach we can devise at this time for dealing with solid wastes generated by hazardous waste management facilities. We are not now in a position to prescribe waste-specific treatment standards which would identify those processes which do and do not render wastes or treatment residues nonhazardous. To list treatment residues on case-by-case basis would be an enormous job, and one which we think, given the reasons outlined above, is unnecessary. This approach obviously is not without deficiencies. For example, one effect of treating wastes containing synthetic organic materials may be to create new hazardous constituents in the waste or treatment residue. This regulation obviously does not deal with those new constituents. It also does not cover run-off from hazardous waste facilities on the theory that the water ir precipitation run-off in many cases ma not have had sufficient contact with th waste to solubilize waste constituents. (Of course if collected, run-off would be a solid waste and, if it exhibited any of the characteristics, would have to be managed as a hazardous waste). For purposes of future rulemaking, we would be interested in any suggestions the public has for dealing with these issues. D. Section 261.4 (Exclusions) EPA’s proposed Sechàn 3001 regulations identified a number of wastes which would not be subject.to Subtitle C requirements because they were either excluded from the statutory definition of solid waste ( 250.11(a)(7)), not intended by Congress to be regulated under Subtitle C ( 250.10(d)(2] (i) and (ii)), or subject to regulation under other EPA statutes ( 250.10(d)(2)(iii)). - EPA received a number of comment on these proposed exclusions. Some commenters simply urged EPA to clarify which wastes were covered by each of the exclusions. Others challenged EPA’s justification for some of its proposed exclusions. Still others contended that additional wastes should be exempted from regulation based on legislative history or an alleged lack of demonstrated harm to human health or the environment. - ------- Monday May 19, 1980 Environmental Protection Agency Hazardous Waste and Consolidated Permit Regulations ------- 5—19—80 45—No. 98 DOK 2: GES 063—33285 Book 2 of 3 Books Monday, May 19, 1980 ENVIRONMENTAL PROTECTION AGENCY Hazardous Waste Management System 33066 Part ii Hazardous Waste Management System; General 33084 Part ill identification and Listing of Hazardous Waste 33136 Part IV Proposal To Modify 40 CFR Part 261— Hazardous Waste Usts 33140 PartV Standards Applicable to Generators of Hazardous Waste 33150 Part Vi Standards Applicable to Transporters of Hazardous Waste 33154 Part Vii Standards and interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposai Facilities 33260 Part VIII Proposal To Modify 40 CFR Part 265— Subpart H—Financial Requirements 33280 Part IX Proposal To Modify 40 CFR Part 265— Subpart R—Underground Injection ------- Monday May 19, 1980 Part II Environmental Protection Agency Hazardous Waste Management System: General ------- 33066 Federal Register I Vol. 45, No.- 98 / Monday, May 19, 1980 / Rules and Regulations - ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 260 IFRL 1395-7] Hazardous Waste Management System: General AGENCY: Environmental Protection Agency. ACTION: Revisions to final rule and interim final rule and request for comments. SUMMARY: Subtitle C of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (RCRA), directs the Environment l Protection Agency (EPA) to promulgate regulations to protect human health and the environment from the improper management of hazardous waste. The first phase of EPA’s regulations implementing this directive are contained in Parts 262 and 263 of this chapter (which were promulgated on February 26, 1980) and Parts 261, 264, 265, 122, 123, and 124 of this chapter (which are being promulgated today). This regulation (Part 260) sets forth definitions of words and phrases which appear in Parts 261 through 265 and contains provisions which are generally applicable to all those regulations. It was originally published on February 26, 1980, concurrent with the promulgation of EPA’s Part 262 and 263 regulations. It is now being amended to add new provisions required by today’s publication of Parts 261, 264 and 265 and to revise one of the definitions published in February. DATES: Effective date: November 19, 1980. Comment date: For the interim final portions of this regulation, public comments will be accepted until July 18, 1980. ADDRESSES: Comments on interim final portions should be sent to Docket Clerk [ Docket No. 30001, Office of Solid Waste (WH—562), U S. Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460. The public docket for this regulation is located in Room 2711 of the above address, and is available for viewing from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays. Single copies of these regulations will be available approximately 30 days after publication from Ed Cox, Solid Waste Information, U.S. Environmental Protection Agency, 26 West St. Clair Street. Cincinnati, Ohio 45268 (513) 684— 5362. Multiple copies will be available from the Superintendent of Documents, Washington, D.C. 20402. For information on the implementation of these regulations, contact the EPA Regional Offices below: Region I—Dennis Huebner, Chief, Waste Management Branch, John F. Kennedy Building, Boston, Massachusetts.02203 (617) 223—5777; Region LI—Dr. Ernest Regna, Chief, Solid Waste Branch, 26 Federal Plaza, New York, New York 10007 (212) 264—0504/ 5; Region Ill—Robert L. Allen, Chief, Hazardous Materials Branch, 6th and Walnut Streets, Philadelphia, Pennsylvania 19106 (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. Klepitsch, Jr., Chief, Waste Management Branch, 230 South Dearborn Street, Chicago, Illinois 60604 (312) 886—6148. Region VI—R. Stan Jorgensen. Acting Chief, Solid Waste Branch, 1201 Elm Street. First International Building, Dallas, Texas 75270 (214) 767—2645 Region VU—Robert L. Morby, Chief, Hazardous Materials Branch, 324 E. 11th Street, Kansas City, Missouri 64106 (816) 374—3307 Region VIII—Lawrence P. Gazda, 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 6th Avenue, Seattle, Washington 98101 (206) 442—1260 - FOR FURTHER INFORMATION CONTACT: John P. Lehman, Office of Solid Waste (WH-565), U.S. Environmental Protection Agency, 401 M Street, SW., - Washington D.C. 20460 (202) 755—9185. SUPPLEMENTARY INFORMATION: - I. Authority This regulation is 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 (RCRA), 42 U.S.C. 6905, 6912(a), 6921 through 6927, 6930, and 6974. II Background Subtitle C of RCRA establishes a Federal program to provide comprehensive regulation of hazardous waste. When fully implemented, this program will provide “cradle-to-grave” regulation of hazardous waste. Section 3001 of Subtitle C directs EPA to identify the characteristics of and to list those hazardous wastes which are subject to regulation under Subtitle C. Sections 3002 and 3003 require EPA to establish standards for generators and transporters of hazardous waste which will ensure proper recordkeeping and reporting, the use of a manifest system• to track shipments of hazardous waste, the use of proper labels and containers, and the delivery of the waste to properly permitted treatment, storage, and disposal facilities. To ensure that these facilities are designed, constructed, and operated in a manner which protects human health and the environment, Section 3004 of RCRA directs EPA to promulgate technical, administrative, monitoring, and financial standards for them. These independently enforceable standards will be used by EPA to issue permits to owners and operators of facilities under Section 3005. For those States interested in administering the - RCRA program instead of EPA, Section 3006 requires the Agency to issue guidelines under which States may seek authorization to carry out the program. Finally, under Section 3010, all persons engaging in activities subject to control under Sections 3002 through 3004 above must notify EPA or States having authorized RCRA hazardous waste programs. Early this year, EPA began issuing the regulations which comprise the Subtitle C hazardous waste management system. On February 26, 1980, it promulgated standards for generators and transporters of hazardous waste under Sections 3002 and 3003 of RCRA, respectively (Parts 262 and 263),and issued a public notice establishing procedures for filing a,notice of hazardous waste activity under Section 3010. Today EPA is publishing permit procedures and guidelines for the approval of State hazardous waste programs under Sections 3005 and 3006, respectively (Parts 122, 123, and 124), and the first phase of its Section 3001 hazardous waste list and characteristics and Section 3004 facility standards (Parts 261, 264, and 265). As discussed in the preambles to those two latter regulations, EPA expects to be amending its Sections 3001 and 3004 regulations later this year to bring ‘ additional wastes into the hazardous waste management system and to add additional facility standards. Table I below, shows where each of these regulations appears in the Federal Register. ------- Federal Register / Vol. 45, No. 98 / Monday; May 19, 1980 / Rules and Regulations 33067 The purpose of this regulation (Part 260) is to consolidate in one place a number of provisions which are applicable to all the Part 261 through 265 regulations. Subpart A contains rules concerning the designation and handling of confidential information and rules of grammatical construction which are generally applicable to Parts 261 through 265. Subpart B contains definitions of key. words and phrases which are used in those Parts: Subpart C outlines the general procedures which EPA will follow in acting oh petitions to amend Parts 260 through 265 and special procedures applicable to petitions for the approval of equivalent testing and analytical methods and petitions to amend Part 261. Finally, Appendix I contains a “road map” to the Subtitle C regulations which is designed to acquaint persons unfamiliar with EPA’s Subtitle C regulations with the most important regulatory provisions in Parts O ) through 265 and Parts 122 through I. (Note that Appendix I contains dance, not regulations. If any part-of appendix is inconsistent with the regulations, the regulations should be _______ considered controlling.) III. Subpart A date 1. Section 260.1 (Purpose, scope, and applicability). This section explains the 5119180 purpose of Part 260 and outlines the Part II - contents of the remaining sections. It is largely self-explanatory. 2. Section 260.2 (A vailabihty of 5/19/80 information; confidentiality of art information). The Agency expressed its Part v basic stance on confidentiality in , § 250.27 of the proposed Section 3002 ps t vi regulations, which stated that all information provided in connection with the requirements of RCRA must be made available to any person, as authorized by Section 3007(b) of RCRA, the Freedom of Information Act (FOIA, 5 U.S.C. 552), ‘and the EPA regulations adopted to implement the FOIA and 5/19/80 Section 3007(b) (40 CFR Part 2). Part X Proposed § 250.27 applied also to the 5/19/80 recordkeeping and reporting systems part x. under Section 3004 of the proposed regulations, because they were designed 6 BO to use information supplied on the 12148) manifest as the data base. A number of commenters argued that all RCRA reports and information should be made known to the public because public knowledge of this information is essential to the effective enforcement of RCRA. In particular, they argued that in order for the public - oversight and citizen suit provisions of RCRA to be effective, the public must have information on the types and - amounts of waste being handled by facilities, data from the monitoring of ground water and surface water, information on the type of proces_s generating the waste and the hazardous properties of the waste, and any information reported to the Agency regarding fires, explosions, and - discharges of hazardous waste, including data on the degradation of- - ground water. The Agency has sought to balance the public need for information against legitimate claims of confidentiality. - Neither Section 3007(b) of RCRA nor the Freedom of Information A t, however, authorize or require full public disclosure of information collected pursuant to RCRA. Section 3007(b) directs the Administator to consider as confidential any information which would be entitled to protection under Section 1905 of Title 18 of the United States Code, upon a satisfactory showing by the claimant that his information does indeed warrant confidential treatment. The provisions of the Freedom of Information Act concerning the availability of information do not apply to confidential trade secrets and commercial or financial information (Section 552(b)(4)). Because of this provision in RCRA, the Agency cannot impose a blanket requirement in the regulations that specific information must be released to the public in all cases. However, the public mdy obtain information on the type of process producing the wastes listed in the Section 3001 rules from the background documents supporting the Section 3001 regulations. In addition, the Subpart D rules require owners or operators to notify local authorities of fires, explosions, or discharges of hazardous waste which have the potential for adversely affecting human health and the environment outside the facility. Thus, information of this type may also be available to the public. Several commenters suggested that EPA should clearly state that the confidentiality provisions of proposed § 250.27 apply to the information required in the Section 3004 rules. The Agency agrees, and has therefore placed the provisions concerning confidentiality in Part 260 of the final rules. Section 260.1 of this Part makes it clear that the § 260.2 confidentiality provisions apply to all information required to be submitted under the final Sections 3001 through 3004 standards. - 3. Section 260.3 (Use of number and gender). This section establishes simple rules of grammatical construction concerning number and gender. It has been added to allow EPA to simplify the drafting of its final Part 261 through 265 regulations by eliminating the need for such awkward phrases as “he/she/it” or “the owner (or in event there is more than one owner, the owners)”. It is self- explanatory. Although there is no direct counterpart to this. section in the proposed Subtitle C rules, the Agency is issuing it as a final, rather than interim final standard. This is simply a rule of usage and, therefore, it is unnecessary to solicit comments on it. IV. Supart B In EPA’s proposed regulations, each regulation had its own set of definitions (see § § 250.11, 250.21, 250.31, and 250.41). To eliminate the unnecessary repetition this produced, all the definitions which are applicable to more than one of EPA’s final regulations have been consolidated into this subpart. Definitions of terms which are used only once, or only in conjunction with a single section or subpart, will generally be defined in the section or subpart in which they are used. We hope this reorganization will make the regulations less cumbersome and easier to follow. Table 1’ CorTesponding RCRA section CFR and descriptive title Part. - 260 Definitions used in other Parts corresponding to the Sections 3001 through 3004 rules. and general provisions applicable to these Pails 261 . Section 3001 Identificstion and Listing of Hazardous Waste 262 Section 3002 Standards Applicable to Generators of Hazardous Waste 263. Section 3003 Standards Applicable to Transporters of Hazardous Waste 264 Section 3004 Standards Applicable to Owners and Operators of Hazardous Waste Treatment. Storage. and Disposal Facitaes 265 Section 3004 Interim Status Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities 122 and Section 3005 Permits for 124 Treatment. Storage. and Disposal of Hazardous Waste 123 Section 3006 GuidelInes for Authorized State Hazardous Waste Programs. Section 3010 Preliminary Notification of Hazardous Waste Activity ‘ThiS table is self -explanatory except far that portion of it dealing with section 3004 of RCRA. There are lhree groups of owners and operators of hazardous waste facilities aub ect to control under lIsa Section owners and operators-with interim status, those who own or operate RcRA permitted facilities. those *1 th neither interim status nor a permit. Owners operators in the first group are eub)ect to the Pait 265 a those in the second gr up ITIIJSt coiriply with RCRA per. based on the Part 264 rules; those m the Said groi jt atop operations on the effective date of these regula- tions (See the preent&e to the Parts 264 and 265 rules Issued elsewhere in today’s FEDERAl. REGISTER for an expla- nation of how owners and operators ialdy for unteruil status.) ------- 33068 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations When Part 260 was published in February, it contained definitions of twelve terms used in EPA’s Parts 262 and 263 regulations and a preamble discussion of each (45 FR 12722). Except for the definition of “on-site”, which has been revised since February. these terms will not be discussed again here. Of the new definitions which are being added to Part 260 today, most are self-explanatory and non-controversial and therefore need not be addressed in this preamble. Those which do require explanation are either dealt with in the preambles accompanying the regulation in which the term is used or in the discussion which follows. 1. Definition of Active Portion. The proposed difinition of “active portion” stated that portions of facilities closed in accordance with the facility closure plan, and all applicable closure requirements, were not active portions. Several cominenters were concerned that portions of facilities which were - closed before the effective date of the regulations, but not in accordance with the Section 3004 closure requirements, would be considered to be active portions. If this were the case, they argued that it was unreasonable to require owners and operators to re-c1ose these portions in accordance with the RCRA standards. The Agency believed that the following statement in the preamble to the proposed Section 3004 regulations stated that Agency’s intent generally not to regulate portions of facilities closed before the effective date of the regulations: - - - - RCRA is written in the present tense and its regulatory scheme is organized in a way which seems to contemplate coverage only of those facilities which continue to operate after the effective date of the regulations. The Subpart D standards and Subpart E permitting procedures are not directed at ,inactive facilities (43 FR 58984) However, the Agency realizes that its original intent would have been more clearly stated if the words “or inactive portions of active facilities” had been added to the above sentence. The Agency’s intent is not to regulate under Subtitle C portions of facilities closed before the effective date of the regulations. The only exception to this is that owners and operators of facilities which continue to operate after the effective date of the regulations must ensure that portions of facilities closed before the.effective date of these rules do not interfere with the monitoring or control of active portions. This requirement regulates the facility which operates under the RCRA regulations, although it may require the owner or operator, before he receives a permit, or as a permit condition, to take certain measures on portions of his facility closed before the effective date of these regulations. 2. Definitions of Disposal and - Disposal Facility. Several commenters suggested that the statutory definition of “disposal”given in Section 1004(3) of RCRA should be reworded to make it clear that an unplanned release or discharge of hazardous waste does not constitute disposal. They argued that - this change is necessary because, otherwise, accidental, discharged will have to be permitted before they are allowed to occur. Regardless of whether a discharge of hazardous waste is intentional or not, the human health and environmental effects are the sime. Thus, intentional and unintentional discharges are included in the definition of “disposal”. However, the Agency agrees that permits logically can only be required for intentional disposal of hazardous waste. Therefore, the definition of - “disposal facility” has been modified to indicate the Agency’s intent that the term does not apply to activities involving truly accidental discharge of hazardous waste. In addition, the definition has been further modified to make it clear that only facilities at which hazardous waste is to remain after closure are, for the purposes of these regulations, disposal facilities. Thus, for example, a surface impoundment used for waste treatment from which the emplaced waste and waste residue is to be removed before -closure-of-the-impoundmentrfor purposes of these regulations, is not both a treatment and a disposal facility, but rather, only a treatment facility. That does not mean it might not be “disposing” of wastes within the meaning of that term in Section 1004(3) of RCRA. It merely means that EPA, for purposes of reference in these iegulations, will call it a “treatment facility.” 3. Definition of Existing Facility. Several commenters pointed out what they perceived as a serious fault in Section 3005(e) of RCRA, which is that the Section limits interim status to owners and operators of facilities “in existence” on or before October 21, 1976. The statute requires that, in order to operate legally, facilities which have come into existence after October 21, 1976, must obtain a permit by the effective date of the Section 3005 regulations (i.e., within 180 days after the promulgation date of the regulations). Because it is unlikely that permits can be issued within 180 days for all facilities not “in existence” by October 21, 1976, the commenters felt that the language of the statute was unfair to the owners and operators of these facilities. EPA agrees that the language of the statute as it now stands would make the RCRA program unworkable. However, the language of RCRA is clear and EPA has had no alternative but to follow it in the regulations. As the preamble to the Part 122 regulations discusses, EPA expects that amendments to RCRA now in conference will be passed shortly and will cure this problem. 2 In the proposed rules, existing facilities were limited to those which were in operation or under “physical construction” by a certain date. Physical construction was defined as: 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. The Agency has expanded this aspect of the definition of “existing’facility” in the final rules. The Agency believes that facilities for which substantial financial commitments have been incurred through contractual obligations to purchase specially designed structures or equipment, should also be considered to be existing facilities. Accordingly, the final Part 260 definition provides that a facility which has “commenced construction” by a certain date is an “existing facility”. In determining whether construction has commenced, as the term is defined in Part 260, it is first necessary to -determine-whether-the-owner-or- operator has obtained and continues to hold all necessary preconstruction approvals or permits required by Federal, State, and local laws and regulations. If all such permits have not been obtained or maintained, construction has not commenced. Assuming that the permit requirement is satisfied, in order to have “commenced construction,” it is still necessary for facilities to meet one of two additional requirements. The first requirement is that a continuous physical on-site construction program has begun by the date in question. The words “continuous” and “on-site” are key to this test. It will not suffice merely to have begun erection of auxiliary buildings or construction sheds unl ss there is clear evidence (through contracts or otherwise) that construction of the entire facility will go forward ma 2 Accordingly, EPA encourages every facility built or under construction on the promulgation date of the RCRA program regulations to notify EPA and file Part A of the permit application so that it can I quickly processed for Interim Statua when the change in the law takes effect. ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33069 continuous manner (no breaks greater an 18 months). Nor will it suffice that ection of certain components began f-site. The alternative requirement is that by the date in question, binding agreements—which cannot be canceled or modified without substantial loss— were established for construction of the facility to be completed within a reasonable time. The words “substantial” and “for construction” are key to this test. In order to minimize administrative burdens and to provide some certainty, the Agency will consider a loss as being substantial if the cost to cancel a construction agreement is more than 10 percent of the total project cost. Whether a loss equal to or less than 10 percent is substantial will be considered on a case-by-case basis. The loss must also be related to contractual obligations for construction. Options to purchase or contracts for feasibility, engineering, or design studies will not be considered to be contractual obligations for construction. These conditions for “commenced construction” are adopted from EPA’s Prevention of Significant Deterioration (PSD) regulations issued under the Clean Air Act (see 43 FR 26395). 4. Definition of Generator. Several ‘ mments on the proposed definition of enerator” concerned corporations ntrolling plants in several locations tich each produce hazardous waste. They questioned whether each plant, or only the corporate headquarters, is the generator. Some commenters thought that the latter should be designated as the generator because this would allegedly reduce the number of manifests and records that the corporation would collectively be required to develop. RCRA directs the.Agency to monitor and control the movement of hazardous waste. The only way that the Agency can do so is to know the source of the waste. If the reports which EPA received on hazardous waste identified the corporate headquarters as the generator, EPA would not know which of the corporation’s plants produced the waste and, thus, would be unable to monitor the waste’s movement. For this reason, the final definition has been modified to make it clear that the plant, and not the parent company, is the generator. However, corporate headquarters may prepare and submit separate reports for each of the corporation’s facilities. Certain producers (e.g., farmers and small generators) were excluded from • 1 t proposed definition of “generator.” cause these exclusions are ecifically dealt with in the final Part and Part 262 regulations, it is unnecessary to attempt to include the substance of these regulations in the final definition of “generator”. 5. Definition of On-Site. The Agency is amending the definition of “on-site”, which was promulgated in the Part .260 regulations issued on February 26, 1980 (45 FR 12724). In the preamble which accompanied that definition, the Agency pointed out that the manifest is necessary “to safeguard human health and the environment in the transportation of hazardous waste, regardless of the distance that the waste is being transported.” However, the preamble went on to.say that: Merely crossing the public right-of-way to gain access to property under the control of the generator does not create the same dangers to the public that transportation upon public highways entails. [ emphasis addea] For this reason, the proposed definition of “on-site” (43 FR 58976) was revised to include as “on-site,” non- contiguous property owned by the generator which is connected by “a right-of-way which he controls and to which the public does not have access.” This revision allowed generators to transport their waste within these confined limits without preparing a - manifest for it. The Agency now realizes, however, that the revised definition of “on-site” (45 FR 12724) cold be interpreted to allow unmanifested waste to be transported along a public right-of-way. This was not what the Agency had intended when revising the proposed definitibn. Therefore, that definition has been amended to make it clear that the entrance and exit of the geographically contiguous property—which may be divided by a public or private right-of- way—must be directly across from each other in order to be considered to be the same site. 6. Definition of Representative Sample. The Agency mistakenly provided two definitions of the term “representative sample” in the proposed rules, one in § 250.11(b)(5), and the other in § 250.41(b)(73). The latter was concerned solely with samples characteristic of ground water beneath a facility. Several commenters pointed out that the definition was too restrictive because the proposed regulations required samples to be taken of things other than ground water. The Agency agrees, and has restructured the final ground-water monitoring standards so that a definition of “representative sample” specific to ground water is no longer needed. It has therefore been deleted from the final rules. The definition provided in § 250.11(b)(5) was broader than that contained in § 250.41(b)(73). § 250.11(b)(5) defined representative sample as: Any sample of the waste which is slalistically equivalent to the total waste in composition. and in physical and chemical properties. Representative samples may be generated using the methods set out in Appendix I of this Subpart. [ emphasis addedj Many commenters objected to the aspect of this definition which required that the sample be statistically equivalent to the total waste. They argued that statistical equivalence has an exact meaning, and that interpreted literally, the proposed definition would have required the entire waste stream to be sampled, or a statistical data base established for it, in order to ensure that every constituent of the waste stream was known to some level of accuracy and precision. These commenters felt that this aspect of the definition was unreasonable. The Agency agrees that requiring a representative sample to be statistically equivalent to the waste is currently infeasible for most waste streams. This is particularly true for “composite” or heterogeneous wastes. The Agency will, in the future, develop and publish in SW—846, “Test Methods for the Evaluation of Solid Waste”, practical procedures for obtaining statistically equivalent representative samples of hazardous waste. However, until they are developed, the Agency agrees that the definition of “representative sample” should not require that the samples be statistically equivalent to the total waste. Therefore, the definition has been changed to require that representative samples exhibit the average properties of the universe or whole (e.g., waste or ground water). V. Subpart C 1. Section 260.20 (General). Section 7004 of RCRA states that any person may petition EPA for the promulgation, amendment, or repeal of any regulation under RCRA. That section further directs the Administrator to develop and publish minimum guidelines for the public to participate in this process. EPA’s proposed Subtitle C regulations contained no guidelines to assist the public in framing rulemaking petitions or to advise them of the procedures EPA would follow in acting on their petitions. EPA received a number of comments, often in the context of a specific regulatory provision (e.g., the list of hazardous wastes issued under Section 3001), suggesting that EPA establish rulemaking procedures for Subtitle C. ------- 33070 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations EPA agree this would be desirable, and accordingly is adding a subpart to its final rules which (1) establishes the procedures for petitioning EPA to amend, modify, or revoke any provision in Parts 260 through 265 and (2) establishes !ptocedures governing EPA’s action on these petitions. These procedures reflect normal informal rulemaking practice under the Administrative Procedures Act and are largely self-explanatory. Except for two types of petitions—petitions to approve equivalent methods and petitions to amend Part 261 to exclude a Waste produced by a particular facility—EPA is not establishing information requirements for petitions. These reijuirements will of necessity vary with the nature of the regulatory provision which the petitioner is seeking to add or amend, and are not readily susceptible to precise articulation in a regulation. However, petitioners should be able to glean a great deal of information which would be useful in drafting rulemaking petitions from preamble discussions of provisions and associated background documents. In the case of EPA’s hazardous waste charactenstics and list, the regulations themselves identify the criteria against which all rulemaking (including that initiated bTy EPA) will be evaluated. This entire subpart is being published in interim final form to give the public an opportunity to comment on EPA’s - procedures. 2. Section 260.21 (Petitions for equivalent testing or analytical methods). In its proposed Section 3001 regulations, EPA required persons to determine whether their waste exhibited one of the Agency’s proposed hazardous waste characteristics using specified testing and analytical methods or “an- equivalent method”. (See proposed fl 25013(a) (i) and (ii). (a)(2)(i). (b)(i). and (d)(2)(ii)). Section 250.11(b)(2) of the proposed rules defined “equivalent method” as any method: which the Administrator determines to be functionally equivalent or superior to the method specified The proposed rules did not, however, provide any procedures for requesting EPA to approve testing or analytical methods as equivalent to’those specified in proposed Section 3001. Several commenters suggested that such procedures should- be included in the. regulations. - EPA agrees and believes the procedures set forth in § 260.20 will work well for petitions for equivalent -methods. However, because specific types of data are required-to determine whether a testing or analytical protocol is “equivalent” or “superior” to an existing method, EPA has also established specific information requirements for petitions for equivalent methods. These requirements necessarily require a petitioner to fully evaluate the alternative method and to undertake a thorough comparative analysis of this method and EPA’s. Requiring less data would place too large a burden on EPA, considering its limited resources for developing alternative testing methods. The Agency believes that those who desire to use a method other than that prescribed in the final rules will typically have the data required in § 260.21 because they will have found the prescribed method to be inappropriate for their purposes, and will have already committed resources to develop an equivalent method. 3. Section 260.22 (Petitions to amend Part 261 to exclude a waste produced at a particular facility). This provision is discussed in SectionVll of the preamble to Part 261. Regulatory Analysié The Agency has prepared for the regulations promulgated under Sections 3001 through 3004 and 3010 of RCRA, an Economic Impact Analysis, an Environmental Impact Statement, a Reports Impact Analysis, an Operations Resources Impact Analysis, and an Evaluation Plan. EPA has prepared a summary regulatory analysis of its final regulations based on the above reports. This Regulatory Analysis describes the various alternative approaches that the Agency might have used to implement the hazardous waste program, and explains why certain choices were made. Except for the Evaluation Plan (which was prepared under Executive Order 12044), or as otherwise specified below, copies of these documents may be reviewed in the EPA Regional Office - libraries, and at the EPA headquarters library, Room 2404, Waterside Mall, 401 M Street, SW., Washington, D.C. 20460. The Evaluation Plan will be available for review only at the EPA headquarters library. I. Economic Analysis The Agency prepared an Economic Impact Analysis under Executive Older 11821, as amended by Executive Order 11949. It indicates that there are both costs and benefits associated with this regulatory program. - 1. Benefits. The Subtitle C regulatory program will reduce the damage to human health and the environment frbm improper management of hazardous waste. The following is a brief list of some of the many expected improvements: (1) Ground-water pollution from leaching of toxic pollutants from improperly designed and managed landfills and surface impoundments will be reduced. - (2) Poisoning and injury due to direct - contact with randomly dumped wastes will be reduced. (3) Pollution of surface waters from hazardous waste stored or disposed of in fields and on riverbanks will be reduced. (4) Illicit dumping of waãte in farm fields, wooded areas, along roadsides, and in ditches and streams will be reduced. (5) Emission of toxic gases from improperly run incinerators will be reduced. (6) Accidents, mistakes, and malfunctions at hazardous waste management facilities, which could affect people near the site, will be reduced in number and in severity, due to improved training of personnel, monitoring and inspections, and required emergency equipment. (7) Contingency plans will spell out procedures to ensure rapid and effective responses to emergencies to minimize any danger to off-site residents and the environment. (8) Facilities will be decontaminated or otherwise secured at closure, and disposal sites will be monitored and maintained after closure, to reduce the possibility of future adverpe impacts on human health or the environment. The Agency believes these improvements will be substantial and noticeable. The expected improvements are not quantifiable, however, since records of past practices and problems are extremely limited. Also, it is difficult or impossible to quantify benefits deriving from reduced adverse impacts on health or the environment. The dollar value of preventing a case of cançer, for example, is not truly ascertainable. In addition to the major non-quantifiable economic benefits expected from decreases in human health problems and in pollution of our air, land, and water, EPA expects an improvement in economic efficiency and equity, and substantial direct savings from avoiding clean up costs in the future. An economy functions efficiently and equitably when the price of goods produced in the society reflects the actual social and private costs of production (i.e., when the tosts are internalized). Until now, in most states, firms could dispose of wastes in environmentally unsafe ways at a cost substantially less than that for adequat disposal. Thus, the price of goods often ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33071 rl.d not reflect the full social cost of oduction. - Pre-RCRA practices for managing izardous waste created economic inequities. The costs of disposal often fell randomly on individuals affected by improper management or on the public at large since tax revenues were used to clean up inadequate facilities. It would be more equitable for the costs of adequate hazardous waste management to fall on the consumers and producers of the products which generate the hazardous waste. Pre-RCRA management practices also caused economic inefficiencies. Because the price of goods did not reflect the cost of properly managing the waste produced as part of the manufacturing process, these goods were priced too low relative to other goods. Because prices were lower than the true social cost of producing the product, consumers were able to buy more of these goods than they could if proper waste management costs were included in the product price. Thus, companies manufactured and sold more of these products and generated more hazardous waste than was economically efficient. These products, thus, had aniinfair competitive edge over other products which didn’t generate hazardous waste. Thrthermore, because companies did not ve to either pay the cost of proper paste management or pass it along to ustomers, the incentives to develop technology and process changes to lessen the quantity of hazardous waste generated or to recover the waste as a useful material were weak compared to what they might have been if proper waste management was required. Additionally, companies which wanted to properly manage their wastes were put at a competitive disadvantage by doing so because they bore costs which their competitors did not. The RCRA Subtitle C Regulations will ensure that those generating hazardous waste will pay appropriately for their safe management. Most of this cost will be passed on to consumers, while some may be borne by the generator, particularly where price increases are held down in some way (e.g., by foreign competition or competition with other products). In either case, the economy will be more efficient and equitable because those receiving the benefits will also pay the costs, and prices will serve as a more efficient allocator of resources. In recent years, with increasing frequency, society has been forced to ““operly dispose of waste that was eviously disp sed of haphazardly. The st known example of this is Love snal in New York, where 20,000 tons of waste were buried over a period of years. The diagnosis of a severe health hazard in the area due to wastes seeping into house basements and surfacing in backyards caused society to take remedial action. The price tag to the State and Federal governments is expected to be about $36 million for clean up, relocating residents, health and environmental testing services, and other expenses associated with the disaster. Thus, society is spending about $1,800 per ton in its effort to clean up waste improperly disposed of, and more will be spent before the area is returned to normal. Further, the $1,800 per ton excludes human health costs and suffering, which might easily outweigh actual dollar costs. Given that average disposal costs after the RCRA regulatory program is in place are estimated to be around $80 per ton, it clearly pays to do the job right in the first place. Given that damages from improper hazardous waste management often take decades to surface, we may be paying dearly for past waste mismanagement for many years to come. Further, without a regulatory program, new problem sites would continue to be developed. Ultimately, clean up of all of these sites could cost billions of dollars. 2. Costs and Impacts. Phase I of the RCRA Subtitle C program will broadly affect American industry. The Agency focused its Economic Impact Analysis (EIA) on major hazardous waste- generating segments within 22 industries. The study covered approximately 29.000 generators who produced an estimated 13.7 million metric tons of hazardous waste in 1978. The RCRA hazardous waste standards are expected to cover about 67,000 hazardous waste generators that are expected to produce about 41 million metric tons of hazardous waste in 1980. The Agency’s analysis shows that 62% of this hazardous waste is from the chemical and allied industries. As a result of the Phase I regulations. the annual hazardous waste disposal costs for the 29,000 generators covered by the EIA are predicted to increase by $510 million.’ Of this annual cost, about 3 The study included one additional segment. metals mining, which is not included in this summary The calculations have not been completed and there are major questions as to whether significant quantities of waste from this industry will prove hazardous. 4 Thas is anannualized cost developed.by multiplying a capital recovery factor by the initial capital cost and adding the product to the recumng program costs This provides an even protection of expenditures although generators will typically incur disproportionately more expenses in the beginning of the program and at the end of the useful life of the facility 50% is for compliance with surface impoundment requirements. Recurring operational and administrative expenses account for $430 million (1980 dollars) of the total annual cost; the rest is for capital and other initial expenditures (as annualized). Total capital and other initial expenditures are estimated at $310 million. The distribution of the annual compliance cost by major RCRA hazardous waste management activity is provided in Table I. The major part of the cost is for treatment and disposal facility closure and post-closure activities which will occur in the future. but which EPA assumes owners will prepare for in advance of their occurrence. The $510 million annual cost amounts to less than 0.2 percent of the value of sales of the affected industries. Table l.—D,stnbut,on of RCRA Costs by Type of Requirement Annual incremental Percent Compliance activity cost in 01 total millions of cost dollars closure/pos l-closure .. $3033 59 Treatment and disposai . 568 11 Monitoring/testing 67 5 13 Administration . 28 7 6 Contingency planning 232 152 15.8 5 3 3 Reccrdkeeping/repciling Training . Total ‘$5100 100 ‘Detail does not add to total due to independent rounding The Phase I standards establish the RCRA Subtitle C program, and will be followed by Phase II, which will establish the standards for permit issuance. These are scheduled to be promulgated in the fall of 1980. While the regulations have not yet been written,- it is conceivable that the added costs of the Phase II regulations could double the total costs for the affected industries. - As part of the EIA, the Agency performed detailed analyses of parts of six major industries which EPA believed could be substantially affected economically by the regulations. They were segments of the textiles, leather tanning, electroplating, inorganic chemicals, organic chemicals, and nonferrous metal smelting and refining industries. The analyses showed that 86 plants may close out of the 4200 studied, costing as many as 5300 jobs. Negative impacts are concentrated in the following industry sectors: Primary zinc and secondary lead smelting and refining, sodium dichrothate and titanium dioxide production, cattlehide non-chrome and sheephide (no beamhouse) tanning. electroplating job shops, and woven fabric finishing and ------- 33072 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations felted fabric processing in the textile industry. Overall, price increases resulting from the regulation for products from these industries were not found to be substantial except for EPA performed less detailed analyses for the other industry segments in the EJA. This qualitative analysis shows the possibility of plant closures in some sectors of the explosives, petroleum rerefining, pharmaceuticals, organic chemicals, and plastics industries. The effects of the Phase I requirements will interact with those of some other EPA regulations. It is too early to estimate these effects in general. But, as an example, the water pretreatment standards for electroplaters were expected to close 587 job shops until the Agency, working with the Small Business Administration, developed a Federal assistance program. As a result of the RCRA Subtitle C program alone, 60 job shops may close, and the Agency may find it more diffiëult to mitigate the effect of the pretreatment regulations on other plants. 3. Limits of Analysis. In order to make the economic analysis practical, the Agency had to make some fundamental assumptions and limit the scope of the analysis to what it believed were the major waste generating industries. The EIA could not cover all industry segments which generate hazardous waste. Simple extrapolation of the compliance cost for the 29,000 generators studied to the 67,000 generators that are expected to be regulated during Phase I, would more than double the EIA estimate. The costs for surface impoundments alone, for projected price increases for electroplating job shbps (6.6%) and cattlehide non-chrome tanneries (1—3%). Table II summarizes these impacts. those industries not included in the analysis, have been roughtly estimated to be somewhere between $60—900 million ; 5 The EIA was based on hazardous waste volumes believed to exist in the covered industry segments because theii waste appeared on EPA’s hazardous waste list or was believed to exhibit one of the four hazardous waste characteristics. The uncertainty over this latter aspect of the analysis is somewhat reflected in the 1980 waste volume estimate which EPA believes could range between 28 million and 56 million metric tons. The 41 million metric tons previoiIsly quoted is EPA’s best estimate. To the extent these generators delist or discover that their specific wastes do not meet the hazardous waste characteristics, the costs and impacts will be less. The EIA made two major assumptions: (1) Although disposal prices may increase significantly under RCRA, the study assumed that generators would be unable to reduce the volume of waste disposed and will not be able t&find a cheaper way to manage it, and (2) acceptable off-site waste disposal capacity will be readil3 available. Finally, the analysis is based on final Sections 3002 and 3003 regulations and a January 1980 draft of the Sections 3001 and 3004 requirements. The draft regulations have substantially ch nged since that time. In most instances, the alterations have led to cost reductions. For instance, a number of changes which would greatly reduce the amount of waste covered by the regulations have not been factored into the analysis. Also, the financial requirements have been deferred in the Part 265 regulations but are still covered in the economic impact study. On the other hand, control of underground injection has been added to the regulations, but it is not covered in the EIA. The Agency is now analyzing the final Phase I regulations and will make the results publicly available this summer in an economic analysis summary. EPA will publish a notice in the Federal Register concerning its availability. In the interim, anyone wishing to review the current version of the economic analysis may do so at EPA Headquarters and Regional Office libraries. A more extensive summary of the economic analysis can be found in the Regulatory Analysis which is also available in the Regional Office and EPA Headquarters libraries. II. Environmental Analysis EPA voluntarily prepared an Environmental Impact Statement (EIS) under the National Environmental Policy Act 42 U.S.C. § 4321 et seq. (NEPA). (See the NEPA discussion in the preamble accompanying the Parts 284 and 265 rules issued elsewhere in today’s Federal Register.) EPA will publish a Federal Register notice within 90 days of the promulgation of these regulations announcing the availability of the EIS for those interested in obtaining a copy ofit. Industry Assistance - The Agency recognizes that these regulations may have a substantial impact on certain industrial sectors, particularly on firms in a poor competitive position. The Agency will provide a limited degree of assistance to such firms. For example, the Agency is preparing guidance manuals which interpret the regulations and offer advice on efficient compliance with substantive requirements. Seminars and public hearings will be held to explain the regulations. respond to questions, and describe available financial Table 11.—Summary of Costs and Impacts Plants Potential Potential Possible price Annual Industry generating hazardous waste (5) closure (5) ‘ employment loss increase (percent) ‘ costs (in millions) Electroplating’ - 2,336 60 1,680 66 880 7 Inorganic chemicals’ 95 3 607 <1 498 Leather tanning’ 271 11 795 <1 II 8 Nonferrous smelting’ 252 2 1,500 <1 - 64 2 Organic chemicals’ 45 0 0 0 133 Textiles’ 1,166 10 740 0 233 Other manufacturing . 2589 Service induatnes . 80 Total 29,000 5100 ‘Job shops only ‘Cost study covered seven product lines, detailed impact study covered four Significant impacts possible in sodium duchro- mate (1 closure of 3 plants—..45 jobs) end titanium dioxide (2 closures 0113 plants—562 jobs) ‘Significant Impacts possible m cattlehide (6 closures of 16 plants—695 jobs) and sheephides (5 closures of 29 plants— 100 jobs) ‘Significant impact possible in pnmaiy zinc industry (1 closure ot 6 plants—500 to 1,500 jobs) ‘Cost study covered ten product lines, detailed impaci study covered five ‘Cost study includes costs for five industry segments whose wastes are no longer listed as hazardous waste Significant Impact possible in the felled fabric processing segment (2 closures 0119 planta—326 jobs) ‘Based on vaned assumptions on site life and actuel number of hazardous waste sites Also, this estimation was based on a fixed $25 million coat assumption for closure of impoundments over 150 acres The costs would have been nearly double that without this assumption and with strict use of a model cost equation used for impoundments of less area However, uncertainty in the data base over - site life, impoundment size and hazardousness of wastes, and the Agency belief that operators could develop less costly closure plans that EPA would accept, support this assumption ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33073 issistance. Limited technological issistance may be available. The Agency has also established an ndustry assistance program in the Office of Solid Waste. The staff of this program have been charged with (1) identifying industry and community RCRA compliance problems and seeking solutions to them, (2) coordinating assistance activities with the States. other parts of EPA, and other Federal agencies (e.g., the Small Business Administration and the Economic Development Administration), (3) planning and conducting seminars, and (4) coordinating production of written material designed to assist those least able to cope with the regulatory burden. The Agency would ideally like to provide this assistance to anyone who wants it. However, because the industry assistance program may receive more requests for help than it can initially respond to, it may be necessary to establish priorities to determine which requests should be answered first. If this is the case, the program will concentrate first on the following industry sectors, which the Agency believes most need this help: chrome pigments, chlorine. electroplating (job shops), woven fabric finishing, felt fabric finishing, sheepskin tanneries, vegetable tanners, primary nd secondary aluminum, primary and ;econdary copper, primary and ;econdary lead, primary tungsten, primary zinc, petroleum rerefining, pesticides, plastics, and pharmaceuticals. EPA plans to meet with the trade associations of these industries in order to define specific assistance responses. Anyone having suggestions on how the Agency can help industry comply with these regulations should contact: - Michael Barclay, RCRA Industry Assistance Coordinator, Office of Solid Waste (WH—565), U.S. Environmental Protection Agency, Washington, D.C. 20460 (202) 755—9190. - Dated(May 2, 1980. Douglas M. Costle, Administrator Title 40 CFR Part 260 is revised to read as follows: PART 260—HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL Subpart A—General Sec 2601 Purpose, scope and applicability. 260.2 Availability of information, confidentiality of information. 2603 Use of number and gender. Subpart B—DefinItIons 260.10 Definitions. Subpart C—Rulemaking Petitions 26020 General. 260.21 Petitions for equivalent testing or analytical methods 260.22 Petitions to amend Part 261 to exclude a waste produced at a particular facility. Appendix I—Overview of Subtitle C Regulations 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 1978, as amended (42 U.S C 6905, 6912(a), 6921 through 6927, 6930, and 6974) Subpart A—General § 260.1 Purpose, scope, and applicability. (a) This part provides definitions of terms, general standards, and overview information applicable to Parts 260 through 265 of this Chapter. (b) In this part: (1) Section 260.2 sets forth the rules that EPA will ‘use in making information it receives available to the public and sets forth the requirements that generators, transporters, or owners or operators of treatment, storage, or disposal facilities must follow to assert claims of business confidentiality with respect to information that is submitted to EPA under Parts 260 through 265 of this Chapter. (2) Section 260.3 establishes rules of grammatical construction for Parts 260 through 265 of this Chapter. (3) Section 260.10 defines terms which are used in Parts 260 through 265 of this Chapter. (4) Section 260.20 establishes proceduI s for petitioning EPA to amend, modify, or revoke any provision of Parts 260 through 265 of this Chapter and establishes procedures governing EPA’s action on such petitions. (5) Section 260.21 establishes procedures for petitioning EPA to approve testing methods as equivalent to those prescribed in Parts 261, 264. or 265 of this Chapter. (6) Section 260.22 establishes procedures for petitioning EPA to amend Subpart D of Part 261 to exclude a waste from a particular facility. § 260.2 AvailabilIty of InformatIon; confIdentialIty of Information. (a) Any information provided to EPA under Parts 260 through 265 of this Chaptef will be made available to the public to the extent and in the manner authorized by the Freedom of Information Act, 5 U.S.C. section 552, section 3007(b) of RCR and EPA regulations implementing the Freedom of Information Act and section 3007(b), Part 2 of this Chapter, as applicable. (b) Any person who submits information to EPA in accordance with Parts 260 through 265 of this Chapter may assert a claim of business confidentiality covering part or all of that information by following the procedures set forth in § 2.203(b) of this Chapter. Information covered by such a claim will be disclosed by EPA only to the extent, and by means of the procedures, set forth in Part 2, Subpart B_. of this Chapter. However, if no such claim accompanies the information when it is received by EPA, it may be made available to the public without further notice to the person submitting it. § 260.3 Use of number and gender. As used in Parts 260 through 265 of this Chapter: (a) Words in the masculine gender also include the feminine and neuter genders; and (b) Words in the singular include the plural; and (c) Words in theplw al include the singular. Subpart B—Definitions § 260.10 DefinitIons. (a) When used in Parts 260 .through 265 of this Chapter, the following terms have the meanings given below: (1) “Act” or “RCRA” means the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. section 6901 eLseq. (2) “Active portion” means that portion of a facility where treatment, storage, or disposal operations are being or have been conducted after the effective date of Part 281 of this Chapter and which is not a closed portion. (See also ‘closed portion” and “inactive portion”.) (3) “Administrator” means the Administrator of the Environmental Protection Agency, or his designee. (4) “Aquifer” means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells or springs. (5) “Authorized representative” means the person responsible for the overall operation of a facility or an operational unit (i.e., part of a facility), e.g., the plant manager, superintendent or person of equivalent responsibility. (6) “Closed portion” means that portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all applicable closure requirements. (See also “active portion” and “inactive portion”.) (7) “Confined aquifer” means an aquifer bounded above and below by ------- 33074 Federal Register I Vol. 45, No. 98 I Moziday, May 19, 1980 / Rules and Regulations impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself; an aquifer containing confined ground water. - (8) “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 § 261.24 of this Chapter. (9) “Container” means any portable device in which a material is stored, transported, treated, disposed of, or otherwise handled. (10) “Contingency plan” means a document setting out an organized. - planned, and coordinated course of action to be followed in case of a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment. (11) “Designated facility” means a hazardous waste treatment, storage, or disposal facility which has received an, EPA permit (or a facility with interim status) in accordance with the requirements of 40 CFR Parts 122 and 124 of this Chapter, or a permit from a State authorized in accordance with Part 123 of this Chapter, that has been designated on the manifest by the generator pursuant to § 262.20. (12) “Dike” means an embankment or ridge of either natural or man-made materials used to prevent the movement of liquids, sludges, solids, or other materials. (13) “Discharge” or “hazardous waste discharge” means the accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of hazardous waste into or on any land or water. (14) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on 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 ground waters. - (15) “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 will remain after closure. — (16) “EPA hazardous waste number” means the number assigned by EPA to each hazardous waste listed in Part 261, Subpart D, of this Chapter and to each characteristic identified in Part 261, Subpart C, of this Chapter. (17) “EPA identification number” means the number assigned by EPA to each generator, transporter, and treatment, storage, or disposal facility. (18) “EPA region” means the states and territories found in any one of the following ten regions: Region I—Maine, Vermont, New Hampshire. Massachusetts, Connecticut, and Rhode Island. - Region 11—New York. New Jersey, Commonwealth of Puerto Rico, and the U S Virgin Islands. Region 111—Pennsylvania, Delaware, Maryland, West Virginia, Virginia, and the District of Columbia. Region IV—Kentucky, Tennessee, North Carolina, Mississippi, Alabama, Georgia, South Carolina, and Florida Region V—Minnesota. Wisconsin. Illinois. Michigan, Indiana and Ohio. - Region VI—New Mexico, Oklahoma, Arkansas. Louisiana, and Texas. Region Vu—Nebraska, Kansas. Missouri. and Iowa. - Region Vill—Montana, Wyoming. North Dakota. South Dakota, Utah, and Colorado. Region IX—California, Nevada, Arizona, Hawaii, Guftm, American Samoa, Commonwealth of the Northern Mariana Islands. Region X—Washington. Oregon, Idaho. and Alaska. (19) “Equivalent method” means any testing or analytical method approved by the Administrator under § § 260.20 and 260.21. (20) “Existing hazardous waste management facility” or “existing facility” means a facility which was-in operation, or for which construction had commenced, on or before October 21, 1976. Construction had commenced if: (i) The owner or operator has obtained all necessary Federal, State, and local preconstruction approvals or permits; and either (ii)(a) A continuous physical, on-site construction program has begun, or (b) The owner or operator has entered into contractual obligations—which cannot be äancelled or modified without substantial loss—for construction of the facility to be - completed within a reasonable time. (-21) “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 (e.g., one or more landfills, surface impoundments, or combinations of them). - (22) “Federal agency” means any department, agency, or other - instrumentality of the Federal Government, any independent agency or establishment of the Federal Government including any Government corporation, and the Government Printing Office. (23) “Food-chain crops” means tobacco, crops grown for human consumption, and crops grown for feed for animals whose products are consumed by humans. (24) “Freeboard” means the vertical distance between the top of a tank or surface impoundment dike, and the surface of the waste contained therein. (25) “Free liquids’ means liquids which readily separate from the solid portion of a waste under ambient temperature and pressure. - (26) “Generator” means any person. by site, whose act or process produces hazardous waste identified or listed in Part 261 of this Chapter. [ 27) “Ground water” means water below the land surface in a zone of saturation. (28) “Hazardous waste” means a hazardous waste as defined in § 261.3 of this Chapter. - (29) “Inactive portion” means that portion of a facility which is not operated after the effective date of Part 261 of this Chapter. (See also “active portion” and “closed portion”.) (30) “Incinerator” means an enclosed’ device using controlled flame combustion, the primary purpose of which is to thermally break down hazardous waste. Examples of incinerators are rotary kiln, fluidized bed, and liquid injection incinerators. (31) “Incompatible waste” means a hazardous waste which is unsuitable for: (i) Placement in a particular device or facility because it may cause corrosion or decay of containment materials (e.g., container inner liners or tank walls); or (ii) Commingling with another waste or material under uncontrolled conditions because the commingling might produce heat or pressure, fire or explosion, violent reaction, toxic dusts, mists, fumes, or gases, or flammable fumes or gases. (See Part 265, Appendix V, of this Chapter for examples.) (32) “Individual generation site” means the contiguous site at or on which one or more hazardous wastes are generated. An individual generation site, such as a large manufacturing plant, may have one or more sources of hazardous waste but is considered a - single or individual generation site if the site or property is contiguous. (33) “In operation” refers to a facility which is treating, storing, or disposing of hazardous waste. (34) “Injection well” means a well into which fluids are injected. (See also “underground injection”.) (35) “Inner liner” means a continuous layer of material placed inside a tank or container which protects the ------- - Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33075 rnstruction materials of the tank or )fltaineI from the contained waste or agents used to treat the waste. (36) “International shipment” means the transportation of hazardous waste into or out of the jurisdiction of the United States. (37) “Landfill” means a disposal facility or part of a facility where hazardous waste is placed’ n or on land and which is not a land treatment facility, a surface impoundment, or an injection well. (38) “Landfill cell” means a discrete volume of a hazardous waste landfill which u es a liner to provide isolation of wastes from adjacent cells or wastes. Examples of landfill cells are trenches and pits. (39) “Land treatment facility” means a facility or part of a facility at which hazardous waste is applied onto or incorporated into the soil surface; such facilities are disposal facilities if the waste will remain after closure. (40) “Leachate” means any liquid, including any suspended components in the liquid, that has percolated through or drained from hazardous waste. (41) “Liner” means a continuous layer of natural or man-made materials, beneath or on the sides of a surface - impoundment, landfill, or landfill cell, which restricts the downward or lateral scape of hazardous waste, hazardous - raste constituents, or leachate. (42) “Management” or “hazardous waste management” means the systematic control of the collectiOn, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous. waste. - (43) “Manifest” means the shipping document originated and signed by the generator which contains the information required by Part 262, Subpart B, of this Chapter. - (44) “Manifest document number” means the serially increasing number assigned to the manifest by the generator for recording and reporting - purposes. (45) “Mining overburden returned to the mine site” means any material overlying an economic mineral deposit which is removed to gain access to that deposit and is then used for reclamation of a surface mine. (46) “Movement” means that hazardous waste transported to a facility in an individual vehicle. (47) “New hazardous waste - management facility” or “new facility” means a facility which began operation, or for which construction commenced Lfter October 21, 1976. (See also Existing hazardous waste management racility”.) (48) “On-site” means the same or geographically contiguous property which may be divided by public or private right-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-of- way. Non-contiguous properties owned by the same person but connected by a right-of-way which he controls and to which the public does not have access, is also considered on-site property. (49) “Open burning” means the combustion of any material without the following characteristics: (i) Control of combustion air to maintain adequate temperature for efficient combustion, (ii) Containment of the combustion- reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion, and (iii) Control of emission of the gaseous combustion products. (See also “incineration” and “thermal treatment”.) (50) “Operator” means the person responsible for the overall operation of a facility. (51) “Owner” means the person who owns a facility or part of a facility. (52) “Partial closure” means the closure of a discrete part of a facility in accordance with the applicable closure requirements of Parts 264 or 265 of this Chapter. For example, partial closure may include the closure of a trench, a unit operation, a landfill cell, or a pit, while other parts of the same facility continue in operation or will be placed in operation in the future. (53) “Person” means an individual, trust, firm, joint stock company, Federal Agency, corporation (including a government corporation), partnership, association,;State, municipality, commission; political subdivision of a State or any interstate body: (54) “Personnel” or “facility personnel” means all persons who work, at, or oversee the operations of, a hazardous waste facility, and whose actions or failure to act may result in noncompliance with the requirements of Parts 284 or 265 of this Chapter. (55) “Pile” means any non- containerized accumulation of solid, nonflowing hazardous waste that is used for treatment or storage. (56) “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, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture. (57) “Publicly owned treatment works” or “POTW” means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a “State” or “municipality” (as defined by Section 502(4) of the CWA). This definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment. (58) “Regional Administrator” means the Regional Administrator for the EPA Region in which the facility is located, or his designee. (59) “Representative sample” means a sample of a universe or whole (e.g.. waste pile, lagoon, ground water) which can be expected to exhibit the average properties of the universe or whole. (60) “Run-off” means any rainwater, leachate, or other liquid that drains over land from any part of a facility. (61) “Run-on” means any rainwater, leachate, or other liquid that drains over land onto any part of a facility. (62) “Saturated zone” or “zone of saturation” means that part of the - earth’s crust in which all voids are filled - with water. (63) “Sludge” means any solid, semi- solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment- plant. - (64) “Solid waste” means a solid waste as defined in § 261.2 of this Chapter. (65) “State” means any of the several States, the District of Columbia,.the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. (66) “Storage”.means the holding of hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere. (67) “Surface impoundment” or “impoundment” means a facility or part of a facility which is a natural topographic depression, man-made 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 an injection well. Examples of surface impoundments are holding, storage, ------- 33076 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations settling, and aeration pits, ponds, and lagoons. (68) “Tank” means a’stationary device, designed to contain an accumulation of hazardous waste which is constructed pnmarily.of non-earthen materials (e.g., wood, concrete, steel, plastic) which provide structural - support. (69) “Thermal treatment” means the treatment of hazardous waste in a device which uses elevated - temperatures as the primary means to change the chemical, physical, or biological character or composition of the hazardous waste. Examples of thermal treatment processes are incineration, molten salt, pyrolysis, calcination, wet air oxidation, and microwave discharge. (See also - “incinerator” and “open burning”.) (70) “Totally enclosed treatment facility” means a facility for the treatment of hazardous waste which is directly connected to an industrial production process and which is constructed and operated in a manner which prevents the release of any hazardous waste or any constituent thereof into the environment during treatment. An example is a pipe in which waste acid is neutralized. (71) “Transportation” means the movement of hazardous waste by air, rail, highway, or water. (72) “Transporter” means a person engaged in the offsite transportation of hazardous waste by air, rail, highway, or water. • (73) “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 recover energy or material resources from the waste, or so as to render such waste non-hazardous, or less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for storage, or reduced in volume. (74) “Underground 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. (See also “injection well”.) (75) “Unsaturated zone” or “zone of aeration” means the zone between the land surface and the water table. (76) “United States” means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. - -477) “Water (bulk shipment)” means the bulk transportation of hazardous waste which is loaded or carried on board a vessel without containers or labels. (78) “Well” means any shaft or pit dug or bored into the earth, generally of a - cylindrical form, and often walled with bricks or tubing to prevent the earth from caving in. (79) “Well injection”: (See “underground injection”.) Subpart C—Rulemaking Petitions § 260.20 General. (a) Any person may petition the Administrator to modify or revoke any provision in Parts 260 through 265 of this Chapter. This section sets forth general requirements which apply to all such petitions. Section 260.21 sets forth additional requirements for petitions to add a testing or analytical method to Parts 261, 264 or 265.- Section 260.22 sets forth additional requirements for petitions to exclude a waste at a particular facility from § 261.3 of this Chapter or the lists of hazardous wastes in Subpart D of Part 261. (b) Each petition must be submitted to the Administrator by certified mail and must include: (1) The petitioner’s name and address; (2) A statement of the petitioner’s - interest in the proposed action; (3) A description of the proposed action, including (where appropriate) suggested r gulatory language; and (4) A statement of the need and justification for the proposed action, including any supporting tests. studies, or other information. (c) The Administrator will make a tentative decision to grant or deny a petition and will publish notice of such tentative decision, either in the form of an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in the Federal Register for written public comment. (d) Upon the written requçst of any interested person, the Administrator may, at his discretion, hold an informal public hearing to consider oral comments on the tentative decision. A person requesting a hearing must state the issues to be raised and explain why written comments Would not suffice to communicate the person’s views. The Administrator may in any case decide on his own motion to hold an informal public hearing. (e) After evaluating all public comments the Administrator Will make a final decision by publishing in the Federal Register a regulatory amendment or a denial of the petition. § 260.21 PetitIons for equivalent testing or analytical methods. (a) Any person seeking to add a testing or analytical method to Parts 26 264, or 265 of this Chapter may petition for a regulatory amendment under this section and § 260.20. To be successful, the person must demonstrate to the _satisfaction of the Administrator that the proposed method is equal to or superior to the corresponding method prescribed in Parts 261, 264, or 265 of this Chapter, in terms of its sensitivity, accuracy, and precision (i.e., reproducibility). (b) Each petition must include, in addition to the information required by § 260.20(b): (1) A full description of the proposed method, including all procedural èteps and equipment used in the method; (2) A description of the types of wastes or waste matrices for which the proposed method may be used; (3) Comparative results obtained from using the proposed method with those obtained from using the relevant or corresponding methods prescribed in Parts 261, 264, or 265 of this Chapten (4) An assessment of any factors which may interfere with, or limit,the use of, the proposed method; and (5) A description of the quality control’ procedures necessary to ensure the sensitivity, accuracy and precision of the proposed method. (c) After receiving a petition for an equivalent method, the Administrator may request any additional information on the proposed method which he may reasonably require to evaluate the method. (d) If the Administrator, amends the regulations to permit use of a new testing method, the method will be incorporated in “Test Methods for the Evaluation of Solid Waste: Physical/ Chemical Methods,” SW—846, U.S. Environmental Protection Agency, Office of Solid Waste, Washington, D.C. 20460. [ Comment: This manual will be provided to any person on request, and will be available for inspection or copying at EPA headquarters or any EPA Regional Office.] § 260.22 Petitions to amend Part 261 to exclude a waste produced at a particular facility. (a) Any person seeking to exclude a waste at a particular generating facility from the lists in Subpart D of Part 261 may petition for a regulatory amendment under this section and § 260.20. To be successful, the petitioner must demonstrate to the satisfaction of the Administrator that the waste ------- Federal Re ister / VoL 45, No. 98 / Monday, May 19, 1980 I Rules and Regulationi 33077 rvduced by a particular generating cility does not meet any of the criteria rider which the waste was listed as a azardous waste and, in the case of an acutely hazardous waste listed under § 261.11(a)(2), that it also does not meet the criterion of § 261.11(a)(3). A waste which is so excluded may still, however, be a hazardous waste by operation of Subpart C of Part 261. (b) The procedures in this section and § 260.20 may also be used to petition the Administrator for a regulatory amendment to exclude from § 261.3(a)(2)(ii) or (c), a waste which is described in those sections and is either a waste listed in Subpart D, contains a waste listed in Subpart D, or is derived from a waste listed in Subpart D. This exclusion may only be issued for a particular generating, storage, treatment, or disposal facility. The petitioner must make the same demonstration as required by paragraph (a) of this section, except that where the waste is a mixture of solid waste and one or more listed hazardous wastes or is derived from one or more hazardous wastes, his demonstration may be made with respect to each constituent listed waste or the waste mixture as a whole. A waste which is so excluded may still be a hazardous waste by operation of ubpart C of Part 261. (c) If the waste is listed with codes 1”, “C”, “R”, or “E” in Subpart D, the petitioner must show that demonstration samples of the waste do not exhibit the relevant characteristic defined in § § 261.21, 261.22, 261.23, or 261.24 using any applicable test methods prescribed therein. (d) If the waste is listed with code “T” in Subpart D, the petitioner must demonstrate that: (1) Demonstration samples of the waste do not contain the constituent (as defined in Appendix VU) that caused the Administrator to list the waste, using the appropriate test methods prescribed in Appendix II I; or (2) The waste does not meet the criterion of § 261.11(a)(3) when considering the factors in § 261.11(a)(3) (i) through (xi). (e) If the waste is listed with the code ‘H” in Subpart D, the petitioner must demonstrate that the waste does not meet both of the following criteria: (1) The criterion of § 261.11(a)(2). (2) The criterion of § 261.11(a)(3) when considering the factors listed in § 261.11(a)(3) (i) through (xi). ( I) (Reserved for listing radioactive iastes.J (g) [ Reserved for listed infectious iastes.] (h) Demonstration samples must consist of enough representative samples, but in no case less than four samples, taken over a period of time sufficient to represent the variability or the uniformity of the waste. (i) Each petition must include, in addition to the information required by § 260.20(b): (1) The name and address of the laboratory facility performing the sampling or tests of the waste; (2) The names and qualifications of the persons sampling and testing the waste; (3) The dates of sampling and testing; (4) The location of the generating facility; (5) A description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether such processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration; (6) A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration; (7) Pertinent data on and discussion of the factors delineated in the respective criterion for listing a hazardous waste, where the demonstration is based on the factors in § 261.11(a)(3); (8) A description of the methodologies and equipment used to obtain the representative samples; (9) A description of the sample handling and preparation techniques, including techniques used for extraction, containerization and preservation of the samples; (10) A description of the tests performed (including results); (11) The names and model numbers of the instruments used in performing the tests; and (12) The following statement signed by the generator of the waste or his authorized representative: I certify under penalty of law thai I have personally examined and am familiar with the information submitted in this demonstration and all attached documents. and that, based on my inquiry of those individuals immediately responsible for obtaining 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 possibility of fine and imprisonment. U) After receiving a petition for an exclusion, the Administrator may request any additional information which he may reasonably require to evaluate the petition. (k) An exclusion will only apply to the waste generated at the individual facility covered by the demonstration and will not apply to waste from any other facility. (1) The Administrator may exclude only part of the waste for which the demonstration is submitted where he has reason to believe that variability of the waste lustifies a partial exclusion. (m) The Administrator may (but shall not be required to) grant a temporary exclusion before making a final decision under § 260.20(d) whenever he finds that there is a substantial likelihood that an exclusion will be finally granted. The Administrator will publish notice of any such temporary exclusion in the Federal Register. Appendix 1.—Overview of Subtitle C Regulations The Agency believes that there are many people who suspect, but are not sure,.that their activities are subject to control under the RCRA Subtitle C rules. This appendix is written for these eople. It is designed to help those who are unfamiliar with the hazardous waste control program to determine with which, if any, of the regulations they should comply. Definition of Solid Waste The first question which such a person should ask himself is: “Is the material I handle a solid waste’?”.If the answer to this question is ‘No”, then the material is not subject to control under RCRA and, therefore, the person need not worry about whether he should comply with the Subtitle C rules. Section 261.2 of this Chapter provides a definition of “solid waste” which expands the statutory definition of that term given in section 1004(27) of RCRA. This definition is diagrammed in Figure 1 below. Figure 1 explains that all materials are either: (1) Garbage refuse, or sludge; (2) solid, liquid, semi-solid or contained gaseous material; or (3) something else. No materials in the third category are solid waste. All materials in the first category are solid waste. Materials in the second category are solid waste unless they are one of the five exclusions specified in § 261.4(a). Definition of Hazardous Waste If a person has determined that his material is a “solid waste”, the next question he should ask is: “Is the solid waste I handle a hazardous waster’ Hazardous waste is defined in § 261.3 of this chapter. Section 261.3 provides that, in general, a solid waste is a hazardous wiste if: (1) It is, or contains, a hazardous waste listed in Subpart D of ------- 33078 -. Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulatidns Part 261 of this Chapter, or (2) the waste exhibits any of the characteristics - defined in Subpart C of Part 261. However, Parts 260 and 261 also contain provisions which exclude (fl 261.4(b), 260.20, and 260.22) certain solid wastes from the definition of “hazardous waste”, even though they are listed in Subpart D or exhibit one or more of the characteristics defined in Subpart C. Figure 2 depicts the interplay of these special provisions with the definition of “hazardous waste”. It presents a series of questions which a person should ask himself concerning his waste. After doing so, the person should be able to determine if the solid waste he handles is a hazardous waste. Hazardous Waste Regulations If this is the case, the person should look at Figure 3. Figure 3 depicts the special provisions specified in the final Part 261 rules for hazardous waste which: 1. Is generated by a small quantity generator 2. Is or is intended to be legitimately and beneficially used, re-used, recycled, or reclaimed 3. Is a sludge; is listed in Part 261, Subpart D; or is a mixture containing a waste listed in Part 261, Subpart D. For each ofthese Groups, Figure 3 indicates with which Subtitle C regulations (if any) the person handling these wastes must comply. Figure 3 also explains that, if a person handles hazardous waste which is not included in any one of the above three categories, his waste is subject to the Subtitle C regulations diagrammed in Figure 4. Figure 4 is a flowchart which identifies the three categories of activities regulated under the Subtitle C rules,.and the corresponding set of rules with which people in each of these categories must comply. It points out that all people who handle hazardous wsste are either: (1) Generators of hazardous waste, (2) transporters of hazardous waste, (3) owners or operators of hazardous waste treatment, storage, or disposal facilities, or (4) a combination of the above. Figure 4 indicates that all of these people must notify EPA of their hazardous waste activities in accordance with the Section 3010 Notification Procedures (see 45 FR 12746 et seq.), and obtain an EPA identification number. It should be noted that people handling wastes listed in Subpart D of Part 261 who have filed, or who intend to file an application to exempt their waste from regulation under the Subtitle C rules, must also comply with the notification requirements of section 3010. If a person generates hazardous waste, Figure 4 indicates that he must comply with the Part 262 rules. If he transports it, he must comply with the Part 263 rules. The standards in both these Parts are designed to ensure, among other-Things, proper recordkeeping and reporting, the use of a manifest system to track shipments of hazardous waste, the use of proper labels and containers, and the delivery of the waste to a permitted treatment, storage, or disposal facility. If a person owns or operates a facility which treats, stores, or disposes of hazardous waste, the standards with which he must comply depend on a number of factors. First of all, if the owner or operator of a storage facility is also the person who generates the waste, and the waste is stored at the facility for less than 90 days for subsequent shipment off-site, then the person must comply with § 262.34 of the Part 262 rules. All other owners or operators of treatment, storage, or disposal facilities must comply with either the Part 264 or the Part 265 rules. To determine with which of these sets of rules an owner or operator must comply, he must find out whether his facility qualifies for interim status. To qualify, the owner or operator must: (1) Have been treating, storing, or disposing of the hazardous waste, or commenced facility construction on or before October 21, 1976, (2) comply with the Section 3010 notification requirements, and (3) apply for a permit under Part 122 of this Chapter. If the owner or operator has done all of the above, he qualifies for interim status, and he must comply with the Part 265 rules. These rules contain administrative requirements, monitoring and closure standards, and an abbreviated set of technical and closure and post-closure cost estimate requirements. The owner or operator must comply with these standards until final administrative disposition of his permit application is made. If a permit is Jssued to the owner or operator, he must then comply with the permit which will be based on the Part 264 rules. If the owtier or operator has not carried out the above three requirements, he does not qualify for interim status. Until he is issued a permit for his facility, the owner or operator must stop waste management operations (if any) at the facility, and send his hazardous waste (if any) to a facility whose owner or operator has interim status or to a storage facility following the Part 262 rules. In order to apply for a permit, the owner or operator must comply with th procedures specified in Part 122 of this Chapter. It should be noted that the Agency will be periodically revising the rules depicted in Figures 3 and 4. All persons are encouraged to write to EPA to verify that the regulations which they are reading are up-to-date. To obtain this verification, contact: Solid Waste Information, U.S. Environmental Protection Agency, 26 West St. Clair Street, Cincinnati, Ohio 45268 (513) 684— 5362. IFR Doc 80-14308 Filed 5—18-80 845 emj BIWNG CODE 6580-01-N ------- Federal Register I Vol. 45, No. 98 I Monday, May 19. 1980 / Rules and Regulations 33079 FIGURE 1 DEFINITIO OF A SOLID WAS’TF All materials Garbage, refuse Solid, liquid, semi—solid or Other or sludge contained gaseous raterial which is: 1. discarded 2. served its inten4e 1 purpose 3. a manufacturing or mining by-product 1 Does §261.4(a) exclude your material from regulation under RCRA because it is YES TRE P1A’P RIAL one of the following: 11 IS P TO A P( Pk 1. domestic sewage SOLID WASPE 2. CWA point source discharqe 3. Irrigation return flow 4. AEC source, soecial nuclear or by-product material 5. In situ mining waste NO _____________ / THE MATERIAL IS A RCRA SOLID WASTE irresepective of whether you: 1. discard it 2. use it 3. reuse it 4. recycle it 5. reclaim it 6. store it or accumlate it for purposes 1—5 of above ------- 33080 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations FIGURE 2 DEFINI”ION OF A 1-tAZARfl( TTS WA TP Is the solid waste excluded from regulation YES under §261.4(b)? j,NO Is the solid waste listed in Part 261, Subpart I), NO or is it a mixture that contains a waste listed in Subpart D? YES - Has the waste -or mix— ture been excluded from YES \ the lists . n Subpart D I or §261.3 in accordance with § 26O.2O_and 260.22? / Does the waste exhibit any of the characteristics specifie4 in Part 261, Subpart C ? ______ NO - THE WASTE IS ‘rT E WASTE IS A HAZARDOUS WASTE SflRJ C’P ‘ PC CON’PPCL - (see figure 3) TJNDP. ST1RPI’T’L ’ fl (if land ñisposed ------- ulea and Regulations 33081 FIGURE 3 SPECIAL PROVISIONS FOR CF.R”AIN HAZARDOuS WAS’T’ THE WASTE IS A - HAZARDOUS WASTE (see figure 2) YES - Is it generated by a small quantity generator as defined in §261.5 ? ______J, o YE S Is it a sludge or is it listed in Part 261, Subpart D or is it a mixture containing a waste listed in Part 261, - - Subpart_D? YES \ It is subject to the special reauire— - ments of 2 1.5 / NO Is it or is it .ntended- to be legitimately and beneficially used, re—used, recycled, or reclaimed? d Therefore, it must he - intended to be discarr ed. I IS STIRJECT TO THE SIIRTITLE C RPtTLA”I(flTS DIAGRAMMED IN FIG1JRF 4. IT IS P.TOT STJRJECT ‘P0 REGTILA’T’ION ETND R SUR’PITLF C - NO IT IS SUBJECT TO THE FOLLOWING REQUIREMENTS WITH RESPECT TO ITS TRANSPORTATION OR STORAGE: — Notification under Section 3010 — Parts 262 and 263 — Part 264, Subparts A through E — Part 265, Subparts A through E, and G,H,I,J,& L — Parts 122 and 124 ------- 33082 Feddrai Register / vo’. , FIGURE 4 REGULATIONS FOR F AZAROOT1S WAS’PE NOT COVERED IN DIAORAM 3 All persons who handle hazardous waste subject to control under Subtitle C not covered in figure 3 Notify EPA according to Section 3010 of RCRA & Obtain EPA IT) N ber ‘I Generators Transporters Owners or Operators of T/S/D* Facilities I - On—Site Generators All other Owners Storing Wastes or Operators <90 days for - I subsequent I shipment off- O/O who 0/0 who don’t site qualify for qualify for interim status interim status Part 262 Part 263 §262.34 of Part 265 —Stop operations, i any Part 262 —Send waste inventory, if any, to a Facility whose owner or operator has interim status, or a permit, followinq the Part 262 rules —Apply or permit under Part 172 & resume or conunence operations only aFter nermit is issued - by PA under Parts 122, 124 and 764, or by a State with an P — approved hazardous waste permit procram. * T/S/D stands for Treatment, Storage, or Disposal ** 0/0 stands for Owners or Operators BIWNO CODE 6560-01-C ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33097 The exclusions contained in § 261.4 re based on interpretations of the tatutory definition of “solid waste” and on those parts of RCRA’s legislative history which indicate a Congressional intent that certain waste streams should not be regulated. Some commenters suggested that certain waste streams would never be hazardous and therefore should be excluded from these regulations. Those commenters did not, however, provide sufficient information on which EPA could base such sweeping determinations. Generators of solid wastes that are not hazardous may determine that their wastes are non- hazardous under these regulations. As these regulations are implemented more information will be developed about specific waste streams. EPA will then be in a better position to make categorical judgments about the lack of risk presented by certain wastes. At this time, however, EPA has limited the - exclusions in § 261.4 to those which are based on expressed Congressional intent. The following is a discussion of the specific exclusions contained iii § 261.4: 1. Domestic Sewage. In defining “solid waste” Section 1004(27) specifically excludes “solid or dissolved material in domestic sewage.” The proposed regulation did not specifically define ‘domestic sewage”, but did contain provisions that were based on an interpretation of that term. Section 250.40(c)(3) of the proposed regulation exempted owners and operators of POTW’s from all portions of the Section 3004 standards except those involving the manifest system, recordkeeping and reporting with respect to hazardous wastes received by truck or rail. As described in the preamble to the proposed regulation, that decision was based on the idea that the mixing of a hazardous waste with domestic sewage made the entire mixture a domestic sewage excluded under Section 1004(27). Commenters raised several objections to this approach. First, commenters argued that the only basis for an exclusion under Section 3004 is one based on health or environmental risk rather than public ownership. Second, commenters argued that some POTW’s will handle significant quantities of hazardous waste and that such facilities present the same environmental risks as private facilities that treat, store or dispose of hazardous waste. Third. some commenters merely argued that if POTW’s are excluded because they handle a significant portion of domestic ewage, other private parties that andle wastes of a similar mix should be excluded also. Fourth, a commenter said that the proposed regulation did not clearly indicate whether a POTW could ever be subject to Subtitle C jurisdiction if it only treated industrial waste. The term “domestic sewage” generally denotes sanitary wastes that pass through a sewer system. A waste stream comprised entirely of sanitary waste; that passes through a sewer system is “domestic sewage” under any reasonable interpretation of the statutory exemption. This exemption applies regardless of whether the sewer system or the treatment works to which it connects is publicly or privately owned. A more difficult question is presented when pure sanitary wastes are mixed with other types of wastes in a sewer system. The issue of whether such mixed waste streams are within RCRA’s jurisdiction has broad implications and thus it is necessary to carefully consider the Congressional purpose behind the exemption. The legislative history of RCRA does not specifically address the exemption because it was a carry-over from the Solid Waste Disposal Act, which RCRA amended. The “domestic sewage” exemption first appeared in the definition of “solid waste” found in the Solid Waste Disposal Act of 1985. The legislative history of that act indicates that the exemption was based on a recommendation, made to the Congress by the Administration, that “organic solids in untreated domestic sewage” be excluded from coverage because such wastes were already subject to controls under the Federal Water Pollution Control Act (FWPCA). At that time, the portion of the FWPCA that addressed “untreated sewage” was the Federal construction grant program, which gave money to States and municipalities to construct treatment works and to study combined sewer systems. This legislative history suggests a Congressional intent that the scope of the “domestic sewage” exemption must depend, in part, on the capacity of the Agency’s construction grants program to address the environmental problems arising from any exempted waste streams. At the time the exemption was enacted, and under the present.Clean Water Act, the Agency has grant programs that assist states and localities in the treatment of sanitary sewage by POTW’s. EPA believes that the Congressional policy reflected in the legislative history of the “domestic sewage” exemption should guide the Agency in its regulation of mixtures of sanitary waste with other waste streams. Mixed waste streams that pass through sewer systems to publicly-owned treatment works (POTW’s) will be subject to controls under the Clean Water Act. The Agency’s construction grants program provides financial assistance for the proper treatment of these wastes. In addition the Agency’s pretreatment program provides a basis for EPA a,nd the local communities to insure that users of sewer and treatment systems do not dump wastes into the system that will present environmental problems. Under these circumstances EPA believes that it is appropriate to include within the “domestic sewage” exemption mixtures of sanitary wastes and other wastes that pass to POTW’s. Since the treatment of sewage by privately-owned treatment works is not similarly controlled through the Agency’s construction grant and pretreatment program, the exemption would not be available for mixed waste streams going to such treatment works. The “domestic sewage” exemption is only applicable to non-domestic wastes that mix with sanitary wastes in a sewer system leading to a POTW. An industrial waste stream that never mixes with sanitary wastes in the sewer prior to treatment or storage does not fall within the exemption, regardless of the public or private ownership of the treatment works. Defining the point at which “mixture’ occurs may seem to be a relatively straightforward task. Practical problems arise, however, in defining the point at which mixture of sanitary and other wastes occurs in a complex sewer system. Moreover it is particularly difficult to define this point for regulatory purposes in such a way that all parties understand when RCRA obligations begin and end. - EPA has, therefore, decided that a waste falls within the domestic sewage exemption when it first enters a sewer system that will mix it with sanitary wastes prior to storage or treatment by a POTW. EPA recognizes that this interpretation brings various wastes within the exemption before they are actually mixed with sanitary wastes. In light of the fact that the wastes will be mixed prior to treatment and that the mixture will be properly treat d by the POTW, EPA believes that the need for administrative clarity in this otherwise complicated regulatory program warrants such an approach. In response to the comments on the exclusion of POTW’s from Section 3004 standards. EPA has changed these regulations to make clear that the statutory exemption is one for “domestic sewage” rather than POTW’s Facilities receiving waste streams that are exclusively made tip of sanitary wastes will not be subject to these regulations ------- 33098 Federal Register / Vol. 45, No. 98 I-Monday, May 19, 1980 / Rules and Regulations regardless of the public or private ownership of the facility. Likewise a POTW receiving industrial wastes that do not mix with sanitary wastes prior to treatment would be handling a solid waste subject to these regulations. The exclusion of domestic sewage and mixtures that pass through sewer systems to POTW’s is based on Congressional intent, not an Agency determination about the relative health and environmental risks presented by such waste streams. The Agency acknowledges that some mixtures of domestic sewage with other wastes may present environmental risks and that some non-domestic wastes may have properties similar to these of exempted domestic wastei In response EPA can only assume that such factors were not determinative in the Congress’ creation of the exclusion. The proposed regulation did not contain a specific definition of domestic sewage. EPA believes that the definition of domestic sewage, and the provision relating to mixtures of wastes with domestic sewage, contained in these regulations is a reasonable interpretation of RCRA’s statutory language and legislative history. The Agency has decided, however, to promulgate this part of the regulation as interim final in order to gain the benefit of public comment on the concepts involved. The Agency considered several options for defining domestic sewage and classifying mixtures of such sewage with other wastes. Those options included: (1) Defining “domestic sewage” to include all wastes mixed with sanitary wastes; (2) Limiting the exemption to only sanitary wastes, treating any mixture of sanitary wastes and other wastes as solid wastes; (3) Defining “domestic sewage” as any waste made up primarily (i.e. more than 50% by volume) of sanitary waste streams; and (4) Linking the exemption for mixtures. to those that flowed into a “publicly- serving” or “constructed-to-serve-the- public” treatment works, rather than POTW’s. The Agency is interested in comments on these options and the selected approach, as well as any other suggested interpretations of the provision. Commenters should recognize that the Agency’s selected approach is based on an interpretation of Congressional intent. The Agency is interested generally in comments about the impact of this approach on regulated parties, but it particularly seeks comment on how such effects relate to the Congressional purpose of the exemption expressed in RCRA’s - legislative history. These regulations, then, define domestic sewage as untreated sanitary wastes that pass through a sewer system. Such wastes are excluded from regulation as solid wastes under these regulations. In addition mixtures of astes with domestic sewage that pass through a sewer system to a publicly- owned treatment works for treatment are also excluded from regulation as solid wastes. 2. Industrial Point Source Discharges. The statutory definition of “solid waste” in Section 1004(27) of RCRA excludes “solid or dissolved materials in. industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act”. In its proposed regulations, EPA construed this phrase to include only actual discharges into navigable waters, not industrial wastewaters upstream from the point of discharge. The effect of this interpretation was to require surface impoundments, tanks, lagoons, holding ponds and other facilities used to treat or store hazardous industrial wastewater to meet Section 3004 standards and to obtain a Section 3005 permit. See 43 FR 58993 and proposed § § 250.45—3 and 250.45—4. The application of Subtitle C requirements to wastewater treatment impoundments was one of the most controversial aspects of EPA’s proposed hazardous waste regulations. Most of commenters’ objections to EPA’s proposal as they pertain to Section 3004 interim status requirements are discussed in the preamble to the Section 3004 regulations published elsewhere in today’s Federal Register. The only one addressed here is commenters’ argument that the “industrial discharge” exclusion in Section 1004(27) refers to the entire wastewater stream, not simply the point source discharge, and that EPA therefore has no authority under RCRA to regulate industrial wastewater holding or treatment facilities. This contention is not supported by either the plain language of the statute or its legislative history. The obvious purpose of the industrial point source discharge exclusion in Section 1004(27) was to avoid duplicative regulation of point source discharges under RCRA and the Clean Water Act. Without such a provision, the discharge of wastewater into navigable waters would be “disposal” of solid waste, and potentially subject to regulation under both the Clean Water Act and Subtitle C. These considerations do not apply to industrial wastewaters priof to discharge since most of the environmental hazards posed by wastewaters in treatment and holding facilities—primarily groundwater contamination—cannot be controlled under the Clean Water Act or other EPA statutes. Had Congress intended to exempt industrial wastewaters in storage and treatment facilities from all RCRA requirements, it seems unlikely that the House Report on RCRA would have cited, as justification for the development of a national hazardous waste management program, numerous damage incidents which appear to have involved leakage or overflow from industrial wastewatel impoundments. See, e.g., H.R. Rep. at 21. Nor would Congress have used the term “discharge” in Section 1004(27). This is a term of art under the Clean Water Act (Section 504(12)) and refers only to the “addition of any pollutant to navigable waters”, not to industrial wastewaters’ prior to and during treatment. Since the comment period closed on EPA’s regulations, both Houses of Congress have passed amendments to RCRA which are designed to provide EPA with more flexibility under Subtitle C in setting standards for and issuing permits to existing facilities which treat - or store hazardous wastewater. See Section 3(a)(2) of H.R. 3994 and Section 7 of S. 1156. See also S. Rep. No. 96—172, 96th Cong., 1st Sess. 3 (1979); Cong. Rec. S6819, June 4, 1979 (daily ed.,); Cong. Rec. H1094—1096, February 20,1980 (daily ed.). These proposed amendments and the accompanying legislative history should lay to rest any question of whether Congress intended industrial wastewaters in holding or treatment facilities to be regulated as “solid waste” under RCRA. 3. Other Statutory Exclusions. The definition of “solid waste” in Section 1004(27) excludes two other classes of wastes. “Solid or dissolved materials in irrigation return flows” and “source, special nuclear, or bypyoduct material as defined by the Atomic Energy Act of 1954” are not “solid waste” under RCRA. In § 250.40(e) of the proposed regulation these two categories of wastes were excluded from regulatioq under Section 3004. No substantial comment was received on these exclusions. In these final regulations under Section 3001, the Agency has specifically excluded these materials from regulation as solid waste in accord with the statutory definition of “solid waste.” 4. Household Wastes. Under § 250.20(c)(4) of the proposed regulation, a person or Federal agency who ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations generated only household refuse or household septic tank pumpings was excluded from regulation as a generator of hazardous waste. “Household refuse” was defined as trash or rubbish ordinarily produced by a family at their home. This exclusion, which also was available to apartment houses. condominiums and hotels, was based on the legislative history of RCRA. The few commenters that addressed this provision made two general points. First they said that the “ordinarily produced” portion of the proposed “household refuse” definition might not include certain materials such as medicinal drugs and ointments, household cleaning agents and solvents, waste oils, paints and pesticides that might be purchased at a grocery, drug or hardware store. Second. a commenter pointed o it that a Federal agency could not, by definition, produce household wastes. The Agency has retained the general concept contained in proposed § 250.20(c)(4) in these regulations. The provision is stated, however, as an exclusion of a waste stream—namely “household wastes”—rather than as an exclusion of a class of generators. This change is more in accord with legislative intent. The exclusion is based on language in the Senate Report which states: (The hazardous waste pr gram) is not to be used to control the disposal of substances used in households or to extend control over general municipal wastes based on the presence of such substances. (S. Rep. No. 94—988.94th Cong., 2nd Seas., at 16.) This indicates Congressional intent to exclude waste streams generated by consumers at the household level. Since the wastes generated at hotels and motels are essentially the same as those generated by consumers in their households, EPA believes that such wastes should be within the exclusion. The Senate language makes it clear that household waste does not.Iose the exclusion simply because it has been collected. Since household waste is excluded in all phases of its management, residues remaining after treatment (e.g. incineration, thermal treatment) are not subject to regulation - as hazardous waste. Such wastes. however, must be transported, stored, treated and disposed in accord with applicable State and federal requirements concerning management of solid waste (including any requirements specified in regulations under Subtitle D of RCRA.) . - When household waste is mixed with other hazardous wastes, however, the mixture will be deemed hazardous in accord with § 261.3(a)(2)(ii) of these regulations except when they are mixed with hazardous wastes produced by small quantity generators (see § 261.5). While household waste may not be hazardous per se. it is like any other solid waste. Thus a mixture of household and hazardous (except those just noted) wastes is also regulated as a hazardous waste under these regulations. Because of comments on this matter, the relationship of this exclusion to refuse-derived fuel (RDF) should also be explained RDF is a processed material (usually shredded) that is produced from solid waste and used as a fuel. RDF production usually involves the extracti n of inorganic components from the waste leaving the combustible organic component for its fuel value. In the same sense that residue from the treatment of household wastes is not subject to regulation as a hazardous waste, as discussed above, neither is RDF subject to such regulation. Moreover. RDF is not a “solid waste” under § 261.2 because it is not an “other discarded material;” it is or is not intended to be discarded ( 261.2(b)(1)), it is not a material that has served its original intended purpose ( 261.2(b)(2)) and it is not a manufacturing or mining by-product ( 261.2(b)(3)). EPA agrees with those commenters who suggested that Federal agencies cannot qualify as households. Therefore wastes generated by such agencies are not within the household waste exclusion. In addition EPA believes that medicinal drugs and ointments. household cleaning agents and solvents, waste oils, paints and pesticides purchased at grocery, drug or hardware stores may be disposed of as part of a consumer’s household wastes. If a household disposes of such wastes, the wastes may be subject to the household waste exclusion. Septic tank punipings were included in the exclusion contained in § 250.20(c)(4) of the proposed regulation. After further examination of this provision, EPA has concluded that such pumpings should be excluded from regulation as hazardous wastes to the extent that they constitute household waste. Households often use septic tanks to dispose of a portion of their wastes. As with all household wastes, these sanitary wastes in household septic tanks are excluded from - regulation as a hazardous waste in all phases of their management. Thus septic tank pumpings drawn from household septic tanks are not regulated as hazardous wastes under these regulations. Any wastes drawn from non-household septic tanks are regulated like any other solid waste under these regulations. 5. Agricultural Wastes. Under § 250.1O(d)(2)(i) of the proposed regulation. .agricultural wastes (including manures and crop residues) which are returned to the soil as fertilizers or soil conditioners were excluded from regulation as hazardous waste. The exclusion was based on the legislative history of RCRA which specifically calls for such an exclusion. See H. Rep. No.94-1491,94th Cong. 2nd Sess. 2 (1978). Commenters generally accepted this exclusion, and EPA has decided tqretain it because the need for such an exclusion is so clearly identified in RCRA’s legislative history. Some commenters asked the Agency, however, to go beyond the specific language of the legislative history and expand the exclusion to include silvicultural wastes. They argued that the foliage and branches left in the forest after trees have been cut are not hazardous and that such wastes help to enrich the soil and control erosion. EPA has decided not to provide a specific exclusion for such wastes because there is no indication in the legislative history of RCRA that the Congress meant to include silvicultural wastes in the exclusion otherwise applicable to agricultural wastes. Moreover EPA has no basis to make a general - determination that all silvicultural wastes will not pose environmental problems if mismanaged. In response to the specific comment about tree branches, it must be recognized that the obligation placed on generators of solid waste is to determine whether their waste is hazardous. Tree branches are not listed as hazardous wastes. Therefore, the only obligation placed on a timber operation is to determine whether its wastes exhibit hazardous characteristics. EPA expects that, in the case of tree branches that are not hazardous, it will be a relatively easy task for the generator to determine that his waste is not hazardous. 6. Mining Waste. Section 250.10(d)(2)(ii) of the proposed regulation excluded overburden intended for return to the mine site from regulation under Subtitle C unless such overburden had been specifically listed .as a hazardous waste. This exemption was based on the legislative history of RCRA. Generally commenters accepted this exemption but sought a clearer specification of what wastes fall within the exclusion. Thus commenters sought a definition of both “overburden” and “mine site.” Commenters also sounht a ------- 33100 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations clearer interpretation of the time within which the “return to the mine site” would have to occur Finally, several commenters objected to that portion of the proposed regulation which allowed EPA to list and regulate specific overburden materials otherwise covered by the exclusion. EPA had invoked this provision when listing uranium mining overburden and waste rock and phosphate mining overburden in the proposed regulation. These same commenters had also objected to the proposed listing of such wastes. After review of the comments and further analysis, EPA has decided to retain an exemption for “mining overburden returned to the mine site”, defining it as “any material overlying an economic mineral deposit which is removed to gain access to that deposit and is then used for reclamation of a surface mine.” In enacting RCRA, the Congress specifically included mining wastes within the Section 1004(27) definition of “solid waste.” Therefore unless the statute or legislative history clearly indicate that mining wastes are to be exempt the presumption is that they are to be regulated like any other solid or hazardous waste. Portions of RCRA’s legislative history in both the Senate and House of Representatives suggest, however, that certain kinds of mining overburden are not within the Act’s jurisdiction In discussing RCRA’s scope the House Report states: lOlverburden resulting from mining operations and intended for return to the mine site is not considered to be discarded material within the meaning of this legislation This however does not preclude any fiirding by the Administrator that specific mine wastes are hazardous within the scope of this legislation. In the Senate this issue was discussed during the floor debate when Senator Domenici asked about the effect of RCRA on mining operations, particularly strip mining. As part of his response Senator Randolph stated: The measure would not affect surface mining activities. Reclamation is not solid waste disposal. Reclamation of surface mines will commonly involve the return to the mine site of waste overburden that has been removed to gain access to the ore deposit. Since it is assumed that both the Senate and House had similar objectives in passing RCRA, the “returned to the mine site” language in the House Report must be read in light of the Senate’s concern that mining wastes used to reclaim surface mines should not be subject to RCRA. EPA believes, therefore, that the most reasonable interpretation of the “return to the mine site” phrase is one that limits the exemption to mining waste used to reclaim surface mines. Commenters suggested that EPA define overburden as any material removed to gain access to the “economic mineral” or the “mineral being mined for use “ While both terms basically convey the same meaning, EPA has decided to use “economic mineral” because it may have a clearer meaning to mining operators. The intent of the term is to identify the material that the mining operator is in the business to extract from the ground. In keeping with the Congressional intent that this exclusion is designed for overburden used to reclaim surface mines, the definition is limited to overburden “overlying” a mineral deposit. The Department of the Interior makes a similar distincti n in the definition of overburden in its regulations under the Surface Mining Control Act. EPA does not intend this definition of overburden to be limited exclusively to the material located directly above a mineral deposit. Some material is removed from the sides of a mining pit to permit safe access to the economic mineral, and such material should be treated as overburden. EPA urges the public to provide suggestions about how the definition may be refined if there appears to be any confusion about the meaining of “overlying” in this context. Overburden material must be “returned to the mine site” before it is excluded from regulation under RCRA. As indicated earlier, the purpose of the exemption is to assure that mining wastes used to reclaim surface mines are not subject to regulation as solid or hazardous waste. EPA recognizes that reclamation does not necessarily involve replacement of overburden into the portion of the ground from which it was taken. EPA also recognizes that surface mining reclamation may be subject to State or Federal regulation, making it difficulut to provide a national definition of what constitutes reclamation. In particular it is difficult to provide a general definition of “mine site” that will fit with the various State and federal requirements for reclamation. EPA has decided, therefore, not to define what is meant by reclamation of a surface mine. Several commenters indicated that most reclamation activities are subject to State or Federal regulation. EPA expects that any permits or reclamation plans developed to satisfy such regulatory agencies will specify the reclaimed area, and these actions should provide an acceptable and understandable specification of the “mine site” as that term is used in this definition. EPA contemplated limiting the exemption to reclamation that was approved by State or Federal agencies. While such a requirement is not part of this regulation, EPA is considering whether such a requirement should be part of the final definition. EPA seeks public comment on such a modification and is particularly interested to discover the extent to which environmentally sound reclamation activity occurs in the absence of Federal and State regulation. This approach addresses two specific suggestions made in comments. First it clarifies the time component of the “returned to the mine site” concept because it ties the exemption to reclamation activity. Particularly where the mining operation is subject to State ‘or Federal regulation, it should be reasonably clear what portion of the mine’s overburden will be used over what period of time to implement a reclamation plan. Second, as indicated above, it eliminates the need for a specific definition’of mine site. In any case, EPA does not believe, as one commenter suggested, that the definition of “mine” used in the Agency’s Effluent Limitations Guidelines for the Ore Mining and Dressing Point Source Category (under the Clean Water Act) is appropriate for this definition. The CWA definition is designed to identify a full range of mining and associated activities that should be regulated because they generate pollutants which may potentially discharge into navigable waters. The RCRA definition of “mine site” is to identify a reclaimed area that may receive a waste material which will thereby be excluded from environmental regulation under RCRA. Finally the Agency has eliminated the part of the proposed exemption that would allow exempted overburden to be brought within RCRA jurisdiction through specific listing as a hazardous waste. (EPA believes, however, that uranium mining overburden and phosphate mining overburden will be brought back under Subtitle C jurisdiction, as discussed below.) The only oyerburden exempted is that which is used for reclamation purposes. EPA expects that the State and Federal agencies that regulate such reclamation will consiâer the overburden’s potentialS to adversely affect public health and the environment. EPA believes strongly that portions of the overburden from uranium and phospate mining should be regulated under Subtitle C with respect to their potential emissions of radon gas and gamma radiation. The Agency ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33101 recognizes that this is an issue currently before the Congress in amendments to RCRA. One such amendment would provide specific authority for EPA to regulate these overburdens. If this amendment is enacted, the ‘overburden returned to the mine site” exclusion will be modified accordingly. Commenters also questioned the application of the Subtitle C system to in-situ mining wastes. In-situ mining of oil shale, uranium and other minerals may involve the placement of certain solvent solutions directly to a mineral deposit in the ground. This solvent passes through the earth, solubilizing the economic mineral as it goes. The mineral and solvent mixture leaches down to underground extraction wells which remove the solution. EPA does not believe that the soil through which these solvent solutions pass is a waste to be regulated under RCRA for two reasons. First the removal of materials from their natural state doesnot transform all remaining elements of that environment into a waste material. For example, picking an apple from a tree does not transform the tree into a solid waste. Likewise the removal of minerals from the land does not make the earth a solid waste. Second, the soil from which minerals are extracted by in-situ mining does not need to be managed as solid wastes. As indicated in United Slates Brewers’ •Association, inc. v. EPA, supra., the definition of “solid waste” under RCRA must be read in conjunction with Section 1004(28), the definition of “solid waste management.” which sets forth the broad set of activities that RCRA is to regulate. None of the management activities identified in Section 1004(28), including “disposal,” are relevant to in- place materials located hundreds, even thousandiof feet below the ground. Only when these materials are actually removed from the ground can it be reasonable to establish regulations governing the management of those materials. Accordingly in-situ mining wastes, not removed from the ground, are not regulated as solid wastes under these regulations. A final issue raised in the public comments concerns the relationship between these regulations and the study of mining wastes required under Section 8002(f) of RCRA. Commenters argued that all mining wastes should be excluded from coverage under RCRA regulatory programs (including Subtitle C) pending the outcome of that study. While the study will certainly assist the Agency in refining these regulations to address the particular environmental problems presented by mining wastes. the Agency doeê not believe that mining wastes should be excluded from regulation. any more than any other. solid or hazardous waste, until the study is completed. RCRA certainly does not require such a deferral. The fact that the Congress may have perceived a need for further information about mining wastes does not raise the implication that RCRA’s regulatory programs should not address the environmental problems presented by such wastes. The definition of “solid waste” in Section 1004(27) specifically includes wastes from mining operations and no other statutory provision otherwise links EPA’s jurisdiction over such wastes to completion of the study under Section 8002(f). It is important to note that pending amendments to RCRA may provide for deferral of regulation of certain mining wastes until completion of the mining waste study. Clearly that indicates a Congressional belief that any deferral of regulation pending the outcome of the study was not contained.in RCRA as originally enacted. Certainly if the legislative amendment is passed EPA will modify these regulations accordingly. The Agency has not, however, created such a deferral in anticipation of such an amendment because the amendment is contained in the bill of only one house. Thus the Agency cannot be certain that such an amendment will be part of the final legislation. 7. Sewage Sludge. Unlike the proposed regulation this regulation does not exclude from regulation under Subtitle C sewage sludge from publicly-owned treatment works (POflW’s). Several commenters objected to the exclusion contained in the proposed regulation, arguing that it was inconsistent to exclude sewage sludge from POTW’s and not exclude sewage sludge from privately-owned systems. They urged EPA to exclude sewage sludge from such private systems. Other commenters urged EPA to exclude wastewater treatment sludges from certain industries such as the meat packing and food processing industries because these sludges are very similar to domestic sewage sludge. Finally, other commenters objected to the proposed exclusion of sewage sludge from POTW’s and urged that this exclusion be dropped. They claimed that POTW sludge often is very contaminated and thereby can be a hazardous waste. They urged that it not enjoy an arbitrary exclusion. EPA has thoroughly re-examined this issue in light of the comments and has decided not to exclude POTW sludge and iiot to add exclusions for any other types of sludge. The regulation of sewage sludge is necessarily a complex matter because such sludges fall within the jurisdiction of several Federal enviroiimental programs. Under Section 1004(27) of RCRA, the definition of “solid waste” specifically includes “sludge from a waste treatment plant.” In defining “sludge,” Section 1004(26A) includes wastes from a “municipal wastewater treatment plant.” Because of these very clear statutory expressions, EPA must regulate sewage sludge under RCRA—either under Subtitle D, where it has already promulgated regulations covering sewage sludge (see 44 FR 53438 et. seq.), or under Subtitle C where these sludges that are deemed by EPA to be hazardous wastes should be regulated. Under Section -102 of the Marine Protection, Research and Sanctuaries Act, EPA regulates the ocean dumping of sludge, including sewage sludge. In addition EPA establishes, under Section 405 of the Clean Water Act (CWA), guidelines for the disposal and utilization of sewage sludge. Under Section 405(e), owners and operators of publicly owned treatment works (POTW’s) must comply with these guidelines. Sewage sludge often contains valuable organic matter and plant nutrients, and it may be distributed to the public as a soil conditioner or fertilizer. Such distribution of sewage sludge may be regulated under the Consumer Product Safety Act (CPSA) or the Toxic Substances Control Act (TSCA), in addition to Section 405 of the CWA. Where such overlapping jurisdiction exists, EPA seeks to integrate and coordinate its regulatory actions to the extent feasible. Such efforts give the regulated community a clear picture of its obligations and improve the administrative efficiency of the Agency, both of which advance the environmental objectives contained in EPA’s various statutory authorities. Section 1006 of RCRA specifically recognizes the need to integrate the solid and hazardous waste programs with other EPA regulatory programs. To that end EPA has decided to develop a comprehensive set of regulations to deal with sewage sludge management. Such regulations would be co-promulgated under RCRA (Subtitles C and D), the Clean Water Act, the Marine Protection, Research and Sanctuaries Act and possibly the Toxic Substances Control Act and/or the Consumer Product Safety Act. These regulations will address sewage sludge ------- 33102 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations from both private and public sources, including septic tank pumpings. In devising such regulations the Agency will, of course, make the distinctions and classifications necessary to make the regulation comport with the goals and requirements of each statute. Under such a comprehensive regulation, sewage sludge’that would otherwise meet the test fo being hazardous under Subtitle C will be subject to requirements providing a level of protection to human health and the environment equivalent to that found in the Subtitle C regulations. The Agency has issued and is developing regulations which will eventually be part of the comprehensive sewage sludge regulation. For example the Agency promulgated Criteria for the Classification of Solid Waste Disposal Facilities and Practices (44 FR 53438) on September 13, 1979. These regulations, which apply to sewage sludge, include special provisions for the land application of solid waste to food chain crops and for the prevention of disease from pathogens contained in sewage __ sludge and septic tank pumpings. EPA issued the Criteria under the authority of Sections 1008(a)(3) and 4004(a) of RCRA as well as Section 405(d) of the CWA. EPA has also published two technical bulletins that provide guidance on sludge management: “Municipal Sludge Management: Environmental Factors” (42 FR 57420) and “Application of Sludges and Wastewater to Agricultural Land; A Planning and Education Guide.” In addition the Agency is in the process of developing regulations on the distribution and marketing of sewage sludge which will focus on the use of such matei ial as a soil conditioner or fertilizer These regulations will, at a minimum, be promulgated under Section 405(d) of the CWA. The Agency is also examining whether TSCA or CPSA authorities may be used in developing these regulations. The Agency’s strategy for the development of a comprehensive sewage sludge management regulation will eventually result in the establishment of a separate regulation. Once such a regulation is in place. sewage sludge will be exempted from coverage under other sets of regulations. In particular sewage sludge that - qualifies as a hazardous waste will be exempted from this Part and Parts 262 through 265 once this separate sewage sludge regulation, which will provide an equivalent level of protection, is issued in final form. - Pending promulgation of this comprehensive sewage sludge regulation, sewage sludge will not be specifically excluded from Subtitle C. Like any other solid waste, sewage sludge that exhibits any of the characteristics of hazardous waste established in this regulation must be managed as a hazardous waste. Some commenters urged EPA to list sewage sludge as a hazardous waste, contending that it was particularly hazardous when used in the growing of food chain crops because of the potential plant uptake of cadmium, PCB’s and other contaminants. The Agency has decided not to specifically list sewage sludge as a hazardous waste at this time. Itis difficult to make general - determinations about the hazardousness of sewage sludge, particularly those produced by POTW’s, because of the wide variations in sludge quality. The makeup of a given community’s sewage sludge, for example, reflects the range of contaminants generated by the industrial and commercial activities in the area. The sludges of two POTW’s will differ as much as the communities themselves. Determinations about the hazardousness of sewage sludge must, therefore, involve the making of some distinctions between types of sludge. EPA anticipates that it may make such distinctions as part of its comprehensive sewage sludge management regulations. Thus, it is reasonable for EPA to determine wheTher categorical classifications of sewage sludges are appropriate as part of the Agency’s effort to develop such a regulation. In addition it should be recognized that the particular hazard identified by the comment&s, namely uptake of contaminants in food-chain crops, is being addressed by existing regulations. As mentioned above, EPA has issued the Criteria for the Classification of Solid Waste Disposal Facilities and Practices under Subtitle D of RCRA, which place limits on the application of solid waste (including sewage sludge) to food-chain crops. In addition, it is developing regulations covering the distribution and marketing of sewage sludge, which often is used by consumers in gardens for growing food crops. EPA believes that these regulations address the commenter’s particular concern about cadmium and PCB contamination in sludge. E. Section 2615 (Special Requirements for Hazardous Waste Produced by Small Quantity Generators) 1. introduction. In enacting RCRA, Congress was responding to a problem of unknown magnitude and dimension. With specific reference to the generation- of hazardous waste, the I-louse Committee stated: One of the major problems to be addressed in the hazardous waste area is the lack of information concerning the components, volumes and sources of hazardous waste. To date there has been no survey or other wide ranging investigation of the sources of hazardous or potentially hazardous waste generation or disposal As a result, little is known about the actual volume of hazardous waste being generated, the geographical distribution of the generators or the extent to which hazardous wastes are transported LH.R Rep at 26]. In the proposed regulation, EPA recognized that the jirincipal focus of the regulatory program should be directed towards effectively controlling the hazardous waste generated by the larger sources of hazardous waste. The Agency was uncertain, however, about the most appropriate manner of regulating generators of small quantities of hazardous waste. The proposed regulations exempted from re ilation retailers and any person who generated and disposed of hazardous waste in quantities of less than 100 kilograms in any one month period, provided that these generators disposed of their waste in a waste disposal facility meeting the RCRA Section 4004 criteria or in a facility permitted to manage hazardous waste. In the preamble to the proposal, EPA explained the rationale for this exemption as follows: The principal element of this issue is how to balance the need to protect human health and the environment from the adverse impact of potential mismanagement of small quantities of hazardous waste with the need to hold the administrative and economic burden of management of these wastes under RCRA within reasonable and practical-limits (43 FR 58970) Since the time of proposal, the Agency has received and developed considerable information on the issue of the appropriate degree and manner of regulating small quantities of hazardous waste. The information obtained in this process indicates that the number of persons generating hazardous wastes is staggering. There are an estimated 760,000 large and small generators of hazardous wastes producing over 60 million tons of hazardous waste a year. The greatest amount of these wastes comes from very large generators, typically large manufacturing facilities. Just over 5 percent, or 40,000, of the total number of generators produce more than 5000 kg/mo of hazardous wastes; yet, these large generators produce 97.7 percent of the total quantity of hazardous waste. Roughly 91 percent, or 695,000 of the generators, produce less than 1000 kg/mo, yet contribute only one ------- Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 I Rules and Regulations 33103 rcent, or 600,000 tons per year, of the tal hazardous waste generated. At velã of generation below 100 kg/mo, 74 percent, or 563,000. of the generators produce only 0.23 percent. or 138,000 tons per year of hazardous waste. The types of business activity generating small quantities of hazardous waste differ markedly from those generating large quantities of hazardous waste, in contrast to large quantity generators, which are almost entirely from the manufacturing sector, over 89 percent of the small generators—those producing hazardous waste at rates of less than 1000 kg/mo—are from the non- manufacturing sector. These generators are scattered among such diverse sectors as construction, special trade contractors (e.g. plumbers, electricians), secondary schools, and local transportation systems. Gasoline service stations and automobile repair garages (for wastes other than waste lubricating oil) comprise nearly 30 percent of these non-manufacturing small generators of hazardous waste. The Agency has determined that the enormous number of small generators, if brought entirely within the Subtitle C regulatory system, would far outstrip the limited Agency resources necessary to achieve effective implementation. The information developed in the ulemaking process has led EPA to idopt, in the final regulations, a system which incorporates various aspects of the different approaches suggested in the preamble to the proposed rule. The final regulation sets low (1 to 100 kg/mo) quantity exclusion limits for certain extremely hazardous wastes; sets an initial general exclusion limit for generators of less than 1000 kg/mo of all other hazardous wastes; and conditions this general exclusion to assure that excluded wastes are disposed of in either authorized hazardous waste management facilities or facilities approved by a State for municipal or industrial wastes. EPA believes the approach adopted will allow EPA and the States to initially focus implementation and enforcement of the Subtitle C regulatory program on those generatcrs of hazardous waste who are presently producing 99 percent of all hazardous waste. In addition, the Agency will initiate rulemaking within 2 to 5 years to phase-in expanded Subtitle C coverage of small generators down to those generating more than 100 kg/mo quantities. - The final rule does not exempt retailers from coverage as did the roposed regulations. In the preamble to he proposed rule the Agency stated its ,elief that retailers rarely generate more than 100 kg/mo. However, commenters argued, and the Agency agrees, that some retailers may generate extremely hazardous wastes. Furthermore, some generators, such as large hardware or garden stores may generate substantial quantities of hazardous waste. To the extent that retailers do generate only very small quantities, they will be exempted by the exclusion level provided in the i egulations. Thus in the final regulation. retailers who generate hazardous waste are subject to the same requirements as any other generator. The background document responds fully to the diverse and numerous comments received on the proposed exemption of generators of small quantities of hazardous waste. This preamble will discuss the issue raised most frequently during the comment period—the consideration of hazard in establishing quantity limitations for hazardous wastes-and the rationale for setting an initial quantity exclusion of 1000 kg/mo and for phasing down the exclusion to 100 kg/mo. 2. Consideration of Hazard in Establishing Quantity Limitations. A number of commenters stated that EPA should use consideration of hazard in determinmg tke scope of regulatory coverage. Two methods were suggested: (1) Using quantity to define hazardous waste pursuant to Section 1005(5) of RCRA, i.e., determining the level for each waste below which it does not pose a substantial hazard to human health and the environment when improperly managed; or, (2) considering the degree of hazard presented by a particular waste to establish different levels or types of controls. Although both approaches are attractive, the Agency lacks at present the abilijy to use either approach in any extensive fashion, and therefore has had to adopt a general exclusion level. 3. Using Quantity to Determine That a Waste is Hazardous. The Agency considered whether the small quantity issue could be addressed through consideration of quantity in the definition of hazardccus waste. Specifically, the Agency considered whether small quantity exclusion limits could be established by defining de minimis quantities helow which a waste would not be hazardous under the statutory definition in Section 1005(5) of RCRA, i.e., below which no substantial hazard to human health and the environment exists under conditions of improper management. However, the Agency has not been able to find a way of determining de minimis quantities. To do so would require knowledge not only about the intrinsic properties of a waste hut also about the possible exposures that attend various small quantities of waste under various plausible scenarios of waste mismanagement. Such exposure assessments require consideration of waste properties, numerous site-specific conditions, and alternative management scenarios. For example, the levels of exposure and hazard which could result from leaching of toxic constituents from a particular hazardops sludge in a landfill would depend on factors such as the persistence of the waste, site hydrogeology, depth to the groundwater, the attenuation of the constituent in the underground environment (including degradation of the constituent and its dilution in the groundwater), and the location of persons using the groundwater. The problem is made more complex by the fact that many wastes may be managed in several alternative ways, such as land disposal, treatment, or incineration, and each of these types of management exhibits different exposure and risk patterns. Given current knowledge and information, these assessments cannot be made for most wastes with sufficient precision to determine the specific quantities which represent a threshold for finding a waste hazardous. Therefore, the Agency has not been able to establish de minimis quantities for defining hazardous wastes. The Agency must therefore consider all quantities of any waste listed or identified in Part 281’ to be hazardous. 4. Inability of the Agency to Use - Degree of Hazard. Because the Agency was unable to use quantity in determining whether a waste is hazardous, it considered using degree of hazard in determining the appropnate quantity exclusion level. Comm&nters heavily supported establishing exclusion liinits based on degree of hazard of various wastes. These suggestions were part of a broader set of comments which recommended that the Agency establish a degree of hazard system that placed wastes into two or more levels of hszard depending on the risk that those wastes present to public health and the environment. Commenters argued that such a system could be used as a basis for phasing regulatory coverage, tailoring waste management standards, and establishing small quantity exclusion levels. The Agency’s response to the full scope of the degree of hazard proposals is included in the preamble to the Part 264 and 265 regulations being promulgated today. As explained there, the Agency has not adopted a degree of hazard system in the final regulations. Among other reasons, the Agency ------- 33104 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations concluded that none of the degree of hazard systems suggested by commenters, nor any it could itself conceive, is capable of comprehensively distinguishing different degrees of hazard among the myriad of hazardous wastes without application of very subjective judgment. This precluded establishing small quantity exemptions based on a hierarchy of hazard levels. While the Age&cy has not found it possible to establish a comprehensive hazard ranking system, the Agency has attempted on a limited basis to make hazard diãtinctions in establishing small quantity cutoffs. The Agency has established very low exclusion limits for certain very acutely toxic or otherwise hazardous chemical products (if discarded), off-specification derivatives of those products, and the product containers and spill residues. The Agency may in the future establish specific (low) exclusion limits for other highly hazardous wastes on a case-by- case basis. 5. Limited Administrative Resources Require Setting the Initial Exclusion Level at 1000 kg/ma EPA has decided to adopt for the present time, a general exclusion level of 1000 kg/mo. The Agency’s basis for this decision is the current lack of sufficient administrative resources to allow the Agency and the States to effectively regulate all hazardous waste. Given that resource constraint, the Agency believes that the overall level of environmental protection which can be provided will be greater if the Agency focuses available resources on fully regulating wastes from large generators during the early years of regulation implementation rather than expanding the scope of regulatory coverage and achieving ineffectual implementation of a more ambitious program. The primary reason for selecting 1000 kg/mo, i.e., the administrative impossibility of implementing at lower levels, deserves some elaboration. As noted earlier, regulation of all generators of hazardous waste would bring 760,000 persons into the regulatory system. Regulating only those persons who generate more than 100 kg/mo would exclude from the program 560,000 generators, 73.9 percent of the total. If the exclusion level were set at 1000 kg/ mo, 695,000 generators or 91.2 percent would be excluded from regulation. At a 5000 kg/mo level, 722,000 generators or 94.7 percent would be excluded. In 1981, the first full year of implementing the Subtitle C controls, analyses of Agency and State workload requirements and available resources to implement the Subtitle C controls indicate that, if all generators were fully regulated, workload requirements would exceed resources available by 1100 to 1200 workyears. If generators of less than 100 kg/mo quantifies were exempted from full regulation, the shortfall would be much less, but still a substantial 200 to 300 workyears. However, if generators of less than 1000 kg/mo quantities are exempted, the shortfall is projected to be less than 100 workyears, about 5 percent of the total workload requirements. The resource constraints and shortfalls have direct significance for the operation of the entire regulatory program. To expand the coverage to smaller generators would require direct sacrifices from other elements of the program, most notably regulation and enforcement ofiarge generators, permitting of treatment, storage and disposal facilities, and enforcement and inspection of these facilities. Furthermore, with greater resource demands and projected shortfalls, greater difficulties are likely in the ability of States to obtain authorization to administer the program in lieu of the Federal government. Given the enormity of the implementation task and the limited administrative resources, EPA has been forced to make difficult allocation decisions. Expanding the coverage of generators would entail direct sacrifices from other essential program components. The determination of *e proper exclusion level in the final regulation represents a complicated balancing of a variety of factors. The decision reflects a judgment by the Agency that the overall environmental objectives will be best served by selecting a level which promises full and effective implementation of all elem nts of the program rather than one that promises ineffective implementation of a more ambitious program. Accordingly, EPA has decided to establish for the present time a conditioned exclusion of hazardous wastes from generators who produce less than 1000 kilograms a month. This level will enable EPA to direct its attention to the effective regulation of 99 percent of the total wastes generated, and will entail only insignificant, if any, sacrifices in the task of issuing permits to hazardous waste management - facilities. In addition, the exclusion is not unqualified; generators of small quantities of hazardous.waste must ensure that their wastes go to facilities that are approved by the State to handle municipal or industrial wastes. For most of these facilities the commingling of small quantities of hazardous waste with large quantities of non-hazardous waste is likely to minimize environmental problems attributable to the hazardous waste, particularly since dilution levels at a 1000 kg exclusion are generally at least 100 to 1. Importanfly, thisapproach will give State agencies more flexibility in dealing with sihall quantity generators. If a State determines that certain types of exempted hazardous waste should not be managed in a particular non- hazardous facility, it can deal with that situation directly. The Agency considered other types of reduced administrative or technical requirements for exempted generators, including various subsets of the full Subtitle C requirements. A limited number of commenters suggested particular reduced requirements which they felt would provide limited but necessary controls. The Agency’s analysis of various reduced Subtitle C requirements indicated that they would either provide an insignificant level of additional control, or that they would - not substantially reduce the administrative burden of the full Subtitle C requirements. Thus, the Agency decided to impose only the condition stated above. 6. Phasing Down the Coverage af Small Quantity Generators. On the basis of information presently available to the Agency, it appears that a general exclusion level of 100 kg/mo would better achieve the environmental protection objectives of Subtitle C. Therefore, EPA intends to initiate rulemaldng within 2 to 5 years to expand Subtitle C coverage down to generators of 100kg/mo. During this process, the Agency will consider the need for any special regulatory requirements to deal - with any unique problems associated with these wastes. A number of commenters argued that phasing regulatory coverage of ñmall generators would significantly benefit the administration of the hazardous waste management program. The Agency believes that because of limitqd resources, the Agency must phase its regulation of small generators to be able to fully implement the Subtitle C - controls on large generators, transporters, and waste management facilities. 7. Environmental Cansideratiojis. The information that the Agency was able to develop on the environmental impacts of - different quantity cutoff levels was not fully conclusive. However, the data indicate that an exclusion level of 100 kg/mo, coupled with lower exclusions - for certain highly hazardous wastes, an disposal of excluded waste in Subtitle C or State approved facilities will, in mosi ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33105 sses, minimize adverse impacts on uman health and the environment. The review of damage cases tends to support a 100 kg/mo exclusion level. First, there were very few damage cases involving quantities below that level. Second. those few cases involved indiscriminate dumping rather than disposal in managed facilities. This suggested that disposal of quantities less than 100 kilograms in a managed facility might provide sufficient environmental protection, even if the managed facility was not authorized to handle hazardous waste. Of the 11 damage incidents involving the disposal of less than 1000 kg quantities of hazardous waste in managed facilities the environmental damage or personal injury occurred in nine of the incidents because of mismanagement of single containers, i.e., 55 gallon drums of ignitable. corrosive or reactive materials. Setting the exclusion level at 100 kg/mo would in most cases ensure that single. full drums would be properly packaged and labeled, manifested and sent to Subtitle C facilities. A higher exclusion level would not provide this assurance. Wastes generated by small quantity g enerators at the 100 kg/mo exclusion level comprise only 0.23 percent of all hazardous waste. The environmental 3nalysis showed that these small enerator hazardous wastes are ypically mixed by the generator with non-hazardous wastes and subsequently disposed of in waste management facilities for municipal waste. If these mixed wastes were evenly distributed to such facilities, the dilution ratio of non- hazardous to hazardous waste would be roughly 900 to 1 at a 100 kg/mo exclusion limit. - Although even distribution will not occur. EPA believes that very large dilution ratios will result in most situations with a 100 kg/mo exclusion level. This is because 92 percent of the small generators (producing less than 100 kg/mo) are in the non-manufacturing sector and are distributed in reasonable proportion to population and, therefore, in reasonable proportion to quantities of diluting non-hazardous municipal wastes. The effect of even distribution - --and high dilution is to spread and, thereby, minimize exposure and risk. Although this effect cannot be assessed with great precision, it is not unreasonable to assume that human health exposure and risk is significantly reduced at dilution ratios of several hundred to 1. 8. Resource Considerations. Projecting dministrative resources into the future ; inherently speculative, requiring anous assumptions and estimates of tate and Agency budgets, and implementation workloads. The Agency studies assumed constant budgets, and predicted the administrative shortfall to become exacerbated, rallier than reduced over time. Other projections, presented in the background document for small generators. also suggest some resource difficulties in phasing-in the coverage of small generators, but these projections show that the resource picture may improve over time. The - Agency, however, believes it is appropriate to expand its regulatory coverage of small quantity generators, and will be seeking the budgetary increases necessary to accomplish that phasing. Additionally, once the regulatory apparatus is in place and operating, the Agency will be able to reassess the ability to achieve more comprehensive coverage by means of allocating its resources differently than presently projected. F. Section 261.6 (Special Requirements for Hazardous Waste Which Is Used, Re-used, Recycled or Reclaimed) This section sets forth the - applicability of the Subtitle C regulations to the storage and transportation of hazardous waste sludges and hazardous wastes listed in Subpart D that are used, re-used, recycled or reclaimed. It also provides for the exclusion from regulation of all other aspects of the use, re-use, recycling or reclamation of hazardous waste until EPA promulgates regulations to the contrary. The content of and rulemaking considerations that went into this section are fully discussed in Section IV. B. of this preamble. V. Subpart B—Criteria for Identifying Characteristics of Hazardous Waste and for Listing Hizardous Waste A. Section 261.10 (Criteria for Identifying the Characteristics of Hazardous Wastes) - Section 3001 of the Act requires EPA to develop and promulgate criteria for identifying the characteristics of hazardous waste. The proposed regulations identified two such criteria. The first criterion was that the characteristic be capable of being defined in terms of physical, chemical or other properties which cause the waste to meet the definition of hazardous waste in the Act. This criterion embodied the simple but fundamental — notion that a characteristic of hazardous waste must be one which causes the waste to be a hazardous waste within the meaining of the statutory definition. The second criterion was that the properties defining the characteristic be measurable by standardized and available testing protocols. EPA adopted this second criterion in recognition that the primary responsibility for determining whether wastes exhibit the characteristics rests with generators. It believed that unless generators were provided with widely available and uncomplicated test methods for determining whether their wastes exhibited the characteristics, the system would prove unworkable. Largely in reliance on this second criterion, EPA refrained from adding organic toxicity, carcinogenicity. mutagenicity, teratogenicity, bioaccumulation potential and phytotoxicity to the set of proposed characteristics and instead left it to listing mechanism to capture wastes exhibiting these properties. EPA considered the available test protocols for measuring these characteristics to be either insufficiently developed or too complex and too highly dependent on the use of skilled personnel and special equipment. Additionally, given the current state of the knowledge concerning such properties, EPA did not feel that it could define with any confidence the numerical threshold level at which wastes exhibiting these characteristics would present a substantial hazard. Furthermore, it questionçd whether these tests sufficiently took into account the multiple factors which bore on the question of the hazardousness of such wastes. - EPA received a few comments on its proposed criteria for identifying characteristics, the most significant of which addressed the appropriate use of the identified characteristics. A number of commenters contended that EPA did not have authority to require generators to assess their wistes in accordance with the characteristics. These commenters were generally concerned about the burden placed on generators by such a requirement and argued that the characteristrics should only be used by the Agency in listing hazardous wastes. Other commenters believed that EPA was fully justified in requiring generators to assess their wastes in accordance with the identified characteristics and felt that this would assure the broadest possible coverage for hazardous wastes. EPA disagrees with those commenters who argue that EPA has no authority to require generators to determine if their wastes exhibit any of the characteristics. Throughout the statute, Congress made reference to two alternative mechanisms for bringing a waste into the hazardous waste system—identification through characteristics, and listing. If Congress ------- 33106 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations had intended the identified characteristics to be used solely by EPA in listing wastes, then there would have been no point in making distinction between these two mechanisms. Consequently, since the determination of whether a waste exhibits the characteristics appears to require some action by someone other than EPA, the most reasonable interpretation of the statutory language is that it requires generators to assess their wastes in accordance with the EPA-identified characteristics. This interpretation of the statutory language is substantially reinforced by the provision in Section 3002(4) that generators may be required to furnish information on the general chemical composition of their waste—a requirement which presumes testing. The final regulation makes a few slight changes in the language of the criteria for identifying characteristics in an attempt to clarify the meaning of the regulation and better reflect EPA’s regulatory intent. First, EPA has omitted reference to damage incidents and scientific and technical information as bases for identifying characteristics, out of a conviction that this reference is unnecessary and in partial agreement with those who argued that damage incidents should not be heavily relied on in identifying characteristics. Second, EPA has omitted the redundant phrase “can be defined in terms of specific, physical, chemical, toxic, infectious, or other properties of a solid waste.” Third, EPA has expanded the criterion of “measurability” to make clear that any test for measuring characteristics must be within the capability of the generator community and to provide that characteristics such as reactivity need not be accompanied by a testing protocol if the characteristic can be “reasonably detected by generators. through their knowledge of the waste.” B. Section 261.11 (Criteria for Listing Hazardous Waste) In the proposed regulation, EPA specified two criteria for listing hazardous waste. The first criterion was that the waste possess one or more of the identified characteristics. The second criterion was that the waste meet the definition of hazardous waste found in Section 1004(5) of the Act. The first criterion to a large extent - reflected EPA’s regulatory strategy at the time of the proposal. Under that strategy, EPA planned to identify and quantitatively define all of the characteristics of hazardous waste, including organic toxicity, carcinogenici ty, mutagenicity, teratogenicity, bioaccumulation potential and phytotoxicity. Generators would be required to assess their wastes in accordance with these characteristics and EPA would list hazardous wastes where it had data indicating the wastes exhibited one of the identified characteristics. Listing would thus play a largely supplementary function and would serve as a device for injecting certainty into the process of hazardous iNaste determination. As noted above, however, EPA has found it impossible to fully effectuate this strategy because of the lack of suitably uncomplicated test protocols, the difficulty of establishing numerical hazardous threshold levels for these additional characteristics, and the failure of the available test protocols to fully incorporate all of the multiple factors bearing on the hazards presented by such characteristics. The second criterion was adopted against the backdrop of this inability to capture all hazardous wastes through identified characteristics, and was intended to give the Agency an independent basis for capturing such wastes. Although this proposed criterion was admittedly somewhat general in nature, it implicitly incorporated the more specific criteria embodied in the delisting requirements and the waste codes which accompanied each listing— provisions which made it clear that EPA was specifically concerned with radioactive, mutagenic, bioaccumulative, toxic organic and infectious wastes. Thus, although EPA appeared to have prescribed for itself a very broad and inexact listing standard in the proposed regulation, in actuality the Agency followed a fairly particularized set of criteria in listing wastes. EPA received a large number of comments in response to its proposed criteria for listing. None of these conunenters objected to EPA’s first criterion for listing wastes that exhibit one of the characteristics. A large - number of commenters, however, objected to the second criterion. Many of these commenters felt that the mere articulation of the statutory definition as the basis for listing was circular and constituted an abrogation of EPA’s statutory duty to establish criteria for listing which expand upon the statutory definition. Others argued that the second criterion was inappropriate because it failed to take into consideration such things as concentration, degradation potential and bioaccumulation potential—factors which are specifically mentioned by the Act. EPA agrees that the proposed criterion for listing wastes which do not exhibit any of the characteristics was as a general matter, too broad. Accordingly, we have promulgated a considerably expanded and more specific set of criteria to take the place of the proposed criterion. These criteria are broken down into two categories— criteria for listing acutely hazardous waste and criteria for listing toxic waste. The criteria for listing acutely hazardous waste are intended by EPA. to serve as the criteria for identifying wastes which are so hazardous that they can be said to meet part (A) of the statulory definition of hazardous waste—i.e., wastes which may “cause, oi significantly contribute to an increase in serious irreversible,’or incapacitating reversible, illness”, regardless of how they are managed. It is EPA’s conviction that most wastes are hazardous only because they “pose a substantial present or potential hazard to human health or the environment when improperly managed” and thus meet part (B) of the statutory definition of hazardous waste. Nevertheless, EPA recognizes that there are wastes which are so acutely hazardous that they can be considered to present a sub,stantial hazard whether improperly managed or not. EPA has defined this category of wastes to include those which have been shown to be fatal to humans in doses-or have been shown in mammalian studies to have an oral LD 50 toxicity of less than 50 milligrams per kilogram. (as determined using rats), an inhalation LC 50 toxicity of less than 2000 milligrams per cubic meter (as determined using rats), or a dermal LD 50 toxicity of less than 200 milligrams per kilogram (as determined using rabbits). Numerous government agencies and private organizations, including the Department of Transportation, the Consumer Product Safety Commission and the National Academy of Sciences, recognize that substances exhibiting these LD 50 and LC 50 toxicities are so potentially lethal as to be considered poisonous or acutely toxic. EPA has also defined this category of wastes to include wastes, such as explosives, which otherwise meet part (A) of the statutory definition of hazardous waste. This has been done in recognition that wastes may be acutely hazardous even if they are not toxic. Inasmuch as a waste will meet the acutely hazardous criteria only when the whole waste, rather than just its constituents, presents an acute hazard, EPA has employed and intends to employ these criteria primarily to list the discarded pure chemical substances and associated materials specified in § 261.33. EPA recognizes, however, that there may be ------- Federal Register / Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations 33107 wastes such as wastes containing substantial concentrations of potent carcrnogens which meet these criteria even though they are not pure substances. The criteria for listing toxic wastes are intended by EPA to identify all those wastes which are toxic, carcinogenic, mutagenic, teratogenic, phytotoxic, or toxic to aquatic species. These criteria provide that a waste will be listed where it contains any of a number of designated toxic constituents—unless. after consideration of certain specified factors. EPA concludes that the waste does not meet part (B) of the statutory definition of hazardous waste. As in the propos!d regulation, the ultimate requirement for listing a waste as hazardous is whether it meets the definition of hazardous waste found in - the Act. Unlike the proposed regulation. however, the final criteria significantly channel the route the Agency must follow in determining whether a waste meets the statutory definition. The first inquiry which must be made under the final criteria is whether the waste contains any of the toxic constituents listed in Appendix VIII. These constituents are ones which have been shown in reputable scientific studies to have toxic, carcinogenic, mutagenic or •teratogenic effects on humans or other life forms and include such substances as those identified by the Agency’s Carcinogen Assessment Group. Consequently, the presence of any of these constituents in the waste is presumed to be sufficient to list the waste unless after consideration of the designated multiple factors, EPA concludes the waste is not hazardous. These multiple factors include the type of toxic threat posed, the concentrations of the toxic constituents in the waste, the migration potential, persistence and degradation potential of the toxic constituents, the degree to which the toxic constituents bioaccumulate in ecosystems, the plausible types of improper management to which the waste could be subjected, the quantities of waste generated, and other factors not explicitly designated by the Act. including damage incidents involving wastes containing the toxic constituents and actions taken by other — governmental agencies with respect to the waste or its toxic constituents. EPA has adopted this flexible, multiple factor approach to listing rather than the formulaic approach embodied in the charactenstics because it considers this approach to be better able to accommodate itself to complex determinations of hazard. EPA further believes that this multiple factor approach was to some extent contemplated by Congress. Most of the factors selected are specifically mentioned in Section 3001 of the Act. Additionally, the report which accompanied the Senate bill provided that at a minimum the Administrator should designate as hazardous each mixture of solid waste which contained a toxic or hazardous substance listed in section 112 of the Clean Air Act or section 307(e) and section 311(b) of the Clean Wster Act unless he determined that the waste did not meet the criteria for identifying hazardous wastes. Senate Report 94—988, 94th Cong., 2d Sess. at 14. Thus the Senate bill, like EPA’s final regulations, envisioned a presumption in favor of listing based on the presence of a toxic constituent in the waste which is rebuttable by a consideration of further factors. Although the Senate version of the bill was not adopted, the concept embodied therein was not specifically rejected in the final statute, providing - some further basis for concluding that EPA’s approach for listing toxic wastes reflects congressional intent. As can be seen from the above discussion, the final criteria for listing reflect a change in emphasis in the Agency’s regulatory strategy. EPA is not fully confident that it can suitably define and construct testing protocols.for the characteristics of organic toxicity, carcinogenicity, inutagenicity, teratogeriicity, bioaccumulation potential, phytotoxicity. radioactivity and infectiousness, and is consequently relying on the listing mechanism to bring wastes exhibiting these properties into the system. One negative aspect of this change in approach is that it shifts to EPA the primary burden for identifying, analyzing and evaluating these wastes with the result that it may take longer to achieve full regulatory coverage. This negative aspect is substantially offset, however, by the greater flexibility and assurance which the listing approach provides, especially when accompanied by the delisting procedure. A notable difference between the approach embodied in the characteristics and the approach embodied in the criteria for listing is that EPA attaches less emphasis to waste constituent migration and subsequent environmental fate in the listing mechanism than in the characteristics. This is nowhere better demonstrated than in the listing of waste which -contain primary drinking water standards contaminants. In listing wastes which contain primary drinking water standards contaminants EPA has elected to focus, in the first instance, on the actual presence of the toxic’ constituent in the waste and to treat other factors such as migration potential as essentially mitigating considerations which might render the waste non- hazardous. EPA feels justified in concentrating primarily on the composition of the waste because the listing mechsnism allows for a more individualized consideration of hazard and because the delisting procedure affords generators an opportunity to demonstrate, through reliance on the specified factors, that theft waste is not in fact hazardous. In the case of wastes exhibiting the characteristic of EP toxicity. on the other hand, there is no opportunity to make such a demonstration—since the test prescribed in the characteristic constitutes a final determination of hazard. Consequently, out of concern that the characteristic not be overinclusive, EPA has placed somewhat greater emphasis on migration potential and has rigorously incorporated this consideration into the EP test. As noted in section Ul.A.3. of this preamble, EPA intends to supplement the listing criteria to allow hsting of radioactive and infectious wastes. We are deferring promulgation of the criteria for listing radioactive wastes because we want to wait until Congress has spoken on this issue and because deferral will give EPA more lime to refine its. standards for listing these wsstes and to coordinate these standards with the regulations governing used. re-used recovered, and reclaimed wastes. We are similarly deferring promulgation of the criteria for listing infectious wastes because we have not finished developing the treatment standards applicable to such wastes. A few clarifying changes have heen added to the final regulstion. First, the regulation provides that EPA may list classes or types of wastes if it has reason to believe that all wastes within the class or type typically or frequently are hazardous. Second, the regulation provides that the criteria for listing will be used to establish the exclusion limits for acutely toxic wastes generated by small generators. These exclusion limits are referred to in § 261.5(c). VI. Subpart C—Cbaractqristics of Hazardous Waste A. Section 261.20—General This section is largely self- explanatory. It states that a solid waste is a hazardous waste if it exhibits any of the characteristics of hazardous waste, explains the assignment of EPA Hazardous Waste Numbers, and ------- 33108 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations explains the method for obtaining a representative sample in testing for characteristics. Rather than specifying particular procedures to be used in obtaining representative samples, EPA is simply requiring the regulated community to obtain samples which meet the definition of representative sample found in Part 260 of the regulations. To provide some guidance concerning compliance with this requirement, EPA will consider any sample obtained using the sampling methods indexed in Appendix Ito be a representative sample within the meaning of the Part 260 definition. Since, however, these sampling methods are not being officially required by EPA anyone desiring to use a different sampling method may do so without demonstrating the equivalency of that method under the procedures set forth in - § 260.21. B. Section 281.21 (Characteristic of Ignitability) In the proposed regulation, EPA defined ignitable waste to include the following: (1) Liquids having a flashpoint of less than 140° F (600 C) (2) non-liquids liable to cause fires through friction, absorption of moisture, spontaneous chemical change or retained heat from manufacturing or liable, when ignited, to burn so vigorously and persistently as to create a hazard (3) ignitable compressed gases and (4) oxidizers. - EPA’s objective was to identify wastes capable of causing fires during routine transportation, storage and disposal and wastes capable of severely exacerbating a fire once started. Such fires, EPA recognized, pose a particular danger to transportation and disposal personnel and also threaten the general public by generating toxic fumes and creating convection currents which transport toxic particulates to the surrounding area. EPA adopted the Department of Transportation’s definitions of ignitable compressed gas and oxidizer and borrowed heavily from the Department of Transportation’s definition of non-liquid ignitable because it believed these definitions adequately reflected routine waste management conditions. At the same time, it chose a flashpoint limit for ignitable liquid wastes different from that specified by the Department of Transportation’s “flammable” liquid category because it believed that the flashpoint limit specified by the Department of Transportation did not fully reflect conditions likely to be encountered during routine waste management. A large number of commenters argued that EPA should adopt the Department of Transportation’s 100° F flashpoint for flammable liquids These commenters argued that EPA’s adoption of a different fiashpoint limit from the Department of Transportation is not justified by conditions likely to be encountered during waste management and will create undue confusion in the regulated community. The Agency disagrees with these commenters A number of EPA studies reveal that ambient temperatures of 140° F are regularly encountered during landfill disposal. In such environments, liquid wastes with flashpoints lower than 140° F will readily volatilize and can be easily ignited by the numerous ignition sources to which wastes are exposed during management. The need to regulate such wastes-as borne out by an early Department of Transportation study which recommended that the Department of Transportation adopt a flashpoint limit of 140° F for flammable liquids because temperatures of this order can be encountered during transportation. The commenters who argue that EPA’s 140° F flashpoint limit is not justified by waste management conditions forget that, through the creation of its “combustible liquid” category, the DepartmeiIrof Transportation regulates liquids with flashpoints of up to 200° F—a tacit acknowledgement that EPA’s 140° F flashpoint is well within the sphere of potential concern EPA does not believe that its ignitable liquids category will create undue confusion in the regulated community The term “ignitable” was specifically chosen to eliminate confusion between EPA’s “ignitable” liquids category and the Department of Transportation’s “flammable” liquids category. Furthermore, EPA’s ignitable liquids category is one with which the regulated community should already be familiar since it encompasses Class I and Class II liquids in the National Fire Protection Association’s classification scheme. While EPA believes that maintaining consistency between its definitions of hazard and those of the Department of Transportation is a desirable goal, it does not believe that such consistency should be achieved at the expense of human health and environmental protection. A number of commenters argued that the 140° F flashpoint for liquids improperly included many liquid wastes such as wine and some latex paints which exhibit low flashpoints because of their alcohol content but do not sustain combustion because of the high percentage of water present. EPA agrees that such wastes should not be designated as hazardous, but unfortunately has no data on hand which identifies the correlation betweex the concentration of alcohol in such wastes and the established flashpoint 01 140° F. Accordingly, it has for the time being opted to follow the Department of Transportation’s lead and exclude from its ignitable liquids category aqueous solutions containing less than 24 percent of alcohol by volume: This exclusion will remove from the ignitability, characteristic liquid wastes which the Agency knows may flash but not sustain combustion. In the meantime, EPA hopes to undertake further study to determine whether another exclusion limit is more appropriate and to evaluate tests which might be capable of identifying wastes which exhibit this p ienomenon. - Many commenters argued that the proposed definition of solid ignitable wastes was too vague and that a testing protocol was needed to provide proper guidance. A number of these commenters took particular issue with the phrase”. . . or when ignithd burns so vigorously and persistently as to create a hazard during its management .“ which they felt could be construed to include such non-hazardous materials as baik, wood chips, wastepaper, sawdust, corrugated boxes, etc. EPA agrees that the groposed - definition of solid ignitable wastes was perhaps imprecise and could stand clarification. It has no intention of designating such things as wastepaper and sawdust to be hazardous and is only interested in capturing the small class of thermally unstable solids which are liable to cause fires through friction, absorption of moisture or spontaneous chemical changes. Accordingly, to eliminate any misunderstanding, we have changed the definition of ignitable solid to read “. . . and when ignited bums so vigorously and persistently that it creates a hazard.” Although EPA would have preferred providing a test method for identifying ignitable solids, it has determined, after diligent inquiry, that there are no test methods cakable of accurately identifying the small class of ignitable solids to which its regulation is directed. EPA is presently working with the Department of Transportation and other organizations to correct this deficiency. In the meantime, the absence of a test should not cause too much of a problem since generators of thermally unstable solids, like generators of reactive wastes, are likely to be aware tha% their waste exhibits this property. A number of commenters argued that EPA improperly included in its definition of ignitable solids, wastes such as slags which are liable to cause ------- ! w!eral Register / Vol. 45. No. 98 / Monday. May 19. 1980 / Rules and Regulations 33109 fires through “retained heat from manufacturing or processing.” EPA agrees that these wastes should not be designated as hazardous and has accordingly deleted the phrase “or retained heat from manufacturing or processing” from the defin ition of ignitable solids. EPA was originally concerned that wastes such as slags, if placed in a landfill, could present a hazard by raising the temperature of other wastes to their flashpoints. It is now convinced that the likelihood of such high volume wastes being placed in a landfill is sufficiently small as not to w rrant their regulation. C. Section 261.22 (Characteristic of Corrosivity) In the proposed regulation, EPA defined corrosive wastes to indlude (1) aqueous wastes exhibiting a pH of less than or equal to 3 or greater than or equal to 12 and (2) liquid wastes capable or corroding steel at a rate greater than 0.250 inches per year. This definition attempted to address the various hazards presented by corrosive wastes. EPA chose pH as one barometer of corrosivity because wastes exhibiting low or high pH can cause harm to human tissue, promotethe migration of toxic contaminants from other wastes, react dangerously with other wastes, and harm aquatic life. EPA chose metal corrosion rate as its other barometer of corrosivity because wastes capable of corroding metal can escape from the containers in which they are segregated and liberate other wastes. A majority of commenters argued that the proposed pH limits were unduly stringent. These commenters pointed out that the proposed upper pH limit of 12.0 would include many otherwise non- hazardous lime-stabilized wastes and sludges. thereby discouraging use of this valuable treatment technique. They further pointed out that the proposed lower pH limit of 3.0 would include a number of substances generally thought to be innocuous and many industrial wastewaters pnor to neutralization. They questioned EPA’s assertion that the proposed lower pH limit was needed to protect against tissue damage. EPA agrees that the proposed pH limits were unnecessarily stringent and has accordingly adjusted the upper pH limit to 12.5 and the lower pH limit to 2.0. In originally establishing the proposed limits, EPA was confronted with the difficulty that while the tendency to promote the solubilization of heavy metal contammants and to cause harmful reactions generally increas,es as pH approaches the upper and lower limits of the pH scale, there are no threshold levels for these effects. Consequently, to a significant extent, EPA based the proposed pH levels on studies demonstrating a correlation between pH and eye tissue damage. Since eye tissue is considered to be more sensitive than other human tissue. the proposed pH levels were unnecessarily conservative and had the unintended effect of inhibiting the use of such beneficial processes as the lime stabilization of wastes. The expanded pH range being adopted today rectifies this problem by excluding such things as lime stabilized waátes from the system. It also addresses the problem of tissue damage more realistically while at the same time providing ample protection against the solubilization of toxic contaminants and dangerous reactions. A number of commenters commepted on the need for addressing percent acidity and alkalinity in the pH provision of the corrosivity characteristic. A few commenters favored adding percent acidity/ alkalinity to the pH provision because it would provide useful information for disposal purposes. Most commenters, however, felt that percent acidity/ alkalinity should not be addressed because it would not add significantly to the determination of hazard and would require the use of a more complicated measurement technique EPA agrees with most commenters that the addition of percent acidity/ alkalinity to the pH provision is unnecessary. Percent acidity/alkalinity provides an indication of the capacity of a waste to resist a change in pH and therefore to aid in the assessment of the hazard prpsented by a waste over the long term. However, it adds little to the assessment of the hazard posed by the waste during transportation, storage and initial disposal. Furthermore, because the capacity of a waste to retain low or high pH is as much a function of its disposal or storage environment as of its percent acidity/alkalinity, the Agency knows of no scientifically valid basis upSn which to establish hazardous threshold levels of percent acidity/ alkalinity. Accordingly, EPA has elected not to address percent acidity/alkalinity in the corrosivi ty characteristic. A few continents were received on the need for including corrosive solids in the corrosivity characteristic. All advocated including solids in the corrosivity characteristic but none described situations where the improper disposal of such wastes would be likely to cause damage. EPA has concluded that, inasmuch as the great majority of wastes are presumed to be in liquid or semi-liquid form, there is no demonstrated need to address corrosive solids at this time. EPA will, however, continue to seek information on the dangers presented by these wastes and will consider specific regulatory measures if the need for more control betomes apparent. A number of commenters suggested that the corrosivity characteristic should address tissue damage more directly and employ a skin corrosion test. Several of these commenters pointed to a Consumer Product $afety Commission survey which ostensibly casts doubt on the ability of pH to predict tissue damage. EPA believes that there is sufficient correlation between pH and tissue damage to justify the use of pH in a regulatory context, especially in view of the fact that it is using pH as a multi- purpose measure of many elements of concern. Requiring the regulated community to conduct skin corrosion tests, which necessitate the maintenance of special facilities and skilled personnel, would prove - unnecessarily burdensome and would yield little in the way of extra results. Accordingly, EPA is not including a skin corrosion test in the final regulation. At least one commenter noted that the NACE metal corrosion test specified in the proposed regulations permits variation in a number of test conditions. To correct this problem, EPA has standardized the conditions of the NAtJE test in its test methods guidance manual and has required generators to utilize this standardized version in running the test. D. Section 261.23 (Characteristic of reactivity) The proposed regulation defined reactive wastes to include wastes which (1) readily undergo violent chemical change,j2) react violently or form potentially explosive mixtures with water (3) generate toxiciunies when mixed with water or, in the case of cyanide or sulfide bearing wastes, when exposed to mild acidic or basic conditions (4) explode when sublected to a strong initiating force (5) explode at normal temperatures and pressures or (6) fit within the Department of Transportation’s forbidden explosives. Class A explosives, or Class B explosives classifications. This definition was intended to identify wastes which, because of their extreme instability and tendency to react violently or explode, pose a problem at all stages of the waste management process. The definition was to a large extent a paraphrase of the narrative definition employed by the National Fire Protection Association, although test protocols for measuring thermal and shock instability were ------- 33110 Federal Register/ Vol. 45, No. 98 / Monday, May 19, 1980 / ules and Regulations pr scribed as a partial aid in assessing reactivity. The Agency chose to rely on a descriptive, prose definition of reactivity because the available tests for measuring the variegated class of effects embraced by the reactivity definition suffered from a number of deficiencies. EPA received a large number of comments which argued that the prose definition of reactivity employed by EPA is too indefinite and vague and gives generators inadequate guidance in assessing the reactivity of their waste. These comments advocated replacing the prose definition with a numerically quantified definition accompanied by appropriate testing protocols. EPA has attempted where possible to define hazardous waste characteristics in terms of specific, numerically quantified properties measurable by standardized testing protocols. The availabletest methods for reactivity, however, suffer from a number of generic and individual shortcomings which make a numerically quantified definition with accompanying test protocols inappropriateLFirst, these tests are too restrictive m scope and confine themselves to measuring how one specific aspect of reactivity correlates with a specific initiating condition or stress. No test is sufficiently general to even begin to measure the variety of different stresses and reactions found within the reactive classification. Second. because the reactivity of a waste sample is a function not just of its intensive - properties such as density and composition but also of its extensive properties such as mass and surface area, the reactivity of the sample as measured by the tests will not necessarily reflect the reactivity of the whole waste. Third, most of the available tests are not of the “pass-fail” type and require subjective interpretation of the resi lts. The unavailability of suitable test methods for measuring reactivity should not cause problems. Most generators of reactive wastes are aware that their wastes possess this property and require special handling. This in because such wastes are dangerous to the generators’ own operations and are rarely generated from unreactive feed stocks. Consequently, the prose definition should provide generators with sufficient guidance to enable them to determine whether their wastes are reactive. - A number of commenters argued that the two proposed test methods for measuring reactivity were, among other things, unreliable and difficult to interpret. EPA agrees with these commenters that the two proposed test methods—the Explosion Temperature Test and the Bureau of Explosives shock instability test suffer from a number of inadequacies and add little to the prose definition. Although the Explqsion - Temperature Test was originally thought to be a suitable method for measuring one aspect of reactivity, field testing demonstrates that this test requires subjective interpretation of the results Re-evaluation of the shock instability test suggests that it too possesses problems which make its utility as a, measure of reactivity questionable— especially in view of its narrow scope. Accordingly, EPA has stricken these two tests from the regulations except to the extent the Department of - Transportation’s definition of Class A explosives requires use of the shock instability test. Several commenters took issue with the inclusion in the reactivity definition of any waste which “generates toxic gases, vapors or fumes when mixed with water” and “any cyanide or sulfide bearing waste which can generate toxic gases, vapors or fumes when exposed to mild acidic or basic conditions.” These commenters complained that this language lacks specificity. As an example, they noted that quite a few things contain sulfides and cyanides in trace amounts and can generate minute quantities of hydrogen sulfide or hydrogen cyanide under acidic or basic conditions. EPA agrees that the language in question could benefit from clarification. Ithas accordingly amended the regulation to include only those wastes which generate toxic gases, vapors and fumes in “a quantity sufficient to present a danger to human health or the environment”. It has also specified that, by mild acidic or basic conditions, it means pH conditions of between 2 and 12.5. This pH range was chosen because only waste inside this pH range can be managed without regard to the prohibitions imposed by Subtitle C. Consequently, these pH conditions are likely to be the most stringent encountered by cyanide and sulfide bearing wastes. E. Section 261.24 (Charactenstic of E l ’ Toxicity) There is persuasive evidence that the contamination of groundwater through the leaching of waste contaminants from land disposed wastes is one of the most prevalent pathways by which toxic waste constituents migrate to the environment. EPA’s damage files contain numerous incidents of groundwater pollution resulting from the indiscriminate dumping and improper landfilling of wastes. Additionally, the legislative history of RCRA is replete with indications that such groundwater contamination was one of Congress’ primary areas of concern. In the proposed regulation, EPA addressed this problem by developing a test procedure called the Extraction Procedure (EP) designed to identify wastes likely tq leach hazardous concentrations of particular toxic constituents into the groundwater under conditions of improper management. Under this procedure, constituents were extracted from the waste in a manner designed to simulate the leaching action that occurs in landfills. This extract was then - analyzed to determine whether it possessed any of the toxic contaminants identified in the National Interim Primary Drinking Water Standards (NIPDWS). If the extract contained any of the contathinants in concentrations 10 - times greater than that specified in the National Interim Primary Drinking Water Standards, the waste was considered to be hazardous. - Like othei test procedures employed to identify h zardous characteristics, the EP was intended to serve as a quick test br identifying wastes which are capable of posing a substantial present or potential hazard when improperly managed. Consequently, in devising the test, EPA necessarily had to make certain assumptions about the improper management to which toxic wastes capable of contaminating groundwater are likely to be subjected. In making such assumptions, EPA believed it important to employ a reasonably conservative mismanagement scenario—in view of the statutory mandate to protect human health and the environment, the broad statutory definition of hazardous waste and also because the phenomenon of long term leaching is only incompletely understood. On the other hand, EPA considered it important not to utilize a wholly implausible mismanagement scenario, since by doing so it would end up regulating as hazardous those wastes which were quite unlikely to ever cause a problem. The result of these deliberations was a decision to model the EP upon a mismanagement scenario for toxic wastes which constitutes a prevalent form of improper management—namely, the co-disposal of toxic wastes in an actively decomposing municipal landfill which overlies a groundwater aquifer. EPA realized in making its co-disposal assumption that actively decomposing municipal waste landfills generate more aggressive leachate media than other landfills and thus, that its assumption was a relatively conservative one. It ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33111 ievertheless believed the co-disposal issumption to be reasonable, first, iecause wastes are customarily iandfilled, second, because most categories of waste have the potential to be disposed of in municipal waste landfills, third, because the predicted degree of contaminant concentration in leachate could occur with respect to wastes which are not likely to be disposed of in municipal landfills and fourth, because Congress expressed particular concern about the disposal of toxic wastes in municipal landfills EPA also realized its assumption that the landfill overlies a groundwater aquifer was a relatively conservative one. It believed, however, that this assumption was consistent with its concern for the disposal of wastes in environmentally sensitive areas and with the fact that a groundwater body, once contaminated, may remain contaminated for a number of years. Furthermore, it believed this assumption to be somewhat mitigated by its further assumption that there would be some attenuation in the concentration of toxiáants m the leachate between the point the leachate leaves the disposal site and the point the toxicants reach environmental receptors. Taking these assumptions as its ramework, EPA developed the EP test o simulate the physical processes which would occur in an actual landfill characterized by these assumptions. To simulate the acidic leaching medium which occurs in actively decomposing municipal landfills, EPA chose to employ an acetic acid Leaching medium with a pH of 5.0 (±0.2). To simulate the leaching process. EPA specified a jnocedure requiring mixing of the solid componept of the waste with the acidic leaching medium for a period of 24 hours. To duplicate the attenuation in concentration expected to occur between the point of leachate generation and the point of human or environmental exposure, EPA applied a dilution factor of 10 to the concentration of toxic constituents observed in the test extract. EPA was convinced that the proposed EP represented a valid and acceptable test for identifying wastes likely to leach toxic constituents into groundwater. Because, however, this test ,was innovative in character and reflected a fair amount of groundbreaking inquiry, it drew the greatest response from the public of all the test protocols utilized in identifying the characteristics. The most nportant of these comments are scussed below. A number of commenters expressed uisagreement with EPA’s proposed use of a 10-fold dilution factor to calculate the attenuation in toxicant concentration expected to occur between the point at which the leachate leaves the waste and the point of human or environmental exposure. Some comrnenters thought that the 10-fold dilution factor was too liberal and that no dilution factor would be more appropriate. The malority felt that the 10-fold dilution factor was too conservative and that a higher dilution factor would be more appropriate. Choosing an attentuation factor which reasonably represents the amount of attenuation likely to occur in the real world was one of the most difficult problems EPA faced in formulating the EP—a probtem which reflects in microcosm many of the difficulties of modeling complex physical processes with a short term test. As leachate migrates vertically from the landfill site towards the groundwater strata, a number of attenuating processes can occur—including adsorption, absorption, ion exchange, filtration, and dilution. When the leachate enters the groundwater zone its movement changes from vertical to horizontal and it will tend to form a slug or plume of contaminated water rather than mix generally with the groundwater flow. This plume of contaminants may experience some dilution, depending on the local geology, the groundwater flow, and the nature of the contaminants. Once the plume of contaminated water is drawn into a pumping well, some further dilution tends to take place, depending upon the amount of water withdrawn and the rate at which it is withdrawn. Unfortunately, all these attenuation mechanisms are dependent upon site specific conditions. While some sites may exhibit attenuation of 500-fold, others will exhibit very little attenuation at all. Moreover over time, a site that originally exhibits 500-fold attenuation may become so saturated that the attenuation mechanisms no longer work and the site begins to flush at the same rate at which it is charged. In order to formulate a reasonable dilution factor, EPA assumed in the proposed regulations that leachate from the landfill passed unattenuated through the soil underlying the landfill to the groundwater zone and that drinking water wells were situated 500 feet down gradient from the landfill site: Relying on projections from a mathematical model which incorporated these assumptions and on empirical data from field analyses, EPA concluded that a dilution factor of 10 was a conservative, but reasonable, figure. EPA has had an opportunity to carefully re-evaluate its original choice of a dilution factor and is now of the opinion that the 10-fold dilution factor was inappropriate. A number of considerations have prompted it to come to this conclusion. In the first place, EPA is concerned that, while the dilution factor plays a critically important role in determining the scope of coverage of the EP, there is relatively little empirical data upon which to base such an attenuation facior. It is consequently somewhat troubled by its assumption that the soil underlying the landfill is a delay mechanism only and that there is no attenuation in the concentration of toxic contaminants between the point of actual leachate generation and arrival at the groundwater aquifer. Second, in view of this uncertainty, EPA attaches some importance to the fact that there is no variance or “delisting” procedure for wastes which fail the EP. This absence of a variance procedure, while perfectly permissible, tends to magnify the consequences of a wastes being anomalously brought into the system by the EP. Third, EPA believes the EP to be a somewhat less precise instrument than the listing mechanism for determining hazard, inasmuch as the EP fails to take into account factors such as the concentration of toxicants in the waste itself and the quantity of waste generated which could have a bearing on the hazardousness of the waste. EPA consequently prefers to entrust determinations of marginal hazard to the listing mechanism rather than to the EP. On the basis of these considerations, EPA has decided, pending the completion of further studies, to alter the proposed dilution factor by adopting an attenuation factor of 100. EPA is adopting a 100-fold attenuation factor because it is confident that anything which fails the EP at this factor has the potential to present a substantial hazard regardless of the attentuation mechanisms at play. If forthcoming studies demonstrate that another attenuation factor is more appropriate EPA will adjust the dilution factor accordingly. EPA does not intend this alteration in the dilution factor to constitute what may be perceived as an untoward relaxation of the EP. It is simply electing to exercise a degree of caution in the face of the lack of empirical substantiation for its EP leaching test to ensure that the EP only captures wastes which are certain to present a substantial hazard. Since this alteration of the attenuation factor is based as much on EPA’s desire to engage in ------- 33112 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations cautionary rulemaking as on an environmental re-evaluation of the attenuative processes which influence concentrations in leachate, EPA has listed and intends to continue to List wastes which have extract concentrations of less than 100-times drinking water standards. This Listing will to a significant degree compensate for the alteration in the attenuation factor and will pcevent the overall coverage of the Subtitle C regulations from being measurably reduced. A number of commenters argued that EPA improperly based the EP on a mismanagement scenario which assumed co-disposal in the acidic environment of a municipal waste landfill. These commënters generally argued that the co-disposal assumption is inapplicable to numerous classes of waste which are never co-disposed with municipal wastes and which do not leach at the aggressive rates characteristic of co-disposal situations. These commenters suggested that EPA employ an alternative leachate medium, such as distilled water, for those wastes which are unlikely to be co-disposed with municipal wastes. EPA disagrees with these commenters. EPA believes that the level of leachate concentration predicted by the El’ is reasonably in keeping with the concentrations which could realistically occur in most waste management situations and that employment of an acidic leaching medium is therefore appropriate. Most wastes, even those which are unlikely to be disposed of in a municipal landfill, are likely to come into contact with some form of acidic leaching media during their management histories or could otherwise encounter environments which could cause them to leach comparable levels of toxic constitutents. Furthermore, inasmuch as the phenomenon of long term leaching is not well understood and there is no consensus within the scientific community on a short term leaching test, EPA believes it has the power to employ a leaching model which fails to,iake into account the physical processes affecting particular generators even if this model errs on the side of caution. See, Ethyl Corp. v. EPA, 541 F.2d 1, 24—29 (D.C. Cir. 1978 en bonc); Hercules, Inc. v. EPA, 598 F.2d 91, 104—106 (D.C. Cir. 1978]. In any event, the change to an attenuation factor of 100 lays to rest the concerns of those who argued that the acidic leaching medium was too aggressive to apply to then . EPA is quite convinced that any waste which fails the EP at the 100-times standard presents the potential for substantial hazard if improperly managed no matter what leaching media it is actually exposed to. A number of commenters argued that the EP is not sufficiently reproducible for use in defining hazardous waste. Some commenters, basing their argument on studies which have been conducted on the reproducibility of the EP. argued that these studies demonstrate an unacceptable variability in the results obtained by the EP. Other cominenters, who did not base their arguments on these studies, argued simply that EPA has not shown the El’ to be reproducible and therefore may not appropriately employ the EP in a regulatory framework. EPA disagrees. Sensitive throughout the process of developing the EP to the issue of ensuring reproducibility, EPA commissioned a number of studies to evaluate the EP, including a study by the NUS Corporation, a study by the American Electroplaters’ Society, and an ongoing study being conducted by the Oak Ridge National Laboratory. In addition, a study commissioned by the Electric Power Research Institute (EPR Z) has been completed. None of these studies present enough data to draw any hard and fast conclusions. However. data from the EPRI report—the only report which was abl’e to separate out the reproducibility of the EP from the reproducibility of the analytical procedures—suggests that the reproducibility of the EP itself is of the same order of magnitude as the analytical procedures used to analyze the toxic constituents in the extract. Since these analytical procedures have proven to be widely acceptable to private industry, EPA believes that the EP should also prove acceptable. EPA concedes that the preliminary data indicate some variability in the results obtained by the El’. This, however, is true of all analytical procedures and test methods, especially those which are novel in oharacter. Furthermore, variability can be easily corrected by running further replicates of the test tc achieve greater certainty in the results. To accommodate any problems with variability, EPA intends to provide generators with guidance on the number of extractions which they can perform if they want to ensure confidence in the result. In addition, EPA is engaged in research studies which will enable it to further isolate and get a handle on the causes of this variability. A number of commenters argued that extract from the EP should be tested [ or toxic contaminants other than those specified in the National Interim Primary Drinking Water Standards. EPA originally intended the extractir- procedure to identify toxic contaminar other than those specified in the National Interim Primary Drinking Water Standards. EPA has been unable to do this, however, because no other chronic exposure threshold levels relating to drinking water consumption have been established for other contaminants. This should not cause a problem, because EPA is regulating wastes containing non-drinking water standard contaminants through the listing process. EPA will reassess its position on this issue, when thresholds are developed for additional contaminants or when the Clean Water Act Water Quality Criteria are adopted in final form. The proposed EP required generators to separate the liquid and solid portions of their waste as the first step of the procedure, based on the assumption that the liquid portion of the waste would flow odt of the landfill independent of any leaching action. Generators were then required to mix the separated solid portion with the acidic leaching medium and, after a further separation, combine the resulting extract with the originally separated liquid portion for analysis. EPA gave generators the option of using either centrifugation or filtration to perform the initial solid-liquid separation and to perform the subsequent separation of solid from leaching solution. However, information obtained since publication of the proposed regulation indicates that use of centrifugation alone is not as efficient as filtration and can lead to carryover of particles larger than 0.45 urn. Since a filter the size of 0.45 um was originally selected because particles larger than- 0.45 um are expected to be filtered out by the soil prior to reaching the groundwater, EPA has revised the E l ’ to require filtration of both the liquid portion and the extract prior to analysis. A number of commenters said they encountered severe operational problems when performing the EP on liquids containing very small percentages of solids. To accommodate this problem, EPA is amending the proposed regulation so generators need not perform the EP on liquids containing less than 0.5% solids. Instead, the liquid itself, after filtration, should be considered the extract and directly analyzed for its toxic constituents. VI I. Subpart D A. Sections 261.31 and 261.32 (Hazardous Wastes From Specific and Nan-Specific Sources) 1. Met hodology for Listing HazardaiM Waste Streams. Detailed justification ------- Federal Register / Vol.45, No. 98 / Monday. May 19, 1980 / Rules and Regulations 33113 [ or listing each hazardous waste in Subpart D is contained in specific background documents, and so will not be set forth in this preamble. The general methodology used to support lislings Will, however, briefly be described. The listing documents are based on the listing criteria contained in § 281.11 The documents are organized in the following sequenceS (1) A summary of the Administrator’s basis for listing each identified waste stream; (2) a brief description of the industry (or industries) generating the listed waste stream; ( aa) a description of the manufacturing process or other activity which generates the waste, (3b 1 identification of waste composition, constituent concentrations, and annual quantity generated, and (Sc) a description of waste management methods; (4) a discussion of the basis for listing eadh waste stream (described more fully below); and (5) n summary of the adverse health effects of each of the waste constituents of concern. The documents also contain appendices describing in more detail the adverse health effects of the waste constituents of concern, and (for certain documents) compiling available environmental fate and transport data (including data on vaste constituent solubility, volatility, bnd environmental persistence) for each swih waste constituent. a. Basis for Listing Toxic Wastes. (1) Outline of Listing Discussion For hazardous wastes listed because they meet the criteria of toxicity, the discussion of the basis for listing identifies the waste constituents of concern, whether these constituents are present in significant concentrations, and the hazards associated with each waste constituent The discussion then addresses whether these waste constituents, if the waste are managed improperly, could migrate from waste management sites, persist in the environment, and reach environmental receptors so as to cause substantial hazard. The analysis generally follows a physical continuum: whether waste constituents are inherently capable of migrating from the matrix of the waste in concentrations sufficient to cause substantial hazard, whether waste mismanagement could lead to environmental release of the migrating waste constituents, and whether waste ‘Waste composition and constituent concentrations have been determined eiiher by actual analysis of waste samples. through iiterature iarches, or on the basis of process engineering end roceas chemistry sssumpiions When process ssuivptions are used to identify waste constituenis d concenirstions. the bases for ihe assumptions are contained in the document constituents are mobile and perststent enough to reach environmental receptors and cause substantial hazard upon environmental release. In some cases, actual damage incidents involving the waste or waste conètituents demonstrate empirically that waste constituents may migrate, persist. and cause substantial harm if mismanaged. 2 A word as to the types of mismanagement situations considered. The Agency has limited its discussion to waste management situations which could plausibly occur with regard to the waste at issue. In the Agency’s view, the hazard posed by a waste are not “substantial” (Section 1004(5)(B)) if hazards could arise only as a result of implaustble types of waste mismanagement. Thus, the Agency would not examine possible hazards arisjrig from improper waste incineration if the waste in question is not likely t9 be incinerated. On the other hand, the fact that a waste is properly managed by particular generators or particular classes of generators does not make the waste non-hazardous, as the statute requires that EPA determine whether a waste is hazardous if substantial hazard could result when wastes are “improperly treated, stored, transported, or disposed of, or otherwise managed.” The potential of the waste to cause hazard is therefore the key factor. Consequently, if most or all generators of an otherwise hazardous waste dispose of the waste properly, for example in lined lagoons, the Agency may stilt consider hazards which could result from improper waste lagooning. 3 [ 2) Relative Importance Attached to Identity of Waste Constituents and Constituents’ Transport and Fate in Making Toxicity Listing Determinations. It must be emphasized that in making listing determinations, the Agency’s principal focus is on the identity of the waste’s constituents, and on constituent concentrations in the waste and the nature of the toxicity presented by the constituents. Where a waste contains significant concentrations of hazardous waste constituents, the Agency is likely to list the waste as hazardous unless it is evident that the waste constituents are incapable of migrating in significant cbncentrations even if improperly iother factors identified in § 261 11(a)(3) are also considered when relevant, and when information is avsitable These factors include the quantities of waste managed. snd actions of other govenimentat agencies or regutatory programs with regard io health or environmentsi hazards posed by the waste or by waste constituents 3 lndeed. in this hypotheticsi example, the fact that an industry takes special precautions in mansging the waste suggests that the industry itself regards the waste as hazardous managed, or that the waste constituents are not mobile or persistent should they migrate. This is particularly true where the waste constituents include euspect or proven carcinogens. As EPA recently stated, “(T)here is no scientific basis for estimating ‘safe’ levels of carcinogens. The draft criteria for carcinogens therefore state that the recommended concentration for maximum protection of human health is zero.” (EPA Water Quality Criteria, 44 FR 15926, 15930 (March 15, 1979).) Thus, if suspect or known carcinogens are present, an additional cancer may result should the waste constituent migrate and reach a receptor in any concentration, certainly a sufficient risk to constitute a “substantial present or potential hazard” (Section 1004(5)(B)). In this situation, the Agency would require virtual assurance that waste constituents will not migrate and persist if improperly managed to justify a decision not to list the waste. The Agency therefore does not seek to demonstrate that waste constituents will migrate and persist in sufficient concentrations to cause substantial hazard. Rather, fate and transport information is relevant to show that the potential for harm inherent in the waste (by virtue of its composition) will not eventuate. But, as stated, there must be a very strong likelihood that hazardous constituents are unable to migrate or persist to cause substantial harm before the Agency will decide not to list a waste. 4 The Agency believes that this methodology is fully in accord with statutory requirements. Thus, this approach a ccords’wi th the requirement of Section 3001(a) that environmental fate he considered ifs identifying wastes as hazardous. At the same time, the key focus is on the inherent potential of waste constituents to cause substantial harm, in accord with the definition of hazardous waste, which requires only that a waste “may pose a substantial present or potential hazard” to be hazardous. (Section loo4(5)(B), emphasis added.) (3) Data Base for Toxicity Listing Determinations. - The Agency anticipates arguments that these toxicity listing determinations are made on the basis of inadequate data, and that listings be deferred until -further information is gathered. EPA recognizes that these listing ‘ 261 1i(e)(3j reflects that the waste’s ....composition is the key fsctor in determining to list wastes as hazardous, since wastes containing enumerated constituents are to be listed unless consideration of particular sdditionsl fsctors demonstrates that the wastes do not meet the statutory hazardous waste definition ------- 33114 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations determinations are essentially qualitative judgments, generally involving expert assumptions based on available physical data rather than precise field determinations of waste composition or of how the wastes will act under identified conditions. However, the statute requires only that a qualitative judgment be made, namely that the wastes, if mismanaged, pose ‘sufficient potentiality of hazard to warrant careful regulation. The Agency believes that it has compiled sufficient information on which to make this judgment. Nor would the delay necessary to compile in-depth [ though quite likely cumulative or redundant) information on potentially hazardous wastes be sufferable in light of the urgent need for rapid implementation of the hazardous waste management program. 5 In any case, opportunity is afforded by means of a new comment period for affected parties to present additional information on the listed waste streams, and such comments are solicited. b. Basis for Listing Ignitable, Corrosive, Reactive or EP Toxic Wastes The basis for listing ignitable, corrosive, or reactive wastes is much simpler. These wastes, to be listed, must possess the appropriate characteristic, and the listing discussion is directed toward making this demonstration. 2. LegalAuthority to List Wastes Generically. A number of commenters challenged the Agency’s legal authority to list wastes generically. They stated that under Section 3001(b), the Administrator is to list “particular hazardous wastes,” arguing that this language requires wastes to be listed individually, rather than as a generic class. These commenters also argued that the statute’s legislative history supports their view, noting that the House report to RCRA states that “the Administrator shall promulgate regulations identifying and specifically listing those hazardous wastes subject to this title.” H.R. Rep. at 56 (empasis added). The Agency disagrees with this interpretation. Although Congress clearly intended to distinguish the promulgation of hazardous waste characteristics from the listing of hazardous wastes, there is no clear indication that Congress further intended to limit the Administrator’s discretion by precluding listing of classes of wastes. In the Agency’s view, See. eg.. Report on Hazardous Waste Management and the Implementation of the Resource Conservation and Recovery Act. Senate Subcommittee on Oversight of Government Management of the Senate Committee on Governmental Affairs. 96th Cong. 2d Sees 7 (1980) a class of wéstes may be listed - generically so long as most of the wastes in the class are typically or frequently hazardous, and so long as the listing description is sufficiently specific and particularized for individual generators to determine whether their wastes streams are included within the listing. Thus, Section 3001(a), far frOm prohibiting listing of wastes by classes, simply distinguishes the use of criteria to idenfity hazardousness characteristics and to identify listed hazardous wastes. The Administrator shall * * develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste * ‘Section 3001(b) carries forward this distinction: (T]he Administrator shall promulgate regulations identifying the characteristics of hazardous waste and listing particular hazardous wastes * • * Such regulations shall be based on the criteria promulgated under subsection (a) * * * To argue that Section 3001(b) was intended to bar any listing of wastes by class consequently reads far too much into the language of that provision. Indeed, Section 3001(a) does not refer to listing of particular wastes. This wording certainly militates against attaching too much importance to the reference to “particular wastes” in Section 3001(b). 6 The legislative history likewise indicates that Congress’ concern was that the identification of wastes through characteristics or through listing be regulatorily distinct mechanisms, and that the listing criteria not be confused with hazardous wastes themselves, not that generic listing be prohibited. The House report to RCRA thus refers to a “bifurcation of developing the criteria for what is a hazardous waste separate from the identification and listing of the hazardous wastes * “ and cautions that “the critera for determining what should be considered hazardous should not be confused with an actual hazardous waste * * “H.R. Rep. at 25. Moreover, Congress itself, in the principal report to RCRA, used generic •In any case, the words “particular” and “specific” do not necessanly connote “individualized.” For instance, the first definition of “epecthc” in Webster’s New Collegiate Dictionary is “constituting or falling into a specifiable category” Similarly, the same source defines “particular” as “distinctive among others of the same general category “ Thus, the statutory language, far from requiring individualized listing, requires that listing be done with sufficient particularity to distinguish listed and unlisted wastes waste descriptions to identify hazardo wastes involved in damage incidents. Examples include identification of “electroplating wastes” (H.R. Rep. at 18), waste “petrochemicals” (id. at 18, 19), and “munitions waste” (Id. at 20). This means of identification again suggests strongly that Congress envisioned generic identification as a means of bringing hazardous wastes into the Subtitle C management system. Some commenters went on the argue that the statutory requirement to take factors such as toxicity, persistence, potential for bioaccumulation, quantity, and concentration into account in making listing determinations (see Sections 3001(a) and 1004(5); see also HR. Rep. at 25) demonstrates Congresssional intent to prohibit generic listings because “(t)hese factors by their very nature are specific to particular hazardous waste rather than to generic categories.” (Comments of Dow Chemical Co., October 10, 1979, p. 10). The Agency again disagrees. A class of wastes may exhibit sufficient unformity of hazard to warrant listing on a class basis. (The Agency of course, must demonstrate that sufficient uniformity exists or is likely to exist). Furthermore, the commenters’ argument, taken to its logical conclusion, would mean that the Agency could only list wastes on a generator by generator basis, since waste streams will vary to some degree with respect to these factors depending upon the precise composition of the individual waste (although the degree of difference ordinarily will not be of regulatory significance). Yet Congress clearly did not envision site-by-site listing. The Agency therefore intends to list generically those wastes which demonstrate a reasonable likelihood of hazard as a class. The listing descriptions will be sufficiently specific to allow generators to determine if their wastes are covered, and, as discussed above, the listing of wastes will be distinct from their identification by means of hazardousness characteristics. This approach, we believe, is fully in accord with Congressional intent. 3. Changes in Proposed Waste Listing Descriptions and Proposed Waste Lists. Certain of the waste listing descriptions proposed in December, 1978 have been revised in the lists contained in § § 261.31 and 261.32. These changes generally were made to clarify where in the process wastes are generated so as to enable generators to determine morr easily if their wastes are listed. Since the coverage of these clarified listing descriptions remains identical with th ------- Federal Register / Vol. 45, No. 98 / Monday, May 19. 1980 f Rules and Regulations 33115 proposal, the revised descriptions are not being reproposed. Certain other listed waste streams árisé out of waste generation processes listed in the December proposal, but are newly identified. These waste streams are being proposed today, rather than issued in interim final form. Finally, some of the waste streams initially proposed are not contained in the present list of wastes. The Agency’s reasons for this action are discussed in Section III A. B. Section 261.33 (Discarded Commercial Chemical Products, Off- Specification Species, Containers, and Spill Residues Thereof) The proposed regulation contained three appendices listing a variety of materials which the Agency proposed to treat as hazardous waste if discarded. Appendix III listed selected cancelled pesticides or pesticides undergoing RPAR (Rebuttable presumption.against registration) review within the Agency that were not listed elsewhere in the proposed regulation. Appendix IV listed selected substances regulated by the Department of Transportation (DOT) and classified as Poison A, Poison B, or ORM—A that were also not listed elsewhere. Appendix V listed substances which are being regulated as toxic priority pollutants under the Clean Water Act. In addition to the substances themselves, the regulation proposed to - regulate.(1) off-specification materials, which if they had met specifications, would have been shipped using the names of the substances listed in these appendices (2) containers, unless triple rinsed, containing the materials listed in the appendices, and (3) spill clean-up residues and debris from spills of materials listed in these appendices. Subsequently, in a supplemental proposed rule, EPA published another appendix (Appendix XII) listing thirty- three chemicals found to be human carcinogens or potential human carcinogens by the International Agency for Research on Cancer. 44 FR 49404 (August 22, 1979). In the proposed regulation, these materials were to be subject to the general exemption level of 100 kg/mo. Quantities of these materials below this level were not subject to full Subtitle C regulation. In listing these materials in the proposed rule, EPA intended to encompass those chemical products which possessed toxic or other hazardous properties and which, for various reasons, are sometimes thrown away in pure or undiluted form. The reasons for discarding these materials might be that the materials did not meet required specifications, that inventories were being reduced, or that the product line had changed. The regulation was intended to designate chemicals themselves as hazardous wastes, if discarded, not to list all wastes which might contain these chemical constituents. In drawing up these lists, the Agency drew heavily upon previous work by EPA and other organizations identifying substances of particular concern. On the basis of comments received and also EPA’s own re-examination of the proposed rule, we have substantially revised this regulation. In the final regulations, commercial chemicals are treated in two separate provisions. First, substances listed in § 261.33(f) of the regulations are considered hazardous wastes if they or their off-specification species are thrown away in their pure form. These substances are regulated in the same manner as other hazardous wastes and are subject to the general exclusion level in § 261.5 (a) and (b) for the generation of small c uantities of hazardous waste. Second, a number of the substances, which meet the criterion for listing acutely hazardous wastes, are separately listed in § 261.33(e). This section applies to the chemical substances if they or their off- specification species are thrown away in their pure form, containers and inner liners containing these materials, and spill residue and debris created by spills of these listed materials. Section 261.5(c) establishes low quantity exclusion levels for these acutely hazardous materials. 1. Section 261.33(f) (Commercial Chemical Products). A number of commenters stated that, as proposed, the materials listed in the various appendices were not tied to any of the criteria for listing, and, accordingly, the reasons for their listing were unclear. The Agency agrees that the baSis for its proposed listings was not adequately specified. A table accompanying the background document on commercial chemical products sets forth the specific basis for including each substance on the list published today. Cothmenters also expressed some uncertainty as to whether the proposed regulations made hazardous any waste that contained the listed substance as a constituent of the waste. The intent of the regulation was to encompass only those materials which were being thrown away in their pure form or as an off-specification species of the listed material, as well as the contaminated residues and debris from those materials. The final regulation has been redrafted to limit the application of this section to the commercial chemical product itself, its off-specification species and derived spill residues and debris. Several commenters argued that the wholesale incorporation of lists developed iy EPA or other Federal agencies for other regulatory purposes was not appropriate. In the proposal, EPA had, for example, listed all materials that DOT lists as ORM—A materials pursuant to its authority under the Hazardous Materials Transportation Act. A number of commenters argued that these substances should not be listed by EPA because DOT’s basis for listing used different criteria—the potential for interfering with transportation. DOT’s standard is very broad and somewhat vague; ORM—A material is one that has “an anesthetic, irritating, noxious, toxic or similar property which can cause extreme -annoyance of discomfort to passengers and are in the event of leakage during transportation.” 49 CFR 173.500(a](1). EPA agrees with these comments and, rather than adopting lists of substances on a wholesale basis, has evaluated - each against EPA’s criteria for listing. Included in § 261.33(f) are those chemical substances which are toxic and which meet the listing criteria set forth in § 26 ..11(a)(3). These hazardous properties have been documented in EPA rulemaking, studies and other materials, including health effects documents prepared in support of these regulations materials supporting RPAR actions background documents supporting National Interim Primary Drinking Water Standards, materials produced by EPA’s Cancer Asses sment Group and, in the case of chlorofluorcarbons, documents supporting regulations under TSCA. This approach has led to certain deletions from the lists of hazardous wastes contained in the proposed rules. A table accompanying the background document sets forth the disposition of all 295 chemicals originally listed in the proposed rules. Eight substances have been deleted from the list because they did not meet any of the criteria for listing hazardous wastes; sixteen were deleted because the listing description was not precise enough to enable generators to determine whether particular materials fell within that description. Examples of these deletions are “medicines N.O.S.” and “motor fuel antiknock compound.” In addition, thirty-one substances are not presently listed because EPA la6ks data to assess the propriety of listing them on the basis - of the listing. These substances are presently under review by the Agency to ------- 33116 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations determine whether they should be included on the § 261.33(f) list. This process has reduced the chemical products listed, to those substances which are demonstrated to pose a substantial threat to human health or the environment. These materials, their off-specification variants, and contaminated residues and debris from the spills of these materials are subject to full regulation under Subtitle C-in the same manner as other hazardous wastes. 2. Section 261.33(e) (Coinmerciol Chemicol Products). In considering the hazards presented by commercial chemical products, EPA recognized that some substances in their pure form possessed extremely hazardous properties. To account for these substances, EPA has established a new criterion for listing which examines the potentially lethal capacity of chemical substances in very small quantities. The basis for this criterion is explained in -section yB. above. Applying this criterion to the proposed lists of chemicals products has led the Agency to list 122 substances in § 261.33(e). As with the substances listed in § 261.33(f), the regulatory language has been clarified to-restrict the application of this’ section to chemical products, or their off- specification species, and not to wastes which contain these materials as a constituents. Because of their acutely hazardous nature, however, containers and inner liners which contained these materials and spill cleanup debris and residues resulting from spill of these materials are also included. At the suggestion of commenters, EPA also reviewed chemical substances on the TSCA inventory list for inclusion on the § 261.33(e) list. A number of those substances do meet the acutely hazardous criterion and accordingly have been added to the list. However, because all interested persons have not had an opportunity to comment on the listing of thpse materials, the Agency is promulgating them in interim final (together with the remainder of Subpart D). The final regulations establish - stringent quantity cutoff levels for materials listed in § 261.33(e). In the proposed regulation, all hazardous wastes in quantities generated or disposed of at rates greater than 100 kg ! mo were subject to full Subtitle C regulation. Although the Agency recognized that many, if not all, of the proposed chemicals listed possessed acutely hazardous characteristics, it did not propose lesser limits for these substances because the general exclusion level—less than ½ of a 55 gallon drum—appeared sufficient to regulate most of the chemical proUucts that would be thrown away. For the reasons discussed in section IV. E., above, the general exclusion level has been raised to 1000 kg/mo. This higher level undercuts the original rationale for proposing a single exclusion level for all hazardous wastes. Many commenters urged that EPA employ a degree of hazard system for determining exclusion levels, for allocating Agency resources and determining priorities, and for establishing management standards. Although EPA is unable to adopt a degree of hazard system, we agree with the commenters that considerations of hazard are appropriate in establishing quantity exclusion levels for those substances which posses acutely hazardous properties. The criterion used in listing these substances ensures that those materials that are listed in § 261.33(e) are those which are lethal in very small quantities. Accordingly, the Agency has adopted very low exclusion levels for these chemical products and their off- specification variants, containers and inner liners which contained these materials, and spill residues and debris. The selection of these levels reflects the judgment of the Agency that, although even lesser quantities may be hazardous, the levels selected, on the basis of probable exposure scenarios, are sufficient to minimize the threat to human health and the environment while enabling the Agency to implement and enforce these regulations. The one kilogram level for the chemicals will, in the Agency’s judgment, bring under full regulation virtually all of the substances being thrown away. The quantity limit for containers which have not been triple rinsed (20 liters) represents the Agency’s judgment of probable exposure and consequential injury from the use of çliscarded containers. The Agency has records of damage incideflts resulting from improperly disposed containers that occurred when people salvaged large containers for such uses as garbage containers and barbecue pits. The levels chosen for inner liners and spill residue and debris represent the same type of judgment based on probable exposure. A number of commenters suggested that the proposed rule regarding containers be revised. The proposal had Included within its scope all containers which had not been triple-rinsed. Some commenters argued that there were other effective ways of cleaning containers and therefore the rule was unduly restrictive. One commenter pointed out, for example, that the EPA registered label for certain pesticides requires different rinsing procedures from those specified in the proposed rule. EPA agrees with these comment and has revised the regulation to allow other cleaning methods provided they are equally effective. The listing of spill residues and debris attracted several comments. One commenter suggested that small quantities of contaminated spill clean-up be excluded. EPA has, in the final regulation, excluded aggregate amounts of less than 100 kilograms. Another commenter felt that EPA should define the term “spill debris” more precisely to avoid including wrecked rail cars or trucks. EPA has chosen not to exclude such debris by definition. If contaminated, these items pose a substantial threat to human health and the environment and should be handled carefully. EPA presumes, however, that in virtually all cases, heavy equipment can be decontaminated and therefore will not become part of the contaminated debris. - C. Delisting EPA’s proposed regulations contained procedures allowing a person to show that a listed waste generated by an individual facility was not hazardous beause of plant-specific variations in raw materials, processes or other factors ( 250.15). These demonstrations of non- hazardousness were to be based on the results of specific tests for each of the hazardous properties for which the waste was listed ( 250.15(a)) and submitted and processed in accordance with procedures set forth in § 250.15(c) through (h) of the proposed regulations. Although virtually all commenters supported the concept of a “delisting” process in principle, most were dissatisfied with the specifics of EPA’s proposal. Many criticized the delisting standards as being too inflexible, too vague, and based on tests which EPA itself was unwilling to propose as characteristics or use as listing criteria; some specifically urged that other factors—including how a waste was managed at an individual facility—be considered in determining whether a - waste should be delisted. Other coinmenters objected to the jirocedures themselves, urging EPA to provide trial- type hearings on delisting petitions, extensive procedural safeguards and multiple administrative appeals. After re-examining its proposed regulation and considering public comments, EPA has concluded that its delisting procedures should be revised and simplified in four major respects. First, EPA has concluded that the delisting of a waste from a particular ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I-Rules and Regulations 33117 facility is really a modification of its original listing determination and therefore should take the form of a regulatory amendment to the lists of wastes in Subpart D. The informational requirements for petitions to amend Subpart D to exclude wastes from a particular generating facility are set forth in § § 260.20 and 260.22 of this Chapter. EPA will follow the Administrative Procedures Act’s informal rulemaking procedures in acting on them (see § 260.20). Some commenters argued that EPA ’s delisting regulations should provide for elaborate adjudicatory hearings with administrative Mw judges. EPA thinks such procedures would be unduly costly, burdensome and time-consuming and that the relevant issues can be adequately aired and decided in informal rulemaking procedures. EPA is on firm legal ground in this regard, for RCRA requires only informal rulemaking here. The Supreme Court has recently confirmed that an agency need not provide more formal procedures than are specifically required by statute (Vermont Yankee v. NRDC, 435 U.S. 519, 524 (1978)). The second major change which EPA has made in its delisting procedures pertains to the effect of fIling a petition. In its proposal, EPA stated that a requested exclusion would take effect 90 days after submission, but that the Administrator could revoke the effectiveness at any time thereafter simply by disapproving the demonstration ( 250.15(d)). In the regulations promulgated today, no exclusion will be deemed effective until either (i) EPA has taken final action under § 260.20(e), or (ii) EPA has granted a temporary exclusion on the grounds of substantial likelihood of success under § 260.22(m). EPA has concluded that it would be inappropriate to consider a delisting petition effective until EPA has taken some affirmative actionjn response. Once a listing has been established through rulemaking procedures it must be presumed valid, and those seeking to amend any portion of it should have the burden of establjshing the correctness of their position. The proposed provision allowing a demonstration to become effective without EPA action improperly shifted the burden. At the same time, new § 260.22(m) willtenefit generators because EPA will be able to grant temporary exclusions in appropriate cases before the rulemaking process is complete. • The third major change which EPA has made to its proposed delisting regulations is to key the standards for approving a delisting -petition to the criteria which EPA used to list the waste in the first place. This approach not only is consistent with EPA’s decision to treat delisting as a rulemaking, but also is responsive to commenters’ criticisms that EPA’s proposed delisting standards were unrelated to its listing cnteria. Moreover, because the listing criteria have been substantially clarified and expanded (see section V.0.), it is also responsive to objections that those standards were vague, inflexible and failed to consider the multiple factors which might cause a waste to be hazardous. - Two points concerning the standards for granting a delisting petition are deserving of special comment. First, the fact that a waste is properly managed by an individual faàility is not grounds for delisting it, any more than the fact that a waste is generally properly managed by industry is grounds for not listing it (see section VII.A.). Second, in the case of a waste which has been listed for acute toxicity, a generator will be required to show not only that the waste does not meet EPA’s acute toxicity criterion but also that it does not meet its general toxicity critenon. Although an off-specification acutely toxic waste or a mixture containing an acutely toxic waste may no longer be deadly, it may still continue to pose a substantial hazard to human health and the environment. The final major revision which EPA has made in its proposed regulations relates to the effect of successful delisting petition. Under the regulations published today, a decision to exclude a waste frffm the hazardous waste lists in Subpart D is not a decision that the waste is not hazardous. It simply - relegates the waste to the same general category as any other unlisted waste— i.e., if the waste exhibits one of the characteristics, it must be regulated as hazardous waste. This aj proach is necessitated by the-fact that wastes from individual facilities may exhibit characteristics not exhibited by waste in general and that, in deciding to list a waste, EPA has not tested it against every one of the characteristics. VIII. Environmental, Economic and Regulatory Impacts - - In accordance with Executive Order 11821, as amended by Executive Order 11949, and Executive Order 12044, EPA has prepared an Environm ntal Impact Analysis and a Regulatory Analysis of all of its Section 3001 through 3004 regulations. The Agency has also voluntarily prepared an Environmental Impact Statement for these regulations under the National Environmental Policy Act, 42 U.S.C. 4321 et seq. Copies of these documents, and EPA’s Reports Impact Analysis and Operations Resources Impact Analysis for Sections 3001 through 3004, may be reviewed in all EPA Regional Office Libraries, and at the EPA headquarters library, Room 2404, 401 M Street, S.W., Washington, D.C. 20460. Appendix A—Scheduled June Promulgation Generics 1. Paint residues generated from industrial painting 2. Wastewater treatment sludges from industrial painting [ Comment: The above two listing descriptions have been changed from those originally proposed on December 18, 1978 (43 FR 58957) as: Paint wastes (such as used rags, slops latex sludge, spent solvent); Water-based paint waste; and Waste paint and vanish remover or stripper.] Process Wastes 1. Woven fabric dying and finishing wastewater treatment sludges 2. Mercury bearing sludges from brine treatment and mercury bearing brine purification muds from the mercury cell process in chlorine production [ Comment: This listing description includes two wastes which were originally proposed on December 18, 1978 (43 FR 58958) as: Mercury bearing sludges from brine purification muds from mercury cell process in chlqrine production and mercury bearing brine purification muds from mercury cell process in chlorine production.] 3. Wastev ater treatment sludge from the diaphragm cell process using graphite anodes in the production of chlorine [ Comment: This listing d scription was originally proposed on December 18, 1978 (43 FR 58958) as: Wastewater treatment sludge from diaphragm cell process in production of chlorine.] 4. Chlorinated hydrocarbon bearing wastes from the diaphragm cell process using graphite anodes in chlorine production [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58958) as: Chlorinated hydrocarbon wastes from diaphragm cell process in chlorine production.] 5. Waste vater treatment sludges from the production of TiO . pigment using chromium bearing ores by the chloride process [ Comment: This listing description was originallj’ proposed on December 18, 1978 (43 FR 58958) as: Chromium bearing wastewater treatment sludges from the production of Ti0 2 pigment by the chloride process.] ------- 33118 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 6. Wastewater treatment sludges from the production of Ti0 2 pigment usrng chromium bearing ores by the sulfate process [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58958) as: Chromium bearing wastewater treatment sludges from the production of Ti0 2 pigment by the sulfate process.] 7. Arsenic bearing sludges from the purification process in the production of antimony oxide 8. Antimony bearing wastewater treatment sludge from the production of antimony oxide 9. Solvent cleaning wastes from paint manufacturing 10. Water cleaning wastes from paint - manufacturing 11. Caustic cleaning wastes from paint manufacturmg 12. Wastewater treatment sludgS from paint manufacturing - 13. Air pollution control sludges from paint manufacturing [ Comment: The - above five listing descriptions have been changed from those originally proposed on December 18, 1978 (43 FR 58958) as: Wastewater treatment sludges from paint production and Air pollution control sludges from paint production.] 14: Still bottoms from aniline production 15. Sludges, wastes from tub washers (Ink Formulation) 16. Coking: Decanter tank tar/pitch/ sludge [ Comment: This listing description includes two wastes which were originally proposed on December 18, 1978 (43 FR 58959) as: Coking: Decanter tank tar and Coking: Decanter tank pitch sludge.] 17. Spend potliners (cathodes) from primary aluminum production 18. Lead bearing wastewater treatment sludges from gray iron foundries 19. Arsenic or organo-arsenic containing wastewater treatment sludges from the production of veterinary pharmaceuticals 20. Distillation residue from the separation of chlorobenzenes in the production of chlorobenzenes [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58958) as: Distillation residues from fractionating tower for recoveryof benzene and chlorobenzenes.] 21. Emission control dust/sludge from ferrochromium-silicon production [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58959) as: Ferrochromesilicon furnace emission control dust or sludge.] 22. Emission control dust/sludge from - ferrochrome production [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58959) as: Ferrochrome emissions control: furnace baghouse dust, and ESP dust.] 23. Emission control dust/sludge from ferromanganese production [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58959) as: Ferromanganese emission control: baghouse dusts and scrub water solids.] Appendix B—.Scheduled Fall Promulgation Genenc 1. Reactor clean-up wastes from the chlorination, dehydrochlorination, or oxychlorination of aliphatic hydrocarbons 2. Fractionation bottoms from the separation of chlorination hydrocarbons 3. Distillation bottoms from the separation of chlorinated aliphatic hydrocarbons 4. Washer wastes from the production of chlorinated aliphatic hydrocarbons 5. Spent catalyst from the production of chlorinated aliphatic hydrocarbons 6. Reactor clean-up wastes from the chlorination of cyclic aliphatic hydrocarbons — 7. Fractionation bottoms from the separation of chlorinated cyclic aliphatic hydrocarbons 8. Distillation bottoms from the separation of chlorinated cyclic aliphatic hydrocarbons 9. Washer wastes from the production of chlorinated cyclic aliphatic hydrocarbons 10. Spent catalyst from the production of chlorinated cyclic aliphatic hydrocarbons 11. Batch residues from the batch - production of chlorinated polymers 12. Solution residues from the production of chlorinated polymers 13. Reactor clean-up wastes from the chlorination of aromatic hydrocarbons 14. Fractionation bottoms from the separation of chlorinated aromatic hydrocarbons 15. Distillation bottoms from the separation of chlorinated aromatic hydrocarbons 16. Washer wastes from the production of chlorinated aromatic hydrocarbons - 17. Waste Oil [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58957) as: Waste lubricating oil and Waste hydraulic or cutting oil.] ‘Since these wastes will not be promulgated until the fall, the lisiing descriptions for some of these wastes may change as additional information is gathered 18. Polychlorinated biphenyls (PCB) and PCB items as defined in 40 CFR Part 761 [ Comment: The Agency indicated in the preamble to the Section 3004 regulations (43 FR 58993), their intention to integrate the TSCA regulations for the disposal of PCB’s with the RCRA hazardous waste regulations.] Process Wastes 1. Sub-ore from underground and surface mining of uranium, overburden from surface mining of uranium and waste rock from underground mining of urénium with a radium-226 activity in excess of SpCi/ gm [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58958) as: Waste rock and overburden from uranium mining.] 2. Leach zone overburden and discarded phosphate ore from phosphate surface minjng and slimes -from phosphate ores beneficiation [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58958) as: Overburden and slimes from phosphate surface mining.] 3. Waste gypsum from processing phosphate ore to produce phosphoric acid [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58958) as: Waste gypsum from phosphoric acid production.] 4. Slag and fluid bed prills from processing phosphate ore to produce elemental phosphorous [ Comment: This listing description was originally proposed on December 18, 1978 (43 FR 58958) as: Slag and fluid bed prills from elemental phosphorous production.] 5. Washwater/sludges from ink printing equipment clean-up [ Comment: This listing description includes three wastes which were originally proposed on August 22, 1979 (44 FR 49403 and 49404) as: Waste from equipment cleaning from flexoprinting in the manufacture of paperboard boxes; Waste from press clean-up in newspaper printing and Wash water from printing ink equipment cleaning.] 6. Wastes from photographic processing [ Comment: This listing was originally proposed on August 22, 1979 (44 FR 49404) as: Waste Ferricyanide bleach, dichrbmate bleach, color developer (Agfa), bleach fix (Agfa) and acid solution from photographic processing.] 7. Lead acid storage battery production wastewater treatment sludges 8. Lead acid storage battery production clean-up wastes from catl ,ode and anode paste production ------- Federal Register / Vol.45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33119 Nickel cadmium battery production wastewater treatment sludges ). Lead slag from lead alkyl production 11. Emission control dust/sludge from reverberatory furnace and converters from primary copper production [ Comment: This listing description was included in the listing description originally proposed on December 18, 1978 (43 FR 58959) as: Pnmary copper smelting and refining electric furnace slag, converter dust, acid plant sludge and reverberatory dust.] Dated. May 2, 1980 Douglas M. Costle, Administrator. Title 40 of the Code of Federal Regulations is amended by adding the following new Part 261: PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE Subpart A—General Sec 261 1 Purpose and scope. 261.2 Definition of solid waste. 261.3 Definition of hazardous waste 261.4 Exclusions. 261 5 Special requirements for hazardous waste produced by small quantity generators 261.6 Special requirements for hazardous waste which is used, re-used, recycled or reclaimed. ubpart B—Criteria for identifying the Characteristics of Hazardous Waste and for Usting Hazardous Wastes 261.10 Criteria for identifying the characteristics of hazardous wastes. 261 11 Criteria for listing hazardous waste. Subpart C—Characteristics of Hazardous Waste 261.20 General. 261.21 Characteristic of ignitabihty. 261 22 Characteristic of corrosivity. 261.23 Characteristic of reactivity. 261.24 Characteristic of EP toxicity. Subpart D—Usts of Hazardous Wastes 261 30 General. 261.31 Hazardous wastes from non-specific sources 261.32 Hazardous wastes from specific sources 261.33 Discarded commercial chemical ,products and associated off-specification materials, containers and spili esidues. Appendices Appendix I—Representative Sampling Methods Appendix Il—EP Toxicity Test Procedures Appendix HI—Chemical Analysis Test Methods Appendix IV— (Reserved for Radioactive Waste Test Methods] ppendix V— [ Reserved for Infectious Waste Treatment Specifications] ,pendix VI—IReserved for Etiologic Agents] Appendix VU—Basis for Listing Appendix VIlI—Hazardous Constituents Authority: Secs. 1006, 2002(a). 3001. and 3002 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, 6921 and 6922). Subpart A—General § 261.1 Purpose and scope. (a) This Part identifies those solid wastes which are subject to regulation as hazardous wastes under Parts 262 through 265 and Parts 122 through 124 of this Chapter and which are subject to the notification requirements of Section 3010 of RCRA. In this Part: (1) Subpart A defines Lhe terms “solid waste” and “hazardous waste.” identifies those wastes which are excluded from regulation under Parts 262 through 265 and 122 through 124 and establishes special management requirements for hazardous waste produced by small quantity generators and hazardous waste which is used, re- used, recycled or reclaimed. (2) Subpart B sets forth the criteria used by EPA to identify characteristics of hazardous waste and to list particular hazardous wastes. (3) Subpart C identifies characteristics of hazardous waste. (4) Subpart D lists particular hazardous wastes. (b) This Part identifies only some of the materials which are hazardous wastes under Sections 3007 and 7003 of RCRA. A material which is not a hazardous waste identified in this part is still a hazardous waste for purposes of those sections if: (1) In the case of Section 3007, EPA has reason to believe that the material may be a hazardous waste within the meaning of Section 1004(5) of RCRA. (2) In the case of Section 7003, the statutory elements are established. § 261.2 DefinitIon of sotid waste. (a) A solid waste is any garbage, refuse, sludge or any other waste material which is not excluded under § 261.4(a). (b) An “other waste material” is any solid, liquid, semi-solid or contained gaseous material, resulting from industi’ial, commercial, mining or agricultural operations, or from community activities which: (1) Is discarded or is being accumulated, stored or physically, chemically or biologically treated prior to being discarded; or (2) Has served its original intended use and sometimes is discarded; or (3) Is a manufacuring or mining by- product and sometimes is discarded. (c) A material is “discarded” if it is abandoned (and not used, re-used, reclaimed or recycled) by being: (1) Disposed of; or (2) Burned or incinerated, except where the material is being burned as a fuel for the purpose of recovering usable energy; or (3) Physically, chemically, or biologically treated (other than burned or incinerated) in lieu of or prior to bein( disposed of. (d) A material is “disposed or’ if it is discharged, deposited, injected, dumped, spilled, leaked or placed into or on any land or water so that such material or any constituent thereof may enter the environment or be ethitted into the air or discharge,d into ground or surface waters. (e) A “manufacturing or mining by- product” is a material that is not one of the primary products of a particular manufacturing or mining operation, is a secondary and incidental product of the particular operation and would not be solely and separately manufactured or mined by the particular manufacturing or mining operation. The term does not include an intermediate manufacturing or mining product which results from one of the steps in a manufacturing or mining process and is typically processed through the next step of the process within a short time. § 261.3 DefinItion of hazardous waste. (a) A solid waste, as defined in § 261.2, is a hazardous waste if: (1) It is not excluded from regulation as a hazardous waste under § 261.4(b); and (2) It meets any of the following criteria: (i) It is listed in Subpart D and has not been excluded from the lists in Subpart D under § § 260.20 and 260.22 of this Chapter. (ii) It is a mixture of solid waste and one or more hazardous wastes listed in Subpart-D and has not been excluded from this paragraph under § § 260.20 and 260.22 of this Chapter. (ili) It exhibits any of the characteristics of hazardous waste identified in Subpart C. (b) A solid waste which is not excluded from regulation under paragraph (a)(1) of this section becomes a hazardous waste when any of the following events occuri (1) In the case of a waste listed in - Subpart D, when the waste first meets the listing description set forth in Subpart D. (2) In the case of a mixture of solid waste and one or more listed hazardous wastes, when a hazardous waste listed ------- 33120 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations in Subpart D is first added to the solid waste. - (3) In the case of any other waste (including a waste mixture), when the waste exhibits any of the characteristics identified in Subpart C. (c) Unless and until it meets the criteria of paragraph (d): (1) A hazardous waste will remain a hazardous waste. (2) Any Solid waste generated from the treatm nt, storage or disposal of a hazardous waste, including any sludge, spill residu e, ash, emission control dust or leachate (but not inclyiding precipitation run-off), is a hazardous waste. (d) Any solid waste described in paragraph (c) of this section is not a hazardous waste if it meets the following cpiteria: (1) In the case of any solid waste, it does not e, hibit any of the characteristics of hazardous waste identified i i Subpart C. (2) In the case of a waste which is a listed waste under Subpart D, contains a waste listed under Subpart D or is derived from a waste listed in Subpart D, it also has been excluded from paragraph (c) under § § 260.20 and 260.22 of this Chapter. § 261.4 ExclusIons. (a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this Part: (1) (i) Do nestic sewage; and (ii) Any mixture of domestic sewage and other wastes that passes through a sewer systdm to a publicly-owned treatment works for treatment. “Domestic sewage” means untreated sanitary wastes that pass through a sewer syst m. (2) Industrial wastewater discharges that are point source discharges subject to regulation under Section 402 of the Clean Watqr Act, as amended. [ Comment: This exclusion applies only to the actusfl point source discharge. It does not exclude industrial wastewaters while they 4re being collected, stored or treated bef 9 re discharge, nor does it exclude slu lges that are generated by industrial wastewater treatment.] (3) Irrigation return flows. (4) Source, special 1 nuclear or by- product material as defined by the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq. (5) Materials subjected to in-situ mining techniques which are not removed from the ground as part of the extraction process. — (b) Solid wastes which are not hazardous wastes. The following solid wastes are not hazardous wastes: (1) Household waste, including household waste that has been collected, transported, stored, treated, disposed, recovered (e.g., refuse-derived fuel) or reused. “Household waste” means any waste material (including garbage, trash and sanitary wastes in septic tanks) derived from households (including single and multiple residences, hotels and motels.) (2) Solid wastes generated by any of the following and which are returned to the sods as fertilizers: (i) The growing and harvesting of agricultural crops. (ii) The raising of animals, including animal manures. (3) Mining overburden returned to the mine site. (4) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels. (5) Drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy. § 261.5 SpecIal requIrements for hazardous waste generated by small quantity generators. (a) Except as otherwise provided in this section, if a person generates, in a calendar month, a total of less than 1000 kilograms of hazardous wastes, those wastes are not subject to regulation under Parts 262 through 265 and Parts 122 through 124 of this Chapter, and the notification requirements of Section 3010 of RCRA. (b) If a person Whose waste has been excluded from regulation under paragraph (a) of.this Section accumulates hazardous *astes in quantities greater than 1000 kilograms, those qccumulated wastes are subject to regulation under Parts 262 through 265 and Parts 122 through 124 of this Chapter, and-the notification requirements of Section 3010 of RCRA. (c) If a person generates in a calendar month or accumulates at any time any of the following hazardous wastes in quantities greater than set forth below, those wastes are subject to regulation under Parts 262 through 265 and Parts 122 through 124 of this Chapter, and the notification requirements of Section 3010 of RCRA: (1) One kilogram of any commercial product or manufacturing chemical intermediate having the generic name listed in § 261.33(e). (2) One kilogram of any off- specification commercial chemical product or manufacturing chemical intermediate which, if it met specifications, would have the generic name listed in § 261.33(e). (3) Any containers identified in § 261.33(c) that are larger than 20 liters - in capacity: (4) 10 kilograms of inner liners from containers identified under § 261.33(c); (5) 100 kilograms of any residue or contaminated soil, water or other debris resulting front the cleanup of a spill, into or on any land or water, of any commercial chemical product or manufacturing chemical intermediate having the generic name listed in § 261.33(e). (d) In order for hazardous waste to be excluded from regulation under this section, the generator must comply with § 262.11 of this Chapter. He must also either treat or dispose of the waste in an on-site facility, or ensure delivery to an off-site treatment, storage or disposal facility, either of which is: (1) Permitted by EPA under Part 122 of this Chapter, or by a State with a hazardous waste management program authorized under Part 123 of this - Chapter; (2) In interim status under Parts 122 and 265 of this Chapter; or, (3) Permitted, licensed, or registered by a State to manage municipal or industrial solid waste. (e) Hazardous waste subject to the reduced requirements of this section may be mixed with non-hazardous waste and remain subject to these reduced requirements even though the resultant mixture exceeds the quantity limitations identified in this section, unless the mixture meets any of the characteristics of hazardous waste identified in Subpart C. - § 261.6 SpecIal requIrements for hazardous waste whIch Is used, re-used, recycled or reclaImed. (a) Except as otherwise provided in paragraph (b) of this section, a hazardous waste which meets either of the following criteria is not subject to regulation under Parts 262 through 265 or Parts 122 through 124 of this Chapter and is not subject to the notification requirements of Section 3010 of RCRA until such time as the Administrator promulgates regulations to the contrary: (1) It is being beneficially used or re- used or legitimately recycled or reclaimed. . - (2) It is being accumulated, stored or physically, chemically or biologically treated prior to beneficial use or re-use or legitimate recycling or reclamation. (b) A hazardous waste which is a sludge, or which is listed in Subpart D, or which contains one or more - hazardous wastes listed in Subpart D; and which is transported or stored prior ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33121 :o being used, re-used, recycled or ‘eclanned is subject to the following ‘equirements with respect to such transportation or storage: (1) Notification requirements under Section 3010 RCRA. - (2) Part 262 of this Chapter. (31 Part 263 of this Chapter. (4) Subparts’ A, B, C, D and E of Part 264 of this Chapter. (5) Subparts A, B, C, D, E, G, H, I, J and L of Part 265 of this Chapter. (8) Parts 122 and 124 of this Chapter, with respect to storage facilities. Subpart B—Criteria for Identifying the Characteristics of Hazardous Waste and for Listing Hazardous Waste § 261.10 CriterIa for identifying the characteristics of hazardous waste. (a) The Administrator shall identify and define a characteristic of hazardous waste in Subpart C only upon determining that: (1) A solid waste that exhibits the characteristic may: -- (1) Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (ii) Pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed of or otherwise managed; and (2) The characteristic can be: (i) Measured by an available standardized test method which is reasonably within the capability of generators of solid waste or private sector laboratories that are available to serve generators of solid waste; or (ii) Reasonably detected by generators of solid waste through their knowledge of their waste. § 261.11 Criteria for ilsting hazardous waste. (a) The Administrator shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria: (1) It exhibits any of the characteristics of hazardous waste identified in Subpart C. (2) It has been found to be fatal to humans in low doses or, in the absence of data on human toxicity, it has been shown in studies to have an oral LD 50 toxicity (rat) of less than 50 milligrams per kilogram. an inhalation LC 50 toxicity (rat) of less than 2 milligrams per liter, or a dermal LD 50 toxicity (rabbit) of less than 200 milligrams per kilogram or is otherwise capable of causing or significantly contributing to an increase in serious irreversible, or incapacitating reversible, illness. (Waste listed in accordance with these criteria will be designated Acute Hazardous Waste.) (3) It contains any of the toxic constituents listed in Appendix Vifi unless, after considering any of the following factors, the Administrator concludes that the waste is not capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, .stored. transported or disposed of, or otherwise managed: (i) The nature of the toxicity presented by the constituent. (ii) The concentration of the constituent in the waste. (iii) The potential of the constituent or any toxic degradation product of the constituent to migrate fiom the waste into the environment under the types of improper management considered in paragraph (a)(3)(vii) of this section. (iv) The persistence of the constituent or any toxic degradation product of the constituent. (v) The potential for the constituent or any toxic degradation product of the constituent to degrade into non-harmful constituents and the rate of degradation. (vi) The degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems. (vii) The plausible types of improper management to which the waste could be subjected. (viii) The quantities of the waste generated at individual generation sites or on a regional or national basis. (ix) The nature and severity of the human health and environmental damage that has occurred as a result of the improper management of wastes containing the constituent. (x) Action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituent. (xi) Such other factors as may be appropriate. Substances will be listed on Appendix VIII only if they have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms. (Wastes listed in accordance with these criteria will be designated Toxic .wastes.) (b) The Administrator may list classes or types of solid waste as hazardous waste if he has reason to believe that individual wastes, within the class or type of waste, typically or frequently are hazardous under the definition of hazardous waste found in Section 1004(5) of the Act. (c) The Administrator will use the criteria for listing specified in this section to establish the exclusion limits referred to in § 281.5(c). Subpart C—Characteristics of Hazardous Waste § 261.20 General. (a) A solid waste, as defined in § 261.2, which is not exduded from regulation as a hazardous waste under § 261.4(b), is a hazardous waste if it exhibits any of the characteristics identified in this Subpart. [ Comment: § 262.11 of this Chapter sets forth the generator’s responsibility to - determine whether his waste exhibits one or more of the characteristics identified in this Subpart] (b) A hazardous waste which is identified by a characteristic in this subpart, but is not listed as a hazardous waste in Subpart D, is assigned the EPA Hazardous Waste Number set forth in the respective characteristic in this Subpart. This number must be used in complying with the notification requirements of Section 3010 of the Act and certain recordkeeping and reporting requirements under Parts 262 through 265 and Part 122 of this Chapter. (c) For purposes of this Subpart, the Administrator will consider a ‘sample obtained using any of the applicable sampling methods specified in Appendix I to be a representative sample within the meaning of Part 260 of this Chapter. [ Comment; Since the Appendix I sampling methods are not being forinally adopted by the Administrator, a person who desires to employ an alternative sampling method is not required to demonstrate the equivalency of his method under the procedures set forth in § § 280.20 and 260.21.) § 261.21 CharacteristIc of Ignitablilty. (a) A solid waste exhibits the characteristic of ignitability if a representative sample of the waste has any of the following properties: (1) It is a liquid, other than an aqueous solution containing less than 24 percent alcohol by volume, and has a flash point less than 60°C (140°F), as determined by a Pensky-Martens Closed Cup Tester, using the test method specified in ASTM Standard D—93—79, or a Setaflash Closed Cup Tester, using the test method specified in ASTM standard D—3278—78, or as determined by an equivalent test method approved by the Administrator under the procedures set forth in § § 260.20 and 260.21.’ ‘ASTM Standards are available from ASTM. 1916 Race Street. Philadelphia. PA 19103. ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33122 (2) It is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and, when ignited. burns so vigorously and persistently that is creates a hazard. (3) It is an ignitable compressed gas as defined in 49 CFR 173.300 and as determined by the test methods - described in that regulation or equivalent test methods approved by the Administrator under § § 260.20 and 260.21. (4) It is an oxidizer as defined in 49 CFR 173.151. (b) A solid waste that exhibits the characteristic of ignitability, but is not listed as a hazardous waste in Subpart D, has the EPA Hazardous Waste Number of DOOl. § 261.22 CharacteristIc of corrosivity. (a) A solid waste exhibits the characteristic of corrosivity if a representative sample of the waste has either of the following properties: (1) It is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5, as determined by a pH meter using either the test method specified in the “Test Methods for the Evaluation of Solid Waste, Physical/. Chemical Methods” 2 described in “Methods for Analysis of Water and Wastes” EPA 600/4—79-020, March 1979). or an equivalent test method approved by the Administrator under the procedures set forth in § § 260.20 and 260.21. (2) It is a liquid and corrodes steel (SAE 1020) at a rate greater than 6.35 mm (0.250 inch) per year at a test temperature of 55°C (130°F) as determined by the test method specified in NACE (National Association of Corrosion Engineers) Standard TM-01- -- 69 standardized in “Test Methods for the Evaluation of Solid Waste; Physical/Chemical Methods.” or an equivalent test method approved by the Administrator under the procedures set forth in § 260.20 and 260.21. (b) A solid waste that exhibits the characteristic of corrosivity, but is not listed as a hazardous waste in Subpart D, has the EPA Hazardous Waste Number of D002. - °Thi. document is available from Solid Waste Information. U S Environmental Protection Agency. 26 W St Clair Street. Cincinnati. Ohio 45268. 3 The NACE Standard is available from the National Association of Corrosion Engineers. P0 Box 988 Katy, Texas 77450 § 261.23 CharacterIstic of reactivity. (a) A solid waste exhibits the characteristic of reactivity if a representative sample of the waste has any of the following properties: (1) It is normally unstable and readily undergoes violent change without detonating. (2) It reacts violently with water. (3) It forms potentially explosive mixtures with water. (4) When mixed with water, it generates toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment. (5) It is a cyanide or sulfide bearing waste which, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment. (6) It is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement. (7) It is readily capable of detonation or explosive decomposition or reaction at standard temperature and pressure. (8) It is a forbidden explosive as defined in 49 CFR 173.51, or a Class A explosive as defined in 49 CFR 173.53 or a Class B explosive as defined in 49 CFR 173.88 — (b) A solid waste that exhibits the characteristic of reactivity, but is not listed as a hazardous waste in Subpart D, has the EPA Hazardous Waste Number of D003. § 261.24 CharacterIstic of EP Toxicity. (a) A solid waste exhibits the characteristic of EP toxicity if, using the test methods described in Appendix II or equivalent methods approved by the Administrator under the procedures set forth in § § 260.20 and 260.21, the extract from a representative sample of the waste contains any of the contaminants listed in Table I at a concentration equal to or greater than the respective value given in that Table. Where the waste contains less than 0.5 percent filterable solids, the waste itself, after filtering, is considered to be the extract for the purposes of this section. (b) A solid waste that exhibits the characteristic of EP toxicity, but is not listed as a hazardous waste in Subpart D, has the EPA Hazardous Waste Number specified in Table I which corresponds to the toxic contaminant causing it to be hazardous. EPA Maxsrspn hazardous Contaminant c oflcen 5atmn waste ‘ ( I mficrams minter per 0004 ... - . Arsenic - 50 0005 Banum... 1000 0006 .. . . Cadmium. - 10 0007 - . .. Ctironuum 50 0008 Lead 50 0009 ... . Mercury 02 0010 Selenium 10 0011. .. Silver . 50 0012. .. Endnn (1.2,3.4,10,10- hexachlcro.1,7.epoxy. 1 .4.4a.5,6.7.8.Bs- ectahy*o .4erdo. end 002 0013 .. .. 5.8-dumethano naphthalene Lmndane (1.2.3,4,5.6. hammth ro . gsnvna womer 04 0014 Methoxyctdor(1.1.1- Tnchloro-2,2-bs (p. 100 0015 m e thos hnnyfladxi n e) Toxaphene(C .H, ,C t ,. Technical chionnated cs_ne, 67-69 percent ch lonne ) 05 0016 2.4-D. (2.4- D i chlero p henox acetst amd 100 0017 2.4.5-IP Sdvex (2.4,5- Tnch larophenOxtprOp,on ic a 10 Subpart D—Lists of Hazardous Wastes § 261.30 General. - (a) A solid waste is a hazardous waste if it is listed in this Subpart, unless it has been excluded from this list under § § 260.20 and 260.22. (b) The Administrator will indicate his basis for listing the classes or types of wastes listed in this Subpart by employing one or more of the following Hazard Codes: Appendix VII identifies the constituent which caused the Administrator to list the waste as an EP Toxic Waste (E) or Toxic Waste (T) in § 261.31 and 261.32. (c) Each hazardous waste listed in this Subpart is assigned an EPA Hazardous Waste Number which precedes the name of the waste. This number must be used in complying with the notification requirements of Section 3010 of the Act and certain recordkeeping and reporting requirements under Parts 262 through 265 and Part 122 of this Chapter. (d) Certain of the hazardous wastes listed in § 261.31 or § 261.32 have exclusion limits that refer to § 261.5(c)(5). Table 1.—Maximum Concenbatlon of Contaminants for Characteristic of EP Toxicity Continued Ignitable Waste Corrosive Waste Reactive Waste EP Toxic Waste Acute Hazardous Waste T x,c Waste - - (I) (C) (R) (E) — (H) C’) ------- Federal Register I Vol. 45, No.98 / Monday, May 19, 1980 I Rules and Regulations 33123 -r 261.31 Hazardous waste from nonspecific sources. hidusfiy end U’A Hazardous waste Hazard code hazardous wage No Genenc Fool . - - The spent haloginated solvents used hi degresalng. tetrachioroethytene. tncfdoroethylene. inethylene chlonde. 1 i,1-tndtoethsne, carbon (1) tstracfdcitde, and the cfilomisted fluoroceibons and sludges from the recovery of these solvents hi degsasmg operations F002. — - — - — - The spent hatogenatad solvents, tetrsthlaoethytsne. methylene chionde. trSiloroethyfane. l,1.i-tiioliloroethsne. chtorobenzene. 1.1.2- if) thctdoro-1,2,2-thfluoroethane o-dichlcrobenzene. tiichlorofluoromethsne and the still bottoms from the recovery o1 these solvents F003 . - . _.. The spent non-hslogeiwtad solvent xytene. acetone. ethyl acetate. ethyl benzene. ethyl ether. n-tiutyl alcohol, cyclohexsnone, and the- still (I) lRjttao. from the recovery of these solvents P004 . .. . - .. .. The spent non-halogensted solvents. cresols snd cresyho sad. nitrotienzene. and the still bottoms from the recovery of these solvents.. .. (1 P005 .._ . ... - - - .,,. . - The spent ncn-halogensted solvents, methanol, toluene. methyl ethyl ketone, methyl isobutyt katone, carbon disulflde, isobutanol, pyndine (I. 1) and the still biltoms from the recovery of these solvent P008 - - - .. - - - - Wastewster trestment sludges from electroplating operations.... - - (1) F OO T - .. - Spent plating bath solutions from electroplstsig operations - - . . - - (P. 1’) P008 ... - - — - - . —. Plating bath sludges from the bottom of plating baths from electroplating operations - - (P. 1’) F009. _. -- - - - .. - - - Spent oU u. and cleaning bath solutions from electroplating operations - .. (P. 1) P010...... - ... - - - .... Quenching bath sludge from ml baths from metal heal treating operations - (P.1) FOil - - .. - Spent solutions from salt bath pot deaning 1mm metal heat treating operations - - (P. T) F012.... Quenching wastewater treatment sludges from metal heat treating operations. - - - - (T) F013__. - - ... - - Flotation failings from selective flotation front mineral metals recovery operations - - (7) F014 — - — - - . — .. - - — - — -. Cyanldation waatewster treatment tailing pond sediment from mineral metals recovery operations .. — _ . . — - .. — — .. . (1) P015 - - Spent cysisde bath solutions from mineral metals recovery operations - (P.1) P0 18 ... .. Dewatered air pollution control scrubber sludges front coke ovens end blast furnaces - (7) § 261.32 Hazardous waste from specific sources. Industry and EPA Hazardous waste Hazard code hazardous waste No Wood Preservation 1(001 - - - - Bottom sediment sludge from the treatment of wsstewsters from wood preserving processes that use creosote and/or penlaoltlorophenol (7) — MgmenW 1(002 - Waste-aster treatment sludge from the production ol chrome yellow end orange pigments -- (t) K003...... Waste-aster treatment sludge from the production of molytidate orange pigments .. _. . - - _ -. - - . — - (1) K004..... , - ____. Wastewater treatment sludge from the production of anc yellow pigments - . -. - - - -.. . -. ..-. -. -. - . — -.. -. —-. -.. — i f) 1(005...... - ... . __ Wastewater treatment sludge from the production of chrome green pigments - ... - - - - . - - (7) 1(008. - - - — . - - - . .,. -. - - Wastewater treatment sludge from the production of chrome oxide green pigments (arthydrous and hydrated) (7) 1(007 . -. Wastewaler treatment sludge from the production of iron blue pigments (1) 1(008 .._. . _ . _. - - - - - - - - - Oven residue front the production of chrome oxide green pigments. - - (T) wac thenscak 1(009 - . - . - - - Distillation bottoms from the production of acetaldehyde from ethylene .. en 1(010 - - - - . - - . - Distillation side cuts from the production of soetaldehyde from ethylene - - . . ... en KOl I - - - Bottom steam front the wastewater stnpper in the production of scrylonitrlle - (P. )) K0t2.. - Still bottome from the final purification of sciylonitnle in the production of acrylonitrlle _. (7) K0t3.. - - Bottom stream from the scetoisthle column in the production of sciylonitrlle - - - - - (P.1) K014.. .. Bottoms from the soetronithle punfication oolumn in the production of aciytonitnle en 1(015 5tH bottoms from the distillation of benzyl chlonde - en 1(018 _. _.. - Heavy ends or distitlation residues from the production of carbon tetrachionde - - - - -. -. .. -. - - en goii. - - . - .. - . Heavy ends (still bottoms) from the punfication column in the production of u,...hbuhydnn en 1(018 - Heavy ends from fractionation in ethyl ohlonde production - - - - -. - en K0t9 - - - - . - Heavy ends from the distillation ot ethylene diohlonde in ethylene diohfonde production - en 1(020 ._ - - .... .. Heavy ends from the distillation of vinyl ohloflde in vinyl ohlonde monomer production en 1(021 - - - . _. Aqueous spent antimony catalyst waste from fluoromethanea production en K022...... -. Distillation bottom tars from the production ot phenol/acetone from oumene en 1(023 Distillation tight ends from the production of phthatio anhydnde from naphthslene - - en 1(024.,. - - Distillation bottome from the production of phthatic arthydnde from naphthslene - en 1(025 Distillation bottoms from the production of mtrobe zene by the rstration of benzene. .. - en 1(028 StrIpping atit l tails from the production of methyl ethyl pyndinea - - . - - (7) 1(027 Centnfuge residue from totuene dssooyanate production . - (P .1) 1(028 Spent catalyst from the hydrochtonnator reactor in the production of 1,t,t-tnchtoroethane - . - - en 1(029. .... .. - - - -. -. - . ... Waste frixn the product stream shipper in the production of i.t.1 tnchtoroethane .. .. en 1(030 Column bottoms or heavy ends from the combined production of tnchloroethytene end perchloroethylene en Pesbades- - K031 - - ._. . .. By-products salts generated in the production of MSMA and cscodylic acid - - - en 1(032... _.. _ _ . .. - Waste-aster treatment sludge from the production of chiordane - - -- - - - _. - - - - . - - en 1 (033..... - - .. Waste-aster end scrub water from the chlonnation of oyclopenfadlene in the production of chiordane - - - - . - en 1 (034... Filter sotels from the filtration of hexaohlorooyclopentadiene in the production of chlordane - - . - en K035..... - - - Weatewatar treatment atialgea generated in the production of creosote - - - .. .... - - .. en 1 (036 .-- .. . . . _._ __ - Still bottoms from toluene reclamation distillation in the production of disulfoton - . - (1’) 1(037 - - - - Waste-aster treatment sludges from the production of disulfoton -. en K038. . . Wastswaler from the wasting and stripping of phorate production . . . - en 1 (039 Filter cake from the fIltration of diethytphosphorodithonc acid in the production of phorete. . . . en 1(040 - . .. Wastewater treatment sludge from the production of phorate. . . . . ... en 1(041 Weatewaler treatment sludge from the production of . .. . . . - --. - . - en 1(042 _. _. - . ... .. Heavy ends or distillation residues from the distillation of tetrachtoroberizene in the production of 2,4,5.T en K043...... ... - 2.8-Diohlorophenol waste from the production of 2.4-0 en ea - 1(044 ............,. ..... _ - - - Wastewater treatment sludges from the manufactuif rig and processing of explosives.... - - . - . . - (P) 1(045 .._._ . Spent carbon from the treatment of wasteweter containing explosives — — .. (P) 1(048 - Wastewater treatment sludges from the manufacturing, fonmulaton and losding of lesdbssed irstiating compounds en 1(047 Pink/red water from TNT operations -. - - . .. . - .._.. ... (P) Petroleum Pefining 1(048 ._. .. _. - .. ... Dissolved as flotation (DAF) float from the petroleum refining industry - en 1(049 Slop oil emutsion solids from the petroleum refining industry en 1(050 . . Heat exchanger bundle cleaning sludge from the petroleum refining induatiy - - . - ..... en K05 1 - .. .. _ API separator sludge from the petroleum refining industry en 1(052 Tank bottoms (leaded) from the petroleum refining industry . . . . en .eather Tanning Finishing 1(053 - Chrome (blue) tnmnsngs generated by the following siboategcnes of the leather tenrsng and flrastvng industry hair pulp/chrome ten/retan/ en wet fInish, hair save/chrome tan/retan/wet finish. retan/wet finIsh; no beamhouse. through-the-blue. and sheamling ------- 33124 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations . § 261.32 Hazardous waste from specific sources. —Continued Industry and EPA Hazardous waste Hazard codi hazardous waste No 1(054 . - - . - Chrome (blue) shavings generated by the following subCategories of the leather tanning and finishing industry- hair pulp/cfirorne tan/retan/ wet finish, hair save/chrome tan/reran/wet finish: retan/wel finish. no besmhouse through.the.blue. and shealling (I) 1(055 - Buffing dust generated by the following subcategories of the leather tanning end finishing industry- t a p/throme fir’ hair save/chrome tan/retan/wet l%nish retan/wet finish, no beanthouse. and through-the-blue (1) 1(056 - . . Sewer screenings generated by the following subcategories of the leather tanning and finishing induatrr hair pulp/chrome tan/retan/wet finish, hair save/chrome tanlretan/wet finish. retan/wst finisli no beamhouae: through-the-blue. and shearring (1) K057 . - Wastewater treatment sludges generated by the following suticategorea of the leather tanning end finishing indualiy ’ hair pulp/chrome tan/ if) retan/wet finish. hair save/chrome lan/retari/wet finish. retan/wet fwssh, no beanthouse; through-the blue and shealling 1(058 .. Wastewater treatment sludges generated by the following subcategories of the leather tanning and fInishing industry hair pulp/chrome tan/ retan/wet finish, hair save/chrome tan/retan/wet finish, and through-the-blue. (R, 1) (059. . Wastewater treatment sludges generated by the tot lowing subcategory of the leather tanning and finishing industry- hair save/non-chrome (R) tanlretanlwet finish Iron and Steel K 060 Ammonia stdl lime sludge from coking operations -. . .. m K061 . . Emission control dust/sludge from the electric fwnace production of steel - . . . (T) 1(062 . - .. Spent pickle liquor from steel finishing operations... ..... - . . . . (C. 1) 1(063 Sludge from lime treatment of spent pickle liquor from steel finishing operations (1) Pnrnary Copper 1(064 Acid plant blowdown slurry/sludge resulting from the thickening of blowdown slurry from primary copper production ( I) Pnmary Lead 1(065. Surface mipouridrnent solids contained in and dredged from surface impoundments at pnma,y lead smelling facilities . (1) Primary Zinc K066 Sludge from treatment of process wsstewster end/or acid plant blowdown from pnmaiy zinc production ... - (1) 1(067 . Electrolytic anode slmmeslsludges from primary zinc production . . ... - if) 1(068 .. . Cadmium plant leach residue (iron oxide) from primary zinc production - . - -. (1) Secondary Lead 1(069 . Emisenn control dust/sludge from secondary lead smelting . - . . . (1) § 261.33 DiscardeØ Commerôial Chemical Products, Off-Specification Species, Containers, and Spill Residues Thereof. The following materials or items are hazardous wastes if and when they are discarded or intended to be discarded: (a) Any commercial chemical product, or manufacturing chemical intermediate having the generic name listed in paragraphs (e) or (f) of this section. (b) Any off-specification commercial chemical product or manufacturing chemical intermediate which, if it met specifications, would have the generic name listed in paragraphs (e) or (f) of this section. (c) Any container or inner liner removed from a container that has been used to hold any commercial chemical product or manufacturing-chemical intermediate having the generic name listed in paragraph (e) of this section; unless: (1) The container or inner liner has been triple rinsed using a solvent capable of removing the commercial chemical product or manufacturing chemical intermediate; (2) The container or inner liner has been cleaned by another method that has been shown in the scientific literature, or by tests condñcted by the generator, to achieve equivalent removal; or (3) In the case of a container, the inner liner that prevented contact of the commercial chemical product or manufacturing chemical intermediate with the container, has been removed. (d) Any residue or contaminated soil, .water or other debris resulting from the cleanup of a spill, into or on any land or water, of any commercial chemical product or manufacturing chemical intermediate having the generic name listed in paragraphs (e) or (f) of this Section. [ Comment: The phrase “commercial chemical product or manufacturing chemical intermediate having the generic name listed in. . .“ refers to a chemical substance which is manufactured or formulated for commercial or manufacturing use. It does not refer to a material, such as a manufacturing process waste, that - contains any of the substances listed in paragraphs (e) or (f). Where a manufacturing process waste is deemed to be a hazardous waste because it contains a substance listed in paragraphs (e) or (f), such waste will be listed in either § § 261.31 or 261.32 or will be identified as a hazardous waste by the characteristics set forth in Subpart C of this Part.] (e) The commercial chemical products or manufacturing chemical intermediates, referred to in paragraphs (a) through (d) of this section, are identified as acute hazardous wastes (H) and are subject to the small quantity exclusion defined in § 261.5(c). These wastes and their corresponding EPA Hazardous Waste Numbers are: i waste No P004. Alden Algimycin see P092 P005 Allyl alcohol P006 . . Aluminum phosphate (R) ALVIT see P037 Aminoethylene see P054 Pool. S4Milnometh t ,fl.3-rsoxazo lal P008. P009 —Continued Hazardous Substance’ waste No 4Anmep Ammorisim metavanadate see P119 Anvnonsim picrate (R) ANIIMUCIN WOR see P092 ANTLJRAT see P073 AOUAThOL see P088 ARETIT see P020 POlO .. Araenicac,d POll - Arsenic pentoxide P012 . Arsenic tnoxide Attu mbin see P001 AVITROI. see P008 Azindene see P054 AZO OS see P061 Azophoe see P061 BANTU see P072 P013.. Barium cyanide BASENITE see P020 BCME see P018 P014 Benzenethiot Benzoeptn see P050 P015 . ... Beryllium dust POlO . Bis(chloromethyl) ether BLADAN-M see P071 P017 Bromoacetone P018 - Bruc,ne P019 . 2 Butsnone peroxide BUFEN see P092 Butaphene see P020 P020. . 2-eec-Buty$-4.6-dlnitropheno l P021.. - Calcium cyanide CALDON see P020 P022 - Carbon disulflde CERESAN see P092 CERESAN UNIVERSAL see P092 CHEMOX GENERAL see P020 CHEMOX P E see P020 CHEM.TOL see P090 Coloroecetaldeltyde p.Odoroa rsl ine 1080 see P058 1081 see P057 (Acetato)phenylmercuiy see P092 Acetone cysnohydnn see P069 Pool- P002 P003 salts 1 Acetyl-2-thiowea Agann see P007 Agroaan GN 5 see P092 Aldicarb see P069 #Jd4en see P048 P023 - P024 P025.. and P026. P027 P028 P029. acetic acid 1 .(o-Chlorophenyl)thioiirea 3-O ilorapro pio nitnle a lpha-Qdorotoluene Copper cyanide cRETOX see P108 Coumadin see P001 Cotmiafen see P001 P030. Cysnidea ------- N f l waste No Substance’ Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations Hazardous waste No Substance’ Haserdous waste No 33125 Substance’ ‘P031 - - Cysnogen P032....... Cysnogan konade P033 - . . - Cysnogen chloride Oyctodsn see P050 P034 - - 2-Oyclohexyl-4.6.dlt litrophenol D.CON see POOl DETHMOR see P001 DETHNEL see P001 DIP see P043 P035. .. 2,4-Oichtorophenottyscebc acid (2.40) P038....... D .Ja 4ien$srsme D i cysnogen see P031 P037 ..... Disldnn DIE LOREX see P037 P038... DSbyIWsewi P039 . . - ... 0.0.Oiethyt.S.(24ethylthio)ethyl)ester of 0 105- — sad P040. 0.0.0 ,elhy l.0.(2-pyrsanyt)phosphorottaoate P041 -. - 0,0 Diethy1 phosphoric acid. 0.p-nutrophenyl ester P042.. . - 3.4-Dthydroxy-elptis.(methytsnano)-methyl benzyl P043. ... Di-lscpropyltkiorophosphste DIMETATE see P044 1.4 5.SDenethenonsphthstene. 1.2.3.4,10.10- hstrachIoro.1.4.4e.5.8.8a t1exahy&o endo, endo see P060 P044........ Dsnethoste P045... . 3,3. Dimethy l. l4rnethytthio).2.butsnone.O. flmoth ww osinw P046.. ... he phe meth y lphsnoth$wnste DnbocycIohw henS see P034 P047......... 4.8-D initroociesol arid salts P048..... 2.4-0unitropl snol DINOSEB see P020 DINOSEBE see P020 Deulfolon see P039 P049....... 24 .Dittaobsset DNSP see P020 DOLCO MOUSE CEREAL see P108 DOW GENERAL see P020 DOW GENERAL WEED KiLLER see P020 DOW SELECTIVE WEED KILLER see P020 DOWICIDE 0 see P090 DYANACIDE see P092 EASTERN STATES 0UOCIDE see P001 ELGETOL see P020 Po5o_ Ends P051 ... Endret Ek.Øua.e see P042 P052........ Elhytcysnlde P053...... ... Elhytened ,snene P054......... Elh plensenine - FASCO FASCRAT DER see P001 FEMMA see P091 P055........ Fenic cyanide ‘ P056 fl... P057........ 2.Fksorosoetanede - P0Se... - a ea& sodsen sell FOL000L-80 see P071 FOL000L M see P071 FOSFERNO M 50 see P071 FRATOL see P058 Fulmeiste of merasy see P065 FUNGITOX OR see P092 FUSSOF see P057 GALLOTOX see P092 GEARPHOS see P071 GERUTOX see P020 P059......... Hsptadhlor P060.......... 1,2,3,4. 10,10-Hw,sftoro-1,4,4e,5,8,8e- hexshydro.1.4 5,8-ends, sldo-dlmettwlonsph. Oadw i s 1.4.5.6.7.7-HwracNoro.cycl lc.5.imrbomene-2.3- denethsnol sulfite see P050 P061......... He asc ldoropropene P062 - ... Heseethyl telrephosçhste HOSTAOUICK see P092 HOSTAOUIK see P092 Hy&szomethsne see P068 P063.. . Hy&ocyerac sad ILLOXOL see P037 INDOCI see P025 Indomethacer see P025 INSECTOPHENE see P050 Isodsn see P060 P064... ... Isocysnic acc methyl ester KII.OSEB see P020 KOP- T HIODAN see P050 KWIK-KIL see P108 KWIKSAN see P092 KUMADER see POOi KYPFARIN see P001 LEYTOSAN see P092 LtOUIPHENE see P092 MALIK see P050 MAREVAN see POOl MAR-FRIN see POOl MARTII4’D MAR.FRIN see P001 MAVERAN see P001 MEGATOX see P005 P065 .. Msrctny lulminste MERSOLITE see P092 METACID 50 see P071 METAFOS see P071 METAPHOR see P071 METAPHOS see P071 METASOL 30 see P092 P068 .. Methomyl P067 2-Methytszindine METHYL-E 605 see P071 P068. Methyl hydrszine Methyl eocyanste see P064 P069. . 2.Methyttactonitnle P070 ... 2.Methyt.2.(rnethylthlo)prop.onald (methytcsrbonyl) oxime METHYL NIRON see P042 P071. ... _ Methyl perstixon METRON see P071 MOLE DEATH see P108 MOUSE-NOTS see P108 MOUSE-RID see P108 MOUSE.TOX see P108 MUSCIMOL see P007 P072 .. ... 1.Nsphthyt-2-thioures P073 .. Nickel csrbonyl P074. ... Nickel cyanide P075.. Nicotine end salts P078 NitrIc oxide P077..... p-Nitroenttine P078 Nitrogen dioxide P079 Nitrogen peroxide P080 Nitrogen tetroxide P081 Nitroglycenne (R) P082........ N-Nilrosodunsthytw Tsne P083. .. NJ4sosothphenytwtwte P084...... osomethyleswbm t he NYLMERATE see P092 OCTALOX see P037 P085....... Odsmsthylpyrophosphfl OCTAN see P092 P088......... Otsyt alcohol condensed with 2 moles ethylene oxIde OMPA see P085 OMPACIDE see P085 OMPAX see P085 P087.... Osndum tabwade P088 7.Oxebicyctot2.2.l lheptsne.2.3.dlasboaytic acid PANIVARFIN see P001 PANORAM 0-31 see P037 PANTHERINE see P007 PANWARFIN see P001 P089......... Persttaon POP see P090 PENNCAP-M see P071 PENOXYL CARBON N see P048 P090. ... Pentschtorophenol Psntachlorcphenste see P090 PENTA-KILI. see P090 PEP4TA3OL see P090 PENWAR see P090 PERMICIDE see P090 PERMAGUARD see P090 PERMATOX see P090 PERMITE see P090 PERTOX see P090 PESTOX III see P085 PHENMAD see P092 PHENOTAN see P020 P091 .... Phenyl dlchtcroszslne Phenyl mercaplen see P014 P092. ... Phenytmercuty scetste P093 -- N-Phenylthioures PHILIPS 1861 see P008 PHIX see P092 P094.... Phorste P095. - Phosgene P096.. - Phosptsne P097.. -- Phosphorothroic acid, 0,0-dimethyl ester, 0-ester with N,N-dimethyl bensene sulfonemide Phosphorothiouc sad 0.0—dimelhyl-0-(p-.atro- phenyt) ester see P071 PIED PIPER MOUSE SEED see P108 P098. ... Potassium cyanide P099 .... Potsssium elver cyanide PREMERGE see P020 P100 - 1.2-Propsnedlol Prcpsrgyl alcohol see P102 P101.... Prcpordtrlle P102 -. .. - 2-Propyn-1-ol PROTHROMADIN See P001 OUICKSAM see P092 OUINTOX see P037 RAT AND MICE BAIT see POOl RAT-A-WAY see P001 RAT.B-GON see P00. RAT-O-CIDE #2 see POOl RAT-GUARD see P001 RAT-KILL see POOl RAT-MIX see POOl RATS-NO-MORE see P001 - RAT-OLA see POOl RATOREX see P001 RATTUNAL see P001 RAT-TROL see P001 RO-DETH see P001 RO-DEX see P108 ROSEX see P001 ROUGH & READY MOUSE MIX see P001 SANASEED see P108 SANTOBRITE see P090 SANTOPHEN see P090 SANTOPHEN 20 see P090 SCHRADAN see P085 P103 Setenoures P104 Sdver oyenide SMITE see P105 SPARIC see P020 SPOR-KIL see P092 SPRAY-TROt BRAND RODEN-TROL see P001 - SPURGE see P020 P105 Sodium aside Sodium coumadin see P001 P108.. -- Sothint cysnide SodIum fluoroscetale see P056 SODIUM WARFARIN see P001 SOLFARIN see P001 SOLFOOLACK SB see P048 SOLFOSLACK 33 see P048 P107.. -- Stronbum sulfide P108.. . Strychnine end salts SUBTEX see P020 SYSTAM sea P065 TAG FUNGICIDE see P092 TEKWAISA see P071 TEMIC see P070 TEMIK see P070 TERM-I-TROt see P090 P109 Tetraethyldithiopyrophosphste P110.. Tetrsethyllesd P111 -..... Teb’selhylpyrophosphsts P112.. - Tetrsniflmethsne Telrephosphoric acid. haxeethyl ester see P062 TETROSULFUR BLACK PB see P048 TETROSULPHUR P0R see P048 P113.. Thellicorede Theilium peroxIde see P113 P114 - - .Thefllum selenite P115 ... Thsllsim(I)suffste THIPOR see P092 THIMUL see P092 THIODAN see P060 THIOFOR see P050 THIOMUL see P050 THIDNEX see P050 THIOPHENIT see P071 P116.. Thiosenecarbezlde Thiosdfsn lionS see P050 P117. - Ttdursm THDMPSONS WOOD FiX see P090 TIOVEL see P050 P118 ... Ttlchloromethanelhiol TWIN UGHT RAT AWAY see P001 USAF RH-8 see P069 USAF EK-4890 see P002 P119 - .. Vsnsdlc acId. ammonsan sell P120 . Vsnadsrm pentoside VOFATOX see P071 WANADU see P120 WAROOUMIN see P001 WARPARIN SODIUM see P001 WARPIC1DE see P001 WOFOTOX see P072 YANOCK see P057 YASOKNDCK see P058 2IARNIK see P092 P121 ... ZInc cyenide P122.. inc phosphide(R.T) ZOOCOUMARIN see P001 ‘The Agency included those trade names of whIch it was aware, en 1rn..an, of s trade neme does not imply that the onstted material is not hazardous The material is hszerdous If it is sated under its genenc name. t7) ------- 33126 Federal Register / Vol. 45, No. 98 / Monday, ‘May 19,1980 / Rules and Regulations Hazardous Waste Nc ( I) The commercial chemical products or manufacturing chemical intermediates, referred to in paragraphs (a), (b) and (d) of this section, are identified as toxic wastes (T) unless otherwise designated and are subject to the small quantity exclusion defined in § 261.5 (a) and (b). These wastes and their corresponding EPA Hazardous Waste Numbers are: Substaiice’ Hazardous Wasta No Substance’ Hazardous Substance’ Waste No. AAF see 1)005 1)001 Acetsldehyde 1)002 Acetone (I) 1)003 Acetonitnte (Ii ) 13004 Acetophenone 13005 2-Acetylsm inoflourene 1)006 Acetyl chloride (c.-r) 1 )007 Acrylamide Acetylene tefrechionde see U209 Acetylene tnchlonde see 1)226 1)006 Acryhc acid (I) 1)009 Acrylonitnle AEROTHENE U see U226 DDT Disliste Dibenz re.h]anthrscene Dibenzo(s.h]anthrscene see 1)063 Dibenzo(a.ijpyrene D,bromochloromethsne 1 .2-Dibromo-3chloropropane I .2-Dibromoethane Dibromomethane Di-n-butyl phthslste 1 .2-Dichlorobenzene 1 .3-Dichlorobenzene 1 4-Dichlorobenzene 3.3-D ,chlorobenz ,dine I .4-Dichloro-2-butene 3,3’.Dichtor 4,4’ disminobiphenyl see 1)073 Dichlorodifluoromethsne 1.1 -Dichloroethane 1 .2-Dichloroethane 1 .1-Dichloroethylene 1 .2-trsns-dichloroethytene Dich loromethene Dichloromethylbenzene see 1)017 2,4-Dichlorophenol 2.6-Dichiorophenol I .2-Dichioropropane 1 .3-Dichloropropene Dieposybutsne (1.1) 1 ,2-Diethylhydrszine 0.0-Diethyl-S-niethyl ester of phosphorodithioic sod Diethyl phthatste Oiethytstilbestrol Dihydrosatrole 3 .3’-Dimethoxylenzidine Dimethytemine (I) p-Dimethyleminoszobenzene 7.12-DimethylbenzLe]snthrecene 3.3’-Dimethytbanzidine hydrate see 11011 - - . 0010 6-Amino-i .1 e,2.8.8s.Bb4iexahydro-8- 0141 Isosafrole 1)142 Kepone -U143 Lasiocarpine U144 Lead acetate 1)145 Lead phosphate 1)146 Lead subscetate 1)147 Maleic anhydnde 1)148 Msleic hydrazide 1)149 . Mslononitnle MEK Peroxide see 1)160 UlsO Melphstsn U151 Mercury 1)152 Methscrytonilnle 1)153 - Methanethiol 1)154 Methanol 1)155 Methapyrilene Methyl alcohol see U154 1)156 Methyl chlorocerbonete - Methyl chloroform see U226 U157 3-Melhylcholsnthrene Methyl ch loroformate see 0156 U158 4.4-Methvlene-bis-(2-chloroeniline, 1)159 Ui 60 U161 U162 U163 U164 1)165 1)166 1)167 1)168 U169 1)170 1)171 1)172 U173 U174 1)175 1)176 1)177 1)178 1)179 1)180 1)181 1)182 1)183 1)184 1)185 1)186 azinno(2’3 3.4) pyrrolo(1,2-s) undole-4. 7-dione (ester) Amitrole Aniline (I) Asbestos Aursmine Azssenne BenzLc]ecndrne Benzsl chloride Benz(a isnthrscene Benzene Benzenesulfonyl chionde (C,R) Benzidine t2-Benzisothiszolin-3-one. 1.1-dioxide see U202 Benzo(ejsnthrecene see 1)018 Benzo(e lpyrene Benzotnchlonde (C,RJ) sis(2.chloroethosy)melhsne Bis(2-chloroethyl) ether 1)081 0062 11063 1)064 U065 U066 U067 U068 1)069 1)070 1)071 1 1072 1)073 1)074 U075 1 )076 1)077 U078 1)079 1)080 U081 1)082 0083 U084 13085 U086 11087 11088 1)089 1)090 1)091 1)092 1)093 11094 U095 1)098 1)097 U098 1)099 U100 13101 11102 1)103 1)104 UlOS 1)106 1)107 0108 0109 Ullo 1)111 1)112 U113 U114 1)115 U118 U117 1)118 1)119 U120 1)121 1)122 1)123 U124 U125 U126 1)127 1)128 1)129 U130 U131 Ui 32 1)133 U134 U135 1)136 0011 0012 13013 1 )014 1)015 U016 U017 1)018 1)019 U020 U021 13022 1)023 U024 1)025 U026 1)027 1)028 1)029 1)030 13031 0032 U033 13034 U035 U036 U037 U038 0039 1 3040 U041 13042 , 13043 4 )044 1)045 1)046 0047 13048 13049 0050 uos l 0052 U053 13054 13055 13056 1)051 11058 1)059 U060 Methyl ethyl ketone (MEK) (1.1) Methyl ethyl ketone peroxide (A) Methyl iodide see U138 Methyl sobutyl ketore Methyl methacrylete (RI) N.Methyl.Ncnitro.N.nilrosogusnidine Methylthiourscil Mitomycin c seetolo Naphthalene 1 .4-Nsphthoquinone - 1-Nsphthytsmine - 2-Nsphthytsnsne Nitrobenzene (Ii) Nitrobenzol see U169 4-Nitrophenol - 2-Nitropropsne (I) N-Nitrosodi-n.butylamine N-Nitrosodiethanotsmine N-Nilrosodiethylsmine N-NiUosodi-n-propylsmine N-Nitroso-n-ethylures N-Nitroso-n-methylures N-Nitroso-n-methylurethsne N-Nitrosopipendine N-Nutrosopyrrotidine 5-Nitro-o-toluidirie Psrsldehyde PcN B see U185 Pentachlorcbenzene Pentachtoroethsne Pentachlororstrobenzene 1 .3-Pentadiene (I) Perc see U210 Perchiorethylene see U210 Phenscetin Phenol Phosphorous sulfide (A) Phthslic snhydnde 2-Picoline Pronamide 1 ,3-Propsne sultone n-Propylsmine (I) Pyndine Ouinonee Aeseipine Aesorcinol Secchenn Sefrole Selenious acid Selenium sulfide (AT) Silvex see U233 Streptozotocin 2,45-T see 13232 1 ,2,4.5-Tetrachlorobensene 11.1 .2-Telrschloroethsne 1.1 .2.2-Tetrachloroethsne Tetrschloroethene Tetrechloroethylene see 13210 Teirachioromethene 2 .3 .4 ,8-Te t rach lorophenol Tetrehydrofuren (I) Thettium (I) acetate Ttisllium (I) carbonate Thallium (I) chtonde Thallium (I) nitrate Th.oscetsmide Thiourea Toluene Toluenedismine o-Tolwdine hydrochlonde Bis(2-chloroisopropyl) ether - Bis(2-ethythexyt) phlhslste Bromomethane 4-Bromophenyl phenyl ether n-Butyl slcohol (I) Calcium chromate Carbolic acid see 0188 Carbon letrechlonde see 1)211 - Carbonyt fluoride Chlorsl Chlorsmbucd Chiordene Chlorobenzene Chlorobenzilste p-Chloro-m-cresol Chiorodibroniomethane 1-Chloro-23-epoxypropsne CHLOROETHENE NU see U226 Chloroethyl vinyl ether Chioroethene Chloroform (IT) Chloromethsne (IT) Chloromethyl methyl ether 2-Chloronephthelene 2-Ch lorophenol 4-Chloro-o-toluidine hydrochtonde Chrysene C I 23060 see 0073 Cresole Cresols - Crotons ldehyde cresylic acid Cumene Cysnomethsne see 1)003 Cyclohexsne (I) Cyclohexsnone (I) Cyclophosphamide Daunomyon DOD Dei ethylcsrbamoylchtonde I .1-Dimethylhydrazine 1 ,2-Dimethylhydrszine Dimelhylnilrososmine 2 .4-Dimethy lphenol Dimethyl phthalete Dimethyl sulfate 2.4-Oestropheeol 24-Dinitrntoluene 2 .6-Dinitrotoluene - Di-n-octyl phthalate 1 .4-Dioxane I 2-Diphenylhydrszine Dipropylamine (I) Di-n-propytnitrossmine EBDC see 1)114 1 .4-Eposybutane see 0213 Ethyl acetate (I) Ethyl acrylste (I) EthylenebisdithiocszbeiTiste Ethylene oxide (1,1) Ethylene thioures Ethyl ether (IT) Eth y lmethacry tste Ethyl methenesulfonste Ethylnith le see 11003 Firemaster T23P see U235 Fluoranthene Fluorotnchloromelhsne Formaldehyde Formic acid (C,T) Fursn (I) Furfursl (I) Glycidyls ldehyde Hexschlorobenzene- Hesschlorobulsdiene Hexech lorocydohessne Hexschloroc,’dopentsdisne - Hexach loroethane Hesach lorophene Hydrazine (Al) Hydrolluonc sod (Cl) Hydrogen sulfide Hydroxybenzene see 1)188 Hydroxydimethyl srsine oxide 4,4-(lmidocsrbonyl)be(N.N-dimethyl)sniline see 0014 0137 lndeno(1 .2.3-cd)pyrene Ui 38 Iodomethsne U139 Iron Dextran Ui40 Isobutyl alcohol 1)187 U188 11189 11190 U191 11192 11193 0194 11196 11197 1 )200 1 )201 1 )202 0203 1)204 11205 1)206 1)207 11208 0209 0210 11211 0212 U213 1 )214 0215 11216 0217 0218 U2 19 0220 0221 0222 ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33127 Appendix I—Representative Sampliiig Methods The methods and equipment used for sampling waste materials will vary with the form and consistency of the waste materials to be sampled. Samples ollected using the sampling protocols isted below, for sampling waste with roperties similar to the indicated. naterials, will be considered by the Agency to be representative of the waste. Extremely viscous liquid—ASTM Standard 0140—70 Crushed or powdered material— ASTM Standard 0346—75 Soil or rock-like inaterial—ASTM Standard 0420-69 Soil. like material—ASTM Standard 01452—65 Fly Ash-like material—ASTM Standard D2234—78 [ ASTM Standards are available from ASTM, 1916 Race St.. Philadelphia, PA 191031 Containerized liquid wastes—”COLIWASA” described in “Test Methods for the Evaluation of Solid Waste, Physical! Chemical Methods,” ‘U.S. Environmental Protection Agency, Office of Solid Waste, Washington, D.C. 20480. ICopies may be obtained from Solid Waste Information, U.S. Environmental Protection Agency, 26 W. St. Clair St.. Cincinnati, Ohio 45268] Liquid waste in pits, ponds, lagoons, and similar reservoirs.—”Pond Samijler” described in “Test Methods for the Evaluation of Solid Waste. Physical! Chemical Methods.” i This manual also contains additional information on application of these protocols. ‘These methods are also descnbed in ‘Samplers md Sampling Procedures for Hazardous Waste lireams.” EPA 600/2-80-018. January 1980. Appendix II— EP Toxicity Test Procedure A. Extraction Procedure (EP) 1. A representative sample of the waste to be tested (minimum size 100 grams) should be obtained using the methods specified in Appendix I or any other methods capable of yielding a representative sample within the meaning of Part 260. [ For detailed guidance on conducting the various aspects of the EP see “Test Methods for the Evaluation of Solid Waste, Physical/ Chemical Methods,” SW—846, U.S. Environmental Protection Agency Office of Solid Waste, Washington, D.C. 20460.1] 2. The sample should be separated into its component liquid and solid phases using the method described in “Separation Procedure” below. If the solid residue 2 obtained using this method totals less than 0.5% of the original weight of the waste, the residue can be discarded and the operator should treat the liquid phase as the extract and proceed immediately to Step 8. 3. The solid material obtained from the Separation Procedure should be evaluated for its particle size. If the 1 solid niaterial has a surface area per gram of material equal to, or greater than, 3.1 cm 2 or passes through a 9.5 mm (0.375 inch) standard sieve, the operator should proceed to Step 4. If the surface area is smaller or the particle size larger than specified above, the solid material should be prepared for extraction by crushing, cutting or grinding the material so that it passes through a 9.5 mm (0.375 inch) sieve or, if the material is in a single piece, by subjecting the material to the “Structural Integrity Procedure” described below, 4. The solid material obtained in Step 3 should be weighed and placed in an extractor with 16 times its weight of deionized water. Do not allow the material to dry prior to weighing. For purposes of this test, an acceptable extractor is one which will impart sufficient agitation to the mixture to not only prevent stratification of the sample and extraction fluid but also insure that all sample surfaces are continously brought into contact with well mixed extraction fluid. 5. After the solid material and deionized water are placed in the extractor, the operator should begin agitation and measure the pH of the solution in the extractor. if the pH is greater than 5.0, the pH of the solution should be decreased to 5.0 ± 0.2 by adding 0.5 N acetic acid. If the pH is equal to or less than 5.0, no acetic acid should be added. The pH of the solution should be monitored, as described below, during the course of the extraction and if the pH rises above 5.2, 0.5N acetic acid should be added to bring the pH down to 5.0 ± 0.2. However, in no event shall the aggregate amount of acid added to the solution exceed 4-ml of acid per gram of solid. The mixture should be agitated for 24 hours and maintained at 20°-40° C (68°— 104° F) during this time. It is recommended that the operator monitor and adjust the pH during the course of the extraction with a device such as the Type 45—A pH Controller manufactured by Chemtrix, Inc., Hillsboro, Oregon 97123 or its equivalent, in conjunction with a metering pump and reservoir of o.5N acetic acid. If such a system is not available, the following manual procedure shall be employed: (a) A pH meter should be calibrated in accordance with the manufacturer’s specifications. (b) The pH of the solution should be checked and, if necessary, 0 5N acetic acid should be manually added to the extractor until the pH reaches 5.0 ± 02. The pH of the solution should be adjusted at 15, 30 and 60 minute intervals, moving to the next longer interval if the pH does not have to be adjusted more than 0 5N pH units. (c) The adjustment procedure should be continued for at least 6 hours. (d) If at the end of the 24-hour extraction period, the pH of the solution is not below 5.2 and the maximum amount of acid (4 ml per gram of solids) has not been added, the pH should be adjusted to 5.0 ± 0.2 and the extraction continued for an additional four hours, during which the pH should be adjusted at one hour intervals. 6. At the end of the 24 hour extraction period, deionized water should be added to the extractor in an amount determined by the following equation: V= (20)(W)—16(W)—A V= ml deionized water to be added W= weight in grams of solid charged to extractor A= ml of O.5N acetic acid added during extraction 7. The material in the extractor should be separated into its component liquid and solid phases as.described under “Separation Procedure,” 8. The liquids resulting from Steps 2 and 7 should be combined. This ‘ szardous sste No Toluene dilsocyanste Toxaphene 2,4.5 -TP see U233 Trbromomethane 1.1.1-Tnchio roethane 1 ,1.2-Tnchioroethane Tnchtoroethene Tnchioroethylene see U228 Tnchiorofluon,methsne 2.4,5-Tnchior opheno l 2,4.6.Tnchtccophenot 2,!r.corophenoxyaret ic end 23... __24__ U225... U226_... U227 U228 U229. - U230 U23 1 U232. U233 . C.4.b- I ncnloropnenoxyproporvc acid alpha, alpha, alpha Tnclilorotoluene see U023 TRI-CLENE see U228 Trm,trobenzene (R,’T) Tre 2.3-dthromopropyl) phosphate Trypan blue Uracil mustard Uretham Vinyl chlande see U043 Vinylidene chlunde see U078 U239 Xylene U234 U235 - U238. U237 U238 ‘The Agency included those trade names of which it was aware, an cimssion ole trade name does not imply that C is not hazardous The matenal is hazardous if it is hated under its generic name ‘Copies may be obtained from Solid Waste Information, U.S. Environmental Protection Agency. 26W St Cleir Street. Cincinnati, Ohio 45268 ‘The percent solids is determined by drymg the filter pad at 80’ C until it reaches constant weight and then calculating the percent solids using the following equation’ (weight of pad + solid) — (tare weight of pad) X 100 % sOhde initial weight 01 sample ------- 33128 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations combined liquid (or the waste itself if it has less than ½ percent solids, as noted in Step 2) is the extract and should be analyzed for the presence of any of the contaminants specified in Table I of § 281.24 using the Analytical Procedures designated below. Separation Procedure Equipment: A filter holder, designed for filtration media having a nominal pore size of 0.45 micrometers and capable of applying a 5.3 kg/cm 2 (75 psi) hydrostatic pressure to the solution being filtered shall be used. For mixtures containing nonabsorptive solids, where separation can be affected without imposing a 5.3 kg/cm 2 pressure differential, vacuum filters employing a 0.45 micrometers filter media can be used. (For further guidance on filtration equipment or procedures see “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods.”) Procedure: (i) Following manufacturer’s directions, the filter unit should be assembled with a filter bed consisting of a 0.45 micrometer filter membrane. For difficult or slow to filter mixtures a prefilter bed consisting of the following prefilters in increasing pore size (0.65 micrometer membrane, fine glass fiber prefilter, and coarse glass fiber prefilter) can be used. (ii) The waste should be poured into - the filtration unit. (iii) The reservoir should be slowly pressurized until liquid begins to flow - from the filtrate outlet at which point the pressure in the filter should be immediately lowered to 10—15 psig. Filtration sl ould be continued until liquid flow ceases. (iv) The pressure should be increased, stepwise in 10 psi increments to 75 psig and filtration continued until flow ceases or th pressurizing gas begins to exit from the filtrate outlet. - (v) The filter unit should be depressurized, the solid material removed-and weighed and then transferred tp the extraction apparatus, or, in the ca e of final filtration prior to analysis, discarded. Do not allow the ‘This procedure is intended to result in separation of th “free’ liquid portrnn of the waste from any solid m atter having a particle size, >O.45um. If the sample will not Filter, various other separation techniques can be used to aid in the filtration. As described above, pressure filtration is employed to apeed up the filtration process. This does not alter the nature of the separation. If liquid does not separate during filtration, the waste can be centrifuged. If separation occurs during centrifugation the liquid portion (centrifugate) is filtered through the 0 45urn filter prior to becoming mixed with the liquid portion of the waste obtained from the initial filtration. Any material that wlU not pass through the filter after centrifugation is considered a solid and is extracted. material retained on the filter pad to dry prior to weighing. (vi) The liquid phase should be stored at 4C for subsequent use in Step 8. B. Structural Integrity Procedure Equipment: A Structural Integrity Tester having a 3.18 cm (1.25 in.) diameter hammer weighing 0.33 kg (0.73 lbs.) and having a free fall of 15.24 cm (6 in.) shall be used. This device is available from Associated Design and Manufacturing Company, Alexandria, VA., 22314, as Part No. 125, or it may be fabricated to meet the specifications shown in Figure 1. Procedure: 1. The sample holder should be filled - with the material to be tested. If the 8ample of waste is a large monolithic block, a portion should be cut from the block having the dimensions of a 3.3 cm (1.3 in.) diameter x 7.1 cm (2.8 in.) cylinder. For a fixated waste, samples may be cast in the form of a 3.3 cm (1.3 in.) diameter x 7.1 cm (2.8 in.) cylinder for purposes of conducting this test. In such cases, the waste may be allowed to cure for 30 days prior to further testing. 2. The sample holder should be placed into the Structural Integrity Tester, then the hammer should be raised to its maximum height and dropped. This should be repeated fifteen times. 3. The material should be removed from the sample holder, weighed, and transferred to the extraction apparatus for extraction. Analytical Procedures for Analyzing Extract Contaminants The test methods for analyzing the extract are as follows: (1) For arsenic, barium, cadmium, chromium, lead, mercury, selenium or silver “Methods for Analysis of Water and Wastes,” Environmental Monitoring and Support Laboratory, Office of Research and Development, U.S. Environmental Protection Agency, Cincinnati, Ohio 45268 (EPA-600/4—79- 020, March 1979), (2) For Endrin; Lindane; Methoxychlor; Toxaphene; 2,4-D; 2,4,5- TP Silver in “Methods for Benzidine, Chlorinated Organic Compounds, • Pentachlorophenol and Pesticides lit Water and Wastewater,” September 1978, U.S. Environmental Protection Agency, Environmental Monitoring and Support Laboratory, Cincinnati, Ohio - 42588, as standardized in “Test Methods for the Evaluation of Solid Waste, Physical! Chemical Methods.” For all analyses, the method of standard addition shall be used for the quantification of species concentration. This method is described in “Test Methods for the Evaluation of Solid Waste.” (It is also described in “Methods for Analysis of Water and Wastes.”) BILLING CODE 6560-01-U ------- F.deral Re iater / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 312fl • — 15.25cm (6”) .. — (3.15cm) (1.25”) WEIGHT .33Kg (.73 (b) 1 SAMPLE / ELASTOMERIC* / /‘ SAMPLE HOLDER I. J3.3crn 1 (13”) I-ut 9.4cm I 3.7”) •1 7.1cm (2.8”) *E STOMERIC SAMPLE HOLDER FABRICATED OF MATERIAL FIRM ENOUGH TO SUPPORT THE SAMPLE Figure 1 COMPACTION TESTER WNS cooi ... c ------- 33130 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations Appendix 111—Chemical Analysis Test species. Table 3 identifies the specific Methods sample preparation and measurement Tables 1,2 and 3 specify the instrument introduction techniques appropriate analytical procedures, which may be suitable for both the described in “Test Methods for organic and inorganic species as well as Evaluating Solid Waste” (Sw—M o). the matrices of concern. which should be used in determining Prior to final selection of the whether the waste in question contains analytical method the operator should a given toxic constituent. Table 1 consult the specific method descriptions identifies the analytical class and the in SW—MO for additional guidance on approved measurement techniques for which of the approved methods should each organic chemical listed in be employed for a specific waste Appendix VII. Table 2 identifies the analysis situaticn. corresponding methods for the Inorganic Ysbie 1.—An$’tical OIBrSCZGSSCS of O,gaia’o Qsnacals Chloroform ........ Volatile...... ..... - ... - Clilo ,o,nethane - .... Volatile -- - 2-cNoropl’enol. - - ..... Extractable/SN - Ctvyeene - Extractable/SN . Creosote - - - . - . Extiacteble/5N - - Creeol(a) Extractable/A Creayuc sort(s) Extractable/A.. Dichlwobenxene(s) .. Extractable/SN_.. Dictiloroethane(s ) . - - Volatde — DictiL . v msthw ie - Volatle.. - . -. - Dictlorophenoxy ecetic sold Extractable/A. .. - Octiloropropanol - .. . .. Extractable /SN - - - 2.4.Oineth 1plienol ._. . . Extractable/A .. — - .... Extractable/SN..... .... - 4.8-0inolro o aesol Extractable/A .. .. - . 2.daxtrototuene - . . . Extractable/SN - - - Bidnn .. . ... Extractable/P.... Ethyl ether. .. . Volatle Methyl aobi ityt katone .. Volatile Nophthalene - Extractable/SN N thoq iaione Extractable/SN - Extractable/SN -. Extractable/A - Volatile - Conçotoid SenvIe handting clasa /lTactlon Non.GC methods Measta-ement tediniquea GC/M5 Convanbonel SC Detector Volatile - Volatile Volatile - - Volatile...... —. ... . .. - Volatile Extractable/SN .. . .‘- 510fl-IPLC) Extractable/SN 810 (HPLC3 Extractable/SN... Volatile or Extractable/SN t omthta Acrolein Acrylamate Acrylo retn le — - Senzene. . - Benzo(a)pyrene Beraothcblonde.. Serayl ctilonde - - Bera(bflStanthena.. Sis(2.cltloroethoxymethsne) Bs(2.ddoroethyl)ethw - - Bis(2-cl ,Ioroeopmpyljether Ca thaatde.... - -. - . Ceiton tatrecNon* - Chlordane. Ch dteraodcxhei. - hlennated bçlienyla Qiloroacetaldeltyde. chierobenrene Extrar4thle/SN Volatile.. - Volatile Volatile........... Volatile ._. .. Volatile................. EatrAt /SN Extractable/Sli.. Extractable/SN - Volatile - — Volatile - 810 @ I W . .. 8.24 803 824 803 8.24 801 8.24 803 824 802 825 810 825 810 8.25 812 8.24 501 8.25 812 5.1O5ELC). 8.25 810 8.24 8.01 8.24 801 824 801 — 8.24 801 8.24 801 825 8.08 525 808 825 808 8.24 801 8.24 - 801 a oz 8.24 801 8.24 801 8.25 8.04 8.25 810 ‘825 8.10 8.25 8.04 825 804 825 801 802 812 _ . 8.24 - 801 824 801 825 840 825 812 825 804 825 8.09 825 804 825 8.09 825 8.08 - . - 824 801 802 824 - 8.01 - 825 808 8.25 8.08 8.25 812 825 8.12. - . 8.25 812 825 812 - - 825 808 825 —808 824 801 8:25 - •e0l 802 825 801 802 825 810 825 808 809 8.25 8.09 8.24 804 824 801 N5O N5O RD N50 MD RD FID EGO HSD EGO RD M W KSO N W HSO H5O N50 EGO - H50. NW N50 MD 1150 1150 RD. EGO RD EGO RD. EGO PIP. EGO HSO PID EGO M W NSO HSD EGO RD. EGO RD. ECO RD. EGO RD. EGO NW RD RD RD RD NW EGO EGO EGO EGO IISD ECO, RD RD - RD FID FID RD FID EGO.FID - FID EGO. RD EGO. FID FID Formaldehyde Formic acid . Heptacltr.. Hexachlotobenzene Nexad ilorobutadlene Nexadiloroethane.. Nexath lorocyolopenlad iene -Ut. Mateic wtydnde Methanol I Methornyt Methyl ethyl Stone Volatils........_ ExtractablefSN Extractable/P_ Extractable/SN Extractable/SN - Extractable/SN - Eitactable/SN Extractable/P. Extractable/ON Volatile . Extractable/SN . 8.32 (NPLC) - Volatile. Ndrcbenzene 4Neoplienol Paraldehyde’ (tamer of aceoddehyde) ------- Federal Register / Vol. 45, No. 98 / Monday, May19, 1980 I Rules and Regulations 33131 Table 1.—Analytical Charactensticsof Appendix Vil.—Basis for Listing Hazardous Wastes Ex lractsb te/BN .. .: - Volatile Volatile - Extractable/A Volatile ... - Extractable/BN Volatile . Volatile - Volatile. .. - Measurement techrsquea Conventional GC/MS CC Detector 825 804 ECO 825 804 ECD.FID 822 FPD 806 ECD,FID 809 EGO. FID 822 FPO 825 808 ECO. FID 809 ECO.FID 825 8.06 ECD. FID 8.09 EGO. FID 825 806 ECO.FID 809 EGO. FID 825 812 EGO 824 801 HSD 824 801 HSD 824 ‘804 EGO 824 802 PlO 825 8.25 8.06 FID 825 8.08 HSD 824 8.01 HSD 824 801 HSD 824 801 HSD 825 804 HSD 825 840 HSD 824 8 1 HSD 824 801 HSD 824 801 HSD 824 802 PID EPA l ardous Hazardous constituents for wtuch listed waste No. F001........ to th ffl ne. m ne dilonde inchlor- oethyllene, 1.1 .1 -tnthloroethane cfilometed bon tohadeoride .F002 .... tetrachloroethylene, methylene chloride. Irdilor. oethylene, I .I.l4ncflloroethsne. chicroben. - zene, 1.l.2 tnchloro 1,2.24rifluoroethane. 0’ dichlorobenzene. tnctilcrofluorornelhane FOCi.. . NA. F 004 creaola and creaytic acid. nitrobenzene F 0 05. .. . methanol. toluene. methyl ethyl ketone. methyl — ketone, carbon disulfide. siotiutanol, F 006 . - cadmium, clironismi, nickel, cyanide ( ,.uhI ed) FOOl .. cyanide (salts) F008 -- cyanide (salts) F009 .. cyanide (sails) FOb . .. cyanide (sails) Foil .. .. cyanide (salts) F012 . -. cyanide (coinpiexed) F013 - -. cyanide (complexed) F014 .... cyanide (ccmplexed) F015.. cyanide (salts) FObS - cyarilde (comptexed) 1(001 benzene. benz(a)anttvacene, benzo(a)p ene, ch,ysene, 4-nitrophenol, toluene, nsphlhalene phenol, 2-chlorcphenol, 2,4-dimethyl phenol. 2.4.6.tnchlorophenol. pentachloropherd. 4,6- dinitro.o.aesol. tetrsditorophsrd 1(002 chromium, lead 1(003 diromsim, lead 1(004 - chromium 1(005 — - chromium, lead 1(006. ... chronsurn 1(007 ... cyanide (complexed). cttromwm 1(008 - chromium 1(009 chloroform, formaldehyde, methylene chloride. methyl chloride. paraldehyde. formic acid 1(010 ... dilototorm, formaldehyde, methylene chloride. methyl £hlonde. parsidehyde. fomiic acid. ch loroacetsldehyde - 1(011 acrylonitnle, acetonitrile, hydrocyen.c acid 1(012. .. acrylonitnle. acetonitnie, acrolein, acrylamide 1(013 -- hydrocysnic a , acrylonilnie, acetonitnie K014 . acetonitnle, aorytaniide 1(015 . benzyl chloride, chlorcbenzene, toluene, benzo- tnchlcnde 1(016 . hexachlorobenzene. hexachicrobutadiene. carbon tetradtlutide . hexachloroethane. perch- 1(017 epichlorohydnn, chloroetheis Cbs(chloromethyl) ether and bus (2-chloroethyl) ethersi. tnchloro propane. dehlommppa K018 . l.2.dichloroethane. tiichloroethytene, hexachlcro- butadiene, hexachiorobenoene 1(019 ... ethylene dichiodde. l.1.1-tnchloroethane. 1,12. Inchloroethane, tetrachioroethanes (1.1,2.2-ta. Irachioroethane and 1,1.i,2-tetrachloroelhane). tnchloroethylene, telrachloroethytene. ca,bon teirachloride. chloroform, vinyl chloride. vinyli- dane chloride Compound Sample handling Non-GC dasa/fraction methods Pentachicrophenol - .. Extraclsble/A..... - -- Phenol . - . ,.. . ... - Extractable/A.. Ptiorate Extractsble/BN Phoaphorodithiouc acid eaters. - .. Extractable/SN . - Phthslic anhydride . Extractable/SN 2-Picoline , Extractabte/BN. .. ._. Pyndlne... - . .. Extractable/SN.... .... Tetracf llorobenzene(a) Tetrachlaroethane (s) Tetracluloroethene Tetraclilorophenol. Toluene - Toluenedianime . - Toluene dssocysnaie(a) - . Ex t rsctable/nonaqueous - Toxaphane Extractable/P TnchloroetJiane. . . Volatile ..... - - Tnchloroethene(s) Volatile Tnchlorofiuorometjiane Volatile . - Tnchlorophenol(a) - - Extractable/A .. . . - 2,4,5-TP (Silvex).. . . Extractable/A ... - Tnchloropropane. - - Volatile - Vinyl chloride . - Vlnylidene chloride Xylene -. Analyze for phenarilhrene end cstbazcle, if these are present in a ratio between 1 4 I and 5 1, creosote should be consid- ered present. - EGO Electron capture detetor FID = Flame ionIzation detector FPD Flame photometric detectcr 1400 = Halide specific detector HPLC High preasixe liquid chromotograptiy NSD = Nitrogen-specific datector PlO = Photoionizalion de Table 2—Analytical Characteristics of lnct’ganlc Species Species Sample handling class Measurement techniq ie Method mber Antimony - - Digestion -. -. .. Atomic absorbtion-fwnace/flame 850 Arsenic Hydride..... - Atomic aborbla .,-flame 8.51 Banurn - - . - - . Digestion . . -. - f onto so bon-funwce/llame . . 852 Cadnuium . - - Digeation . .. - onto i so lion—furnace/flame 8.53 Chromsim Digestion -. onvc I so tion—fumace/flame...... 654 Cyanides . .. Hydrolysis ... omic I so tlon—apectroscopy 655 Lead - . . Digestion . Atomic absortition-furnace/flame ... . 656 Mercury - - ‘. Cold Vapor . . Atomic sbscrbtion . . . 857 Nickel . . Digestion - - . . . Atomic abaorbtron-furnace/f lame ... - 858 Selen a 5n .. . Hydride digestion. .. Atomic absoibtion-furnace/llame . - ... . ._ 859 Silver Digestion Atomic ebsotht,on-fumai i/flame. . .. 860 Table a—Sample Prepamo,i/Sample Introduction Techniques Sample handling class Physical characteristics 01 waste’ Fluid Paste Solid Voftile Purge end trap Direct e cton Purge and trap Headspace. l-’l. -- Semivoistile Direct Shake out . Shake out. and injection Soxhlet. nonvolatile Shake out . Sonication. Inorganic... Direct . - Injection. Digestion - Digestion. Digestion - H de - H de Procedure and Method Number(s) Digestion—See appropriate procedure for element of interest. Direct injection—8.80 Headspace —8.82 Hydride—See appropriate procedure for element of intereal Purge & Trap—8.83 Shake out—8.84 Sonicat ion—8.85 Soxhlet—8.86 ‘For purposes of this Table, fluid refers to readily poursble liquids, which may or may nol contain suspended particles. Paste .Iike materials, while fluid in the sense of flowabihly. can “is thought of as being tiuxotropic or plastic m nature. e g. anita. Solid materials are thoae wastes which can be han- )ed without a container (I e • can be piled up without eppre- able sag ng). ------- 33132 Federaj Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations Appendix VlI.—Bas’s for Listing Hazardous Aldnn 2-Ch lorophenol Wastes—Continued Allyl alcohol 1-(o-Chlorophenyl)thiourea ______________________________________ Aluminum phosphide 3-Chloropropiomtrile EPA 4-Aminobipheny l a lpha-Chiorotoluene hazardous Hazardous constituents for which listed 6-Amino-1, la,2.8,8a,8b-hexahydro-8- Chlorotoluene, N.O.S waste No (hydroxymethyl)-8a-methoxy-5- Chromium and compounds, N.O S. methylcarbamate azinno(2’,3’:3.4) Chrysene K020. - ethylene dichionde. 1 1 1-tnchloroethane. 1.1.2- pyrrolo(1,2.a)mdole-4,7-dione (ester) Citrus red No. 2 tnchloroethsne. tetrachicroethanes (1.1.2.2-to UthlOroetfiane and 1.1.1.2-tetrach loroethane). (Mitomycin C) Copper cyanide Inch lorcethytene. tetrachloroethyiene. carbon 5-(Anunomethyl).3.isoxazolol Creosote tetrachionde. ctilorotonn. vinyl clrionde. inyb- 4-Aminopyridme Crotonaldehyde dene chionde - Anutrole Cyanidea (soluble salts and complexes), 1(021 .. antimony. carbon tetrachionde. chloroform 1(022 phenol. tars (polycyclic aromatic hydrocarbons) Antimony and compounds, N.O.S.i N.O.S. K023 phthal,c anahydnde. maleic anhydnde Aramite Cyanogen K02&. - - phthahc anhydnde. poiynuclesr tsr4ke matenaia. Arsenic and compounds, N.O S. - Cyanogen bromide haphthoriumone Arsemc acid Cyanogen chloride K025 rseta-dinitrobenzene. 2,4-diistrototuene 1(026 paraldehyde. pyruchunes, 2 pioohine Arsenic pentoxide Cycastn 1(027 taulene daaocyenate. toluene-2.4-duamune. tars Arsenic trioxide 2Cyclohexy l-4,6-dinitrophenol - (benzidrnudazapone) Auramme Cyclophosphamide 1(028 - 1,1.1-tnchiwoethane. vinyl chlonde 1(029 1.2.-duchlcroethane. 11,1-tnchloroethane, vsiyl Anserine - Daunomycin chlonde. vunlyidene chlonde. chloroform Banum and compounds, N.O S. DDD 1(030 - - hezachlorobenzene. hexadilorotiutadiene. lies- Barium cyanide DDE achloroethane. 1.1 ,1,2-tetrachloroethane. - 1.1.2.2-tebachloroethene, ethylene d,chlande Benz [ c)acridme DDT 1(031. - arSenic Benz [ a]anthracene Diallate 1(032 hesachtorocybloperutaduene Benzene Dibenz [ a,hjacndme 1(033 hexachlorocyclopentadiene Benzenearaonic acid Dibenz [ a,flacndine 1(034 hezach loracyctopentadiene 1(035 - .. cresote. benz(a)anthracene. benzfli)euoroan- Benzenethiol Dibenz [ a,hjanthracene(Dibenzo [ a.h] thene, benzo(a)pyrene Benzidine anthracene) K036 - - tautene. phosphoroduthuotc and phospharothloic acid esters Benzo [ a]anthracene 7H-D ibenzo [ c.g]carbazole 1(037 toulene. phoaphorodithioic and phosphorothioic Benzo(b]fluoranthene Dibenzo [ a,ejpyrene acid eaters Benzo [ j)fluoranthene Dibenzo [ a.h)pyrene 1(038 phorate, formaldehyde. phosphoroduthiotc and Benzo [ a pyrene Dibenzo [ a,i)pyrene phoaphcroihioic acid eaters 1(039 __ Benzotrichloride - 1.2-Dibromo-3-chloropropane esters Benzyl chloride - 1,2-Dibromoethane 1(040 phórste. formaldehyde. phosphorodithuoic and Beryllium and compounas, N.O.S. Dibromomethane Phosphcrothuoic scud esters 1(041 tohane Bis(2-chloroethoxy)methane Di-n-butyl phthalate 1 (042 - hexachlorobenzene, ortho-duchibonzene Bia(2-chloroethyl) ether Dichlorobenzene, N.O.S. 1(043 2.4-duchlorophenol. 2.6-dchlorophenol. 2.4.6- N.N-Bia(2-chloroethyl)-2-naphthylamine 3,3’Worobenziclme aphenol Bis(2-chloroisopropyl) ether 1, 1-D ich loroethane 1(044 N.A 1(045. NA. Bis(chloromethyl) ether 1.2.Dich loroethane 1(046 - - lead Bis(2-ethylhexyl) phthalate trans-1,2-Dichloroethane K047 N & Bromoacetone Dich loroethylene. N.O.S. K048 cfromeam, lead K049 - chromium, lead Bromomethane 1, lDich loroethylene 1(050 chromium 4-Bromophenyl phenyl ether Dich loromethane K051 chromsa lead Bmcbe 2,4-Dichlorophenol 1(052 lead icosa . ciiromuum 2-Butanone peroxide 2,6 -Dichiorophenol 1(054 - chromium Butyl benzyl phthalate 2,4-Dichlorophehoxyacetic acid (2.4-D) 1 (055 - chromsim, lead 2-sec-Butyl-4,6-dinitrophenol (DNBP) Dichioropropane 1(056 cfsamiuin, - Cadmium and compounds, N.O.S. Dichlorophenylarsine 1(057 chromium, lead Icose - - chrâmssii, lead Calcium chromate 1.2-Dichloropropane K059. -- NA . Calcium cyanide Dichloropropanol, N.O.S. 1(060 - . cyanide, naphthalene. phenolic compounds, ar- Carbon disulfide Dichioropropene. N.O.S. senic K061. - cfvomsiin, lead, cadmium Ch lorambucil 1,3-Dichloropropene 1(062 -. chronsum, lead Ch lordane (alpha and gamma isomers) Dieldrin K063 chromium, lead Ch lonnated benzenes, N.O.S. Diepoxybutane 1(064. - lead, cadmium 1(065 lead, cadmium Chlorinated ethane, N.O.S. Diethylarsine K066. -- lead, cadmium Chlorinated naphthalene. N.O.S. O,0-Diethyl-S-(2-ethylthio)ethyl ester of K067 lead, cadmium Chlorinated phenol, N-OS. phosphomthiotc acid 1(068. - - lead, cadmium 1(069. - chronsum, lead, cadmium Ch loroacetaldehyde 1,2Diethylhythazine Chloroalkyl ethers 0,0-Diethyl-S-methylester phosphorodithioic N A —Waste us hazardous because it meets either the p-Chloroamline - acid ugnutabituty. corrosuvtty or reactivity charsctenstic Chlorobenzene O,O-Diethylphosphoric acid, O-p-mtrophenyl Appendix VIll—Hazardous Constituents Chlorobenzilate ester 1-(p-Chlorobenzoyl)-5-methoxy -2- Diethyl phthalate Acetaldehyde methylindole-3-acetic acid O,O-Diethyl-O-(2-pyrazinyl)phosphorothioale (Acetato)phenylmercury p-Chloro-m-cresol Diethylstilbestrol Acetonitrile 1-Chloro-2.3-epoxybutane Dihydrosafrole 3-(alpha-Acetonylbenzyl)-4-hydroxycoumann 2-Ch loroethyl vinyl ether 3,4-Dihydroxy-alpha-(methylamino)-methyl and salts Chloroform benzyl alcohol 2 -Acetylammofluorene Chioromethane Di-isopropylfluorophosphate (DFP) Acetyl chloride Chloromethyl methyl ether Dimethoate 1-Acetyl-2-thiourea 2-Chloronaphthelene 3,3 ’-Dimethoxybenzidine Acrolein - p-Dimethylaminoazobenzene Acrylamide - ‘The abbreviation N 0 S signifies those members 7,12-Dimethylbenz [ ajanthracene Acrylonitrile of the general cless “not otherwise specified” by 3,3’-Dimethylbenzidine Aflatoxins name in this listing Dimethylcarbamoyl chloride ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33133 1 -Dimethy lhydrazine Methyl methanesulfonate Propylthiouracil Dimethy lhydrazine 2-Methyl-2.(methylthio)propionaldehyde-o- 2-Propyn-1-ol Dimethyl.1 -(methylthio).2-butanone.O - (methylcarbonyl) oxime Pryidine (methylamino) carbonyl)oxime N.Methyl-N’-nitro-N.nitrosoguanidine Reserpine Dimethylnitrosoamine Methyl parathion Saccharin alpha,alpha-D lmethylphenethylamine - Methy lthiouracli Safrole 2.4-Dimethy lphenol Mustard gas Selenious acid Dimethyl phthalate Naphthalene Selenium and compounds. N.O.S. Dimethyl sulfate 1,4 .Naphthoquinone Selenium sulfide Dinitrobenzene, N.O.S. 1-Naphthylamine Selenourea - 4.6-Dinitro-o-cresol and salts 2.Naphtbylamine Silver and compounds. N.O.S. 2.4-Dinitrophenol 1-Naphthyl.2-thiourea Silver cyanide 2.4-Dinitrotoluene Nickel and compounds, NO.5. Sodium cyanide 2,6-Drnitrotoluene Di.n.octyl phthalate Nickel carbonyl Streptozotocin 1,4-Dioxane Nickel cyanide Strontium sulfide 1.2-Diphenylhydrazine Nicotine and salts Strychnine and salts Di-n-propylnitrosamine Nitric oxide 1,2,4,5-Tetrach lorobenzene Disulfoton p-Nitroaniline 2,3,7,8-Tetrachlorodibenzo.p-dioxin (TCDD) 2,4-Dithiobjuret Nitrobenzene Tetrachloroethane. N.O.S. Endosulfan Nitrogen dioxide 1,1,1,2-Tetrachioroethane Endrin and metabolites Nitrogen mustard and hydrochloride salt 1,1,2,2-Tetrachioroethane Epichlorohydrin Nitrogen mustard N.oxide and hydrochloride Tetrachloroethene (Tetrachloroethylene) Ethyl cyanide salt Tetrachloromethane Ethylene diamine Nitrogen peroxide 2.3,4,6-Tetrachlorophenol Ethylenebisdithiocarbamate (EBDC) Nitrogen tetroxide Tetraethyldithiopyrophosphate Ethyleneimine Nitroglycerine Tetraethyl lead Ethylene oxide 4-Nitrophenol Tetraethylpyrophosphate Ethylenethiourea 4-Nitroquino lme-1-oxide Thallium and compounds, N.O.S. Ethyl methanesulfonate Nitroaamine. N.0.S. Thallic oxide Fluoranthene N.Nitrosodi-N-butylamine Thalhum (I) acetate Fluorine N-Nitrosodiethanolamine Thallium (1) carbonate 2-F luoroacetamide N-Nitrosodiethylamine -Thallium (1) chloride Fluoroacetic acid, sodium salt N-Nitrosodimethylamine Thallium (I) nitrate Formaldehyde N-Nitrosodiphenylamine Thallium aelenite Glycidylaldehyde N-Nitrosodi-N-propylamine Thallium (I) sulfate Halomethane, N.O.S. N-Nitroso-N-ethylurea Thioacetamide Heptachlor N.Nitrosomethylethylamine Thioseinicarbazide [ eptachior epoxide (alpha, beta, and gamma N-Nitroso-N-methylurea ThJouma isomers) N-Nitroso-N.methylurethane Thiuram - [ exachlorobenzene N.Nitrosomethylvinylamine Toluene exachlorobutadiene N-Nitrosomorpholine Toluene diamine Hexachiorocyclohexane (all isomers) N-Nitrosonornicotine o-Toluldine hydrochloride Hexachlorocyclopentadiene N-Nitrosopiperidine Tolylene diisocyanate Hexachioroethane N.Nitrosopyrrolidine Toxaphene - 1,2,3,4,1O,1O-Hexachloro.1,4,4a,5,8,8a- N-Nitrososarcosine Tribromomethane hexahydro-1,4.5,8-endo.endo- 5-Nitro-o-toluidine 1,2,4-Trichlorobenzene dimethanonaphthalene Octamethylpyrophosphoramide 1,1,1-Trichloroethane Hexachlorophene Oleyl alcohol condensed with 2 moles 1,1,2-Trichloroethane Hexach loropropene ethylene oxide Trichloroethene (Trichioroethylene) Hexaethyl tetraphosphate Osmium tetroxide Trichioromethanethiol Hydrazine 7-Oxablcyclo(2.2.ljheptane-2.3-dicarboxylic 2,4,5-Trichlorophenol Hydrocyanic acid acid 2,4,6-Trichlorophenol Hydrogen sulfide Parathion 2.4,5-Trichlorophenoxyacetic acid (2.4,5-T) Indeno(1,2,3-c,d)pyrene Pentachlorobenzene 2,4.5-Trichiorophenoxypropionic acid (2.4.5- lodomethane Pentachioroethane TP) (Silvex) Isocyanic acid, methyl ester rentachioromtrooenzene (PCNB1 Trichioropropane. N.O.S. Isosafrole Pentacholorophenol 1,2,3-Trichloropropa iie Kepone Phenacetin 0.0.0-Triethyl phosphorothioate Lasiocarpine Phenol Trinitrobenzene Lead and compounds, N.O.S. Phenyl dichioroarsine Tris(1-azridinyl)phosphine sulfide Lead acetate Phenylmercury acetate Tr is(2,3-dibromopropyl) phosphate Lead phosphate N-Phenylthiourea Trypan blue Lead subacetate Phosgene LJracil mustard Maleic anhydride Phosphine - Urethane Malononitrile Phosphorothioic acid, O,O-dimethyl ester, 0 Vanadic acid, ammonium salt Melphalan - ester with N,N-diniethyl benzene - Vanadium pentoxide (dust) Mercury and compounds. N.O.S. sulfonamide Vinyl chloride Methapyrilene Phthalic acid esters, NO.5. Vinylidene chloride Methomyl Phthalicanhydride Zinc cyanide 2-Methylaziridine Polychlorinated biphenyl, N.O.S. Zinc phosphide 3-Methylcholanthrene Potassium cyanide [ FR Doc 80-1430? Filed 5-16-80 845 emJ 4,4’-Methylene-bis-(2-chloroaniljne) Potassium silver cyanide Methyl ethyl ketone (MEK) Pronamide BIWNO CODE 6580-01-N lethyl hydrazine 1,2-Propanediol -Methyllactonitrile 1,3-Propane sultone 4ethyl methacrylate Propionitrile ------- Monday May 19, 1980 fart IV Environmental Protection Agency Hazardous Waste Management System Proposal To Modify 40 CFR Part 261— Hazardous Waste Lists ------- 33136 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980/Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 261 [ FRL 1471—4) IdentificatIon and ListIng of Hazardous Wastes AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) is proposing to add eleven wastes to the interim final list of hazardous wastes which it is promulgating today under Section 3001 of the Resource Conservation and Recovery Act of 1976, as amended (RCRA). The effect of adding these wastes to the hazardous waste list will be to make them subject to the management standards issued by EPA under Sections 3002 through’ 3006 and 3010 of RCRA (Parts 262 through 265, 122 through 124 of this Chapter and 45 FR 12746). DATES: EPA will accept public comments on the proposed listings until July 18, 1980. Any person may request a hearing on this proposal by filing a request with John P. Lehman, whose address appears below, by June 9, 1980. The request must contain the information prescribed in § 260.20(d) of this chapter. AODRESSE Comments and requests for hearing should be addressed to John P. Lehman, Director, Hazardous and Industrial Waste Division, Office of Solid Waste [ WH—565], U.S. Environmental Protection Agency, Washington, D.C. 20460. Communications should identify the regulatory docket number ‘Section 3001.” The public docket for this proposed rulemaking is located in Room 2711, U.S. Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460 and is available for viewing from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays. FOR FURTHER INFORMATION CONTACT: Alan S. Corson, Office of Solid Waste (WH—565), U.S. Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460, (202) 755—9187. SUPPLEMENTARY INFORMATION: Section 3001 of RCRA requires EPA to publish criteria for listing hazardous waste and to list particular hazardous wastes. In foday’s Federal Register EPA is promulgating interim final criteria for listing hazardous wastes ( 261.11) along with an interim final list of hazardous wastes (Part 261, Subpart D). The Agency Is now proposing to expand this list of hazardous wastes to add eleven wastes which EPA has determined meet its interim final listing criteria. Included in this proposed supplemental listing are five wastes generated in the organic chemicals industry, four wastes from the manufacture of pesticides, one waste stream from the wood preserving industry and one waste stream from the non-ferrous metals industry. All eleven of these wastes were identified by the Agency in the course of developing the necessary technical data to support the interim final hazardous waste list promulgated today. These wastes and the hazards they pose to health or the environment are: (1) Distillation bottoms and heavy ends from the production of 1.1,1- trichloroethane. These two wastes contain known carcinogens, many of which are soluble in water or are volatile. If the waste is improperly managed, the carcinogens may contaminate surface water, groundwater, or air. (2) Vacuum stripper discharge from chiordene chlorinator in the production of chiordane. This waste contains dissolved or suspended highly toxic constituents which are soluble and may migrate through leaching from the waste if the waste is improperly managed. (3) Untreated waste water from the production of 2,4-D. This waste contains carcinogens and mutagens which are soluble in water. If the waste is - improperly managed, these constituents can contaminate surface water or groundwater. (4) Wastewater from the production of methomyl. This waste contains toxic’ compounds, a carcinogen and mutagenic substances. If this waste is improperly managed, these compounds could migrate from the waste and contaminate groundwater and surface water. (5) Distillation residues both light ends and bottoms from the production of phthalic anyhride from ortho-xylene. These two wastes contain toxic compounds, a known carcinogen, and a suspected carcinogen. Some of these compounds are soluble in water, and, if the waste is improperly managed, these compounds can contaminate surface water and groundwater. If the residues are improperly incinerated, these compounds (or equally or more toxic degradation products) may be emitted into the air. (8) Wastewater from wood preserving processes that use creosote and/or pentachlorophenol. This waste contains carcinogens, mutagens and toxic compounds, many of which are soluble in water or are volatile. If the waste is improperly managed, these compour can contaminate surface water, groundwater, or air. (7) Untreated process waste water from the production of toxaphene. This waste contains toxaphene, a carcinogenic and extremely toxic compound. if the waste is improperly managed, this compound could migrate from the waste and contaminate groundwater and surface water. (8) Process. wastewater from creosote production. This waste contains a number of known carcinogens. If this waste is improperly managed, these compounds are capable of migrating and persisting in the environment and could contaminate surface water and groundwater. (9) Waste leaching solution from acid leaching of emission control dust/sludge from secondary lead smelting. This waste contains toxic heavy metals which, when solubilized, can contaminate surface water and groundwater if the waste is improperly managed. When surface water, groundwater, or air is contaminated, human health or the environment can be adversely affected. BACKGROUND DOCUMENT: Background documents have been prepared in support of this proposed rule. Copies available for review in all EPA Regioni office libraries, in the EPA headquarta (Public Information Reference Unit) Room 2404, Waterside Mall, 401 M Street, ,S.W., Washington, D.C. and in the docket located in Room 2711, Waterside Mall. 401 M Street, S.W., Washington, D.C. ECONOMIC, ENVIRONMENTAL AND REGULATORY IMPACTS. In accordance with Executive Order 11821, as amended by Executive Order 11949, and 0MB Circular A—107, EPA policy as stipulated in 39 FR 37419, October 21, 1974, and Executive Order 12044, analysesof the economic, environmental, and regulatory impacts were performed for the entirety of Subtitle C. EPA does not believe that amending Part 281 to add these additional wastes is a major action for the purposes of Executive Order 12044, in part because the wastes are generated by processes which’ produce other listed wastes and because the cost of managing those other listed wastes has already been accounted for in the final Regulatory Analysis which was prepared for the entirety of Subtitle C. However, EPA requests that any date coinmenters have on the generation rates of the wastes listed in the proposal, current management costs an practices for these wastes or on the cos or economic impacts of the proposed ------- Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980 / Proposed Rules 33137 gulations be sent to John P. Lehman at address listed above. Jateth May 2. 1980. Douglas M. Castle, Administrolor. It is proposed to amend Title 40 CFR, Part 261. by revising 40 CFR, Part 261. as follows: § 261.32 [ Amendedl 1. In § 261.32. add the following waste streams: Industry EPA hazardous waste Hazardous waste Haz- aidous code No Wood Wastewatar from wood (fl. preservation. preserving that rare creosote Orgaric — DabNabon bottoms from the (1) production of 1.1.1- o ns. Heavy ends from the heavy ends colwrm from the producbonof 1.1.1. thd etrarne Vacuum atnppar discharge from chiordene chiodnator b the production of o l Distillation agfa ends from the production of plithatic — ham odh — Distillation bottoms from the production ot phthallc anhy&vde from ortho- s lene. ( I) (T) (1) abodes... . . .. Untreated pr wastewatar from the production of toxaphene Untreated wastewate, from the production of 2.4-0 Wastewate, fran the production of m t) t Process wastewata, from creosote produ n (T). (fl (T) m Secondary Waste teaching solution from (1) lead, acid leaching of emission control dust/sledge from — lead sindth Tlsi EPA Hazardous Waste Nwiiba, wiN not be assigned wti8 the listed waste a promulgated. FR Dec. 51-14308 Flied 5-18-80; 8,45 sal BSWNG cODE 6560-01-U ------- Monday May 19, 1980 Part V Environmental. Protection Agency Hazardous Waste Management System Standards Applicable to Generators of Hazardous Waste ------- 33140 Federal Register / Vol. 45, No. 98 j Monday, May 19, 1980 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY - 40 CFR Part 262 [ FRL 1470-71 St ndards for Generators of Hazardous Waste AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: The Resource Conservation and Recovery Act, as amended, seeks to promote the protection of human health and the environment and to conserve valuable material and energy resources. In order to accomplish this, the Act establishes a national program to improve solid waste management, including the control of hazardous waste, the promotion of resource conservation and recovery, and the establishment of environmentally sound solid waste disposal practices. The EPA promulgated regulations establishing standards for generators of hazardous waste. These regulations were published in the Federal Register on February 26, 1980 (45 FR 12722). The amendments published today are both administrative and technical changes to the regulations which are intended to clarify the operation of these regulations. Areas of change include clarification of the effective date and compliance date of the regulation: clarification of the applicability of the regulations to generators which treat, store, or dispose of hazardous waste on- site; a corrected citation to the Part 261 provisions establishing equivalent test methods for determining whether a waste is a hazardous waste; inclusion of a generator’s requirement to designate a facility or accept the waste if it cannot be delivered to the designated or alternate facility; a technical correction concerning placarding for rail shipments; expanded requirements for accumulation time in tanks and for contingency plans; addition of the EPA mailing address for generators who are required to notify the Administrator of international shipments; a corrected citation to triple rinsing in the Farmers section; and additions to the Annual Report.(EPA Forms 8700—13, 8700—13A and 8700 —13B). DATES: Effective date: November 19, 1980. EPA will accept public comment onthese regulations and amendments for administrative errors only (e.g., typographical errors, inaccurate cross references) until July 18, 1980. No extension in the effective date will be made, however, as a result of such comments. ADDRESSES: The official docket for this regulation is located in Room 2711, 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 information on implementation of these regulations, contact your EPA Regional Office. FOR FURTHER INFORMATION CONTACT: For technical assistance on these regulations contact Harry W. Trask or Rolf P. Hill, Office of Solid Waste (WH— 583), U.S. Environmental Protection Agency, Washington, D.C. 20460 (202— 755—9150). For single copies of the amended Part 282 preamble and regulations published today and for copies of the February 26, 1980 version which contained a more descriptive preamble of this whole Part, contact Edward Cox, Solid Waste Publications, 26 W. St. Claire, Cincinnati, Ohio 45268 (513) 684—5382. Multiple copies will be available from the Superintendent of Documents, Washington, D.C. 20402. SUPPLEMENTARY INFORMATION: I. Authority These amendments are issued under authority of sections 2002(a), 3001, 3002, 3003, 3004 and 3005 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and as amended by the Quiet Communities Act of 1978 (“RCRA” or “the Act”), 42 U.S.C. 6912(a), 6921, 8922, 6923, 8924, 6925. U. Background This regulation was published in the - Federal Register in proposed form for public review and comment on December 18, 1978 as 40 CFR Part 250, Subpart B (43 FR 58969 et seq.). The Agency held five public hearings and received a substantial number of written comments on the proposal. The public comment period closed on March 16, 1979. After consideration of the views of the public, the Agency promulgated the Part 262 regulations in the Federal Register February 26, 1980 and promulgates these amendments today. These amendments are in two categories, administrative amendments and technical amendments. Administrative amendments are corrections or clarifications which are being made to meet the intent of Part 262 preamble and regulations. The technical amendments address the additions or changes which were specified in the February 26, 1980 preamble to the Part 262 regulations. III. Amendments 1. Effective Date RCRA establishes the effective date Subtitle C regulations as “the date six months after the date of promulgation thereof. . .“ (Section 3010 [ b)). Regulations implementing Section 3001 (40 CFR Part 261) identify characteristics of hazardous waste and list particular wastes as hazardous. These regulations are essential in determining who must comply with the Subtitle C regulations. Therefore, EPA intends to make th& effective date of regulations implementing Sections 3002 and 3003 six months from the date of promulgation of Part 261. Since Part 261 is promulgated today, the effective date is November 19, 1980. Some confusion developed when in the Federal Register EPA stipulated that the “effective date” was August 26, 1980 and that the “compliance date” was six months after the promulgation of 40 CFR Part 261. For determining the date at which generators will be subject to these regulations, the August 26, 1980 date is incorrect. All generators must comply with these regulations as of November 19, 1980. - - - 2. Purpose, Scope and Applicability The generator’s responsibility to comply with these regulations when treating, storing or disposing of hazardous waste on-site has been clarified. Section 262.10(b) of the February 26, 1980 Federal Register stated that a generator who “treats, stores, or disposes of hazardous waste .“ must only comply with certain sections of Part 262. It was the Agency’s intent, as indicated in the note which followed § 262.10, that the provision only applied to generators who treat, store or dispose of hazardous waste on-site. This administrative amendment clarifies § 282.10(b) by specifying that a generator who “treats, stores, or disposes of hazardous waste on-site .“ must only comply with certain sections of Part 262. If he treats, stores. or disposes of all of his waste on-site, he need only comply with those specific sections of Part 262 which are identified in § 262.10(b). As a treater, storer, or disposer, however, he must comply with 40 CFR Parts 264, 265 and 122. For those portions of hazardous waste that a generator ships off-site, he must comply with all of the Part 262 regulations. 3. Hazardous Waste Determination Section 262.11(c)(1) identified two ways for a generator to determine by testing whether the waste he generated was a hazardous waste as identified in ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33141 ibpart C of 40 CFR Part 261. The first s by using the EPA Part 261 tests. The cond was using equivalent testing ...ethods approved by the Administrator. The citation to the equivalent testing methods which appeared in the February 26 rule was incorrect. Equivalent methods are now described in 40 CFR 260.21. 4. Designated Facility In the preamble to the final rules promulgated February 26, 1980, the Agency discussed the generator’s responsibility to either “designate another facility or instruct the transporter to return the waste” if the transporter was unable to deliver the hazardous waste to the designated facility or the alternate facility. The text of the regulation inadvertently omitted this requirement. A new subparagraph, § 262.20(d), is added today which includes this requirement and makes these regulations consistent with the preamble to the final rules for this Part and the requirements of § 263.21(b). 5. Placarding Placarding requirements are described in § 262.33. The rule promulgated February 26 required generators to offer “ie appropriate placard to the initial ansporter. DOT, however, has a ,eciai requirement for placarding of iii shipments (49 CFR 172.508). The shipper (generator) according to DOT is the person responsible for properly placarding a rail shipment rather than simply offering the appropriate placard. EPA recognizes this difference and is applying the same responsibility for shipments of hazardous waste by rail. This administrative amendment clarifies the operation of § 262.33 by requiring generators to placard rail shipments rather than just offering the appropriate placard. It removes an inconsistency which inadvertently occurred between EPA’s and DOT’s regulations. 6. Accumulation Time The preamble to the regulations promulgated on February 26 stated that “accumulation of hazardous waste in storage tanks meeting the technical standards of the Part 264 and 265 regulations” would be added when those standards were promulgated. This amendment requires that the accumulation of hazardous waste in tanks meet the interim status standards in Part 265, Subpart J (except for the waste analysis and trial tests required for treatment tanks). Part 262 may be mended again to include the Part 264 nal standards for tanks when they are romulgated later this year. The container management section of the 40 CFR Part 265, Subpart I regulations, published elsewhere in today’s Federal Register, is not cited in its entirety as applicable to the accumulation of wastes in DOT containers. Rather, only the sections requiring inspection of the accumulation area ( 265.174) and buffer zones between the container storage area and adjacent property lines (as required for ignitable and reactive wastes under § 265.176) are stipulated. Since generators who ship hazardous waste off-site are already required to comply with DOT container standards (e.g., must not leak and must be compatible with the waste), these sections from Subpart I were not cited. The Agency believes that it is unnecessary and potentially confusing to require generators to comply wiçh two very similar standards for containers. Such duplication also would not provide additional protection of human health and the environment. The proposed rule which appeared in the Federal Register December 18, 1978 indicated that the Agency was seeking comments regarding the desirability of requiring contingency plans for generators who accumulated hazardous waste. The preamble to the February 26 Part 262 regulations also indicated that the Agency was considering the inclusion of such provisions for generators who accumulated hazardous waste on-site. This amendment requires that such generators comply not only with the Contingency Plan and Emergency Procedures of 40 CFR Part 265, Subpart D but also with the Preparedness and Prevention requirements of 40 CFR Part 265 Subpart C and the personnel training requirements of § 265.16. These plans and procedures are required of ownets or operators of treatment, storage, or disposal facilities, and the Agency believes that there is little difference between accumulation of hazardous waste for shipment off-site and storage so far as potential damage to human health and the environment is concerned. Therefore, the same standards for protection of human health and the environment should apply. (The February 28 preamble and the Background Document discuss the rationale for the accumulation provisions in more detail.) Similarly, the rationale for requiring all the Part 285, Subpart J requirements for generators who accumulate hazardous waste on-site for 90 days or less (without obtaining a permit) and for requiring certain standards for managing containers and personnel training is based on the belief that less stringent standards could jeopardize human health and the environment. 7. Recordkeeping Section 262.40(b) which appeared in the February 26, 1980 Federal Register did not specify the date from which copies of the Annual and Exception Report were to be kept for three years. This amendment initiates the three year retention period from the due date of the report (March 1). 8. International Shipments The rule which was promulgated February 26, 1980 required that generators who ship hazardous waste outside the jurisdiction of the United States notify the Administrator prior to the first shipment of each different hazardous waste in each calendar year. This amendment includes a specific address as a means to expedite EPA’s handling of this information. In addition, the generator is specifically required to include the name and address of the foreign consignee. The regulations published elsewhere in today’s Federal Register under 40 CFR Part 123 do not permit States to be authorized to receive the generator’s notice of international shipment. This amendment includes a note reminding generators that they are required to notify the Administrator, rather than the local State authority. 9. Triple Rinsing The citation for triple rinsing of containers which appeared in the February 26, 1980 Federal Register referenced Part 260 of the regulation. The Agency decided to include the triple rinsing provisions in Part 261 rather than in the Part 260 definitions. This amendment corrects the citation for the triple rinsing provisions. 10. Annual Reporting The Annual Report for generators was promulgated in § 262.41 of the February 26, 1980 Federal Register. It consisted of a cover form (8700—13) and a type A form (8700—13A). Each part of this Report had associated instructions. This report was intended for use by generators who shipped hazardous waste to an off-site treatment, storage, or disposal facility. Annual Reports are also required for owners or operators of treatment, storage, or disposal facilities. In ‘an effort to simplify the reporting requirements for the regulated community, the Agency has combined both reports into a single report with similar instructions for each part. Accordingly, the form and instructions which were promulgated in the February ------- 33142 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 26,1980 Federal Register are imended in today’s Part 262. A Facility Annual Report form (8700—13B) and the associated instructions are also promulgated today in Parts 264 and 265. The changes which appear on the first page of the Hazardous Waste Report (EPA form 8700—13) are not extensive. Section I, (Type of Report), has been modified to include Part A for Generator Annual Reports, Part B for Facility Annual Reports, and Part C for Unmanifested Waste Reports. The major change which occurred on this form was the addition of a new Section VIII entitled Cost Estimates for - Facilities. Both closure and post-closure costs for treatment, storage, or disposal facilities must now be included -as required by Parts 284 and 265 promulgated today. - On the Part A report, only minor heading chiinges have occurred (e.g., to the Waste Identification section) and a general renumbering of all sections due to the addition of the Cost Estimates for Facilities section. Also, the applicability of Part A reports to generators who ship hazardous waste off-site to facilities which they do not own or operate is clarified. Since facility owners or — - - ojiirators are required to file Annual Reports by Part 264, the Agency found it unnecessary to burden generators who treat, store, or dispose of hazardous waste on-site by requiring them to-file two nearly identical reports on the same waste. Therefore, generators who ship hazardous waste off-site to a facility which they own or operate or who treat, store or dispose of hazardous waste on- site are not required to file the Part A report. Rather, they are required to file the Part B report for those wastes. The amended instructions for Generator Annual Report (Part A) are included in Part 262 in today’s Federal Register. The instructions for Facility Annual Repbrts (Part B) and Unmanifested Waste Reports (Part C) are published in Parts 264 and 265 elsewhere in today’s Federal Register. 10. State Programs The preamble to the February 26, 1980 regulation did not discuss the effect of EPA authorization of State programs on the applicability of these regulations. This Part applies in States which have not received interim or final authorization to operate the hazardous waste management system in lieu of the Federal program. With two exceptions, the provisions of these regulations do not apply in States which have been authorized under the provisions of 40 CFR Part 123. Section 40 CFR 123.128(d), enables States to obtain interim authorization while allowing EPA to administer and enforce the Fede±al manifest system as established in 40 CFR Parts 262 and 263. Further, EPA will not authorize States to receive the notice of international shipment required in § 262.50. Even in States whose programs are authorized, generators shipping their hazardous waste to a foreign country will be - required to notifyEPA four weeks prior to the initial shipment. IV. 0MB Review The preamble to the February 26, 1980 regulations indicated that 0MB had not completed its review of the recordkeeping and reporting provisions of the section 3002, 3003 and 3010 standards. 0MB has now completed its review and has approved all of those provisions. EPA has developed an evaluation plan for the entire hazardous waste regulatory program. The plan commits EPA to an evaluation of each of those provisions and to modifying them, if necessary, based on the practical experience gained during implementation. The provisions of § 262.34(a)(5) of this amendment pertaining to recordkeeping - —and-reporting have been submitted to the Office of Management and Budget for review in light of the requirements of the Federal Reportd Act, 44 U.S.C. 3501, etseq. Time has not permitted completion of this review. Dsted: May 8, 1980. Douglas M. Costle, Administrator. - Title 40 CFR Part 262 is revised to read as follows: PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE Subpart A—General Sec - 262.10 Purpose, scopec and applicability. 262.11 Hazardous waste determination. 262.12 EPA identification numbers Subpart B—The ManIfest 26220 General requirements. 262.21 Required information 262.22 Number of copies. 262.23 Usebf the manifest. - Subpart C—Pre-Transpert Requirements 262.30 Packaging. 262.31 Labeling 262.32 Marking 262.33 Placarding. 262.34 Accumulation time. Subpart D—Recerdkeeplng and Reporting 262.40 Recordkeeplng. 26241 Annual reporting 262.42 Exception reporting 262.43 Additional reporting Subpart E—Speclal Conditions’ 262.50 Internationsl shipments. 262.51 Farmers. App adix—Form Annual Report (EPA Form 8700—13). Authority: Secs. 2002(a), 3001, 3002, 3003, 3004, and 3005 of the Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Act of 1976 and as amended by the Quiet Communities Act of 1978, (42 U S.C. 6912 (a), 6921, 6922, 6923, 6924, 6925) Subpart A—General - § 262.10 Purpose, scope, and applicability. (a) These regulations establish standards for generators of hazardous waste. (b) A generator who treats, stores, or disposes of hazardous waste on-site must only comply with the following sections of this Part with respect to that waste: Section 262.11 for determining whether or not he has a hazardous waste, § 262.12 for obtaining an EPA’ identification number, § 262.40(c) and (d) for Recordkeeping, § 262.43 for additional reporting and if applicable, § 262.51 for Farmers. (c) Any persoii who imports hazardous waste into the United States must comply with the standards applicable to generators established in this Part. (d) A farmer who generates waste pesticides which are hazardous waste and who complies with all of the requirements of § 262.51 is not required to comply with other standards in this Part or 40 CFR Parts 122, 264, or 265 with respect to such pesticides. (e) A person who generates a hazardous waste as defined by 40 CFR Part 261 is subject to the complianée requirements and penalties prescribed in Section 3006 of the Act if he does not comply with the requirements of this Part. Note.— A generator who treats, stores, or disposes of hazardous waste on-site must comply with the applicable standards and permit requirements set forth in 40 CFR Parts 264, 265, md 266 and Part 122. § 262.11 Hazardous waste determination. A person who generates a solid waste, as defined in 40 CFR 261.2, must determine if that waste is a hazardous waste using the following method: (a) He should first determine if the waste is excluded from regulation under 40 CFR 261.4 and 261.5. (b) He must then determine if the waste is listed as a hazardous waste in Subpart D of 40 CFR Part 261. Note.— Even if the waste is listed, the generator still has an opportunity under 40 CFR 260.22 t o demonstrate to the Administrator that the waste from his ------- Federal Register I Vol. 45, No. 98/ Monday. May 19, 1980 I Rules and Regulations 33143 particular facility or operation ia not a hazardous waste. (c) If the waste is not listed as a hazardous waste in Subpart D of 40 CFR Part 261, he,must determine whether the waste is identified in Subpart C of 40 CFR Part 261 by either: (1) Testing the waste according to the methods.set forth in Subpart C of 40 CFR Part 261, or according to an etiuivalent method approved by the Administrator under 40 CFR 260.21; or (2) Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used. § 262.12 EPA identification numbers. (a) A generator must not treat, store, dispose of, transport, or offer for transportation. hazardous waste without having received an EPA identification number from the Administrator. (b) A generator who has not received an EPA identification number-maf obtain one by applying to the Administrator using EPA form 8700—12. Upon receiving the request the Administrator will assign an EPA identification number to the generator. (c) A generator must not offer his hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number. Subpart S—The Manifest § 262.20 General requirements. (a) A generator who transports, or offers for transportation, hazardous waste for off-site treatment, storage, or disposal must prepare a manifest before transporting the waste off-site. (b) A generator must designate on the manifest one facility which is permitted to handle the waste described on the manifest. (c) A generator may also designate on the manliest one alternate facility which is permitted to handle his waste in the event an emergency prevents delivery of the waste to the primary designated facility. (d) If the transporter is unable to deliver the hazardous waste to the designated facility or the alternate facility, the generator must either designate another facility or instruct the transporter to return the waste. § 262.21 Required Information. (a) the manifest must contain all of the following information: ‘(1) A manifest document number; (2) The generator’s name, mailing address, telephone number, and EPA identification number; (3) The name and EPA identification number of each transporter; (4) The name, address and EPA identification number of the designated facility and an alternatç facility, if any; (5) The description of the waste(s) (e.g., proper shipping name, etc.) required by regulations of the U.S. Department of Transportation in 49 CFR 172.101, 172.202, and 172.203; (6) The totat quantity of each hazardous waste by units of weight or volume, and the type and number of containers as loaded into or onto the transport vehicle. (b) The following certification must appear on the manifest: “This is to certify that the above named materials are properly classified, described, packaged, marked, and labeled and are in proper condition for transportation according to the applicable regulations of the Department of Transportation and the EPA.” § 262.22 Number of eoplee. The manifest consists of at least the number of copies which will provide the generator, each transporter, and the owner or operator of the designated facility with one copy each for their records and another copy to be returned to the generator. § 262.23 Use of the manifest (a) The generator must: (1) Sign the manifest certification by hand; and (2) Obtam the handwritten signature of the initial transporter and date of acceptance on the manifest; and (3) Retain one copy, in accordance with § 262.40(a). (b) The generator must give the transporter the remaining copies of the manifest. (c) For shipment of hazardous waste within the United States solely by railroad or solely by water (bulk shipments only), the generator must send three copies of the manjfest dated and signed in accordance with this section to the owner or operator of the designated facility. Copies of the manifest are not required for each transporter. Nota.—See § 203.20(e) for special provisions for rail or water (bulk shipment) transporters who deliver hazardous waste by rail or water to the designated facility. Subpart C—Pre-Transport Requirements § 262.30 PackagIng. Before transporting hazardous waste or offering hazardous waste for transportation off-site, a generator must package the waste in accordance with the applicable Department of Transportation regulations on packaging under 49 CFR Parts 173, 178, and 17W § 262.31 Labeling. Before transporting or offering hazardous waste for transportation off- site, a generator must label each package in accordance with the applicable Department of Transportation regulations on hazardous materiali under 49 CFR Part 172. § 262.32 Marking. (a) Before transporting or offering hazardous waste for transportation off- site, a generator must mark each package of hazardous waste in accordance with the applicable Department of Transportation regulations on hazardous materials under 49 CFR Part 172; (b) Before transporting hazardous waste or offering hazardous waste for transportation off-site, a generator must mark each container of 110 gallons or less used in such transportation with the following words and information displayed in accordance with the requirements of 49 CFR 172.304: HAZARDOUS WASTE—Federal Law Prohibits Improper Disposal. If found, contact the nearest police or public safety authority or the U.S. Environmental Protection Agency. Generator’s Name and Address Manifest Document Number § 26133 Piacarding. Before transporting hazardoili waste or offering hazardous waste for transportation off-site, a generator must placard or offer the initial transporter the appropriate placards according to Department of Transportation regulations for hazardous materials under 49 CFR Part 172, Subpart F. * 262.34 AccumulatIon time. (a) A generator may accumulate hazardouikvaste on-site without a permit for 90 days or less, provided that: (1) All such waste is shipped off-site in 90 days or less; (2) The waste is placed in containers which meet the standards of § 262.30 and are managed in accordance with 40 CFR 205.174 and 285.176 or in tanks, provided the generator complies with the requirements of Subpart J of 40 CFR Part 265 except § 265.193; (3) The date upon which each period of accumulation beg(ns is clearly marked and visible for inspection on each container; (4) Each container is properly labeled and marked according to § 262.31 and § 262.32; and (5) The generator complies with the requirements for owners or operators in Subparts C and D in 40 CFR Part 265 and with § 265.16. (b) A generator who accumulates hazardous waste for more than 90 days ------- 33144 Federal Register / Vol. 45, No. 98/ Monday, May 19, 1980 / Rules and Regulations is an operator of a storage facility and is subject to the requirements of 40 CFR Parts 264 and 265 and the permit requirements of 40 CFR Part 122. Subpart Reporting “—i ’tecorakeep lng and § 262.40 Recordkeeplng. - (a) A generator must keep a copy of— each manifest signed in accordance with § 262.23(a) for three years or until he receives a signed copy from the designated facility which received the waste. This signed copy must be retained as a record for at least three years from the date the waste was accepted by the initial transporter. (b) A generator must keep a copy of each Annual Report and Exception Report for a period of at least three years from the due date of the report (March 1). (c) A generqtor must keep records of any test results, waste analyses, or other determinations made in accordance with § 262.11 for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal. (d) The periods or retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator. § 262.41 Annual reporting. (a) A generator who ships his hazardous waste off-site must submit Annual Reports: (1) On EPA forms 8700—13 and 8700— 13A according to the instructions on the form (See the Appendix to this Part); (2) To the Regional Administrator, for the Region in which the generator is located; (3) No later than March 1 for the preceding calendar year. (b) Any generator who treats, stores, or disposes of hazardous waste on-site must submit an Annual Report covering those wastes in accordance with the provisions of 40 CFR Parts 264, 265, and 266 and 40 CFR Part 122. § 262.42 ExceptIon reporting. (a) A generator who does not receive a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 35 days of the date the waste was accepted by the initial transporter musi contact the transporter and/or the owner or operator of the designated facility to determine the status of the hazardous waste. (b) A generator must submit an Exception Report to the EPA Regional Administrator for the Region in which the generator is located if he has not received a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 45 days of the date the waste was accepted by the initial transporter. The Exception Report must include: (1) A legible copy of the manifest for which the generator does not have confirmation of delivery; (2) A cover letter signed by the generator or his authorized representative explaining the efforts taken to locate the ha zardouswaste and the results of those efforts. § 262.43 AdditIonal reporting. The Administrator, as he deems necessary under section 2002(a) and. section 3002(6) of the Act, may require generators to furnish additional reports concerning the quantities and disposition of wastes identified or listed in 40 CFR Part 261. Subpart E—Speclal Conditions § 262.50 international shipments. (a) Any person who exports hazardous waste to a foreign country or imports hazardous waste from a foreign country into the United States must comply with the requirements of this Part and with the special requirements of this section. (b) When shipping hazardous waste outside the United States, the generator must: (1) Notify the Administrator in writing four weeks before the initial shipment of hazardous waste to each country in each calendar year; (i) The waste must be identified by its EPA hazardous waste identification number and its DOT shipping description; (ii) The name and address of the foreign consignee must be included in this notice; (iii) These notices must be sent to: Hazardous Waste Export, Division for Oceans and Regulatory Affairs (A—107), United States Environmental Protection Agency, Washington, D.C. 20460. Note.—This requirement to notify will not be delegated to States authorized under 40 CFR Part 123. Therefore, all generators must notify the Administrator as required above. (2) Require that the foreign consignee confirm the delivery of the waste in the foreign country. A copy of the manifest signed by the foreign consignee may be used for this purpose; (3) Meet the requirements under § 262.21 for the manifest, except that: (I) In place of the name, address, and EPA identification number of the designated facility, the name and address of the foreign consignee must be used; (ii) The generator must identify the point of departure from the United States through which the waste must travel before entering a foreign country. (c) A generator must file an Exception Report, if: (1) He has not received a copy of the manifest signed by the transporter stating the date and place of departure from the United States within 45 days from the date it was accepted by the initial transporter; or (2) Within 90 days from the date the waste was accepted by the initial transporter, the generator has not received written confirmation from the foreign consignee that the hazardous waste was received. (d) When importing hazardous waste, a person must meet all requirements of § 262.21 for the manifest except that: (1) In place of the generator’s name, address and EPA identification number, the name and address of the foreign generator and the importer’s name, address and EPA identification number must be used. (2) In place of the generator’s signature on the certification statement, the I.J.S. importer or his agent must sign and date the certification and obtain the signature of the initial transporter. § 262.51 Farmers. A farmer disposing of waste pesticides from his own use which are hazardous wastes is not required to comply with the standards in this Part or other standards in 40 CFR Parts 122, 264 or 265 for those wastes provided he triple rinses each emptied pesticide container in accordance with § 261.33(c) and disposes of the pesticide residues on his own farm in a manner consistent with the disposal instructions on the pesticide label. Appendix—Form—Annual Report (EPA Form 8700—13) BILLING CODE 6560-O1-M ------- Federal Register / Vol. 45, No. 98 / Monday, May 19; 1980 / Rules and Regulations 33145 GSA No 12345 .XX Please printo. lype with ELITE type (72 characters per inch ) Form Approved 0MB No. 758-RODXX US ENVIRONMENTAL PROTECTION AGENCY I. TYPE OF HAZARDOUS WASTE REPORT HAZARDOUS WASTE REPORT PART A. GENERATOR ANNUAL REPORT - PLEASE PLACE LABEL IN THIS SPACE THIS REPORT IS FOR THE YEAR-ENDING DEC.31. 1 9 PART B. FACILITY ANNUAL REPORT THIS REPORT FOR YEAR ENDING DEC “I i k PART C’ UNMANIFESTED WASTE REPORT - THIS REPORT IS FOR A WASTE RECEIVED (day, ma.. & yr.) — — INSTRUCTIONS. You may have receIved a prepnnted label attached to the front of this pamphlet; aff I X It In the designated space above—left II any of the information on the label is Incorrect, draw a line through it and aspply the correct Information ifl the appropriate section belOw. If the label is complete end correct, leave Sections Ii, Ill, end IV below blank If you did mIot receive a preprlnted label, complete all sections. “Installation” means e single site where hazardous waste is generated, treated, stored, or disposed ot Please ref es to the pecif it instructions for generators or facilities before completing this form. The information requested herein is required by law (Section 3X20 004 of the Resou,ce Conservation and Recover, Act) II. INSTALLATION’S EPA 1.0. NUMBER ‘ - 1j III I I Ill i .Tj’ Ill. I 1111111111111111111111 I I ml .. CITY OR TOWN IHHIHHHIHIII1HII V. LOCATION OF INSTALLATION STREET OR ROUTE NUM8ER — ST I • 4. ZIP CO H — DE I • 11111111 H 111111111111 I III CITY OR TOWN - ST ZiP CO 1 j I I I I I I I I I I I I i I I I I I I I jHl [ IIIIIIIiiIIHIIIIIII1 ’III VII. TRANSPORTATION SERVICES USED (for Pert A report, only ) Litt the rA ldentiticalion Numbers tot those transporters wnose services were used during the reporting year represented by this report VIII. COST ESTIMATES FOR FACILITIES (for Part B reports only) A. COST ESTIMATE FOR FACILITY CLOSURE S. COST ESTiMATE FOR POST CLOSURE MONiTORiNG AND MAINTENANCE (diepoa l faetlltieI only) C I 1$1,.I_ i.I,h. , .I I ,,(,I I I ,] IX. ERTlFICATION ‘ J$I ,J I .j,I,,I I,j — I certity undor penalty of law that I have personally exwn,ned end wit familiar with the infurnetion submitted in this and all attached documents, and that based on my inquiry of d ose. individuals immediately responsible for obtaining the lnfonn.faoss, I believe that the submitted infomtatioo a asic, accurate, and complete lien er i e ,, that theta ate signif icant penalties for wbmIlting false ,nfom,ation, including the poieibiliflr of fine and imp riso,ur ient B SIGNATURE C DATE SIGNED &EPA 11111111 I I I IV. INSTALLATION MAILING U . STREET ORPO BOA I I I I I I III jJ — 1 1 S VI. INSTALLS LL I PHONE NO (area code & O) 1 I I Ill—I I I I A PRINT OR TYPE NAME EPA Form Sl ’1J Ib- J PAGE 1 OF _________ ------- Federal Register I Vol. 45, No 98 I Monday, May 19. 1980 I Rules and Regulations Please print or type with ELITE type (72c1,aracrers/inchj OR OFP1CtAL USE ONI.V (flvuta I d 2j I. PATE RECEIVED L TVPE OP REPORT J [ T1- 11 !IIII • 1 XII. FACILITY NAME , 3 4 5 ‘ 6 7 8 9 10 11 GSA No 12345 .XX Form Approved 0MB No 158.ROOXX ItHfIIIIIIIII I I XIII. FACILITY ADDRESS (a1raet or P.O box. CItY. Italy. & zip C EPA HAZARDOUS WAS? C NUMSER (lee ,natruct,ona) O AMOUNT OF WASTE a us . E 9 EWE — a_s : H ;: I II II II :r TT -flu . 12 XV COMMENTS (enter information by line number — ace maITuctIona) I ER U S ENVIRONMENTAL PWUTEtTION A 5M V GENERATOR ANNUAL REPORT — PART A (Collected under (I .e culhonáy of Section 3002 of RCRA.I 1—I [ I—li l I I Ix0ATow AH C W S WE IC A DESCRIPTION OF WASTE B DO? HA- ZARD CLASS EPA Fo.w. 870043*15.00) BIWNO CODE 6550.01-C PAGE _OF_ ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations General Instructions, Hazardous Waste Report (EPA Form 8700-13) important: READ ALL INSTRUCTIONS BEFORE COMPLETING THIS FORM Section L Type of Hazardous Waste Report Port A Generator Annual Report—For generators who ship their waste off-site to facilities which they do not own or operate, fill in the reporting year for this report (e.g., 1982). Note.—Generators who ship hazardous waste off-site to a facility which they own or operate must complete the facility (Part B) report instead of the Part A report. Port B: Facthty Annual Report—For owners or operators of on-site or off-site facilities that treat, store, or dispose of hazardous waste, fill in the reporting year for this report (e.g., 1982). Part C: Unmanifested Waste Report—For facility owners or operators who accept for treatment, storage, or disposal any hazardous waste from an off-site source without an accompanying manifest, fill in the date the waste was received at the facility (e.g. 04—12— 1982). Section I I thru Section IV. Installation ID. Number. Name of Installation, and Installation Mailing Address If you received a preprinted label from EPA. attach it in the space provided and leave Sections II through IV blank. if there is an error or omission on the label, cross outs’ the incorrect information and fill in the appropriate item(s). If you did not receive a preprinted label, complete Section II through Section IV. Section V. Location of Installation If your installation location address is different than the mailing address, enter the location address of your installation. Section VI. Installation Contact Enter the name (last and flist) and telephone number of the person who may be contacted regarding information contained in this report. .‘ - Section VII Transportation Services Used (For Jj’ort A Reports ONLY) list the EPA Identification Number for each transporter whose services you used during the reporting year. Section Vi i i. Cost Estimates for Facilities (Far Part B Reports ONLY) A. Enter the most recent cost estimate for facility closure in dollars. See Subpart H of 40 CFR Pans 284 or 285 for more detail. B. For disposal facilities only, enter the most recent cost estimate for post closure monitoring and maintenance. See Subpart H of 40 CFR Pans 284 or 265 for more detail. Section IX. Certification The generator or his authorized representative (Part A reports) or the owner or operator of the facility or his authorized representative (Parts B end C reports) must aign end date the certification where indicated. The pnnted or typed name of the person signing the report must also be included where indicated. Note.—S’tnce more than one page is required for each report, enter the page number of each sheet in the lower right corner as well as the total number of pages Generator Annual Raport, Part A Instructions (EPA Form 8700-13A) Generator Annual Report for generators - who ship their hazardous waste off-site to facilities which they do not own or operate. Important: READ ALL INSTRUCTIONS BEFORE COMPLETING THIS REPORT. Section X. Generator’s Identification Number Enter your EPA tdentification number. caiup1e: JLGENEFiATOR’EEPAiD r kIN6IDI7 18 L Is I,Ii I Section X I Facility’s Identification Number Enter the EPA identification number of the facility to which you sent the waste described below in Section XIV (a separate sheet must be used for each facility to which you sent hazardous waste.) Section X1L Facility Name Enter the name of the facility corresponding to the facility’s EPA identification number in Section XI. Section XIIL Facility Address Enter the address of the facility corresponding to the facility’s EPA identification number in Section XI. Section XIV. Waste Identification All information in this section must be entered by line number. Each line entry will describe the’total annual amount of each waste shipped to the facility identified in Section XI, above. Section XIV-A. Description of Waste For hazardous wastes that are listed under 40 CFR Part 261, Subpart D, enter the EPA listed name, abbreviated if necessary. Where For unlisted hazardous wastes, enter the EPA Hazardous Waste Numbers from 40 CFR Part 261, Subparts C, apphcable to the waste. If more than four spaces are required, follow the procedure described above - OW hezud daze code Ccmbimtibie . . . . 01 Corrosive 02 Etiologic agent . 03 Explosive A Explosive 8 . . . . . .. 04 05 Flsnvneble gee. Flansnatile iiqud Fieinneiile solid . . 06 0 ? oa irritating agent. . Nadianunairie gas . . .._ — OS . . 10 Oinanic peroxide 11 ORM-E . . . . .. 12 Oxidizer... . . . . . . 13 PoisonA - - . - . . . 14 PoisonS . . . . - IS Radioactive . . . - . . .. 16 Xl? WASTE lOENTIFiCATice O S I • A OESCUIPT,00 OP WASTC U 00 :t.:. ,,si.noous O nT O ..=: .. AUi 0 A 03 ’ !I- steel fftuahing sludge I I [ J fl) ::fl: fl.g 3 lc o6 4: I H 1k 141 ’ T lii 33147 mixtures of listed wastes were shipped, enter the description whicltyou believe best describes the waste. For unlisted hazardous waste identified under 40 CFR Pert 261, Subpart C, enter the description which you believe beat describes the waate. Include the specific manufacturing or other process generating the waste (e.g., green sludge from widget manufacturing) and, if known, the chemical or generic chemical name of the waste. Section XIV-B. DOTHozard Class Enter the two digit code from Table 1 which corresponds to the DOT hazard class of the waste described. (lf the waste described has been shipped under more than one DOT hazard class, use a separate line for each DOT hazard class.) Table 1 Section XIV—b. EPA Hazardous Waste Number For listed waetea. enter the EPA Hazardous Waste Number from 40 CFR Part 201, Subpart D. which identifies the waste. For a mixture of more than one listed waste, enter each of the applicable EPA Hazardous Waste Numbers. Four spaces are provided If more space is needed, continue on the next line(s) and leave all other information on that line blank. ill Ii Ill Section XIV-D. Amount of Waste Enter the amount of this waste you shipped to the facility identified in Section XI end include the weight of containers if left at the treatment, storage, or disposal facility. ------- 33148 Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 I Rules and Regulations Section X!V—E. Unit of Measure Enter the unit of measure code for the quantity of waste described on this line. Units of measure which must be used in tius report and the appropriate codes are: Uiuts of insa ee code Pounds p Slio,t tons (2.000 Ibs) - - T K ilograms - . K Toraam (1.000 kg) - N Units of volume may not be used for reporting but must be converted into one of the above units of weight taking into account the appropriate density or specific gravity of the waste. - Section XV. Comments This space may be used to explain or clarify any entry. If used, enter a cross reference to the appropriate Section number. Note.—Since more than one page is required for each report, enter the page number of each sheet in the lower right corner as well as the total number of pages. IFR Doc 80-14666 Filed 5-16-8Th 845 amj BILUNG CODE 656O-o1-M ------- Monday May 19, 1980 Part VI Environmental Protection Agency Hazardous Waste Management System Standards Applicable to Transporters of Hazardous Waste ------- 33150 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 263 [ FRL 1470-81 Standards for Transporters of Hazardous Waste AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: The Resource Conservation and Recovery Act, as amended, seeks to promote the protection of human health and the environment and to conserve valuable material and energy resources. In order to accomplish this, the Act establishes a national program to improve solid waste management, including the control of hazardous waste, the promotion of resource conservation and recovery, and the establishment of environmentally sound solid waste disposal practices. The Part 263 regulations published February 26, 1980 in the Federal Register and the amended version published today establish standards for transporters of hazardous waste. These amendments are administrative changes to the regulations. Areas of change include: clarification of the effective date and compliance date of the - regulation, clarification of the recordkeeping retention time, and an additional telephone number(s) for reporting discharges. DATES: Effective date: November 19, 1980. EPA will accept public comment on these regulations and amendments for administrative errors only (e.g., typographical errors, incorrect cross references) until July 18, 1980. No extension in the effective date will be made, however, as a result of such comments. ADDRESSES The official docket for this regulation is located in Room 2711, U.s. Environmental Protection Agency, 401 M Street SW.. Washington, D.C., and is available for viewing from 9:00 am to 4:00 pm, Monday through Friday, excluding holidays. For information on implementation of these regulations, contact your EPA Regional Office. FOR FURTHER INFORMATION CONTACT For technical assistance on these regulations, contact Harry W. Trask or Carolyn Barley, Office of Solid Waste, (WH—563), U.S. Environmental Protection Agency, Washington. D.C. 20460 (202—755—9145). For single copies of the amended Part 263 preamble and regulations published today and for copies of the February 26, 1980 version which contains a more descriptive preamble of this whole Part, contact Edward Cox, Solid Waste Publications, 26 West Saint Claire, Cincinnati, Ohio 45268 (513/684—5362). Multiple copies will be available from the Superintendent of Documents, Washington, D.C. 20402. SUPPLEMENTARY INFORMATION: I. Authority These amendments are issued under authority of Sections 2002(a), 3001, 3002, 3003, 3004 and 3005 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and as amended by the Quiet Communities Act of 1978 (“RCRA” or “the Act”), 42 U.S.C. 6912(a), 6921, 6922, 6923, 6924, 6925. I I. Background This regulation was published in the Federal Register in proposed form for public review and comment on April 28, 1978 as 40 CFR Part 250, Subpart C (43 FR 18506 et seq.). The Agency held six public hearings, one of which was a joint hearing with the Department of Transportation (DOT) and received a substantial number of written comments on the proposal. The public comment period closed on March 16, 1979. After consideration of the views of the public, the Agency promulgated the Part 263 regulations in the Federal Register February 26, 1980 and promulgates this amended version today. These amendments are administrative amendments and are corrections or clarifications to the intent of Part 263 preamble and regulations. Ill. Amendments 1. Effective Date RCRA establishes the effective date of Subtitle C regulations as “the date six months after the date of promulgation thereof. . .“ (Section 3010(b)). Regulations implementing Section 3001 (40 CFR Part 261) identify characteristics of hazardous waste and list particular wastes as hazardous. These regulations are essential in determining who must comply with the Subtitle C regulations. Therefore, EPA intends to make the effective date of regulations implementing Sections 3002 and 3003 six months from the date of promulgation of Part 261. Since Part 261 is promulgated today, the effective date is November 19, 1980. - Some confusion developed when in the Federal Register EPA stipulated that the “effective date” was August 26, 1980 and that the “compliance date” was six months after the promulgation of 40 CFR Part 261. For determining the date at which transporters will be subject to these regulations, the August 26, 1980 date is incorrect. All transporters must comply with these regulations as of November 19, 1980. 2. Recordkeeping Section 263.22 (b) and (c) which appeared in the February 28,1980 Federal Register did not specify the length of time the transporter was reqwred to retain a copy of the manifest or shipping paper. These amendments clarify this requirement by requiring records to be-kept for three years from the date the manifest was accepted by the initial transporter. This time period is consistent with the other manifest recordkeeping requirements. 3. Discharge Reporting The regulations which appeared in the February 28, 1980 Federal Register concerning immediate . ction for discharges did not include a telephone number(s) for reporting discharges which occur outside the toll free calling area. Therefore, Section 263.30(c)(1) is amended to include a toll call telephone number for transporters to use when reporting discharges which occur outside the continental United States. DOT will also amend 49 CFR 171.15 to require carriers (transporters) to use this toll number when applicable. - Section 263.30(d) limited water (bulk shipment) transporters to telephone reporting of discharges to either a toll free number or a District of Columbia number. Since it is not always practicable for water transporters (bulk shipment) to report discharges using these two numbers, EPA is amending this section to reference the Coast Guard’s broader telephone reporting requirements found in 33 CFR 153.203. 4. State Programs The preamble to the February 26, 1980 regulation did not discuss the effect of EPA authorization of State programs on the applicability of these regulations. This Part applies in States which have not received interim or final authorization to operate the hazardous waste management system in lieu of the Federal program. With one exception, the provisions of these regulations do not apply in States which have been authorized under the provisions of 40 CFR Part 123. Section 40 CFR 123.128(d) enables States to obtain interim authorization while allowing EPA to administer and enforce the Federal manifest system as established in 40 FR Parts 262 and 263. ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33151 IV. 0MB Review The preamble to the February 26, 1980 regulations indicated that 0MB had not completed its review of the recordkeeping and reporting provisions of the Section 3002, 3003 and 3010 standards. 0MB has now completed its review and has approved all of those provisions. EPA has developed an evaluation plan for the entire hazardous waste regulatory program. The plan commits EPA to an evaluation of each of those provisions and to modifying them, if necessary, based on the practical experience gained during implementation. Dated. May 8. 1980. Douglas M. Costle, Adm,n,strczlor. Title 40 CFR Part 263 is revised to read as follows: PART 263—STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE Subpart A—General Sec. 263.10 Scope. 263.11 EPA Identification Numbers. Subpart B—Compliance With the Manifest System and Recordkeeplng 263.20 The Manifest System. 263.21 Compliance with the Manifest. 263.22 Recordkeeping. Subpart C—Hazardous Waste DIscharges 263.30 Immediate Action 263.31 Discharge Clean Up. Authority: Sec. 2002(a), 3002, 3003, 3004 and 3005 of the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 and as amended by the Quiet Communities Act of 1978, (42 U.S.C. 6912, 6922, 6923, 6924, 6925). Subpart A—General § 263.10 Scope. (a) These regulations establish standards which apply to persons transporting hazardous waste within the United States if the transportation requires a manifest under 40 CFR Part 262. - Note.—The regulations set forth in Parts 262 and 263 establish the responsibilities of generators and transporters of hazardous waste in the, handling, transportation, and msnagement of that waste. In these regulations, EPA has expressly adopted certain regulations of the Department of Transportation (DOT) governing the transportation of hazardous materials These regulations concern, among other things. labeling, marking, placarding, using proper containers, and reporting discharges EPA has expressly adopted these regulations in order to satisfy its statutory obligation to promulgate regulations which are necessary to protect human health and the environment in the transportation of hazardous waste. EPA’s adoption of these DOT regulations ensures consistency with the requirements of DOT and thus avoids the establishment of duplicative or conflicting requirements with respect to these matters. These EPA regulations which apply to both interstate and intrastate transportation of hazardous waste are enforceable by EPA. DOT has revised its hazardous materials transportation regulations in order to encompass the transportation of hazardous waste and to regulate intrastate, as well as interstate, transportation of hazardous waste. Transporters of hazardous waste are cautioned that DOT’s regulations are fully applicable to their activities and enforceable by DOT. These DOT regulations are codified in Title 49. Code of Federal Regulations, Subchapter C. EPA and DOT worked together to develop standards for transporters of hazardous waste in order to avoid conflictmg requirements. Except for transporters of bulk shipments of hazardous waste by water, a transporter who meets all applicable requirements of 49 CFR Parts 171 through 179 and the requirements of 40 CFR sections 263.11 and 263.31 will be deemed in compliance with this Part. Regardless of Dors action, EPA retains its authority to enforce these regulations. (b) These regulations do not apply to on-site transportation of hazardous waste by generators or by owners or operators of permitted hazardous waste management facilities. (c) A transporter of hazardous waste must also comply with 40 CFR Part 262, Standards Applicable to Generators of - Hazardous Waste, if he: (1) Transports hazardous waste into the United States from abroad; or (2) Mixes hazardous wastes of different DOT shipping descriptions by placing them into a single container. Note.—Transporters who store hazardous waste are required to comply with the storage standards in 40 CFR Parts 264 and 285 and the permit requirements of 40 CFR Part 122. § 263.11 EPA Identification number. (a) A transporter must not transport hazardous wastes without having received an EPA identification number from the Administrator. (b) A transporter who has not received an EPA identification number may obtain one by applying to the Administrator using EPA Form 8700—12. Upon receiving the request, the Administrator will assign an EPA identification number to the transporter. Subpart B—Compliance With the Manifest System and Recordkeeplng § 263.20 The manifest system. (a) A transporter may not accept hazardous waste from a generator unless it is accompanied by a manifest, signed by the generator in accordance with the provisions of 40 CFR Part 262. (b) Before transporting the hazardous waste, the transporter must sign and date the manifest acknowledging acceptance of the hazardous waste from the generator. The transporter must return a signed copy to the generator before leaving the generator’s property. (c) The transporter must ensure that the manifest accompaniesthe hazardous waste. (d) A transporter who delivers a hazardous waste to another transporter or to the designated facility must: (1) Obtain the date of delivery and the handwritten signature of that transporter or of the owner or operator of the designated facility on the manifest; and (2) Retain one copy of the manifest in accordance with § 263.22; and (3) give the remaining copies of the manifest to the accepting transporter or designated facility. (e) The requirements of paragraphs (c) and (d) of this section do not apply to rail or water (bulk shipment) transporters if: (1) The hazardous waste is delivered by rail or water (bulk shipment) to the designated facility; and (2) A shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator certification, and signatures) accompanies the hazardous waste; and (3) The delivering transporter obtains the date of delivery and handwritten signature of the owner or operator of the designated facility on either the manifest or the shipping paper and (4) The person delivering the hazardous waste to the initial rail or water (bulk shipment) transporter obtains the date of delivery and signature of the rail or water (bulk shipment) transporter on the manifest and forwards it to the designated facility; and (5) A copy of the shipping paper or manifest is retained by each rail or water (bulk shipment) transporter in accordance with § 263.22. (f) Transporters who transport hazardous waste out of the United States must: (1) indicate on the manifest the date the hazardous waste left the United States; and (2) sign the manifest and retain one copy in accordance with § 263.22(c); and (3) return a signed copy of the manifest to the generator. ------- 33152 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations § 263.21 Compliance with the manliest (a) The transporter must deliver the entire quantity of hazardous waste which he has accepted from a generator or a transporter to: (1) The designated facility listed on the manifest; or (2) The alternate designated facility, if the hazardous waste cannot be delivered to the designated facility because an emergency prevents delivery; or (3) The next designated transporter; or (4) The place outside the United States designated by the generator. (b) If the hazardous waste cannot be delivered in accordance with paragraph (a) of this section, the transporter must contact the generator for further directions and must revise the manifest according to the generator’s instructions. § 263.22 Recordkeeplng. (a) A transporter of hazardous waste must keep a copy of the manifest signed by the generator, himself, and the next designated transporter or the owner or operator of the designated facility for a period of three years from the date the hazardous waste was accepted by the initial transporter. (b) For shipments delivered to the designated facility by rail or water (bulk shipment), each rail or water (bulk shipment) transporter must retain a copy of a shipping paper containing all the information required in § 263.20(e)(2) for a period of three years from the date the hazardous waste was accepted by the initial transporter. (c) A transporter who transports hazardous waste out of the United States must keep a copy of the manifest indicating that the hazardous waste left the United States for a period of three years from the date the hazardous waste was accepted by the initial transporter. (d) The periods of retention referred to in this Section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator.. Subpart C—Hazardous Waste DIscharges § 263.30 ImmedIate action. (a) In the event of a discharge of hazardous waste during transportation, the transporter must take appropriate immediate action to protect human health and the environment (e.g., notify local authorities, dike the discharge area). - (b) If a discharge of hazardous waste occurs during transportation and an official (State or local government or a Federal Agency) acting within the scope of his official responsibilities determines that immediate removal of the waste is necessary to protect human health or the environment, that official may authorize the removal of the waste by transporters who do not have EPA identification numbers and without the preparation of a manifest. (c) An air, rail, highway, or water transporter who has discharged hazardous waste must: - (1) Give notice, if required by 49 CFR .171.15, to the National Response Center (800-424—8802 or 202—426—2675); and (2) Report in writing as required by 49 CFR 171.16 to the Director, Office of Hazardous Materials Regulations, Materials Transportation Bureau, Department of Transportation, Washington, D.C. 20590. (d) A water (bulk shipment) transporter who has discharged hazardous waste must give the same notice as required by 33 CFR 153.203 for oil and hazardous substances. § 263.31 DIscharge clean up. A transporter must clean up any hazardous waste discharge that occurs during transportation or take such action as may be required or approved by Federal, State, or local officials so that the hazardous waste discharge no longer presents a hazard to human health or the environment. (FR D cc 80-14808 Filed 5-10-SR 845 emj ‘BIWNO CODE 0580-01-U ------- Monday May 19, 1980 - Part VII Environmental Protection Agency Hazardous Waste Management System Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities 33153 ------- 33154 Federal Register! Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 264 and 265 IFRL 1446-81 Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal FacilIties AGENCY: Environmental Protection Agency. ACTION: Final Rule and Interim Final Rule. SUMMARY: Subtitle C of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976. as amended (RCRA), directs the Environmental Protection Agency to promulgate rçgulations establishing a Federal hazardous waste management system. These Parts 264 and 265 regulations are the first phase of EPA’s requirements under Section 3004 .of RCRA for owners and operators of facilities that treat, store, and dispose of wastes which are identified or listed as hazardous under Part 261 of this Chapter. The regulations under Part 265 establish requirements applicable during the interim status period (the period after an owner or operator has applied for a permit, but prior to final disposition of the application) respecting preparedness for and prevention of hazards, contingency planning and emergency procedures, the manifest system, recordkeeping and reporting, ground-water monitoring, facility closure and post-closure care, financial requirements. the use and management of containers, and the design and operation of tanks, surface impoundments, waste piles, land treatment facilities, landfills, incinerators, thermal, physical, chemical, and biological treatment units, and injection wells. In addition, there are included some general requirements respecting identification numbers. required notices, waste analysis, security at facilities, inspection of facilities, and personnel training. The Part 264 regulations include the first phase of the standards which will be used to issue permits for hazardous waste treatment, storage, and disposal facilities. Included are requirements respecting preparedness for and prevention of hazards, contingency planning and emergency procedures, the manifest system, and recordkeeping and reporting. Also included are general requirements respecting identification numbers, required notices, waste analysis, securLty at facilities, inspection of facilities, and personnel training. Additional Part 264 regulations will be promulgated later this year. DATES: Effective Date: These regulations, in the form published today, complete EPA’s initial rulemaking on the subjects covered and are final Agency action. They become effective on November 19. 1980, which is six months from the date of promulgati9n as Section 3010 requires. Today’s promulgation begins the various schedules provided by RCRA for filing notifications and permit applications, and for States to apply for interim authorization. Comment dates: EPA will accept public commetits on these regulations as follows: Deadline for Submission of Comments Final regulations—technical errors only (e.g., typographical errors. inaccurate cross references)—July 18, 1980. Interim final regulations—July 18. 1980. Starred () Part 285 regulations—comments only on the propriety of making the standard applicable during interim status— July 18, 1980. ADDRESSES Comments on Interim Final portions should be sent to Docket Clerk [ Docket No. 3004], Office of Solid Waste (WH-562), U.S. Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460. - Public Docket: The public docket for these regulations is located in Room 2711, U.S. Environmental Protection Agency. 401 M Street, S.W., Washington, D.C., and is available for viewing from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays. Among other things, the docket contains background documents which explain, in more detail than the preamble to this regulation, the basis for many of the provisions in this regulation. Copies of Regulations: Single copies of these regulations will be available approximately 30 days after publication from Ed Cox, Solid Waste Information, U.S. Environmental Protection Agency, 26 West St. Clair Street, Cincinnati, Ohio 45268 (513) 684—5382. Multiple copies will be available from the Superintendent of Documents, Washington, D.C. 20402. FOR FURTHER INFORMATION CONTACfl For general information, contact Alfred Lindsey, Office of Solid Waste (WH— 565), U.S. Environmesital Protection Agency, 401 M Street, S.W., Washington, D.C. 20460. For information on implementation of these regulations, contact the EPA regional offices below: Region I Dennis Huebner, Chief, Waste Management Branch, John F. Kenneu) Building, Boston, Massachusetts - 02203, (617) 223—5777. Region II 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—0980. Region IV James Scarbrough, Chief, Residuals Management Branch, 345 Courtland Street N.E., Atlanta, Georgia 30365, (404) 881—3016. Region V Karl J. Klepitsch, Jr., Chief, Waste Management Branch, 230 South Dearborn Street, Chicago, Illinois 60804. (312) 886—6148. Region VI R. Stan Jorgensen. Acting Chief, Solid Waste Branch, 1201 Elm Street, First International Building, Dallas, Texas 75270. (214) 767—2645. Region VII Robert L. Morby, Chief, Hazardous Materials Branch, 324 E. 11th Street, Kansas City, Missouri 64106, (816) 374—3307. Region VllI Lawrence P. Gazda, 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 6th Avenue, Seattle, Washington 98101, (206) 442—1260. SUPPLEMENTARY INFORMATION: Preamble Outline The outline of this preambl Js as follows: I. Authority II. Introduction A. Background B. Overview 1. Phasing of the Regulations 2. Organization of Regulations and Preamble 3. interim Final Provisions ------- Federal Register I Vol. 45, No. 98 / Monday, May_19.1980 I Rules and Regulations 9. Interim Status Standards A. Authority B. Criteria for Interim Status Standards C. Added Requirements 1. Ground-Water and Leachate Monitonng 2. Incinerators 3. Thermal Treatment 4. Closure and Post-Closure 5. Ignitable. Reactive, or Incompatible Wastes 6. Landfill Rules 7. Waste Analysis 8. Site Selection Standards D. Compliance Period E. Notes and Variances F. Equity 1. Common Permit Effective Date 2. Case-by-Case Interim Status Standards 3. No Intention to Obtain Permits IV. General Issues A. Degree of 1-fazard 1. Classification of Waste by Risk 2. Tailoring of Management Standards 3. Response to Degree of Hazard Objectives 8. Volatile Waste C. Performance Versus Design and Operation Standards D. Notes, Variances, and Equivalency E. Commercial Products Standards F. Storage of Recycled Waste C. General Standards for Storage H. Owner or Operator I. Inactive Facilities J. New Facilities and Existing Facilities K. References to Other Acts, Regulations, and Standards L Integration With Other Acts 1. Underground Injection Control Program 2. Ocean Disposal Program 3. NPDES Permitted Facilities a. Regulation of POTWa as Section 3004 Facilities b. Regulation of NPDES Treatment Train Facilities under Section 3004 c. Regulation of Sewage Sludge under Subtitle C 4. BAT Toxics and Pretreatment Standards 5. Clean Air Act 6. Toxic Substances Control Act 7. Surface Mining Control and Reclamation Act 8. National Environmental Policy Act M. Special Wastes 1. Changes in the Section 3001 Characteristics - 2. Phasing and Increased flexibility in Parts 264 and 265 V. Detailed Analysis of Phase IRules - A. Subpart A—General - 1. Pu ose. Scope, and Applicability a. Ocean Disposal b. Underground Injection c. PO’FWs d. Authorized State RCRA Programs e. Part 261 Exclusions, Including Small Quantities of Hazardous Waste, and Recycled or Re-used Hazardous Waste f. Generators Who Accumulate On- site. Farmers, and Totally Enclosed Treatment Facilities 2. Relationship to Intenm Status Standards 3. Imminent Hazard Action B. Subpart B—General Facility Standards 1. Identification Number 2. Required Notices 3. General Waste Analysis 4. Security 5. General Inspection Requirements 6. Personnel Training 7. General Requirements for Ignitable, Reactive, or Incompatible Wastes C. Subpart C—Preparedness and Prevention, and Subpart D—Contingency Plan and Emergency Procedures 1. Defer Regulations Until Permit Issued 2. Tailor Rules to Circumstances 3. Protection Inside Versus Outside Facilities 4. Delete Contingency Plan 5. Ground-Water Contamination 6. Implementation of the Contingency Plan 7. Submission of Contingency Plans 8. Confidential Information 9. Insufficient Time for Plan Submission 10. Emergency Coordmator 11. Resuming Operations After an Emergency D. Subpart B—Manifest System. Recordkeeping, and Reporting 1. General Issues a. Burden b. Class of Hazard 2. Manifest System a. Manifest Copies b. Manifest Discrepancies c. Manifest Retention 3. Recordkeeping a. Congressional Intent b. Operating Record c. Warrantless Inspections d. Nomenclature for Waste Information 4. Reporting a. Joint Filing of Reports b. Submission of the Annual Report c. Certification Statement d. Unmanifested Waste Report E. Subpart F—Ground-Water Mon itoring 1. Applicability 2. Ground-Water Monitoring System 3. Sampling and Analysis 4. Preparation. Evaluation, and Response 5. Recordkeeping and Reporting F. Subpart G—Closure and Post-Closure 1. Period of Post-Closure Care 2. Notice in Deed to Property 3. Amendment and Submission of Plans 4. Time Allowed for Closure 5. Post-Closure Permits G. Subpart H—Financial Requirements 1. Liability 2. Financial Assurance 3. Cost Estimates 4. Publically-Owned Facilities H. Subpart I—Containers 1. Condition of Containers 2. Compatibility of Waste With Container 3. Management of Containers 4. Inspections 5. Closure 6. Special Requirements for Ignitable or Reactive Waste 7. Special Requirements for Incompatible Wastes 8. Empty Non-Combustible Storage Containers 33155 9. Paper Bags I. Subpart/—Tanks 1. Definitions 2. General Operating Requirements 3. Waste Analysis and Trial Tests 4. Inspections 5. Ignitable, Reactive, or Incompatible Wastes 6. Closure — J. Subpart K—Surface Impoundments 1. Existing Surface Impoundments 2. Minimum Freeboard 3. ContaInment System 4. Waste Analysis and Recordkeeping 5. Inspections 6. Closure and Post-Closure 7. Ignitable, Reactive, or Incompatible Waste K. Subpart L—Piles 1. Protection from Wind 2. Waste Analysis 3. Containment 4. Closure 5. Special Requirements for Ignitable or Reactive Waste 6. Special Requirements for Incompatible Wastes - L. Subpart M—Land Treatment (Landforms) 1. Purpose of Treatment 2. Surface Water Run-on and Contaminated Run-off 3. Recordkeeping 4. Waste Analysis 5. Monitoring 6. Food-Chain Crops 7. Closure 8. Ignitable, Reactive, or Incompatible Wastes M. Subpart N—Landfills 1. Landfill Cells 2. Surface Water Run-on 3. Contaminated Surface Water Run-off 4. Wind Dispersal 5. Surveying and Recordkeeping 6. Landfill Closure 7. Post-Closure Care 8. Ignitable or Reactive Waste 9. Incompatible Wastes 10. Bulk Liquid Waste 11. Containerized Liquid Waste 12. Empty Containers N. Subpart 0—Incinerators 1. General Operating Requirements 2. Monitoring and Inspections 3. Waste Analysis 4. Energy Recovery 5 Closure 0. Subpart P—Thermal Treatment P. Subpart Q—Chemical, Physical, and Biological Treatment Q. Subpart R—Undergmund Injection VI. 0MB Review VII. Supporting Documents A. Background Documents B. Reference Manuals I. Authority These regulations are issued under the authority of Sections 1006, 2002(a), 3001 through 3007, and 3010 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 6921 through 6927,. and 6930. ------- 33156 Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations II. Introduction A. Background Early this year, EPA began issuing the regulations which comprise the Subtitle C hazardous waste management system. On February 26. 1980, it promulgated standards for generators and transporters of waste under Sections 3002 and 3003 of RCRA (Parts 262 and 263, respectively) and a public notice establishing procedures for filing a notice of hazardous waste activity under Section 3010. Today, in addition to these Part 264 and Part 265 regulations. EPA is publishing permit procedures, and guidelines for the approval of State hazardous waste programs under Sections 3005 and 3006 (Parts 122, 123, and 124) and the first phase of its Section 3001 hazardous waste list (part 261) and Part 260, which defines words and phrases used in Parts 261 through 265. and contains provisions generally applicable to all of those regulations. The preamble to the Section 3001 regulations should be read for an introduction to the hazardous waste management problem in the United States and an explanation of the framework of Subtitle C. It also discusses many of the general issues and difficult problems the Agency has faced in finalizing the Section 3001 and Section 3004 regulations. The Agency developed its Section 3004 regulations in tandem with its Section 3001 regulations, holding numerous meetings with experts in hazardous waste management. States. Federal agencies, industry, environmental groups, and other individuals and organizations to discuss possible management standards. EPA also circulated draft regulations for comment and held several public hearings. Based on the comments received in meetings, hearings, and on its draft regulations, and on information the Agency collected, on December 18. 1978, EPA proposed national standards for the location, design, operation, monitoring, closure, and post-closure care of facilities which treat, store, or dispose of hazardous waste (43 FR 58982—59022). The standards were designed to protect human health and the environment by ensuring the proper design, construction, and operation of hazardous waste management facilities in accordance with the mandate of Section 3004 of RCRA. EPA held five public hearings on its December 18. 1978, proposal, at which several hundred persons testified. The Agency received over one thousand sets of written comments on the proposed Section 3004 regulations. The Agency has carefully considered all of the comments it received. Many of them raised difficult technical questions. Analysis and resolution of these questions is hampered in general by the Nation’s lack of long-term experience with advanced waste management technologies. This limited experience has made it difficult to evaluate the - accuracy of the often conflicting claims which the commenters made regarding the proposed Section 3004 standards. It has become clear to the Agency that it may take several years, in some cases. to adequately develop the data and perform the analyses necessary to resolve the more complex technical issues raised by the regulations and the comments in a way that will allow promulgation of nationally applicable detailed technical standards. As a result, promulgation of regulations involving these issues is being postponed. On the other hand, some of the proposed regulations prescribed recordkeeping and reporting reguirements. and many involved recognized “good management practices” which are not highly technical. This second category of standards is adequately supported by existing data, and can be promulgated now. Accordingly, the standards for hazardous waste management facilities will be promulgated and implemented in phases. B. Overview 1. Phasing of the Regulations. The Phase I standards are being promulgated today. They include a nearly complete set of interim status standards, in Part 265, and most ot the general status (Part 264) administrative and non-technical operating standards. The interim status standards cover the following areas: 1. Purpose, Scope, and Applicability and other General Standards 2. Waste Analysis Requirements 3. Security 4. Inspections 5. Training 6. Preparedness and Prevention 7. Contingency Plans and Emergency Procedures 8. Manifest System. Recordkeeping, and Reporting 9. Ground-Water Monitoring 10. Closure and Post-Closure Care 11. Financial Requirements (Partial) 12. Use and Management of Containers 13. Tanks 14. Surface Impoundments 15. Waste Piles 16. Land Treatment 17. Landfills 18. Incinerators 19. Thermal Treatment 20. Chemical, Physical, and Biological Treatment 21. Underground Injection The general status regulations promulgated today cover the first eight of these areas and are essentially identical to the corresponding interim status standards. The section of the preamble entitled “Interim Status Standards” explains when the interim status standards apply to facilities and when the general standards apply. As previously mentioned, the Agency believes it may take several years to resolve all of the issues necessary to promulgate detailed national technical standards for some types of facilities (e.g.. the design requirements for landfills). In the meantime, however, in order to issue permits which will protect human health and the environment, EPA must evaluate the technical capabilities of specific facilities to manage hazardous waste. Therefore, as an interim measure, EPA will publish in the near future Phase II of the Section 3004 regulations—a set of technical regulations which will allow permits to be issued based on the Agency’s best engineering judgment of the technical requirements which individual facilities must meet. These regulations will allow permits to be processed in a manner that will ensure the protection of human health and the environment by evaluating hazardous waste management facilities in terms of both site-specific factors and the nature of the waste that the facility will manage. At a minimum, these regulations will contain a set of factors (e.g.. distance to ground water and waste mobility) which must be considered. Where they are available, the regulations will also contain models, formulas, and performance standards to provide a standardized method of analysis. In determining whether a facility will adequately safeguard human health and the environment, the Regional Administrator will apply his best engineering judgment to data which the applicant submits concerning these factors. The third phase of this regulatory program will involve the resolution of the complex technical issues described earlier, and the reproposal and ultimate promulgation of more definitive counterparts of the Phase II standards. These more definitive standards-are expected to supplant the Phase II standards and make the permitting process more straightforward. In addition to standards for specific types of facilities, the Phase Ill regulations may also include standards for specific industries and waste which require special management standards. ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33157 The Agency believes that this three- phase regulatory strategy will give maximum protection to human health and the environment without imposing the more complex regulations as national technical standards before the controversial issues surrounding them can be fully investigated. This strategy also should not complicate implementation of the hazardous waste program. Its only effect will be to postpone by some months the beginning of facility permitting using the Phase II standards. Any postponement in issuing these Part 265 interim status regulations, however, would cause an unwarranted delay in commencement of the Subtitle C management program. All the standards EPA is promulgating today are written so as to be broadly applicable to large numbers of facilities and vast amounts of hazardous waste. The Agency has been faced with the task of balancing the goals of broad applicability and regulatory specificity. EPA believes that the technical regulations promulgated today are clear and sufficiently straightforward so that any reáionably qualified engineer should be able to interpret and implement them. EPA has used all of the information available to it to try to write standards which begin to address its mandate in Section 3004—to promulgate such ‘standards as may be necessary to protect human health and the environment. Some members of the regulated industry may argue that the Agency should wait to promulgate its Section 3004 standards until it has an even broader data base and can write much more specific nationally applicable technical standards. EPA does not believe that it would be reasonable to wait longer. The Agency has been called upon to address an extremely serious environmental problem and must proceed as quickly as possible given its limited resources. These standards form only the bare outline of those that will be coming in Phases II and III. Interim status standards are not the final answer to the long-term environmental problems caused by hazardous waste disposal; they really form the outline of the technical standards and best engineering judgment permits that are to come. Nevertheless, through the use of the manifest system, the recordkeeping and reporting requirements, and the closure, waste analysis, training, inspection, and contingency plan requirements. EPA will begin to bring under control environmentally thsastrous practices that up to now have often gone largely unregulated. 2. Organization of Regulations and Preamble. EPA has totally reorganized its Subtitle C regulations in response to comments that its proposed regulations were difficult to read. Regulations implementing Section 3004 were originally proposed as Subpart D of Part 250 of Title 40 of the Code of Federal Regulations. The proposed interim status standards were specified in paragraph (c) of § 250.40. The interim status standards have been recodified as Part 265, while the general status standards (i.e., those independently enforceable standards which will be used to issue permits and which apply to facilities without interim status) appear in Part 264. Definitions of terms used in these regulations, like those used in Parts 261 through 263, are contained in § 260.10. Subparts A of Parts 264 and 265 specify how the regulations are to be used and which facilities are subject to which regulations. All facilities which treat, store, or dispose of hazardous waste (as defined in the Part 261 regulations), other than those excluded in Subpart A are, by and large, subject to these regulations. Some of the regulations, however, apply only to certain kinds of facilities or contain special conditions for certain classes of facilities. Subparts B to H (excluding Subpart F) of Part 265 aTid Subparts B to E of Part 264 contain standards which apply generally to all types of facilities. Subparts Ito R of Part 265 contain standards for specific types of facilities (landfills, tanks, incinerators, etc.). The corresponding facility-specific Part 264 standards will be promulgated in Phases II and ifi of this regulatory program. The remainder of this preamble is divided into four sections. The first section discusses the role of the interim status standards and the major issues raised by the commenters on those standards. The next section deals with a number of general issues which pertain to all of the Section 3004 standards. Many of the issues discussed in this section pertain to the Phases II and Ill regulations as much or more than they do to the Phase I regulations. EPA is making an effort, insofar as decisions have been made, to ihform the public of how the standards for hazardous waste management facilities will develop over time. The third section is a subpart-by- subpart analysis of the final Phase I rules. This analysis summarizes the major issues raised by the commenters on each section of the proposed rules, and explains how the final rules reflect the Agency’s resolution of these issues. The last sectior?of the preamble describes the documents which support these regulations. 3. Interim Final Provisions. Most sections of these regulations have been changed in response to comments. Those sections which have been modified substantially are being issued as interim final regulations so that the public can comment on the modified standards before they are promulgated as “final final” regulations. All of the Part 264 and Part 265 regulations are promulgated today, however, for purposes of the six-month effective date under Section 3010(b). Those sections of the regulations which EPA is promulgating as interim final are as follows: PART 264 Sec 264.12 Required notices. PART 265 Subpart B—General Facility Standards 265.12 Required notices. - 265.17 General requirements For ignitable, reactive, or incompatible wastes. Subpart F—Ground-Water Monitoring 265.90 Applicability. 265.91 Ground.water monitonng system. 265.92 Sampling and analysis. 265.93 PreparatIon, evaluation, and response. 265.94 Recordkeeping and reporting. Subpart G—Closure and Post-Closure 285.111 Closure performance standard. 265.112 Closure plan; amendment of plan. 265.113 Time allowed for closur . 265.117 Post-closure care and useif property; period of care. 265.118 Post-closure plan; amendment of plan. Subpart I—Use and Management of Containers 265.176 Special requirements for ignitable or reactive waste. Subpart J—Tanks, 265.198 Special reqwreznents for ignitable or reactive waste. Subpart K—Surface Impoundments 265.228 Closure and post-closure. Subpart L—Waste Piles 265.251 Protection from wind. 285.252 Waste analysis. • 265.253 Containment. 265.256 Special requirements for ignitable or reactive waste. 205.257 Special requirements for • incompatible wastes. Subpart M—Land Treatment 265.272 General operating requirements. 265.273 Waste analysis. 285.276 Food chain crops. 265.278 Unsaturated zone (zone of aeration) monitoring. 265.280 Closure and post.closure. ------- 33158 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations Subpart N—Landfills Sec. 265 310 Closure and post-closure. 265.314 Special requirements for liquid waste. 265.315 Special requirements for containers. Subpart 0—Incinerators 285.343 General operating requirements. 265.345 Waste analysis. 265.347 Monitoring and inspections. 265.351 Closure. Subpart P—Thermal Treatment 265.373 General operating requirements. 265.375 Waste analysis 265 377 Monitoring and inspections. 265.381 Closure. 265.382 Open burning; waste explosives. Subpart 0—Chemical, Physical, and Biological Treatment 265.405 Special requirements for ignitable or reactive waste. - Subpart R—Underground Injection 285.430 Applicability. Certain sections of the Part 285 regulations were proposed as general status standards, and have not been so substantially modified that the Agency is accepting further public comments on their substance. However, because they have now been incorporated in the interim status standards, EPA will accept comments on the propriety of their inclusion as such. As the preamble indicates, almost all of the additions to the interim status standards were made in response to comments, but EPA believes that additional public comments will assist the Agency in any necessary adjustments to the Part 285 standards. The Agency will accept comments on the propriety as interim status standards of the following sections: PART 265 Subpart B—General Facility Standards Sec 26513 General waste analysis. Subpart J—Tanks 265.192 General operating requirements 285.193 Waste analysis and trial tests. Subpart k—Surface Impoundments 265.222 General operating requirements. 265.223 Containment system 265.225 Waste analysis and trial tests. 265.229 Special requirements for ignitable or reactive waste. 265.230 Special requirements for incompatible wastes. Subpart M—Land Treatment 265.281 Special requirements for ignitable or reactive waste. 265.282 Special requirements for incompatible wastes. Subpart N—Landfills Sec. 265.302 General operating requirements. 265.312 Special requirements for ignitable or reactive waste. Subpart 0—Chemical, Physical, and Biological Treatment 265 401 General operating requirements. 265.402 Waste analysis and trial tests. It is EPA’s intent to act on all interim final portions of these regulations prior to their effective date. III. Interim Status Standards - Section 3005(e) of RCRA specifies that if the owner or operator of facility which is in existence on October 21, 1976, (the date of enactment of RCRA) notifies EPA, as required by Section 3010 of RCRA, and properly applies for a permit, the facility owner or operator is to “be treated as having been issued such permit.” EPA refers to such an owner or operator as one who has “interim status” (the title of subsection 3005(e)). Accordingly, for facility own rs or operators who have notified EPA and applied for a permit, the interim status period extends from the date the initial Section 3001 through 3005 regulations go into effect to the date final administrative action on the individual permit application is taken. - Congress, in enacting this provision, apparently recognized that it will take a considerable period of time for EPA to act on all facility permit applications. The provision for interim status, to allow a smooth transition to full regulation under new national standards, allows owners and operators of existing facilities to continue to operate them until decisions on their permit applications are made. The Agency expects that most of the approximately 26,000 prospective permittees will notify EPA of their hazardous waste activities (as required by Section 3010 of RCRA and explained in a notice of February 26, 1980 (45 FR 12745—54)) and will apply for a permit. Considering the potential number of applicants, the potential administrative complexity of issuing hazardous waste permits, the limited staff that EPA expects to have available to review and negotiate permit applications, and EPA’s experience with the National Pollutant Discharge Elimination System (NPDES) permit program under the Clean Water Act, the Agency estimates that it will take several years to act on all permit applications. Therefore, many prospective permittees will be operating in interim status for an extended period of time. In keeping with the intent of Congress that hazardous waste management be regulated by national standards as quickly as possible, and with the statutory structure making Section 3004 standards independent of the Section 3005 permitting process (see discussion below), EPA believes that these prospective permittees should at least comply with selected minimum requirements of Section 3004 during interim status. The Agency believes that permit applicants with interim status should not be expected to meet all of the Phase II and Phase III Part 264 standards, because some of the specific requirements of these standards may be inappropriate for certain facilities, and different requirements may be substituted when a permit is issued using the variance provisions in the regulations. Alternatively, during permitting under the Phase II regulations, each permit will be issued on the basis of the permit writer’s “best engineering judgment.” In addition, some permittees may be allowed a reasonable period of time to come into compliance with certain of the general Section 3004 (i.e., Part 264) standards, as permitted by Section 3005(c) of RCRA. The Agency believes that decisions rega rding certain standards and all individual compliance shedules should be made in the permit issuance process where there is full opportunity for public participation and for interaction between the Agency and the permit applicant. On the other hand. given Congress’ intent that hazardous waste - management be regulated as quickly as possible, and the independent enforceability of the Section 3004 standards, EPA believes that prospective permittees should begin to meet at least those threshold requirernen ,ts of Section 3004 which apply generally to all facilities and which will definitely be included in all permits. This will begin to achieve RCRA’s goal of protecting human health and the environment. The Agency has chosen a middle course between, on the one hand, havinj no requirements applicable during the interim status period and, on the other, making the complete selof independently enforceable standards apply. A. Authority - A number of commenters supported the concept of interim status standards and agreed that authority for these requirements exists in Section 3004 of the Act. Others stated that neither Section 3005 nor Section 3010 of RCRA authorizes EPA to impose facility requirements during the interim status period. They recommended deleting the interim status standards, because EPA ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33159 has the power to deal with iinmment hazards under Section 7003, and because those facilities not posing an Lmminent hazard can continue under existing local control until new permits are issued. These commenters apparentJy misunderstood the relationship of Section 3004 to Sections 3005, 3008, and 3010 of RCRA. The Section 3004 regulations are independently enforceable national standards which apply to owners and operators of hazardous waste facilities. Section 3008 authorizes enforcement actions against persons violating any requirement of Subtitle C. Thus, enforcement actions again8t persons violating the Section 3004 requirements are authorized by Section 3008. EPA does not believe that the “requirements of Subtitle C” referred to in Section 3008 are only those requirements incorporated in a permit pursuant to Section 3005. The - requirement that facility owners and - operators comply with the permit requirements of Section 3005 is one independent requirement of Section 3004 (see Section 3004(7)). Section 3005(c) requires that EPA determine that a facility complies with - the Section 3004 requirements before issuing a permit. Permit revocation under Section 3005(d) also is based on non-compliance with Section 3005 or Section 3004 requirements. Thus, under the terms of the statute, Section 3004 standards are independently enforceable and are “requirements of Subtitle ’C” within the meaning of that term in Section 3008. As the preambles to Parts 122 and 123 of the consolidated permit regulations discuss. EPA will, however, regard compliance with a duly issued RCRA permit as compliance with the terms of.the statute except for the case of state-issued permits that fail to reflect EPA suggestions made during EPA review. Section 3005(a) requires that EPA promulgate regulations requiring owners or operators of hazardous waste facilities to have a permit, and prohibits treating, storing, or disposing of hazardous waste without a permit after the effective date of these regulations. Section 3010(b) states that all of the Subtitle C regulations. including both Section 3004 and 3005 regulations, take effect six months after they are promulgated. - Thus. on the effective date of the Section 3004 regulations, facility owners and operators are required to comply with all of the Section 3004 standards and have a permit under Section 3005 in Drder to operate legally. Clearly, it is beyond the capability of facility owners or operators to comply with all of the Section 3004 requirements, and beyond the capability of the Agency (or authorized States) to issue all permits, within the six months between the date the regulations are promulgated and their effective date. Section 3005(e) resolves part of this problem by authorizing facility owners or operators, under certain conditions, to obtain interim status. This allows owners or operators to be treated as having been issued a permit until EPA makes a final administrative disposition of their permit application, and thus satisfies the mandates of Section 3005(a) and of Section 3004(7) which prohibit operations without a permit. Having interim status thus relieves the owner or operator of a facility of the possibility of being prosecuted for operating without a permit. It does not, however, relieve owners and operators of facilities of the necessity to comply with the Section 3004 standards when they become effective. As discussed above, Section 3004 standards are independently enforceable requirements which apply to all treatment, storage, and disposal of hazardous waste. In addition to the automatic applicability of Section 3004 standards, however, EPA interprets the language of Section 3005(e)(3), that a person shall be treafed as having been issued a permit, to mean that a person who operates with interim status must accept the responsibilities and liabilities associated with being a permittee. Thus the conditions of Section 3004 which are imposed on permit holders by operation of Section 3005 (c) and (d) are also applicable to owners or operators of facilities with interim status because they “shall be treated as having been issued such permit.” For the reasons noted above (i.e., that decisions regarding certain standards and all individual compliance schedules should be made in the permit issuance process), the Agency does not believe that permit applicants with interim status should be expected to meet all of the general Section 3004 standards immediately. Hence, the Agency decided to promulgate separate interim status standards to avoid the burden on existing facilities which could otherwise result if all of the Section 3004 standards were applied immediately. The Administrator’s general rulemaking authority under Section 2002(a)(1) of RCRA provides an additional basis for the establishment of interim status standards and the relief to permit applicants of the need for immediate compliance with all of the Part 264 Section 3004 standards, as they are promulgated. Section 2002(a) states: “In carrying out this Act, the Administrator is authorized to: (1) PrescrIbe, in consultation with Federal. State. and regional authorities, such regulations as are necessary to carry out his functions under this Act;” The Agency believes, for the technical and policy reasons mentioned above, that the establishment of interim status standards is an appropriate use of this general rulemaking authority. B. Criteria for Interim Status Standards In general, EPA used the following criteria for deciding which standards should apply during interim status: (1) The standards can be met in a straightforward manner without need for substantial interpretation by. or negotiation with, EPA. EPA’s limited resources will be consumed at the outset of the program with implementing other features of this complex regulatory program, such as the notification and manifest system, enforcement, and the permitting process itself. The Agency, therefore, plans to minimize individual contact with the regulated community during the interim status period, If individual applicants are to have substantial contact with the Agency during interim status, it will be more productive for the Agency to put its resources into implementiiig the full standards through the permitting process which the Act envisions, rather than postponing or slowing down the implementation of the full standards so that a more complex set of interim standards can be implemented. (2) Compliance does not require substantial capital expenditures which are properly the result of the certainty of permit conditions. Many of the technical regulations could require costly construction or retrofitting, and the designs underlying these expenditures will be the subject of discussion during the permitting ‘process. The Agency believes it is unreasonable to require costly constniction during interim status, which may then’ be disallowed or required to be modified during permitting. (3) Compliance can be achieved within the six-month period between the date the regulations are promulgated and the date they become effective. Many of the Part 284 standards may entail time for equipment delivery, construction, installation, training, and shakedown which could significantly exceed the six months available. While the Agency could delay the effective date of regulations requiring an implementation period longer than six months, a multitude of different effective dates for different regulations could ------- 33160 Federal Register / VoL 45, No. 98/ Monday, May 19, 1980 / Rules and Regulations complicate the implementation process, leading to confusion. It should be emphasized that the Agency used these criteria only as guidelines in developing the interim status regulations. The Agency has included other requirements in the interim status standards which are exceptions to these guidelines when it judged that requirements were of unusual importance and that the benefits to be gained from early implementation of the requirements would substantially outweigh the disadvantages. One important exception involves the closure and post-closure care regulations. Improper facility closure and abandonment has historically been a major cause of human health impacts and environmental damage. The Agency believes that no facility should be closed during interim status without being closed properly. Therefore, permit applicants who close all or parts of their facilities during interim status will be required to meet the full closure and post-closure care requirements, including-the requirement to have the plans for those activities approved by the Agency. Similarly, even though the ground-water monitoring provisions do not meet the criteria for interim status standards specified earlier, owners or operators of surface impoundments, landfills, and land treatment facilities are also required to comply with these provisions during the interim status period (although EPA has provided a 12- month delay in the date for compliance). The Agency believes it of prime importance to require owners or operators of these facilities to monitor ground water during interim status in order to know whether an existing facility may already have contaminated the ground water. The rationales for other standards which are exceptions to these guidelines are discussed below. The Agency views the interim status standards as dynamic regulations which, for many facilities, may be in effect for a number of years before permits are issued or denied. As the need and support for additional regulations becomes clear, the Agency expects to add to this initial set of interim status standards through additional rulemaking. EPA will, of - course, continue to refine both the Part 264 and Part 265 regulations as the state of technology of hazardous waste management improves. As ’discussed previously, promulgation of parts of the Section 3004 standards will be phased in over time. Consequently; the Agency is specifying the interim status standards ‘independently of the general Section 3004 standards. This procedure will allow the initial phase of the RCR hazardous waste control program to be implemented without further delay. It will also avoid the ambiguity and confusion which can arise when standards are extensively referenced. and cross-referenced, as was the case in the December 1978 proposal. - The Agency received numerous comments from a-wide-cross-section of commenters concerning general issues raised by the proposed interim status standards. These comments fall into the following areas, which are discussed in turn below: (1) requirements to be added to interim status standards; (2) compliance period for some or all standards; (3) notes and variances; and (4) equity. C. Added Requfrements Several commenters felt that the scope of the proposed interim stat is standards should be expanded to include all requirements of the general Section 3004 regulations which could be implemented immediately and that would be unlikely to require modification when a permit is issued. In general, EPA agrees. Several of the more important suggestions for additional interim status standards are discussed below. 1. Ground-Water and Leachate Monitoring. The proposed interim status standards required ground-water and leachate monitoring at landfills and surface impoundments where one or both of these monitoring systems were already in place. Several commenters suggested requiring ground-water and leachate monitoring at al/facilities during interim status, whether or not - such systems were already in ‘place. They felt that exempting some sites from conducting this monitoring would mean that local and State implementing authorities would be.deprived of the warning needed to determine If sites are endangering ground water and local water supplies. Further, some of the commenters stated that ground-water monitoring systems must be installed at all facilities that receive permits. They felt that EPA should not postpone monitoring until the final permit was issued, because that could take five years or longer. Other comnienters, felt that monitoring data were essential to (1) identify sites which are violating the human health and environmental standards, and (2) to trigger appropriate action against those sites, even though the human health and environmental standards were not proposed as interim status standards. The Agency has considered these comments carefully. First of all, it should be noted that leachate monitoring In the unsaturated zone beneath existing landfills and surface impoundments will not be required in Phase II of the general Section 3004 standards for technical reasons (see the preamble discussion on Ground-Water Monitoring for details). However, the Agency has determined that leachate monitoring is technically feasible and appropriate for land - treatment facilities (land farms), sand, therefore, has added this requirement to the interim status standards for these facilities (see the preamble discussion on Land Treatment facilities). The Agency does not believe that a/i facilities require ground-water monitoring systems during the interim status period or otherwise. For example, it would be an unnecessary expense with litt’e benefit to human health or the environment to require above-ground storage tanks or incinerators to have ground-water monitoring systems, because leakage of hazardous waste into the ground can be detected visually at these facilities. The Agency believes ground-water monitoring is appropriate primarily at facilities where hazardous waste is purposely placed onto or into the land—such as at landfills, surface impoundments, injection wells, and land treatment facilities—and where ground- water location, quantity, and usage, and other factors such as geology and climate, indicate the need for ground- water monitoring. Another issue is whether or not all landfills, surface impoundments, and land treatment facilities should have ground-water monitoring systems during the interim status period. There are a number of factors upon which this issue turns. On the one hand, it is true that nearly all landfills, surface impoundments, and land treatment facilities will eventually be required to install ground-water monitoring systems as a permit condition, if these systems are mstalled during interim status, they would supply several years of monitoring data and early warning of potential ground-water contamination problems which would otherwise be unavailable. Given the recent spate of ground-water problems identified at hazardous waste disposal facilities (see Ground-Water Monitoring Background Document), there is good reason for. requiring ground-water monitoring during the interim status period. On- the other hand, the planning and construction of ground-water monitoring - systems takes time, and should be overseen by qualified hydrogeologists. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33161 ‘ilso, ground-water monitoring systems nay be inappropriate in some ircumstances. Furthermore, the proposed ground-water sampling and analysis requirements rere extensive, and contained provisions for variances in some cases. On balance, the Agency has decided that the advantages—in terms of increased human health and environmental protection—of requiring all landfills, surface impoundments, and land treatment facilities to have ground- water monitoring systems during the interim status period outweigh the drawbacks outlined above. However, the Agency is concerned about the short time in which facilities currently operating without ground-water monitoring systems must comply, i.e., Section 3010(b) provides that Section 3004 standards take effect six months after their promulgation. Consequently, the Agency has written the final interim status standards to require that all hazardous waste landfills, surface impoundments, and land treatment facilities have ground-water monitoring systems within 18 months of the promulgation of the regulations unless the owner or operator conducts hydrogeological studies which demonstrate that such a system is unnecessary. This delayed schedule for compliance should allow enough time to properly plan and install the systems. In addition, to minimize the need for owners or operators to interact with the Agency, the ground-water sampling and analysis requirements have been simplified so that variances are no longer necessary. While these regulations require owners and operators of surface impoundments, landfills and land treatment facilities to begin to set up ground-water monitoring ogranis, the Agency has yet to specify the appropriate corrective action that is to follow the discovery and initial assessment of contamination. The Agency believes that its ground-water protection strategy under Section 3004 is a critical element of the entire Subtitle C program. EPA, therefore, intends to develop that standard as part of the Phase II regulations, which better allows the Agency to integrate its ground-water protection objectives with its strategy for setting other environmental performance objectiv s. The absence of a specific ground- water quality protection standard in Part 265 does not in any sense undermine the need for ground-water monitoring requirements during the interim status period. The monitoring system required here is designed to answer two questions. Has the facility contaminated ground-water? If so. what is the degree of contamination? The answers to these questions will be essential to whatever ground-water quality protection standard (and corrective action) is included in the Phase 11 regulations. Moreover, a careful assessment of these issues will require an examination of background ground- water quality, for which owners and operators of surface impoundments, landfills, and land treatment facilities can and should begin to monitor. 2. Incinerators. The proposed regulations contained detailed requirements for the operation oc hazardous waste incinerators. These included destruction efficiency, combustion levels, detailed monitoring and inspection, and trial burns. These were not made applicable during the interim status period. A comment suggested that the proposed monitoring .and inspection requirements should be made applicable during the interim status period. I ifl application of those standards would require major capital outlays-for equipment which may not be readily available and which might need to be altered during the permitting process. On the other hand, e dsting damage incidents and operator requests (in comments on the proposed regulations) for emission variances during start-up and shut-down periods show that improper incineration of hazardous waste can be a serious health problem. In addition, for some facilities, the interim status period will last longer than EPA had expected at the time the regulations were first proposed. Because of this the Agency is now issuing, on an interim final basis, a set of “threshold” requirements designed to assure a basic level of environmental and human health protection throughout the interim status period. These standards are discussed in the Subpart O analysis in this preamble and in an accompanying background document. They meet EPA’s informal interim status criteria while offering protection from the most serious dangers of l 3 azardous waste incineration. 3. Thermal Treatment. The proposed regulations contained no provisions specifically applicable to all types of thermal treatment of hazardous waste. Commenters feared that the proposed incineration regulations, focusing on flame combustion techniques, would unduly restrict innovative treatment of hazardous waste in other thermal treatment facilities. The Agency wishes to encourage the development of new techniques that can adequately render waste less hazardous or non-hazardoith, or more amenable to transport or store. Thus, these regulations include a new set of standards—Subpart P—regulating - other forms of thermal treatment. The risks associated with the thermal treatment of hazardous waste are similar to those posed by hazardous waste incineration. The Agency has therefore designed, for the interim status period, a set of “threshold” requirements to provide a basic level of protection for human health and the environment. They are discussed in the Subpart P analysis in this preamble and in an accompanying background documenL They are being issued on an interim final basis. 4. Closure and Post-Closure. A number of commenters suggested adding the requirement for submitting a closure plan to EPA (as outlined in proposed § 250.43—7(c)) to the interim status standards. Upon reviewing the comments, it is clear that some members of the public did not understand the Agency’s intention regarding closure plans during the interim status period. The Agency intended that each facility owner or operator with interim status would prepare a closure plan for his facility, to include estimates of closure costs, and post-closure costs, if applicable. The owner or operator would then use this information as the basis for complying with the financial requirements (a closure trust fund, and post-closure trust fund, if applicable). However, the Agency did not believe that it was necessary for owners or operators routinely to submit these closure plans to the Agency for review during the interim status period. In EPA’s opinion, the Agency staff should focus their attention on issuing permits and on enforcement matters, rather than reviewing closure plans. The Agency can ensure that closure plans are prepared when it conducts facility inspections. Further, the facility owner or operator must submit a closure plan with Part B of his permit application. No later than the time the permit is considered, the Agency will review the plan and require it to be revised, if necessary. EPA agrees with the thrust of comments in this area, though, and should an owner or operator wish to close his facility during the interim status period (i.e., before final administrative action on the permit application) he must contact the Regional Administrator 180 days before he expects to begin closure. At that time, the Agency will review the-closure plan and require it to be adjusted as necessary. These procedures have been clarified in the final rules. (See Closure ------- 33162 Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations and Post-Closure Care Background Document for details.) 5. Ignitable, Reactive, or Incompatible Wastes. Several commenters suggested that the proposed standards which restricted the handling of ignitable, reactive, and incompatible wastes at certain facilities be included in the set of interim status standards. These standards were not, for the most part, proposed as interim status standards because the extensive and complex provisions in the Notes (i.e., variances) to these proposed standards would have required extensive interaction with the Agency. However, many commenters suggested that owners and operators should be allowed to make for themselves the judgments embodied in the Notes, without obtaining the approval of the Regional Administrator. As discussed below, the Agency decided that this could be made a workable arrangement and has made the objectives of the Notes a self-executing part of the regulations. Deletion of the requirement for approval of the Regional Administrator now allows inclusion of these regulations in the interim status - regulations. They now appear in § 265.17 and are discussed in the Subpart B analysis of this preamble. The inclusion in the interim status standards of fairly extensive requirements for the analysis of waste should provide owners and operators with sufficient information to safely handle ignitable, reactive, or Incompatible wastes under these regulations. 6. Landfill Rules. Several commenters felt that requirements for landfill diversion structures and cover material should be included In the interim status standards. The need for landfill diversion - structures arises from the potential for precipitation from outside the active portion of the facility to run onto the active portion and become contaminated. This contaminated water may then run off into surface waters creating a threat to human health and the environment. A related problem involves precipitation which falls directly on the active portion of a facility. It may also become contaminated run-off, and thereby cause similar problems. - The Agency shares the commenters’ concern regarding contaminated surface water run-off, and agrees that provisiona for its control should be included in the final interim status regulations. - Similarly, these problems also may arise at land treatment facilities. Accordingly. during the interim status period, the final rules require that run-on must be diverted away from the active portions of a landfill or land treatment facility, and the run-off from the active portions of a facility must be collected. These provisions are discussed in the Subpart N section of this preamble. Landfill cover material requirements were not proposed as interim status standards because cover requirements can vary on a site-specific basis, and the proposed requirement was subject to a Note (i.e., variance). The Agency has ,decided not to include a landfill cover requirement in the final interim status standards, except for final cover during closure (see discussion in the Subpart N section of this preamble). 7. Waste Analysis. Some commenters felt that sampling and analysis of hazardous waste by facility owners or operators (proposed § 250.43(f), (g), and (Ii)) should be included as an interim status standard. Waste sampling and analysis provisions were not specifically proposed as interim 8tatus standards. On the other hand, some level of waste analysis was required by the need to meet other interim status standards such as the prohibition on placing wastes In tanks or containers that previously held an incompatible material. In response to the numerous comments received on these proposed standards (see the Waste Analysis Background Document and the Subpart B section of this preamble), the Agency has modified the requirements for waste sampling and analysis. The facility owner or operator is now required to prepare and follow a waste analysis plan that is appropriate to the waste that is handled and to the type of facility. In addition to the general waste analysis standards applicable to all facilities, waste analysis requirements specific to different types of facilities (e.g., landfills and tanks) are also included in each technical section of the regulations. The Agency believes that these - sampling and analysis requirements are amenable to all waste management - facilities, so that variances to the waste analysis standards are no longer necessary. Furthermore, the Agency believes that facility owners or operators need to know certain information about the wastes they handle in order to handle them safely and to comply with the reporting and technical requirements of the Phase I regulations. Consequently, both general and specific waste analysis requirements have been added to the interim status standards. 8. Site Selection Standards. Some commenters felt that the general site selection standards (proposed § 250.43— 1) should be made a part of the interim status requirements, because omitting these standards would be “contrary to the intent of the law and completely unacceptable.” Section 3004(4) of the Act specifies that regulations must include such requirements for the location of hazardous waste facilities as are necessary to protect human health and the environment, and the Agency proposed location standards in § 250.43— 1. The Agency excluded them from the interim status requirements, however, because there would have been few options, other than closure, for existing facilities which were already located in areas restricted by the proposed site location standards. Immediate closure of such facilities during the interim status period might cause a severe shortage of hazardous waste facilities and could well lead to illegal dumping, which would only exacerbate’ the problems EPA is trying to control. The Agency is in the process of finalizing its site location standards for promulgation as part of the Phase II standards. EPA believes there may be circumstances where variances or waivers to site location standards will be in the best interests of protecting human health and the environment. Therefore, the Agency has continued to exclude site selection standards from the interim status requirements. EPA believes that such standards should be applied on a case-j by-case basis during the permitting process. D. Compliance Period Many commenters suggested alternate schedules for compliance with the interim status requirements. The suggested schedules spanned the range from before, at, and up to a year after the effective date of the regulations. EPA doe not have the authority to require owners and operators to comply with requirements before the effective date of the regulations. Those commenters requesting that the effective date of the interim status standards be deferred beyond the six-month period after promulgation of the regulations argued that these six months would be used for analyzing waste and preparing permit applications, and thus additional time would be needed to comply with the substantive interim status requirements, such as those for security and the development of contingency plans. The Agency does not agree with these arguments. Wastes listed in the Section 3001 regulations need not be analyzed to fill out the permit application necessary for the owner or operator of a facility to obtain interim status. For nonlisted wastes, It takes a maximum of 24 hours to perform the test protocols to determine whether or not a waste ------- Federal Register I Vol. 4 , No. 98 / Monday, May 19, 1980 / Rules and Regulations 33163 stream meets one of the hazardous vaste characteristics specified in the 3ection 3001 regulations. In any event, these tests must be completed within 90 days (not six months) in order to comply with the notification requirements of Section 3010 of RCRA. The comments on what period EPA should allow for compliance with the interim status standards were submitted before the permit application regulations under Section 3005-of RCRA were proposed, and therefore, commenters may have assumed that applying for a permit would be a difficult and time- consuming task. However, the permit rules specify a two-step permit application process. A facility owner or operator may satisfy Section 3005(e) of RCRA, and thereby qualify for interim status (provided Sections 3005(e)(1) and (2) are also complied with), by submitting Part A of the permit application within six months after promulgation of the Section 3005 (Part 122) regulations. The Agency believes that assembling the information required in Part A is neither difficult nor time- consuming. Consequently, the burden of preparing Part A of the permit application should be substantially less than the commenters anticipated. Most of the substantive information is not required until Part B is submitted, just before the Agency is ready to review the application. For some facilities, this may take several years. The final security requirements have been made more flexible than they were in the proposed rules (see the preamble discussion on Subpart B). The Agency believes that facilities should be able to comply with these requirements within the six-month period following the promulgation of the regulations. The Agency also believes that a facility owner or operator should be able to prepare a contingency plan and the other plans required by the interim status standards within thin same time frame. For all of the reasons given above, the Agency does not believe that a compliance period longer than six months is justified, except to install new ground-water monitoring systems and to construct surface water run-off controls. E. Notes and Variances Many commenters suggested that the applicability, during the interim status period, of the “Notes” in the proposed rules should be clarified. Some commenters felt that the regulations should allow facility owners or operators with interim status to make good faith judgments of their own compliance with the applicable regulations, including the provisions of the attendant “Notes,” without special approval from the Agency. In response to numerous comments concerning the “Note” system in general, the Agency has incorporated all of the alternative standards and other substantive “Notes” directly into the final rules (as discussed infra). Consequently, there should be no confusion as to whether or not certain alternative standards are allowed during the interim status period. The “Comments” included with these regulations are not intended to create alternatives to the requirements of the regulations. The Agency agrees that, to a certain degree, facility owners or operators should be allowed to make good faith judgments as to whether or not certain alternative requirements apply to them during interim status. The final rules typically specify that a facility owner or operator may choose to follow alternative requirements allowed by a variance, provided he can demonstrate - the facts and rationale supporting that judgment when requested to do so by the Regional Administrator. Thus, a self- implementing system (as requested by the commenters) applies to variances during the interim status period, but that system is subject to oversight by EPA, which can request evidence to support the variance at any time. It is likely that the Agency will review this evidence only in conjunction with making a routine facility inspection or when the Agency has reason to believe that a violation has occurred. In any event, variances will be reviewed by EPA during the permitting process, and will be reflected in the permit conditions if a facility owner or operator can demonstrate eligibility for the variance as the regulations require. F. Equity - Many commenters expressed concern that inequities are likely to develop in permitting facilities during the interim status period. Below are the three major concerns raised by the commenters on this issue. - - 1. Common Permit Effective Date. EPA estimated in the preamble to the proposed regulations that it could take up to five years to issue all of the permits. Several commenters pointed out that EPA or an authorized State may review one facility’s permit application early in the period and impose a compliance schedule to meet the full set of Section 3004 standards, while a similar competing facility might be subject only to the interim status standards for several years until its permit application is reviewed: - To minimize potential inequities. several commenters urged EPA to establish a definite period during which only the interim status standards apply, regardless of when a permit is issued. In other words, all permits and permit requirements would become effective at the same time. The interim status period, according to some commenters, should be sufficiently long to ensure that essentially all of the permits would be issued. Others specifically suggested a five-year period as is prescribed by the Clean Water Act. Unlike the Clean Water Act, which mandated a specific date by which all waste water treatment systems were to be in compliance with the BPT requirements, there is no language in RCRA which suggests that EPA should, or could use a similar approach. Further, EPA believes that the suggested approach is inconsistent with the clear Congressional mai)date in RCRA to provide safer hazardous waste management practices as quickly as possible. 2. Case-by-Case Interim Status Standards. Some commenters suggested that interim status requirements should be imposed on existing facilities on a case-by-case basis using the past operating experience of these facilities with which State environmental agencies should be familiar. The commenters felt that these case-by-case. evaluations would be more equitable than the “blanket” proposed approach. The Agency does not agree that interim status standards should be applied on a case-by-case basis. This approach would be a de facto permit program. It would require the Agency to commit substantial resources to these case-by-case preliminary analyses which would be better spent in developing final permits. It is difficult to see how this approach could be considered more equitable than uniform national standards which apply to everyone, as proposed. Consequently, the Agency has not adopted a case-by- case approach for the interim status standards. 3. No Intention To Obtain Permits. Commenters suggested that many facility owners or operators who never intend to actually obtain a permit will take advantage of the interim status period by applying for a permit, using unrealistically low estimates for establishing closure and post-closure funds, competing in the market place with legitimate owners or operators for the several years it will take to fully review permit applications, and then close their facilities prior to permit issuance or final denial. Because EPA proposed to issue an identification ------- 33164 Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations number to each facility owner or operator who meets the requirements for interim status under Section 3005(e) of RCRA, commenters suggested that ways of countering the above problem would be: (a) before issuing an identification number, inspect each facility to determine the facility owner’s or operator’s financial capability and his potential to comply ultimately with the requirements of RCRA, or (b) issue identification numbers only to those facility owners or operators who presently hold valid State or Federal NPDES permits to receive and dispose of specific hazardous waste compounds. The Agency shares the concern expressed by these commenters, but disagrees with their suggested solutions. Interim status is. achieved automatically by a facility owner or operator who complies with Section 3005(e) of RCRA. EPA cannot initially withhold interim status from facility owners or operators who otherwise qualify, based on the Agency’s subjective judgments of financial capability, intent to ultimately comply with RCRA’s requirements, or on the basis of State or Federal permits issued under other statutes. If EPA becomes aware of facilities which are not meeting the interim status standards, the Agency can bring an enforcement action against them under Section 3008 of RCRA. or can move quickly towards final disposition of the facility’s permit application. The Agency has made It clear in the regulations that facility owners or operators who choose to close their facilities while in interim status (before a permit is issued or denied) must do so In accordance with the full set of closure requirements and post-closure - requirements (if they. apply). Thus, these owners or operators will not escape the responsibilities (and costs) of complying with these requirements. Consequently. the potential inequities which the commentersfeared should be greatly reduced, if not totally eliminated. IV. General Issues A. Degree of Hazard The proposed Sections 3001 and 3004 regulations did not create a classification scheme which separated hazardous wastes into varying degrees of hazard or risk for purposes of regulation. The proposed Section 3004 regulations did, however, take into account certain types of hazardous properties or classes of hazard in imposing management requirements. For instance, certain management requirements were proposed for wastes with ignitable and reactive properties that were not proposed for other wastes. A large number of commenters argued, for a variety of reasons, that a degree of hazard system is necessary in order to effectively implement the hazardous waste control program. Several commenters suggested that wastes should be classed into two or more levels of hazard (i.e., “extremely hazardous” or “hazardous”), depending on the intrinsic risk associated with the waste. Many commenters stated that because the intrinsic hazard presented by a waste is a function of certain chemical and physical parameters, classification by risk should be based on a qq.antification of these parameters. On the other hand, several commenters felt that the hazard persented by a waste is a function of its management and, therefore, wastes should be classed into hazard levels according to how they are managed. Many commenters suggested using a combination of intrinsic hazard and hazard based on management. In support of these suggestions, a number of commenters argued that the two-part definition of “hazardous waste” given in Section 1004(5) of RCRA requires a system for classifying wastes by degree of hazard. They claimed that one class should consist of those wastes described in the first part of the definition, I.e., those wastes which “cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness,” and that the other class should consist of those wastes described in the second part of the statutory definition of hazardous waste, i.e., those wastes which “pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” The suggestions made by the commenters differed widely in the complexity of the suggested hierarchy or classification system for risks, and in the relationship of the resulting risk classes to the waste management standards. Many commenters supported the concept of a degree of hazard system but did not propose a specific approach for carrying it out. The degree of hazard proposals were basedprimarily on concerns about the priority of implementation and the economic burdens that might be imposed if the same standards were applied both to wastes with relatively low hazard and wastes with higher hazard. Accordingly, commenters generally associated one of the following objectives with a degree of hazard system: (1) Phasing of the regulations to address first the wastes which present the greatest risk to human health and the environment. (This comment was frequently coupled with the issue of a perceived national shortfall of facility capacity.) - (2) Tailoring of management standards to the properties of wastes so that adequate protection of human health and the environment could be achieved without overregulating some wastes, and thus unnecessarily increasing the economic burden of the regulations. (3) Setting quantity threshold levels below which small quantities of wastes could be exempted from some or all of the Subtitle C management requirements without significant impact on human health and the environment. The Agency believes that the final regulations, when promulgated in full, will achieve each of these objectives, although without adoption of a degree of hazard system. EPA has made the decision not to adopt a degree of hazard system with full realization of the conceptual appeal of such a system and the recognition that all wastes do not present the same level of risk to human health and the environment. The Agency has taken this position for two reasons: (1) The Agency does not believe that any of the degree of hazard systems suggested by commenters (or any the Agency could itself conceive) are capable of actually distinguishing different degrees of hazard among the myriad hazardous wastes and also reasonably relating management standards to these degrees in a technically and legally defensible way. (2) The Agency believes that the final regulations already achieve the objectives of a degree of hazard system; thus, such a potentially complex and challengable ystem is unnecessary. 1. Classification of Waste by Risk. The central element of a degree of hazard system is a classification of hazardous wastes according to their level of hazard or risk to human health and the environment. The Agency is convinced that all of the degree of hazard classification schemes suggested by commenters and otherwise considered by the Agency are extremely judgmental and prone to arbitrariness. Classification of wastes by intrinsic hazard would require the Agency to make determinations such as the following: (1) Levels of hazard within a characteristic, i.e., whether one ignitable waste is more hazardous than another ignitable waste; (2) Levels of hazard within listed wastes, i.e., whether all properties which form the basis for listing (e.g., ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33165 carcinogenicity, bioaccumulativity) present different degrees of hazard; (3) Relative hazard of different characteristics. i.e., whether an ignitable waste is more hazardous than a reactive waste. Furthermore, most wastes exhibit more than one characteristic, i.e., a waste may be ignitable, toxic, and bioaccumulative, so that the difficulty of the classification task Is compounded. With the exception of a few well known wastes of extremely high hazard, such as dioxin, the Agency generally lacks the information or techniques to make these distinctions between hazardous wastes. While distinctions between some very high hazard wastes and other much lower hazard wastes may be possible, there is a broad middle ground where classification by degree of hazard would be extremely difficult. This is particularly true when all potentially hazardous wastes must be considered, not just those on which there is significant information available and for which hazard distinctions may be obvious. - The task of classifying wastes by degree of hazard is all the more difficult because an assessment of hazard, i.e., risk to public health, cannot be made based on intrinsic hazard alone, but must be based on the likelihood of exposure as well. Exposure assessments depend on many situation-specific factors that determine the pathways through which exposure may occur, e.g., the hydrogeology, proximity and use of ground water and surface water, etc. Making exposure assessments the purpose of constructing a multi-level degree of hazard system would prove enormously complicated, if not impossible. 2. Tailoring of Management Standards. The second element of a degree of hazard system is to establish different management standards for the diffeknt degrees of hazard. While the Agency agrees with commenters that it is desirable for the regulations to provide for flexibility to achieve tailoring of management requirements, EPA does not believe that the best approach to tailoring is to prescribe nationally applicable requirements based on the degree of hazard of a waste. Within the universe of hazardous wastes, distinctions in technical management requirements can best be based on the actual properties of the waste, i.e., the type or class of hazard a waste presents, and on local site conditions, rather than on the level of hazard of a waste. In the final regulations the Agency has included a number of tailored waste management requirements relating to waste classes, i.e. properties such as ignitability, reactivity, compatibility, or liquid state. EPA plans to continue to differentiate among waste classes in its Phase II and Phase ifi regulations. The Agency found it far easier to justify differences In regulatory requirements for these classes of waste, than to base facility performance, design, or operation on intrinsic hazard levels. For example, one can readily justify a prohibition of hazardous waste containing free liquids in landfills because they create hydraulic head, and thus promote leaching. However, different facility design requirements for dealing with, for example, an acutely toxic waste versus a less toxic waste are much less clearly defined. In such cases, differences in intrinsic hazard may be overshadowed by the types of constituents in a waste (i.e., do they migrate rapidly, or are they persistent), by the amount of waste, or by the site conditions (e.g., type of soil, or distance to ground water). Distinctions in management requirements can also be made based on the local site conditions and peculiarities of the waste involved. Factors such as hydrogeology, rainfall, and soil type can be considered on a case-by-case basis as a part of the permitting process given appropriate flexibility in the regulations. Such a case-by-case consideration of site conditions and, to some extent, waste properties, is feasible and desirable, and the Agency plans to adopt such a system in its Phase I I regulations. Thus, the Agency has concluded that it does not have the necessary technical information and criteria to develop a technically supportable set of nationaL standards which would rank wastes by degree of hazard; the Agency also has not determined that it is feasible or beneficial to relate management standards to an abstractly conceived degree of hazard, rather than to the waste’s actual properties and the site conditions. Furthermore, EPA beheves that its current and intended future regulations will otherwise accomplish the objectives of a degree of hazard system 3. Response to Degree of Hazard Objectives. It is difficult for the Agency to demonstrate fully how its regulatory scheme under RCRA responds to all of the objectives of a degree of hazard system because the regulations are being promulgated in two major phases. The first phase includes the definition of hazardous waste in Part 281 as well as a limited set of management standards in Parts 264 and 265. The second phase will include the bulk of the technical management requirements. The Phase II standards in particular will effectively achieve at least as much flexibility in management standards as would a degree of hazard system. As discussed above, the commentera generally associated one or more of three objectives with a degree of hazard system: (1) Phasing of the regulations to include highest risk wastes in the system first; (2) tailoring of management standards to particular wastes to avoid over-regulation; and (3) setting quantity threshold levels below which small quantities of wastes could reasonably be exempted from some or all of the Subtitle C requirements. Although still developing the Phase II regulations, EPA can describe its basic regulatory - approach and some specifics of its initial response to commenters’ requests for phasing, tailoring, and threshold levels. The Phase I regulations accomplish the objectives of phasing in several ways, although they were not designed specifically for that purpose. The listing of wastes in Part 261 includes primarily wastes of high intrinsic hazard because those are the wastes on which significant health effects information has been most readily available. The listing process itself is a phasing mechanism which brings additional waste under RCRA Subtitle C control over time. Also, the exclusion levels for small quantity generators are set initially at 1000 kg/mo, but will be phased down to 100 kg/mo over time. There is also an administrative mechanism for phasing during implementation to deal with the capacity issue. Each EPA regional office and authorized State implementing the regulations wifi have the flexibility to administer the permitting and enforcement process in such a way that the most severe human health and environmental problems are addressed first. — The Phasel regulations provide for tailoring of waste management standards by providing significant flexibility. In addition, some specific requirements for certain waste classes of hazard are incorporated. The Phase I standards under Part 265 are minimum requirements which the Agency believes are appropriate for all wastes during the interim status period. Some of these standards are administrative requi.rements dealing with manifests, recordkeeping. and reporting that are minimums for adequate tracking of all waste. Other general technical requirements, such as waste analysis, training, and ontingency plans, provide flexibility by requiring the owner or operator to ------- 33166 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations prepare a plan in which he details the - requirements for his specific facility. Other more technical requirements such as ground-water monitoring and closure, also allow significant flexibility for the owner or operator to include site- specific factors in the requirements for his facility. For example, the closure standards require a plan addressing various performance factors. Specifics of how to close the facility to meet these objectives are left to the owner’or operator, subject to approval by the Regional Administrator. Many other parts of the technical standards for the interim status period provide similar flexibility. The Phase II technical standards will continue to provide a basis for tailoring standards to particular sites. The Phase II regulations are sometimes referred to in the preamble to these regulations as “best engineering judgment” regulations. The Agency envisions that these regulations will provide basic - performance requirements and a set of relevent technical factors that relate to those performance standards. Specific permit requirements will then be based on the engineering judgment of the permitting officials, supplemented by technical reference manuals. This system will allow maximum flexibility for tailoring of the specific permit requirements based on waste specific and site-specific knowledge. This case- by-case approach is appropriate because the possible combinations of types of waste and types of management scenarios th ughout the Nation are almost limitless. Finally, the Agency has established thresholds for exemption of wastes from small quantity generators through the combination of a general exclusion, and specific exclusions, based on considerations of hazard. Although not based on a comprehensive degree of hazard system, the exclusion level for some wastes has been set at very low levels based on case-by-case hazard determinations. In summary, the Agency believes that the finaL regulations accomplish the objectives of a degree of hazard system, while avoiding the enormous problems that would be associated with development and implementation of such a system. B. Volatile Waste Because most hazardous waste can volatilize into the air to some degree, EPA is concerned about the treatment, storage, or disposal of hazardous waste which could result in the emission of toxic compounds into the air. In the proposed regulations, volatile waste was defined as any hazardous waste mixture with a true vapor pressure greater than 78 mm Hg at 250 C. Using this definition, the proposed regulations contained a number of prohibitions and limitations on the management of volatile waste in various types of facilities. A number of people commented on the impracticality of the limitations and prohibitions on volatile waste, and felt it was inappropriate to use the OSHA permissible exposure levels for airborne contaminants as a mechanism for allowing variances to the prohibitions (i.e., under the proposed regulations, if an owner or operator could show that his facility could manage volatile wastes so that the OSHA levels for pollutants in the air were not exceeded, then he was allowed to do so). Although no comments directly addressed the proposed definition of volatile hazardous wastes, EPA became concerned about a number of technical difficulties associated with defining volatile waste solely in terms of the waste’s vapor pressure. First, vapor -pressure is only one of the several factors which influence the volatilization rate of hazardous waste. Other factors (such as solubility, temperature, molecular weight of the - waste, and surface area of a landfill or impoundment) can lead to radically different volatilization rates for compounds with similar vapor pressures. Second if the vapor pressure of a hazardous waste mixture were used to determine whether it is a volatile waste (and thus, subject to more stringent standards than non-volatile waste), owners or operators might dispose of toxic compounds with high pure vapor pressures by mixing them with compounds with low vapor pressures. Third, EPA is concerned that there is not enough information about the inhalation toxicity of individual compounds in waste to substantiate an estimate of a safe volatilization rate. Since the regulations were proposed, the’Agency has examined several alternatives for defining and controlling volatile waste. These included attempts to develop a new definition, and a new variance provision. However, because these attempts thus far have not been successful, the Agency is not defining volatile waste as a waste class at this time. - The primary or secondary purpose of some of the interim status standards, however, is to reduce airborne emissions that result from volatilization. For example, the final cover requirements for landfills, and the requirement that waste storage drums be kept closed, will reduce volatile emissions from these devices. Nonetheless, EPA Is concerned that there may be little control of volatilization for surface impoundments, open tanks, and land treatment facilities in the Phase I rules. This is clearly an area in which there is a great need for additional information regarding how to properly define volatile waste, how to relate the quantity of volatile waste being I&nd disposed to the toxicity of volatile compounds, and how to arrive at appropriate control measures to minimize emission of these compounds to the air. The Agency is committed to solving this problem and will continue its investigations. The Agency solicits comment and data on this matter. As information becomes available, the Phase Ii and Phase III regulations will contain additional provisions to control volatile wastes and the interim status standards may be revised where appropriate. C. Performance Versus Design and Operation Standards In the proposed standards, the Agency relied primarily on facility design and operation standards in an effort to provide specific requirements which could be easily understood and interpreted by permit applicants and permit writers alike, and which could be easily enforced. Recognizing that these specific standards might discourage the development of new technology, or that different design and operation requirements might be necessary for particularly facilities in certain locations handling certain types of waste, the Agency attempted to incorporate flexibility into the regulations by supplementing some standards with “Notes.” Each “Note” described the circumstances under which the Regional Administrator would allow deviation from the specific standard to which the “Note” applied. No deviations were allowed for those proposed standards not accompanied by “Notes.” In addition to the design and operation standards, the proposed regulations contained overriding performance standards (i.e., human health and environmental standards) for protecting ground water, surface water, and air quality. These were very elementary ambient performance standards which were tO be used in unusual waste management situations where the design and operation standards were insufficient to protect human health and the environment. Several commenters pointed out significant drawbacks to using the proposed human health and environmental standards as fail-safe mechanisms for regulating hazardous ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I. Rules and Regulations 33167 vaste management. In response to these omments, the Agency has deleted the uman health and environmental tandards from the Section 3004 regulations. EPA’s strategy in the proposed rules of relying primarily on design and operation standards was also criticized by many commenters. Most of their comments focused on four concerns regarding regulations based on design and operation standards: (1) design and operation standards discourage innovative technology, (2) design and operation standards eliminate flexibility for permit officials to allow for local situations, (3) some existing facilities may be unable to comply with the design and operation standards and yet may be environmentally acceptable, and (4) RCRA does not authorize the establishment of design and operation standards. The Agency rejects this fourth point. Section 3004 of RCRA states that: “The Admini, trator shall promulgate regulations establishing such - performance standards applicable to owners and operators of facilities for the treatment, storage, or disposal of hazardous waste identified or listed under this subtitle, as may be necessary to protect human health and the snvironment.” However, it also states hat: “Such standards shall include, but need not be limited to, requirements respecting: (1) Treatment, storage, or disposal of .all such wastes received by the facility pursuant to such operating methods, techniques, and practices as may be satisfactory to the Administrator: and (2) The location, design, and construction of such hazardous waste treatment, storage, or disposal facilities;’ (emphasis added). Thus Section 3004 of RCRA authorizes both performance standards and specific design and operation standards. Nonetheless, the Agency believes that some of the arguments for greater flexibility raised in the first three points have merit, and the Agency has evaluated several approaches to respond to these commenter’s concerns. One approach which the Agency considered was to accommodate the requests for greater flexibility through specific changes in the regulations. These changes include establishing a class of hazard system, and expanding and clarifying the variances. These topics are discussed elsewhere in this preamble. These changes are desirable. and they have been incorporated to a limited extent in the interim status - ptandards. They will be more evident in the technical regulations yet to be issued under Phases II and Ill. However, these changes do not fully and dire4ly address the commenters criticism of the proposed rules, because they do not really shift the emphasis from design and operation standards. A second approach which the agency has used to a very limited extent in these rules and is considering for the Phase II rules is to expand the use of “operation performance standards,” which, for example, could placelimits on emissions or specify results. Such standards are advantageous because they provide more flexibility than design and operation standards. Operation performance standards were already implicit in many of the proposed design and operation regulations. The Agency plans to make them more explicit in the Phase 11 rules. The Agency believes that using operation performance standards, in conjunction with the other changes in the regulations mentioned above, should provide a much more flexible approach for designing and operating facilities than was possible under the proposed rules, while avoiding the many disadvantages of ambient performance standards. Using operation performance standards also directly responds to the majority of comments on this issue. It should be noted, however, that the Agency has retained explicit facility design and operation st ndards where their use is appropriate such as in the emergency preparedness and response regulations. D. Notes, Variances, and Equivalency As was mentioned in the discussion above, the Agency attempted to incorporated flexibility into some of the proposed design and operation standards by allowing variances from the standards. These variances were specified in “Notes” which accompanied many of the standards. In most cases, these “Notes” required that, in order to deviate from the prescribed standard, the applicant had to show that the modification to the standard would provide an equivalent degree of protection or performance as the prescribed standard. In reviewing the comments requesting more flexibility in the regulations, it became clear that many commenters had simply ignored the “Notes.” This was obvious from the many specific complaints about the impracticality of certain standards under certain conditions without reference to the attendant ‘Notes,” which were designed to provide the flexibility to deal with such conditions. Other commenters felt that the permitting official would be reluctant to use the “Notes,” because to do so would require him to decide whether the substitute design or operation modification would provide equivalent performance. The commenters believed that permit writers would not want to make these types of decisions because it would place their technical and professional reputations on the line. Specific suggestions made by commenters to rectify this problem, and to incorporate additional flexibility into the regulations, included: (1) Incorporate the “Notes” into the regulations to make the variance procedure an integral part of the permitting process; _(2) Provide variance procedures for more standards than those included in the proposed rules: (3) Provide a general variance procedure which would apply to all standards; and (4) Provide guidance on what is meant by “equivalept performance.” As mentiçmed earlier, the Agency agrees wih suggestions (1) and (2), and has incorporated them into the Phase I regulations, and also will do so in the Phase II and Ill regulations. EPA does not agree that variances to all standards should be allowed. For example, every facility needs a contingency plan. Furthermore, for most variances to be implemented with a maximum degree of specificity, they must be tailored to the individual standard. For these reasons, the Agency has chosen not to develop one general variance procedure to apply to all regulations. The Agçicy has attempted to lessen the need for demonstrating “equivalent performance” by making the variance procedures more specific. By so doing, in a few cases, there may be some decreased latitude in the degree of permissible variation from the standard than was the case when variances were keyed to demonstration of “equivalent performance.” The Agency believes, however, that the reduced potential for confusion and disagreement between the Agency and the regulated conununity associated with this change outweighs this slight loss in flexibility. During the interim status period, allowable variances to Part 265 standards are self-implemented by the facility owner or operator, subject to EPA oversight (see discussion under “Interim Status Standards”). The Part 264 Phase I standards contain some variance provisions and the Agency expects that the Part 264 Phase II technical standards will also contain variances where appropriate. The Agency intends that permit writers make full use of the flexibility available through these variances to Part 264 standards, where allowable and ------- 33168 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations appropriate, because this ià the essence of the best engineering judgment approach discussed earlier. Data on the applicability of many variances, among other things, will be included in the Part 264 Phase II Reference Manuals (discussed later in this preamble) which will be available to permit writers and the public. E. Commercial Products Standards Several types of materials (process wastes, residues, etc.) which may be classified as hazardous wastes are being used to make commercial products, e.g., fuel oil, building blocks, and soil conditioners. Aside from a few radioactive special wastes, no hazardous waste standards were proposed to cover these products. The Agency, however, addressed the issue of commercial products in the preamble to the proposed regulations and EPA indicated that it was considering developing standards for re- use of hazardous waste. One suggested approach would require a product made from hazardous waste not to pose a threat to human health or the environment greater than the threat posed by the virgin product it replaces. The Agency requested commenters to indicate other feasible regulatory approaches and to provide data which could be used to support commercial product standards. Comment response to EPA regulation of commercial products was almost entirely negative. Several commenters questioned EPA’s authority to promulgate such standards under RCRA nd suggested that product regulation is more properly the purview of the Consumer Product Safety Commission and the Toxic Substances Control Act. Others pointed out that the Agency should encourage recovery, recycling, and re-use but that regulation discourages such activities. EPA believes it has the authority under RCRA to regulate the management of materials which can be classified as hazardous wastes even when that management involves the re- use of the waste as a product. (The reader is referred to the preamble accompanying the promulgation of the Part 261 regulations of this Chapter for a discussion of the circumstances under which recycled materials may be classified as hazardous wastes.) Also, the focus of the Consumer Product Safety Commission is not on wastes and products made from them. EPA believes that waste-related matters should, in. most cases, be dealt with under RCRA, although EPA also may choose to promulgate some standards dealing with the re-use of wastes under the Toxic Substances Control Act. On the other hand, EPA sees several problems with setting generic requirements for the processing for re- use, and re-use of hazardous wastes. Firit, it is difficult to determine generically how hazardous wastes can be appropriately re-used or processed for re-use. The Agency recognizes that the-approach in the preamble to the proposed regulations, which would have required all products made from hazardous waste to be at least as safe as virgin products, is flawed and is not adopting it at present. The Agency agrees with the substantial body of comment which urged the Agency not to place the hazardous waste stigma on recovered products without very good cause. Recovery or re-use is generally among the best of all possible ways to minimize the hazardous waste problem—it removes the need for disposal while conserving resources and energy ana eliminating the wastes associated with making virgin products. Regulating the processing or re-use of hazardous wastes into products could decrease acceptance of these products in the marketplace. The Agency has concluded that the best approach is case-by-case regulation of specific processing or re-uses of hazardous waste where the potential hazards of uncontrolled processing and re-use are clear. Certain of these requirement8 may be included in the Phase II standards. F. Storage of Recycled Waste In the Phase I regulations under RCRA Section 3004, the Agency has decided to regulate storage of hazardous waste which is listed in Subpart D of Part 261 prior to its use, re-use, recycling, reclamation, or treatment for these purposes. Several damage cases point to the need for a storage regulation for such wastes at this time. The Agency may include additional requirements in the Phase II or Phase III standards. On and after the effective date of these Phase I regulations, storage of such wastes in containers, tanks, piles, or surface impoundments, until it is used, re-used, recycled, reclaimed, or treated for these purposes is subject to control under these regulations. These requirements apply both to on-site and off-site facilities. Facility owners or operators who store such waste prior to its use, re-use, recycling, reclamation, or treatment for these purposes must comply with the RCRA Section 3010 notification and Section 3005 permit application requirements (see 40 CFR Part 122) -in order to qualify for interim status. C. General Standards for Storage The proposed § 250.44 storage standardaiequired that storage be conducted so that no discharge of hazardous waste occurred. Because most wastes have some vapor pressure, the proposed rules specified that all hazardous waste must be stored in covered tanks or containers. Many cominenters claimed that this “no discharge” performance standard for all storage was technically infeasible and inconsistent with the concept of controlled air emissions under the Clean Air Act and controlled discharges under the Clean Water Act. They also felt that the requirement to store waste only in tanks and containers was unduly burdensome; they claimed that (1) it is unnecessary to store low-volatility wastes in covered storage devices, and (2) it is impractiôal to store bulk-solid or semi-solid materials in enclosed tanks or containers. For these reasons, the commenters recommended that storage be allowed in devices Qther than storage tanks and containers, e.g., basins, surface impoundments, and piles. EPA developed the proposed “no- discharge” standard based on its -interpretation of the RCRA definition of “storage,” which means containment . . . in such a manner as not to constitute disposal . . . .“ RCRA defines “disposal” as: The discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste Into or on any land or water so that such solid waste or hazaraous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. EPA interpreted this statutory language as requiring “no discharge” (emission) from any hazardous waste storage facility. Although some commenters considered this a proper interpretation of the Act, others took strong exception to it as noted above. Comnienters also contended that the standard was inconsistent with the approach of Section 3004 of RCRA which in their view is to minimize adverse effects. The standards for storage, they argued, should recognize that there are environmentally responsible-ways other than no discharge to store hazardous wastes, and should approach the problem by minimizing the potential for discharges, or requiring only that no significant discharges occur. On a narrower level, commenters argued that under the definition of disposal, air ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33169 missions from materials that have not een discharged onto land or water are ot “disposal”; thus, RCRA does not mandate the prohibition of air emissions from tanks or containers. These comments suggest perhaps a more basic issue concerning storage. While RCRA defines storage as containment in such a manner as not to constitute disposal, it does permit disposal under appropriate conditions. Thus, it seems anomalous in the Section 3004 regulations to require an absolute prohibition of emissions when handling of wastes is called “storage,” while permitting some level of emissions in other facilities performing “disposal.” Surface impoundments, indeed, appear to fall somewhere between a clear example of storage, such as a sealed container, and a clear example of disposal, such as a landfill. An unlined impoundment, for example, may be used to accumulate hazardous wastes for a number of years, and over that Lime at least some of the waste will almost certainly migrate into the soil under the impoundment. Yet, if at the end of its life the residue and contaminated soil are removed, the impoundment might be rendered non-hazardous, and certainly presents a different picture from a landfill. This situation suggests that the roper focus for regulation of storage 1acilities is on whether the wastes will eventually be removed from the facility. This approach to storage, under interim status, is reflected primarily in appropriate standards for closure and financial responsibility (i.e., the cost estimate for closure). The Agency believes that RCRA permits this approach. The definition of storage in RCRA refers to “containment . . . either on a temporary basis or for a period of years,” which is a central factor in the current regulatory definition. RCRA apparently would permit the Agency to regulate treatment, storage, and disposal without anywhere prescribing different standards or approaches for facilities falling into different statutory categories; indeed, the statute typically, as in Section 3004, mentions “treatment, storage, and disposal” in a single phrase, indicating that the same statutory provisions apply to all three. This is to be compared with RCRA’s much different treatment of generators, and of transporters. This is not to say, of course, that the Agency cannot or should not prescribe quite different standards for facilities that are storage Facilities (under some regulatory lefinition) than for disposal facifities, but simply to say that RCRA permits the Agency to use that concept of storage which seems most appropriate for regulatory purposes. With these considerations in mind, and recognizing thiimpracticality of completely eliminating emissions from most types of facilities, the Agency has redefined “storage” to mean “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 few commenters suggested that the Agency consider adding a standard which would limit the time or quantity (or both) of waste that can be stored at a hazardous waste facility. Any such standard would best be based on the type of waste to be stored, the design and construction of the containment device used to store the material, and the climatic conditions under which the storage is to take place. At present, the Agency lacks sufficient data to develop such standards, and a detailed consideration of such information can for now best be made in permitting proceedings. However, the Agency expects to examine further appropriate limitations for storage, and may propose regulations in the future. In addition, the closure and financial responsibility requirements will set limits indirectly on the quantity of hazardous waste in storage. The Phase II financial standards are expected to require that adequate funds be placed in the closure trust (or other acceptable mechanism) to close the facility at any given time, considering the amount of waste on hand. The amount of these funds will create a definite upper limit on the amount of waste in storage at any time, and will create financial incentives for owners and operators to minimize this amount. H. Owner or Operator In a majority of cases, the owner and operator of a hazardous waste treatment, storage, or disposal facility are the same person or corporation. However, it is not uncommon for an operator to lease the land and perhaps structures from a landowner. In a few cases, the owner of the land, the owner of the structures, and the operator may all three be different persons or companies. In the proposed regulations, the Agency used the term “owner/operator” when referring to any or all of these parties, and defined the term to mean “the person who owns the land on which a facility is located and/or the person who is responsible for the overall operation of the facility.” Commenters complained that the definition-was vague and ambiguous and that it was not clear who (the owner or operator) was responsible or liable for what. A few commenters also pointed out that for a few of the requirements, only the owner can legally comply—a case in point being the requirement to record a - note on the deed in proposed § 250.43— 7(b). The Agency’s first priority is to protect human health and the environment. Thus, where there has been a default on any of the regulatory provisions, the Agency will attempt to gain compliance as quickly as possible. In so doing, the Agency may bring enforcement action against either the owner or operator or both. EPA considers the owner (or owners) and operator of a facility jointly and severally responsible to the Agency for carrying out the requirements of these regulations. One reason for this joint responsibility is that, as the commenters pointed out, there is at least one provision of the Section 3004 regulations that only the owner can comply with—that is the requirement to record a notation on the deed to property where hazardous waste remains after closure. Second, if the owner is not bound by the regulations, EPA could have a very hard time trying to implement and enforce the closure and financial responsibility provisions of the regulations. Third, the legislative history of RCRA indicates that responsibility for complying with the regulations pertaining to hazardous waste facilities should rest equally with owners and operators where the owner is not the operator (H.R. Rep. No. 94— 1491,94th Cong., 2d Seas. 28 (1976)). With most of the regulations, the Agency is primarily concerned with compliance, and is secondarily concerned with who ensures compliance. The Agency believes that decisions concerning who should be responsible for ensuring compliance for which requirements can properly and adequately be a matter between the owner and operator. Nonetheless, both the owner and operator ultimately remain responsible, regardless of any arrangement between them. Some facility owners have historically been absentees, knowing and perhaps caring liltie about the operation of the facility on their property. The Agency believes that Congress intended that this should change and that they should know and understand that they are assuming joint responsibility for compliance with these regulations when they lease their land to a hazardous waste facility. Therefore, to ensure their knowledge, the Agency will require owners to co-sign the permit application and any final permit for the facility. Part 122 of the consolidated permit ------- 33170 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations regulations has been changed to reflect this. The Agency agrees with those commenters who pointed out that in a few cases only the owner can legally comply with a requirement. Where this is so. the Agency has specified the “owner” in these fihal regulations. EPA has also changed its usage of the term “owner/operator” to “owner or operator” to indicate when EPA will be satisfied by compliance by either part9 (but also to indicate that the Agency may enforce against either or both). -1. Inactive Facilities RCRA is written in the present tense and its regulatory scheme is prospective. Therefore, the Agency believes Congressional intent to be that the hazardous waste regulatory program under Subtitle C of RCRA is to control primarily hazardous waste management activities which take place after the effective date of these regulitions. Thus, the proposed Subtitle C regulations-did not by theft terms apply to inactive (either closed or abandoned) disposal facilities. Comments received on the subject pointed out the need to protect the public from inactive and abandoned disposal sites, stressing that because these facilitieé are normally very poorly designed and situated, they represent a more severe hazard than new facilities. Love Canal and other disasters were cited to support this argument. The Agency agrees that inactive and abandoned hazardous waste sites (particularly dumps, landfills, and lagoons) may pose serious hazards to human health and the environment. RCRA already provides one tool which can be used to deal with the problem of inactive and abandoned sites—the - imminent hazard provision of Section 7003. This provision—which is applicable to both inactive and active sites—can be used to obtain injunctive relief from any party who can be shown to be causing or contributing to “. . . an Imminent and substantial endangerment to health or the environment The Agency is actively using Section 7003 and other applicable laws to force responsible parties to bear the costs of cleaning up sites posing a hazard. These authorities will remain in place and continue to be actively employed even after the effective date of the Subtitle C regulations. To provide site cleanup in those situ tions where the responsible parties are unknown or lack the funds to do the job, the Administration has proposed “Superfund” legislation currently pending in Congress. While RCRA’s regulatory scheme is generally prospective, certain inactive facilities, or portions of inactive facilities, because of their relationship to facilities which continue to operate, may be subject to some RCRA Subtitle C regulatory controls. Some existing landfills or other facilities are expected to close if they do not or cannot meet the Subtitle C standards. The owners or operators may then design a facility which meets the standards and apply for a permit to locate it on land immediately adjacent to the inactive portion. This is not an improper action. but, in some cases, problems associated with the inactive site (leachate, emissions, etc.) may interfere with the ability of the owner or operator to adequately monitor the “new” facility. - - In these cases, the Regional Administrator may require that the owner or operator of the new facility ensure that certain actions are taken on the inactive site, in order to minimize or eliminate any interference with monitoring or enforcement activities at the “new” facility. J. New Facilities and Existing Facilities In some regulatory programs regulated operations are subject to different requirements, depending on how old the operation is when the regulatory program begins. Often, existing operations are exempted or are subject to less stringent regulations than new operations. The original language of RCRA did not distinguish between new and existing facilities. Consequently, EPA made the proposed Section 3004 regulations applicable to both new and existing facilities. The Agency recognized, however, that some existing facilities would have difficulty complying with some of the regulations. The Agency envisioned that the “Note” (variance) procedure, as well as the use of compliance schedules would accommodate the possible difficulties associated with retrofitting existing facilities. The Agency received numerous comments on this general issue. The most frequent comment on the subject concerned RCRA coverage of NPDES permitted wastewater treatment impoundments. Nearly all commenters were opposed to having RCRA cover these impoundments, citing the impracticality of retrofitting existing lagoons to meet the proposed standards, Specific comments addressed: (a) The tremendous cost associated with lining existing impoundments or building new ones, (b) The costs of transporting wastes to off-site facilities from manufacturing operations which may be located in areas which are unsatisfactory for wastE management, (c) The likelihood that many manufacturing plants would have to close while the impoundment was being retrofitted, and (d) The possibility that some existing facilities may not be polluting now and may never in the future pollute the environment, even though they do not meet all of the proposed RCRA surface impoundment standards. After substantial additional study, EPA has concluded that the proposed surface impoundment regulations can be changed to answer many of the commenters’ concerns about their application to existing wastewater treatment impoundments. The Agency, in keeping with its general guideline of not imposing major capital expenditures on existing facilities during interim status will not require extensive. retrofitting of existing surface impoundments in the interim status standards. Furthermore, it is anticipated that the general regulations yet to be promulgated in Phases II and III will also not require retrofitting of these facilities, if the owner or operator can demonstrate that the impoundment is not contributing statistically significant quantities of contaminants to ground water. The Phase I regulations require a ground-water monitoring program in order to determine whether an impoundment is polluting. Regulations yet to be issued in Phases LI and ifi of this regulatory program will set forth additional technical requirements for impoundments. Most of these requirements probably will not apply to existing impoundments found not to be affecting ground water. The Agency believes that this regulatory approach will (1) substantially reduce the number of existing NPDES facilities which might otherwise had to have been retrofitted, closed, or replaced in order to comply with the proposed Subtitle C-rules, and (2) ensure that human health and the environment is protected. Further, this approach is consistent with pending - Congressional amendments to RCRA. Some commenters suggested that all existing facilities, and particularly existing landfills, should be regulated differently than new facilities. After careful consideration. the Agency has concluded, for the following reasons,, that landfills do not pose the special problems or deserve the same consideration as “existing” faciliti s that surface impoundments do: (1) Sections of landfills are typically filled in sequentially; i.e., one trench or part (cell) of the total landfill area is ------- Federal Register / Vol. 45, No. 98 I Monda , May 19, 1980 I Rules and Regulations 33171 lied and then another part is filled. 1 is activity may or may not be done in iscrete increments, but it is almost always done in progression moving away from a starting point. Thus, owners or operators can close existing portions of most landfills at virtually any time without retrofitting the facility and can design the unclosed portion in accordance with the RCRA standards. This oDtion is not available to impoundment owners or operators because the entire base of the impotindment is normally covered with wastes from the beginning of operations. (2) Impoundments are usually temporary structures; i.e., wasted are normally removed from such facilities when they are closed. By contrast, landfills normally constitute permanent disposal; i.e., wastes remain in landfills essentially forever. (3) Landfills are not normally integrally connected to manufacturing operations. Therefore, any necessary retrofitting which requires diverting solid waste to storage or other facilities would not be likely to cause the manufacturing operation to shut down during the retrofit period. This is not the case with surface impoundments which typically are integral components of manufacturing operations. Similarly, except for some minor changes, the Agency could find no good reason for making major distinctions between new and existing incinerators, storage facilities, and other kinds of facilities in these Phase I regulations. Commenters also pointed to the impracticality of the siting standards, which would have required closure of all existing facilities which were not located in areas which met the proposed siting requirements. No location standards are included in the Phase I regulations (see preamble discussion on “Interim Status Standards”). EPA is considering what relief consonant with RCRA’s human health and environmental protection mandate might be granted to existing facilities unable to comply with the location standards. EPA expects to address these considerations in the Phase II standards. K. fleferences to Other Acts, Regulations, and Standards In the proposed regulations, many references were made to legislation and regulations other than RCRA to alert owners and operators that these laws and regulations might apply to their facilities. These included references to proposed and final Federal regulations, • State standards, industry standards, and xecutivé Orders. Many comments were received concerning this practice. These comments challenged the legality and the appropriateness of referencing or incorporating standards from other regulations. Several coinznenters stated that, by citing requirements from other legislation or regulations in RCRA regulations, EPA would be including provisions that are subject to change by the authority responsible for the referenced regulation, without regard for required public participation ¶irider the Administrative Procedure Act (5 U.S.C. § 533). Other commenters discussed the potential for duplicate civil or criminal penalties which would result form EPA references to other acts in the Section 3004 standards. Commenters stated that Congressional intent was not to make a violation under one set of regulations a violation under another. For example, in the view pf commenters, a National Pollution Discharge Elimination System (NPDES) permit violation should not automatically be a RCRA permit violation. The Agency agrees with certain of these arguments and has deleted references to other acts, regulations or laws which would constitute an unwarranted imposition of duplicate liability. However, EPA always may adopt language identical or similar to that of another statute, regulation, or code of practice, if, in EPA’s judgment, the standard is pertinent and independently supportable under RCRA. For example, the requirement for set- back distances for tanks containing ignitable waste is adopted directly from the National Fire Protection Asspciation (NFPA) “Flammable Combustible Code—1977” for storage tanks; it is independently supportable for RCRA purposes, and is now effective regardless of changes made by NFPA. L. Integration With Other Acts 1. Undei round Injection Control Program. The final RCRA interim status standards regulate the underground injection of hazardous waste until these activities receive a permit under a State UIC program approved or promulgated under the Safe Drinking Water Act (SDWA). Thereafter, they will receive a permit by rule under RCRA. However, underground injection facilities typically have above-ground treatment and storage operations which are and will remain subject to RCRA controls as hazardous waste management facilities. Thus, most of these facilities will ultimately require both RCRA and IJIC permits. To facilitate the granting of these permits, EPA has consolidated the permit and State program authorization procedures for the two programs. These consolidated procedures will allow EPA, or a State, if it has an approved program, to process RCRA.and UIC permits together, thereby avoiding overlap and inconsistencies. (See the preamble discussion on Subpart A and on Subpart R—Underground Injection for more details on the integration of RCRA and SDWA.) 2. Ocean Disposal Program. The disposal of hazardous waste in the ocean is regulated under the authority of the Marine Protection, Research, and Sanctuaries Act. EPA has, therefore, in Part 122 of the consolidated permit regulations, granted these facilities a permit by rule to avoid duplicative regulation. However, most ocean - disposal operations involve on-shore facilities which may store or treat hazardous waste prior to oceaff disposal. These storage nd treatment facilities are subject to these Section 3004 regulations and will require a RCRA permit. Therefore, it will be necessary to coordinate the two EPA regulatory programs which have jurisdiction in this area. In addition, where wastes subject to RCRA control are delivered directly to a barge or other vessel which conducts ocean disposal operations, such vessels will have to comply with certain requirements of RCRA. This is necessary to complete the manifest system. Thus, the owners of such vessels must notify the Agency in accordance with Section 3010 of RCRA and comply with the manifest requirements. The permit by rule provisions of Part 122 make these obligations clear. 3. NPDES Permitted Facilities. Commenters raised three major issues with regard to the coverage of NPDES permitted facilities and their wastes under RCRA. These are discussed in turn below. One, commenters questioned the exclusion of POTWs from regulation under Section 3004. Proposed § 250.40(c)(3) required that POTWs that received hazardous waste by truck or rail comply only with the manifest system; other POTVVs were not subject to Subtitle C at all because mixed industrial and domestic sewage waste streams were considered “domestic sewage,” and thus not “solid waste.” Two, commenters questioned the inclusion, as facilities subject to Section 3004 regulations, of industrial wastewater treatment train facilities with discharges permitted under Section 402 of the Clean Water Act; and three, commenters questioned the exclusion of sewage sludge from regulation as a hazardous waste, as proposed in § 250.10(d)(2)(iii). The Section 3001 preamble analyzes and responds to these comments in some detail because all three issues depend on whether ------- 33172 Federal Register I Vol. 45, No. 98 I Mdnday, May 19, 1980 I Rules and Regulations certain materials are “solid waste” and thus, if hazardous, subject to regulation under Subtitle C of RCRA. a. Regulation of POTWs as Section 3004 Facilities. To summarize, domestic sewage, which is excluded from the statutory definition of solid waste in Section 1004(27) of RCRA, is defined in § 261.4 of the Section 3001 regulations as “untreated sanitary wastes that pass through a sewer system.” In addition, any mixture of domestic sewage and other wastes that pass through a sewer system to a POTW for treatment are excluded from the regulatory definition of solid waste. That regulatory exclusion is based-on the legislative history of the Solid Waste Disposal Act. EPA believes that such mixed waste streams properly should be subject to controls under the Clean Water Act’s construction grants program and pretreatment programs. Because the treatment of sewage by privately owned treatment works is not similarly controlled by EPA, there is no exclusion in the Section 3001 regulations for mixed waste streams going to such facilities. On the other hand, publicly owned or privately owned wastewater treatment works that receive hazardous waste by truck, rail or pipe are treatment or storage facilities subject to Section 3004 regulations, although as the Purpose, Scope and Applicability (Subpart A) discussion in this preamble points out, the same expressions of Congressional intent that led EPA to treat mixed waste streams passing through sewer systems to POTWs differently than-those flowing to private treatment workB also have led the Agency to treat POTWe and private treatment works differently under Section 3004 and 3005 regulations. b. Regulation of NPDES Treatment Train Facilities Under Section 3004. The second issue raised by commenters was that the exclusion of “solid or dissolved materials in. . . industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act” from the definition of “solid waste” in Section 1004(27) of RCRA, excluded facilities that are part of treatment trains leading to such discharges from Subtitle C coverage. EPA disagrees and construes the exdlusion for point sources to apply only to actual discharges into navigable waters, not to industrial wastewaters upstream from the point of discharge. The result of EPA’s interpretation is that, as proposed, surface impoundments, tanks, lagoons, holding ponds and other facilities used to treat, store, or dispose of hazardous industrial wastewaters must meet applicable Section 3004 standards and must obtain a Section ã005 permit. The standards to which existing surface impoundments will be subject are discussed in the section of this preamble entitled”New and Existing Facilities” and the section on surface impoundments (Subpart K). c. Regulation of Sewage Sludge Under Subtitle C. EPA agrees with the commenters who argued that sewage sludge from POTWs should not be categorically exempted from regulation as a hazardous waste. Those sewage sludges which are hazardous now fall within the jurisdiction of Subtitle C of RCRA. The Section 3001 preamble summarizes and responds to the comments on this issue and also / discusses EPA’s efforts to integrate and coordinate its regulatory actions governing sewage sludge. - 4. BAT Toxics and Fretreatm 4 ent Standards. Many comxnenters strongly urged avoiding conflicts between these RCRA regulations and other regulatory programs, including the BAT and pretreatment programs. The Clean Water Act provides a comprehensive scheme for the regulation of discharges to navigable waters. This scheme includes a role for EPA in the establishment of effluent limitations guidelines that set technology based effluent limitations for specific pollutants in the effluents of certain classes of industrial point sources. These standards, and other applicable requirements such as State water quality standards, are used by EPA and approved States in the establishment of specific permit conditions under the NPDES program. The effluent limitations guidelines may be written for conventional pollutants (e.g., suspended solids, fecal coliform, biochemical oxygen demand) or toxic pollutants (a list of over 65 chemical substances and heavy metals). For conventional pollutants, dischargers must achieve effluent limits attainable by the “best conventional pollutant control technology” (BCT) by July 1, 1984. For toxic pollutants, disáhargers must achieve effluent limits attainable by the “best available technology economically achievable” (BAT) by July 1, 1984. In addition, the Clean Water Act created a pretreatment program, which provides the basis for regulating discharges to sewers served by publicly- owned treatment works. This program is designed to insure that users of public sewer systems do not discharge pollutants into the system that would (1) interfere with the operation of the treatment works, (2) cause the POTW’s discharge to navigable waters to exceed the requirements that would otherwise be applicable to the user’s discharge if he had discharged directly, or (3) interfere with the POTW’s ability to safely dispose of its sewage sludge. Solid waste pollution is one of the factors EPA considers when analyzing water problems and developing BAT and pretreatment regulations. While these RCRA regulations are designed primarily to address groundwater pollution from hazardous waste management, the Agency clearly has authority under RCRA to address surface water and air pollution. Thus there is overlapping jurisdiction between the CWA and RCRA. Due to the specific exclusion of discharges permitted under Section 402 in Section 1004(27) from RCRA, and the comprehensiveness of the Clean Water Act programs, EPA has decided to rely on those programs to regulate the discharge of wastewater effluents (which may be hazardous) to navigable waters. In addition, the Agency’s pretreatment program will be used to regulate such discharges to sewer systems served by POTW s. It must be recognized, however, that this use of Clean Water Act programs to regulate hazardous wastes only extends as far as the jurisdiction and goals of those programs. Management activities and environmental objectives for hazardous waste facilities which are not addressed by the Clean Water Act, or which can be addressed more efficiently under RCRA, are and will continue to be addressed under RCEA regulations. Thus, for example, pretreatment unit operations may require a RCRA permit to operate if the feed to the facility is hazardous and the process is not integrally connected (via pipe or conveyor) to a manufacturing operation. Likewise any impoundment containing a hazardous waste is covered by these regulations, particularly with regard to their effect on air and ground water, until the hazardous waste in the impoundment comes within CWA jurisdiction. 5. Clean Afr Act. Owner and operators of hazardous waste management facilities must comply with all applicable standards promulgated under the authority of the Clean Air Act. However, at the moment, very few hazardous emission pollutant standards or new source performance standards under the Federal Clean Air Act apply to hazardous waste facilities. RCRA, in Section 1008(b) calls upon the Administrator to integrate these regulations with the Clean Air Act, “to. the extent that it can be done in a manner consistent with the goals and policies expressed in this Act” and in the Clean Air Act. Significantly, Section 1006(a) does not include the Clean Air ------- Federal Register / Vol. 45, No. 98 / Monday, May 19. 1980 I Rules and Regulations 33173 1 tct in the list of statutes whose egulatees are excluded from RCRA egulation to the extent such regulation is “inconsistent” with the other Act. This statutory structure grants considerable discretion to the Administrator in choosing which statute to rely upon for the most efficient and effective control of hazardous wastes affecting the air. The hazardous pollutant provisions of the Clean Air Act require the use of certain procedures for each pollutant regulated. Because wastes are usually complex mixtures of many materials, hazardous waste facilities are capable of emitting thousands of different substances to the air, many of which are toxic. The procedures of the Clean Air Act would be a less efficient way to control a large number of hazardous air pollutants than RCRA, under which design, operation, or performance criteria (such as incinerator destruction efficiencies) can be set more easily for the many pollutants emitted by facilities. Therefore, the Agency has chosen RCRA as the primary vehicle for controlling air emissions from hazardous waste facilities. In developing regulations to control air emissions from hazardous waste Lfac ities, the Agency’s greatest challenge has been in correlating waste volatility characteristics with potential air emission hazards. As stated earlier in this preamble, EPA has thus far been unable to develop a protocol for predicting hazard potential based on the volatility of a waste, but is continuing its investigations. 6. Toxic Substances ControlAct. Final rules regarding disposal and marking requirements for polychlorinated biphenyls (PCBs) were promulgated on February 17, 1978, and May 31. 1979, under Sectiàn 6(e) of the Toxic Substances Control Act (TSCA). Those rules are intended to protect the environment from further contamination resulting from improper handling and disposal of PCBs. Because of the potential overlap between the RCRA hazardous waste management standards and the TSCA PCB marking and disposal regulations, the Agency solicited comments in the preamble to the proposed RCRA regulations on how it hould manage the TSCA PCB regulations (and by inference, other specific toxic wastes) via-a-vie the RCRA regulations. Most commenters were equally divided between two positions: (1) Publish the TSCA PCB and RCRA regulations independently and exempt - PCBs from RCRA requirements, or (2) Merge the PCB rules with the RCRA standards and co-promulgate them. To minimize confusion and the burdeir on the regulated community, the Agency has tentatively determined that wherever possible, hazardous waste management control will be covered under RCRA. It has not been possible to complete this task to date, but the Agency expects to incorporate, the TSCA PCB disposal regulations into the Phase II RCRA regulations. Special disposal requirements for specific wastes will, in the future, normally be proposed al an amendment to these RCRA regulations but may be co-promulgated under TSCA authority. 7. Surface Mining Control and Reclamation Act. The Office of Surface Mining (OSM) of the Department of the Interior administers the Surface Mining Control and Reclamation Act (SMCRA). The primary purpose of SMCRA is to protect the environment from the effects of surface mining of coal, although surface disposal of underground coal mining waste is also covered. Thus there is overlapping authority with RCRA. The Agency is negotiating an agreement with OSM whereby RCRA control of coalS mining wastes would be deferred to OSM. Such an agreement will be based on a determination by EPA that the SMCRA regulations provide control equivalent to that which RCRA would impose. In anticipation of such an agreement, the Agency has deferred regulation of co l mine waste under RCRA. - 8. National Environmental Policy Act. The National Environmental Policy Act (NEPA) requires the preparation of a statement which considers environmental impacts, alternatives, and resource commitments for any “major federal action significantly affecting the quality of the human environment.” At leist ten appellate decisions have considered the applicability of that requirement to EPA. All ten have concluded thaf the Agency is exempt from the requirements of NEPA because its own processes provide for the “functional equivalent” of that Act. These analyses are concisely summarized in State of Maryland v. Train, 415 F. Supp. 116, 122 (D. Md., 1976): Where federal regulatory action is circumscribed by extensive procedures, including public participation, for evaluating environmental issues and iB taken by an agency with recognized environmental expertise, formal adherence to the NEPA requirements is not required unless Congress has specifically so directed. These Subtitle C regulations hdve - been developed through an extensive evaluation of environmental issues. This was specifically required by the statutory mandate to consider what might “be necessary to protect human health and the environment,” and by the Agency’s developed environmental expertise and concern. That evaluation underlies this preamble and the Background Documents prepared to help develop specific sections of these regulations. Extensive public participation at many public meetings, following pre-proposal circulated drafts, and in hundreds of comments, helped the Agency in evaluating environmental issues raised by these regulations. Federal, State, and local agencies all participated in this process. Congress, well aware of the “functional equivalency” rule, did not alterihat status in the RCRA statute. Thus the Agency is not bound by NEPA’s requirements. The Agency has, however, voluntarily prepared an Environmental impact Analysis which will be available to the public in EPA Headquarters and Regional libraries. M. Special Wastes The proposed regulations established a class of solid wastes for which if hazardous, application of the full set of Subtitle C standards was deferred. These solid wastes, called “special wastes” were cement kiln dust, utility waste (ashes and sludges), phosphate rock mining and beneficiation wastes, uranium and other mining wastes, and gas and oil drilling muds and oil production brines. For hazardous portions of these solid wastes, a very limited subset of the Subtitle C standards was to be applicable pending completion of studies defining the most appropriate waste management practices. When the proposed rules were issued, the Agency had only limited information on these wastes. However, the information the Agency did have suggested that application of the full set of proposed waste management standards would not be appropriate. The attributes of these wastes which caused the Agency to reach this conclusion were: (1) The total annual quantity of each of these wastes (both hazardous and non-hazardous portions) was very large, and individual disposal facilities tended to involve very large piles or ponds. Should large volumes of the wastes be hazardous, the size of the facilities could have made the application of some of the regulations technically infeasible or unpracticable. (2) Any portions of the wastes which did fail the proposed hazardous waste characteristics were thought to be on the ------- 33174 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations margins of failure. Thus the hazardous portions of the wastes appeared to have relatively low intrinsic hazard relative to other wastes. However, the Agency’s data base was very limited. (3) The Agency did not believe that it had sufficient informalion to propose specific alternate waste management requirements without additional study. The Agency’s proposed approach to special wastes generated widespread and divergent protest from both the regulated community and the public. Commenters generally objected either to the concept of the special waste category or to the need for, or the sufficiency of, the limited standards proposed for that category. Many commenters identified other solid wastes which they urged also be defined as special wastes. The major comments were: (1) EPA should not regulate these wastes at all unless it can demonstrate that the wastes, as presently managed, pose a significant threat to human health and the environment. (2) Many of the limited standards proposed are not suitable for these wastes because of the low hazard and large volume of the wastes. The requirement for facility security was a particular target of criticism. (3) The stigma of singling out these wastes and regulating the hazardous portions under Subtitle C will impact negatively on the potential for their re- use. (4) The singling out of only these few hazardous wastes for special favored treatment is inequitable when there are other wastes with similar characteristics which must bear the full regulatory burden. Commenters suggested about 50 additional wastes to be added to the special waste category. (5) If these wastes (or portions thereof) fail the 3001 characteristics, tl?en they pose significant hazards to human health and the environment and therefore should be regulated like any other hazardous waste. Several commenters recommended alternatives to the special waste category: - • (1) The Agency should replace the special waste category with a variance procedure involving public participation. (2) The standards for a given waste should be determined on a case-by-case basis with requirements specified in the permits for each facility and location. The thrust of many of the comments was universal disapproval of the special waste category as proposed. In the course of its consideration of the comments. including proposed additions to the special waste category, EPA made two significant changes in the basic structure and content of the Subtitle C regulations. These are (1) changes in the toxicity and corrosivity hazardous waste characteristics under Part 281 which narrow the category of waste which will be brought into Subtitle C by these characteristics, and (2) the incorporation of significantly more flexibility, through phasing and standard-setting, in the Parts 264 and 265 regulations. The Agency now has concluded that these changes accomplish the objectives of, and eliminate the need for, a special solid waste category. 1. Changes in the Section 3001 Characteristics. In response to comments, the toxicity and corrosivity hazardous waste characteristics have - been modified and now include more demanding conditions for defining a hazardous waste. In the proposed regulations. a waste would have been considered hazardous under the toxicity characteristic if the extract from that waste (obtained through the defined Extraction Procedure) contained any hazardous constituents in the Primary Drinking Water Standards {PDWS) at a concentration of more than 10 tbnes the PDWS limits. In the final regulations, the characteristic concentration bringing a hazardous waste under regulation has been increased from 10 to 100 times the PDWS. Thus, waste extracts must contain a tenfold higher concentration of one of the POWS substances than originally proposed in order for the waste now to be brought under Subtitle C control by that characteristic. The- reasons for the change in this characteristic are explained in the Toxicity Characteristic Background Document. The upper and lower limits of pH which define a hazardous waste also have beenrevised in response to comments so that the corrosivity characteristic now is more demanding in signaling a waste as hazardous. The basis for this change is explained in the Corrosivity Characteristic Background Document. These changes have had two important effects on the special waste concepL One fs that a much smaller portion of the proposed special solid wastes are expected to fail the characteristics and be subject to control as hazardous wastes. The data available to the Agency indicate that most of the special wastes that would have entered the control system would have done so due to toxic extracts between 10 and 100 times the PDWS. Thus, the probability that large volumes of the proposed special solid wastes will be hazardous now appears remote. Second, those. portions of the proposed special solid wastes which do fail the characteristics can no longer be labeled “low hazard” wastes. Thus the concern over the inapplicability of the proposed regulations to hazardous special wastes due to the potentially large volume and low level of hazard of these wastes is not a valid concern in the final regulations. 2. Phasing and Ii,creased Flexibility in Parts 264 and 265. To the extent that special accommodation for any of the hazardous portions of these wastes may still be needed, the second major regulatory change, i.e., the incorporation of more flexibility in the hazardous waste management requirements through regulatory changes and phasing of requirements, will accomplish essentially the same result as the proposed special solid waste category. This is true for the hazardous portions of those wastes proposed as special solid wastes as well as for all of the wastes that commenters suggested should be special solid wastes. The new three-stage regulatory process itself provides the same opportunity for phased regulation as the creation of the special waste category. Initial regulations under Phase I standards include administrative and limited technical requirements which provide a basic level of environmental protection similar to that provided in the limited standards proposed for the hazardous portions of special wastes. The plans for Phase II of the regulations will allow hazardous waste facilities to be permitted largely on the basis of performance standards coupled with the “best engineering judgment” of the Regional Administrator. This flexibility will allow the permit writer to consider site- and waste-specific factors in determining specific design and operating permit requirements. Thus, unnecessary or overly stringent requirements should not be forced upon any hazardous wastes by the regulations. To’ the extent the Agency becomes aware of the inapplicability of certain requirements on a site- or waste- specific basis, it is committed to making needed regulatory changes as quickly as possible. In addition, the Agency plans to gather further information both on the proposed special solid wastes and on at least some of the wastes suggested by commenters as special solid wastes, and where needed, develop technical standards or guidance specific to these wastes in the Phase I II regulations and thereafter. Additional data and information on these, as well as the other solid and hazardous wastes the ------- Federal Register / Vol. 45, No. 98 / Monday, May 19. 1980 / Rules and Regulations 33175 A.gency is studying also will be useful in issuing best engineering judgment permits under the Phase II Section 3004 regulations. In consideration of all of the above factors, the Agency has concluded that the special solid waste category is no longer necessary. It has been eliminated in these final Phase I regulations. Those portions of the six proposed special wastes which are determined by the characteristics to be hazardous will be subject to the applicable Part 264 and 265 regulations. The Agency is, however, temporarily delaying imposition of the regulations for two of the wastes EPA originally proposed as special solid wastes, i.e., oil and gas drilling muds and oil production brines, and utility waste. This temporary deferral is in response to action by Congress to exempt these wastes from most Subtitle C regulation for a limited time pending completion of certain EPA - studies. Congress has not yet completed action on the amendments which would mandateS this deferral. However, bills have been passed both in the House and Senate, indicating strong Congressional intent to mandate a deferral of regulations for these two proposed special solid wastes. • In the absence of a regulatory deferral by EPA, the hazardous portions of these wastes would be subject to the requirements of the regulations on their effective date. In order to be in compliance by the effective date, the facilities handling these w astes would need to take certain actions soon. involving possibly significant expenditures, which could then be halted in mid-stream by final Congressional action. In EPA’s view, such a situation would be inefficient and counterproductive. Therefore, Part 261 deferi the effective date of the regulations for the hazardous portions of the proposed oil and gas and utility special wastes. The other proposed special solid wastes are the subject of bills which have passed either the House or the Senate, but only the oil and gas and utility waste deferrals are contained in both the House and Senate bills. EPA is not presuming the outcome. of the additional proposed deferrals, but will, where necessary, amend Part 261 regulations after the cui ently proposed amendments to RCRA are finally acted on by Congress. V. Detailed Analysis of Phase I Rules A. Subpart A—General Subparts A of Parts 284 and 285 contain requirements under three general headings. The first is “Purpose, Scope, and Applicability” (§ § 264.1 and 265.1). These provisions explain who is subject to the regulations in the Part, —and whether there are any’ circumstances under which a person is excluded from coverage by the regulations or subject only to limited requirements. The second section in Part 264 ( 264.3) explains the relationship of Part 264 requirements (which EPA has termed “general standards” or “permitting standards”) to Part 265 requirements (the “interim status standards”). Section 265.1(b) is the counterpart of § 264.3. It explains that the Part 265 regulations, rather than the Part 264 regulations, are applicable to an owner or operator who has fully complied with the requi ements for interim status under Section 3005(e) of RcRA, and who has not had final administrative action taken on his - permit application. Sections 264.4 and 265.4 notify peopli who handle hazardous waste that imminent hazard actions may be brought notwithstanding any other provisions of the regulations. Each of these sections is discussed in detail below. 1. Purpose, Scope, and Applicability. The content of this section has changed substantially from the proposal. This preamble discussion explains the final requirements, and, in addition, contains a table showing the correlation of each of the paragraphs in proposed § 250.40 with the final regulations. Paragraphs (a) of § § 264.1 and 285.1 set forth the purpose of the Section 3004 regulations and are self-explanatory. Paragraphs (b) of § § 264.1 and 265.1 state the general applicability of the regulations, which is to all owners and operators of facilities that treat, store, or dispose of hazardous waste (TSDFs), - except as specifically provided - otherwise in the Parts 264, 265, or 261 regulations. Paragraphs (c) through (g) of § 264.1 and paragraph (c) in § 265.1 delimit the general applicability of the regulations. In addition, each Subpart in Parts 264 - and 265 contains an applicability section. Some of these special applicability sections now merely refer back to the requirements in § § 264.1 and 265.1, but Subparts F through R of Part 285 contain applicability sections which limit the applicability of the requirements in those sections to certain kinds of facilities. The requirements in Subpart N of Part 265, for example, apply only to owners and operators of facilities which dispose of hazardous waste in landfills (which include waste piles used as disposal facilities). a. Ocean Disposal. Paragraph (c) of• § 264.1 states that the requirements of - Part 284 apply to a person disposing of hazardous waste by means of ocean disposal subject to a permit issued under the Marine Protection, Research, and Sanctuaries Act (MPRSA) only to the extent they are included in a RCRA permit by rule granted to such a person under Part 122 (i.e., the RCRA Section 3005 regulations). The preamble to the Part 122 regulations explains the basis of EPA’s decision to issue such persons RCRA permits by rule. Basically, EPA has found that compliance with an ocean dumping permit issued under 40 CFR Part 220 (Ocean Dumping under MPRSA) provides the human health and environmental protection mandated by RCRA. Persons carrying out such disposal, however, must comply with certain recordkeeping and reporting requirements which are necessary for EPA to ensure that the “cradle-to-grave” management system for hazadous waste established in RCRA tracks all manifested hazardous waste. - Paragraph (c)(1) of § 265.1 excludes persons disposing of waste by ocean disposal subject to a MPRSA permit from coverage under Part 265 (interim status standards). The Part 265 requirements never apply to such people because on the effective date of RCRA regulations persons disposing of hazardous waste in accordance with MPRSA permits automatically receive RCRA permits by rule which require them to comply with selected Part 284 requirements. Treatment or storage of hazardous waste before it is loaded onto an ocean vessel for incineration or disposal at sea is covered by the Parts 264 and 265 regulations because MPRSA offers no regulatory scheme comparable to RCRA for such facilities. b. Undei round Injection. Coverage under RCRA of persons disposing of hazardous waste by underground injection is complicated because, depending on the circumstances, such persons are subject to regulation (1) by RCRA Part 265 standards, (2) by RCRA Part 264 standards, (3) by State standards effective under an authorized hazardous waste program (under Section 3006 of RCRA, 40 CFR Part 123, Subparts A, B. and F), (4) by State standards effective under an approved underground injection control program (under the Safe Drinking Water Act (SDWA), 40 CFR Part 123, Subparts A and C), or (5) by Federal standards in a State with an EPA promulgated underground injection control program under SDWA. The preamble to the Part 122, Subpart C, regulations explains these various regulatory schemes and their statutory underpinnings. Because Section 3004 of RCRA requires that all owners and operators of facilities which ------- 33176 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations treat, store, or dispose of hazardous waste must have a RCRA permit, these Section 3004 (Parts 284 and 285) regulations and the Section 3005 (Parts 122 and 124) regulations so provide. Part 265 standards (as stated in § 265.1(c)(2)) do not apply to persons disposing of hazardous waste by means of underground injection subject to a permit issued under an Underground Injection Control Program approved or promulgated under the Safe Drinking Water Act. That means that the Part 265 interim status regulations do apply to persons disposing of hazardous waste by underground injection who have met the Section 3005(e) requirements for interim status and who either (1) do not have such a SDWA UIC permit, or (2) do not have a RCRA permit and are injecting hazardous waste underground in a State without an authorized RCRA program that covers underground injection. Part 284 requirements (see § 264.1(d)) apply to people disposing of hazardous waste with permits issued under an UIC program approved or promulgated under SDWA only to the extent that they are included in § 122.45 (Requirements for UIC permits for wells injecting hazardous wastes). The same reasoning that applies to hazardous waste disposal under an MPRSA permit applies to SDWA UIC permits. Although all of the technical requirements for waste disposal by means of underground injection have not yet been promulgated under the Safe Drinking Water Act, EPA is including this section to state its intention to issue a RCRA permit by rule to persons who meet SDWA requirements. EPA will insure that the combination of UIC technical requirements, and § 122.45. which incorporates appropriate requirements from Part 264 for underground injection of hazardous waste, meets RCRA’s human health and environmental protection mandate. The implication of § 264.1(d) is that until an underground injection facility receives a SDWA UIC permit, it is subject to RCRA interim status standards (if the owner or operator has met the requirements of Section 3005(e) of RCRA) or must have a RCRA permit. EPA intends, as part of its Phase II Section 3004 regulations to promulgate technical requirements that can be used to issue interim (two year) permits to Class I (and perhaps Class IV) underground injection wells. Until then, or until permitted by a SDWA UIC program, all hazardous waste disposal by underground injection is governed by the RCRA interim status standards. See the discussion of the Subpart R standards in this preamble for an explanation of those requirements. EPA believes that this system will ensure that underground lnjectio of hazardous waste is carried out in accordance with the purposes and requirements of both RCRA and SDWA. while avoiding unnecessary dual regulation. For a more detailed discussion of this Issue, see the preamble to Part 122, Subpart C. As with on-shore facilities associated with ocean disposal, above-ground treatment or storage of hazardous waste associated with an underground injection facility is covered by Parts 264 and 265 regulations. The Safe Drinking Water Act is designed to protect underground sources of drinking water and does not have authority comparable to RCRA’s to ensure human health and environmental protection from all aspects of potential pollution (air, land, surface, and ground water) from above- ground facilities that treat, store, or dispose of hazardous waste. c. POTWs. As discussed above in the section of this preamble on “NPDES Permitted Facilities,” the regulatory definition of solid waste excludes hazardous waste that is mixed with domestic sewage and passes through a sewer system to a publicly-owned treatment works. That exclusion is based on the legislative history of the Solid Waste Disposal Act. As discussed in the Part 122 preamble, EPA believes that the reasoning which led the Agency to exempt such hazardous waste mixed with domestic sewage from the definition of solid waste, also applies to the decision of what sort of RCRA requirements to impose on POTWs which receive hazardous waste which has not lost its character as solid waste (i.e., hazardous waste which is — discharged to the POTW by truck or rail, or through a pipe which carries only industrial waste). EPA will issue POTWs which receive haEardous waste a permit by rule. The Agency’s reasoning is that the wastes will be placed in a facility subject to an extensive set of Federal regulatory and subsidy provisions that should be sufficient to deal with any hazardous waste problems. In addition, this exemption for POTWs from most of the Section 3004 requirements is based on Congressional intent that EPA avoid disruption of the existing patterns of funding and operation of such facilities. Note, however, that in order for a POTW to qualify for this permit by rule, it must have and be in compliance with an NPDES permit, must comply with certain of the RCRA recordkeeping and reporting requirements, and must meet all applicable Federal, State. and local pretreatment requirements (such requirements are applicable to truck or rail shipments of hazardous waste just as if they had come through a sewer. pipe, or similar conveyance). Paragraph (c)(3) of § 265.1 excludes the owner and operator of a POTW that treats, stores, or disposes of hazardous waste from coverage by Part 265. Paragraph (e) of § 264.1 provides that the requirements of Part 264 apply to such owners and operators only when included in a RCRA permit by rule. This scheme is the same as that described above for ocean disposal in accordance with an MPRSA permit. The interim status standards never apply to POTWs because owners and operators of POTWs are required to comply with the Part 264 requirements which are included In their permit by rule. d. Authorized State RCRA programs. Paragraph (c)(4) of § 265.1 provides that the Part 265 requirements do not apply to persons treating, storing, or disposing of hazardous waste in a State with a RCRA hazardous waste program authorized under Subparts A and B (i.e., full authorization), or Subpart F (i.e., interim authorization) of 40 CFR Part 123. This exclusion is provided in the regulations because Section 3006 of RCRA states that authorized State programs are to operate in lieu of the Federal program. Thus Federal requirements; as a general rule, do not apply in States with authorized RCRA programs. The exception to this rule is a State with Phase I, but not Phase II interim authorization as discussed below and in the preamble to Part 123, Subpart F. Pursuant to Section 3006 of RCR.A and Part 123 requirements, a State program must be “substantially - equivalent” to the Federal program to receive interim authorization; a State program must be “equivalent, consistent, and provide for adequate enforcement” to receive full authorization. Paragraph (f) of § 264.1 establishes the same sort of general inapplicability of Part 264 requirements as is established for Part 265 requirements, with one exception. The one exception is that Part 264 requirements do apply in States which have only Phase I interim authorization. In such States, EPA retains the authority to issue hazardous waste permits because the State program does not yet have that authority. Such a lack of State permitting authority could last in a-State for a maximum of about nine months. As noted in the Part 123 preamble discussion of this issue, EPA would rarely exercise this authority, but if the Agency failed to retain such authority, ------- Federal Register I Vol. 45, No. 98 / Monday. May 19, 1980 I Rules and Regulations 33177 EPA would be in effect prohibiting the ermitUng of any facilities in such a State during that period. Because of Section 3005 of RCRA. no new facilities could begin operations. Because newer facilities, subject to full Federal requirements, generally will be the better facilities, such a result certainly seems anomalous, particularly in light of the current shortfall of environmentally acceptable hazardous waste management facilities in the United States. There is one additional aspect to the applicability of Parts 264 and 265 in States with authorized RCRA programs. That is the regulation of hazardous waste disposal by underground injection in such States. As mentioned briefly above, and as discussed in the Part 123 preamble, States seeking authorization to operate RCRA hazardous waste programs in lieu of the Federal program will have an option to include coverage of underground injection facilities. If a State which receives interim or full authorization chooses not to regulate undergrQund injection under its RCRA program (prior to the opportunity to receive approval for a State UIC program under the Safe Drinking Water Act), the Parts 264 and 265 requirements will remain effective for underground injection facifities in that State. EPA realizes such a result will subject underground injection facility owners and operators to regulation by both State and Federal agencies, but sees no real alternative. EPA does not believe that it should mandate that State RCRA programs include coverage of underground injection facilities. No such requirement was proposed with the State authorization requirements, and such a decision could disrupt the progress many States have been making towards developing all of the legislative and regulatory authority necessary to receive interim or full authorization under RCRA. On the other hand, it seems fair and reasonable to give States the chance to include such facilities in their programs because if a State has sufficient authority, a facility owner or Dpera (or then need deal only with the State. e. Part 281 Exclusions, Including $mall Quantities of Hazardous Waste, md Recycled or Re-used Hazardous Waste. Sections 264.1 and 265.1 both provide that Parts 264 and 265 are not zpplicable if specifically provided Dtherwise in 40 CFR Part 281. Part 261 covers the identification and listing of those solid wastes which must be iandled as hazardous Waste according to the standards established by EPA Linder Sections 3002 through 3005. Among other things, Part 281 contains regulatory definitions of solid waste and hazardous waste, a list of materials which are excluded from all or a portion of certain Subtitle C requirements, and establishes special requirements for generators of small quantities of hazardous waste. Thus EPA believes it is appropriate for the Parts 264 and 265 requirements to refer people to the Part 261 regulations which designate which wastes are within Subtitle C control. when those wastes must begin to be managed in accordance with Part 262 through 265 standards, and when a hazardous waste ceases to be a hazardous waste. The exclusions in § 261.4 (i.e.. the statements of which materials are not solid wastes and which solid wastes are not hazardous wastes) are not included in the Parts 264 and 265 regulations. Owners and operators of treatment, storage, and disposal facilities should read the Part 261 regulations to determine to what extent the wastes they handle are subject to the Parts 264 and 285 regulations. EPA has, in H 264.1(g)(1) and 261.1(c)(5). excluded from regulation under Parts 264 and 285 facilities permitted, licensed, or registered by a State to manage municipal or industrial solid waste. if the only hazardous waste the facility handles is excluded from regulation under the small quantity provisions of § 261.5. Section 261.5, among other things, excludes certain small quantities of hazardous waste from regulation under Parts.262 through 265, if the generator of those small quantities ensures delivery of them to a facility which has (1) interim status, (2) a RCRA permit, or (3) is permitted, licensed, or registered by a State to manage municipal or industrial solid waste. To avoid the confusion that could result if this third category of facility were not specifically excluded from regulation in Parts 284 and 285, EPA has provided an exclusion. The special regulatory requirements for hazardous waste produced by small quantity generators are discussed in the preamble to Part 261 and an accompanying background document. EPA also has referenced in Parts 284 and 285 (see H 264.1(g)(2) and 265.1(c)(8)) the exclusion from most Subtitle C requirements provided in § 261.6 for hazardous waste that is used, re-used, recycled, or reclaimed. Such waste is subject to transportation and storage requirements prior to its re-use and reclamation and the provisions of § 281.6 which so provide are referenced in Parts 264 and 285. Regulation of re- used and recycled waste is discussed in the preamble to Part 281. f. Generators Who Accumulate On- Site, Farmers, and Totally Enclosed Treatment Facilities. The last three exclusions from Part 264 and 265 requirements are two activities carried on by certain generators of hazardous waste and one type of facility which EPA believes need not be subject to any RCRA Section 3004 requirements in order to ensure protection of human health and the environment. 40 CFR 262.34 exempts generators who accumulate hazardous waste on- site for 90 days or less (for subsequent shipment off-site) from the requirement to have a permit, provided they comply with certain requirements that EPA deems sufficient to protect human health and the environment during that period. These requirements are specified in § 262.34. If a farmer disposes of waste pesticides in accordance with § 262.51, those wastes are exempt from all Section 3004 requirements. This is another exemption made in the Part 262 regulations which EPA is codifying in the Part 264 and 265 regulations to avoid confusion. Both of these exemptions are discussed in the preamble to the Part 262 regulations (45 FR 12724—12732. February 26,1980) and the supporting material for those regulations. The third exemption is for owners and operators of “totally enclosed treatment facilities,” as defined in 40 CFR 260.10. Commenters pointed out that in some production processes, wastes (particularly acid and alkaline solutions) are treated in pipes and other types of totally enclosed on-site facilities, often resulting in a non-hazardous discharge. EPA agrees that to classify on-site “totally enclosed systems,” such as pipes, as hazardous waste treatment facilities and to require them to meet Section 3004 standards and obtain a permit would not make a great deal of sense. Accordingly, for the reasons discussed below under “Supart Q— Chemical, Physical, and Biological Treatment Facilities,” EPA has exempted these facilities from regulation under Parts 264 and 285 and from the requirement to obtain a permit in Part 122. Persons who handle hazardous waste in what they believe to be a ‘totally enclosed treatment facility” should carefully read the definition of that term in § 260.10. 2. Relationship to Interim Status Standards. Section 264.3 puts owners and operators of TSDFs on notice that they are required to comply with Part 285 requirements, rather than Part 264 requirements, if they have qualified for interim status under Section 3005(e) of RCRA and final administrative ------- 33178 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations disposition of their permit application 264.4 and 265.4 put owners and hazard actions may always be brought has not been made. Section 265.1(b) is a operators of TSDFs on notice that pursuant to Section 7003 of RCRA when parallel requirement. nothwithstanding any of the other the statutory elements of such an action 3. Imminent Hazard Action. Sections provisions of those parts, imminent are established. Correlation of Proposed and Final Rules for Purpose, Scope, and Applicability Subject Proposed mis mel nile Expisnation Purpose of requirements -. . . § 250 40( 5) §f 264 1(s) and 265.1(s) The proposed and final rules contain the seine standard State program requirements. EPA enforce- § 250 40(b) Part 123 .. The requirements a 5tate program must meet to receive InterIm or full eu- ment authority thonzstlon under Section 3006 of RcRA are now set out in Pert 123 - - EPA’s independent enforcement authortty is estabhshed In Section 3006 - of RCRA and discussed. In the context of its use in a State with an au- thonzed RCRA program, in the Part 123 presmbte Compliance with pernst requirements § 250 40(c)... § 2641(b). Part 122, and Part 123... The Pest 264 standards are independently enforceable national standards, but the circumstances under which EPA will consider compttsnce with an EPA or a State ROtA permit compliance with the standards are provided in Perts 122 and 123 regulations, end discussed In the preamble to those - Parts Special wsste standards § 250 40(c)(1) -. Deleted - -. ..-,. -. See the discussion in this preanibte entitled Special Wastes” lntenm status standards § 250 40(c)(2) . _.. -. Part 265 For ease of reference, and because EPA a phsaing its Section 3004 stand- era the intenm status standards are now set out iii 5 sepsrete Part (Pert 265) of Title 40 of the code of Federal Regulations. P01W exemption § 250 40(c)(3) - . if 2641(e) and 265.t(c)(3) ... -. This exemption Is i o osad in the Section 3004 preamble In the section on Subpsrt A requirements. Requirement for ID code § 250 40(c)(4) .. . . - § 26411 - This requirement was properly a generally applicable facility standsrd rather then a scope of coverage requirement so it hes been made a Subpart S (General Facility Standards) standard Receipt of hazardous waste only from small §250.40(c)(5)......... .. i f2St&2641(g)(1),and ThisexctusionlsdiscussedinthepreembletoPart26l - ‘ qusntity generators 265 1(c)(5) - Receipt of unmanitested hazardous waste. . § 250 40(o)(6) §f 26476 and 26576 This reporting requirement has been placed in Subpsrt E (Manifest System, - Recordlteeping, and Reporting) of Parts 264 and 265 where It more prop. arty belongs. Use of requirements for Assessing State programs § 2S0 40(d)(1) Part 123 How EPA will use the Section 3004 requirements to assess State programs tor lntenm and full suthorizstion e more properly the subject of the Sec- tion 3006 regulations and Is set out in Part 123 end dIscussed in the pre- amble to that Part. issuing pennits § 250 40(d)(2) Part 122 The use of the Pert 264 standards in issuing, reissuing, or revisIng permIts Is more properly the subject of the Section 3005 Se • the Pert 122) regula- lions and Is set out there end discussed in that preamble The decision to incorporate the proposed “Notes,” (I e. variances) directly Into the Sec . bon 3004 standerda is discussed in the Section 3004 preambla EPA’s p0 sition on reopening and modification of permits is discussed in the Pert 122 preamble Bnnging enforcement action against TSDF with a State penist § 25040(d)(3)(l) ...,... Part 123 The circumstances under which EPA will enforce State reqiaremenls which are not included in State permits e discussed in the preamble to Part 123 TSDF with no permit or pending permit § 250 40(d)(3$li) - - - , - if 2641(b). 2643 and 2651(b) ..,.,. Part 264 standards are eidependenlly enforceable national standards which application. apply of their own force to owners end operators of TSDFe who do not have interim status Compliance with Part 264 standards does not, of course, relieve en owner or operator from the requirement to get a pernst under Pert 122, nor does It insulate him from an action tinder Section 7003 of RCRA. or an action seslung an order for complisnce with certain Pert 265 requirements, should those requirements be more extensive than the extant Part 264 requirements Requirements do not epply Domestic sewage - . - § 250 40(e)(t) Part 261 §2614 excludes materials that are not solid wastes for purposes of Subtitle C requirements: domestic sewage is so excluded lmgation return flows § 250 40(e)(2) Part 261 § 2614 excludes mstenals that are not solid wastes for purposes of Subtitle C requirements, imgation return flows we so excluded CWA Section 402 discharge §250 40(e)(3) - ... - Pest 261 - - .,, § 2614 excludes materials that are not solid wastes for purposes of Subtitle C requirements, discharges permitted under Section 402 of the CWA are so excluded This exclusion does not exclude from Subtitle C regulation - sidusthsl waslewatars while they are being collected, stored, or busted before discharge, nor does It exclude sludges that are generated by indus. Irlal wsstewater treatment Source, special nuclear, or by-product § 250 40(e)(4) Pert 261 § 2614 excludes matenats that are not solid wastes for purposes of Subtitle materiel C requirements, source, special nuclear, or by-product msterlsl as defined by the Atomic Energy Act of 1954, as amended, a so excluded Section 111 end 112 sIr emissions § 250 4o(eXS) Deleted .. This exclusion from Subtitle C coverage didn’t really “fit” with the rest of the - exclusions, which are of solid or hazardous wastes Although this exclu- sion has been deleted from the regulations, EPA a policy Is not to promul- - gate any requirements under RcRA which would be inconsistent with point source sir emission regulations under Sections Ill and 112 of the Clean Air Act Disposal of hazardous waste vIa underground § 250 40(e)(6) .,,..,. - §f 264 1(d) end 265 1(c)(2), Parts As discussed in the Section 3004 preamble in the section on’ Subpart A re- inlection. 122 and 123 quirements, and In the preambles to the Parts 122 and 123 regulations, the dlsposel of hazardous waste via underground injection Is subject to - certain ROtA requirements. Ocean disposal of hazsrdous wsste,,...,,.,.,,,,., §25040(e)(7) ,,. . §f 284 1(c) end 265.t(c)(Th Pail As discussed in the Section 3004 preamble in the section on Subpart A re- 122 - quirements, ocean disposal of hazardous waste subject to a MPRSA permit Is subject to 5 RCRA (Part 122) permit by rule. ------- Federal Register / Vol. 45, No. 98 I Monday. May 19. 1980 I Rules and Regulations 33179 B. Subpart B—General Facility Standards Subpart B of both Parts 264 and 265 contains a number of discrete sets of standards, each of which applies to owners and operators of all hazardous waste facilities. The Subpart includes requirements for waste analysis, security, inspections, and training—all of which were contained in § 250.43 of the proposed rules. 1. Identification Number. Sections 264.11 and 265.11 of Subpart B contain a standard which requires that the owner or operator apply to EPA for an identification code. This requirement was in the Purpose, Scope, and Applicability section of the proposed rules. However, because the standard is applicable to all facilities, the Agency believes that it is more logical to include the standard in the General Facility section of the final rules. 2. Required Notices. Sections 264.12 and 265.12 require that the owner or operator of a facility notify the Regional Administrator at least four weeks in advance of the date of any shipments of hazardous waste from foreign sources. This requirement is a corollary to the proposed § 250.20(c)(3) standard, which required generators who ship their waste to foreign countries to inform the foreign government having jurisdiction over the facility to which the waste is to be sent. The Agency believes that thla requirement is necessary in order for EPA to effectively oversee the transportation and management of hazardous waste imported to the United States. Sections 264.12 and 265.12 also require that, before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post-closure care period, the owner or operator must notify the new owner or operator of the RCRA Section 3004 and Section 3005 requirements. The Agency has added this requirement to the final rules in order to minimize the possibility that an unsuspecting buyer may purchase a facility, not knowing that this purchase entails his having to comply with these Subtitle C regulations. However, it should be noted that if the “old” owner or operator fails to comply with this standard, the “new” owner or operator is still required to comply with all applicable RCRA regulations, including those in Part 122 establishing requirements for permits. Section 264.12 also requires the owner or operator of an off-site facility’to inform the generator in writing that the facility has the appropriate permit(s) for, and will accept, the generator’s waste. The Agency believes this provision, which was suggested in the comments, is necessary for the proper functioning of the manifest system, because Part 262 requires that generators send their hazardous waste only to a facility with appropriate permits for the waste (or to facilities whose owner or operator has interim status). A written certification by the facility owner or operator thus assures the waste generator that the requirements of Part 262 are satisfied. It also avoids the potential problem of a generator designating a facility on the manifest which has the appropriate permits for his waste, but which has not agreed to accept the waste. The rest of this section of the preamble discusses he comments received on the proposed § 250.43 standards contained in this Subpart. 3. General Waste Analysis. The purpose of the proposed waste analysis standards was to ensure that owners or operators possessed sufficient information on the properties of the wastes which they managed, to be able to treat, store, or dispose of their waste in a manner which would not pose a threat to human health or the environment. The proposed standards included requirements which specified the level of analysis to be performed on wastes managed at facilities, the minimum frequency with which these analyses were to be repeated, and the properties of the waste which were to be determined to verify the identity of each trucidoad, shipment, or batch of hazardous waste managed at facilities. The Agency received many comments which stated that the generator should be required to provide the owner or operator with the information needed to comply with the Section 3004 waste analysis standards, because the generator is more familiar with the properties of the waste than is the owner or operator, and it would thus be less expensive for the generator to conduct the required analysis. The Agency believes, however, that although many generators may be familiar with the properties of the waste which they generate, there are many companies which generate waste about whose properties the generators know very little. In the latter case, for those companies lacking analytical equipment, the cost of sending their waste to commercial laboratories for analysis is comparable to the cost of analysis at facilities with on-site labs, or facilities which sub-contract their analytical work. In addition, many generators will not have the “hands on” knowledge of The information needed to treat, store, or dispose of the waste at any particular type of facility. Owners or operators will necessarily be in a better position to use that knowledge. The Agency believes that the approach taken in the proposed rules (whereby owners or operators can either conduct the analysis themselves or acquire the analysis from the generator) provides as flexible and cost effective a means as that suggested by the commenters, to ensure that owners or operators obtain the information needed to manage hazardous waste. A number of commenters suggested that the regulations should specify that the waste analysis required under the Section 3001 regulations satisfies the requirements for waste analysis required under Section 3004. The Agency does not agree with these commenters because the information needed to characterize a waste (as required in proposed § 250.13) may overlap with, but is not identical to, the Information needed to manage a waste (as required in proposed § 250.43). For example, to treat a waste, one needs to know not only the chemical composition of the waste, but also the compatibility of the waste with the techniques and chemical reagents used at the facility to treat the waste. The waste analysis - required under Section 3001 may not provide the latter type of information, and thus, does not fully satisfy the requirements for waste analysis prescribed under Section 3004. However, the standard has been revised to make it clear that data developed pursuant to Section 3001 may be included in the data base that the owner or the operator - compiles to comply with the gection 3004 waste analysis standards. Several commenters felt that the nature and the scope of the required analysis should be more specific. The Agency purposely wrote objective- oriented waste analysis standards in proposed § 250.43 because the information needed to treat, store, or dispose of waste differs depending on the methods used to manage waste (e.g., the information needed to incinerate waste differs from that needed to neutralize waste). However, the Agency ‘agrees that the regulations can be somewhat more detailed regarding the standards for waste analysis. For this ------- 33180 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations reason, in addition to the general waste analysis standai¼ls which apply to all facilities, the final rules also include, in most technical sections of the regulations, waste analysis standards specific to the management method regulated in that particular section. For example, the § 285.345 standards for incineration contain specific parameters (e.g., halogen and sulfur content and heating value) for which wa8te must be analyzed before it is incinerated. By including the more detailed informational requirements in the technical sections of the regulations, while leaving the more general requirements in the general facility section of the regulations, the Agency believes that the regulations are specific enough so that owners or operators will know what is expected of them, and yet are flexible enough so that an owner or operator will only be required to conduct analyses which are appropriate for the management methods used. at his facility. Several commenters objected to the minimum annual retesting requirement, stating that it was unnecessary to re- analyze waste when the owner or operator is confident that the properties of the wastes are unchanged. The Agency believes that the properties of most waste streams vary within the course of a year, and therefore most owners or operators should re-analyze waste, at least annually, to determine if such variations will influence the effectiveness of the method used at the facility to manage waste. However, if the owner or operator correctly believes that the properties of the waste which he manages will not change, then to re- analyze the waste would be an — unnecessary expense. Therefore, the minimum annual retesting requirement has been deleted from the revised rules. However, the regulations do require that, at a minimum, waste must be re- analyzed (1) when the owner or operator is notified, or has reason to believe, that the process or operation generating the waste has changed in a way that would lead him to believe that the hazardous property or characteristics of the waste would change, and (2) for off-site facilities, when the results of the verification analysis required in - § § 264.13 and 265.13 indicate that the composition or characteristics of the waste do not match the identity of the waste designated on the accompanying manifest. Objections were also raised regarding the requirement to analyze waste for the four properties specified in proposed § 250.43(h) (i.e. physical appearance, specific gravity, pH, and vapor pressure), because analysis for these properties is not appropriate for all categories of waste. Many commenters also felt that to require owners or operators to sample each truckload of waste for these four properties was unreasonable for multiple trucidoads of waste which have uniform physical and chemical characteristics. The Agency agrees that measuring for the four properties specified in proposed § 250.43(h) may be inappropriate for certain categories of waste and may be unnecessary for multiple truckloads of uniform waste. Therefore, the four properties have been deleted from the waste analysis standards. Instead, the final rules require that owners or operators develop and follow a waste analysis plan which specifies the tests to be used, and the frequency with which these tests will be conducted, to determine the identity of incoming waste managed at the facility. The plan must be prepared and followed during interim status. The Regional Administrator may request the plan at any time after the effective date of these regulations. The Agency also will review the content of the plan when it evaluates the facility’s permit application. Where the Regional Administrator believes that the facility’s waste analysis plan is inadequate, he will require that the plan be modified to include procedures which he believes are appropriate to determine the Identity of Incoming waste to the facility. - hI addition to the procedures used to determine the identity of incoming waste, the final rules also require that the facility’8 waste analysis plan describe: - (1) the parameters for which each waste will be analyzed in the detailed chemical and physical analysis required for each waste managed at the facility; (2) the test methods to be used to test for these parameters; and (3) the sampling methodology which will be used to obtain representative samples of the waste to be analyzed. The Agency believes that the requirement for developing and maintaining a waste analysis plan wifi not only allow owners or operators to tailor their waste analysis procedures to the type of wastes and techniques which the facility uses to manage these wastes, but will also provide the Agency with a review mechanism which will encourage owners or operators to conduct thorough analyses of the wastes which they manage. Compliance with the self- developed waste analysis plah, as with the other plans required in these regulations, is a separate, enforceable, regulatory requirement. EPA is promulgating waste analysis requirements in Part 265, but will accept- comments on their appropriateness as interim status standards because they were not specifically proposed as interim status standards. 4. Security. The purpose of the proposed security standards was to prevent the unknowing or unauthorized entry of people or livestock onto the active portions of facilities. To accomplish this objective, the proposed rules included requirements which specified the height of the fence, the means to control entry at the gate, and the height of the letters on the warning sign which was to be posted at the entrance to the active portion of the facility. However, the proposed rules contained rather flexible variances from the specific requirements for fences and signs. Most of the comments received on the security standards addressed the requirement for a six-foot fence. The majority of the commenters felt that the standard should allow-means other than a six foot fence (or the alternatives specified in the “note” to the standard) to prevent entry onto a facility. Several commenters suggested that the standard be written in terms of a performance standard, and a few commenters noted that the implicit performance standard in the proposed rules, which required the prevention of unauthorized entry onto a facility, should be changed to require the deterrence of unauthorized entry onto a facility, because it is impractical to construct a non-climbable fence. In addition, a number of commenters suggested that facilities should not have to comply with the security requirements If the wastes are sufficiently benign so that people need not be kept away from the site. Furthermore, a few commenters pointed out that the active portion of a facility should not have to be surrounded by a fence if the active portion is located within a facility or plant that meets the security requirements. - In response to these comments, the security standards have been rewritten to include the general performance standard that a facility’s security system must prevent the unknowing entry of people, and minimize the potential for the unauthorized entry of people or livestock onto the activeportions of facilities. The fmal rules contain two conditions for an exemption from the performance standard: (1) if unauthorized or unknowing entry will not result in injury to people or livestook who might enter the facility, and (2) if such entry will not result in injury to the environment (e.g., as a result of ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33181 disturbing the waste or the equipment vithin the active portion). Because these two conditions are rarely concurrently satisfied, the Agency does not expect that many sites will be exempt from the security requirements. To indicate how to comply with the general performance standard, a revision of the proposed fencing requirement has been provided in the final rules. The height of a fence, if used, is not specified, and alternatives to fences are allowed. In addition, the standard has been made more flexible by allowing the use of an around-the- clock surveillance system, instead of the physical barrier (i.e., a fence) specified in the proposed rules, to control entry onto a facility. The Agency believes that a continuous surveillance system can be as effective as a physical barrier to control access to the active porti?rn because, when an unauthorized person approaches this area, facility guards or facility personnel can ensure that the person does not enter the active portion. The Agency agrees that when access to the facility is already controlled by an adequate security system, to erect a fence or other barrier around the active portion would not provide additional protection to human health and the environment. Accordingly, EPA has - clarified the regulations so that an owner or operator can demonstrate that the active portion of his facility complies with the security regulations, based upon the security system of the facility (or the manufacturing operation) within which the active portion is located. In addition, a number of commenters pointed out that the proposed standard, which only required signs to be posted at the gates to the active portion of the facility, could result in inadequate warning to unknowing persons approaching facilities where fences are not used to control access to the facility. For this reason, several commenters suggested that the standard should require that signs be posted in sufficient numbers to be seen from any approach to the active portion of the facility. The Agency agrees that because the security systems (including fences) used to control access to facilities will not be impenetrable, signs should be posted along the periphery of the active portion to warn unknowing people that entering onto the active portion is potentially hazardous. Therefore, EPA-has taken the commenters’ suggestion and has revised the requirement for the placement of the warning signs. Although the Agency received no criticism of the four-inch lettering requirement for signs, the underlying theme of the majority of the comments was that the proposed security -- standards were too specilic;Because the Agency believes that the four-inch lettering requirement may have been too Inflexible, a more performance-oriented provision, which requires that the warning on the sign be legible from at least 7½ meters (25 feet), has been substituted for it in the final rules. This new approach will provide more flexibility. The Agency believes that because the “note” to the proposed standard provided a variance to the requirement for the statement: “Warning— Unauthorized Personnel Keep Out” on the sign, no comments were received on this aspect of the standard. The Agency believes that a variance to the wording requirement should be retained in the final rules for existing signs, because it would be unnecessarily expensive to replace signs at facilities which do not contain the exact wording specified in the final standard, but which nonetheless give adequate warning to unknowing people to stay away. However, to make sure that the new signs posted at hazardous waste facilities are uniform, the Agency believes that they should contain the wording-specified in the standard. Therefore, in the final rules, the variance to the message on the sign only applies to existing signs. In addition, the Agency has substituted the word “danger” for “warning” in the final rules. The reason for this change is that word “danger,” more than “warning,’! indicates the potential for harm.. 5. General Inspection Requirements. § 250.43—8 of the proposed regulation specified seven parts or aspects of a facilit ’ which owners or operators were required to inspect daily for specific signs of deterioration or malfunction. Owners or operators were also required to record observations noted during the inspection in the facility’s operating log. The Agency received many comments concerning the specific listing of required inspection items (i.e., dikes, fences, etc.) and the absolute requirement for doily inspections. Several of the commenters noted that for some of the listed items (for example, fugitive emissions), the required inspections were either not applicable to all facility types, or would be impractical to implement. Others noted that such a list could not include all of the possible items which should be inspected. As for inspection frequency, many of the comments argued that daily inspections are simply unnecessary. They pointed out that, in many cases, the rate of deterioration is so slow (in the corrosion of tanks, and the erosion of dikes, for example) that occasional inspections are sufficient to reveal any problems long before failure occurs. The thrust of these comments was that the specific Items to be inspected and the frequency of inspection should be determined by the owner or operator on a case-by-case basis. The Agency agrees, and has revised the regulations to require the owner or operator to develop and follow his own written inspection schedule. This will be baáed on the facility’s criticial processes, equipment, and structures, and on the potential for failure and the rate of any deterioration processes (corrosion, erosion, etc.) which may lead to failure. Compliance with the plan is a separat , enforceable regulatory requirement. During the permitting process, the Agency will review the inspection schedule for its adequacy in protectiig human health and the environment, for comprehensiveness, and for consistency with inspection schedules for similar facilities. The Agency will also assist the owner or operator in optimizing the efficiency and effectiveness of the schedule based on its experience with similar facilities. During interim status, consultation and review with the Agency will not normally be required. The Agency realizes that not all owners or operators are equally knowledgeable. Therefore, EPA has retained minimum specific inspection requirements, which include some obvious inspection points, and som minimum frequencies for inspecting them. These requirements have been incorpoiated into the regulations for specific facility types (tanks, surface impoundments, etc.) to clarify how they are to be applied to these facilities. The final rules also require the owner or operator to make a record of all inspections, and to keep it on file for - three years. In addition to information on the observations, this recor4 must specify when the inspection was made, who made it, and when any repairs were made. The record can take the form of an inspection checklist; this would combine the recordkeeping with a useful inspection procedure. In any case, the record will help assure the Agency that the owner or operator is in fact conducting inspections, and is making any needed repairs. Additionally, should an environmental or human health incident actually occur, these records will help to reconstruct the events that led to it. and may also provide a valuable resource for any emergency decisions. As one incidental benefit, the record will help management audit the reliability of equipment, the efficiency of - maintenance activities, and the effectiveness of the inspection schedule. ------- 33182 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 6. Personnel Training. The purpose of the proposed training requirements was to reduce the potential for mistakes which might threaten human health or the environment by ensuring that facility personnel acquire expertise in the areas to which they are assigned. The proposed standards included requirements which specified the time by which facility personnel must obtain the training necessary to do their jobs, the records to be maintained at the facility of the training received by its employees, and the minimum frequency with which the initial training received by the employees must be reviewed. In addition, the proposed rules required facility personnel to be familiar with the facility’s contingency plan. Many of the comments received on the proposed rules addressed the format and content of the required training programs. Some commenters suggested that the standards allow in-house training programs and on-the-job training in place of the formal classroom instruction in hazardous waste management required in the proposed rules. Several other commenters requested that the regulations specify the type, length, and intensity of the courses of instruction to be administered to facility personnel. The Agency agrees that formal classroom instruction may not always be the best approach to training, and that supervised on-the-job framing is a valid substitute for, or supplement to, formal instruction. Accordingly, the final training standards reflect the Agency’s acceptance of in-house training programs and on-the-job training as a means of complying with the training requirements. However, the content, schedule, and techniques to be used in the on-the-job training program must be described in the training records maintained at the facility and will be subject to ‘approval during the permitting process. Compliance with the program described in the training records is a separate, enforceable regulatory requirement. Given the variability in waste types, management processes, and employee functions at hazardous waste facilities, the Agency believes that it is neither necessary nor desirable to rigidly specify training courses in regulations. However, the Agency is preparing a training manual which will provide advice on desirable types of instruction for the various jobs carried out at hazardous waste management facilities. Several cominenters ,were concerned that the six-month period for complying with the training requirements may be too short, because there may be a shortage of formal training programs in hazardous waste management. The Agency believes that its acceptance of supervised on-the-job training to achieve compliance with the training requirements will help to offset the problems caused by a possible shortage of formal training programs. Where formal programs are unavailable, a facility can use in-house training programs and supervised on-the-job training to provide the required training. Because the majority of the Phase I standards are non-technical (e.g., the manifest and recordkeeping requirements), the Agency believes that most training can be conducted in- house. When the Phase H standards are promulgated, facility personnel will have another six months from the effective date of the Phase II standards to acquire the expertise needed to comply with the additional standards. Thus, the shortage in formal courses in hazardous waste managment should not cause facility personnel to miss the deadline by which compliance with the training requirements must be achieved. Commenters suggested that the six- month “grace period” for untrained employees should not be extended to employees hired after the effective date of these regulations. Work and training schedules may make that an impractical requirement, but the Agency has decided, for safety reasons, to require that untrained employees work only in supervised positions. A number of commenters were also concerned that the requirement for detailed written job descriptions might lead to union grievances and arbitration. For this reason, the commenters suggested that the standard be revised to allow the job descriptions to be written in a manner similar to descriptions for other similar positions in the same company location or bargaining unit. It was not the Agency’s intent to interfere in labor-management issues. EPA’s only interest in the job descriptions of facility personnel is to enable the Agency to determine if each person is receiving a level training that is commensurate with the person’s duties and responsibilities. Since the Agency believes that the suggested revision of the recordkeeping requirements will not diminish the Regional Administrator’s ability to make this determination, the standards have been revised according to the commenters’ suggestion. Two other standards have now been placed with the training requirements. The first of these standards specifies the length of time the ’facility must keep training records. This requirement was proposed in the section of the regulations dealing with Manifest, Recordkeeping, and Reporting ( 250.43— 5). However, in order to reduce the need to cross-reference within the regulations, the Agency has decided to place all of the recordkeeping standards which deal with training into the section of the regulations on training. Similarly, the elements of the facility’s emergency response procedures with which facility personnel must become familiar have been incorporated into the training requirements. 7. General Requirements for Ignitable, Reactive, or Incompatible Wostes.As discussed earlier, the Agency has added general requirements for handling ignitable, reactive, or incompatible wastes in § 285.17 of the interim status standards. In the Phase II regulations, the Agency plans to amend Part 264 by moving § 284.36 to a new § 264.17(a), and by adopting § 265.17(b) as a new § 264.17(b). Therefore, the Agency will use any comments on § 265.17 for that purpose also. As the present definition of incompatible wastes reveals, the problems posed by incompatible wastes fall into two general areas. The first covers wastes which are incompatible with the materials containing them because they would corrode or otherwise cause the decay of those materials. The standards in the substantive regulations were drawn from the proposed standards for storage generally, tanks, containers, treatment generally, basins, and chemical, physical, and biological treatment facilities, and now are applied to waste piles as well, because they pose similar problems. The Agency has chosen slightly different solutions to these problems for containers, tanks and treatment facilities, and waste piles. These solutions are discussed in the separate sections for these types of equipment or facilities. The second and broadest group of problems is the potential for the creation of harmful reactions or substances during the mixing of incompatible wastes and the treatment of ignitable or reactive wastes. The proposed definition of incompatible wastes, Appendix Ito Subpart D of proposed Part 250, and the Note to proposed § 250.45(c) indicated that a variety of substances and reactions were of concern. The present definition and substantive regulations have been drawn from these proposed regulations with some modifications. The regulations and Appendix V have been coordinated, as suggested in part by one commenter. Several standards have been deleted. The part of the proposed definition concerning the ------- Federal Register I Vol. 45. No. 98 I Monday, May 19, 1980 / Rules and Regulations -33183 ,olatilizaticn of ignitable and toxic hemicals has been partly subsumed &ito the parts covering production of larumable or toxic fumes and gases. As explained elsewhere, further regulation of volatile waste is being postponed. The part of the proposed definition covering shock-sensitive, friction- sensitive, and siTnibpriy unstable substances has been deleted because reactive substances are adequately covered in the sections dealing directly with them, and there are few or no damage incidents resulting from the production of auth substances from non- reactive wastes. The detailed air emission formulas in the Note to proposed § 250.45 c) have been eliminated in response to comments that the OSHA standards employed there were not-geherally appropriate for the circumstances of waste treatment, storage, and disposal facilities. Finally, Appendix I to Subpart D of proposed Part 250 indicated in Groups 2—A and 2—B that toxic wastes were incompatible with flammable or explosive wastes because mixtures of them would release toxic substances in fires or explosions. Na comments were received on this standard, but the Agency is still considering whether and how toxic and ignitable, flammable, or eactive wastes or materials should be 9regated during treatment, storage, or ,.aaposal in order to avoid the release of toxic substances in case of fire or explosion. The problem is compounded by. the fact that some toxic substances are themselves ignitable, flammable, or reactive. This portion of the Appendix (now Appendix V to Part 205) has been deleted for the time being, and the Agency solicits comments on this problem. Many commenters pointed out that incompatible wastes such as acids and bases are frequently mixed so that they will neutralize each other, and that this may be done safely so that violent reactions are avoided. Consequently, the regulations have been modified to allow mixing incompatible wastes if the general standards described below are complied with. in addition, contrary to the contention of one cominenter, materials other than wastes, such as treatment reagents or non-hazardous wastes. may be incompatible with hazardous wastes and are therefore included in the incompatible waste regulations. These requirements have been extended to storage facilities as well as treatment and disposal facilities, because they can experience similar ‘roblems when incompatible wastes are tixed. If facility operators mix incompatible wastes, they must - anticipate the reactions which may occur and the substances which may be formed, and control the mixing so as to avoid or control the reactions and substances produced. The general standards in § 20517 (b) are intended to insure that several undesirable results are avoided when ignitable or reactive wastes are handled or incompatible wastes are mixed. Extreme heat or pressure, fires or explosions, violent reactions, and damage to the structural integrity of the device or facility contsining the waste are clearly undesirable because of the likelthood that they will cause or lead to injury or death of facility personnel, and the spread of toxic wastes into the environment. These standards were uncontroversial. The production of uncontrolled flammable fumes or gases in sufficient quantities to pose the risk of fire or explosion is undesirable for similar reasons. The creation of uncontrolled toxic dusts, mists, fumes, and gases in sufficient quantities to threaten human health is also prohibited, in order to protect both facility personnel and people off-site. The Agency is primarily concerned here with gases such as chlorine, hydrogen sulfide, and hydrogen cyanide, which some mixtures of wastes or waste treatmentprocesses may produce. As explained elsewhere, the Agency need not rely on the Clean Air Act to regulate airborne emissions from hazardous waste facilities. Finally, because the possible undesirable results from the mixing or handling of wastes may be enormously varied, the general regulations prohibit the creation of conditions like the ones mentioned above which threaten human health or the environment. This standard requires owners and operators of facilities to be aware of the possible results of treatment, storage, or disposal of ignitable or reactive wastes, and the commingling of incompatible wastes, to avoid conditions which would pose threats to human health or the environment similar to the ones specifically listed in the regulation. The regulations on ignitable or reactive wastes are typically more restrictive than those on incompatible wastes. While incompatible wastes require attention primarily at the time they are introduced into a facility- or treatm it process, ignitable or reative wastes pose a continuing danger of ignition or reaction, and require continuing protection from conditions which would cause them to ignite or react. This is sometimes practical in containers, tanks, and waste piles. However, since landfills, surface impoundments, and land treatment facilities generally cannot be managed so that this protection is provided, ignitable or reactive wastes may be placed in such facilities only if they are treated before or immediately after placement in the facility so that they are no longer ignitable or reactive. This relaxation of the complete bar in the proposed rule responds to comments indicating that such treatment is not uncommon and should not be prohibited. The regulations require that this treatment meet the same standards applied to the mixing of incompatible wastes. The Agency is currently considering adding another class of incompatible wastes to these regulations. It would declare incompatible those wastes which would solubilize or otherwise mobilize another hazardous waste or constituent in a landfill, land treatment facility, or surface impoundment, and thus increase the likelihood that the mobilized waste or constituent would be leached into ground water. Because the potentia ) scope of this concept is so broad—even water could be considered. incompatible with many wastes—the Agency currently believes that it would be most practical to implement such a regulation by listing only specified pairs of wastes as being incompatible. Those currently under consideration are: (I) PCBs and organic solvents, (2) Organic pesticides and organic solvents, and (3) Metal-containing wastes and acids. The first material in each of these pairs can be substantially mobilized by the second, but may be relatively Immobile in its absence. it therefore seems prudent to dispose of such pairs in separate landfill cells, land treatment areas, or impoundments. The Agency requests comment on this concept of incompatibility, on these and other possible pairs of wastes which might be listed as incompatible under this standard, and on circumstances under which these wastes can safely-be commingled in land disposal facilities. C. Subpart C—Preparedness and Prevention and Subpart D—Contingency Plan and Emei ency Procedures Section 250.43—3 of the proposed rules contained three general types of provisiont (1) Requirements for developing contingency plans for effective action to minimize unanticipated damage from the treatment storage, or disposal of hazardous waste; (2) requirements for preparedness and prevention measures to minimize the need for ever using contingency plans, and (3) requirements for emergency response measures to be ------- 33184 Federal Register I Vol.45, No. 98 I Monday, May19, 1980 / Rules and Regulations taken during and after situations in which a contingency plan is implemented. In the final rules, standards for preparedness and prevention have been made a separate Subpart because: (1) They contain explicit facility requirements (e.g., fire protection equipment, and aisle space) - which are independent of the implementation of a facility contingency plan; (2) it is more logical to discuss preparedness and prevention aspects of facility operations before diicussing planning for and response to - emergencies which may or may not occur; and (3) placement of the three types of standards in the sd me section in the proposed rules tended to be confusing because the requirements for developing and implementing the contingency plan were interspersed with requirements for preparedness and prevention. However, preparedness and prevention, contingency plans, and emergency esponse are all discussed in this section of the preamble because they are closely related, and many of the comments received on these requirements addressed all of them simultaneously. The final Part 264 and 265 Subpart C preparedness and prevention rules are intended to minimize the possibility of and effect of a release, fire, or explosion which could threaten human health or the environment. They require that facilities have, where necessary, internal communications or alarm systems, equipment capable of summoning external emergency assistance from local agencies, fire control equipment, spill control equipment, and decontamination equipment. This equipment, where required, must be routinely tested, and maintained in proper operating condition. Subpart C also requires that employees operating the facility have immediate access to both internal and external communications systems, where these are required. In addition, where needed, aisle space must be maintained to allow the unobstructed movement of emergency equipment to any area of facility operation. Precautions to prevent accidental ignition or reaction of waste are specified. And lastly, facility owners or operators must attempt to make arrangements for local authority to provide emergency support, where this is appropriate. The final Part 264 and 265 Subpart D contingency plan rules are intended to minimize hazards to human health and environment in the event of fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste to air, soil, or surface water. The contingency plan must include: • A description of the planned response to emergencies at the fadlity, • Any arrangements with local and State agencies to provide emergency response support, where needed, • A list of the facility’s emergency coordinators, • A list of the facility’s emergency equipment, and • An evacuation plan, where necessary. Rules for distributing and amending the plan are specified, as is the requirement that a facility emergency coordinator be either present, or on call, whenever the facility isin operatiçn. Provisions for emergency procedures specified in Subpart D of the fihal rules include: • Immediate notification of employees, and local, State, and Federal authorities of any imminent or actual emergencies, • Immediate assessment of possible hazards to the environment and human health outside the facility, • Measures to preclude the spread of fires and explosions to other waste, • Proper management of residues, • Rehabilitation of emergency equipment and notification of authorities before operations are resumed, and • Recordkeeping and reporting to EPA- on the nature and consequences of any incident that requires implementing the contingency plan. Commenters from many organizations submitted numerous comments on the proposed requirements for contingency plans, preparedness, and emergency response. Highlights of these issues are discussed below: 1. Defer Regulations Until Permit Issued. Some commenters suggested that the contingency plan, preparedness, and emergency response requirements should be negotiated when a permit is issued, and thus should not apply to facilities during the interim status period. The Agency sees no reason to delay implementing these requirements until a permit is issued. Most of the requirements are explicit and straightforward, and therefore, do not require negotiation with or interpretation by the Regional Administrator before they can be implemented. Those proposed requirements which might have been interpreted as requiring negoti’ation with EPA, have been rewritten to eliminate - the need for interaction with the Agency during the interim status period. For this reason, some of the final Part 265 rules applicable during interim status are written differently than the corresponding Part 264 rules. 2. Tailor Rules to Circumstances. Many cominenters felt that the proposed contingency plan, preparedness, and emergency response provisions should be restructured to allow requirements to be tailored to particular circumstances. In the same vein, other commenters complained that the proposed provisions were overly restrictive for some types of facilities (e.g., facilities which handled only “low” hazard waste, such as utility boiler fly ash or waste oil). The Agency recognizes that there are different types of facilities handling many different kinds of wastes in widely differing circumstances with respect to climate, proximity to people, etc. In the proposed rules, the “Notes” following certain provisions provided some flexibility to account for these differences. In the final rules, these “Notes” have been incorporated into the regulations. Further, the Agency has expanded the concept of case-by-case determination of appropriate requirements with many revisions throughout the final rules to provide greater flexibility. In addition, requirements specific to particular circumstances (e.g., ignitable and reactive waste) have been clearly identified in the final rules. 3. Protection Inside Versus Outside Facilities. Several commenters questioned whether the proposed contingency plan and emergency response provisions were designed to deal with the potential for damage to human health and the environment both inside and outside hazardous waste facilities. RCRA’s mandate to protect human health and the environment is not limited to dangers occurring outside hazardous waste management facilities. In fact, many of the damage cases cited in the background documents involve death or injury to facility personnel, as well as threats to people outside the facility. The Agency is concerned about the health and safety of facility personnel. The RCRA Section 3002 regulations for waste manifests and waste shipping container labeling and marking, and the Section 3064 waste analysis, training, inspection, and facility design and operation regulations, are designed, among other things, to reduce hazards to facility personnel. In addition, the RCRA contingency and emergency response plans should include steps to respond to both internal and external threats. In designing internal plans to respond to employee health threats, however, respondents ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations - 33185 st recognize that primary ponsibility for regulating workplace ilth and safety rests with the cupational Safety and Health Administration of the Department of Labor. 4. Delete Contingency Plan. Some commenters felt that the provision regarding the proposed contingency plan provision was unnecessary and should be deleted, because the 5 pi 11 Prevention, Control, and Countermeasures (SPCC) plan required by the Clean Water Act would be sufficient to fuffihl contingency planning requirements for hazardous waste management facilities. The Agency disagrees with this comment The universe of facilities which are currently required to have an SPCC plan is not identical to the universe of hazardous waste facilities controlled under RCRA. Further, the proposed rules for RCRA contingency plans are not identical to the SPCC plan requirements, and the SPCC plan is not an adequate substitute for RCRA contingency plan requirements. However, the two plans can be complementary. (See later discussion.) 5.. Ground. Water Contamination. Commenters were concerned that the proposed rules seemed to address only acute emergencies, and argued that the nntingpncy plan should include the iponses to be taken if ground-water ntamination were detected The Agency agrees that the discharge of any hazardous waste, whether sudden or non-sudden, is a potential threat to people orihe environment, and therefore, is of concern to the Agency. However, the Agency has concluded that the ground-water monitoring regulations, rather than the contingency plan regulations, are the appropriate place to deal with contingency planning and response to ground-water contamination incidents. The final ground-water monitoring rules include requirements for evaluating ground- water analyses, and requirements for planning and describing the response required where a potential ground-water problem is identified. 6. Implementation of the Contingency Plan. Several cominenters suggested that the final rules should make it clear that the provisions of the contingency plan need only be implemented in the event of a discharge or release of hazardous waste from the facility which has the potential for da maging human health or the environment It was not the Agency’s intention to require facility owners or operators to invoke their contingency plan when iignifl.cant amounts of hazardous ste are released (e.g., very small sills or a leaking valve). The final rules have been reworded to better reflect the Agency’s original intent 7. Submission of Contingency Plans. The proposed rules required that copies of the contingency plan and any amendments be filed, as soon as they were prepared, with the Regional Administrator, and local agencies that might be called upon to provide emergency services. Also, the contingency plan was to be submitted to the Regional Administrator as part of the facility permit application. Many commenters argued that facility owners or operators should be required to maintain contingency plans on file, but not be required to submit plans and amendments to the Regional Administrator or to local emergency or health agencies. The commenters offered the following reasons to support their positiomr SPCC plans are required to be available for inspection, but are not required to be submitted; RCRA plan requirements should be consistent with this. Contingency plans are amended frequently; it is burdensome to everyone to file amended plans. Local authorities may refuse to accept plans, therefore, the rule is unenforceable. Plans submitted to local authorities. are relegated to obscure files; therefore, the rule is useless. Similarly, some commenters felt that contingency plans should be filed with local authorities only when a release of hazardous waste would require their response or endanger those under their protection, or when a facility handles “extremely” hazardous waste. The Agency believes that the contingency plan requirement is an important part of the overall RCRA Section 3004 standards, and that EPA should ensure that each facility has an acceptable plan. Because the Agency accomplishes this by requiring that a contingency plan be: Prepared by each facility. Amended as necessary, Made available to EPA inspectors during on-site reviews, or to the Regional Administrator when requested, and - Submitted to EPA as part of the permit application, the Agency agrees that contingency plans and revisions need not be submitted routinely to EPA. This approach is consistent with SPCC plan requirements, which are being revised to require that plans be submitted to EPA only upon request of the Regional Administrator. However, the Agency disagrees with the commenter’s arguments regarding - the need for local authorities to have an up-to-date facility contingency plan. The final rules require thai the contingency plan must be amended in the following cases: If there are revisions to applicable regulations (interim status); if there are revisions to the facility permit (permitted status): If the plan fails in an emergency; If there are changes in the facility design, construction, operation. maintenance, or other circumstances that materially increase the potential for fires, explosions, or releases of hazardous waste or change the response necessary in an emergency; If there are changes in the person(s} qualified to act as facility emergency coordinator, If there are changes in the emergency equipment at the facility. The Agency believes that all these reasons for amending the plan are important, and that local authorities, where appropriate, have a need to know about these changes. The first four cases could involve significant amendments to a facility ’s contlngepcy plan, but such amendments should occur infrequently. The last two cases may occur more often, but the change and notification requirements are not burdensome. The proposed rule required facility owners or operators to file contingency plans with local authorities. It did not require these authorities to accept them. The Agency believes that most local authorities are responsible and competent, and that they rarely will reject facility plans or relegate them to obscure files. Nevertheless, if they do refuse to accept a facility’s plan. the facility owner or operator will have complied with the rule if he can document in the operating record that he submitted a contingency plan to local authorities. The proposed rules used the phrase - . who may be called upon to provide emergency serv 1 ces.” This phrase means that a contingency plan need not be filed with local authorities if the nature of the waste handled at a facility, or if the internal emergency response capabilities at the facility, are such that local authorities will not be called upon to provide services either to the facility or to people outside the facility. This provision has been retained in the final rules. 8. Confidential Information. Several commenters claimed that facility contingency plans frequently contain confidential information which companies would insist not be maintained in public files. Therefore, the commenters felt contingency plans should not be submitted to EPA (or by extension, to local authorities), but ------- ‘33186 Federal Register I Vol. 45, No. 98 I Monday; May 19, 1980 / Rules and Regulations rather maintained on the facility premises open to EPA inspection. The contingency plan must be submitted to EPA with Part B of the permit application under 40 CFR Part 122, and will become a condition of any permit issued. The permit regulations state that permit-related information, asserted to be confidential at the time it is submitted, will be disclosed by EPA only in accordance with the procedures in 40 CFR Part 2. Because the contingency plan will be part of the permit, portions of contingency plans asserted to be confidential will be - available to the public only in accordance with 40 CFR Part 2. As stated earlier, the Agency believes that where appropriate to protect human health and the environment in emergencies, it is vital that local authorities have up-to-date facility contingency plans in their possession. A facility’s contingency plan need not contain details of proprietary processes or operations. For this reason, the Agency does not believe that contingency plans often, if ever, need to be confidential. 9. Insufficient Time for Plan Submission. A few commenters stated that: “Requiring the submittal of an SPCC plan as part of a IRCR.A1 permit - application is unreasonable since the development of an adequate and effective SPCC plan may require a significantly greater period of time than available between promulgation of the [ RCRA] regulations and submissions of a [ RCRAJ permit application.” As described in the preamble discussion entitled “Interim Status Standards”, to qualify for interim status, facilities must submit the Part A permit application to EPA within six months after promulgation of the RCRA Section 3001 regulations. They must submit Part B of the permit application upon request at a later date, The facility contingency plan must be submitted with Part B, but is not required for Part A. Further, as noted above, the RCRA contingency plan may be merged with an existing SPCC plan, but the final rule does not require that an SPCC plan be submitted as part of a RCRA permit application. Moreover, the Agency believes that an acceptable RCRA facility contingency plan can be prepared within the six-month period between promulgation of the RCRA Section 3001 regulations and the effective date of these regulations. Consequently, each facility owner or operator is required to have a contingency plan on the effective date of these regulations, and to submit it to appropriate local authorities, even though it is not required to be submitted to EPA until a later date, with Part B of the permit application. 10. Emergency Coordinator. Many commenters felt it was unnecessary and burdensome for an emergency coordinator to be present at all times when a facility is in operation, as the proposed rules required. Some commenters pointed out that “in operation” can be interpreted to include passive or automated situations, such as storage in tanks or surface impoundments, but that, the possibility that an emergency will occur during these situations is small. These commenters suggested that the proposed rule should include a variance where emergepcy situations are unlikely to develop, or that the rule be modified to allow an emergency coordinator to be on call, rather than present on-site. EPA agrees that there are many situations where the facility emergency coordinator’s presence on-site Is not essential. However, the Agency believes an emergency coordinator should at least be available (on call) to respond immediately to emergencies at the facility, initially by giving phone instructions to local authorities and facility personnel, but also by being able to be on-the-scene within a short time.. This arrangement should impose no• undue burden. Several commenters felt that no one person could be cognizant of, and responsible for, all the duties of the emergency coordinator specified in the proposed rule. They suggested the rule - be modified to allow an “emergency coordination team” under the supervision of the facility’s management. The Agency recognizes that the emergency coordinator’s duties are many and varied, and fully expects that many people with different disciplines will be required to.assist the emergency coordinator in fulfilling these duties. However, based on analysis of past emergencies, the Agency feels strongly that there must be a single person in charge during an emergency with the responsibility and necessary authority to direct response measures. A “team” - approach dilutes responsibility and authority, and can lead to divisiveness or confusion under stress. Consequently, the Agency disagrees with these last comments and has retained the proposed approach in the final rule. However, the final rule does not preclude the use of a response team, as long as one person has central responsibility over it. 11. Resuming Operations After an Emergency. The proposed rules required the facility’s emergency coordinator to prohibit the facility from accepting any waste which was incompatible with material released during an emergency until clean-up procedures were completed, emergency equipment was restored to pre-accident condition, and the affected area was declared safe by EPA, State, or local officials. One commenter felt that the decision that the facility could safely resume operations should be the responsibility of the facility emergency coordinator, rather than EPA or other government officials. The Agency agrees that it would be unreasonable to require a formal declaration by government officials that a facility is safe to operate before allowing the facility to accept potentially incompatible wastes. It is quite possible that a release, fire, or explosion could occur in one part of a facility without affecting the safety of operations in other parts of the facility. Thus, it would be unnecessary to keep the whole facility from accepting a waste just because the waste may be incompatible with the material released during an emergency in one limited part of the facility. However, EPA, State and local officials have a responsibility to ensure that human health and the environment are protected. This is particularly true where a facility has had a release, fire, or explosion of sufficient magnitude to invoke the facility’s contingency plan. The Agency believes that the owner or operator should be required to notify EPA and appropriate State and local authorities that cleanup procedures following an emergency have been completed, before the part(s) of the facility affected by the emergency begin to accept potentially incompatible waste. This notification will allow EPA, State, and local authorities to be informed about the current status of facility operations. D. Subpart E—Manifest System. - Recordkeeping, and Reporting The principal purpose of the manifest system, established in the Part 262 regulations, is to track hazardous waste - from its origin with the generator, through its trip with the transporter, to its disposition at a treatment, storage, or disposal facility. The regulations in Subpart E of Parts 264 and 265 specify requirements concerning the return of the manifest from the facility owner or operator to the generator. These requirements form the last step in the information loop initiated in the Part 282 manifest requirements for generators, Subpart E of Parts 264 and 265 also includes requirements for recordkeeping and reporting. One purpose of these requirements is to ensure that the regulated community complies with the ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules’ and Regulations 33187 szardous waste regulations, by oviding the enforcement agency with !ifficient information to monitor facility •perations. A second purpose of the records required in Subpart E is to ensure prompt, proper, and effective response to emergencies, by providing facility owners and operators, and local authorities, with information which allows them to accurately assess any hazard posed to human health and the environment and to respond accordingly. The Agency received numerous comments from many sources on the proposed rules for manifests, recordkeeping, and reporting. Some comments raised general issues applicable to the entire Subpart; others were specific to the requirements for either manifest. recordkeeping. or reporting. This preamble discusses the general issues first, followed by a section-by-section analysis of the comments specific to the three types (i.e.. manifest, recordkeeping, or reporting) of Subpart E standards. 1. Genera/Issues, a. Burden. Many commenters felt that the proposed manifest, recordkeeping. and reporting requirements were excessive, - particularly for small firms. They stated that the requirements were unnecessary ‘nd impractical—particularly in quiring the various reports and gnatures of treatment, storage, and disposal operators—and did not contribute substantially to human health and environmental protection. Other commenters were concerned that the paperwork associated with the requirements would be duplicative, and require additional personnel in government and industry to process. The Agency does not agree that the proposed manifest, recordkeeping, and reporting requirements imposed an unnecessary burden on the waste management community. Numerous past documented damage cases have resulted from improper-waste disposal in part because wastes were not tracked, and little liability or responsiblity was assigned or accepted by the waste generators, transporters, or disposers. These requirements are designed to minimize the likeithood of incidents like these occurring again. To this end, the Agency believes that the various records, reports, and signatures of treaters, storers. and disposers are necessary to allow EPA enforcement officials to assign responsibility, and ultimately liability, in cases where problems arise. The Agency does not agree that the sulting paperwork will be duplicative. ie Agency has made every effort to ilminate any duplication, and has documented these attempts in the Reports Impact Analysis, which was developed in response to the President’s campaign to reduce paperwork. The total RCRA interim status administrative cost, including the cost of complying with notification, manifest, recordkeeping, and reporting requirements as well as other requirements such as inspections and preparing closure plans, is estimated at about 36 million dollars initially and 40 million dollars annually thereafter. Considering that an estimated 72,000 installations will be regulated under this program, the Agency does not believe that, for the waste management community in general, the cost of this aspect of the program will be excessive. b. Class of Hazard. A few commenters supported the reporting of detailed information on “truly” hazardous wastes, but added that, for other wastes, this information is not needed and would not be of value. The-Agency agrees with the concept that information needs could vary with the class or degree of hazard of a waste. As noted earlier in this preamble, EPA is developing a class of hazard system for the technical waste management requirements under the Section 3004 regulations. The Agency believes, however, the final manifest, - recordkeeping. and reporting requirements are the minimum necessary for any hazardous waste, regardless of class of hazard. The Agency anticipates the possibility of adding different recordkeeping and reporting requirements in the future for the classes of highest hazard identified In the new system. 2. Manifest System. The final rules require owners oroperators of facilities which receive waste from off-site to sign, date, and return a copy of the manifest to the transporter immediately, and to the generator within 30 days of receiving the waste. Owners or operators must also note significant discrepancies in the type or quantity of waste received, and notify EPA if discrepancies cannot be resolved. This section of the preamble discusses the major comments received on the proposed § 250.43—5(a) manifest requirements. a. Manifest Copies. The Agency proposed a 30-day period for the facility owner or operator to return the manifest to the generator in order to allow the facility owner or operator to return the manifests at the same time as he sends monthly bills to generators, thus reducing paperwork and postage costs. A number of commenters supported the proposed 30-day time period allowed for transmitting the manifest a s reasonable, and argued that it should be retained to (1) allow an orderly return of manifests, (2) greatly reduce paperwork and the chances of losing one of the manifests, and (3) allow the generator to prepare his reports based on receipt of submittals at expected times rather than on a continuous stream of manifests received at varying intervals. A number of other commenters requested that the time period be shortened to one day, or one or two weeks, to (1) allow more effective and timely follow-up on waste shipments, (2) give generators more time to complete exception reports, and (3) avoid losing documents. However, some commenters argued against requiring owners or operators to immediately return manifests, claiming that this was unreasonable because time would be needed to check out any discrepancies, and record data from the manifest. These commenters felt a shorter return period would not provide any enforcement benefit, nor prevent illegal dumping. Still other commenters recommended that the period be extended to allow more time for recording data from each - manifest for reporting. After careful review of these comments, the Agency, has decided to retain the proposed 30-day time period allowed for returning manifests to the generator. The Agency believes that a 30-day time period is reasonable, and does not preclude returning manifests within a shorter time period should a generator insist upon it. The final Part 262 rules require that, if the generator does not receive a properly signed manifest within 45 days of the waste’s shipment to a hazardous waste facility, he must make an exception report to EPA. One commenter suggested that owners or operators should return manifests to the permitting agency, rather than to the generator, to eLlininate the need for the generator to make exception reports. Another commenter argued that the regulation should be flexible enough to allow manifests to be returned to either an authorized State agency or the generator, in order to allow States to become aware of exceptions earlier. A related comment argued that States with programs that are adequate to identify missing shipments should have the authority not to require the manifest be returned to the generator. Another commenter recommended that efforts be made to reduce the number of copies of manifests that must be distributed and retained in order to minimize costs and space requirements. The Agency strongly believes that the waste generator, rather than EPA. ------- 33188 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations should be responsible for ensuring that his hazardous waste actually arrives at the intended facility. The manifest routing system is designed to provide the generator with the feedback information necessary to make that determination. While this system may require mare copies of manifests to be distributed and maintained than would be the case in other systems, it will result in more timely and effective discovery of errant shipments and allow prompt enforcement actions. The rationale for the EPA manifest system is discussed in nIore detail in the Section 3002 Background Document. b. Manifest Discrepancies. Proposed § 250.43-.5(a)(4) required that owners or operators notify the Regional Administrator immediately when there is a discrepancy between the ty ,e or quantity of waste designated on the manifest, and the type or quantity of waste actually received at the facility. Several commenters felt that the proposed rule would result in the Agency being inundated with unnecessary paperwork, resulting from facilities reporting inadvertent or unimportant errors. They suggested that the Agency specify allowable deviations which would not require submitting a discrepancy report to the Regional Administrator. The Agency agrees that it is reasonable to set limits which would not routinely trigger discrepancy findings, but ivhich also do not allow excessive amounts of hazardous waste to be unaccounted for. - Many factors entered into the decision regarding the limits to set on the variation in amounts of waste which would trigger a discrepancy notation and reporL Because of the limits on the sensitivity and calibration of weighing scales, as well as possible variations in volume and density measurements, it would seem reasonable to allow. relatively large errors for bulk shipments, such as 5 to 10 percent. Further, the Agency does not wish to be swamped with discrepancy reports as a consequence of setting the discrepancy limits too tightly. Consequently, for the final rule, the Agency has selected an allowable discrepancy limit of 10 percent in weight of the manifested waste amount for bulk shipments. This limit, however, does not apply to batch shipments. A discrepancy of one drum in a shipment is sufficient cause for the facility owner or operator to start follow-up procedures in the final rules. The Agency decided to apply a different limit to batch shipments—even though the Agency recognizes that the amounts of waste involved can vary considerably—because such discrepancies can be detected by a simple count. Another kind of possible discrepancy between the waste manifest and the actual shipment is a difference in the chemical or physical nature of the waste. The Agency’s intention in this respect is to have facilities flag obvious differences in waste type (such as waste solvents received instead of thewaste’ acids listed on the manifest), as opposed to more subtle changes, such as part- per-million variations in the concentrations of heavy metals within a sludge. The Agency wishes to ensure that a facility is properly equipped to handle the wastes it receives, and is not subject to surprises in waste type introduced by mistake or on purposi by waste generators or transporters. The Subpart B requirements for waste sampling and analysis should, in most cases, ensure that facilities discover obvious differences in waste type. - The Agency believes that a distinction should be made between discov-erihg a discrepancy and reporting the discrepancy. The Agency believes that the facility owner’s or operator’s logical and reasonable response, upon discovering a discrepancy in waste amount or type is for him to contact the waste generator, and the transporter if necessary, and try to resolve the discrepancy. Therefore, the final rules now specify that discrepancies should be reported to EPA only if they cannot be resolved satisfactorily. By so doing, the number of discrepancy reports can be reduced, and the reports submitted to the Agency will focus on truly- significant discrepancies. Several comnienters felt that the proposed requirement for immediate discrepancy reporting was too stringent. They asked that a time limit be set to report discrepancies, because more time might be needed to determine that a discrepancy in fact exists. Some commenters suggested that a time limit of 10 working days would make the system more efficient. Other commenters suggested that a more practical requirement would be 30 days from receipt of the shipment. The Agency agrees with the cominenters that the regulations should specify a time frame for reporting discrepancies to the Regional Administrator. All discrepancies should be discovered soon after the waste arrives at the disposal facility. Discrepancies in amount should be found at the weighing station or waste receiving area before the facility owner or operator signs the incoming manifest. Discrepancies in type can be discovered by inspecting the waste, in some cases, or by sampling and analyzing the waste, which usually takes a few hours. The Agency expects that the facility’ owner or operator will attempt to reconcile most potentially reportable discrepancies through telephone conversations with the waste generator or transporter. It should be possible to check records, etc., and provide feedback in a matter of days, even including mailing time. Consequently, the Agency believes that it is possible to discover and reconcile discrepancies within 15 days of receiving the waste at the disposal facility. The final rules, therefore, specify that within 15 days after receiving the waste, unresolved significant discrepancies and attempts to reconcile them must be reported in a letter to the Regional Administrator, with a copy of the manifest at issue. A commenter suggested that if there are discrepancies in the manifest, the hazardous waste should not be accepted until the generator or transporter reconciles the discrepancies. The Agency agrees in principle that significant discrepancies in the manifest should be rec ciled between the generator or transporter and the disposer. However, the Agency disagrees with the suggestion that the Agency require that the waste not be accepted by the disposer. In the Agency’s view, it is more protective of human health and the environment for wastes to be accepted by a responsible disposer, and properly managed while reconciliation is attempted, rather than for the waste to be rejected with the possibility that it may then be improperly disposed elsewhere. Consequently, the suggestion has not been adopted in the final rule. However, the disposer is not obligated by these regulations to accept the shipment if there is a significant discrepancy in quantity or type. c. Manifest Retention. Proposed § 250.43—5(b)(6) required the owner or operator of a facihty accepting deliveries of hazardous waste from off- site sources for treatment, storage, or disposal, to retain for three years a copy of each manifest or delivery document, as certified by the generator, - transporter, and owner or operator of the facility. This rule has been moved from the recordkeeping section to the manifest section of the final rules in order to consolidate all manifest-related requirements in one location within the rules. One coinmenter stated that all facilities accepting waste should retain all manifests for the duration of the facility’s operation, rather than for only three years. The commenter argued that problems at Love Canal surfaced 25 ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33189 ear8 after the last recorded use of the ulnp, and that three years is too short a eriod for recordkeeping, considering in longevity of many hazardous . ulaterials and their potential threat to human health and the environment. The Agency agrees that records of all hazardous wastes handled at a facility should be kept until facility closure. However, the Agency does not agree that all hazardous waste manifests need be kept on file for that long a period. The Agency anticipates both short- range and long-range uses for hazardous waste records. Retaining manifests for a three-year period is sufficient for the majority of enforcement cases involving generation and transportation of hazardous waste, which will likely be discovered and acted upon within that period. Thus, the Agency has specified a three-year retention period for manifests in the rules for generators (Section 3002) and transporters (Section 3003), as well as in these rules for facility owners or operators. For longer-range uses, such as responding to Love Canal-type situations, the facility recordkeeping rules require owner or operators to retain records (but not necessarily manifests) of all hazardous waste handled at the facility until facility closure. However, that requirement allows the owner or operator the jexibility to design a recordkeeping ystem suitable to the specific needs of ns operation. Larger facilities may use automatic data processing systems. Smaller facilities may choose to retain manifests as the basis for recordkeeping. In addition, the Agency will receive and retain reports which summarize the waste transported to each facility. These reports will contain a description of the waste, the quantity of the waste, and the numerical identifier of the generator or transporter. In this way, the Agency will be able to review and summarize the data on the annual reports for a particular facility, should any emergency or slow release problem arise at the facility after the manifests have been destroyed. 3. Record keeping. The final rules require facility owners or operators to keep records of the typeand quantity of each hazardous waste received and how this waste is treated, stored, or disposed. Also, records are to be kept on the location of waste, waste analyses, inspections, personnel training, monitoring results, incidents that require implementing the facility contingency plan, and cost estimates for closure and post-closure care. This section of the reamble discusses the major comments ceived on the proposed § 250.43—5(b) cordkeeping requirements. -a. Congressional Intent. A commenter claimed that the proposed recordkeeping requirements were contrary to Congressional intent because manifests are not required for on-site diposal of hazardous waste, yet the information required to be kept by the proposed regulatIon was substantially identical to the information on a manifest. The Agency disagrees that recordkeeping at on-site facilities is contrary to Congressional intent. Section 3004(1) of RCRA which mandates recordkeeping at hazardous waste facilities, makes no distinction between on-site and off-site facilities. The manifest is primarily a waste transport tracking and control - document. Recordkeeping requirements for facilities are independent of the manifest and serve different purposes. The core information which appears on the manifest, e.g., origin, quantity, and type of waste, is also necessary for recordkeeping purposes. b. Operating Record. A commenter suggested that the proposed term “operating log” be changed to the term “operating record” to allow the use of automatic data processing systems. The Agency agrees that the use of an ADP system is consistent with the recordkeeping system flexibility intended by the proposed regulations. Further, the large area of some facilities, and the variety of functions performed at some facilities, make it very unlikely that all required information would be recorded in one operating log at only one location. In writing the proposed rules the Agency assumed a number of logs, or records, would be maintained at a site. All such records at a facility taken together would then constitute the facility’s operating log. The term “operating record” more accurately reflects the Agency’s intentions and expected commercial practice, than does the term “operating log.” The Agency has therefore changed all references in the final regulations from “log” to “record.” c. Warrantless Inspections. A conamenter, relying on Marshall V. Barlow’s, Inc., 413 U.S. 266 (1978), suggested that the proposed requirement that the operating record be open to any duly designated employee or agent of the Agency authorized warrantless - administrative inspections without the consent of facility’s owner or operator. EPA’s information-gathering activities under RCRA Section 3007 are subject to the Fourth Amendment’s protection against unreasonable searches as enuniciated by the Supreme Court in Marshall V. Barlow’s, Inc., supra. It should be noted that the Supreme Court in Barlow’s, quoting Aim eida-Sanchez V. United States (413 U.S. 266, 271), emphasized that: A central difference between those cases [ Involving-warrantless searches of pervasively regulated industriesj and this one ‘that businessmen engaged in such Federally Licensed and regulated enterprises accept the burdens as well as the benefits of their trade whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated Industry in effect consents to the restrictions placed on him. EPA’s exercise of its Section 3007 authority will be conducted in a manner consistent with the decision. d. Nomenclature for Waste Information. One commenter, complained that proposed § 250.43— 5(b)(2)(i)(A), which required using DOT or EPA waste descriptions in the operating record, was confusing. The Agency allowed the use of DOT, as well as EPA nomenclature, to describe waste on the proposed operating record, because the manifest, which contains much of the information needed to fill in the record, describes waste using DOT nomenclature. The Agency thought that providing the flexibility of using either the Agency’s or DOT’s terminology in the operating record, would be the most cost-effectiv and least burdensome method for recording waste management information. In retrospect, the Agency now believes this was not the best approach. The proposed Section 3004 rules for recordkeeping applied to both on-site and off-site facilities, although separate rules for on-site facility reporting were contained in the proposed Section 3002 rules. On-site facilities do not use manifests, and thus recordkeeping based on DOT nomenclature is not appropriate for these facilities. Therefore, to simplify the rules, and to avoid confusion between on-site and off-site facility recordkeeping requirements, the Agency has decided to use EPA nomenclature for all facility recordkeeping and reporting. 4. Reporting. The final rules require facility owners or operators to file an annual report summarizing the type and quantity of each hazardous waste received, and how this waste is treated, stored, or disposed of at the facility. In addition, owners or operators are required to make reports to the EPA Regional Adminstrator within 15 days after wastes are received without a manifest; incidents such as fires, explosions, and releases; and problems detected via ground water monitoring. Reporting requirements for facility owners or operators that generate and ------- 33190 Federal Register I Vol. 45. No. 98 / Monday, May 19, 1980 / Rules and Regulations dispose of their waste at the same location (i.e., on-site disposers) were specified in the proposed Section 3002 rules. Because these rules were nearly identical to those specified in the proposed Section 3004 reporting requirements, the Agency has consolidated the reporting requirements for both on-site and off-site facilities in these final Section 3004 rules. This section of the preamble discusses the major comments received on the proposed § 250.43—5(c) reporting requirements. a. Joint Filing of Reports. Commenters suggested that firms with more than one site should be allowed to submit reports for all sites. Another coinmenter felt the regulations should allow for an assumption of duties contract between the generator and the facility owner or operator whereby legal responsibility for complying with the generator reporting requirements can be allocated to the owner or operator. If a corporate headquarters maintains the records for the va ous facilities It controls, both the proposed and final rules allow the firm’s headquarters to submit reports for each of its facilities. - The Agency cannot prohibit owners or operators from assuming responsibility for the generator’s reporting if they choose to do so. Contract law provides the mechanism for owners or operators to assume these responsibilities. If, however, the generator’s contracted rlaitig.g gr nnt ri rfnr ri rl fh oDri .r tn, nThwnmwr )nrmnarwnwc complying with the RCRA reporting requirements. b. Submission of the Annual Report. The proposed rules required that the facility’s annual report be sent to the Regional Administrator within four weeks after the closing date of the reporting year. Some commenters felt that this turnaround time was too short because: (a) Most large firms will require more than four weeks to prepare the annual report; (b) The paperwork burden of the report is so great that the facility will have to stop operations in order to complete the report if the required turnaround time is only 30 days; and (c) Four weeks does not allow sufficient time for recent manifests to be returned. The Agency agrees that it may take more than 30 days to compile the information needed to complete the facility annual report. The owners or operators of both on-site and off-site facilities may be generators of hazardous waste sent elsewhere, as well as disposers of hazardous waste. To allow waste generators sufficient time to collect all manifests in order to file their annual report, the final Section 3002 rules allow 60 days, rather than 30 days. from the end of the calendar year to file the annual report.:In order to be consistent with the reporting requirements for waste generators, and to avoid unnecessary confusion by specifying separate deadlines for generators and facilities, the deadline for submitting the annual report for all waste managment facilities has also been extended to 60 days. c. Certification Statement. The proposed rules required that facility owners or operators sign ouT the annual report form a statement which certified that the infQrmation on the form was true, accurate, and complete. Several commenters objected to the proposed wording of the certification statement on the report form. They suggested that the phrase “to the best of my knowledge” be inserted, and the word “personal” be deleted, from the certification statement because: (a) The person signing the certification may not have compiled the actual information reported, and thus, will not have personal knowledge of each of the many pieces of information reported, and (b) The proposed wording of the statement places the individual who signs the report in the position of being criminally liable for errors beyond his control. In many instances, an error h m , ,,L ,, ,,.,i. 1 4 s, ..o was a information. These commenters also felt that the sentence “I am aware that there are significant penalties for submitting false information, Including the possibility of fine and imprisonment.” should be deleted from the statement. They claimed that the sentence was unnecessary, because it is evident that anyone who knowingly submits a false report to the Federal government is subject to significant penalties. The Agency agrees that the certification statement should reflect, to the extent possible, the signer’s personal knowledge of the truth, accuracy, and completeness of the submission. The owner or operator or his authorized representative may not have firsthand knowledge of the truth, accuacy, and completeness of the information submitted. Accordingly, the Agency has changed the certification statement on the annual report to require the owner or operator or his authorized representative to state that “based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete.” This formulation, adopted from EPA’s 1 PDES regulations, recognizes both the limits of the signer personal knowledge and the Agency’s need for accurate and complete information. It allows the owner or operator to respond on the basis of his belief, but sets forth precisely what the basis of that belief must be. The Agency disagrees with a commenter’s suggestion that EPA delete from the certification statement: “I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.” The Agency included this sentence in the statement to impress upon the signer the necessity for submitting complete and accurate information. The Agency believes that some owners or operators may not realize that the knowing submission of false information to EPA may subject the signer to significant penalties. Therefore, the sentence has been retained in the certification statement in the final rules. d. Unmanifested Waste Report. The proposed rules required owners or operators to file a quarterly report to the Regional Administrator describing hazardous waste received at the facility not accompanied by a manifest, unless the waste was not required to be accompaned by a manifest because of the exclusions provided in the Section 3002 rules. Some commenters felt the unmanifested waste reporting requirement should be deleted because it was burdensome, unnecessary, and - submitted so infrequently as to make the information of little or no value to the Agency. The Agency disagrees that the information contained in the report is useless. Because of the uncertainty associated with unmanifested hazardous waste, the Agency wants to know as much as it can about the waste, as soon as possible. Prompt submission of the details regarding unmanifested waste will enable the Agency to ensure that the facility is managing the waste (with which the facility may have limited management experience) in an appropriate manper. It will also allow the Agency to dEtect any suspicious patterns of unusually high incidences of jinmanifested waste in particular areas. However, the Agency does agree that the reports will be more useful for enforcement purposes if they are submitted soon after the unxnanifes ted waste is received. Therefore, in the final rules, the report is required to be returned to the Agency within 15 days o the date the waste is received at the facility. The Agency does not believe ------- Federal Register - / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33191 hat requiring a 15-day turn-around time ir these reports will be burdensome. ftis is because it is illegal to transport iazardous waste without a manifest, and thus, the incidence of unmanifested waste arriving at a facility—and the attendant need to fill out a report for these wastes—should be infrequent. Small quantities of hazardous waste are excluded from regulation under this Part and do not require a manifest. Where a facility receives unmsnifested hazardous wastes, it may be difficult for the fscility owner or operator to determine whether sn unmanifested waste report should be flied. In such cases, the Agency suggests that the owner or operator obtain from each generator a certification that the waste qualifies for exclusion. Otherwise, the owner or operator should file an umnanifested waste report for the hszardous waste movement. E. Subpart F—Ground- Water Monitoring The Agency received many comments on the ground-water and leachate monitoring portions of the proposed regulation. Based on these comments the Agency has made substantial changes in these interim status regulations. In particular the regulations have been changed to require ground-water !nonitoring at surface impoundments, landfills,tnd land treatment facilities. The proposed interim status regulation required ground-water monitoring only at those surface impoundments and landfills where a ground-water monitoring system was already in place. EPA has decided, therefore, to issue this Subpart as “interim final” to provide an opportunity for further public comment on this portion of the regulation. The proposed regulation required leachate monitoring in addition to ground-water monitoring at landfills and surface impoundments. Such a system was to collect leachate samples in the zone of aeration between the water table and the primary liner or natural soil barrier of the disposal facility. Variances were allowed for owners or operators who could demonstrate that an alternative leschate monitoring technique would detect leaks as effectively as the prescribed system. Many commenters raised objections to the leachate monitoring requirement. srguing that It was expensive, redundant and technically infeasible. Some commenters suggested thst leachate monitoring be used in lieu of ground- water monitoring or that the Regional Administrator hsve the option to waive eachate monitoring [ or specific facility locations or designs. The most frequently mentioned comment was that It was virtually impossible to install leachate monitoring systems at existing landfills and surface impoundments. While EPA still believes that leachate monitoring can be an effective and useful detection device in addition to ground-water monitoring, the Agency has decided not to require leachste monitoring during the interim status period. This decision is based on the technical problems associated with such s system at landfills and surface impoundments. Monitoring of leachate in the aeration zone has not been widely used to date. EPA Is aware of research investigations on the use of lysimeters and other techniques to monitor leachate, but is not aware of any applications of aeration zone monitoring beneath a full-sized disposal facility to determine whether the facility is leaking. Available leachate monitoring technology generally involves the placement of probes (lysimeters) beneath the disposal fscility. Since each probe is not generally capable of monitoring a large area, many of them would have to be placed under a facility in order to detect a localized flaw in the landfill design. It may not be possible to place such devices below an existing landfill or surface impoundment without completely removing the waste and re- designing the facility. Moreover, once such system is in place, the probes tend to fail over time due to deterioration or plugging. It is difficult to determine when such a failure occurs and, if discovered, the damage is generally irreparsble. Under these circumstances EPA does not believe that leachate monitoring should be a general requirement for landfills and surface impoundments during interim status. The Agency will continue to examine the appropriateness of leachate monitoring at new landfills and surface impoundments. Depending upon the results of these studies, the Agency may include leachate monitoring requirements in the Phase II or Phase Ill regulations. At land treatment facilities, however, soil pore water monitonng (the equivalent of leachate monitoring] is feasible, even at existing facilities. Such a system can provide valuable information on the effectiveness of the land treatment processes occurring in the soil. However, if is no substitute for ground-water monitoring for determining actual contamination of ground water. This requirement is discussed in more detail in the “Land Treatment” portion of this Preamble. EPA believes that a reliance on ground-water monitoring, instead of leachate monitoring, at landfills and surface impoundments will adequstely protect human health and the environment. As will be described later, the monitoring system required for all such facilities relies on testing for indicator parameters at-the edge of the waste management area. Such a scheme should give the owner or operator. as well as EPA. a relatively prompt indication of any leakage from the facility into ground water. The following is s discussion of the specific elements of the interim status ground-water monitoring requirements: 1. Applicability. The proposed regulations specified a minimum ground- water monitoring system, capable of detecting and identifying hazardous waste or its constituents if they entered an underlying aquifer in sufficient qusntities to cause a “significant” change in ground-water quality. The proposed regulation contained a variance to the effect that a ground- water monitoring system would not be required, or a lesser degree of ground- water monitoring could be used, if the owner or operator could demonstrate, at the time a permit was issued, that geologic and hydrologic conditions underlying the facility indicated no potential for discharge to ground water. Some commenters argued that the current state of knowledge about / ground-water monitoring is too limited to serve as a.basis for regulation. The majority of commenters discussing this section, however, focused on the variance provision, suggesting that it allow consideration of a variety of factors. These included the existing suitability of the aquifer as an underground source of drinldng water. waste characteristics, expense of monitoring and facility design. Some commenters suggested relaxing the variance by changing “no potential” to “low potential”. Some thought monitoring should be required only over an underground source of drinking water. Other commenters suggested-that for deep water tables, as in the West, a variance or alternative monitoring technique would be appropriate. These fln ,l interim status regulations require owners and operators to implement a ground-water monitoring program, including the installation, operation, and maintenance of a - monitoring system specified in the regulations. The program must be capable of determining the facility’s impact on ground-water quality in the uppermost aquifer underlying the facility. While EPA acknowledges that ground-water monitoring is complicated and that the current state of knowledge will continue to be improved. adeqcate monitoring methods for detecting ------- 33192 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / ules and Regulations contaminant migration are available. In light of the crucial role which such monitoring plays in the assessment of environmental damage, a ground-water monitoring program must be a basic element of any disposal activity. The Agency will continue to refine these regulations as the state of the technology improves. In focusing on the uppermost aquifer, EPA does not mean to suggest that it is unconcerned about contamination of deeper aquifers. The monitoring program seeks to detect contamination of the uppermost aquifer because that will be the first ground water to be affected by a leaking disposal facility, If an owner or operator knows, or wishes to assume, that his facility is contributing hazardous waste constituents to the ground water, the regulations allow him to install and operate a ground water monitoring system other than the indicator parameter monitoring system discussed below. In this case he must implement the ground-water quality assessment program discussed in detail later. In these final interim status regulations, the Agency has again incorporated a variance within the ground-water monitoring requirement. As the commenters suggested, a lesser degree of ground-water monitoring will be allowed in those circumstances - where an owner or operator can demonstrate to the Regional Administrator that there is a low potential for hazardous waste constituents to migrate to water supply wells or to surface water via the uppermost aquifer. (Migration via the uppermost aquifer includes migration through such an aquifer to a deeper aquifer hydraulically connected to water supply wells or surface waters.) A - complete waiver of monitoring is only available when the owner or operator can demonstrate that there will be no potential for migration to water supply wells or surface water. An owner or operator who wishes to install a lesser degree of monitoring must document the justification for such an approach. That written demonstration must be certified by a qualified geologist or geotechnical engineer, kept on the facility premises, and, during interim status, provided to the Regional Administrator upon his request. Such a demonstration to support a lesser degree of monitoring must include an evaluation of (1) a water balance of precipitation, evapotranspiration, runoff and -- infiltration; (2) characteristics of the saturated and unsaturated zones; and (3) the proximity of the facility to water supplies or surface waters. The Agency does not believe that aquifers underlying the facility that do not qualify as underground sources of drinldng water should be exempted frOm consideration. Such aquifers may have other uses worthy of protection, or may be hydraulically connected to other water supply wells or surface waters needing protection. RCRA’s goal of protecting human health and the environment does not allow the Agency to reduce the basic monitoring requirements simply because of the cost. EPA has also rejected a consideration of the nature of the waste and the facility design as a basis for reduced monitoring requirements. EPA does not believe that the state of knowledge about hazardous wastes and facility designs issufficiently certain to justify reductions in the basic monitoring system during interim status. 2. Ground- Water Monitoring System. The proposed regulation required the installation of at least four wells. At least one well was to be located hydraulically upgradient to yield samples of background ground-water quality. At least three were to be located hydraulically downgradient in order to detect migration from the facility. One of the three wells had to be located at the solid waste boundary. The downgradient wells were to be placed at different depths in order to detect potential migration. Owners and operators were required to case their wells and backfill the annular space in order to prevent migration of water - down the well bore. The most frequent comment received on these requirements requested a more flexible approach to ground-water monitoring. Commentera were concerned that the Agency was proposing rigid requirements which would be too difficult to implement, considering the highly variable nature of subsurface conditions. They expressed concern - over the required number, placement. and depth of wells and suggested various options. Several commenters discussed the requirement for a minimum numb r of wells arguing that the number of wells needed will vary with conditions such as the hydrogeology of the area, the size of the facility, and the configuration of the waste management area. Some commenters believed that the proposed minimum number of wells was adequate while others suggested one, two or more than three wells. These final regulations require that the owner or operator drill a sufficient number of wells to characterize the potential contamination of ground-water quality caused by his hazardous waste facility. On the upgradient side of the waste management area this means tha there must be enough wells (at least one) to characterize background ground- water quality in the uppermost aquifier. The owner or operator must assure that the upgradient samples represent true background conditions and are not contaminated by the facility. There must also be a sufficient number of downgradient wells to provide representative samples capable of detecting migration of hazardous waste constituents from the facility. EPA has retained its requirement that a minimum of three wells should be drilled at the downgradient side of the waste management area. This number was recommended to the Agency by several respected groups familiar with ground-water monitoring at disposal facilities. The public comments did not present a specific rationale for any other minimum number of wells. While the Agency has maintained in the regulations the requirement for a minimum of three wells, it expects that -many facilities will have to drill more than three wells because of the size of the facility or because of the complex hydrogeology below the facility. Ultimately the burden is on the owner or operator to develop the monitoring system necessary to accurately characterize the aquifier and detect migration. It should be recognized that an owner or operator that can present a convincing case for a lower number of wells has the option of justifying and installing such lesser monitoring under the terms of § 265.90(c) of this regulation. Some commenters suggested that EPA specify a spacing interval and maximum or minimum depths for monitoring wells. Other cominenters sought more flexibility in the standards, particularly in defining well depth, to allow for consideration of site-specific factors. EPA believes that the spacing and depth of wells should depend on the particular pattern of ground-water flow below a facility, making it extremely difficult to specify national minimums or maximums in this area. Thus the Agency has decided to leave the spacing and depth of wells up to the owners and operators. They will have to be able to justify their selection of a monitoring system in light of the particular hydrogeology below their facilities. Commenters also suggested that the placement of monitoring wells between the waste boundary and the property boundary be a matter for owner or operator discretion. Two objections were raised to placement of wells at the solid waste boundary. First, commenters ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33193 argued that such placement was redundant in light of the requirement for leachate monitoring. Second, commenters suggested that if wells were placed close to the active portion of the facility, leachate that moved laterally in the soil below the facility would enter the annular space around the monitoring well and quickly pass into the ground- water. EPA believes that the monitoring wells should be placed as close to the waste boundary as possible in order to give a prompt indication of ground- water contamination. This is particularly important since leachate monitoring has been deleted. If significant ground-water contamination occurs before detection, the difficulties of corrective action are made all the more severe. Therefore it is appropriate to place monitoring wells at the edge of the waste management area to provide early detection. EPA does not believe that the placement of wells required in this regulation presents a significant risk that monitoring wells will become conduits for leachate passing to ground- water. EPA expects that most of the leachate flow will be vertical rather than horizontal. In addition, the regulation calls for monitoring at the edge of the waste management area rather than under the solid waste itself. This is to eliminate any suggestion that the wells should be drilled through any natural or artificial barrier that may contain the waste. The problem of migration of leachate will be reduced by place monitoring wells outside of any. such containment barrier. Lastly, the regulations call for backfllling of the annular space around the monitoring well casing, which should reduce the risk of the “conduit” problem. The few comments that addressed the requirements for casing wells and backfilling the annular space generally sought further clarification of the Agency’s intent for the requirement. One commenter suggested that the term “casing” be clarified. Other commenters suggested design measures, such as gravel or sand packing, that would improve the well’s capacity to provide representative samples. Another commenter suggested that EPA delete the requirement that backfill be “impermeable” because no backfill material is truly impermeable. Generally EPA believes that this provision should be more performance- oriented. Thus the final Part 265 regulation specifies that the casing construction and any,.necessary gravel or sand packing should be directed toward the objective of collecting samples at the appropriate aquifer flow zone and of protecting the integrity of the bore hole. An open hole would not provide such assurances and thus it is clear that some well pipe structure capable of drawing samples at selected depths is required. Likewise backfiuing should be directed at assuring the samples and the ground water itself ère not contaminated, rather than the question of whether particular materials are truly impermeable. The regulation, therefore, has been changed to make clear that those are the objectives of the well design provision. Finally, these regulations do not require separate monitoring systems for each component of a facility that consists of more than one landfill, impoundment, or land treatment area. The Agency’s past and present intent was and is that the ground-water monitoring system would be installed at the perimeter of the waste management area. That intent is specifically stated in these regulations. 3. Sampling and Analysis. The proposed regulations required the owner or operator to establish the background ground-water quality of the underlying aquifer for a “comprehensive” set of over 40 contaminants. The determination of this background quality was to be based on monthly sampling for one year. Thereafter, the facility was to sample annually for the “comprehensive” list. In addition the owner or operator was to sample at shorter intervals (that depended on ground-water flow rate) for a “routine” set of contaminants. The “routine” list of parameters included specific conductivity, p 1-I,, chloride, total dissolved solids, dissolved organic carbon and the principal hazardous constituents in the waste. A “Note” allowed a reduction in the “comprehensive” list of contaminants for those substances that would not result from the treatment, storage, or disposal of a particular waste. Commenters questioned the need for monthly sampling to determine background water quality, arguing for a more flexible approach. The Agency believes that obtaining representative background data at a reasonably frequent interval is of critical importance in establishing an accurate ground-water monitoring system. As an initial step, annual monitoring is unacceptable because it cannot reflect seasonal fluctuations. The Agency has, therefore, decided to require quarterly background monitoring which should be more sensitive to seasonal fluctuations. Owners and operators are certainly free to monitor at greater frequencies to provide a more thorough characterization of the aquifer. Several commenters suggested that the Agency specify particular procedures for sampling, sample preservation, and methods of analysis. The Agency is not at this time specifying such procedures in the regulations; there may be several acceptable approaches. Thus the regulations require the owner or operator to develop and follow a ground-water sampling and analysis plan. The terms of the plan will be enforceable against the owner or operator. The plan must specify procedures for sample collection, sample preservation and shipment, analytical procedures, and chain of custody control. Simply to provide guidance in this area, a comment in the regulation suggests that owners and operators consider using methods contained in two EPA publications: “Procedures Manual for Ground-Water Monitoring at Solid Waste Disposal Facilities” (August 1977) and “Methods for Chemical Analysis of Water and Wastes” (March 1979). EPA received many comments on the list of parameters to be used in the sampling program. Those who argued that the list was too extensive said that some parameters were redundant and that variances should be allowed for contaminants not expected to be in the waste. They also-suggested that the “routine” set of contaminants should be short and be used to trigger the need for more extensive monitoring. Those who believed that the list was not extensive enough argued that broad parameters such as dissolved organic carbon, biochemical oxygen demand, and chemical oxygen demand were insufficiently sensitive to detect some highly toxic organics which are dangerous at low levels. In addition, they suggested that the ground-water level be recorded because such fluctuations may require modification of the sampling program to make it effective. The final regulations drop the reference to “comprehensive” and “routine” parameters. The regulations require monitoring for three sets of parameters that each serve a different purpose. The first set reflect the aquifer’s suitability as a drinking water supply. These parameters, contained in Appendix Ill, are those specified in the Interim Primary Drinking Water Regulations established under the Safe Drinking Water Act. Owners and operators are to test for these parameters quarterly during the first year only and report this information to the Regional Administrator. - While the Agency is concerned about ground-water protection for a variety of ------- 33194 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations purposes, use of ground water as a drinldng water source is of particular concern. These interim status regulations do not establish a specific ground-water protection standard, but the Agency has decided that the Phase U regulations will, at a minimum, be designed to protect drinking water supplies. The purpose of the initial sampling for drinking water parameters is to identify facilities that may be severely degrading present’ and future drinking water supplies. The fact that a particular aquifer is becoming unsuitable as a drinking water source will be useful to the Agency in establishing priorities for permits. The Agency will focus its initial attention on facilities which appear to be having the greatest effect on an aquifer’s suitability as a drinking water supply. By using contaminants from the Interim Primary Drinking Water Regulations the Agency does not mean to suggest that this specifies a complete list of the parameters that define an aquifer’s potential as an acceptable drinking water supply, but these contaminants will be useful to the Agency in establishing its priorities. The second set of parameters includes chloride, iron; manganese, phenols. sodium, and sulfate. These parameters are generally recognized as useful for characterizing ground-water quality. These contaminants are ubiquitous in the environment and are often used to characterize a ground-water supply’s suitability for a variety of uses. The owner or operator is to draw quarterly samples for these parameters during the first year and annually thereafter. Information on these parameters will be useful in any assessment of ground- water contamination that follows the determination that a facility is leaking. Such information will, for example, assist the Agency in determining the extent to which contamination of the aquifer may be coming from sources other than the disposal facility. The third set of parameters consists of four indicators that will be used to determine whether a facility is leaking. As indicated earlier the Agency will be developing its ground-water protection strategy as part of the Phase II regulations. For any such standard it will be important for a facility to answer the threshold question of whether hazardous waste constituents are entering the aquifer underlying the facility. The four indicators—specific conductance. pH. total organic carbon, and total organic halogen—reflect changes in the organic and inorganic makeup of the ground-water. A statistically significant change (increase or decrease for pH, increase only for the others) in these indicators between the initial background concentration or value and those from downgradient wells suggests that organic or inorganic substances are being introduced into the aquifer by the facility. Increases in specific conductance indicate the presence of inorganic substances in the ground water. Likewise increases or decreases in pH suggest the presence of inorganic contamination. Total organic carbon (TOC) and total organic halogen (TOX) concentrations in ground water tend to Increase as a result of organic contributions from a hazardous waste facility. The methodology to sample and analyze for these indicators is presently available. EPA believes that monitoring these indicators will be sufficient to make the threshold assessment of whether a facility is leaking. Certainly owners and operators are free to perform more extensive monitoring. Since ground water monitoring data for the indicator parameters is to be evaluated statistically, the Agency has specified that each determination of the concentration or value of an indicator parameter in a ground water sample be based upon a minimum of four replicate measurements. This number of replicates, using generally accepted techniques, will assure a reasonable degree of accuracy, needed for the specified statistical testing, which is explained in the next section. EPA agrees with the commenter who suggested that a determination of the ground-water elevation should be made each time a sample is taken. Such information will assist the owner or operator in determining whether the monitoring system is drawing samples from appropriately located wells. The regulation, therefore, includes a requirement that ground-water elevation be determined each time a sample is obtained. In response to conunenters EPA has specified a two-stage monitoring system. Broad indicators are used initially to determine whether a facility is leaking. U such leaking is detected, a more specific ground-water quality assessment program, described later in this Preamble, is initiated. EPA believes that the use of broad parameters as indicators is an appropriate strategy to determine whether a facility is leaking. In response to the general concern expressed by commenters on the number of parameters to be monitored, EPA has limitedits requirements for indicator monitoring to fo’ur parameters which are necessary, at a minimum, to detect leaks. It is unlikely that a facility would selectively emit low levels of highly toxic organics that-would thereby miss detection 4. Preparation, Evaluation, and Response. According to the proposed regulations, detection of significant changes in ground-water quality required the operator to notify the Agency, to determine the cause and the extent of contamination, and to discontinue the facility’s operation. Comments received showed that the proposed language did not clearly indicate whether these actions should be taken simultaneously or sequentially. Commenters stated that discontinuing operations, based solely upon a statistically significant monitoring result, was unjustified. The final regulations have been revised to remove ambiguities. Also, rather Than requiring that facility operations cease, the final regulations specify a sequential approach. Upon detecting any suspected discharge from the facility by statistical evaluation of the ground-water monitoring data, the owner or operator is required to notify the Regional Administrator, within one week of any luch detection, that his facility may be contaminating the ground water. He must also, within 15 days after this notification, develop and submit to the Regional Administrator a plan, certified by a qualified geologist or geotechnical engineer, for assessing the quality of the ground water. The regulations require that an outline of such a ground-water quality assessment program be developed and kept on-hand at the facility by the time ground-water monitoring is initiated. The plan must specify: the number. 1ocation and depths of monitoring wells to be used for the assessment; the sampling, - analysis, and evaluation procedures to be followed; and a schedule of implementation. The owner or operator must then implement this plan and determine as quickly as technically feasible the rate and extent of migration and concentration of hazardous waste and hazardous waste constituents from the facility in the ground water. Within 15 days after completion of the first determination, he must submit to the Regional Administrator a report containing the results of the ground- water quality assessment. If the owner or operator can demonstrate, using newly acquired and previously gathered ground-water monitoring data (including the general water quality data developed to satisfy § 265.92(b)(2)), that his facility is not contributing hazardous waste or hazardous waste constituents to the ground water, he must so state in the report and may reinstate his original ground-water monitoring program. ------- Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations 33195 However, if his assessment shows that hazardous wastes cir hazardous waste constituents from his facility are entering the ground water, he must repeat the ground water assessment at least quarterly thereafter, until final closure of the facility. Detection of statistically significant changes in the indicator parameters in the upgradient wells does not require implementation of ground-water quality assessment program. This information may be useful at a later time, though, in demonstrating that significant changes in downgradient water quality resulted from sources other than the hazardous waste facility. As indicated earlier, an owner or operator may install an alternate ground-water monitoring system if he feels that monitoring for indicator parameters would sho* that his facility was affecting the ground water. Any such alternate monitoring program must be able to provide the above described ground-water quality assessment. The final rule specifies different requirements for the duration of ground- water monitoring depending upon the operating status of the facility and the monitoring program utilized. Monitoring of indicator parameters is intended to detect facility leakage into the ground water. if such leakage is detected the ground-water quality assessment program is to be implemented to establish the magnitude of the problem. if the assessment demonstrates the absence of hazardous waste constituents inthe ground water, the owner or operator may reinstate indicator parameter monitoring until suspected leakage into the ground water is again detected. This detection could, of course, trigger the need for another ground-water quality assessment, and so on, throughout the active life of the facility, and for disposal facilities, throughout the postclosure care period as well, If, on the other hand, the first determination under the ground-water quality assessment program demonstrit that hazardous waste constituents have indeed entered ground water, the assessments must be repeated quarterly, until final closure of the facility. Since additional hazardous wastes will be received at the facility throughout this time, additional assessments are necessary to determine any further impact from these wastes on the ground-water quality. If the first determination of ground- water contamination, by implementation of the ground-water quality assessment plan ’bccurs during the post-closure care period, however, the sources of contamination are expected to be relatively stable such that repeated assessments would only confirm the Initial determination of contamination. For this reason only one ground-water quality assessment which demonstrates contamination is required during the post-closure care period. By a similar line of reasoning, those facilities which from the beginning utilize an alternate ground-water monitoring system, equivalent to a ground-water quality assessment program, are not required to make repeated assessments after final closure of the facility. The more frequent monitoring (i.e., quarterly) under the assessment program is required to enable the Regional Administrator and the owner or operator to be fully aware of the extent of ground-water contamination. Such information will be useful, for example, in providing warning to downgradient ground-water users of any potential danger, if necessary. The final regulations also require’ that any ground-water quality assessment - which is initiated prior to facility closure be completed and reported to the Regional Administrator. An assessment which is underway may not, therefore. be halted merely because the facility closes. The final rule also differs from the proposed version in the test for statistical significance. As proposed. analyses of ground-water quality were to be compared to the background quality established for each facility, using the single-tailed Student’s t-test at the 95 percent confidence level. Commenters claimed that the Student’s t-test at the 95 percent confidence level was too restrictive. Commenters stated that the Student’s t-statistic is inappropriate because it is dependent upon a normal distribution, which cannot be assumed for ground-water data because of seasonal fluctuations. One commenter suggested establishing tolerance limits as an alternative to specifying a statistical test of significance. After considering these comments, the Agency reproposed the statistical test on September 19, 1979 (44 FR 54323— 54324) and specified the use of the Mann-Whitney U-test at the 95 percent confidence level. In specifying the Mann-Whitney U-test, which is a non- parametric test, the Agency sought tci overcome the major weakness of the Student’s t-test, namely, its underlying assumption of “normality.” Commenters on the reproposal generally preferred the Student’s t-test over the Mann- Whitney U-test, for two reasons. First. they were more familiar with the Student’s t-test. Second, several commenters explained that while there is an underlying assumption of normality for the Student’s t-test, it is tolerant of considerable departures from that assumption. The Agency has therefore again specified the Student’s t- test in these final regulations. The required statistical comparison in these regulations, however, differs from that proposed in several ways as a result of concerns which commenters raised on the broader topic of statistically differing ground-water quality. Commenters suggested that there was a high probability of statistically significant increases resulting from anticipated natural fluctuations in ground-water quality and from analytical error (i.e., false significance). The Agency has incorporated several changes which, whe n combined, should greatly minimize the possibility of “false” significance. These include: limiting to four the number of indicator parameters to be compared; performing the t-test at the 99 percent level of significance instead of the proposed 95 percent level; and intitially responding to detected statistically significant difference by taking additional ground-water check samples to confirm the significant difference. In addition, to assure that accurate data is used by the owner or operator in the statistical comparisons, the Agency requires that four replicate measurements be made on each obtained ground-water sample for each indicator parameter. Four replicates provide 95 percent confidence that the average of the measured values will be within five percent of the actual value if generally accepted analytical procedures are followed. In its investigations of statistical test procedures which could be useful in interpreting ground-water monitoring data, the Agency gave consideration to standard industrial quality control concepts and procedures for data evaluation. The Agency is aware that these procedures were developed for relatively well controlled and operated industrial processes. However, the conceptual basis of monitoring ground- water quality indicators is similar in the sense that the variation of the indicator measurements under typical circumstances should be predictable within limits. If no leakage from a hazardous waste facility or other hydrologic change has occurred, the ground-water quality indicator levels should remain within such limits. Excursions outside the limits would indicate that changes may have occurred that require further investigation. Quality control methods may be adaptable to such a situation. ------- 33196 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations Quality control methods also have the advantage of being generally accepted and understood. The basic approach in a ground-water monitoring program would be to use data gathered during a baseline period to establish limits that would encompass a range of typical variation in ground-water quality indicator parameters. Excursions outside these limits in subsequent monitoring samples would indicate the need for further investigation. While the Agency believes that the use in these regulations of the Student’s t-test is appropriate, comment is requested on the use of a quality control approach in interpreting ground-water monitoring data. Such comments should identify — specific procedures and concepts which appear amenable to this purpose. 5. Recordkeeping and Reporting. The proposed regulations required making quarterly reports of ground-water monitoring information and keeping ground-water quality data and analytical procedure records for a period of three yelrs. The few cominenters that addressed this provision made wo points. First, they suggested that quarterly reporting was unnecessary. Second, one commenter suggested that the owner or operator send copies of any reports to State and local authorities. The Agency has decided that annual reporting of the data on the indicator parameters should provide sufficient notice on general compliance with the regulations. The Agency can, of course, examine the data held by the owner or operator to comply with these regulations at any time. In the first year of monitoring, however, it is necessary to have more frequent monitoring and reporting to identify those aquifers that are in greatest jeopardy. Such information will be used to set priorities for consideration of permits. Iii keeping with that goal, the owner or operator must indicate in his quarterly report during the first year of monitoring which parameters exceed the contaminant limits specified in Appendix Ill. These regulations require the owner or operator to retain his ground-water data for the active life of the site, and for the duration of the post-closure care period for disposal facilities, instead of the three-year period specified in the proposed regulations. The Agency believes that.the actual monitoring data (i.e., all replicate measurements on all’ samples) may prpvide useful information in determining the type and extent of ground-water contamination. Since ground-water changes may occur slowly, it will be useful to have a history of the facility that is longer than three years. Both the owner or operator and the permitting authority should have access to such information when - needed. The regulations do not require the owner operator to send the ground- water report to State or local authorities. This step is unnecessary. Those States and local authorities that are interested in examining the reports may obtain copies from EPA or the authorized State agencies responsible for receiving such information. Slightly different reporting requirements apply depending on whether the owner or operator is following the indicator program or the ground-water quality assessment program at the facility. F. Subpart C—Closure and Post-Closw’e The purpose of the final Part 285 closure and post-closure standards is to ensure that all hazardous waste management facilities are closed in a manner that (1) minimizes the need for post-closure maintenance, and (2) controls, minimizes, or eliminates, to the extent necessary to protect human health and the environment. post closure escape of waste, leachate, contaminated rainfall, or waste decomposition products to ground or - surface waters, and the atmosphere. There are two types of closure and post- closure requirements in these final rules: (1) general requirements, which are contained in Subpart C; and (2) specific technical requirements, which al’e included in the facility-specific regulations for landfills; land treatment facilities; surface impoundments; incinerators; tanks; and thermal, physical, chemical, and biological treatment facilities. This section of the preamble focuses on the Subpart C general closure and post-closure requirements. The technical standards establish in more detail specific requirements and additional objectives for closure and post-closure. They also set forth factors owners and operators must consider in addressing those objectives. They are intended to give flexibility to facility owners or operators, and to reduce the possiblity for over response to these requirements. The technical standards are described in later sections of this preamble. The final interim status regulations specify what facility owners or operators must do after wastes are no longer received for treatment, storage, or disposal. (This was called “closeout” in the proposed regulation but the term has been dropped because it was frequently confused with “closure”.) Closure is the period after wastes are no longer accepted, during which the owners or operators complete treatment, storage, and disposal operations, apply final cover to or cap landfills, and dispose of or decontaminate equipment. Post-closure is the period after closure during which owners or operators of disposal facilities must conduct certain monitoring and maintenance activities. EPA believes that if the disposal facility has been properly located, designed, operated, and closed, and no contaminant leakage problems have occurred during the operating life of the facility or during the post-closure care and maintenance period, then the probability of significant ground-water contamination is very small. 1. Period of Post-Closure Care. The proposed. rules required that post- closure care be conducted for 20 years at disposal facilities. The Agency received numerdus comments on this requirement. About half of these - comments favored a period less than the 20 years proposed but the other half favored a longer period. Those supporting a longer period argued that the hazard posed by many wastes exists for an extremely long time, and that monitoring should be carried out perpetually, or for as long as the wastes are hazardous. Those favoring a shorter time argued that only a few wastes remain hazardous for more than a few years. These commenters felt that there was too much uncertainty and potential economic burden with the proposed standard, because it carried a potential for unnecessary monitoring. As a result of the extensive comment, the Agency has considered the post- closure care issue, and has decided to extend the post-closure period from 20 to 30 years. EPA believes that eliminating leachate monitoring requirements makes it necessary to monitor ground water for a longer period of time, and that further analysis of financial requirements, as well as changes in these regulations, make it practical to do so. Public comment persuaded EPA (see Background Document on Ground-water Monitoring) that existing leachate monitoring techniques are impractical, except at land treatment facilities. Thus, EPA has deleted the leachate monitoring requirements for landfills and surface impoundments. EPA had believed that leachate monitoring systems would act as early warning systems. Since it will take longer for contamination migration to reach ground-water monitoring points than it would have taken to reach leachate detection monitoring points, it is necessary to monitor for a longer period. EPA is now convinced that it is reasonable to monitor and maintain ------- Federal Register I Vol. 45, No. 98 /. Monday, May 19, 1980 I Rules and Regulations 33197 closed disposal facilities for 30 years. Because EPA no longer requires leachate and air monitoring, owners or operators need not provide the money for these activities. Furthermore, proposed changes in the financial regulations will make all financial requirements less costly. Owners or operators will be able to satisfy closure and post-closure responsibilities through a number of financial mechanisms, many of which are substantially less. expensive than trust funds. (For a complete description of the proposed financial mechanisms, see the proposal section of this Federal Register and the Background Document on Financial Responsibility.) Also, in these proposed financial regulations for interim status, owners or operators may build closure trust funds during the expected site life, rather than by advancing all the money initially. This alternative will make trust funds less expensive. As a result, EPA is convinced that owners or operators can now maintain and monitor disposal sites for 30 years after closure. However, because of the uncertainty caused by the lack of extensive experience with properly designed disposal operations, the Agency does not believe that an unalterable national rule is necessarily the best way to ensure human health and environmental protection. The permitting process will provide for case-by-case review of the period for post-closure care and the interim status standards permit EPA to shorten or lengthen the 30-year post- closure period as appropriate on a case- by-case basis. Thus, for example, if an owner or operator can demonstrate to the Regional Administrator that there Is no need to monitor and maintain his closed disposal facility for the entire 30- year period, the period could be shortened. Representatives of the public, on the other hand, could also petition to have the monitoring period extended for cause. . - EPA agrees with those conunenters who pointed out that risks from some wastes persist for long periods of time. For organic wastes disposed of in an anaerobic environment, the decomposition to non-toxic products is. very slow. Similarly, heavy metals remain toxic forever, and may be mobilized unless carefully managed. This may argue for perpetual monitoring of land disposal facilities. However, the Agency has found that it would be nearly impossible for small single - facilities to finance such activities in perpetuity, after revenues cease. Thus, some form of national insurance is necessary to ensure perpetual monitoring of these facilities, because many of them would surely default if required to conduct perpetual monitoring. EPA Is considering asking Congress to enact legislation to develop such a national insurance program. In the interim, the Agency has revised these interim status regulations to allow the Regional Administrator to extend some or all of the post-closure care requirements for cause, e.g., because contamination is detected or feared imminent. 2. Notice in Deed to Property. A number of commenters questioned the legality of the proposed standard which required the owner or operator to record, in the deed of the property, a stipulation restricting future use of the property. In response to these comments, the Agency has reworded the requirement, so that the owner or operator of a facility in which hazardous waste will remain after closure must submit evidence that a notation has been placed on the deed to the property, or on an appropriate alternate document. The notation must warn that - Federal law limits post-closure use of the property by anyone in a manner that would disturb the integrity of the final cover, the liner(s), or the monitoring systems of the facility. During interim status, the owner must place the notation on the deed or alternative document, but need not submit evidence to EPA of having done so unless specifically requested by the Agency. 3. Amendment and Submission of Plans. Several commenters suggested that, during the operation of the facility before closure, owners or operators should be able to amend the closure plan and the closure cost estimates that they submitted as a requirement for the facility permit. They claimed that this would help ensure that the plan is current and that the closure funds are sufficient, and it would allow for operating changes which might affect closure. The Agency agrees, and has modified the regulations accordingly. During interim status, modifications to the closure plan must be made where appropriate, but need not be approved by EPA. since closure plans must be submitted to EPA only in the event that the site closes. The owner or operator must submit his closure plan to the Regional Administrator at least 180 days before the date he expects to begin closure. All of the above considerations apply to post-closure plans for disposal facilities as well. Both closure and post- closure plans are deemed requirements of Subtitle C, and the plans themselves are enforceable by EPA. 4. Time Allowed for Closure. Several commenters thought the proposed 90- day limit for completing disposal or foi removing waste from facilities after wastes are no longer received, was too stringent and inflexible. The commenters argued that, at certain times of the year, weather would prevent completing waste disposal or removal at a facility, and that 90 days is not enough time to complete these activities at most facilities. EPA disagrees. Closure plans, which are developed far in advance of actual closure, can certainly be - developed tp ensure that wastes are disposed of or removed within 90 days of commencing closure. This should be the first activity conducted when a facility commences closure, and owners or operators should ensure that waste inventories are reduced to manageable levels before commencing closure in order to comply with the 90-day deadline. The proposed regulations required that closure be completed within three years after the facility stopped accepting wastes. A number of commenters suggested that the time limit for closure activities was too long in most cases, and should be made more flexible. The - Agency agrees, and has reworded the requirement to indicate that closure must be completed within six months. A variance procedure will allow a longer period, where it can be justified, although in no case may ç osure take more than three years. / 5. Post-Closure Permits. EPA is considering a procedural mechanism somewhat different from those contained in prior proposals for dealing with the problems involved in monitoring facilities after closure and taking corrective action where necessary. As stated earlier in this preamble, EPA does not believe that Subtitle C of RCRA was intended to cover disposal sites for hazardous waste which were closed before the effective date of these regulations. However, a different situation is presented for the post-closure care of facilities which at one time had received a RCRA permit or interim status and operated under it. There can be little question that the statute intended EPA to require measures to be taken, for as long as necessary, to ensure that these facilities and the waste located there do not pose a threat to human health or the environment. One of the major purposes of the closure and financial responsibility provisions of the Part 284 and Part 265 regulations is to ensure that sites remain safe even after they cease active operation. Under the structure of Subtitle C. the only consistent way to make sure that the necessary corrective measures can ------- 33198 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations be taken at closed sites is to make those sites subject to regulations under ‘Section 3004. That is the only section of Subtitle C that authorizes substantive regulatory standards of the type in question. However, Section 3004 applies only to “owners and operators of facilities for the treatment, storage, or disposal of hazardous waste,” and can therefore be applied to closed sites only if the owners or operators of those sites are said to come within that definition. As noted above, policy considerations support reading the statute in this manner. In addition, the same conclusion is hard to avoid simply as a matter of textual interpretation, since land in which hazardous waste is buried is certainly either “storing” or “disposing” of those wastes within the meaning of the specific definitions of those terms given in RCRA Section 1004. If owners or operators of inactive sites which once were covered by RCRA permit are still “storing” or “disposing” of those wastes, it follows that they must get a permit under Section 3005. Once again, that conclusion makes sense as a matter of policy as well as a strict matter of textual interpretation. For example, the provisions of the statute for EPA inspection and monitoring are best enforced as part of a permit. Though EPA believes that the terms of any post-closure RCRA permit should be strictly limited and require an absolute minimum of paperwork, there are strong policy reasons, as well as legal reasons, why a permit of this type might be essential to the overall operation of the program. For example, it might be very difficult for EPA to gain access to land to clean up a leaking site without the aid of permit terms authorizing that access. Accordingly, in the near future EPA plans to develop proposed regulations calling for the owners or operators of closed sites that once were permitted or operated under interim status to apply for and receive a post-closure permit from EPA. EPA anticipates that the conditions of this permit will relate almost exclusively to general procedures concerning access, monitoring, and financial responsibility, and that cumbersome permit procedures will not be necessary. EPA anticipates that these will be lifetime permits. It may be that this approach may reduce paperwork in the end, for example, by making possible the modification or elimination of the present requirement to record conditions on the facility title in State or local deed recording systems. EPA will be examining these questions further in the course of developing its proposal. C. Subpart H—Financial Requirements The proposed § 250.43—9 financial standards contained three types of financial assurance requirements (1) those assuring funds to conduct closure activities in accordance with the closure plan, (2) those assuring funds to conduct post-closure activities at disposal facilities in accordance with the post- closure plan and (3) those assuring funds to cover third party damage cases. 1. Liability. The financial responsibility requirements covering third party damages during the post- closure care period are not covered in the Part 265 interim status standards. As stated in the preamble to the proposed regulation, the Agency has been unable to Identify a viable mechanism to provide for liability coverage during the post-closure care period, and is supporting an initiative in Congress which would set up a national fund to provide for such coverage. During the life of the site, most companies are likely to seek private insurance to cover liability claims. Through discussions with the insurance industry, the Agency has determined that non-sudden pollution coverage often would be made effective only when a facility received a permit. Because facilities do not have permits during the interim status period, they might not be able to get insurance for non-sudden occurrences. Thus, site-life liability for non-sudden occurrences is not required during the interim status period. However, the Agency is proposing a rule requiring site-life liability for sudden and accidental occurrences during the interim status period. The Agency intends to add this rule to the interim status standards, after public comment, later this year. 2. FinancialAssurance. The proposed financial standards assuring funds for closure and post-closure care required that owners or operators first estimate the cost of closure, and post-closure care where applicable, based on the closure and post-closure care plans. Then a trust fund was to established to assure that the necessary funds would be available. EPA received numerous comments asking that the trust fund requirement be restructured, and that financial Instruments other than a trust fund be allowed. After considerable re-analysis. the Agency is convinced that other financial mechanisms can provide protection equivalent to trusts, and that the trust mechanism requirement could benefit from major restructuring. Because of the complexity of the subject matter and the magnitude of the changes, the Agency believes that the regulated community and the general public should have an opportunity to comment on the revised regulations before they are promulgated. As a result, the Agency is reproposing the specific requirements for the various financial instruments it intends to allow. 3. Cost Estimates. The Agency is promulgating in Phase I the requirement that owners or operators develop cost estimates for closure, and post-closure activities where applicable. Several commenters suggested that the Agency allow for partial closure in the cost estimate requirements. This had always been the Agency’s intent. The reproposed rules better reflect this intent by requiring that funds be set aside equal to the highest cost of closing the facility, either at any given point leading up to closure, or at the point of final closure. Thus, facilities which close as they go (partially close) need obtain only a fraction of the financial assurance that will be required by those closing at the end of site operations. A few commenters suggested that the closure and post-closure cost estimates be reviewed periodically to ensure continued accuracy. EPA agrees that changes in facility design and operation, and the uncertainties inherent in inflation and interest.rates, make such a review highly desirable. Thus, the final rules require that the owner or operator prepare a new closure cost estimate whenever the closure plan is modified, and, for disposal facilities, a new post- closure cost estimate whenever the post- closure plan is modified. In addition, the final rules require that these estimates be indexed to inflation on an annual basis, using the U.S. Department of Commerce Gross National Product Implicit Price Deflator. 4. Publicly Owned Facilities. A few commenters suggested that publicly- owned facilities should be exempted from the financial requirements, because government institutions are permanent and stable, and have as their reason for being the health and welfare of their people. Therefore, according to the commenters, publicly-owned facilities would be more likely and more able financially to carry out their closure and post-closure responsibilities. The Agency agrees that State and Federally-owned facilities will always have adequate resources to conduct closure and post-closure care activities properly. Therefore, an exemption for these facilities has been incorporated in - a new “Applicability” section. (The other provisions of the section make it clear that the closure requirements apply to all other facilities, and that the post-closure requirements apply only to disposal facilities.) ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33199 The financial strength of local entities cities and counties), on the other hand, IS not as certain. Some local governments do become insolvent, and if small enough, might not be in a financial position to fulfill their closure and post-closure responsibilities. Further, some publicly-owned facilities are established as authorities, and are supported financially very much like corporations, i.e., they are not backed by the taxing authority of the local government. Because of these potential problems, the Agency has developed a revenue test which, if met, would qualify facilities owned by local governments for an exemption. Because this test is new, the Agency is proposing this provision for public comment. H. Subpart I—Containers Drums and other containers provide an inexpensive means for generators of hazardous wastes to accumulate and store the wastes, in a form which will be easy and relatively inexpensive to carry away. All too frequently, generators and others storing hazardous waste drums have simply put them somewhere out of sight, without any further concern about what would eventually happen to the wastes. The many damage incidents described in the background docwnent n containers detail the awful onsequences of this practice. The drums eventually weather and corrode. releasing their contents. Dumps of decaying drums have seriously contaminated surface water and ground water have emitted.fumes which have killed vegetation and nauseated and sickened nearby residents, facility operators, and enforcement officials; and have burned or exploded, injuring and killing facility personnel and sending clouds of toxic smoke and fumes over adjacent heavily populated areas, disrupting the activities and threatening the health of thousands of people. The most elementary and straightforward precautions will frequently eliminate these problems. These regulations generally require nothing more than simple good practices in the management of containers of hazardous wastes—a level of care commensurate with the hazardous nature of the wastes stored. The Agency believes that these regulations should not be difficult to implement, and that they will provide a great improvement in the problems posed by current bad practices. The final regulations for containers are largely taken from the standards proposed for interim status for containers, for storage generally, and for a few other activities that pertain to containers. As discussed below, requirements for ignitable, reactive, or incompatible wastes have been added. and the provisions concerning empty containers have been removed or absorbed in Part 261—Identification and Listing of Hazardous Waste. 1. Condition of Containers. The proposed regulation ( 250.44—2(a)) required that wastes in leaking or damaged containers be recontainerized in containers in good condition. EPA received no comments on this requirement, and it has been retained in the final regulations. A provision has been added allowing wastes to be managed in other ways than recontainerization, so long as they meet the requirements of Part 265. 2. Compatibility of Waste With Container. The final regulation, requiring that containers or their liners be compatible with the wastes stored in them, is essentially identical to the proposed.regulation ( 250.44(h)) for storage generally. In contrast to the regulation for tanks, this regulation retains the standard that “the abillty of the container to contain the waste [ should not be] impaired” by the waste. While some corrosion by wastes may be permissible for tanks, the Agency believes that waste should not be stored in a container in which it may cause any substantial amount of corrosion. First, the concept of “useful life” does not work well with containers. Most tanks will remain under the supervision of a single owner or operator for a long period of time. However, a generator placing waste in a container will probably not know how long it will be stored, and the operator of a storage facility will probably not know just how long he can expect a container to last. Secondly, containers are generally constructed of lighter materials than tanks, and have seams which are more vulnerable to corrosion. Leakage due to corrosion is therefore more likely and less predictable for containers than for tanks. 3. Management of Containers. The proposed definition for containers implied that they were closable. The final definition is broader, indicating that any portable device containing hazardous waste comes under the regulations of this Part. The requirement that containers be kept closed now appears in the substantive regulations. Its purpose is, as it was originally, to minimize emissions of volatile wastes, to help protect ignitable or reactive wastes from sources of ignition or reaction, to help prevent spills, and to reduce the potential for mixing of incompatible wastes and direct contact of facility personnel with waste. While many commenters argued and the Agency agrees that storage may properly be conducted in open tanks and surface impoundments, requiring containers to be kept closed does not unnecessarily restrict storage options. All çont iners have lids or some other clo,sure device, and keeping containers closed whenever possible is simply a Smatter of good operating practice. It is / not expected that containers of hazardous waste need be opened routinely to inspect the waste or the container or for reasons other than to add or remove waste. The proposed regulations also required (in § 250.44—2(b)) that containers be managed so that they do not rupture or leak. EPA received no comment on this provision, and it has been retained as proposed. Its purpose is to assure that, in addition to removing waste from containers in bad condition, owners and operators manage containers so that they stay in good condition, and handle them so that they do not rupture. 4. Inspections. As an adjunct to the general inspection requirements, the regulations for various types of facilities and equipment include specific inspection requirements. The regulations for containers call for weekly inspection of container storage areas for leaks and deterioration of the containers. Leaks and container deterioration are the primary source of damage from container storage which can be minimized through inspection. The proposed regulations ( § 250.43—6(a) and 250.44(c)) called for daily inspections. Commenters believed that daily inspections were unnecessary, and that less frequent inspections would be adequate. The Agency agrees that corrosion of containers and the development of leaks is usually a slow process, and that daily inspections are typically more frequent than is necessary; weekly inspections should generally be adequate. 5. Closure. Because these regulations apply to the storage of hazardous wastes, the definition of storage requires that all hazardous wastes and hazardous waste residues must be removed at closure from a container storage facility or from that part of the facility being closed. The closure plan required by Subpart C must address this requirement. In removing hazardous wastes or residues, the owner or operator becomes a generator of hazardous wastes and must manage them in accordance with all applicable requirements of Parts 262, 263, and 265 of these regulations. ------- 33200 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations - 6. Special Requirements for Ignitable or Reactive Waste. The proposed rules did not contain any special standards for ignitable or reactive wastes. Simply as a matter of good practice, ignitable or reactive wastes should, of course, be protected from any conditions or materials that could cause them to ignite or react, in order to guard against fires, explosions, or violent reactions. The requirement in these regulations that containers of ignitable or reactive waste be 15 meters (50 feet) from the facility’s property line is taken from the National Fire Protection Association’s (NFPA) Flammable and Combustible Code of 1977. The purpose of the setback required m the Code is to protect adjacent residences, businesses, and other public places from the acute effects of explosions and fires that may be caused in facilities that store flammable materials. While the Agency believes that the Code provides an adequate basis for requiring a minimum setback of 50 feet, the Agency does not yet have enough data to determine whether an additional setback should be required where highly explosive or toxic wastes are stored. The Agency expects to monitor the effectiveness of this regulation and revise it if necessary. Since the NFPA requirement is straightforward and already applies under OSHA regulations of facilities, it is appropriate for inclusion in the interim status standards. Since this regulation was not proposed,it is being promulgated interim final. 7. Special Requirements for Incompatible Wastes. General requirements for incompatible wastes are discussed above in the preamble section entitled “General Requirements for Ignitable, Reactive, or Incompatible Wastes.” The proposed interim status regulations contained a provision ( 250.44(i)) prohibiting the placement of a hazardous waste in an unwashed container which had previously held an incom atible waste. The final regulations retain this provision, with the modification that placement of a waste in such an unwashed container is allowed if it will not violate the general standards for the handling of incompatible wastes. This regulation is required because even “empty” containers typically have a certain amount of waste remaining on the botton or the sides. The fact that the container itself may be compatible with both wastes will not prevent them from reacting with each other if they are incompatible. Compliance with this regulation will probably require owners or operators to wash empty containers or to be able to determine the properties of the materials they last contained through records, segregated storage of empty containers, tests, or some other means. The final regulations also provide that incompatible wastes or materials must not be placed in the same container unless the general standards for incompatible wastes will be complied with. The proposed regulations did not contain such a provision because it was thought that placement of incompatible waste in containers was not typical. While such mixing may not be common, the Agency has decided as a matter of completeness that it should be covered by the incompatible waste regulations. The need for complying with the general requirements for incompatible wastes Is as clear here as it is in other cases where incompatible wastes are mixed. The requirement is straightforward and appropriate for interim status. - The proposed regulations also contained a provision ( 250.44—2(d)) that containers holding incompatible - wastes should be separated or protected from each other to prevent mixing of incompatible wastes if containers should leak or break. The final regulation clarifies the proposed regulation. It extends it to coq ainers stored near incompatible wastes in other containers or in piles, open tanks, or surface impoundments—where the incompatible wastes are exposed on the surface. It also indicates that protection - will typically be in the form of a dike, berm, or wall. “Nearby” should be interpreted to mean close enough so that wastes from broken or leaking containers might commingle with — incompatible wastes before the situation would be discovered and corrected in the ordinary course of operations. 8. Empty Non-combustible Storage Containers. The proposed interim status regulations contained a section ( 250.44-2(f)) requiring empty non- combustible containers to be recycled in some fashion. This section was intended partly to assure proper management of the hazardous waste residues remaining in the empty containers, and partly to implement one of the objectives of Section 1003 of RCRA—to promote the recycling and recovery of material and energy resources. The Agency has reconsidered its position, in light of comments received on this section, and has changed the focus of these regulations to the protection of human health and the environment through the appropriate management of hazardous waste. Some contaminated containers are listed as hazardous wastes under Part 261 of these regulations, and must be managed as such or re-used. As a result, the regulations on empty non- combustible containers have been deleted from this Section. 9. Paper Bags. Another section of the proposed interim status regulations ( 250.44—2(g)) required that contaminated paper bags be managed in closed secondary containers. EPA received a number of comments on this requirement arguing that the standard was unnecessary because the amount of waste which adheres to such bags is small, and that the bags can be properly managed by other means. In light of the comments, the Agency has reorganized the proposed regulations. Some bags and liners contaminated with certain toxic materials are now listed as hazardous wastes in Part 261 and must be managed like other hazardous wastes. Other contaminated bags are not declared hazardous and are no longer regulated under this Part. In either case, the proposed regulation is unnecessary and has been deleted. I. Subpart f—Tanks 1. Definitions. In the proposed rules, the standards for tanks were markedly different from those for. basins. Tanks were regulated as covered containment devices used for storing hazardous waste. By contrast, basins were regulated as uncovered containment devices used for treating hazardous waste. (The proposed rules did not address the use of tanks for treating hazardous waste.) Both tanks and basins were assumed to be constructed primarily of artificial materials or wood, rather than earthen materials. The Agency’s re-evaluation of its conception of storage now permits storage to be conducted in uncovered as well as covered devices, such as surface impoundments. Thus basins, as they were defined in the proposed regulations, are now recognized as appropriate storage devices, and the Agency has recognized that treatment as well as storage may be conducted in tanks. These changes have made the proposed regulations’ concepts of basins and storage tanks essentially identical. As a result, the Agency has combined the two concepts into one: tanks are now defined to be “stationary device(s) ‘designed to contain an accumulation of hazardous waste and constructed primarily of non-earthen materials. . which provide structural support.” Tanks are referred to as covered or uncovered when appropriate. The term ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33201 “basin” has been eliminated from the regulations.’ The Agency has reorganized the - regulations to gather the proposed standards for tanks into one Subpart (Subpart J). This Subpart includes standards from those that were proposed for storage tanks ( 250.44—1) and basins ( 250.45—4), for storage generally (250.44), for treatment generally ( 250.45), and for chemical, physical, and biological treatment facilities ( 250.45—6). A number of other standards from the proposed Section 3004 standards have been incorporated into the present set of interim status standards fqr tanks. The following discussion is organized along the lines of the present Subpart J. In addition, as explained under Subpart Q, the regulations for chemical, physical, and biological treatment facilities (Subpart Q) are essentially identical to the regulations for tanks. The following discussion therefore also serves to present the foundation for the Subpart Q regulations. References to tanks in the following discussion are also meant to include the waste containment components of chemical, physical, and biological treatment equipment. The general operating requirements and the requirements for waste analysis and trial tests were proposed primarily for inclusion in the general standards and partly for inclusion in the interim status standards. They are therefore being promulgated interim final only to the extent that the Agency will consider comments on whether they are appropriate for inclusion in the interim status standards. 2. General Operating Requirements. The proposed interim status standards for storage ( 250.44(h)) and the proposed general standards for basins ( 250.45—4(b)(1), (d), and (e)) and chemical, physical, and biological treatment facilities ( 250.45—6(a) and (b)(2)) included requirements which placed restrictions on the type of materials used to build tanks and the type of waste placed in them, to ensure that the waste was compatible with the construction material of the tank. ‘The Agency also mistakenly proposed two definitions for storage tanks, in § * 25021 and 250.41. They were the same except that the latter provided that waste in storage tanks must be pumpable this requirement was not intended and has been removed. In addition, basins were defined to be less than 100.000 gallons In capacity. This was included only to help distinguish basins from surface Impoundmente, which may be larger than 100,000 gallons. Because the 100.000 gallon limit proved confusing and because basins (now tanks) end surface impoundments are adequately distinguished by their construction materials, the 100.000 gallon limit has been deleted. Few comments were received on these proposed standards. Some commenters suggested that the standards should be modified to reflect the fact that the construction materials of most tanks will inevitably be somewhat impaired by the chemical properties of the wastes they contain. The Agency agrees that tanks need not be designed to last forever. Therefore, the final rules have been modified to require that the ability of tanks to contain waste during their intended h’fe is not impaired. Proposed § 250.45—6(e) provided for a 2-foot freeboard for uncovered reaction vessels. Some commenters felt that the 2-foot freeboard requirement should be made more flexible by allowing owners or operators to use other methods to prevent hazardous waste from splashing over the rim of an uncovered tank. The Agency agrees that methods such as dikes, trenches, or diversion to stand-by tanks may provide a degree of protection equal to that afforded by 2 feet of freeboard. Therefore, the standard has been modified to require uncovered tanks to either have (1) 2 feet of freeboard or (2) a containment, drainage control, or diversion structure which has a capacity that equals or exceeds the volume of the top 2 feet of the tank. In a similar vein, some commenters felt that the proposed requirement for an automatic waste feed cut-off or by-pass system ( 250.45-6(g)) should be made more flexible by allowing owners or operators to use other types of emergency response systems in the event that their treatment process breaks down. The Agency agrees and has rewritten the standard in terms of a performance standard. The final standard requires that facilities at which hazardous waste is continuously fed into tanks be equipped with a means to prevent the inflow of waste to the tank, but it does not require that any particular method(s) be used to accomplish this objective. With the deletion of the requirement that the cut- off be automatic, the requirement is certainly appropriate for inclusion in the interim status standards because it should not require major equipment modification. 3. Waste Analysis and Trial Tests. As an adjunct to the inclusion of general requirements for waste analysis in the interim status standards, the Agency is Including specific waste analysis standards for specific types of facilities and equipment. Those for tanks; chemical, physical, and biological treatment facilities; and surface impoundments are drawn from proposed § 250.45-6 (b) and (c), and combined into a single requirement for each type of facility. The purpose of these requirements is to prevent accidents and haphazard experimentation with new wastes or new treatment techniques when chemical treatment of large batches of waste is involved. Put another way, these requirements ensure that the operator knows not only the characteristics of the waste involved, but how that waste will behave in a treatment process, or how a new treatment process will affect the wastes and the facility. Haphazard experimentation or treatment of waste without trial tests may cause corrosion of containment devices, fires, explosions, and other problems associated with ignitable, reactive, or incompatible wastes. Trial tests, or documented information or similar wastes under similar treatment processes and similar operating conditions, should bring to light unanticipated problems before large batches of waste are treated. - The comments have prompted several changes to the proposed sections. The regulations have been revised to make clear the Agency’s original intent that waste continuously flowing into a treatment process need not be continuously tested; tests or information are required only before the process is begun, or when the waste or treatment process changes significantly. Documented information may be used in place of tests when the inlormation covers wastes, processes, and operating conditions similar to the ones to be undertaken. However, reliance on documented information does not relieve the owner or operator of primary responsibility for assuring that he complies with the remainder of the regulations. 4. Inspections. Citing the relative structural stability of tanks (and the dikes surrounding them), several commenters suggested that the proposed daily inspection schedule ( 250.43—6 and § 250.44(c)) was unnecessary for tanks. EPA agrees that tanks and dikes need not be inspected daily, and has therefore changed the frequency for inspectión of these aspects of facilities from daily to weekly. However, the daily inspection requirement has been’ retained for emergency response sytems (e.g., waste feed cut-off or by-pass systems), the data gathered from monitoring equipment (e.g., pressure and temperature gauges) and waste level indicators at tanks. 5. Ignitable, Reactive, or Incompatible Wastes. Requirements for ignitable, reactive, or incompatible wastes were ------- 33202 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations proposed for interim status in standards for storage ( 250.44(i)) and in standards for treatment ( 250.45(c) and Note), and for the general standards under basins ( 250.45—4 (b) and (c)). Most of the requirements in the present regulalion are discussed above in the general section on ignitable, reactive, or incompatible wastes. The Agency has added a standard to the regulations which requires facilities storing or treating ignitable or reactive waste in tanks to comply with the National Fire Protection Association’s (NFPA’s) buffer zone requirements for tanks, contained in Tables 2—1 through 2—6 of the “Flammable and Combustible Code—1977”. The purpose of this standard is to minimize the potential for injury to the facility, facility personnel, and the neighboring public from flying debris and toxic air emissions which could result from explosions or fires involving hazardous waste. The standard apflies only to ignitable or reactive waste because the potential for fires and explosions is largely confined to such wastes. The NFPA standards already apply to many tanks containing ignitable materials under OSHA regulations. Since this requirement was not proposed, it is being promulgated interim final, and the Agency will consider comments on it. 8. Closure. The proposed interim status standardá for basins ( 250.45— 4(h)) and the proposed general standards for chemical, physical, and biological treatment facilities ( 250.45— 6(h)) required that all hazardous waste and hazardous waste residues be removed when the facility closed, and be disposed of as hazardous waste. A few commenters contended that The requirement that all residues resulting from treatment processes would have to be managed as hazardous waste was inconsistent with the statement in the preamble to the proposed Section 3001 rules, which required that waste be analyzed only when the generator has reason to believe that his waste is hazardous. The Agency believes that treatment residues will normally be hazardous. To clarify its position, the Agency has revised the Part 261 rules so that they now specify that residues from hazardous waste treatment processes are a hazardous waste unless the owner or operator can demonstrate otherwise (see the Part 261 preamble for the rationale for this change). The present regulations recite this in a comment. J. Subpart K—Surface Impoundments Surface impoundments, also known as pits, ponds, or lagoons, are often used to treat, store, or dispose of hazardous waste. A surface impoundment is defined as a part of a facility which is a natural topographic depression, man- made excavation, or diked area formed primarily of earthern materials, although it may be lined with man-made materials. Impoundments are designed to hold an accumulation of liquid wastes and wastes containing free liquids. Some-are lined with clay or synthetic materials to reduce or eliminate leakage to ground water. Leakage to ground water poses the most serious threat to human health and the environment from impoundments, but air emissions from volatile wastes and overtopping of the impoundment as a result of overfilling, precipation, or wind can also be serious problems. Discharges to surface water, which may be associated with such impoundments, are subject to control under the Clean Water Act (NPDES program). The requirements for minimum freeboard, protective cover on dikes (“Containment System”), waste analysis and trial tests, special requirements for. ignitable and reactive wastes, and special requirements for incompatible wastes were all proposed for inclusion in the general standards In a form not radically different from that proposed here. Since they were not proposed for inclusion in the interim status standards, they are being promulgated interim final only to the extent that the Agency solicits comments on whether they are suitable for inclusion in the interim status standards. The final RCRA interim status — regulations for surface impoundments involve the following issues. 1. Existing Surface Impoundments. ‘Many commenters stated that the proposed general regulations were infeasible for existing surface impoundments. They argued that retrofitting thousands of existing impoundments would be impractical, and suggested less stringent regulations for existing impoundments, unless they were found to be causing an ezivironmental problem. The Agency agrees that if an owner or operator can demonstrate that an existing surface impoundment is not contributing measurable quantities of contaminants to ground water, retrofitting should not be required in the interim status regulations. (To the extent the comments addressed issues relevant only to the general regulations, those comments will be addressed when the final general regulations are issued.) This issue was discussed at length in the previous discussion of Existing Facilities. These regulations may require retrofitting of some existing surface impoundments for maintaining freeboard and providing protective cover for earthern dik’es.,However, these requirements are standard feattfres of properly engineered surface impoundments, and should not pose a substantial burden to owners or operators of most impoundments. 2. Minimum Freeboard. The proposed general standards provided a minimum freeboard requirement. The Agency believes that such a freeboard requirement meets the criteria for interim status standards. It is accepted engineering practice to design surface - impoundments with sufficient freeboard to protect against overtopping by waves or precipitation, and most surface impoundments already have 2 feet of freeboard. At least six states already require the 2-foot freeboard required in these regulations. As a result, an interim status freeboard requirement will not typically require large capital expenditures by owners or operators, nor will it require Interaction with the Regional Administrator. For those facilities which do not meet the minimum freeboard requirements, the minimum freeboard can be established in a short period of time by such means as reducing the quantity of waste or adding additional height to the dikes. The proposed regulation required that the freeboard in a surface impoundment be capable of containing rainfall from a 24-hour, 25-year storm, but not be less than 2 feet. The objective was to prevent spillover of hazardous waste from waves or rainfall, and to reduce the risk of overfilling. Comments varied from suggestions that there be no requirements for freeboard to suggestions for more stringent requirements. The Agency has re-evaluated the effect of a 24-hour, 25-year storm, and has found that it would necessitate a smaller freeboard requirement than the specified minimum of 2 feet. It is thus unnecessary. The same is true of all other suggested storm standards, including the 24-hour, 100-year storm. No comments focused on the specific measure of 2 feet for minimum freeboard. Engineering handbooks, textbooks, design manuals, and State regulations specify the need for a minimum 2-foot freeboard to prevent overtopping by waves or rainfall. Therefore, the Agency is retaining a 2- foot minimum freeboard requirement. Some commenters suggested that level controls (coupled with NPDES discharge permits) should be allowed instead of a minimum freeboard. The Agency disagrees. Any level controls must still provide for a minimum freeboard to protect against overflows resulting from breakdowns in level control equipment, operator errors, waves, and significant ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33203 rainfall. In addition, since the Agency has deleted the phrase “average maximum” from the proposed definition of freeboard, the regulation now requires 2 feet of freeboard at all times during normal operation. 3. Containment System. The proposed general regulations required all earthen dikes to have an outside protective cover to minimize wind and water erosion. This requirement has been added to the interim status standards. Protective cover for earthern dikes is considered to be standard engineering practice, and many impoundments already have such a cover. Therefore, the Agency does not believe that a substantial capital cost, or any interaction with the Regional Administrator, will be necessitated by this requirement. The sole comment on this section stated that the purpose of protective cover, the preservation of the structural integrity of the impoundment, should be noted in the regulation. EPA agrees and has done so. 4. Waste Analysis and Recordkeeping. Waste analysis requirements were not included in the proposed interim status standards but were proposed as requirements in the general standards which applied to all facilities. However, the final interim status standards contain general waste analysis requirements in Subpart B, and in addition, include specific requirements for waste analysis in the standards for surface impoundments. Since these standards are essentially identical to those for tanks and chemical, physical, and biological treatement facilities, they are discussed in the section on tanks (Subpart J). The proposed interim status standards required that the owner or operator keep records of the contents and location of each surface impoundment. This information will reduce the probability of accidental mixing of incompatible wastes, aid in resolving damage incidents, and assist in determining proper closure procedures. Because all hazardous waste facilities must keep records on the types and placement of wastes, the recordkeeping requirements for surface impoundments are included in the general recordkeeping requirements for all facilities under Subpart E. 5. Inspections. The proposed interim status standards required that surface impoundment dikes be inspected daily in order to detect and correct any deterioration of the dikes. This rule was intended to minimize the possibility of dike failure. Comments supported the need for inspections, but recommended that they be conducted less frequently. Commenters argued that dike failure is a long-term event that can be detected with less frequent inspections, and that daily inspections would most likely be performed in a cursory manner. Most of the commenters recommended weekly, bi-weekly, or monthly inspections. The Agency agrees that inspections on a weekly basis are generally sufficient to detect cracks, erosion, and other deterioration in a dike well in advance of dike failure. They should also not impose a large burden on the owner or operator. Additional inspection may be prudent during or after an unusual rainfall, and should be considered by the owner or operator in the inspection schedule required by § 265.15. On a routine basis, however. weekly inspections of the surface impoundment, particularly for cracks or leaks in dikes, represents the best balance between need and practicality. The proposed regulations also required a daily inspection of any existing system used for detecting the failure of a liner system or natural soil barrier. This would ensure the timely detection of a failure of the impoundment liner system. This requirement has been subsumed in the general inspection requirements in § 265.15(b); the requirement for daily inspection has been replaced by a requirement that the owner or operator develop his own schedule. The Agency believes that when surface impoundments are in operation, there may be significant daily fluctuations in the level of the wastes. This potential daily fluctuation could substantially reduce the amount of appropriate freeboard needed to prevent overtopping, and less-than-daily inspection would not be safe in some instances. Moreover, this inspection is usually quite simple. Consequently, daily inspection of freeboard is required. 6. Closure and Post-Closure. The proposed interim status regulations required that upon closure, all hazardous waste and residues were to be removed from a surface impoundment and disposed of as a hazardous waste, unless the impoundment met the proposed - § 250.45—2 requirements for landfills and closed according to the landfill closure requirements. The proposed regulation was read by many commenters to allow existing surface impoundments to close as landfills under interim status only if they met the proposed general standards for design and construction of landfills as well as the standards for closure. Understandably, this drew strong objections. Such a requirement was not applied to landfills closing under interim status, and it was not intended to be extended to surface impoundments. Although it was not well reflected in the text of the proposed regulation, the Agency’s intent was to require surface impoundments closing under interim status as landfills to meet only the interim status requirements for closure of landfills, that is, the closure and post- closure care requirements for landfills. The present regulations have been restructured along these lines. In response to comments, the present regulations also allow more flexibility than the proposed interim status standards. If the owner or operator elects to avoid closing as a landfill, all hazardous wastes and hazardous residues must be removed from the surface impoundment, including (unless he can show that they are non- hazardous) the impoundm nt liner (if any) and underlying and surrounding contaminated soil. The choice whether to remove these materials or to close as a landfill is up to the owner or operator (subject to the approval of the Regional Administrator under Subpart G). In addition, the owner or operator may choose to remove only part of the hazardous materials and then close as a landfill. As a comment to the regulation points out, the detailed requirements for landfill closure may then be substantially reduced, because they depend on the apount and nature of the hazardous materials remaining, along with several other factors. The Regional Administrator may also adjust the post- closure care requirements as appropriate for the particular facility. The purpose of this approach is to provide the owner or operator with a wide choice of alternatives, while still assuring adequate protection of human health and the environment ft’om any hazardous wastes remaining in the impoundment after closure. The owner or operator’s choice of closure plans may depend, in substantial part, on just how much material will have to be removed from the impoundment. The determination of the amount of material to be removed will be a function of the amount and mobility of the remaining hazardous wastes, judgments as to the precise nature of the cover needed, and the post-closure care required. The determinations for closure are ultimately subject to the approval of the Regional Administrator. In making this judgment, the Regional Administrator may require tests of residues or contaminated soil to be made by the owner or operator. For these reasons, it may benefit the owner or operator of a surface impoundment to submit a closure plan to the Regional Administrator substantially more than ------- 33204 Federal Register I Vol.45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 180 days before the target date for the initiation of closure activities. In - addition, owners and operators are discouraged from penetrating surface impoundment liners in order to sample and analyze underlying soil for contamination, unless prior discussions with the Regional Administrator confirm the desirability of this step. Liner penetration could greatly increase leakage of hazardous waste into the underlying soil. A major requirement for an impoundment to be closed as a landfill is that the waste which remains in the impoundment must be capable of supporting the final cover. This may be accomplished by a combination of removing wastes (e.g., the liquid portion) and treating the residues (e.g., further dewatering/evaporation, or chemically stabilizing or solidifying the residues). EPA believes that these regulations satisfy many of the concerns raised in the comments to the proposed interim status standards. Those comments stated that the surface impoundment closure requirements were improperly restrictive, that it might in some instances be preferable to leave the waste in place than to move it, and that the requirement for inert fill was unnecessary. These regulations provide flexibility for closure requirements and allow the wastes to be left in place. The requirement specifying’Lhe use of inert material for fill has been deleted. Comments on the general standards will be dealt with when those standards are promulgated. Because the landfill closure requirements, on which the surface impoundment closure requirements are based, have been substantially modified and because there was some confusion surrounding the surface impoundment closure requirements proposed for interim status, this regulation is being promulgated interim final, and the Agency is soliciting comments on it. The Agency is especially interested in receiving comments on (1) whether the present landfill closure and post-closure care requirements need to be modified as they apply to surface impoundments, and (2) the number, size, and other characteristics of surface impoundments from which operators might opt to removal some or all of the hazardous wastes, residues and other contaminated materials during closure. 7. Ignitable, Reactive, or In compatible Wastes. This topic was previously discussed in the general section of the same title which supplies the rationale for the regulation of these wastes in surface impoundments. The issue of volatility has been deferred until more data is gathered (see discussion of “Volatility”). In the meantime, it must be emphasized that EPA does not condone the addition of. volatile hazardous waste constituents to surface impoundments. Several commenters requested that during emergencies they be permitted to place ignitable wastes, such as petroleum products, in surface impoundments used solely for emergencies. The regulation now permits this, and a similar provision has been made in the tank regulations. Furthermore, the section on ignitable or reactive wastes is not intended to cover stormwater collection and treatment ponds such as those at petroleum refineries, when they receive incidental amounts of oily material in otherwise non-contaminated run-off. K. Subpart L—Piles There were no regulations concerning the storage of hazardous waste in piles in the proposed regulations because the -proposed rules required that wast,es be stored in covered containers or tanks. The waste piles the Agency was aware of were generally used for disposal and were large enough to be properly managed as landfills. The final regulations still require that hazardous waste disposed of in piles be managed as a landfill. However, at public hearings during the comment period on the proposed regulations, the Agency became aware that hazardous wastes .are occasionally stored in piles for which the landfffl regulations are inappropriate. Comments at the hearings indicated that such piles are generally small, frequently less than 3 meters high. Many are in buildings or maintained outside on concrete or other pads. They are frequently used to accumulate. wasteS before shipment, treatment, or disposal, and are typically composed of a single dry material. The regulations in this Subpart are drawn partly from the landfill regulations (Subpart N) and partlyl from analogy to the storage regulations for tanks. Since none of the written comments gave details on how storage piles should be regulated, these regulations are founded largely on the descriptions of storage piles given at public hearings. Because none of these regulations were proposed as they relate to storage piles, they are being promulgated interim final, and the Agency especially solicits comment on them. 1. Protection From Wind. Because many piles are composed of dry, finely- divided materials, they are likely to be subject to wind dispersal. Wind-blown hazardous waste poses the obvious threat of pollution of nearby land and water, and the possibility of human health effects from inhalation or ingestion. The Agency is aware of one instance where material blowing from a very large pile of asbestos waste posed a health risk from inhalation. The interim status regulations therefore require that wastes piles containing a hazardous waste subject to wind dispersal be covered or otherwise managed so that wind dispersal is controlled. Piles inside buildings are already adequately managed for this purpose. In other cases, the Agency believes that owners and operators are in the best position to develop cost- effective measures to control wind dispersal of hazardous wastes. 2. Waste Analysis. The requirements in this section are intended as a refinement of the general requirements for waste analysis in § 265.13. As the regulation for waste piles and th comment to the regulation indicates, the basic purpose of waste analysis is to assure that incompatible wastes are not mixed, and that ignitable or reactive wastes are protected from sources of ignition or reaction. Facilities which receive only one or a few wastes which are stored in piles typically need not conduct a very sophisticated analysis of incoming wastes; the owner or operator can decide, for example, whether visual observation of the color and texture of the waste will meet the standard in the regulation. 3. Containment. Besides the requirements for closure, the major difference in the requirements between disposal piles and storage piles is that the former must have ground-water monitoring to detect contamination. If leachateor run-off from a pile is a hazardous waste, then owners and operators of the latter must either prevent the formafion of leachate and run-off or control hazardous leachate and run-off. - If the owner or operator chooses to prevent the formation of leachate and run-off, he must protect the pile from precipitation and run-on, and must not place any liquids or wastes containing free liquids on the pile. (See the preamble section on landfills for a discussion of free liquids.) Piles kept in buildings will typically meet this requirement. Alternatively, in order to control leachate and run-off, the pile must be placed on an impermeable base so that leachate and run-off can be collected, and run-on must be diverted away from the pile. The collected leachate and run- off must be managed as a hazardous waste, and an NPDES permit will be required if the leachate and run-off is ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33205 discharged through a point source to waters of the United States. The purpose of this requirement is to protect against contamination of ground water, surface water, and surrounding land by leachate and run-off from hazardous waste piles. 4. Closure. Because these regulations apply t&the storage of hazardous wastes, the definition of storage requires that all hazardous wastes and hazardous residues must be removed when the pile is closed. The definition of storage and the regulations in Subpart G also require that hazardous wastes and residues be removed from the pile base or the containment structure or other area on which the pile sat, and from any equipment or facility used to manage hazardous leachate or run-off from the pile. The closure plan required by Subpart C must address these requirements. in removing hazardous wastes or residues, the owner or operator becomes a generator of hazardous wastes and must manage them in accordance with all the requirements of Parts 262, 263, and 265 of these regulations. 5. Special Requirements for Ignitable or Reactive Waste. The problems posed by ignitable or reactive wastes are discussed above in the preamble section entitled “General Requirements for Ignitable, Reactive, or Incompatible Waste.” The first alternative for managing ignitable or reactive waste in piles— available when piling the waste renders the waste no longer ignitable or reactive—is the same alternative available for most other forms of storage or disposal and is straightforward. The second alternative—protecting the waste from any materials or conditions which may cause it to ignite or react—is analogous to the approach .used for tanks. It may be practical for piles kept in buildings and in some other circumstances. 6. Special Requirements for Incompatible Wastes. These requirements are similar to the analogous requirements for containers. Because piles provide little containment of the piled waste, there is a possibility that piled wastes may commingle with other wastes stored nearby, or that adjacent piles may grow until they overlap. Commingling of incompatible wastes must be prevented by separation or by means of a thke wall, or l erm. In addition, if hazardous wastes are piled in the same place that incompatible wastes were previously piled, a reaction between the new waste and residues from the previous pile may occur. Thus the area must be decontaminated so that the proscribed reactions do not occur. L. Subpart M—Land Treatment (Landfarms) The Agency is now using the term “land treatment facility” in place of “landfann” in order to employ a term which more accurately describes the purpose of this particular waste management practice. The terms “landfarm” and “landfarming” misleadingly imply a connection between hazardous waste disposal and crop production or soil beneficiation. The term “land treatment,” in contrast, implies that the land or soil is used as a medium to treat hazardous waste. This meaning, which is reflected in the regulations, is consistent with the Agency’s philosophy that applying hazardous waste to the soil is a waste management practice reserved for those waste streams that can be treated in a soil system. The limitations of this waste management practice are explained in more detail later. This practice simultaneously constitutes treatment and disposal of hazardous waste. The proposed regulations included only the closure portion of the landfarming regulations in the interim status standards. The Agency has decided to include other portions of the regulation in the interim status regulations because they serve important environmental objectives, and generally meet the criteria for inclusion in interim status. It is important to regulate certain aspects of land treatment during the interim status period because this is a disposal option that presents high potential risks in the absence of certain operational controls. These risks arise from the fact that land treatment involves the direct application of hazardous wastes to the land surface. Typically this occurs in the absence of the type of liner systems associated with landfills or surface impoundments. Unless the practice is carefully defined and regulated, irresponsible parties may try to characterize indiscriminate dumping of waste as land treatment. In addition, land treatment facilities may be used to grow food-chain crops. The Agency is concerned about the potential for hazardous waste constituents to enter the human food chain as a result of this practice. Since under certain conditions crops may be grown on such sites during interim status, it is important to address this concern during the interim status period. Monitoring requirements have also been included in the interim status standards because the Agency believes monitoring is such an essential first step in the regulation of hazardous waste disposal. Such monitoring will also be a part of any final Phase II regulations. Owners and operators of land treatment facilities, however, must begin to install unsaturated zone monitoring systems and begin to establish background levels of various parameters now so that they will be in a position to meet the treatment, ground-water, and food-chain crop protection standards. 1. Purpose of Treatment. In § 260.10 of the regulations issued today a land treatment facility is defined as “that part of a facility at which hazardous waste is applied onto or incorporated into the soil surface.” Operators of land treatment facilities generally apply the waste in thin layers and use common farm practices such as tilling, contouring, and erosion control techniques. They may also add nitrogen and phosporus fertilizers to enhance microbial degradation of the waste. The general objective of land treatment is the microbial degradation of organic waste constituents. Compared to the more conventional methods of disposing of waste in landfills and surface impoundments this practice is relatively new. It is used primarily to treat oily wastes, but may be feasible for other types of wastes. While EPA does not wish to rule out the legitimate use of this waste management option, there are certain inherent risks with this practice which make careful regulation necessary. One of the key elements in these regulations that will minimize such risks is a clear specification of the purpose of land treatment. In doing this, the Agency hopes to prevent the situation where irresponsible parties may claim that their indiscriminate dumping of waste is land treatment. EPA believes that the only legitimate purpose for the land treatment of hazardous wastes is to treat the waste to reduce its hazardous properties. This reduction occurs through biological degradation or chemical reactions in the soil that alter the chemical state of the waste. The Agency acknowledges that soil has the capacity to effectively filter and dilute waste. However, these physical mechanisms provide little or no net reduction in hazard if they do not alter the chemical state of the waste. Consequently, the use of the soil solely as a filtration or dilution medium is not considered appropriate for land treatment. In addition, any benefit derived from.land treating hazardous waste, beyond that of the treatment itself, is considered to be incidental, and not an appropriate justification for permitting the practice. Consequently. land treatment of hazardous waste merely for the purpose of providing ------- 33206 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations nutrients to crops is not considered an acceptable practice under these regulations. Based on the Agency’s interpretation of the purpose of land treatment, the regulation specifies that hazardous wastes must not be placed in or on land treatment facilities unless the owner or operator can demonstrate that biological degradation or chemical reactions in the soil will make the waste less hazardous or non-hazardous. The monitoring requirements specified in the regulation will assist the owner or operator in confirming that determination. The owner or operator must be able to demonstrate that the treatment • requirement is being met at the facility. Continued land treatment without the ability to make that demonstration is a violation of these regulations. 2. Surface Water Run-On and Contaminated Run-Off. The Agency has decided that the term “run-off’, as used in the proposed regulation concerning the construction of “diversion structures to divert all surface water run-off from the active portions of a facility,” was confusing. Therefore the term “run-on” has replaced the term “run-off” in these situations. That is, as used in these regulations, run-on is water which runs onto the active portions of a land treatment facility or landfill from other portions of the facility or from outside of the facility. Run-off is now defined as rainwater, leachate, or other liquid which flows from the active portions of a disposal facility. Requirements for control of surface water run-off and run-on were not included in the proposed interim status standards for land treatment facilities. However, those requirements were specified in the proposed general standards in § 250.43(b) and (c). Those regulations required the owner or operator to construct diversion structures capable of preventing run-on from entering a land treatment facility. A variance to this requirement was allowed where an owner or operator could demonstrate to the Regional Administrator that run-on would not enter the site and come in contact with the hazardous waste. The proposed regulations also required the owner or operator to collect and confine run-off from active portions of the facility to a point source before discharge or treatment. In these interim status regulations land treatment facilities will be subject to the same requirements as landfills regarding surface run-on and run-off. Run-on must be diverted away from the active portions of the land treatment facility. Run-off from the active portions must be collected. If the collected run- off is a hazardous waste it must be managed as a hazardous waste. If it is not a hazardous waste it may still need to be analyzed, treated, or otherwise managed to comply with Subtitle D of RCRA or the Clean Water Act. For a more specific description of these requirements see the “Landfill” portion of this Preamble. The Agency acknowledges that the surface area of the active portions of a land treatment facility will generally be larger than the surface area of the active portions of a landfill. This will necessitate more extensive run-on diversion structures and run-off collection systems for land treatment facilities. EPA believes, however, that such controls are necessary at land treatment facilities because this disposal option involves the placement of hazardous waste on, or barely under, the surface of the land. Such a technique presents a substantial risk that hazardous waste or hazardous waste constituents will be carried off the site by surface water run-off. A 12 month delay for run-on and run-off control compliance is allowed in these regulations. See further discussion under “Landfills.” 3. Recordkeeping. Under the interim status regulations owners and operators of land treatment facilities must ensure that the application dates, the application rates, the quantities, the results of waste analyses, and the location of each hazardous waste placed in the facility is in the operating record required under § 285.73. Such recordkeeping is needed to allow the owner or operator and the Regional Administrator to evaluate the facility’s compliance with the other requirements of this Subpart. For example, the waste analyses, the application rates, and quantities of hazardous wastes placed in the facility will assist, through the use of a mass-balance analysis, in determining whether the treatment objective of the facility is being met. Information on application dates and locations will assist in determining whether the unsaturated zone monitoring system is properly designed to detect migration of hazardous waste and hazardous waste constituents. 4. Waste Analysis. The proposed regulations contained general waste analysis requirements which applied to all facilities. The general waste analysis regulationsin these final interim status regulations require waste analysis as is necessasry to comply with the regulations, including the land treatment standards. Owners or operators Of land treatment facilities must further analyze waste for the hazardàus waste constituents which caused the waste to be listed, if it is listed, and the constituents which exceed the levels specified in Table 1 of § 281.24 of this Chapter. Such information will be essential to a demonstration that the waste is being made less hazardous at the facility and will be relevant to both the ground-water and food-chain-crop protection goals of this Subpart. If food-chain crops are grown, the waste must be analyzed for arsenic, cadmium, lead, and mercury. The owner or operator need not test for each of these elements if he has written information to indicate that the constituent is not in the waste. 5 iitoring. The proposed regulation required semi-annual soil monitoring of the treated area of a land treatment facility. This was to be accomplished by taking one soil core per acre to a depth of three times the zone of incorporation (i.e., three times the depth to which the waste was tilled into the soil). If migration was detected, as indicated by an increase in waste constituents over background levels in the bottom one-third of the core, the owner or operator was to notify the Regional Administrator and cease operation in the affected area until corrective actions could be taken. In contrast with landfills and surface impoundments, the proposed regulations did not specify ground-water monitoring for land treatment facilities. The environmental performance of a land treatment facility was to be evaluated solely on the basis of soil monitoring. Because of this difference, the Agency solicited information on the desirability of ground-water monitoring at land treatment facilities. The Agency suggested that soil monitoring would detect migration of waste constituents long before ground-water monitoring would. EPA received several comments suggesting that ground-water monitoring in addition to soil monitoring was unnecessary. Other com.menters, however, expressed the opinion that ground-water monitoring was also necessary. These commenters claimed that soil monitoring has certain limitations such as its lack of reliability for detecting highly mobile contaminants. They argued that soil monitoring “should not be solely relied upon to provide protection of our ground-water resources.” Commenters also were specifical1 concerned about the sampling procedures, the standard for when the treatment system had failed, and the corrective action that was to follow detection of a failure. The requirement to analyze each soil core for those ------- Federal Register I Vol. 45, No. 98 / 19, 1980 / Rules and Regulations 33207 constituents in the waste which made it hazardous was considered extreme and impractical. Cornmenters suggested that indicator substances be analyzed instead. Commenters also challenged the “three-times the zone of incorporation” test for determining whether the treatment system was successful, arguing that such a distance did not relate to the ground-water contamination threat; rather, other factors, such as thickness and permeability of the unsaturated zone, determine the potential for contaminating ground water. Using a similar argument. commenters argued that corrective action should not be triggered simply by the appearance of contamination at a depth of three times the zone of incorporation. After examining these comments EPA had decided to focus the interim status regulations on the establishment of the basic monitoring systems needed to accurately detênnine whether the complex processes involved in land treatment sre, in fact, occurring, and whether contaminants are migrating to ground water. The development of the standard by which success or failure is judged will be part of the Phase 11 regulations. Regardless of what that standard is, the facility will be required to install s system of unsaturated zone and ground-water monitoring to determine the success of the treatment process and impacts on ground water. Unsaturated zone monitoring includes both soil-pore water and soil core monitoring. While unsaturated zone monitoring is useful in assessing the likelihood of ground-water contamination at new facilities and in indicating any migration occurring with each new waste application at existing facilities, ground- water monitoring is the only mechanism that can accurately detect the presence and degree ofground-water - contamination. Therefore, ground-water monitoring is required at land treatment facilities. Owners and operators of existing land treatment facilities must be sble to determine the actual effect of their facilities on ground water in order to comply with the Phase II requirements. - In addition, the environmentally ;ensitlve nature of land treatment ?equires the owner or operator to have in accurate picture of the treatment rocess at work in the soil. EPA has lecided that such an objective requires nstallation of both soil core monitoring md soil-pore water monitoring. Soil ore monitoring is useful in determining he extent to which the hazardous vastes are being attenuated and broken down in the soil. Soil-pore water monitoring is a necessary complementary or back-up system to assure that the absence of a hazardous waste constituent in the soil core sample indicates a breakdown of the waste rather than merely the rapid migration of the waste material through the soil matrix. Several comments and the results of an EPA-sponsored study indicate that the latter phenomenon can occur for some organic compounds found in hazardous wastes. A combination of soil core and soil-pore water monitoring provides the basis for a mass balance analy 1p of the unsaturated zone to detbrmine whether the treatment process is meeting the treatment objective. Using the monitoring data as feedback on the performance of a site, an owner or operator can more effectively manipulate operating variables in order to optimize the performance of the site (e.g., waste application rates and pH controls). Careful analysis of the upper soil layers is also needed because of another change that has been made in the regulation. The Agency has decided that growth of food-chain crops need not be banned at hazardous waste land treatment facilities but rather should be carefully regulated. Information about the presence of contaminants in the upper layers of the soil is, therefore, necessary to assess the risk of significant plant uptake of toxic constituents. Soil-pore water monitoring is more easily achieved at land treatment sites than at landfills or surface impoundments. Lysimeters or similar devices which measure soil-pore water contamination can be installed at land treatment facifities in the area where waste has been applied. The relatively shallow depth of waste application at land treatment facilities allows lysimeters to be replaced, at both existing and new facilities, when they become clogged or otherwise nonfunctional. Furihermore, land treatment facilities typically do not have liners which would interfere with the placement of lysimeters. In response to the specific comments on soil monitoring, the Agency has - decided not to specify particular procedures or protocols for conducting unsaturated zone monitoring during interim status. Owners and operators will be given the flexibility to develop reasonable monitoring plans that meet the general objectives specified for such plans. Once established, these plans must be followed, and an owner or operator’s failure to follow his own plan constitutes a separate violation of these regulations. In considering the constituents to be monitored and analyzed for i ii the unsaturated zone, EPA considered the use of indicators. That approach was rejected, however, because the Agency has not yet been able to devise a set of indicators that reflect the success of waste treatment in the soil. EPA is requiring that the owner or operator monitor and analyze for those hazardous waste constituents contained in the wastes applied at the facility that caused those wastes to be listed as hazardous, if they were listed, and those that exceed the maximum contaminant limits in Table 1 of § 261.24 of this Chapter. These constituents, at a minimum, are the ones which have the potential to create environmental hazards if these wastes are mismanaged. Such constituents must, therefore, be included in any monitoring system designed to determine the effectiveness of a land treatment system in reducing the hazardousness of the waste. The Agency believes that the constituents to be monitored are sufficiently few as not to cause an undue burden. In response to the challenge to the “three-times the zone of incorporation” test to determine success of treatment, the Agency is exploring whether other simpler tests can be developed. Until the time that such a test is developed, owners and operators will have to provide waste-specific, constituent- specific, and site-specific evidence that the treatment objective is being met. The final interim status regulations require owners and operators of land treatment facilities to develop and implement unsaturated zone monitoring plans. These plans must be designed to determine the concentrations and migrations of hazardous waste constituents in the soil. The plan must also describe how the owner or operator will establish background concentrations of those constituents through testing of similar untreated soil. The monitoring program for the unsaturated zone must include soil core and soil-pore water monitoring (ground- water monitoring is required separately under Subpart F of these regulations). The unsaturated zone monitoring plan must specify the owner’s or operator’s rationale for such key elements as the depth of monitoring, the number of samples, the frequency of sampling, and the timing of sampling. These decisions must reflect a consideration of the variability of the waste and the waste ! soil mixture, proximity to ground waler, ------- 33208 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations the manner of waste application, and soil permeability.. 6. Food-Chain Crops. Thg proposed regulation prohibited growing food- chain crops on active portions (treated areas) of hazardous waste treatment facilities. The purpose of this regulation was to protect humans from consuming toxic materials that might be present in or on crops grown on land to which hazardous waste has been applied. At the time, the Agency considered a ban as the only means of achieving this objective. Commenters objected to this ban, suggesting that some crops 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 monitoring crops for their uptake of hazardous constituents. 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 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’s or pathogens. Commenters argued that the application of some hazardous wastes to food-chain crops presents no greater risk than such practice with some nonhazardous waste. It is the Agency’s firm belief that growth of food-chain crops on land to which hazardous waste has been applied is an issue which should be dealt with cautiously, and should be allowed only where there is convincing evidence that the practice is safe. EPA believes there is little real 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 growth 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. On the other hand, the Agency feels that where there is convincing evidence that such crop growth is safe, it would be unjustified to prohibit it. It is conceivable that constituents in a particular hazardous waste may not be taken tiji by certain food-chain crops, or after a period of treatment, the constituents may have degraded into products non-hazardous to humans. The Agency carefully examined the suggestion made by commenters of specifying “safe” application rates. At- this time, however, the existing data base on rates of crop uptake of - hazardous substances are not comprehensive enough to permit the Agency to specify safe application rates. Regulation by crop monitoring is limited by the fact that safe levels of most hazardous substances in crops have not been determined by the Food and Drug Administration, the Department of Agriculture, or the Environmental Protection Agency. The Agency also examined the approach used in the Criteria and concluded that the limits developed in those regulations for cadmium should be incorporated into this regulation. Thus the cadmium limits present in that regulation will be applicable to hazardous waste land treatment facilities. The Criteria include two approaches for the land application of wastes containing cadmium. The first approach incorporates four site management controls: Control of the pH of the waste and soil mixture; annual cadmium application limits that are reduced over time; cumulative cadmium application limits based on soil cation exchange capacity (CEC) (specified in units of milliequivalents of exchangeable cations in soil per gram of soil); and a restriction of the cadmium concentration in waste applied to facilities where tobacco, leafy vegetables and root crops are grown. The second approach 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 6.5 or above for as long as food-chain crops are grown. Third, a facility operating plan must describe how the animal feed will be distributed to prevent human ingestion. Fourth, future owners are provided notice (through provisions in land records or property deed) that there are high levels of cadmium in the soil and that food-chain crops should not be grown. The Agency does not believe, however, that the Criteria sufficiently address the broad range of constituents present in hazardous waste. Therefore, EPA has decided to set additional requirements 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 have been identified because of their relatively high toxicity to humans and evidence that they can be taken up by crops. Mercury can enter plants through the roots and be readily translocated throughout the plant. Arsenic tends to accumulate in the roots of most crops. which is a concern when root crops such as radishes, carrots. etc., are grown. When in high concentrations in the soil, lead has been shown to translocate to crops. The Agency is concerned that there are other hazardous substances in the waste, including toxic organics, that may be taken up by plants. Because most plant up-take studies have addressed only inorganics, there is a paucity of data on the up-take of toxic organics by crops. The Agency is aware, however, that data may exist that could identify other hazardous substances of concern. Therefore, EPA is seeking information on other hazardous substances that could be taken up by crops. Where the Agency does not yet have a clear specification of the “safe” level of contaminants in food crops, it will assume that the level of such contaminants presently in food crops not grown on waste-amended soils is acceptable. As further research refines the Agency’s thinking, It may be that health tolerances in food crops should be higher or lower than the average levels otherwise present in such crops. Based on that assumption, EPA has devised a two-part test to determine whether food-chain crop growth on land treatment facilities is acceptable. Prior to growing a crop for market on soils that have received hazardous wastes. the owner or operator must document that the hazardous waste constituents in the waste, as well as any arsenic, lead, and mercury, will not (1) be transferred to the edible portion of the crop by plant up-take or direct contact, or be transferred to food-chain animals; or if it does, that it will not (2) occur in greater concentrations in the crop than in crops grown in the same region on similar soils which have not had wastes applied. An owner or operator must use actual field studies of the crop for comparative purposes. Also, the conditions under which the comparable crops are grown must be 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. In order to determine compliance prior to waste application the Owner or operator must pre-test a sample crop using the type of waste and ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33209 application rate that will be used at the facility. Finally, EPA has added a provison to these regulations that requires owners or operators of.land treatment facilities on which food-chain crops have been grown, or are being grown, to notify the Regional Administrator within 60 days after the effective date of these regulations if they intend to again grow food-chain crops during the interim status period. In addition, a comment in the regulation apprises an owner or operator, who has not accordingly notified the Regional Administrator and who proposes to grow food-chain crops during the interim status period, that this is a change in process and he must notify the Administrator under Section 122.23(cJ(3) of the consolidated permit regulations. These notification procedures are designed to give the Regional Administrator notice of those facilities that are engaging in the environmentally sensitive activity of growing food-chain crops at land treatment facilities. This will assist the Regional Administrator in the establishment of priorities for permitting. 7. Closure. The proposed regulations provided two basic options for closure of a land treatment facility. One option was to return the soil in the treated area to its pre-existing condition, as determined by background soil analysis or analysis of similar local soils. The other option was to remove the contaminated soil from the facility if that soil met the characteristics of a hazardous waste. (If it did not have any of the characteristics of a hazardous waste, no further action was required.) 1-lowever, a variance to the second option allowed closure of a facility as a Landfill if the owner or operator could lemonstrate that the design or location of the site provided long term integrity snd enviropmental protection equivalent to a landfill, as specified in the proposed regulations. Many comnienters argued that the requirement to return the soil to its pre- existing condition was impractical and would make land treatment infeasible. They also objected to the provision which required that the soil be removed it closure. On the other hand, the EPA xtraction procedure (EP) was criticized is being an inappropriate mechanism or determining whether the soil in the Teated area was hazardous. The EP was ;aid to be too limited in applicability, )ecause it does not address most )rgamcs and some metals. Some :ommentera suggested alternative :losure procedures which allow tailoring he closure procedures to the site. After examining these comments, the Agency has concluded that greater flexibility should be given in the regulation to allow the owner or operator to develop a plan that considers certain key factors and that meets general human health and environmental objectives. Under the final interim status regulations the owner or operator of a land treatment facility must develop and implement a facility closure plan. The terms of that plan are enforceable against the owner or operator. The plan must address four objectives: (1) Controlling the migration of hazardous waste and hazardous waste constituents into ground water; (2) controlling the release of contaminated run-off to surface water, (3) controlling the release of airborne particulate contaminants: and (4) compliance with the standards established for food-chain crops. The owner or operator must consider a range of factors affecting the facility’s ability to meet the objectives. These factors include the waste, the climate, the site location, the soil, and the depth of contaminant migration. The owner or operator must also consider the applicability of various closure methods including removal of the soil, run-off collection and treatment, use of cover materials, diversion structures, and additional monitoring. The owner or operator must also develop a post-closure care plan. The terms of this plan are also enforceable against the owner or operator. Under these interim status regulations the post- closure care plan must provide for maintenance of monitoring systems, restriction of access as appropriate for post-closure use, and control of the growth of food-chain crops to the same degree as required for an active facility. The requirements for the closure and post-closure plans for land treatment facilities and landfills are similar in terms of objectives but differ slightly in the mechanisms by which these objectives are to be achieved. The landfill post-closure plan requires the owner or operator to address the following: (1) Maintenance and monitoring of leachate collection systems (if present), (2) Maintenance and monitoring of gas control systems (if present), and (3) Final cover. For land treatment facilities, however, the first two items are not required because the Agency is not aware of any leachate collection systems and these facilities are rarely plagued by gas problems. This results because cover material is not laid down after the waste is applied so that gases are not confined, and decomposition of the waste occurs predominantly in an aerobic state so that methane, carbon monoxide, and hydrogen sulfide are not produced. Although final cover is addressed in both the land treatment and landfill closure requirements, it is mandatory only for landfills. Final cover must be considered, but is not mandatory, for a land treatment facility where the waste has been rendered non-hazardous. Where wastes have been rendered less hazardous, the determination of whether final cover is needed, in part, will be dependent on the degree of risk to human health and the environment presented by the hazardous waste constituents remaining in the soil. 8. Ignitable, Reactive, or In compatible Wastes. The proposed regulations prohibited placing ignitable, reactive, volatile, or incompatible wastes in a land treatment facility, but allowed a variance if the owner or operator could demonstrate that airborne contaminants would not exceed a specified concentration, and that the attenuation capacity of the soil would not be adversely affected through heat generation, fires, or explosions. The primary criticism of the proposed regulation, other than the restriction on airborne contaminants, was that the prohibition was inappropriate because many wastes classified as ignitable, reactive, or incompatible might lose these properties when land treated. The Agency agrees and has modified the regulation. The final standard requires the owner or operator to incorporate ignitable or reactive wastes into the soil in such a manner that the resulting waste, mixture, or dissolution of material no longer exhibits ingitable or reactive characteristics, and complies with § 285.17(b). Ignitable or reactive wastes may also be placed in a land treatment facility if they are rendered non-ignitable or non-reactive before land treatment. Incompatible wastes may not be placed in the same land treatment area unless the land treatment- process complies with § 265.17(b). For a description of the general requirements applicable to the disposal of ignitable, reactive, or incompatible wastes see the “General Facility Standards” portion of this Preamble. M Subpart N—Landfills Landfllling has historically been the preferred means of disposing of hazardous waste. Until the last decade, some people acted as though, once buried, hazardous wastes would cause no more difficulties Past practices often focused only on burying the waste to get it out of sight and on control of surface problems such as blowing litter or ------- 33210 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations vectors. Recent experiences at Love Canal in New York and other burial operations have demonstrated the potential for severe human health and environmental impacts from improper landfihling. Many argue that, since many of these wastes remain hazardous for very long periods, they should not be landfilled. EPA agrees in principle that it is better to destroy or recycle hazardous wastes than to landfill them, but the fact remains that, for the foreseeable future, land disposal will be necessary because it is technically infeasible at present to recycle, treat, or destroy all hazardous waste. Over the past decade, research and Lnvestigatlons of good and bad practices, including documented damage cases, have advanced the state-of the- art of landfihling significantly. Landfilling is much more than just burial of wastes, particularly for hazardous wastes. Landfills must provide long-term protection of ground water, surface water, air, and human health. Although the state-of-the-art is still developing, a number of techniques are now available For effectively reducing the adverse health and environmental effects from landfills. The problems which hazardous waste landfills have presented can be divided into two broad classes, which these regulations attempt to address. The first class includes fires, explosions, production of toxic fumes, and similar problems resulting from the improper management of ignitable, reactive, and incompatible wastes. The Agency believes that methods for dealing with these problems are generally available today, and that they can begin to be implemented in these interim status standards without substantial capital expenditures, the need for case-by-case determinations by EPA permitting officials, or substantial lead times. These methods include the analysis of wastes to provide enough information for their proper managment; the - controlled mixing of incompatible wastes or their segregatiàn in separate landfill cells; and the landfilling of ignitable and reactive wastes only when they are rendered not ignitable or reactive. The second class of problems, contamination of surface and ground waters, presents substantially more difficulty. Several approaches to environmental protection, including proper siting, lining, and leachate collection, do not meet EPA’s general internal guidelines for those standards it will impose during interim status. Such standards might involve too great a pre- permit investment, or might be so site- or waste-specific that they would require case-by-case determinations by the Regional Administrator. Such standards could also require automatic closure or relocation of some facilities, or substantial retrofitting. Other measures, however, are available which will help reduce the formation of leachate in currently operating landfills. The measures incorporated in these interim status regulations are diversion of “run-on” (water flowing over the ground onto active portions of the facility) away from the active face of the landfill; treatment of any liquid wastes or semi-solid wastes so that they do not contain free liquids; proper closure (including a cover) and post-closure care to control erosion and the infiltration of rainfall; and crushing or shredding most landfilled containers so that they cannot later collapse and lead to subsidence and cracking of the co ,er. In addition, these regulations require ground-water monitoring to detect contamination of ground water, and collection of rainwater and other run-off from the active face of the landfill to control surface water pollution. As discussed previously under “General Requirements for Ignitable, Reactive, or Incompatible Wastes,” the Agency is also considering requiring the segregation of wastes, such as acids, which would mobilize, solubilize, or dissolve other wastes or waste constituents, such as heavy metals. These regulations represent an — important step toward safer disposal of hazardous wastes in landfills. Regulations similar to those appearing in the present sections on “General Operating Requirements” and “Special Requirements for Ignitable or Reactive Wastes” were proposed for inclusion in the general standards. They are being promulgated here interim final only to the extent that the Agency will accept comments on whether they are appropriate for inclusion in the interim status standards. Regulations on closure and post-closure, special requirements for liquid waste, and special requirements for containers are being promulgated interim final and are further discussed below. 1. Landfill Cells. These regulations incorporate the concept of landfill cells. Such cells can be used to separate incompatible wastes. As suggested by the comments, the proposed definition of a cell as “a portion of a waste in a landfill” has been replaced by “a discrete volume of a hazardous waste landfill which uses a liner to provide isolation of wastes from adjacent cells or wastes.” This makes the cell a discrete part of the disposal facility rather than a portion of waste as in the proposed definition. This arrangement, together with the flexibility of closure regulations, and the concept of partial closure, permits different cells to have different closure requirements and may permit different financial arrangements in appropriate circumstances. Cells may be physically separate areas of a landfill, or trenches or parts of trenches, or separate pits. The determining condition is that the cell be a discrete volume separated by a liner or cover from adjacent cells or other wastes in the facility. 2. Surface Water Run-on. A requirement for control of surface water run-on was not included in the proposed interim status standards. This requirement was specified, however, in the proposed general standards in § § 250.43(b) and 250.45—2(b)(7). The purpose of this standard was to minimize the amount of surface water entering the landfill facility. Run-on controls prevent (1) erosion, which may damage the physical structure of the landfill, (2) the surface discharge of wastes in solution or suspension, and (3) the downward percolation of run-on through wastes, creating leachate. Control is accomplished by constructing diversion structures to prevent surface water run-on from entering the active portion of the landfill facility. A note in - the proposed regulation provided that no diversion structures were required where it could be demonstrated to the Regional Administrator that local topography would prevent surface water run-on from entering the facility. Comment was received that the proposed regulation implied that all run- on would have to be diverted from the landfill, and that the regulations should specify the capacity of the diversion structure in terms of the useful life of the landfill. The Agency believes that the main area of concern for protection of human health and the environment is the active portion of the landfill, not the landfill facility as a whole (as may have been suggested by the language of the proposed regulation). It is at active portions that run-on is most likely (1) to seep into the exposed waste, contributing to the formation of leachate, or (2) to erode wastes, or constituents of them, and carry them away in run-off. The Agency requires in these regulations that all surface water run-on be diverted from active portions. Diversion of run-on may be accomplished by locating the active portion in areas where the topography naturally prevents run-on, by sloping or contouring the land, or by constructing ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules .and Regulations 33211 itches, culverts, or dikes. The capacity [ diversion structures should be stermined by the owner or operator nsidering site topography, size of drainage area, and size of the active portions. Comments were received suggesting that the proposed standards be modified to allow the owner or operator the flexibility to either divert surface water run-on or collect and treat all of the surface run-off, as long as Clean Water Act effluent limitations were complied with. The Agency disagrees. EPA believes that such a standard allows the unnecessary inf(ltration of water into the landfill. The Agency has determined that diversion of run-on is appropriate for inclusion in the interim status standards. Run-on control is for active portions only. The Agency expects that run-on diversion structures, where needed because of topography, will most likely be earthen dikes or berms, or ditches, which can be erected with earth moving equipment commonly found at landfills. These structures can be temporary, and can move with the active portions as material is added to the landfill. Such structures can be designed and maiiitained adequately during interim status without case-by-case review by ermitting officials. — A 12 month delay is allowed for Dmpliance with this requirement so tnat operators will have adequate time to make any necessary topographic and hydrologic determinations and complete construction. 3. Contaminated Surface Water Run- ‘Off. Requirements for collecting and managing contaminated surface water run-off were not included in the proposed interim status standards, but were proposed in the general standards in § 250.43(c) and 25o.45—2(b)(8). Their objective was to reduce the potential for off-site migration of contaminated run- off to land or to waters of the United States. There have been a number of damage incidents caused by mismanaged or uncontrolled contaminated run-off from landfills. Ten J these Incidents are briefly described and referenced in the landfill background document. These damage cases demonstrate that run-off from active portions of hazardouswaste landfills can cause serious adverse impacts to land and surface waters. In contaminating streams, run-off from landfills frequently results in fishkills and destruction of other aquatic life. During the period 1963—1974, forty-seven eparate fishkills caused by run-off from raste disposal were recorded by EPA. ased on this evidence, EPA believes iat it is imperative that run-off from active portions of hazardous waste landfills be controlled during the interim status period. Furthermore, control of run-off from active portions of hazardous waste landfills is presently a widely accepted and relatively simple practice. As of January 1979, all but two States specifically require in their solid or hazardous waste regulations control of run-off from at least the active portions of all off-site landfills. Run-off control is accomplished by (1) minimizing run-off and (2) collecting and managing run-off from active portions. Run-off is minimized by (1) preventing run-on, (2) minimizing the size of the active portion, and (3) preventing disposal of liquid wastes in the landfill. There are two basic types of landfill -operations: trench method and area fill method. By design, almost all trenches, and area fills using depressions or pits, control most run-off because of surface contours (i.e.. liquids that come into contact with the-waste generally infiltrate rather than run-off). Area fills which do not use depressions can be operated by building a berm or dike on the low elevation side to contain any run-off. However, when landfills using either the trench or area methods become large and substantially above grade, both run-off and leachate seeps, which often occur on the outer slopes of the fill, need to be collected. Run-off which does emerge from active portions may be collected by ditches, berms, dikes, and culverts which direct it (sometimes by sump pump) to surface impoundments, basins, tanks, or treatment facilities. These collection devices may consist of temporary structures around active portions. Since run-off usually has been in contact with waste or leachate seeps from active portions, and since run-off sometimes if collected via a leachate collection system, it is usually contaminated. Thus. it is usually impossible to differentiate between rainwater run-off and leachate run-off at the active portion of a landfill. Because of this, the proposed definition of “run-off”, which was “that portion of precipitation that drains over land. . .“, has been revised to “any rainwater, leachate, or other liquid that drains over land. . .“. This change indicates that more than just precipitation must be collected. Once collected, a number of options exist for treating and disposing of run- off. These are the same options which exist for managing liquid wastes and leachate and include deep well injection, land treatment, treatment in surface impoundments (evaporation, aeration, chemical treatment, etc.). dewatering or mixing with an absorbent material and disposal in the landfill, percolation through a filtering or attenuatiOn medium (e.g.. charcoal, clay, soil, sand), or discharge to a sewer or other treatment facility. The proposed landfill standards required that if surface water came into contact with the active portions of a facility, it was to be collected and managed as a hazardous waste unless it was analyzed and found not to be hazardous. The Agency received essentially no objections to the proposed requirement that landfill run-off be collected and treated in some fashion. Most of the comments on the proposed standards concerned the capacity of the treatment systems or the final disposition of the run-off. These comments are discussed in the background document. The current regulation does not limit the - method of treatment of run-off. The regulation requires run-off from active portions to be collected. The collected run-off is a solid waste from an industrial activity (the operation of the landfill) and the owner or operator must determine whether it is a hazardous waste in accordance with Section 262.11 of this Chapter. If the collected run-off is a hazardous waste it must be managed as a hazardous waste. Even if it is not a hazardous waste, good management practices may still require some degree of treatment or use of other techniques as previously discussed, although such practices are not required by these regulations. A 12 month delay for compliance with these regulations is given so that existing facilities may construct new run-off control systems or upgrade existing systems, including those for run-off treatment and disposal. - If collected run-off is discharged to waters of the United States, owners or operators of facilities must have or apply for an NPDES permit under the Clean Water Act. 4. Wind Dispersal. Dispersal of landfilled hazardous wastes by wind is not often a problem. The Agency’s major concern in requiring the control of wind dispersal is large waste piles which constitute disposal and thus come under the landfill regulations. The Agency is aware of at least one case in which wind dispersal from a pile of asbestos wastes created a health risk. It therefore seems prudent to require that, where landfllled hazardous waste is subject to wind dispersal, the landfill be managed so that wind dispersal is controlled.’ Appropriate methods may vary from - waste to waste, and the Agency believes that the owner or operator of the facility is best able to develop an adequate, cost-effective technique to meet this requirement. ------- 33212 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations This requirement was not proposed for inclusion in either the interim or general standards. Comments and meetings following publication of the proposed regulations brought to light the fact that piles are sometimes used for storing and disposing of wastes, some of which may be hazardous. Subpart L (Waste Piles) grew out of these comments, and also includes a requirement for controlling wind dispersal. The Agency believes that this requirement should typically not require major capital expenditures, does not requiri case-by-case determinations by the Regional Administrator, and can be accomplished within six months. It is therefore appropriate for inclusion in the interim status standards. Since it was not proposed, It Is being promulgated interim final, and the Agency solicits comments on it. w 5. Surveying and Recordileeping, Recording the location of each hazardous waste type within a landfill cell will help ensure that this information is available for proper landfill operation, closure, and damage assessment, when necessary. For example, this information is useful in managing potentially incompatible wastes and materials, and will help deal with emergencies, such as fires and help in locating sources of contamination. Methods of càrrection and potential for further damage may also be more readily identified. The major issue raised in the comments was an objection to the - proposed requirement that exact locations of waste within each cell be recorded. The Agency agrees that this requirement may have been overly restrictive as applied to all wastes. The regulation now only requires recording the waste’s approximate location within a cell. However, the owner or operator must record the location of each waste type with sufficient accuracy to enable proper management of incompatible wastes, and later treatment, excavation. or other remedial action, if necessary. For example, with an extremely mobile waste this may mean recording its exact location; for a landfill or landfill cell which receives only a few types of wastes, it may mean merely recording the approximate location of the demarcations between wastes. EPA suggests the use of a three-dimensional grid system, referencing waste type location on a map which is keyed to permanently surveyed benchmarks. The size of the units in the grid should be a function of the number of waste types, their amounts and the number of locations of each type. 6. Landfill Closure. At least 180 days before landfill closure during the interim status period, the owner or operator must submit to the Regional Administrator, for his approval, modification, or disapproval, a detailed plan describing the manner in which the landfill will be closed and maintained during the post-closure period. (See the previous preamble discussion on - Closure and Post-Closure Care). A final cover must be placed over the landfill at closure. The closure plan must address the functions and specify the design of the final cover. It is necessary to place appropriate cover on a landfill in order to control the infiltration of moisture that could increase leaching, and to prevent erosion or escape of wastes, waste constitutents, or contaminated soil. The proposed standards included specific requirements regarding the type, depth, permeability, and number of soil layers required for the final cover. They also included specific quantitative limits on grade (slope) and terracing of the cover to prevent erosion. - EPA received numerous comments objecting to thesç specific requirements. Cominenters suggested that different combinations of cover materials, thicknesses, and permeabilities could achieve equivalent results, and that greater flexibility was needed to address site-specific situations. Numerous commenters suggested that the proposed 8-inch clay cover was inadequate. Similar objections were raised regarding the final grade and terracing requirements. The proposed regulation included a variance that allowed alternate cover - - designs to be substituted as long as they provided equivalent performance, and thus there was some flexibility. However, the proposed variances would not have addressed concerns over the basic level of control specified, for example, a 8-inch clay cover. The Agency believes that the commenters have made valid points. The specific limits proposed are not appropriate for all situations. The conditions at each site should weigh more heavily than perhaps the proposed regulation would allow’in determining an appropriate cover requirement. The final regulations provide this flexibility by requiring that certain objectives be addressed in developing a closure plan and designing a final cover. The specified objectives are: (1) control of pollutant migration from the facility via ground water, surface water, and air, (2) control of surface water infiltration, including prevention of pooling, and (3) prevention of erosion. The regulationalso lists a minimum set of technical factors which the own or operator must consider in addressir the control objectives. With regard to cover design characteristics, these factors include cover materials, final surface contours, porosity and permeability, thickness, slope and length of run of slope, and type of vegetation. The cover design should take into account the number of layers, and the indigenous vegetation. It should avoid or- make allowances for deep-rooted vegetation, and prevent water from pooling. The design will depend on the availability and characteristics of on- site or nearby soils, and a number of other site-specific factors. The final cover design could simply be the placement, compaction, grading, sloping, and vegetation of on-site soils, or could be a complex design such as a combination of compacted clay or membrane liner placed over a graded and sloped base and covered by topsoil and vegetation. The final regulation requires (in Subpart G) the approval, disapproval or modification of the closure plan by the Regional Administrator, after opportunity for public comment. This process is necessary to assure that closure plans will achieve the objective; specified with an adequate degree of confidence. Because it has been modified substantially, the regulation on landfill closure is being promulgated interim final and the Agency will consider additional comments on it. Many comments on the proposed regulation severely criticized it for being too inflexible. The Ager cy believes that the present regulation responds to these comments by creating an extremely flexible system under which all pertinent characteristics of an individual facility can be considered in determining how it should be closed. Since the system leaves so much latitude for the creation of individual closure plans, those plans will need to be reviewed on a case-by-case basis by Regional Administrator to assure that the objectives of the regulations are achieved. The Agency believes that the importance of proper closure justifies this interaction with the Regional Administrator during the interim status period. The closure and post-closure requirements are essential for protection of human health and the environment in the long-term (after post-closure care period). Unless certain precautions, suc ’ as a stable and properly designed cove and future site use controls, are taken, there is a high likelthood of future ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33213 ground water, surface water, or air contamination or direct exposure of the public to hazardous waste. Operating existing leachate collection systems, gas control systems and ground-water monitoring systems throughout the post- closure care period are essential to eliminating future environmental problems and determining when post- closure care can be terminated. 7. Post-Closure Care. In order for the final cover to satisfy the specified objectives, it must be properly maintained following closure. This is also true of certain monitoring and control measures, such as ground-water monitoring systems. EPA received few comments on the proposed post-closure care requirements. Nonetheless, some modifications have been made to accommodate changes made in other sections of the regulations. Post-closure maintenance of a leachate monitoring system (unsaturated zone monitoring) is not required for all facilities because such monitoring systems are no longer required. (See the discussion on Subpart G requirements.) A requirement that existing leachate collection and removal systems be maintained, however, has been substituted. Hazardous leachate may continue to be generated within the landfill long after the site is closed, even with a relatively impermeable cover. The Agency believes that, in order for an installed leachate collection system to achieve its purpose, leachate must be removed as it is generated, even after closure. The one post-closure requirement which did generate a number of comments was the restriction against constructing buildings on closed landfills where radioactive wastes were disposed of. The Agency agrees with commenters to the extent that concern about radiation (uranium and phosphate wastes) was the basis for this regulation and that such building restrictions should be placed in regulations dealing specifically with those wastes. EPA expects to promulgate requirements for such wastes in its Phase U regulations. Other commenters suggested that all construction or other activities which would damage the final cover should be prohibited. The Agency concurs, in general, and has added a requirement in § 265.117(c) that activities which could disturb the integrity of the final cover or any liners or the function of the monitoring systems, are not allowed without the Regional Administrator’s approval under specified criteria. While the post-closure care regulation has not changed radically from the proposed regulation, it is being - promulgated interim final along with the closure regulation because the two form an integrated package. Comments will be considered or the post-closure care regulation along with the closure requirements. 8. Ignitable or Reactive Waste. The proposed regulations prohibited disposing of ignitable or reactive waste in a hazardous waste landfill unless certain conditions were met: airborne contaminants could not exceed a specified concentration and there could be no damage to the structural integrity of the facility. Several commenters claimed that this provision “banned” landfllling of ignitable or reactive waste. The commenters suggested that these wastes can be placed in a landfill in a way, such as by blending with soil or other materials, that eliminates or minimizes the danger of fires or explosions. The final regulation now requires that ignitable or reactive wastes be treated or mixed before or immediately after being landfilled so that they are no longer ignitable or reactive. Mixing the waste with soil or other material before, during, or immediately after the waste is placed in the landfill is allowed if the resulting mixture is neither ignitable nor reactive. This treatment must meet the general requirements for handling ignitable, reactive, or incompatible wastes in § 285.17(b). As explained previously, the provision in the proposed regulation concerning volatility has been deferred. 9. Incompatible Wastes. Incompatible wastes or materials can react when they come in cójitact with each other, resulting in the substances or reactions listed in Appendix V. such as fires, explosions, or formation of toxic gas. Such contact can be prevented by placing incompatible wastes in separate landfill cells, as proposed in the landfill regulations. Commenters supported this concept: some suggested specific degrees of - separation, e.g., certain soil thickness; or separation based on waste properties. The Agency found no basis forany specific waste separation requirement because so many site-specific variables are pertinent, such as characteristics of the liner or separation material, (e.g., permeability and thickness), special relationship of cells (e.g., above or on the side of the other), cover material, and waste characteristics. Therefore, no specific separation requirement is included in the final regulation. Comments received on other sections of the proposed regulations indicated that potentially incompatible wastes can be premixed or treated before or during disposal so that they are no longer incompatible. Therefore, the final regulation has been revised to allow the placement of incompatible wastes in the same cell, if they will meet the general requirements for incompatible wastes in § 265.17(b). 10. Bulk Liquid Waste. The disposal of liquid hazardous waste, both bulk and containerized, was the most controversial area of theproposed landfill regulations. The proposed regulation specified that bulk liquid, semi-solid, and sludge wastes must not be disposed of in a landfill, unless they were pretreated or treated in the landfill “so that a non-flowing consistency is achieved to eliminate the presence of free liquids prior to final disposal in a landfill.” The purpose of this proposed regulation was to reducethe presence of liquid wastes and free liquids in a landfill. Liquid wastes and free liquids can migrate through a landfill, dissolving or mobilizing toxic substances in the process. In other words, liquid in a landfill usually becomes a transport and leaching medium. The resultant leachate produces a hydraulic head greater than that resulting from precipitation alone. The additional liquids, leaching, and head can increase the amount and rate of movement of hazardous contaminants from the landfill to ground water. Comments on the proposed regulation ranged from suggestions that liquid wastes should be categorically banned from landfills to suggestions that there should be no restrictions placed on landfllling of liquid wastes. There were also comments that the regulations should allow absorption of liquid wastes by municipal refuse and allow in-situ absorption via a well or pit in the landfill. The Agency believes that there are controlled conditions under which liquids in landfills can be tolerated. For example, with a secure liner (chemically and physically resistant to the liquids and of low permeability) and a leachate collection and removal system, leachate can be removed from above the liner continuously to prevent build-up of a hydraulic head. The low permeability of the liner should result in no migration or a very slow rate of migration through it. The collected leachate can then be either treated and disposed of in the facility, or otherwise disposed of. Thus, if a landfill has a leachate collection system, in-situ absorption can be environmentally acceptable. The final regulation therefore allows in-situ absorption of bulk liquid wastes provided the landfill has a chemically and physically resistant liner and a functioning leachate removal system, and provided the capacity to remove the hydraulic head is not exceeded. ------- 33214 Federal Register / Vol. 45, No. 98 / Monday, May 19. 1980 / Rules and Regulations Where a landfill does no t have a leachate collection and removal system. however, liquids in the landfill will eventually migrate and will usually carry pollutants out of the landfill and into ground water. The many incidents of ground-water contamination from poorly operated hazardous waste landfills testify that this is a common problem. In addition, when liquid wastes are disposed of directly into a landfill without assuring absorption, there is no way of knowing whether they are largely being absorbed and held by solids in the landfill, or are passing through relatively quickly. Liquid migration can, however, be greatly reduced if liquid wastes and wastes containing free liquids are treated before being landfilled, as by mixing with absorbent materials, so that free liquids are no longer present. The regulations require such treatment in landfills that do not have appropriate leachate collection and removal systems. Treating the liquid waste before it is landfllled gives visual control of the liquid to absorbent ratio. allows testing to confirm absorbent capacity, and assures slow release; these are not possible when in-situ absorption is practiced. Examples of absorbent materials which may be acceptable include soil, fly ash, and cement kiln dust. EPA discourages the use of biodegradable municipal waste as an absorbent until studies prove its long-term effectiveness. A number of commenters asked for definitions of the terms “non-flowing”, “semi-solid”, “sludge”, or “free liquids”, which were used to describe hazardous wastes in the proposed regulations. A number of suggestions were given as to how or how not to define these terms. After review of these comments, EPA has decided to use the term “free liquids”, defined as “liquids which readily separate from the solid portion of a waste under ambient temperature and pressure.” This term and meaning best reflect the use to which this term is put, which is to distinguish when a waste contains liquids which will readily flow from the waste in a landfill to produce leachate. For sludges or semi-solids which are not obyiously liquids, the following test may be used to determine if they contain “free liquids.” Place a one to five kilogram (2.2 to 11.0 Ibs) sample of waste on a level or slightly sioping plate of glass or other similarly flat and smooth solid material for at least five minutes. If a liquid phase separation is observed, the waste contains “free liquids.” EPA feels this test provides a practical way to test sludges and semi-solids and helps clarify the meaning of free liquids until a more rigorous test is devised. The test is intended to simulate, in a simple way, the behavior of semi-solid wastes placed on the surface of a landfill. If liquids can be observed as a separate phase draining over an impermeable substrate from the base of a small sample of the waste, such liquids can also be expected to drain from the waste itself when it is placed on the surface of the landfill, and will be free to migrate into the landfill much as liquid wastes would. The fact that liquids cannot be observed to migrate from a small sample after a few minutes does not, of course, assure that they will not migrate from a larger sample, or after a longer period of time, or when the waste is compressed by wastes placed over it. This test thus represents a rough minimum for the containment of free liquids. The Agency expects to study the problem of free liquids further and to attempt to devise tests which more accurately reflect the conditions of waste within a landfill. The Agency specifically solicits further comments on (1) difficulties that may be expected in applying the test, and (2) suggestions for other tests or improvements to this test which will better test for the presence of liquids which can relatively easily migrate from wastes. - Alternatives to direct disposal of liquid wastes in landifils include mixing the wastes with an absorbent material prior to landfihling, as described previously, chemically fixing or solidifying the wastes before landfilling, dewatering before landfilling, treating the wastes to render them non- hazardous, well injection, incineration, resource recovery, and storage in containers, tanks, and surface impoundments. These options may be impossible for some wastes. Taken separately, facility capacities for these options may be limited in the region of waste generation, or may require a long lead tune to develop; nationally, no single option can handle all the hazardous liquid and semi-solid wastes. Taken together, however, EPA believes these options can provide the required storage, treatment, and disposal capacity to offset the amounts of liquid wastes currently disposed of by practices prohibited by this regulation. Indeed, this kind of prohibition is already being implemented in some States. At least 19 States already - prohibit or restrict the disposal of bulk liquid wastes in landfills. Although these provisions for bulk liquid wastes were included in the proposed general standards, they were not included in the interim status standards. The Agency believes that while treating liquid wastes wifi increase operating costs, it will not entail great capital expenditures for equipment or facilities. In addition. methods implemented during the interim status period to comply with the regulation will not require case-by-case - determinations by Agency officials. However, the Agency believes that generators, and owners and operators of facilities may need more than six months to identify and develop alternatives to landfilling bulk liquid wastes. The Agency has, therefore, delayed the date for compliance with this regulation for 12 months past the effective date of the regulations. While this regulation has not changed substantially from the one proposed for the general standards for landfills, it is being promulgated interim jinal primarily because it generated so much comment but so little data when proposed. Some of the comments requested clarification of th’ terms “semi-solid,” “non-flowing.” “sludge,” and “free liquids.” The Agency believes that its definition and test for free liquids adequately respond to these comments. Other comments fell in a spectrum from contentions that liquids should be banned from landfills to contentions that liquids in landfills should not be restricted at all. Few of these comments, however, provided any data or much argument explaining why they adopted a particular position. The Agency solicits comments on the regulation and is particularly interested in comments on (1) what data, if any, is available to show that landfilled liquids can confidently be expected to be absorbed and immobilized by other waste in the landfill; (2) the nature and extent of treatment that commenters would expect to conduct at landfills in compliance with the regulation; (3) alternatives to landfilling liquids and wastes containing free liquids that commenters would expect to pursue as a result of the regulation; and (4) the nature of the additional hazards, if any, that commenters expect to be created by this regulation, and how they may compare to the ground water pollution hazards that the regulation attempts to alleviate. - 11. Containerized Liquid Waste. The proposed regulation required that each container of liquid hazardous waste be surrounded by a sufficient amount of inert sorbent material to absorb all the liquid contents of the container. Since containers are known to eventually decay in a landfill environment, this requirement was intended to prevent ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33215 gration of liquid waste by providing absorbent medium. ommenters expressed diverse opinions on the proposed regulation, ranging from suggestions that containerized liquid wastes be banned totally, to suggestions that their placement in landfills not be restricted at all. Alternatives schemes were suggested for providing absorption capacity within a landfill, such as placing absorbent material inside a container, or surrounding a group of containers (rather than single containers) with absorbent material. The requirement that the absorbent be “inert” was also challenged. Based on further Agency analysis, the final regulation generally prohibits disposal of containerized liquid wastes or wastes containing free liquid in lantifills. Drums eventually degrade, allowing liquids to escape. When drums collapse and create voids, they can cause slumping and subsidence of the cover. This may increase the infiltration of precipitation and can also result in the escape of wastes through cracks or fissures in the final cover. Furthermore, there is no assurance that the liquid waste wiU be fully absorbed in surrounding material. It is difficult to ‘edict the absorbent capacity of a aterial buried in a landfill. For rnmple. the absorbent material itself _ay have decayed by the time a drummed liquid is released or may have already been saturated with moisture from another source (such as infiltration or moisture from the decay of organic wastes). Liquid wastes released from a drum also will most likely form channels from the point of leakage rather than be evenly absorbed. In addition, it is impossible to predict when drums will fail in a landfill environment. This is a particularly critical uncertainty in that failure could occur after the post-closure care period when facility maintenance and ground-water monitoring are no longer performed. Conversely, it would be impossible to establish a rational termination of the post-closure care and financial responsibility period if the stability of the cover and liquid waste release were so uncertain. In contrast, if drummed liquids are mixed with absorbent materials, as bulk liquid wastes must be, a history of trouble-free operation and post-closure monitoring is a much surer indicator that the landfill will continue to be free from ground- water contamination after post-closure care and monitoring cease. For these reasons, EPA believes that a ‘ehibition on placing containerized luid waste, or waste containing free .. uids in landfills will provide more effective control than the proposed operating restrictions. At le st 11 States already prohibit or restrict disposal of containerized liquid wastes at landfills. The alternatives to landfiuing containerized liquid wastes are essentially the same as those for bulk liquid wastes, except that storage of the containers probably will be simpler than finding storage for bulk liquid wastes. Thus, the same reasons exist for providing a 12 month delay in the date for compliance with this regulation. The Agency believes that some containerized liquid wastes will be emptied and treated before being placed in a landfill. Removing liquid wastes from drums may increase the likelihood of waste spifis and will most likely result in increased air emissions from volatile waste. Although these interim — status regulations do not currently address volatile waste, the Agency expects to do so in the Phase II and Phase III regulations as information becomes available, and may amend these interim status regulations where appropriate. Additionally, the Agency believes that until the problem of volatile emissions can be dealt with in a more satisfactory manner, volatile hazardous waste should generally not be placed in any disposal facility. Opening drums containing liquid hazardous waste, particularly volatile waste, requires special safety precautions, such as ventilation or use of respiratory equipment. However, adequate handling methods are currently used at some facilities to safely dispose of bulk liquid wastes, and to empty containers holding waste with free liquids. These methods can generally be employed at other 1andflll as well. The prohibition on landfilling containers (empty or full) applies to 55- gallon drums and other similar containers, but does not apply to devices which function as a container for hazardous waste during their useful life, such as batteries or capacitors or to very small containers such as ampules. These types of containers are not likely to contribute substantial volumes of liquid to most landfills, and the difficulty of opening and emptying them appears to outweigh the small benefit gained. Since this regulation has been modified substantially from the one proposed for interim status, it is being promulgated interim final. Comments are solicited on the regulation and especially on the four pomts listed previously under “Bulk Liquid Wastes.” 12. Empty Containers. The Agency also is concerned that empty containers buried in a landfffl can collapse and disrupt the final cover. Therefore, the landfilling of empty containers is also prohibited. Each empty container must be crushed flat, shredded, or in some other manner reduced in volume, before being incorporated into the landfill. EPA assumes that most empty containers will be crushed by landfill equipment prior to or during disposal in the landfill. Current procedures in at least six States already call for empty drums to be crushed before disposal in a landfill. Since the proposed regulations did not contain a requirement for the disposal of empty containers, the Agency is promulgating this regulation interim final. The Agency solicits comments on this regulation, especially (1) on the nature and extent of activities which commentera expect to conduct in compliance with the regulations, and (2) how these activities relate to the management of emissions during the disposal of volatile hazardous waste. N. Subpart 0—Incinerators Incineration is a relatively well- developed and well-understood technology. Properly executed, it can accomplish safe destruction of primarily organic hazardous waste, permanently reducing large volumes of waste - materials to non-toxic gaseous emissions and small amounts of ash and other residues. Incineration can often provide an optimum, permanent solution to hazardous waste management with minimal long-term ecological burden. The proposed § 250.45—1 technical performance and design requirements for incineration cannot be implemented during interim status. The time and costs of upgrading most existing facilities to comply with these standards would be considerable, and the designs would require EPA approval during the permitting process. As a result, the Agency has developed a few general operation requirements for incineration which can be implemented during the interim status period. These standards will improve operating procedures by eliminating some practices which have resulted in problems in the past. Technical criteria for issuing permits will be promulgated during Phase U of the RCRA regulatory program. These will be accompanied by a design and operation guidance manual which will assist permitting officials and the - regulated community in evaluating the adequacy of specific incinerators. Most of the specific, quantitative design. operation, and performance requirements will be issued when adequate technical support for these standards can be firmly established. The Phase I regulations apply to incinerators which burn hazardous waste regardless of their size.capacity, ------- 33216 Federal Register / Vol. 45, No 98 / Monday, May 19, 1980 / Rules and Regulations physical or mechanical type, or geographical location. The incineration of gaseous, liquid, semi-solid, and solid hazardous waste, and blends thereof, is subject to these regulations. The incineration of combustible wastes of varying heating values, as well as aqueous and other wastes which may require co-incineration with auxiliary fuels, is also subject to the Subpart 0 standards. Boilers which burn waste primarily to recover energy are not now covered by Subtitle C of RCRA. These standards were not proposed to be effective during the interim status period. However, as comments suggested, the Agency believes that several of the proposed “good operating practice” regulations can beneficially be instituted during interim status to reduce hazards associated with poor operating procedures. The incineration standards for the interim status period are being promulgated interim final, and the Agency will accept comments on them. To some extent, these standards are derived from parts of the proposed regulations. An analysis of the major comments received on these parts of the proposed § 250.45—1 standards follows. Several commenters felt that RCRA was not intended to regulate incineration, contending instead that the Clean Air Act is the appropriate vehicle for regulating incinerators. To support their argument, these commenters claimed that Section 1004(3) of RCR.A (which defines “disposal”) spoke in terms of land disposal situations involving primarily water and soils, and was not relevant to incineration. The Agency disagrees with this argument. Incineration is in fact a treatment process. It meets the definition of “treatment” in Section 1004(34) of RCRA: * any method, technique, or process, including neutralilation 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 non-hazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume * * * The objective of incinerating hazardous waste is normally to change the physical form or chemical composition of the waste so as to render it less hazardous. Incineration may also render the waste “safer for transport, amenable for recovery, amenable for storage, or reduced in volume.” Therefore, incineration is a treatment process within the meaning of RCRA, and the Agency has a mandate to produce operation, location, design, and construction regulations for the incineration of hazardous waste adequate to protect human health and the environment. The interaction of RCRA and the Clean Air Act is discussed above. 1. General Operating Requirements. Some commenters requested that a specific period of time during start-up and shutdown be designated, during which the proposed performance standards (for combustion and destruction efficiency) would not apply. These commer.ters claimed that during these periods, temperature and other combustion conditions are subjedt to wide fluctuations, and thus, obtaining the required destruction efficiencies during these times would be difficult. The Agency agrees that these fluctuations can occur during start-up periods, and believes that this undoubtedly results in hazardous emissions. To counter this problem, the final rules require that incinerators achieve normal steady state combustion conditions, using auxiliary fuel, before wastes are introduced. - 2. Monitoring and Inspections. A number of comments were received on the proposed monitoring and facility inspection requirements. Commenters raised questions about the expense and reliability of the required gaseous monitoring equipment, the frequency of inspection, and the specification of monitoring points. Detailed monitoring requirements and the comments on these requirements will be addressed in the Phase II and Phase III regulations. In these Phase I rules, the Agency haS specified a minimum schedule for • monitoring and inspecting the operation of incinerators. Combustion and emission control equipment must be monitored, and operating corrections made when necessary, at least every 15 minutes, to ensure that critical conditions are not allowed to vary in an uncontrolled manner. In addition, Inspection points, such as visible stack emissions and critical pumps, are also required to be inspected in accordance with both the minimum frequencies specified in the Subpart 0 standards, and in the facility inspection Schedule (see preamble discussion on “Inspections”). 3. Waste Analysis. The requirements for waste analysis were contained In the General Facility Standards section of the proposed regulations. As explained earlier in the preamble discussion entitled “Waste Analysis”, each technical section of the final rules contains waste analysis requirements specific to the management method regulated in that section. Accordingly, the final Subpart 0 standards include waste analysis requirements which specify the parameters and constituents for which each type of waste must be analyzed. This analysis will enable th operator to determine the type of pollutants which might be emitted froi... the incinerator and to estimate the necessary combustion conditions. In addition, the final general waste analysis rules require that each shipment be inspected and, if necessary, analyzed to verify that the waste actually received at the facility is the same as that which was expected. The waste analysis standards specified in Subpart 0 are minimum procedures necessary to adequately operate an incinerator. Most reputable hazardous waste Incineration operators currently obtain considerably more detailed Information on a new waste before incinerating it than these standards require. All testing required in Subpart o is to be included in the waste analysis plan discussed above. 4. Enei y Recovery. Some commenters claimed that many waste oils and solvents are usable as fuels and are hazardous only because of their ignitability, and that too great an economic burden would result from subjecting these relatively easily combusted materials to the detailed combustion, monitoring, and other requirements specified in the proposed rules. The Agency has decided that thr burning of hazardous waste for energy recovery will not now be covered unde the hazardous waste provisions of RCRA. (However, storage or transportation of listed hazardous waste prior to energy recovery is covered by these regulations.) Accordingly, if waste oils and solvents are burned as a fuel in a boiler primarily to produce steam or usable energy, this action is not now covered by these regulations. Facilities in which hazardous wastes are burned, and in which energy recovery is only incidental or minimal, are subject to the Subpart 0 incinerator standards. Examples of activities covered by these regulations include (1) coincinerating wastes with high thermal value to help offset the lack of thermal value in other waste, and (2) destroying wastes in an incinerator to which a waste heat recovery boiler has been added. The decision as to whether a facility is subject to the Subpart 0 standards depends on the primary purpose of the unit in which the waste is destroyed. If the primary purpose is to provide steam, such as in a power boiler, the operation is not covered. If the primary purpose is to treat wastes, then the unit is subject to the Subpart ‘ standards. 5. Closure. At closure, all hazardout waste and hazardous waste residues ------- Federal Register / Vol. 45, Nc. 98 / Monday, May 19, 1980 / Rules and Regulations 33217 including ash, scrubber waters, and crubber sludges) must be removed from he incinerator. Commenters noted that the proposed rules did not specifically address residues from incinerators. Pursuant to § 261.3(e), residues removed from hazardous waste incinerators are considered to be hazardous wastes, and they must be managed as hazardous wastes in accordance with all applicable requirements of Parts 282, 263, and 265, unless the owner or operator can demonstrate that the residue is not a hazardous waste. The incinerator operator is a “generator” with regard to such wastes, unless they are exempted. A comment to this effect has been added to the final rules. 0. Subpart P—Thermal Treatment Because incineration is the most prevalent method currently used to thermally treat hazardous waste, both the proposed and final rules contain a separate section specific to this waste management technique. However, incineration is only one type of management process that can be used to thermally treat hazardous waste. There are several less conventional methods that are being developed as an iternalive to classic incineration. For cample, an EPA research and velopment program is exploring the rformance characteristics of a microwave discharge system for destruction of toxic compounds in gaseous, liquid, and solid forms. Currently, the system has been found successful, with some inherent limitations, for treating certain toxic organic compounds. Several commenters were concerned that, because the proposed rules contained no requirements applicable to methods other than incineration to thermally degrade hazardous waste, the proposed rules might discourage the development and utilization of alternative thermal treatment processes. The Agency intends to encourage the development and use of these emerging technologies. Therefore, the final rules contain a separate Subpart specific to thermal treatment processes other than incineration, In addition, a definition of “thermal treatment” has been added to the final rules to more explicitly define the relationship between incinerators and other thermal treatment devices. Thermal treatment is defined as: “the treatment of hazardous waste in a devicewhich uses elevated temperatures as _the primary means to change the chemical, psical, or biological character or riposition of the hazardous waste. amples of thermal treatment processes are incinerators, molten salt pyrolysis, calcination, wet air oxidation, and microwave discharge.” - Incinerators are a subset of the thermal treatment class; thus, most of the Phase I Subpart P standards for thermal treatment facilities are similar to the Phase I Subpart 0 incinerator standards. This section of the preamble only discusses those aspects which differ. The interim status standards require that thermal treatment processes achieve steady state (normal) conditions of operation before introducing hazardous waste. The rationale for this requirement is the same as for incinerators. The steady state requirement for thermal treatment has been modified because some acceptable thermal treatment processes may not operate in a steady state manner (e.g., batch-wise or non-continuous processes in which waste is introduced to the treatment chamber prior to the application of heat). Although not proposed as an interim status standard, a ban on open burning of hazardous wastes was contained in the General Facility Standards section of the proposed regulations. This requirement has been incorporated into the interim status standards for thermal treatment because the potential human health hazards associated with the practice dictate that open burning be ended now. Comments received on the proposed standard centered around the military’s need to dispose of explosives in the open. The Agency agrees that open burning and open detonation are currently the only alternatives for disposal of most munitions, and thus a modified and more detailed version of the proposed variance for waste explosives has been retained in the final rules. Waste explosives and bulk propellants are inherently dangerous to cut or disassemble to make them amenable to present thermal treatment technologies. This hazard is demonstrated by the number of damage incidents that have occurred during cutting and handling processes at explosives manufacturing facilities. Open burning and open detonation of known types and amounts of bulk propellants and.explosives can be conducted safely without harm to human health’and the environment. The Agency has decided to allow open burning and open detonation of waste explosives during the interim status period, provided that it is conducted at minimum distances from the property of others. These minimum separation distances were developed and published by the Department of Defense. The interim status standards for open burning allow small amounts of explosives (up to 100 pounds) to be open burned or open detonated at a minimum of 204 meters (670 feet) from locations where there may be persons in the open (e.g., the property of others), and succeedingly greater distances for greater amounts’ of explosives. These limits were developed by DOD as minimum safe distances for the protection of persons in the open from fragmentation, flying debris, or the effects of overpressure. Since DOD does not provide safe distances for protection from fragmentation for amounts of explosive waste larger than 30,000 pounds, the Agency has limited the amount of explosive waste that can be open burned at any one time to 30,000 pounds. Technical performance and design requirements for thermal treatment processes are being developed. These technical criteria will be addressed during Phases II and ifi of the RCRA regulatory program. These standards will be accompanied by a design and operation guidance manual, which will assist permitting officials, the regulated community, and the public in evaluating the adequacy of specific types of thermal treatment processes. P. Subpart Q—Chemical, Physical, and Biological Treatment The proposed regulations covered the treatment of hazardous waste primarily by setting standards for treatment in basins (now tanks), surface impoundments, land treatment facilities, and incinerators. While these are the primary kinds of equipment or facilities used to treat hazardous waste, chemical, physical, and biological treatment of hazardous waste can also be conducted in other types of equipment by processes such as distillation. centrifugation, reverse osmosis, ion exchange, and filtration. The proposed regulations contained a section designed to regulate such chemical, physical, and biological treatment Because there are many different types of possible processes, and because the processes ‘are frequently waste-specific, EPA has not attempted to develop detailed. regulations for any particular type of process or equipment. The Agency’s primary concerns in developing these regulations has been. as it has been for other types of facilities and equipment, the safe containment of hazardous waste, hazardous waste constituents, and treatment byproducts through waste analysis, inspections, special attention to the handling of ignitable, reactive, or incompatible wastes, and proper closure. In these ------- 33218 Federal Register / Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations respects, most chemical, physical, and biological treatment operations present essentially the same problems and require essentially the same solutions as the treatment of hazardous wastes in tanks. The equipment is typically stationary and fairly large, and the materials used and the problems encountered in that part of the equipment which contains the waste are not dissimilar from the materials used and the problems encountered in constructing tanks. In addition, as discussed above in Subpart J, the Agency has reoriented its tank regulations to cover treatment in tanks as well as storage, and many of the current tank regulations have been drawn from the proposed regulations for chemical, physical, and biological treatment. For these reasons, the present regulations for chemical, physical, and biological treatment and for tanks have both been derived from a merging of the proposed regulations for these types of equipment, for basins (which are now treated as tanks), and for storage and treatment generally. The tank regulations and the chemical, physical. and biological treatment regulations are now essentially identical, and the rationale for the regulations on chemical, physical, and biological treatment is therefore presented above with the rationale for the regulations on tanks. The Agency expects to develop somewhat more specific standards for chemical, physical, and biological treatment facilities in the Phase II and Phase III regulations, and for this reason these regulations have been incorporated in a separate Subpart. The regulations for chemical, physical, and biological treatment (Subpart Q) differ from those for tanks (in Subpart J) in one respect. Subpart Q contains no requirement for maintaining a freeboard or inspecting to ensure that the freeboard is maintained because, to the Agency’s knowledge, the treatment processes regulated under Subpart Q are conducted in covered containment devices, and a freeboard is unnecessary. EPA received a number of comments on its proposed Section 3004 regulations requesting the Agency to clarify whether pipes and other types of totally enclosed facilities in which hazardous waste may be treated would be considered hazardous waste treatment facilities and would be required to meet Section 3004 standards and obtain a permit. Commenters pointed out that in some production processes, wastes (particularly acid and alkaline solutions) are treated in-pipe, often resulting in a non-hazardous discharge. EPA agrees that to classify “totally enclosed treatment systems,” such as pipes, as hazardous waste treatment facilities and to require them to meet Section 3004 standards and obtain a permit would not make a great deal of sense. These facilities by definition do not release wastes or waste constituents into the environment, and therefore stringent controls are not “necessary to protect human health and the environment.” Such controls might also discourage the use of such facilities, which in many ways represent the optimum in good waste management - practices. It may also be very difficult as a practical matter to permit or otherwise regulate these types of facilities—many are indoors, are part of complicated plumbing systems which do not fall within RCRA’s jurisdiction, and do not have clearly defined starting and end points. Accordingly, EPA has excluded these facilities from regulation under this Part. Persons who handle hazardous waste in what they believe to be a “totally enclosed treatment facility” should carefully read the definition of that term in § 260.10 of this Chapter. The key characteristic of such a facility is that It does not release any hazardous waste or constituent of hazardous waste Into the environment during treatment. Thus, if a facility leaks, spills, or discharges waste or waste constituents, or emits wastes or waste constituents into the air during treatment, it is not a “totally enclosed treatment facility” within the meaning of these regulations. Another important characteristic of a totally enclosed treatment facility is that it must be directly connected to an industrial production process. Thus, such a facility located at an off-site hazardous waste management facility does not qualify for exclusion from these regulations. After treatment in a totally enclosed treatment facility, the resulting discharge, treatment residue, etc., may be a hazardous waste and subject to regulation under this Part. Owners and operators of such facilities should consult § 261.3 of this Chapter to - determine whether that is the case. Q. Subpar R—Underground Injection Under § 250.40(e)(6) of the proposed regulation, the disposal of hazardous wastes via underground injection. pursuant to the Safe Drinking Water Act (SDWA) regulations, was not subject to regulation under the RCRA Subtitle C program. That exclusion was based on Section 1006 of RCRA which requires the Administrator to integrate RCRA regulations with programs under the Agency’s other statutory,authorities, including the Safe Drinking Water Act. Commenters were generaly supportive of EPA’s efforts to coordinate its programs, but some expressed concern that exclusive reliance on the Underground Injection Control program under the SDWA in addressing the environmental problems presented by underground injection of hazardous wastes would not fully satisfy the key health and environmental concerns embodied in RCRA. Based on a review of the comments and further analysis of this issue, EPA has concluded that underground injection of hazardous wastes must be regulated under RCRA during the interim status period. Thus the Agency has developed Subpart R in Part 265 which specifies the particular standards applicable to disposal of hazardous waste by underground injection. In addition, owners and operators of hazardous waste injection wells will be subject to the general requirements (other than Subparts C and H) applicable to all hazardous waste treatment, storage, and disposal facilities. The Agency recognizes that some of these general requirements may not apply directly to all underground injection of hazardous waste, in the same sense that some may not apply directly to all other types of hazardous waste facilities. The requirements, however, are written with sufficient flexibility and variances to accommodate the differences among facilities, including the somewhat different aspects of underground injection. Underground injection of hazardous waste constitutes “disposal” as that term is defined in Section 1004(3) of RCRA. The definition specifically includes “injection. . . of any solid waste or hazardous waste into or on any land or water.” Moreover there is no specific language in the Act indicating that injection activities that may be subject to the SDWA are necessarily beyond RCRA jurisdiction. RCRA was enacted after the SDWA. The Congress, therefore, had an opportunity to impose any specific limits on RCRA jurisdiction that it deemed appropriate. It is significant that the Congress did place limits on RCRA jurisdiction to coordinate RCRA programs with the Clean Water Act. For example, the definition of “solid waste” under RCRA excludes “solid or dissolved materials in industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act.” No such statutory exclusion exists for ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33219 derground injection of hazardous L9te 5. ction 1008 does require the Jministrator to integrate the provisions qf RCRA with appropriate provisions of various statutes (including the SDWA) which EPA administers. Such integration is only required, however, “to the extent that it can be done in a manner consistent with the goals and policies expressed” in RCRA and the other statutes. When EPA’s statutory authorities provide overlapping jurisdiction over certain activities it is within the discretion of the Administrator to decide which program will be used to regulate the activity. In order to implement the goals and policies of each law, the Administrator will incorporate the key elements of each statute into its regulatory program. Section 1006 of RCRA provides statutory recognition that such coordinated regulatory programs are appropriate. - In evaluating the proposed regulation. EPA decided that complete reliance on the UIC program to handle underground injection of hazardous waste during the interim status period could not adequately address three key RCRA concerns, First, RCRA is aimed at tection of a broad range of vironmental media, including ground- ter, surface water, air, and land. The C program is directed at the protection of underground sources of drinking water. Second, Section 3004 of RCRA requires the Administrator to establish standards “to protect human health and the environment.” This language indicates that RCRA regulations were to address a broader range of environmental problems than the UIC program. Third, the IJIC program does not have the ecijuvalent of an interim status period when owners or operators who dispose of hazardous waste by underground injection are subject to Federally enforceable standards. Enforcement of environmental controls under the UIC program must await: the identification of States needing a program; the development of State proj ams for primary enforcement responsibility; the approval or disapprdval 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 responsibility. EPA does not believe that tJIC primary enforcement programs will be in place in all States on the effective ‘te of these’interun status regulations. erefore, in order to provide control r underground injection of hazardous iste during the interim status period, as contemplated by RCRA, it is necessary to regulate underground injection under these regulations. Section 1006 directs the Administrator, in the coordination of EPA’s other statutes with RCRA, to avoid duplication and to structure RCRA regulations so that they will not be inconsistent with the requirements of other statutes (such as the SDWA). EPA is mindful of that requirement and intends to coordinate the later stages of the RCRA and UIC programs so that the key elements of the statutory scheme in the SDWA will be preserved. EPA does not believe, however, that the regulation of underground injection of hazardous wastes in these interim status regulations is inconsistent with the SDWA. As mentioned earlier the UIC program does not have the equivalent of an interim status period. Thus there can be no conflict with SDWA provisions. The regulation of underground injection during interim status was not a -part of the proposed regulation, but the decision to do so was partially based on factors raised in public comments. Moreover, the Agency does not expect that the application of some of the general requirements, otherwise required at all facilities, to underground injection raises substantially different issues than those raised and addressed in the development of the interim status regulations. Therefore, the inclusion of underground injection in these regulations and the application of certain general requirements to injection wells are being issued as “interim final.” This approach provides for prompt implementation of regulations concerning these practices, in keeping with RCRA goals and policies, while allowing an opportunity of public comment to reveal any unique problems that may arise in applying the general requirements of the interim status regulations to underground injection. Underground injection will not, however, be subject to Subpart C and H of the interim status regulations which address closure and post-closure care as well as the financial requirements necessary to ensure implementation of closure and post-closure care requirements. Requirements for closure and post-closure care need to be coordinated with the more specific technical requirements applicable to underground injection. EPA has decided, therefore, to address closure and post- closure as part of the proposed regulation described below, Subpart R of these regulations indicates those parts of the regulation which are not applicable to underground injection. In addition it should be recognized that the ground-water monitoring requirements of Subpart F have not been applied to underground injection at this time. Subpart R also indicates that it applies to Class I and Class IV wells as those term are defined under § 122.32 of the consolidated permitting regulations. This provision is designed to show that these regulations cover, at a minimum, those underground injection facilities that will be subject to control under the UIC program. The Agency is proposing regulations that provide more specific requirements to deal with the particular environmental problems presented by underground injection. These proposed regulations will amend Subpart R and will address issues relating to direct injection of hazardous waste, general operating requirements, waste analysis, monitoring, closure and post-closure care, recordkeeping and reporting, and specialrequirements for ignitable, reactive or incompatible wastes. VI. 0MB Review The sections of the regulations issued under Section 3004 of RCRA pertaining to recordkeeping and reporting have been submitted to the Office of Management and Budget for review in light of the requirements of the Federal Reports Act, 44 U.S.C. § 3501 et seq. Time has not permitted completion of this review. VU. Supporting Documents The Agency has developed or will prepare two sets of documents in conjunction with the Section 3004 rules. This section of the preamble describes these documents. A. Background Documents Eighteen background documents have been developed to explain and respond to comments on the Phase I rules. Additional documents will accompany the Phase II and Phase III regulations as they are published. These background documents basically correspond to each Section or Subpart of the final rules. Each contains an explanation of the data and reasoning which led the Agency to propose each regulation, an in-depth review of the comments received on the regulation, an analysis of the comments, and the Agency’s rationale for accepting or rejecting these comments. Copies of these documents will be available for review in the EPA regional office libraries and at the EPA headquarters library, Room 2404, Waterside Mall, 401 M Street, S.W., Washington, D.C. 20460. EPA will publish a notice in the Federal Register when these documents have all been ------- 33220 Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 I Rules and Regulations reproduced and distributed to these libraries. They will be available from Solid Waste Information. U.S. Environmental Protection Agency, 28 West St. Clair Street. Cincinnati, Ohio 45268, within six months after these regulations are promulgated. A list of these background documents is as follows: 1. Purpose, Scope, and Applicability (including general issues concerning Interim Status Standards) 2. General Waste Analysis Requirements 3. Security 4. General Inspection Requirements 5. Personnel Training 6. Preparedness and Prevention, Contingency Plans, and Emergency Procedures 7. Manifest System, Recordkeeping, and Reporting 8. Interim Status Standards for Ground-Water Monitoring 9. Interim Status Standards for Closure and Post-Closure Care 10. Interim Status Financial Requirements 11. Interim Status Standards for Containers and Piles 12. Interim Status Standards for Tanks 13. Interim Status Standards for Surface Impoundments 14. Interim Status Standards for Land Treatment 15. Interim Status Standards for Landfills 16. Interim Status Standards for Incinerators 17. Interim Status Standards for Thermal Treatment 18. Interim Status Standards for Chemical, Physical, and Biological Treatment. B. Reference Manuals These regulations, and those yet to be promulgated in Phases II and III, will constitute the full set of requirements for managing hazardous waste. However. their reliance on performance standards and the incorporation of variance procedures provide considerable flexibility to accommodate new technologies, special needs of specific locations, and variations in waste characteristics. To assist both owners and operators of facilities and regulatory officials, EPA will prepare a series of design and operation manuals. These will not have the effect of regulations, but will provide guidance on how facilities may be designed and operated to meet the standards. The manuals will also provide guidance on what modifications and variations are likely to be effective under the variance procedures. They will be organ!zed to correspond closely to the regulations and will be based on. the collective knowledge of the Agency, the literature, and experts throughout the world. Manuals will also be prepared for testing, training, and monitoring. EPA expects to prepare the following manuals: 1. Training 2. Ground-Water Monitoring 3. Air Monitoring 4. Financial Responsibility 5. Containers 6. Tanks 7. Surface Impoundments 8. Waste Piles - 9. Land Treatment 10. Landfilling 11. Incineration 12. Thermal Treatment 13. Chemical, Physical, and Biological Treatment The Agency expects to issue these manuals before the effective date (i.e., six months after promulgation) of the Phase LI technical regulations. They will be revised from time to time as more information becomes available, and as the final Phase III regulations are developed. The documents will be available for review in the EPA regional office libraries and the EPA headquarters library, Room 2404, Waterside Mall, 401 M Street, S.W., Washington, D.C. 20460. Later the Agency will publish the documents for distribution through Solid Waste Information, U.S. Environmental Protection Agency, 26 West St. Clair Street, Cincinnati, Ohio 45268. Dated: May 2, 1980. Douglas Costle, Administra€or. Title 40 is amended by adding new Parts 264 and 265 as set forth below. The following sections are being promulgated on an interim final basis (See Preamble Section UB3 for discussion): PART 264 Sec. 264.12 Required Notices. PART 265 Subpart B—General Facility Standards 265.12 Required notices. 265.17 General requirements for ignitable, reactive, or incompatible wastes. Subpart F—Ground-Water Monitoring 265.90 Applicability. 285.91 Ground-water monitoring system. 265.92 Sampling and analysis. - 265.93 Preparation, evaluation, and response. 265.94 Recordkeeping and reporting. Subpart G—Closure and Post-closure Sec. 265.111 Closure performance standard. 265.112 Closure plan; amendment of plak.. 265.113 Time allowed for closure. 265.117 Post-closure care and use of property; period of care. 265.118 Post-closure plan; amendment of plan. Subpart I—Use and Management of Containers 205.176 Special requirements for ignitable or reactive waste. Subpart J—Tanks 265.198 Special requirements for ignitable or reactive waste. Subpart K—Surface impoundments 285.228 Closure and post-closure. Subpart L—Waste Piles 265.251 Protection from wind. 265252 Waste analysis. 265.253 Containment. 265.256 Special requirements for ignitable or reactive waste. 265.257 Special requirements for incompatible wastes. Subpart M—Land Treatment 265.272 General operating requirements. 265.273 Waste analysis. 265.276 Food chain crops. 265.278 Unsaturated zone (zone of aeration) monitoring. 265.280 Closure and post-closure. Subpart N—Landfills 285.310 Closure and post-closure. 265.314 Special requirements for liquid waste. 265 315 Special requirements for containers. Subpart 0—Incinerators 265 343 General operating requirements. 265.345 Waste analysis. 265.347 Monitoring and inspections. 265.351 Closure. Subpart P—Thermal Treatment 265.373 General operating requirements. 265.375 Waste analysis. 265.377 Monitoring and inspections. 265.381 Closure. 265.382 Open burning; waste explosives. Subpart Q—Chemlcai, Physical, and Biological Treatment 265.405 Special requirements for ignitable or reactive waste. Subpart R—Underground injection 265.430 Applicability - EPA will also accept comments on the propriety of including the following sections as interim status standards (See Preamble Section 11B3 for discussion): - PART 265 Subpart B-General Facility Standards Sec. 265.13 General waste analysis. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33221 Subpart 4—Tanks 3ec. 65.192 General operating requirements. i65.193 Waste analysis and trial tests. Subpart K—Surface Impoundments 265.222 General operating requirements. 265.223 Containment system. 265.225 Waste analysis and trial tests. 265.229 Special requirements for ignitable or reactive waste. 285.230 Special requirements for Incompatible wastes. Subpart M—Land Treatment 265.281 Special requirements for ignitable or reactive waste. 265.282 Special requirements for Incompatible wastes. Subpart N—Landfills 285.302 General operating requirements. 285.312 Special requirements for ignitable or reactive waste. Subpart 0—Chemical, PhysIcal, and Biological Treatment 265.401 General operating requirements. 265 402 Waste analysis and trial tests. Comments should be forwarded to: RCRA Docket Clerk, Room 2711. Waterside Mall, 401 M Street, S.W., Washington, D.C. 20460. PART 264—STANDARDS FOR OWNERS AND OPERATORS OF 9AZARDOUS WASTE TREATMENT, iTORAGE, AND DISPOSAL - ACILITIES €,ubpart A—General Sec. 284.1 Purpose, scope and applicability. 264.2 IReserved) 284.3 Relationship to interim status standards. 284.4 Imminent hazard.action. 264.5—284.9 [ Reserved) Subpart B—General FacIlIty Standards 284.10 Applicability. 264.11 Identification number. 264.12 Required notices. 264.13 General waste analysis. 204.14 Security. 204.15 General inspection requirements. 264.16 Personnel training. 264.17—264.29 [ Reservedj Subpart C—Preparedness and Prevention 204.30 Applicability. 204.31 Design and operation of facility. 264.32 Required equipment. 264.33 Testing and maintenance of equipment. 264.34 Access to communications or alarm system. 264.35 Required aisle space. 264.36 Special handling for ignitable or reactive waste. 264.37 Arrangements with local authorities. 284.38—264.49 [ Reserved) 3ubpart D—Contlngency Plan and !mergency Procedures 04.50 Applicability. Sec. 284.51 Purpose and implementation of contingency plan. 264.52 Content of contingency plan. 204.53 Copies of contingency plan. 204.54 Amendment of contingency plan. 264.55 Emergency coordinator. 264.56 Emergency procedures. 264.57—264.69 [ Reserved] Subpart E—Manlfest System, Recordkeeplng, and Reporting 264.70 Applicability. 284.71 Use of manifest system. 264.72 Manifest discrepancies 204.73 Operating record. 264.74 Availability, retention, and disposition of records. 204.75 Annukl report. 264.78 Unnianifested waste report. 264.77 Additional reports. 264.78-264.999 [ Reserved] Appendix l—Recordkeeping instructions. Appendix fl—EPA report form and instructions. Authority: Secs. 1006. 2002(a). and 3004 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42JJ.S.C. 6905. 6912(a), and 6924). Subpart A—General § 264.1 Purpose, scope and applIcabIlity. (a) The purpose of this Part is to establish minimum national standards which define the acceptable management of hazardous waste. (b) The standards in this Part apply to owners and operators of all facilities which treat, store, or dispose of hazardous waste, except as specifically provided otherwise in this Part or Part 261 of this Chapter. (c) The requirements of this Part apply to a person disposing of hazardous waste by means of ocean disposal subject to a permit issued under the Marine Protection. Research, and Sanctuaries Act only to the extent they are included in a RCRA permit by rule granted to such a person under Part 122 of this Chapter. [ Cçmment: These Part 264 regulations do apply to the treatment or storage of hazardous waste before it Is loaded onto an ocean vessel for incineration or disposal at sea.] (d) The requirements of this Part apply .to a person disposing of hazardous waste by means of underground injection subject to a permit issued under an Underground Injection Control (UIC) program approved or promulgated under the Safe Drinking Water Act only to the extent they are required by § 122.45 of this Chapter. [ Comment: These Part 284 regulations do apply to the above-ground treatment or storage of hazardous waste before it Is injected underground.] (e) The requirements of this Part apply to the owner or operator of a POTW which treats, stores, or disposes of hazardous waste only to the extent they are included in a RCRA permit by rule granted to such a person under Part 122 of this Chapter. (f) The requirements of this Part do not apply to a person who treats, stores, or disposes of hazardous waste in a State with a RCR.A hazardous waste program authorized under Subparts A and B of Part 123 of this Chapter or with a RCRA Phase II hazardous waste program authorized under Subpart F of Part 123 of this Chapter, except that the requirements of this Part will continue to apply 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. (g) The requirements of this Part do not apply to: (1) The owner or operator of a facility permitted, licensed, or registered by a State to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this Part by § 281.5 of this Chapter’ (2) The owner or operator of a facility which treats or store8 hazardous waste, which treatment or storage meets the criteria in § 261.6(a) of this Chapter, except to the extent that § 281.6(b) of this Chapter provides otherwise: (3) A generator accumulating waste on-site in compliance with § 262.34 of this Chapter (4) A farmer disposing of waste pesticides from his own use in compliance with § 262.51 of this Chapter; or (5) The owner or operator of a totally enclosed treatment facility, as defined in § 260.10. § 264.2 (Reserved] § 264.3 RelatIonship to Interim status standards. A facility owner or operator who has fully complied with the requirements for interim status—as defined in Section 3005(e) of RCRA and regulations under § 122.23 of this Chapter—must comply with the regulations specified in Part 265 of this Chapter in lieu of the regulations in this Part, until final administrative disposition of his permit application is, made. [ Comment: As stated in Section 3005(a) of RCRA, after the effective date of regulations under that Section, i.e., Parts 122 and 124 of this Chapter, the treatment, storage, or disposal of hazardous waste is prohibited except in accordance with a permit. Section ------- 33222 Federal Register .../ Vol. 45, No. 98 / Monday, May 19, 1980. / Rules and Regulations 3005(e) of RCR.A provides for the continued operation of an existing facility which meets certain conditions until final administrative disposition of the owner’s or operator’s permit application is made.] § 264.4 ImmInent hazard action. Notwithstanding any other provisions of these regulations, enforcement actions may be brought purusant to Section 7003 of RCRA. § 264.5—264.9 [ Reserved) Subpart B—-General Facility Standards § 264.10 ApplicabIlity. The regulations in this Subpart apply to owners and operators of all hazardous waste facilities, except as § 264.1 provides otherwise. - 264.11 identIfication number. Every facility owner or operator must apply to EPA for an EPA identification number in accordance with the EPA notification procedures (45 FR 12746). § 264.12 Required notices. (a) The owner or-operator of a facility that has arranged to receive hazardous waste from a foreign source must notify the Regional Administrator in writing at least four weeks in advance of the date the waste is expected to arrive at the facility. Notice of subsequent shipments of the same waste from the same foreign source is not required. (b) The owner or operator of a facility that receives hazardous waste from an off-site source (except where the owner or operator is also the generator) must inform the generator in writing that he has the appropriate permit(s) for, and will accept, the waste the generator is shipping. The owner or operator must keep a copy of this written notice as part of the operating record. (c) Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post-closure care period, the owner or operator must notify the new owner or operator in writing of the requirements of this Part and Part 122 of this Chapter. [ Comment: An owner’s or operator’s failure to notify the new owner or operator of the requirements of this Part in no way relieves the new owner or operator of his obligation to comply with all applicable requirements.] § 264.13 General waste analysis. (a) (1) Before an owner or operator treats, stores, or disposes of any hazardous waste, he must obtain a detailed chemical and physical analysis of a representative sample of the waste. At a minimum, this analysis must contain all the information which must be known to treat, store, or dispose of the waste in accordance with the requirements of this Part or with the conditions of a permit issued under Part 122, Subparts A and B, and Part 124 of this Chapter. (2) The analysis may include data developed under Part 261 of this Chapter, and existing published or documented data on the hazardous waste or on hazardous waste generated from similar processes. [ Comment: For example, the facility’s records of analyses performed on the waste before the effective date of these regulations, or studies conducted 6n hazardous waste generated from processes similar to that which generated the waste to be managed at the facility, may be included in the data base required to comply with paragraph (a)(1) of this Section. The owner or operator of an off-site facility may arrange for the generator of the hazardous waste to supply part or all of the information required by paragraph (a)(1) of this Section. If the generator does not supply the information, and the owner or operator chooses to accept a hazardous, waste, the owner or operator is responsible for obtaining the information required to comply with this Section.] (3) The analysis must be repeated as necessary to ensure that it is accurate and up to date. At a minimum, the analysis must be repeated: (I) When the owner or operator is notified, or has reason to believe, that the process or operation generating the hazardous waste has changed; and (ii) For off-site facilities, when the results of the inspection required in paragraph (a)(4) of this Section indicate that the hazardous waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper. (4) The owner or operator of an off- site facility must inspect and, if necessary, analyze each hazardous waste movement received at the facility to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper. (b) The owner or operator must develop and follow a written waste analysis plan which describes the procedures which he will carry out to comply with paragraph (a) of this Section. He must keep this plan at the facility. At a minimum, the plan must specify: (1) The parameters for which each hazardous waste will be analyzed and the rationale for the selection of these parameters (i.e., how analysis for these parameters will provide sufficient information on the waste’s properties to comply with paragraph (a) of this Section); (2) The test methods which will be used to test for these parameters; (3) The sampling method which will be used to obtain a representative sample of the waste to be analyzed. A representative sample may be obtained - using either: (i) One of the sampling methods described in Appendix I of Part 261 of this Chapter; or (ii) An equivalent sampling method. [ Comment: See § 261.20(c) of this Chapter for related discussion.] (4) The frequpncy with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up to date; and (5) For off-site facilities, the waste analyses that hazardous waste generators have agreed to supply. - (c) For off-site facilities, the waste analysis plan required in paragraph (b) of this Section must also specify the procedures which will be used to inspect and, if necessary, analyze each movement of hazardous waste received at the facility to ensure that it matches the identity of the waste designated on the accompanying manifest or shipping paper. At a minimum, the plan must describe: (1) The procedures which will be used to determine the identity of each movement of waste managed at the facility; and (2) The sampling method which will be used to obtain a representative sample of the waste to be identified, if the identification method includes sampling. [ Comment: Part 122, Subpart B, of this Chapter requires that the waste analysis -plan be submitted.with Part B of the permit application.] § 264.14 Security. (a) The owner or operator must prevent the unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock onto the active portion of his facility, unless he can demonstrate to the Regional Administrator that: (1) Physical contact with the waste, structures, or equipment within the active portion of the facility will not injure unknowing or unauthorized persons or livestock which may enter the active portion of a facility; and (2) Disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or ------- 33223 Federal Register / Vol.. 45, No . 98 I Monday. May 19, 1980 / Rules and Regulations livestock onto the active portion of a facility, will nbt cause a violation of the requirements of this Part. [ Comment: Part 122. Subpart B, of this Chapter requires that an owner or operator who wishes to make the demonstration referred to above must do Eo with Part B’ of the permit application.] (b) Unless the owner or operator has. made a successful demonstration under paragraphs (a]fl) and (a) ( .2) of this Section, a facility must have: (1) A 24-ham surveillance, system (e.g., television monitoring or surveillance by’ guards or facility personnel) which continuously monitors and controls entry onto the active portion, of the facility; or (2) (i) An artificiallor natural barrier (e.g., a fence in goon repair or’s fence combined with a cliff), which completely surrounds the active portion of the facility; and (ii) A means to control entry, at all times,. through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility). [ Comment’ The requirements of paragraph (b) of this Section are satisfied if the facility or plant within which the active portion is located itself has a surveillance system, or a barrier and a means to control entry, which complies with the requirements of paragraph (bJ 1) or (h](2) of this Section.] (c) Unless the owner or operator has made a successful’ demonstration under paragraphs (a)(1J and €a)(2) of this Section, a sign with the legend, “Danger—Unauthorized Personnel Keep Out”, must be posted at each entrance to the active portion. of a facility, and at other Icrations, in sufficient numbers to be seen from’ any approach to this active fortion. The legend must be written in English and in any other language predominant in the area surrounding, the facility (e.g., facilities in counties bordering the Canadian province of Quebec must post signs in French; facilities in. counties bordering Mexico must post signs in Spanish)c. and must be legible from a distance of at least 25 feet. Existing signs with a legend other than “Danger—Unauthorized Personnel Keep Out” may be used.tf the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous. § 264.15 General Inspection requirements. (a) The owner or operator must inspect his facility for malfunctions and. deterioration, operator errors, and discharges which may be causing—or may lead to—(1) release of hazardous waste constituents to the environment or (2) a threat to human health. The owner or operator must conduct these inspections often enough to identify ‘problems in time to correct them.before ’ they harm human health or the environment. (b)(1 The owner or operator must develop and follow a written schedule for inspecting monitoring equipment, safety and emergency equipment, security devices, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting, or responding to environmental or human health hazards. (2) He must keep this schedule at the facility. (3J’The schedule must identify the types of problems (e.g., malfunctions or deterioration) which are to’ be’ looked far during the inspection (e.g., inoperative sump pump, leaking fitting, eroding dike, etc.). (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 or any operator error goes undetected between inspections. Areas subject to spifls, such as loading and unloading areas, must be inspected daily’ when in, use. [ Comment: Part 122, Subpart B. of this Chapter requires the inspection schedule to be submitted with Part B of the pennit application. EPA will evaluate the schedule along with the rest of the application to ensure that it adequately protects human health and the environment. As part of this. review, EPA may modify or amend. the schedule as may be necessary..] (c) The owner or operator must remedy ’any deterioration or malfunction of equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead’ to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately. (d1 The owner or operator must record inspections in an inspection lag or summary. He must keep these records for at least three years from the date of inspection.. At a mii nun, , these recdi ds must include’ the date and time of the inspection, the. name of the inspector, a notation of the observations made and. the date and nature of any repairs or other remedial actions. § 264.16 Personnel training. (a)(l) Facility personnel must successfully complete a program of classroom instruction, or on -the-job training that teaches them to perform their duties in a way that ensures the facility’s conr iIiance with the requirements of this Part.. The owner or operator must ensure that this program includes all the elements described in the document required under paragraph (d)(3) of this Section. (,2). This program must be directed by a person trained in hazardous waste management procedures, and must include instruction. which teaches facility personnel hazardous. waste management procedures. ( ncfiidin , contingency plan implementation] relevant to the positions in which they are employed. (3) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and. emergency systems, including, where applicable: (i) Procedures for using; inspecting, repairing, and replacing facility emergency’ and monitoring equipment; (ii) Key parameters for automatic waste feed cut-off systems (iii) Communications or alarm systems; (iv) Response to fires or explosions. (v) Response to ground-water contamination incidents; and (vi) Shutdown of operations. (b) Facility personnel must successfully- complete the program required in paragraph (a) of this Section within six months after the effective date of these regulations or six months after the date of their employment or assignment to a facility, or to a new position at a facility, whichever is later. Employees hired after the effective date of these regulations must not work in unsupervised positions until they have completed the training requirements of paragraph (a) of this Section. (c) Facility personnel’ must take part in an annual review of the initial training required. in paragrapb [ a] of this Section. (d) The owner or operator must maintain the following docrnnants and records at the faciIity (1} The. job title for each position at the facility related, to h rnrdcns waste management, and the mm o! the employee fih1i ng each. job; (2) A written job description for each position listed under paragraph [ &)(1} of this Section. This description may be consistent in its degree of specificity with descriptions for other similar ------- 33224 Federal Register I Vol. 45,’ No. 98 / Monday, May 19, 1980 I Rules and Regulations positions in the same company location or bargaining unit, but must in ilude the requisite skill, education, or other qualifications, and duties of employees assigned to each position: (3) A written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under paragraph (d)(1) of this Section; (4) Records that document that the training or job experience required under paragraphs (a), (b), and (c) of this Section has been given to, and completed by, facility personnel. (e) Training records on current personnel must be kept until closure of the facility; training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company. § 264.17—264.29 IReserved) Subpart C— Prevention § 264.30 ApplicabIlIty The regulations in this Subpart apply to owners and operators of all hazardous waste facilities, except as § 264.1 provides otherwise. - § 264.31 DesIgn and operation of facility. Facilities must be designed, constructed, maintained, and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment. § 264.32 Required equipment. All facilities must be equipped with the following, unless it can be demonstrated to the Regional Administrator that none of the hazards posed by waste handled at the facility could require a particular kind of equipment specified below: (a) An internal communications or alarm system capable of providing immediate emergency instruction (voice or signal) to facility personnel: (b) A device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or State or local emergency response teams: (c) Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals). spill control equipment, and decontamination equipment: and (d) Water at adequate volume and pressure to supply.water hose streams. or foam producing equipment, or automatic sprinideri or water spray systems. [ Comment: Part 122, Subpart B, of this Chapter requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.] § 264.33 Testing and maintenance of equipment. All facility communications or alarm systems, fire protection equipment, spill control equipment, and decontamination equipment, where required, must be tested and naintained as necessary to assure its proper operation in time of emergency. § 264.34 Access to communications alarm System. (a) Whenever hazardous waste is being poured, mixed, spread, or otherwise handled, all personnel involved in the operation must have immediate access to an internal alarm or emergency communication device, either directly or through visual or voice contact with another employee, unless the Regional Administrator has ruled that such a device Is not required under § 264.32. (b) If there is ever just one employee on the premises while the facility is operating, he must have Immediate access to a device, such as a telephone (immediately available at the scene of operation) or a hand-held two-way radio, capable of summoning external emergency assistance, unless the Regional Administrator has ruled that such a device is not required under § 284.32. § 264.35 RequIred aisle space. The owner or operator must maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of facility operation In an emergency, unless it ôan be demonstrated to the Regional Administrator that aisle space is not needed for any of these purposes. [ Comment. Part 122, Subpart B. of this Chapter requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.] § 264.36 SpecIal handling for ignitable or reactive waste. The owner or operator must take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste must be separated and protected from sources of Ignition or reaction including but not limited to: open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, or mechanical), spontaneous ignition (e.g.. from heat-producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator must confine smoking and open flame to specially designated locations. “No Smoking” signs must be conspicuously placed wherever there is a hazard from Ignitable or reactive waste. § 264.37 Arrangements with local authorities. (a) The owner or operator must attempt to make the following arrangements, as appropriate for the type of waste handled at his facility and the potential need for the services of these organizations: (1) Arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous waste handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to and roads inside the facility, and possible evacuation routes; (2).Where more than one police and fire department might respond to an emergency, agreements designating primary emergency authority to a specific police and a specific fire department, and agreements with any others to provide support to the prlmary emergency authority: (3) Agreements with State emergency response teams, emergency response contractors, and equipment suppliers; and (4) Arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or Illnesses which could result from fires, explosions, or releases at the facility. (b) Where State or local authorities decline to enter into such arrangements, the owner or operator must document the refusal in the operating record. § 264.38—264.49 [ Reservedj Subpart D—Contlngency Plan and Emergency Procedures § 264.50 Applicability. The regulations in this Subpart apply to owners and operators of all ------- Federal Register / Vol. 45, No.- 98 I Monday, May 19, 1980 / Rules and Regulations 33225 hazardous waste facilities, except- as 2a4.1 provides otherwise. § 264.51 Purpose and imptementattna of Contingency plan. (a} Each owner or operator must have a contingency plan for his faci!ity. The contingency plan ciuM be designed to minimize hazards to human health or the envirorunzzt from fires, ezis, or any unplanned sidden or ncn-ardden release of hazardous waste or hazardous waste constituents to air, soil, or surface water. (b) The provisions of the plan must be carried out immediately whenever there is a fire, explosion., or release of hazardous waste or hazardous waste constituents which € d threaten human health or the. environmeuL § 264.52 Content of contingency plan. (a) The contingency plan must describe- the actions facility- personnel must take to comply with § § 2a4.51 and 264.56 in response to fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water at the facility. (b) If’ the owner or operator has already prepared a Spill Prevention, Cont±oL and Countermeasures SPCC} Plan in accordance with Fart 112 or Part 151 of this Chapter, or some other emergency or contingency plan, he need only amend that plan to incorporate hazardous waste management provisions that are sufficient to comply with the requirements- of this Part. (c) The plan must describe- arrangements agreed. to by local police departments,. fire departments, hospitals, contractors, and State and local emergency response teams to coordinate emergency services, pursuant to § 264.37. (d) The plan must list names, addresses, and’ phone- numbers (office andt home) of all persons qualified to act as emergency coordinator (see § 264.55), an ithis.list mnstbe kept up to date. Where more than one person is listed, one must be named as primary emergency coordinator and others must be listed inithe-orderin which they will assume responsibility as-alternates. For new facilities,, this information must be supplied to the Regional Administrator at the time of certification. rather than at the time of permit application. (e) The plan must include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internaL and external),, and. decontamination equipment), where this equipment is required. This list must be kept up to date. In addition, the plan - must include the location ,and a physiral description of each item on the list, and a bripf outline of its ccpab _ ties .- (f) The plan mcst irirlude err. evacuation, plan. fc ff 4tty pers r ’rW where there is a possihiuit that evacuation. càuid he necessary. Th plan mimi describe signal s to he med to begin evacuation, evmznaticn ro tes, and alternate evacuation. nodes in cases where the primary routes could be blocked by releases ci hazardous waste or flres}. § 264.53 CopIes of contingency plan. A copy 0 f the contingency plan. and all rev’isioiis to the plani must be (a) Maintained at the facility; and (b) Submitted to all locar police departments, fire departments, hospitals, and State and local emergency response teams that may be called upon to provide emergency services. [ Comment: The contingency plan must be submitted to the Regional Administrator with Part B of the permit application under Part 122, Subparts A and B, of this Chapter and, after modification or approval, will become a condition. of any permit i ssuecLi § 264.54 Amendment 01 contingency plan. The contingency plan must be’ reviewed, and immediately amended, if necessary, wheneveri (a) The facility permit is revisedc (b) The plan fails in an, emergency; (c) The faci1ity changes—in its design, construction, operation, maintenance, or other circumstances—in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or’ hazardous waste constituents, or changes the response necessary in an emergency; (d) The list of emergency coordinators changes; or (e) The list of emergency equipment changes [ Comment: A change in the lists of facility emergency coordinators or equipment in the contingenqr plan constitutes a minor modification to the facility permit to which the plan is a’ condition.] § 264.55 Emergency coordinator. At all times, there must be at least one employee either- on the facility premises or on call (i.e., available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This - emergency coordinator must be thoroughly ‘familiar with all aspects of the’ facility’s contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the’ location of all records within the facility, and the facility layout. In addition, this parmn ,nnist have the authority to commit the resources needed to corny cut the contingency plan. [ Comment: The emergency coordinatoYs responsihllities are mane’ I cily spelled out in § 26456. Applicable responsibilities for the emergency cbordinator vary, depending an factors such as type and variety of waste(s} handled by the facility, and type and complexity of the facflityl § 264.56- Emergency Procedures.. (a) Wherreverthereis ai F,enior actual emergency situation, the emergency doordinator (or his designee when the emergency caord±zrntoiris on call) nnzatimmediately (1] Aatiivate internal facility ah!rni or’ communication systems .. where applicable, to notify all facility personnel: and Notify appropriate State or local agencies with designated response roles if their help is needed. - (b Whenever thore is a release, fire. or explosion, the emergency coordinator must immediately identify the’ character, exact source, amount,, and areal extent of any released materials. He may do this by observation. or review of facility records or manifests, and, if necessary, by chemical analysis. (c) ’ Concurrently, the emergency coordinator must assess possible hazards to, human health. or the environment that. may result from the release, fire, or expLosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that are generated., or the effects of any hazardous surface water rim-off from water or chemical agents used to control fire and- heat-induced’ explosions] (d) If the- emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health, or the environment, outside the ’facflfty, he must report his findings as follows: (1) If his assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities. He must be available to- help appropriate officials decide whether rocal areas should be evacuated; and (2) He must immediately notify either the government, official- designated as the on-scene coordinator for that geographical area, (in. the applicable regional. contingency plan under Part 1510 of this Title) or the National’ ------- 33226 Federal Register I Vol. 45, No. 98 I Monday, May 19. 1980 / Rules and Regulations Response Center (using their 24-hour toll free number 800/424—8802). The report must include: (i) Name and telephone number of reporter (ii) Name and address of facility; (iii) Time and type of incident (e.g.. release, fire); (iv) Name and quantity of material(s) involved, to the extent known; (v) The extent of injuries, if any: and (vi) The possible hazards to human health, or the environment, outside the facility. (e) During an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous waste at th facility. These measures must include, where applicable, stopping processes and operations, collecting and containing release waste, and removing or isolating containers. (1) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator must monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate. (g) Immediately after an emergency, the emergency coordinator must provide for treating, storing, or disposing of recovered waste, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility. [ Comm en L Unless the owner or operator can demonstrate, in accordance with § 261.3(c) or (d) of this Chapter, that the recovered material is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263, and 264 of this Chapter.] (h) The emergency coordinator must ensure that, in the affected area(s) of the facility: (1) No waste that may be incompatible with the released material is treated, stored, or dispnsed of until cleanup procedures are completed; and (2) All emergency equipment listed in the contingency plan is cleaned and’fit for its intended use before operations are resumed. (i) The owner or operator must notify the Regipnal Administrator, and appropriate State and local authorities, that the facility is in compliance with paragraph (h) of this Section before operations are resumed In the affected area(s) of the facility. (j) The owner or operator must note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, he must submit a written report on the incident to the Regional Administrator. The report must include: (1) Name, address, and telephone number of the owner or operator (2) Name, address, and telephone number of the facility; (3) Date, time, and type of incident (e.g., fire, explosion); (4) Name and quantity of material(s) involved; (5) The extent of injuries, if any; (6) An assessment of actual or potential hazards to human health or the environment, where this is applicable; and (7) Estimated quantity and disposition - of recovered material that resulted from the incident. § 264.57-264.69 (Reserved] Subpart E—Manifest System, Recordkeeplng, and Reporting § 264.70 ApplIcability. The regulations in this Subpart apply to owners and operators of both on-site and off-site facilities, except as § 264.1 provides otherwise. Sections 284.71, 264.72, and 264.76 do not apply to owners and operators of on-site facilities that do not receive any hazardous waste from off-site sources. § 264.71 Use of manifest system. (a) If a facility receives hazardous waste accompanied by a manifest, the owner or operator, or his agent, must (1) Sign and date each copy of the manifest to certify that the hazardous waste covered by the manifest was received; (2) Note any significant discrep nc1es in the manifest (as defined in § 264.72(a)) on each copy of the manifest; [ Comment: The Agency does not intend that the owner or operator of a facility whose procedures under § 284.13(c) include waste analysis must perform that analysis before signing the manifest and giving it to the transporter. Section 264.72(b), however, requires reporting an unreconciled discrepancy discovered during later analysis.] (3) Immediately give the transporter at least one copy of the signed manifest; (4) Within 30 days after the delivery, send a copy of the manifest to the generator; and (5) Retain at the facility a copy of each manifest for at least three years from the date of delivery. (b) If a facility receives, from a rail or water (bulk shipment) transporter, hazardous waste which is accompanied — by a shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator’s certification, and signatures), the owner or operator, or his agent. must: (1) Sign and date each copy of the shipping paper to certify that the hazardous waste covered by the shipping paper was received; (2) Note any significant discrepancies in the shipping paper (as defined in § 284.72(a)) on each copy of the shipping paper; [ Comment: The Agency does not Intend that the owner or operator of a facility whose procedures under § 284.13(c) include waste analysis must perform that analysis before signing the shipping paper and giving it to the transporter. Section 264.72(b), however, requires reporting an unreconciled discrepancy discovered during later analysis.] (3) Immediately give the rail or water (bulk shipment) transporter at least one copy of the shipping paper; (4) Within 30 days after the delivery. send a copy of the shipping paper to the generator however, if the manifest is received within 30 days after the delivery, the owner or operator, or his agent, must sign and date the manifest and return i to the generator in lieu of the shipping paper and I Comment: Section 262.23(c) of this chapter requires the generator to send three copies of the manifest to the facility when hazardous waste is sent by rail or water (bulk shipment).] (5) Retain at the facility a copy of each shipping paper and manifest for at least three years from the date of delivery. § 264.72 ManIfest discrepancies. (a) Manifest discrepancies are differences between the quantity or type of hazardous waste designated on the manifest or shipping paper, and the quantity or type of hazardous waste a facility actually receives. Significant discrepancies in quantity are: (1) For bulk waste, variations greater than 10 percent in weight, and (2) for batch waste, any variation in piece count, such as a discrepancy of one drum in a truckload. Significant discrepancies In type are obvious differences which can be discovered by inspection or waste analysis, such as waste solvent substituted for waste acid, or toxic constituents not reported on the manifest or shipping paper. (b)Upon discovering a significant discrepancy, the owner or operator must attempt to reconcile the discrepancy with the waste generator or transporter ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33227 (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the owner or operator must immediately submit to the Regional Administrator a letter describing the discrepancy and attempts to reconcile it, and a copy of the manifest or shipping paper at issue. § 264.73 Operating record. (a) The owner or operator must keep a written operating record at his facility. (b) The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: (1) A description and the quantity of each hazardous waste received, and the method(s) and date(s) of its treatment, storage, or disposal at the facility as required by Appendix I; (2) The location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram of each cell or disposal area. For all facilities, this information must include cross- references to specific manifest document numbers, if the waste was accompanied by a manifest; (3) Records and results of waste analyses performed as specified in § 264.13; (4) Summary reports and details of all incidents that require implementing the contingency plan as specified in § 264.56(j); (5) Records and results of inspections as required by § 264.15(d) (except these data need be kept only three years); and (6) For off-site facilities, notices to generators as specified in § 264.12(b). § 264.74 Availability, retention, and disposition of records. (a) All records, including plans, required under this Part must be furnished upon request, and made available at all reasonable times for inspection, by any officer, employee, or representative of EPA who is duly designated by the Administrator. (b) The retention period for all records required under this Part is extended automatically during the course of any unresolved enforcement action regarding the facility or as requested by the Administrator. (c) A copy of records of waste disposal locations and quantities under - § 264.73(b)(2) must be submitted to the Regional Administrator and local land authority upon closure of the facility. § 264.75 Annual report. The owner or operator must prepare and submit a single copy of an annual report to the Regional Administrator by March 1 of each year. The report form and instructions in Appendix U must be used for this report. The annual report must cover facility activities during the previous calendar year and must include the following information: (a) The EPA identification number, name, and address of the facility; (b) The calendar year covered by the report; (c) For off-site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year for imported shipments, the report must give the name and address of the foreign generhtor (d) A description and the quantity of each hazardous waste the facility received during the year. For off-site facilities, this informatioti must be listed by EPA identification number of each generator (e) The method of treatment, storage, or disposal for each hazardous waste; and (f) The certification signed by the ownei or operator of the facility or his authorized representative. § 264.76 Unmanifested waste report. If a facility accepts for treatment, storage, or disposal any hazardous waste from an off-site source without an accompanying manifest, or without an accompanying shipping paper as described in § 263.20(e)(2) of this Chapter, and if the waste is not excluded from the manifest requirement by § 261.5 of this Chapter, then the owner or operator must prepare and submit a single copy of a reportto the Regional Administrator within 15 days after receiving the Waste. The report form and instructions in Appendix U must be used for this report. The report must include the following information: (a) The EPA identification number, name, and address of the facility; (b) The date the facility received the waste; (c) The EPA identification number, name, and address of the generator and the transporter, if available; (d) A description and the quantity of each unmanifested hazardous waste and facility received; (e) The method of treatment, storage, or disposal for each hazardous waste; (f) The certification signed by the owner or operator of the facility or his authorized representative; and (g) A brief explanation of why the waste was unmanifested, if known. [ Comment: Small quantities of hazardous waste are excluded from regulation under this Part and do not require a manifest. Where a facility receives unmanifested hazardous wastes, the Agency suggests that the owner or operator obtain from each generator a certification that the waste qualifies for exclusion. Otherwise, the Agency suggests that the owner or operator file an unmanifested waste report for the hazardous waste movement.] § 264.77 Additional reports. In addition to submitting the annual report and unmanifested waste reports described in H 264.75 and 264.76, the owner or operator must also report to the Regional Administrator releases, fires, and explosions as specified in § 264.56(j). § 264.78—264.999 [ Reserved]. Appendix L— Recordkeeplng Instructions The recordkeeping provisions of § 204.73 specify that an owner or operator must keep a written operating record at his facility. This appendix provides additional instructions for keeping portions of the operating record. See § 264.73(b) for additional recordkeeplng requirements. The following Information must be recorded., as it becomes available, and maintained in the operating record until closure of the facility in the following mannen Records of each hazardous waste received. treated, stored, or disposed of at the facility which include the following: (1) A description by its common name and the EPA Hazardous Waste Number(s) from Part 261 of the Chapter which apply to the waste. The waste description also must include the waste’s physical form, i.e., liquid, sludge, solid, or contained gas. if the waste is not listed in Part 261. Subpart D, of this Chapter. the description also must include the process that produced It (for example, solid filter cake from production of—, EPA Hazardous Waste Number W051). . Each hazardous waste listed in Part 261, Subpart D, of this Chapter, and each hazardous waste characteristic defined in Part 261. Subpart C, of this Chapter, has a four-digit EPA Hazardous Waste Number assigned to it. This number must be used for recordkeeping and reporting purposes. Wherp a hazardous waste contains more than one listed hazardous waste, or where more than one hazardous waste characteristic applies to the waste, the waste description must include all applicable EPA Hazardous Waste Numbers. (2) The estimated or manifest-reported weight, or volume and density, where applicable, in one of the units of measure specified in Table 1; (3) The method(s) (by handling code(s) as specified in Table 2) and date(s) of treatment, storage, or disposal. ------- 33228 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations Tabte 1 Ursi oJ meause Symbol Oensity Pounds. . . . .._.. —_____ p T G PIG Shorttor is(2 0 00 5 ) Gallons (LLS ).. . cub ic y mds. - — V TIY Kilograms K Tonnes (1000 kg) M Liters Cubic meiws_ . . L —— C KIL hUG ‘Single digit symbols are used here for data purposes Table 2.—Handling Codes for Treatment, Storage, and Disposal Methods Enter the handling code(s) listed below that most dosely represents the techmque(s) used at the facility to treat, store, or dispose of each quantity of hazardous waste received. 1. Storage SOl Container (barrel, drum. etc.) S02 Tank S03 Waste pile - S04 Surface impoundment 505 Other (specify) 2. Treatment (a) Thermal Treatment T06 Liquid injection incinerator T07 Rotary kiln incinerator TUB Fluidized bed incinerator T09 Multiple hearth incinerator Tb Infrared furnace incinerator Til Molten salt destructor T12 Pyrolysis T13 Wet Air oxidation T14 Calcination T15 Microwave discharge T16 Cement kiln T17 Lime kiln Tia Other (specify) (b)Chemical Treatment ,, Ti9 Absorption mound T20 Absorption field T21 Chemical fixation T22 Chemical oxidation T23 Chemical precipitation T24 Chemical reduction T25 Chlorination T26 Chiorinolysis T27 Cyanide destruction T28 Degradation T29 Detoxification T30 Ion exchange T31 Neutralization T32 Ozonation T33 Photolysis T34 Other (specify) (c) Physical Treatment (1) Separation of comuonents T35 Centrifugation T36 Clarification T37 Coagulation T38 Decanting T39 Encapsulation T40 Filtration T41 Flocculation T42 Flotation T43 Foaming T44 Sedimentation T45 Thickening T48 Ultrafiltration T47 Other (specify) (2) Removal of Specific Components T48 Absorption-molecular sieve T49 Activated carbon T50 Blending T51 Catalysis T52 Crystallization T53 Dialysis - T54 Distillation T55 Electrodialysis T56 Electrolysis T57 Evaporation T58 High gradient magnetic separation T59 Leaching T60 Liquid ion exchange T61 Liqwd-liquid extraction T62 Reverse osmosis T63 Solvent recovery T64 Stripping T65 Sand filter TOO Other (specify) Id) Biological Treatment T67 Activated sludge T68 Aerobic lagoon T69 Aerobic tank T70 Anaerobic lagoon T71 Composting T72 Septic tank T73 Spray irrigation T74 Thickening filter T75 Tricking filter T76 Waste stabilization pond T77 Other (specify) T78—79 [ Reserved] 3. Disposal D80 Underground injection D81 Landfill D82 Land treatment D83 Ocean disposal D84 Surface impoundment (to be closed as a landfill) D85 Other (specify) Appendix IL—EPA Report Form and - Inst uctions BILUNG CODE €560-Cl- li ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33229 GSA No 72345XX Please print or type with ELITE type (72 characters per inch ) Foam Approved 0MB No 758- ROOXX U S. ENVIRONMENTAl. PROTECTION AGENCY r HAZARDOUS WASTE REPORT PLEASE PLACE LABEL IN THIS SPACE THIS REPORT IS FOR THE YEAR ENDING DEC S 1 9 — PART B: FACILITY ANNUAL REPORT 1 ’HiS REPORT FOR YEAR ENDING DEC “I 1 PART C: UNMAN IF’ESTED WASTE REPORT TH 1a REPORT IS FOR A WASTE RECE 1VED(dcy ,mo ,&yr) — — INSTRUCTIONS You may have received a preprinted label attached to the front of thIs pamphlet, affix it iii the designated space above—left If any of the information on the label is incorrect, draw a line through It and supply the correct information in the appropriate section below Si the label is complete and correct, leave Sections II, III, and IV below blank. If you did Rot receive a preprinted label, complete all sections. “InstallatiOn” means a single site where hazardous waste is generated, treated, stored, or disposed of. Please refer to the specific instructions for generators or facilities before completing this form. rhe information requested herein is required by law (Section 3002/3004 of the Rescurse Conservation end Recovers, Act). II. INSTALLATION’S EPA S.D. NUMBER T __________________________________________________________________ ‘ 1I I I I I I I I Ill. NAME OF INSTALLATION 111111111 T IV. INSTALLATION MAILING STREET OR P.O eox :- : VIII. COST ESTIMATES FOR FACILITIES (10’ Part B report. oniyj A. COST ESTIMATE FOR FACILITY ci..oauRE • 5. COST ESTIMATE FOR POET CLOSURE MONITORING AND MAINTENANCE (disposal facilities onlyj ‘ WJL ’ IX. CERTIFICATION JJ ”! I Certify under penally of law that I have personally examined and am familiar with the information submitted in this and all attached document., and that bawd on my inquiry of those Individuals immediately responsible for obtaining the ,nfomiation , I believe that the wbm,ttedinfonnation is true, accurote, and complete. lam aware that there are significant penalties for submitting false information, Including the possiblla’ of fine and imprisonment - A PRINT OR TYPE NAME S SIGNATURE C DATE SIGNED SPA Form 5700.13 (4-80) I. TYPE OF HAZARDOUS WASTE REPC PART A’ GENERATOR ANNUAL REPOR 11111111 ti I I I I I I I I I I I I I I Ii I I I I I I I liii liii I II iii ,. . — . ‘4 i CITY OR TOWN I ay ZIP CODE 1ij I I 11111111 III! 111111111 II II , I V. LOCATION OP , , STREET OR ROUTE NUMBER I tIllIllIll I II! 111111111 1111, — CITY OR TOWN T ZIP COOC VI. I 1_ 1 I I I I I I I I I I I I I I I I I I I I I I I NAME (last and fiht) II 1 liii I 11111111111 11111 11111111 VII. TRANSPORTATION SERVICES USED ((or Pert . 4 List the EPA Identification Numbers for those transporters whose services were used during the reporting year represented by this report PHONE NO. (area code & O) I I I—I I I I—I I I I I PAGE 1 ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations Pleat, Drift or IVOS with ELITE woe ( 12 cheracten/Inch a r * I S !‘ rM I. DATE RECEIVED I XVI. TYPE OF REPORT (enter on • X I ‘ON o ic.*i. t I ii i j-i ii 91 1 USE ONI.V Wz. h L iv ku v 1tmni3S ) OPARTS DPARTC L TAJIDi CX. GENERATOR ADDRESS (.triet or P0 box. city. note, & zip codej . ,....E f.o.ei9 .. XXI. WASTE IDENTIFICATION - S A DESCRIPTION OF WASTE z .Jz 12 1 —- HAZARDOUS • NUMD R (.ee In,boctiona) HAND IFTHOC od:) - - - OF WASTE - 1E 1 Z : — — 11 — - -- XXII. COMMENTS (Inter Information byline number—ire Inat Uction.) PROT T icy C ID. NO. I I I I I I I I I I I SPA Fonn 6700.158 15 - ID) BILUNG èODE 6560-01-C 33230 GSA No. 12345 -Xx Form Approved 0M8 No 158-ROOXX I PAGE — OF — ------- Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations 33231 General Instructions Hazardous Waste Report (EPA Form 8700-13) Important: Read all instructions before completing this form. Section 1.—Type of Hazardous Waste Report Port A—Generator Annual Report For generators who ship their waste off-site to facilities which they do not own or operate; fill in the reporting year for this report (e.g.. 1982). Note.—Generators who ship hazardous waste off-site to a facility which they own or operate must complete the facility (Part B) report instead of the Part A report. Part B—Focihty Annual Report - For owners or operators of on-site or off- site facthties that treat, store, or dispose of hazardous waste; fill in the reporting year for this report (e.g., 1982). Part C—Unjnonifested Waste Report For facility owners or operators who accept for treatment. storage, or disposal any hazardous waste from an off-site source without an accompanying manifest; fill in the date the waste was received at the f,adility (e.g. 04—12—1982). Section II. thru Section IV.—lnstallation 1.D. Number. Name of Installation, and Installation Mailing Address If you received a preprinted lable from EPA, attach it in the space provided and leave Sections II through IV blank. If there is an error or omission on the label, cross out the incorrect Information and fill in the appropriate item(s). If you did not receive a preprinted label, complete Section II through Section IV. Section V.—Location of Installation If your installation location address is different than the mailing address, enter the location address of your installation. Section VI.—Installation Contact Enter the name (last and first) and telephone number of the person whom may be contacted regarding information contained in this report. Section VIl.—Transportation Services Used (For Part A reports ONLY) List the EPA Identification Number for each transporter whose services you used during the reporting year. Section VIIL—Cost Estimates for Facilities (For Part B reports ONLY) A. Enter the most recent cost estimate for facility closure in dollars. See subpart H of 40 CFR part 204 or 265 for more detail. B. For disposal facilities only, enter the most recent cost estimate for post closure monitoring and maintenance. See Subpart H of s CFR Part 264 or 265 for more detail. Section IX.—Certiflcation The generator or his authorized representative (Part A reports) dr the owner or operator of the facility or his authorized representative (Parts B and C reports) must sign and date the certification where indicated. The printed or typed name of the person signing the report must also be induded where indicated. Note.—Since more than one page is required for each report, enter the page number of each sheet in the lower right corner as well as the total number of pages. Facility Annual Report Part B Instructions (EPA Form 8700 -13B) Facility Annual Report for owners or operators of on-site or off-site facilities that treat, store, or dispose of hazardous waste. Note.- .--Generators who ship hazardous waste off-site to a facility they own or operate must complete this Part B report instead of the Generator (Part A) Minual Report. Important: Read All Instructions Before Completing This Form Section XVI.—Type of Report Put an “X” in the box marked ParE B. Section XVII.—Facility’s EPA Identification Number Enter the EPA identification number for your facility. Examples XVII FACILITY’S EPA 1.0 ________ 4U 3 I 5 I 3 ! 1 I 2 I 6 [ LJ jij Section XVIII.—Generatàr’s EPA Identification Number Enter the EPA identification number of the generator of the waste described under Section XXI which was received by your facility during the reporting year. A separate Section XXI—A.—Description of Waste For hazardous wastes that are listed under 40 CFR Part 261, Subpart 1), enter the EPA listed name, abbreviated if necessary. Where mixtures of listed wastes were received, enter the description which you believe best describes the waste. For unlisted hazardous waste identified under 40 CFR Part 261, Subpart C, enter the description which you believe best describes the waste. Include the specific manufacturing or other process generating the waste (e.g., green sludge from widget manufacturing) and sheet must be used for each generator. If the waste came from a foreign generator, enter the EPA identification number of the importer in this section and enter the name and address of the foreign generator in Section XXII, Comments. If the waste wa generated and treated, stored, or disposed of at the same installation, leave this section blank. Section XIX—Generator’s Name Enter the name of the generator corresponding to the generator’s EPA identification number in Section XVIII. If the waste was generated and treated, stored, or disposed of at the same installation, enter ON—SITE”. If the waste came from a foreign generator, enter the name of the importer corresponding to the EPA identification number in Section XVIII’ Section XX—Generator’s Address Enter the address of the generator corresponding to the generator’s EPA identification number in Section XVIII. If the waste was generated and treated, stored, or disposed of at the same installation, leave this section blank. If the waste came from a foreign generator, enter the address of the importer corresponding to the EPA identification number in Section XVIII. Section XXI.—Waste Identification — All information in this section must be entered by line number. A separate line entry is required for each different waste or mixture of wastes that your facility received during the reporting year. The handling code — - applicable to that waste at the end of the reporting year should be reported. If a different handling code applies to portions of the same waste, (a g., part of the waste Is stored while the remainder was “chemically fixed” during the year), use a separate line entry for each portion. if known, the chemical or generic chemical name of the waste, Section XXI—B.—EPA Hazardous Waste Number For listed waste, enter the four digit EPA Hazardous Waste Number from 40 CFR Part 281. Subpart D. which identifies the waste. For a mixture, of more than one listed waste, enter each of the applicable EPA Hazardous Waste Numbers. Four spaces are provided. If more space is needed, continue on the next line(s) and leave all other information on that line blank. Example, XXI WASTE IDENTIFICATION S * SSSCNIPTION O enSTS Se n nAza SDouS •THOI j; Or WAS ,. N • ! SteeiP niab1ngs1i ge SteelPlnis)ilngSlu ge ¶1 III 11111 t J ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations For unlisted hazardous wastes, enter the EPA Hazardous Waste Numbers from 40 CFR Part 201. Subpart C, applicable to the waste. If more than four spaces are required, follow the procedure described above. Section XXI-C.—Handling Code Enter one EPA handling code for each waste line entry. Where several handling steps have occurred during the year, report only the handling code representing the waste’s status at the end of the reporting year or its final disposition. EPA handling codes are given In Appendix I of this Part. Section XXI—D.—Aniount of Waste Enter the total amount of waste described on this line which you received during this reporting year. Section XXI—E.-—Unit of Measure Enter the unit of measure code for the quantity of waste described on this line. Units of measure which must be used in this report and the appropriate codes are: Un(t of measure Code Pounde......_ ...._ P Shoqt tolls (2000 Cbs) .._.. ....... T Kllograms...._...._ ........ K Tonnes (1000 kg) .. .. .._.. M Units of volume may not be used for reporting but must be converted into one of the above units of weight, taking Into account the appropriate density or specific gravity of the waste. Section XXII.—Comments This space may be used to explain or clarify any entry. If used, enter a cross- reference to the appropriate Section number. Note.—Slnce more than one page is required for each report, enter the page number of each sheet in the lower right hand corner as well as the total number of pages. Where required by 40 CFR 264 or 265, subparts F or R. attach ground-water monitoring data to this report. Uninanifested Waste Report Part C InstrUctions (EPA Form 8700-1SB) Unmanifested Waste Report for facility owners or operators who accept for treatment, storage, or disposal any hazardous waste from an off-site source without an accompanying manifest. Impo tant: Read All Instructions Before - Completing This Form For the Unmanifeated Waste Report, EPA Forms 8700-13 and 8700-13B must be filled out aocording to the directions for the Part-B Facili;y Annual Report except that: (1) blocks for which information is not available to the owner or operator of the reporting facility may be marked “UNKNOWN,” and (2) the following special instructions apply. Section VHI.—Cost Estimates for Facilities Do not enter closure or post-closure cost estimates. Section XVI.—Type of Report Put an “x” in the box marked Part C. Section XXI—A..--.Description of Waste Use as many line numbers as are needed to describe the waste Section XXI—C.—Handling Code Enter the handling code which describes the status of the waste on the date the repott is filed. - Section XXI—D.—Amount of Waste Enter the amounl of waste received, rather than a total annual aggregate. Section XXII.—Comments a. Enter the EPA Identification number, name, and address of the transporter, if known. If the transporter is not known to you, enter the name and chauffeur license number of the driver and the State and license number of the transporting vehicle which presented the waste to your facility, if known. b. Enter an explanation of how the waste movement was presented to your facility; why you believe the waste Is hazardous; and how your facility plans to manage the wastes. Continue on a separate blank sheet of paper if additional space is needed. Monitoring Date. Do not attach monitoring data. PART 265—INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES Subpart A—General Sec. 265.1 Purpose, scope, and applicability. 265.2—265.3 [ Reserved] 285.4 Imminent hazard action, 265.5—285.9 [ Reserved] Subpart B—General Facility Standards 265.10. Applicability. - 265.11 Idenltification number. 265.12 Required notices. 265.13 General waste analysis. 205.14, Security. Sec. 265.15 General inspection requirements. 265.16 Personnel training. 285.17 General requirements for ignitable. reactive, or incompatible wastes. 265.18-265.29 [ Reserved] Subpart C—Preparedness and Prevention 265.30 Applicability. 265.31 Maintenance and operation of facility. 285.32 Required equipment. 265.33 Testing and maintenance of equipment. 265.34 Access to communications or alarm system. 265.35 Required aisle space. 265.38 IReserved] 205.37 Arrangements with local authorities. 265.38—265.49 [ Reservedj Subpart D—Contingency Plan and Emergency Procedures 205.50 Applicability. 265.51 Purpose and implementation of contingency plan. 265.52 Content of contingency plan. 205.53 Copies of contingency plan. 265.54 Amendment of contingency plan. 205.55 Emergency coordinator. 205.56 Emergency procedures. 265.57—265.09 IReserved] Subpart E—Manif eat System, Recordkeeplng, and Reporting 265.70 Applicability. 265.71 Use of manifest system. 205.72 Manifest discrepancies. 265.73 Operating record. 265.74 Availability, retention, and disposition of records. 265.75 Annual report. 265.76 Unmanifested waste report. 265.77 Additional reports. 265.78—265.89 [ Reserved] Subpart 205.90 Applicability. 265.91 Ground-water monitoring system. 265.92 Sampling and analysis. 265.93 Preparation, evaluation, and response. 265.94 Recordkeeping and reporting. 205.95-265.109 [ Reserved] Subpart G—Closure and Post-Closure 265.110 Applicability. 285.111 Closure performance standard. 265.112 Closure plan: amendment of plan. 205.113 TIme allowed for closure. 265.114 Disposal or decontamination of equipment. 265.115 Certification of closure. 265.116 [ Reserved] 265.117 Post-closure care and use of property; period of care. 265.118 Post-closure plan amendment of plan. 265.119 Notice to local land authority. 205.120 Notice in deed to property. 265.121—265.139 [ ReservedJ 33232 Exampte: IDENTIFICATION ‘ r ’ —— - 5 S S DSgCS O , ,O NA.rt s IIIJL . .a.anoou. ,—g ,.,S..flS..,, : . , • og i i - ‘- s ee1pfr’ 5 ) jflgs3 i6ge iO’( 0 ’6 TT jj ii 1JJJ 111111 : jiiiiii,- ------- Federal Register I Vol. 45, No. 98 / Monday. May 19, 1980 I Rules and Regulations 33233 Subpart H—Financial Requirements ec. 35.140 Applicabthty. ô5.141 [ Reserved) 265.142 Cost estimateS for facility closure. 265.143 [ Reserved] 265 144 Cost estimate for post-closure monitoring and maintenance. 265.145—265.169 [ Reserved] Subpart I—Use and Management of Containers 265.170 Applicabihty. 265.171 Condition of containers. 265.172 Compatibility of waste with container. 265.173 anagement of containers 265.174 Inspections. 265.175 [ Reserved] 265.176 Special requirements for ignitable or reactive waste. 265 177 Special requirements for incompatible wastes. 265.178—265.189 [ Reserved] Subpart J—Tanks 285.190 Applicability. 265.191 [ Reserved] 265.192 General operating requirements. 265.193 Waste analysis and trial tests. 285.194 Inspections. 265.195—265.196 [ Reserved] 285.197 Closure. 265.198 Special requirements for- ignitable or reactive waste. 265.199 Special requirements for incompatible wastes. 185.200—265.219 [ Reserved] 5ubpart K—Surface impoundments 265.220 Applicability. 265.221 [ Reserved] 265.222 General operating requirements. 285.223 Containment system. 265.224 [ Reserved] 265.225 Waste analysis and tflal tests. 285.226 Inspections. 285.227 [ Reserved] - 265.228 Closure and post-closure. 265.229 Special requirements for ignitable or reactive waste. 265.230 Special requirements for incompatible wastes. 285.231—285 249 [ Reserved] Subpart L—Waste Piles 265.250 Applicability. 265.251 Protection from wind. 265.252 - Waste analysis. 285.253 Containment. 265.254—265.255 [ Reserved] 265 256 Special requLrements for ignitable or - reactive waste. 285.257 Special requirements for incompatible wastes. 265.256—265 289 [ Reserved] Subpart M—Land Treatment 265.270 Applicability. 265.271 [ Reserved] 265.272 General operating requirements. 265.273 Waste analysis. 265.274—265 275 [ Reserved] 265.276 Food chain crops. 265.277 [ Reserved] 65.278 Unsaturated zone (zone of aeration) monitoring. Sec. 285.279 Recordkeeping. 265.280 Closure and post-closure. 265.281 Special requirements for ignitable or reactive waste. 285.282 Special requirements for incompatible wastes. 265 283—265.299 - [ Reserved] Subpart N—Landfills 265.300 Applicability. 265.301 [ Reserved] 265.302 General operating requirements. 265.303—265.308 [ Reserved] 265.309 Surveying and recordkeeping. 265.310 Closure and post-closure. 285.311 [ Reserved] 265 312 Special requirements for ignitable or reactive waste. 285.313 Special requirements for incompatible wastes. 265.314 Special requirements for liquid waste. 265.315 Special requirements for containers. 265.316—285.339 [ Reserved] Subpart 0—incinerators 265340 Applicability. 265.341—265.342 [ Reserved] 265.343 General operating requirements. 265.344 [ Reserved] 265.345 Waste analysis. 265.346 [ Reserved] 265 347 Monitoring and inspections. 265.348—285.350 [ Reserved] 285.351 Closure. 265.352—265.369 (Reserved] Subpart P—Thermal Treatment 265.370 Applicability. 265.371—265.372 [ Reserved] 265.373 General operating requirements. 265.374 [ Reserved] 285.375 Waste analysis 265.378 [ Reserved]. 265.377 Monitoring and inspections. 265.378—285 380 [ Reserved] 265.381 Closure. 265.382 Open burning; waste explosives. 265.383—285 399 (Reserved] Subpart 0—ChemIcal, Physical, and Biological Treatment 265.400 Applicability. 265.401 General operating requirements. 265.402 Waste analysis and trial tests. 265.403 Inspections. 265.404 Closure. 265405 Special requirements for ignitable or reactive waste. 265.408 Special requirements for incompatible wastes. 265.407—265.429 [ Reserved] Subpart R—Underground InjectIon 265.430 Applicabihty. 285.431—265.999 [ Reserved] Appendix I—Recordkeeping instructions. Appendix U—EPA report form and instructions. Appendix 111—EPA interim primary drinking water standards. Appendix lV—Tests for significance. Appendix V—Examples of potentially incompatible waste. Authontyi Secs. 1006, 2002(a). and 3004 of the Solid Wa te Disposal Act, as amended by the Resource Conservation and Recovery Act of 1978. as amended (42 U.S.C. 6905, 6912(a), and 6924). ‘Subpart A—General § 265.1 Purpose, scope, and applicabIlity. (a) The purpose of this Part is to establish minimum national standards which define the acceptable management of hazardous waste during the period of interim status. (b) The standards in this Part apply to owners and operators of facilities which treat, store, or dispose of hazardous waste who have fully complied with the requirements for interim status under Section 3005(e) of RCR.A and § 122.22 of this Chapter, until final administrative disposition of their permit application is made. These standaads apply to all treatment, storage, or disposal of hazardous waste at these facilities after the effective date of these regulations, except as specifically provided otherwise in this Part or Part 261 of this Chapter. - [ CommenL As stated in Section 3005(a) of RCRA, after the effective date of regulations under that Section, i.e., Parts 122 and 124 of this Chapter, the treatment, storage, or disposal of hazardous waste is prohibited except in accordance with a permiL Section 3005(e) of RCRA provides for the continued operation of an existing facility which meets certain conditions until final administrative disposition of the owner’s and operator’s permit application is made.] (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 permit issued under the Marine Protection, Research, and Sanctuaries Act: [ CommenL These Part 265 regulations do apply to the treatment or storage of hazardous waste before it is loaded onto an ocean vessel for incineration or disposal at sea, as provided in paragraph (b) of this Section.] (2) A person disposing of hazardous waste by means of underground injection subject to a permit issued under an Underground Injection Control (UIC) program approved or promulgated under the Safe Drinking Water Act; [ Comment: These Part 265 regulations do apply to the aboveground treatment or storage of hazardous waste before it is injected underground. These Part 265 regulations also apply to the disposal of hazardous waste by means of underground injection, as provided in paragraph (b) of this Section, until final administrative disposition of a person’s permit application is made under RCRA ------- 33234 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations or under an approved or promulgated UIC program.] (3) The owner or operator of a POTW which treats, stores, or disposes of hazardous waste; (Comment: The owner or operator of a facility under paragraphs (c)(1) through (c)(3) of this Section is subject to the• requirements of Part 264 of this Chapter to the extent they are included in a - permit by rule granted to such a person under Part 122 of this Chapter, or are required by § 122.45 of this Chapter.] (4) 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, or Subpart F, of Part 123 of this Chapter, except that the requirements of this Part will continue to apply as stated in paragraph (c)(2) of this Section. if the authorized State RCRA program does not cover disposal of hazardous waste by means of underground injection; (5) The owner or operator of a facility permitted, licensed, or registered by a State to manage municipal or industrial solid waste, If the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this - Part by § 261.5 of this Chapter (6) The owner or operator of a facility which treats or stores hazardous waste, which treatment or storage meets the criteria in § 261.6(a) of this Chapter, except to the extent that § 261.6(b) of this Chapter provides otherwise; (7) A generator accumulating waste on-site in compliance with § 262.34 of this Chapter, except to the extent the requirements are included In § 262.34 of this Chapter - (8) A farmer disposing of waste pesticides from his own use in compliance with § 262.51 of this Chapter or - (9) The owner or operator of a totally enclosed treatment facility, as defined in § 260.10. § 265.2—265.3 [ Reserved] § 265.4 imminent hazard action. Notwithstanding any other provisions of these regulations, enforcement actions may be brought pursuant to Section 7003 of RCRA. § 265.5-265.9 [ Reserved] - Subpart B—General Facility Standards § 265.10 ApplicabIlity The regulations In this Subpart apply to owners and operators of all hazardous waste facilities, except as § 265.1 provides otherwise. § 265.11 identificatIon number. Every facility owner or operator must apply to EPA for an EPA identification number in accordance with the EPA notification procedures (45 FR 12746). § 265.12 Required notices. (a) The owner or operator of a facility that has arranged to receikre hazardous waste from a foreign source must notify the Regional Administrator in writing at least four weeks in advance of the date of the waste is expected to arrive at the facility. Notice of subsequent shipments of the same waste from the same foreign source is not required. (b) Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post-closure care period, the owner or operator must notify the new owner or operator in writing of the requirements of this Part and Part 122 of this Chapter. (Also see § 122.23(c) of this Chapter.) [ CommenL An owner’s or operator’s failure to notify the new owner or operator of the requirements of this Part In no way relieves the new owner or operator of-his obligation to comply with all applicable requirements.] § 265.13 Genera! waste analysis. (a)(1) Before an owner or operator treats, stores, or disposes of any hazardous waste, he must obtain a detailed chemical and physical analysis of a representative sample of the Waste. At a minimum, this analysis must contain all the information which must be known to treat, store, or dispose of the waste in accordance with the requirements of this Part. (2) The analysis may include data developed under Part 261 of this’ Chapter, and existing published or documented data on the hazardous waste or on waste generated from similar processes. (Comment: For example, the facility’s record of analyses performed on the waste before the effective date of these regulations, or studies conducted on hazardo us waste generated from processes similar to that which generated the waste to be managed at the facility, may be included in the data base required to comply with paragraph (a)(1) of this Section. The owner or operator of an off-site facility may arrange for the generator of the hazardous waste to supply part or all of the information required by paragraph (a)(1) of this Section. If the generator does not supply the information, and the owner or operator chooses to accept a hazardous waste, the owner or operator is responsible for obtaining the information required to comply with this Section.] (3) The analysis must be repeated as necessary to ensure that it is accurate and up to date. At a minimum, the analysis must be repeated: (i) Whenthe owner or operator is notified, or has reason to believe, that the process or operation generating the hazardous waste has changed; and (ii) For off-site facilities, when the results of the inspection required in paragraph (a)(4) of this Section indicate that the hazardous waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper. (4) The owner or operator of an off- site facility must inspect and, if necessary, analyze each hazardous waste movement received at the acillty to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper. (b) The owner or operator must develop and follow a written waste analysis plan which describes the procedures which he will carry out to comply with paragraph (a) of this Section. He must keep this plan at the facility. At a minimum, the plan must specify: (1) The parameters for which each hazardous waste will be analyzed and the rationale for the selection of these parameters (i.e., how analysis for these parameters will provide sufficient information on the waste’s properties to comply with paragraph (a) of this Section); (2) The test methods which will be used to test for these parameters: (3) The sampling method which will be used to obtain a representative sample of the waste to be analyzed. A representative sample may be obtained using either: (1) One of the sampling methods described in Appendix I of Part 261 of this Chapter: or (ii) An equivalent sampling method. [ Comment: See § 260.20(c) of this Chapter for related discussion.] (4) The frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up to date: (5) For off-site facilities, the waste analyses that hazardous waste generators have agreed to supply; and (6) Where applicable, the methods which will be used to meet the additional waste analysis requirements for specific waste management methods as specified in § § 265.193, 265.225, 285.252, 265.273, 265.345, 265.375, and 265.402. ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33235 (c) For off-site facilities, the waste Lflalysis plan required in paragraph (b) - f this Section must also specify the ,irocedures which will be used to inspect and, If necessary, analyze each movement of hazardous waste received at the facility to ensure that it matches the identity of the waste designated on the accompanying manifest or shipping paper. At a minimum, the plan must describe: (1) The procedures which will be used to determine the identity of each movement of waste managed at the facility; and (2) The sampling method which will be used to obtain a representative sample of the waste to be identified, if the identification method includes sampling. § 265.14 Security. (a) The owner or operator must prevent the unknowing entry, and - minimize the possibility for the unauthorized entry, of persons or livestock onto the active portion of his facility, unless: (1) Physical contact with the waste, structures, or equipment with the active portion of th facility will not injure unknowing or unauthorized persons or livestock which may enter the active portion of a facility, and. (2) Disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or livestock onto the active portion of a facility, will not cause a violation of the requirements of this Part. (b) Unless exempt under paragraphs (a)(1) and (a)(2) of this Section, a facility must have: - (1) A 24-hour surveillance system (e.g., television monitoring or surveillance by guards of facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or (2)(i) An artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and (ii) A means to control entry, at all limes, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility). [ Comment: The requirements of paragraph (b) of this Section are satisfied if the facility or plant within which the active portion is located itself has a surveillance system, or a barrier and a means to control entry, which complies with the requirements of paragraph (b)(l) or (b)(2) of this Section.] (c) Unless exempt under paragraphs (aJ(1) and (a)(2) of this Section, a sign with the legend, “Danger—Unauthorized Personnel Keep Out,” must be posted at each entrance to the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion. The legend must be written in English and in any other language predominant in the area surrounding the facility (e.g., facilities in counties bordering the Canadian province of Quebec must post signs in French; facilities in counties bordering Mexico must post signs in Spanish), and must be legible from a distance of at least 25 feet. Existing signs with a legend other than “Danger—Unauthorized Personnel Keep Out” may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous. [ Comment: See § 265.117(b) for discussion of security requirements at disposal facilities during the post- closure care period.] § 265.15 General inspection requirements. (a) The owner or operator must inspect his facility for malfunctions and deterioration, operator errors, and discharges which may be causing—or may lead to—(1) release of hazardous waste constituents to the environment or (2) a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment. (b)(1) The owner or operator must develop and follow a written schedule for inspecting all monitoring equipment, safety and emergency equipment, security devices, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting, or responding to environmental or human health hazards. (2) He must keep this schedule at the facility. (3) The schedule must identify the types of problems (e.g., malfunctions or deterioration) which are to be looked for during the inspection (e.g., inoperative sump pump, leaking fitting, eroding dike, etc.). (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 or 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 items and frequencies called for in § § 265.174, 265.194, 265.226, 265.347, 265.377, and 265.403. (c) The owner or operator must remedy any deterioration or malfunction of equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately. (d) The owner or operator must record inspections in an inspection log or summary. He must keep these records for at least three years from the date of inspection. At a minimum, these records must include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions. § 265.16 Personnel training. (a)(1) Facility personnel must successfully complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in a way that ensures the facility’s compliance with the requirements of this Part. The owner or operator must ensure that this program includes all the elements described in the document required under paragraph (d)(3) of this Section. (2) This program must be directed by a person trained in hazardous waste management procedures, and must include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed. (3) At a minimum, the tI aining program must be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, including where applicable: (i) Procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment; (ii) Key parameters for automatic waste feed cut-off systems; (iii) Communications or alarm systems; (iv) Response to fires or explosions; (v) Response to ground-water contamination incidents; and (vi) Shutdown of operations. (b) Facility personnel must successfuly complete the program required in paragraph (a) of this Section ------- 33236 Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations within six months after the effective date of these regulations or six months after the date of their employment or assignment to a facility, or to a new position at a facility, whichever is later. Employees hired after the effective date of these regulations must not work in unsupervised positions until they have completed the training requirements of’ paragraph (a) of this Section. (c) Facility personnel must take part in an annual review of the initial training required in paragraph (a) of this Section. (d) The owner or operator must maintain the following documents and records at the facility: (1) The job title for each position at the facility related to hazardous waste management. and the name of the employee filling each job; (2) A written job description for each position listed under paragraph (d)(1) of this Section. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but must include the requisite skill, education, or other qualifications, and duties of facility personnel assigned to each position; (3) A written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under paragraph (d)(1) of this Section; (4) Records that document that the training or job experience required under paragraphs (a), (b). and (c) of this Section has been given to, and completed by, facility personnel. (e) Trziining records on current personnel must be kept until closure of the facility. Training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training racords may accompany personnel transferred within the same company. § 265.17 General requirements for Ignitable, reactive, or Incompatible wastes. (a) The owner or operator must take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste must be separated and protected from sources of ignition or reaction including but not limited to: open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, or mechanical), spontaneous ignition (e.g.. from heat-producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator must confine smoking and open flame to specially designated locations. “No Smoking” signs must be conspicuously placed wherever there is a hazard from ignitable or reactive waste., (b) Where specifically required by other Sections of this Part, the treatment, storage, or disposal of ignitable or reactive waste, and the mixture or commingling of incompatible wastes, or incompatible wastes and materials, must be conducted so that it does not: - (1) Generate extreme heat or pressure, fire or explosion, or violent reaction; (2) Produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health; (3) Produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions; (4) Damage the structural integrity of the device or facility containing the waste; or (5) Through other like means threaten human health or the environment. § 265.18—265.29 (Reserved] Subpart C—F Prevention and § 265.30 ApplicabilIty. The regulations in this Subpart apply to owners and operators of all hazardous waste facilities, except as § 265.1 provides otherwise. - § 265.31 MaIntenance and operation of facility. Facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment. § 265.32 Required equipment. All facilities must be equipped with the following, unless none of the hazards posed by waste handled at the facility could require a particular kind of equipment specified below: (a) An internal communications or alarm system capable of providing immediate emergency instruction (voice or signal) to facility personnel; (b) A device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or State or local emergency response teams; (c) Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment; and (d) Water at adequate volume and pressure to supply water hose streams, or foam producing equipment. or automatic sprinlders. or water spray systems. § 26533 TestIng and maintenance of equipment. All facility communications or alarm systems, fire protection equipment, spill control equipment, and decontamination equipment, where required, must be tested and maintained as necessary to assure its proper operation in time of emergency. § 265.34 Access to communications or alarm system. (a) Whenever hazardous waste is being poured, mixed, spread, or otherwise handled, all personnel involved in the operation must have immediate access ‘to an internal alarm or emergency communication device, either directly or through visual or voice contact with another employee, unless such a device is not required under § 265.32. (b) If there is ever just one employee on the premises while the facility is operating, he must have immediate access to a device, such as a telephone (immediately available at the scene of operation) or a hand-held two-way radio, capable of summoning external emergency assistance, unless such a device is not required under § 265.32. § 265.35 Required aisle space. The owner or operator must maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency, unless aisle space is not needed for any of these purposes. § 265.36 (Reserved] § 265.37 Arrangements with local authorities. - (a) The owner or operator must attempt to make the following arrangements, as appropriate for the type of waste handled at his facility and the potential need for the services of these organizations: (1) Arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous waste handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to roads inside the facility, and possible evacuation routes; (2) Where more than one police and fire department might respond to an emergency, agreements designating ------- Federal Register / Vol. 45,No. 98 I Monday, May 19, 1980 / Rules and Regulations 33237 primary emergency authority to a 1 pecific police and a specific fire lepartment, and agreements with any others to provide support to the primary emergency authority; (3) Agreements with State emergency response teams, emergency response - contractors, and equipment suppliers; and (4) Arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or illnesses which could result from fires, explosions, or releases at the facility. (b) Where State or local authorities decline to enter into such arrangements, the owner or operator must document the refusal in the operating record. § 265.38—265.49 [ Reserved] Subpart D—Contingency Plan and Emergency Procedures § 285.50 ApplIcability. The regulations in this Subpart apply to owners and operators of all hazardous waste facilities, except as § 265.1 provides otherwise. § 265.51 Purpose and implementation of contingency plan. (a) Each owner or operator must have a contingency plan for his facility. The ontingency plan must be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudd,en or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water. (b) The provisions of the plan must be carried out immediately whenever there is a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment. § 265.52 Content of contingency plan. (a) The contingency plan must describe the actions facility personnel must take to.comply with § § 265.51 and 265.56 in response to fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water at the facility. (b) If the owner or operator has already prepared a Spill Prevention, Control, and Countermeasures (SPCC) Plan in accordance with Part 112 or Part 151 of this Chapter, or some other emergency or contingency plan, he need DnIy amend that plan to incorporate hazardous waste management provisions that are sufficient to comply with the requirements of this Part. (c) The plan must describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and State and local emergency response teams to coordinate emergency services, pursuant to § 265.37. (d) The plan must list names, addresses, and phone numbers (office and home) of all persons qualified to act as emergency coordinator (see § 265.55), and this list must be kept up to date. Where more than one person Is listed, one must be named as primary emergency coordinator and others must be listed in the order in which they will assume responsibility as alternates. (e) The plan must include a list of all emergency equipment al the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external), and decontamination equipment), where this equipment is required. this list must be kept up to date. In addition, the plan must include the location and a physical description of each item on the list, and a brief outline of its capabilities. (f) The plan must include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan must describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by releases of hazardous waste or fires). § 265.53 CopIes of contingency plan. A copy of the contingency., plan and all revisions to the plan must be: (a) Maintained at the facility; and (b) Submitted to all local police departments, fire departments, hospitals, and State and local emergency response teams that may be called upon to provide emergency services. - § 265.54 Amendment of contingency plan. The contingency plan must be reviewed, and immediately Imended, if necessary, whenever: (a) Applicable regulations are revised; (b) The plan fails in an emergency; (c) The facility changes—in its design, construction, operation, maintenance, or other circumstances—in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency; (d) The list of emergency coordinators changes; or (e) The list of emergency equipment changes. § 265.55 Emergency coordinator. At all times, there must be at least one employee either on the facility premises or on call (i.e., available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinatormust be thoroughly familiar with all aspects of the facility’s contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the contingency plan. [ Comment: The emergency coordinator’s responsibilities are more fully spelled out in § 265.58. Applicable responsibilities for the emergency coordinator vary, depending on factors such as type and variety of waste(s) handled by the facility, and type and complexity of the facility.] § 265.56 Emergency procedures. (a) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) must immediately: (1) Activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and (2) Notify appropriate State or local agencies with designated response roles if their help is needed. (b) Whenever there is a release, fire, or explosion, the emergency coordinator must immediately identify the character, exact source, amount, anda real extent of any released materials. He may do this by observation or review of facility records or manifests and, if necessary, by chemical analysis. (c) Concurrently, the emergency coordinator must assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, Irritating, or asphyxiating gases that are generated, or the effects of any hazardous surface water run-offs from water or chemical agents used to control fire and heat-induced explosions). (d) If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health, or the environment, outside the facility, he must report his findings as follows: ------- 33238 Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations (1) If his assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities. He must be available to help appropriate officials decide whether local areas should be evacuated, and (2) He must immediately notify either the government official designated as the on-scene coordinator for that geographical area (in the applicable regional contingency plan under Part 1510 of this Title), or the National Response Center (using their 24-hour toll free number 800/424—8802). The report must include: (i) Name and telephone number of reporter (ii) Name and address of facility; (III) Time and type of incident (e.g., release, fire); (iv) Name and qñantity of material(8) involved, to the ’extent known (v) The extent of injuries, if any; and (vi) The possible hazards to human health, or the environment, outside the facility. (e) During an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and - releases do not occur, recur, or spread to other hazardous waste at the facility. These measures must include, where applicable, stopping processes and operations, collecting and containing released waste, and removing or isolating containers. (f) If the facility stops operations in response to a fire, explosion or release, the emergency coordinator must monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate. (g) Immediately after an emergency, the emergency coordinator must provide for treating, storing, or disposing of recovered waste, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility. [ Comment’ Unless the owner or operator can demonstrate, in accordance with § 281.3(c) or (d) of this Chapter, that the recovered material is not a hazardous waste, the owner or operator becomes a geneia,$ rpf hazardous waste and must mahhgejtin accordance with all applicable requirements of Parts 262, 283, and 265 of this Chapter.1 (h) The emergency coordinator must ensure that, in the affected area(s) of the facility: (1) No waste that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and (2) All emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed. (i) The owner or operator must notify the Regional Administrator, and appropriate State and local authorities, that the facility is in compliance with paragraph (h) of this Section before operations are resumed in the affected area(s) of the facility. (j) The owner or operator must note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, he must submit a written report on the incident to the Regional Administrator. The report must include: (1) Name, address, and telephone number of the owner or operator (2) Name, address, and telephone number of the facility; (3) Date, time, and type of incident (e.g., fire, explosion); (4) Name and quantity of material(s) involved; (5) The extent of injuries, if any, (6) An assessment of actual or potential hazards to human health or the environment, where this is applicable; and (7) Estimated quantity and disposition of recovered material that rerulted from the incident. 265.57—265.69 [ Reserved] Subpart E—Manlfest System, Recordkeeping, and Reporting § 265.70 ApplIcability. The regulations in this Subpart apply to owners and operators of both on-site and off-site facilities, except as § 265.1 provides otherwise. Sections 285.71, 265.72, and 265.76 do not apply to owners and operators of on-site facilities that do not receive any hazardous waste from off-site sources. § 265.71 Use of manifest system. (a) If a facility receives hazardous waste accompanied by a manifest, the owner or operator, or his agent, must: (1) Sign and date each copy of the manifest to certify that the hazardous waste covered by the manifest was received; (2) Note any significant discrepancies in the manifest (as defined in § 265.72(a)) on each copy of the manifest; [ Comment The Agency does not intend that the owner or operator of a facility whose procedures under § 265.13(c) include waste analysis must perform that analysis before signing the manifest and giving it to the transporter. Section 285.72(b), however, requires reporting an. unreconciled discrepancy discovered during later analysis.] (3) Immediately give the transporter at least one copy of the signed manifest; (4) Within 30 days after the delivery, send a copy of the manifest to the generator, and (5) Retain at the facility a copy of each manifest for at least three years from the date of delivery. (b)Lf a facility receives, from a rail or water (bulk shipment) transporter, hazardous waste which is accompanied .by a shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator’s certification, and signatures), the owner or operator, or his agent, must: (1) Sign and date each copy of the shipping paper to certify that the hazardous waste covered by the shipping paper was received; (2) Note any significant discrepancies in the shipping paper (as defined in § 265.72(a)) on each copy of the shipping paper [ Comment: The Agency does not intend that the owner or operator of a facility whose procedures under § 265.13(c) include waste analysis must perform that analysis before signing the shipping paper and giving it to the transporter. Section 285.72(b), however, requires reporting an unreconciled discrepancy discovered during later analysis.) (3) Immediately give the rail or water (bulk shipment) transporter at least one copy of the shipping paper (4) Within 30 days after the delivery, send a copy of the shipping paper to the generator; however, if the manifest is received within 30 days after the delivery, the owner or operator, or his agent, must sign and date the manifest and return it to the generator in lieu of the shipping paper; and [ Comment’ Section 262.23(c) of this Chapter requires the generator to send three copies of the manifest to the facility when hazardous waste is sent by rail or water (bulk shipment).] (5) Retain at the facility a copy of each shipping paper and manifest for at least three years from the date of delivery. § 265.72 Manifest discrepancies. (a) Manifest discrepancies are differences between the quantity or type of hazardous waste designated on the manifest or shipping paper, and the quantity or type of hazardous waste a facility actually receives. Significant discrepancies in quantity are: (1) for bulk waste, variations greater than 10 ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33239 percent in weight, and (2) for batch waste, any variation in piece count, such as a discrepancy of one drum in a truckload. Significant discrepancies in type are obvious differences which can be discovered by inspection or waste analysis, such as waste solvent substituted for waste acid, or toxic constituents not reported on the manifest or shipping paper. (b) Upon discovering a significant discrepancy, the owner or operator must attempt to reconcile the discrepancy with the waste generator or transporter (e.g.. with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the owner or operator must immediately submit to the Regional Administrator a letter describing the discrepancy and attempts to reconcile it, and a copy of the manifest or shipping paper at issue. § 265.73 OperatIng record. (a) The owner or operator must keep a written operating record at his facility. (b) The following information must be recorded, as it becomes available, and maintained in the operating record until - closure of the facility (1) A description and the quantity of each hazardous waste received, and the method(s) and date(s) of its treatment, storage, or disposal at the facility as required by Appendix b (2) The location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram of each cell or disposal area. For all facilities, this information must indude cross- references to specific manifest document numbers, if the waste was accompanied by a manifest; - [ Comment: See § § 265.119, 265.279, and 265.309 for related requirements.] (3) Records and results of waste analyses and trial tests performed as specified in § § 265.13, 265.193. 265.225, 265.252, 265.273, 265.345, 265.375, and 265.402; (4) Summary reports and details of all incidents that require implementing the contingency plan as specified in § 265.56(j); (5) Records and results of inspections as reqwred by § 265.15(d) (except these data need be kept only three years); (6) Monitoring, testing, or analytical data where required by § § 265.90, 265.94, 265.276, 265.278, 285.280(d)(1), 265.347, and 265.377; and, [ Comment: As required by § 265.94. monitoring data at disposal facilities must be kept throughout the post-closure period.] (7) All closure cost estimates under § 265.142 and, for disp9sal facilities, all post-closure cost estimates under § 265.144. § 265.74 AvaIlability, retention, and disposition of records. (a) All records, including plans. required under this Part must be furnished upon request, and made available at all reasonable times for inspection, by any officer, employee, or representative of EPA who is duly designated by the Administrator. (b) The retention period for all records required under this Part is extended automatically during the course of any unresolved enforcement action regarding the facility or as requested by the Administrator. (c) A copy of records of waste disposal locations and quantities under § 265.73(b)(2) must be submitted to the Regional Administrator and local land authority upon closure of the facility - (see § 265.119). § 265.75 Annual report The owner or operator must prepare and submit a single copy of an annual report to the Regional Administrator by March 1 of each year. The report form and instructions in Appendix II must be used for this report. The annual report must cover facility activities during the previous calendar year and must include the following information: (a) The EPA identification number, name, and address of the facility; (b) The calendar year covered by the report; (c) For off-site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year. for imported shipments, the report must give the name and address of the foreign generator (d) A description and the quantity of each hazardous waste the facility received during the year. For off-site facilities, this information must be listed by EPA identification number of each generator; (e) The method of treatment, storage, or disposal for each hazardous waste; (f) Monitoring data under § 265.94(a)(2)(u) and (UI), and (b)(2), where required, (g) The most recent closure cost estimate under § 285.142, and, for disposal facilities, the most recent post- closure cost estimate under § 285.144; and ( I i) The certification signed by the owner or operator of the facility or his authorized representative.• § 265.76 Unmanhfested waste report. If a facility accepts for treatment, storage, or disposal any hazardous waste from an off-site source without an accompanying manifest, or without an accompanying shipping paper as- described in § 263.20(e)(2) of this Chapter, and if the waste is not excluded from the manifest requirement by § 261.5 of this Chapter, then the owner or operator must prepare and submit a single copy of a report to the Regional Administrator within 15 days after receiving the waste. The report form and instructions in Appendix II must be used for this report. The report must include the following information: (a) The EPA identification number, name, and address of the facility; (b) The date the facility received the waste; (c) The EPA identification number, name, and address of the generator and the transporter, if available; (d) A description and the quantity of each unmanifested hazardous waste the facility received; (e) The method of treatment, storage, or disposal for each hazardous waste; (f) The certification signed by the owner or operator of the facility or his authorized representative; and (g) A brief explanation of why the waste was unmanifested, if known. [ Comment: Small quantities of hazardous waste are excluded from regulation under this Part and do not require a manifest. Where a facility receives iinm nifested hazardous wastes, the Agency suggests that the owner or operator obtain from each generator a certification that the waste qualifies for exclusion. Otherwise, the Agency suggests that the owner or operator file an unmRnifested waste report for the hazardous waste movement] § 265.77 AdditIonal reports. In addition to submitting the annual report and unmanifested waste reports described in § 285,75 and 265.76 the owner or operator must also report to the Regional Adnilniatrator. (a) Releases, fires, and explosions as specified in § 265.56 (j); (b) Ground-water contamination and monitoring data as specified in § § 265.93 and 285.94; and (c) Facility closure as specified in § 265.115. fi 265.78—265.89 (Reserved) Subpart F- § 265.90 Applicability. (a) Within one year after the effective date of these regulations, the owner or ------- 33240 Federal Register / Vol. 45, No. 98 / Monday, May19, 1980 / Rules and Regulations operator of a surface impoundment, landfill, or land treatment facility which Is used to manage hazardous waste must implement a ground-water monitoring program capable of determining the facility’s impact on the quality of ground water In the uppermost aquifer underlying the facility, except as § 265.1 and paragraph (c) of this Section provide otherwise. (b) Except as paragraphs (c) and (d) of this Section provide otherwise, the owner or operator must install, operate, and maintain a ground-water monitoring system which meets the requirements of § 265.91, and must comply with § 265c92—265.94. This ground-water monitoring program must be carried out during the active life of the facility, and for disposal facilities, during the post- closure care period as well. (c)-All or part of the ground-water monitoring requirements of this Subpart may be waived if the owner or operator can demonstrate that there is a low potential for migration of hazardous waste or hazardous waste constituents from the facility via the uppermost aquifer to water supply wells (domestic. industrial, or agricultural) or to surface water. This demonstration must be in writing, and must be kept at the facility. This demonstration must be certified by a qualified geologist or geotechnical engineer and must establish the lollowing: (1) The potential for migration of - hazardous waste or hazardous waste constituents from the facility to the uppermost aquifer, by an evaluation of: (iJ A water balance of precipitation. evapotranspiration, runoff, and infiltration; and (ii) Unsaturated zone characteristics (i.e., geologic materials, physical properties, and depth to ground water); and (2) The potential for hazardous waste or hazardous waste constituents which enter the uppermost aquifer to migrate toa water supply well or surface water, by an evaluation of: (I) Saturated zone characteristics (i.e.. geologic materials, physical properties, and rate of ground-water flow); and (ii) The proximity of the facility to water supply wells or surface water. (d) if an owner or operator assumes (or knows) that ground-water monitoring of indicator parameters in accordance with § 2O5.91 and 265.92 would show statistically significant increases (or decreases in the case of pH) when evaluated under § 265.93(b), he may. install, operate, and maintain an - alternate ground-water monitoring system (other than the one described in § § 265.91 and 265.92). If the owner or operator decides to use an alternate ground-water monitoring system he must: (1) Within one year after the effective date of these regulations, submit to the Regional Administrator a specific plan, certified by a qualified geologist or geotechnical engineer, which satisfies the requirements of § 265.93(d)(3), for an alternate ground-water monitoring system; (2) Not later than one year after the effective date of these regulations, initiate the determinations specified in § 265.93(d)(4); (3) Prepare and submit a written report in accordance with § 265.93(d)(5); [ 4) Continue to make the determinations specified in § 265.93(d)(4) on a quarterly basis until final closure of the facility; and (5) Comply with the recordkeeping and reporting requirements in § 265.94(b). § 265.91 Ground-water monitoring system. (a) A ground-water monitoring systemS must be capable of yielding ground- water samples for analysis and must consist of: (1) Monitoring wells (at least one) installed hydraulically upgradient (i.e., In the direction of increasing static head) from the limit of the waste management area. Their number, locations, and depths must be sufficient to yield ground-water samples t iat are: (i) Representative of background ground-water quality in the uppermost aquifer near the facility; and (ii) Not affected by the facility; and (2) Monitoring wells (at least three) installed hydraulically downgradient (i.e., in the direction of decreasing static head) at the limit of the waste management area. Their number, locations, and depths must ensure that they immediately detect any statistically significant amounts of hazardous waste or hazardous waste constituents that migrate from the waste management area to the uppermost aquifer. (b) Separate monitoring systems for each waste management component of a facility are not required provided that provisions for sampling upgradient and downgradient water quality will detpct any discharge from the waste management area. (1) In the case of a facility consisting of only one surface impoundment, landfill, or land treatment area, the waste management area Is described by the waste boundary (perimeter). (2)ln the case of a facility consisting’ of more than one surface impoundment, landfill, or land treatment area, the wastg management area is described by an imaginary boundary line which circumscribes the several waste management components. (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 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 sealed with a suitable material (e.g.. cement grout or bentonite slurry) to prevent contamination of samples and - the ground water. § 265.92 Sampling and analysis. (a) The owner or operator must obtain and analyze samples from the installed ground-water monitoring system. The owner or o erator 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 collection; (2) Sample preservation and shipment; (3) Analytical procedures; and (4) Chain of custody control. [ Comment: See “Procedures Manual For Ground-water Monitoring At Solid Waste Disposal Facilities,” EPA—530/ SW—oil, August 1977 and “Methods for Chemical Analysis of Water and Wastes,” EPA—600/4—79—020, March 1979 for discussions of sampling and analysis procedures.] (b) The owner or operator must determine the concentration or value of the following parameters in ground- water samples in accordance with paragraphs (c) and (d) of this section: (1) Parameters characterizing the suitability of the ground water as a drinking water supply, as specified in Appendix UI. (2) Parameters establishing ground- water quality: (i) Chloride (ii) Iron (iii) Manganese (iv) Phenols (v) Sodium (vi) Sulfate [ CommenL- These parameters are to be used as a basis for comparison in the event a ground-water quality assessment is required under § 265.93(d).] (3) Parameters used as indicators of ground-water contamination: (i) pH (ii) Specific Conductance (lii) Total Organic Carbon (iv) Total Organic Halogen (c)(1 For all monitoring wells, the owner or operator must establish initial ------- Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations 33241 ‘ackground concentrations or values of II parameters specified in paragraph (b) f this Section. He must do this quarterly for one year. (2) For each of the indicator parameters specified in paragraph (b)(3) of this Section, at least four replicate measurements must be obtained for each sample and the initial background arithmetic mean and variance must be determined by pooling the replicate measurements for the respective parameter concentrations or values in - samples obtained from upgradiezit wells during the-first year. (d) After the first year, all monitoring wells must be sampled and the samples analyzed with the following frequencies: (1) Samples collected to establish ground-water quality must be obtained and analyzed for the parameters specified in paragraph (bJ(2) of this Section at least annually. (2) Samples collected to indicate ground-water contamination must be obtained and analyzed for the parameters specified in paragraph (b)(3) of this Section at least semi-annually. (e) Elevation of the ground-water surface at each monitoring well must be determined each time a sample is- obtained. § 265.93 PreparatIon, evaluation, and response. (a) Within one year after the effective date of these regulations, the owner or operator must prepare an outline of a ground-water quality assessment program. The outline must describe a more comprehensive ground-water monitoring program (than that described in § § 265.91 and 265.92) capable of determining (1) Whether hazardous waste or hazardous waste constituents have entered the ground water. (2) The rate and extent of migration of hazardous waste or hazardous waste coz)stituents in the ground water and (3) The concentrations of hazardous waste or hazardous waste constituents in the ground water. (b) For each indicator parameter specified in § 265.92(b)(3), the owner or operator must calculate the arithmetic mean and variance, based on at least four replicate measurements on each sample, for each well monitored in accordance with § 265.92(d)(2), and compare these results with its initial background arithmetic mean. The comparison must consider individually each of the wells in the monitoring system, and must use the Student’s t-test ‘it the 0.01 level of significance (see ppendix IV) to determine statistically ignificant increases (and decreases, in :he case of pH) over initial background. (c)(1) If the comparisons for the upgradient wells made under paragraph (b) of this Section show a significant increase (or pH decrease), the owner or operator must submit, this information in accordance with § 265.94(a)(2)(ii). (2) If the comparisons for downgrtrdient wells made under paragraph (b) of this Section show a significant increase (or pH decrease), the owner or operator must then immediately obtain additional ground- water samples from those downgradient wells where a significant difference was detected, split the samples in two, and obtain analyses of all additional samples to determine whether the significant difference was a result pf laboratory error. (d)(1) if the analyses performed under paragraph (c)(2) of this Section confirm the significant increase (or pH decrease), the owner or operator must provide written notice to the Regional Administrator—within seven days of the date of such confirmation—that the facility may be affecting ground-water quality. (2) Within 15 days after the notification under paragraph (d)(1) of this Section. the owner or operator must develop and submit to the Regional Administrator a specific plan, based on the outline required under paragraph (a) of this Section and certified by a qualified geologist or geotechnical engineer, for a ground-water quality assessment program at the facility. (3) The plan to be submitted under § 265.9o(d)(1) or paragraph (43(2) of this Section must specify: (i) The number, location, and depth of wells; (ii) Sampling and analytical methods for those hazardous wastes or hazardous waste constituents in the facility (iii) Evaluation procedures, including any use of previously-gathered ground- water quality information; and (iv) A schedule of implementation. (4) The owner or operator must implement the ground-water quality assessment plan which satisfies the requirements of paragraph (d)(3) of this Section, and, at a minimum, determine: (i) The rate and extent of migration of the hazardous waste or hazardous waste constituents in the ground water and (ii) The concentrations of the hazardous waste or hazardous waste constituents in the ground water. (5) The owner or operator must make his first determination under paragraph (d)(4) of this Section as soon as - technically feasible, and, within 15 days after that determination, submit to the Regional Administrator a written report containing an assessment of the ground- water quality. (6) If the owners or operator determines, based on the results of the first determination under paragraph (d)(4) of this Section. that no hazardous waste or hazardous waste constituents from the facility have entered the ground water, then he may reinstate the indicator evaluation program described in § 265.92 and paragraph (b) of this Section. if the owner or operator - reinstates the indicator evaluation program, be must so notify the Regional Administrator in the report submitted under paragraph (d)(5) of this Section. (7) If the owner or operator determines, based on the first determination under paragraph (d)(4) of this Section. that hazardous waste or hazardous waste constituents from the facility have entered the ground water, then he: (i) Must continue to make the determinations required under paragraph (d)(4] of this Section on a quarterly basis until final closure of the facility, if the ground-water quality assessment plan was implemented prior to final closure of the facility or (ii) May cease to make the determinations required under paragraph (d)(4) of this Section, if the ground-water quality assessment plan was implemented during the post- closure care period. (e) Notwithstanding any other provision of this Subpart, any ground- water quality assessment to satisfy the requirements of § 265.93(d)(4) which is initiated prior to final closure of the facility must be completed and reported in accordance with § 265.93(d)(5). (f) Unless the ground water is monitored to satisfy the requirements of § 285.93(d)(4), at least annually the owner or operator must evaluate the data on ground-water surface elevations obtained under § 265.92(e) to determine whether the requirements under § 265.91(a) for locating the monitoring wells continues to be satisfied. If the evaluation shows that § 265.91(a) is no longer satisfied, the owner or operator must immediately modify the number, location, or depth of the monitoring wells to bring the ground-water monitoring system into compliance with this requirement. - 265.94 Recordkeeplng and reporting. (a) Unless the ground water is monitored to satisfy the requirements of § 265.93(43(4); the owner or operator must: (1) Keep records of the analyses required in § 265.92(c) and (d), the associated ground-water surface elevations required in § 265.92(e), and ------- 33242 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations the evaluations required in § 265.93(b) throughout the active life of the facility, and, for disposal facilities, throughout the post-closure care period as well; and (2) Report the following ground-water monitoring information to the Regional Administrator: (i) During the first year when initial background concentrations are being established for the facility: concentrations or values of the parameters listed in § 265.92(b)(1) for each ground-water monitoring well within 15 days after completing each quarterly analysis. The owner or operator must separately identify for each monitoring well any parameters whose concentration or value has been found to exceed the maximum contaminant levels listed in Appendix I II. (ii) Annually: concentrations or valhes of the parameters listed in § 265.92(b)(3) for each ground-water monitoring well, along with the required evaluations for these parameters under § 265.93(b). The owner or operator must separately identify any significant differences from initial background found in the upgradient wells, in accordance with § 265.93(c)(1). During the active life of the facility, this information must be submitted as part of the annual report required under § 265.75. (iii) As a part of the annual report required under § 265.75: results of the evaluation of ground-water surface elevations under § 285.93(f), and a description of the response to that evaluation, where applicable. (b) If the ground water is monitored to satisfy the requirements of 265.93(d)(4), the owner or operator must: (1) Keep records of the analyses and evaluations specified in the plan, which satisfies the requirements of § 265.93(d)(3), throughout the active life of the facility, and, for disposal facilities, throughout the post-closure care period as well; and (2) Annually, until final closure of the facility, submit to the Regional Administrator a report containing the results of his ground-water quality assessment program which includes, but is not limited to, the calculated (or measured) rate of migration of hazardous waste or hazardous waste constituents in the ground water during the reporting period. This report must be submitted as part of the annual report required under § 265.75. § 265.95—265.109 [ Reserved] Subpart G—Closure and Post-Closure § 265.110 ApplicabilIty. Except as § 265.1 provides otherwise: (a) Sections 265.111—265.115 (which concern closure) apply to the owners and operators of all hazardous waste facilities; and (b) Sections 265.117—265.120 (which concern post-closure care] apply to the owners and operators of all disposal facilities. - § 265.111 Closure performance standard. The owner or operator must close his facility in a manner that: (a) minimizes the need for further maintenance, and (b) controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, post- closure escape of hazardous waste, hazardous waste constituents, leachate, contaminated rainfall, or waste decomposition products to the ground water, or surface waters, or to the atmosphere. § 265.112 Closure plan; amendment of plan. - (a) On the effective date of these regulations, the owner or operator must have a written closure plan. He must keep this plan at the facility. This plan must identify the steps necessary to completely close the facility at any point during-its intended life and at the end of its intended life. The closure planmust include, at least: (1) A description of how and when the facility will be partially closed, if applicable, and ultimately closed. The description must identify the maximum extent of the operation which will be be unclosed during the life of the facility, and how the requirements of § 265.111 and the applicable closure requirements of § § 265.197, 265.228, 265.280, 285.310, 265.351, 265.381, and 265.404 will be met; (2) An estimate of the maximum inventory of wastes in storage or in treatment at any given time during the life of the facility; (3) A description of the steps needed to decontaminate facility equipment during closure; and (4) A schedule for final closure which must include, as a minimum, the anticipated date when wastes will no longer be received, the date when completion of final closure is anticipated, and intervening milestone dates which will allow tracking of the progress of closure. (For example, the expected date for completing treatment or disposal of waste inventory must be included, as must the planned date for removing any residual wastes from storage facilities and treatment processes.) (b) The owner or operator may amend his closure plan at any time during the active life of the facility. (The active life of the facility is that period during which wastes are periodically received.) The owner or operator must amend his plan any time changes in operating plans or facility design affect the closure plan. (c) The owner or operator must submit his closure plan to the Regional Administrator at least 180 days before the date he expects to begin closure. The Regional Administrator will modify, approve, or disapprove the plan within 90 days of ceceipt and after providing the owner or operator and the affected public (through a newspaper notice) the opportunity to submit written comments. If an owner or operator plans to begin closure WIthin 180 days after the effective date of these regulations, he must submit the necessary plans on the effective date of these regulations § 265.113 TIme allowed for closure. (a) Within 90 days after receiving the final volume of hazardous wastes, the owner or operator must treat all hazardous wastes in storage or in treatment, or remove them from the site, or dispose of them on-site, in accordance with the approved closure plan. (b) The owner or operator must complete closure activities in accordance with the approved closure plan and within six months after receiving the final volume of wastes The Regional Administrator may approve a longer closure period under § 265.112(c) if the owner or operator can demonstrate that: (1) the required or planned closure activities will, of necessity, take him longer than six months to complete, and (2) that he has taken all steps to eliminate any significant threat to human health and the environment from the unclosed but inactive facility. § 265.114 DIsposal or decontamInation of equIpment. When closure is completed, all facility equipment and structures must have been properly disposed of, or - decontaminated by removing all hazardous waste and residues. § 265.115 CertifIcation of closure. When closure is completed, the owner or operator must submit to the Regional Administrator certification both by the owner or operator and by an independent registered professional engineer that the facility has been closed in accordance with the ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33243 specifications in the approved closure plan. 265.116 [ Reserved] § 265.117 Post-closure care and use of property period of care. (a) Post-closure care must consist of at least: - (1) Ground-water monitoring and reporting in accordance with the requirements of Subpart F; and (2) Maintenance of monitoring and waste containment 8ystems as specified in § 265.91. 265.223, 265.228. 285.280, and 265.310, where applicable. (b) The Regional Administrator may require maintenance of any or all of the security requirements of § 265.14 during the post-closure period, when: (1) Wastes may remain exposed after completion of closure; or (2) Short term, incidental access by the public or domestic livestock may pose a hazard to human health. (c) Post-closure use of property on or in which hazardous waste remains after closure must n ver be allowed to disturb the integrity of the final cover, liner(s), or any other components of any containment system, or the function of the facility’s monitoring systems, unless the owner or operator can demonstrate - to the Regional Administrator, either in the post-closure plan or by petition, that the disturbance: (1) Is necessary to the proposed use of the property, and will not increase the potential hazard to human health or the environment; or (2) Is necessary to reduce a threat to human health or the environment. (d) The owner or operator of a disposal facility must provide post- closure care in accordance with the approved post-closure plan for at least 30 years after the date of completing closure. However, the owner or operator may petition the Regional Administrator to allow some or all of the requirements for post-closure care to be discontinued or altered before the end of the 30-year period. The petition must include evidence demonstrating the secure nature of the facility that makes continuing the specified post-closure requirement(s) unnecessary—e.g.. no detected leaks and none likely to occur, characteristics of the waste, application of advanced technology, or alternative disposal, treatment, or re-use techniques. Alternately, the Regional Administrator may require the owner or operator to continue one or more of the post-closure care and maintenance requirements contained in the facility’s post-closure plan for a specified period of time. The Regional Administrator may do this If he finds there has been noncompliance with any applicable standards or requirements, or that such continuation Is necessary to protect human health or the environment. At the end of the specified period of time, the Regional Administrator will determine whether to continue or terminate post- closure care and maintenance at the facility. Anyone (a member of the public as well as the owner or operator) may petition the Regional Administrator for an extension or reduction of the post- closure care period based on cause. These petitions will be considered by the Regional Administrator at the time the post-closure plan is submitted and at five-year intervals after the completion of closure. § 265.118 Post-closure plan; amendment of plan. (a) On the effective date of these regulations, the owner or operator of a disposal facility must have a written post-closure plan. He must keep this plan at the facility. This plan must identify the activities which will be carried on after final closure and the frequency of those activities. The post- closure plan must include at least: - (1) Ground-water monitoring activities and frequencies as specified in Subpart F for the post-closure period; and (2) Maintenance activities and frequencies to ensure: (1) the integrity of the cap and final cover or other containment structures as specified in § § 265.223, 265.228, 265.280, and 265.310, where applicable, and (2) the function of the facility’s monitoring equipment as specified in § 265.91. (b) The owner or operator may amend his post-closure plan at any time during the active life of the disposal facility or during the post-closure care period. The owner or operator must amend his plan any time changes in operating plans or facilities design affect his post-closure plan. (c) The owner or operator of a disposal facility must submit his post- closure plan to the Regional Administrator at least 180 days before the date he expects to begin closure. The Regional Administrator will modify or approve the plan within 90 days of receipt and after providing the owner or operator and the affected public (through a newspaper notice) the opportunity to submit written comments. The plan may be modified to include security equipment maintenance under § 265.117(b). If an owner or operator of a disposal facility plans to begin closure within 180 days afterthe effective date of these regulations, he must submit’the necessary plans on the effective date of these regulations. Any amendments to the plan under paragraph (b) of this Section which occur after approval of the plan must also be approved by the Regional Administrator before they may be implemented. § 265.119 Notice to local land authority. Within 90 days after closure is completed, the owner or operator of a disposal facility must submit to the local land authority and to the Regional Administrator a survey plat indicating the location and dimensions of landfill cells or other disposal areas with respect to permanently surveyed benchmarks. This plat must be prepared and certified by a professional land surveyor. The plat filed with the local land authority must contain a note, prominently displayed, which states the owner’s or operator’s obligation to restrict disturbance of the site as specified in § 265.117(c). In addition, the owner or operator must submit to the Regional Administrator and to the local land authority a record of the type, location, and quantity of hazardous wastes disposed of within each cell or area of the facility. For wastes disposed of before these regulations were promulgated, the owner or operator must identify the type, location, and quantity of the wastes to the best of his knowledge and in accordance with any records he has kept. § 265.120 Notice In deed to property. The owner of the property on which a disposal facility is located must record, in accordance with State law, a notation on the deed to the facility property—or on some other instrument which is normally examined during title search— that will in perpetuity notify any potential purchaser of the property that: (1) the land has been used to manage hazardous waste, and (2) its use is restricted under * 265.117(c). § 265.121-265.139 [ Reserved] Subpart H—Financial Requirements § 265.140 Applicability. (a) Section 265.142 applies to owners and operators of all hazardous waste facilities, except as this Section or § 265.1 provide otherwise. (b) Section 265.144 applies only to owners and operators of disposal facilities. (c) States and the Federal government are exempt from the requirements of this Subpart. §265.141 [ Reserved] § 265.142 Cost estimate for facility closure. - (a) On the effective date of these regulations, each facility owner or ------- 33244 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations operator must have a written estimate of the cost of closing the facility in accordance with the requirements in § § 265.111—265.115 and applicable closure requirements in § §265.197, - 265.228. 265.280, 265.310, 265.351, 265.381, and 285.404. The owner or operator must keep this estimate, and all subsequent estimates required in this Section, at the facility. 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 § 265.112(a)). [ Comment: For example, the closure cost estimate for a particular landfill may be for the cost of closure when its active disposal operations extend over 20 acres if at all other times these operations extend over less than 20 acres. The estimate would not include costs of partial losures that the closure plan schedules before or after the time of maximum closure cost.] - (b) The owner or operator must prepare a new closure cost estimate whenever a change hi the closure plan affects the cost of closure. (c) On each anniversary of the effective date of these regulations, the owner or operator must adjust the latest closure cost estimate using an inflation factor derived from the annual Implicit Price Deflator for Gross National Product s published by the U.S. Department of Commerce in its Survey of Current Business. The inflation factor must be calculated by dividing the latest published annual Deflator by the Deflator for ihe previous year. The result is the inflation factor. The adjusted closure cost estimate must equal the latest closure cost estimate (see paragraph (b) of this Section) times the inflation factor. [ Comment. The following is a sample calculation of the adjusted closure cost estimate: Assume that the latest closure cost estimate for a facility is $50,000, the latest published annual Deflator is 152.05, and the annual Deflator for the previous year is 141.70. The Deflators may be rounded to the nearest whole number. Dividing 152 by 142 gives the inflation factor, 1.07. Multiply $50,000 by 1.07 for a product of $53,500—the adjusted closure cost estimate.] § 265.143 [ Reserved] § 265.144 Cost estimate for pest-closure monitoring and maintenance. (a) On the effective date of these regulations, the owner or operator of a disposal facility must have a written estimate of the annual cost of post- closure monitoring and maintenance of the facility in accordance with the applicable post-closure regulations in. § §265.117—265.120, 265.228, 265.280, and 265.310. The owner or operator must keep this estimate, and all subsequent estimates required in this Section, at the facility. (b) The owner or operator must prep re a new annual post-closure cost estimate whenever a change in the post- closure plan affects the cost of post- closure care (see § 265.118(b)). The latest post-closure cost estimate is calculated by multiplying the latest annual post .closure cost estimate by 30. (c) On each anniversary of the effective date of these regulations. during the operating life of the facility, the owner or operator must adjust the latest post-closure cost estinjate using the inflation factor calculated in accordance with § 265.142(c). The adjusted post-closure cost estimate must equal the latest post-closure cost estimate (see paragraph (b) of this Section) times the inflation factor. § 265.145—265.169 [ Reserved] Subpart i—Use and Management of Containers § 265.170 ApplicabilIty. The regulations in this Subpart apply to owners and operators of all hazardous waste facilities that store containers of hazardous waste, except as § 265.1 provides otherwise. § 265.171 Condition of containers. - If a container holding hazardous waste is not in good condition, or if it begins to leak, the owner or operator must transfer the hazardous waste from this container to a container that is in good èondition, or manage the waste in some other way that complies with the requirements of this Part. § 265.172 Compatibility of waste with container. The owner or operator must use a container made of or lined with materials which will not react with, and are otherwise compatible with, the hazardous waste to be stored, so that the ability of the container to contain the waste is not impaired. § 265.173 Management of containers. (a) A container holding hazardous waste must always be closed during storage, except when it is necessary to add or remove waste. (b) A container holding hazardous waste must not be opened, handled, or stored in a manner which may rupture the container or cause it to leak. [ Comment: A container that is a hazardous waste listed in § 261.33 of this Chapter must be managedin compliance with the regulations of this Part. Re-use of containers in transportation is governed by U.S. Department of Transportation regulations, including those set forth in 49 CFR 173.28.] § 265.174. inspections. The owner or operator must inspect areas where containers are stored, at least weekly, looking for leaks and for deterioration caused by corrosion or other factors. [ Comment: See § 265.171 for remedial action required if deterioration or leaks are detected.] § 265.175 [ Reserved] § 265.176 Special requirements for ignitabie or reactive waste. Containers holding ignitable or reactive waste must be located at least 15 meters (50 feet) from the facility’s property line. [ Comment: See § 265.17(a) for additional requirements.] - § 265.177 Special requirements for incompatibie wastes. (a) Incompatible wastes, or incompatible wastes and materials. (see Appendix V for examples) must not be placed in the same container, unless § 285.17(b) is complied with. (b) Hazardous waste must not be placed in an unwashed container that previously held an incompatible waste or material (see Appendix V for - examples), unless § 265.17(b) is complied with. (c) A storage container holding a hazardous waste that is incompatible with any waste or other materials stored nearby in other containers, 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. [ Comment: The purpose of this is to prevent fires, explosions, gaseous emissions, leaching, or other discharge of hazardous waste or hazardous waste constitutuents which could result from the mixing of incompatible wastes or materials if containers break or leak.) § 265.178—265.189 [ Reserved] Subpart J—Tanks § 265.190 Appilcabiiity. The regulations in this Subpart apply to owners and operators of facilities that use tanks to treat or store hazardous waste, except as § 285.1 provides otherwise. - ------- Federal Register I Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations 33245 265.191 [ Reserved] 265.192 General operating equirements. (a) Treatment or storage of hazardous waste in tanks must comply with § 265.17(b). (b) Hazardous wastes or treatment reagents must not be placed in a tank if they could cause the tank or its inner liner to rupture, leak, corrode, or otherwise fail before the end of its intended life. (c) Uncovered tanks must be operated to ensure at least 60 centimeters (2 feet) of freeboard, unless the tank is equipped with a contaimnent structure (e.g., dike or trench), a drainage control system, or a diversion structure (e.g.. standby tank) with a capacity that equals or exceeds the volume of the top 60 centimeters (2 feet) of the tank. (d) Where hazardous waste is continuously fed into a tank, the tank must be equipped with a means to stop this inflow (e.g., a waste feed cutoff system or by-pass system to a stand-by tank). [ Comment: These systems are intended to be used in the event of a leak or overflow from the tank due to a system failure (e.g., a malfunction in the treatment process, a crack in the tank, etc.).] 265.193 Waste analysis and trial tests. (a) In addition to the waste analysis required by § 265.13, whenever a tank is to be used to: (1) Chemically treat or store a hazardous waste which is substantially different from waste previously treated or stored in that tank; or (2) Chemically treat hazardous waste with a substantially different process than any previously used in that tank; the owner or operator must, before treating or storing the different waste or .using the different process: (i) Conduct waste analyses and trial treatment or storage tests (e.g., bench scale or pilot plant scale tests); or (ii) Obtain written, documented information on similar storage or treatment of similar waste under similar operating conditions;, to show that this proposed treatment or storage will meet all applicable requirements of § 285.192(a) and (b). [ Comment: As required by § 265.13, the waste analysis plan must include analyses needed to comply with - § § 265.198 and 265.199. As required by § 265.73, the owner or operator must place the results from each waste nalysis and trial test, or the locumented information, in the operating record of the facility.] § 265.194 InspectIons. (a) The owner or operator of a tank must inspect, where present: (1) Discharge control equipment (e.g., waste feed cut-off systems, by-pass systems, and drainage systems), at least once each operating day, to ensure that it is in good working order (2) Data gathered from monitoring equipment (e.g., pressure and temperature gauges), at least once each operating day, to ensure that the tank is being operated according to its design; (3) The level of waste in the tank, at least once each operating day, to en ure compliance with § 265.192(c); (4) The construction materials of the tank, at least weekly, to detect coftosion ’ or leaking-of fixtures or seams arid (5) The construction materials of, and the area immediately surrounding, discharge confinement structures (e.g., dikes), at least weekly, to detect erosion or obvious signs of leakage (e.g., wet spots or dead vegetation). [ Comment: As required by § 265.15(c), the owner or operator must remedy any deterioration or malfunction he finds.] § 265.195-265.196 (Reserved) § 265.197 Closure. At closure, all hazardous waste and hazardous waste residues must be removed from tanks, discharge control equipment, and discharge confinement structures. [ Comment: At closure, as throughout the operating period, unless the owner or operator can demonstrate, In accordance with § 261.3(c) or (d) of this Chapter, that any solid waste removed from his tank is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263, and 265 of this Chapter.] § 265.198 SpecIal requirements for Ignitable or reactive waste. (a) Ignitable or reactive waste must not be placed in a tank, unless: (1) The waste is treated, rendered, or mixed before or immediately after placement in the tank so that (i) 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 (ii) § 265.17(b) is complied with; or (2) The waste is stored or treated in such a way that it is protected from any material or conditions which may cause the waste to ignite or react; or (3) The tank is used solely for emergencies. (b)The owner or operator of a facility which treats or stores ignitable or reactive waste in covered tanks must comply with the National Fire Protection Association’s (NFPA’s) buffer zone requirements for tanks, contained in Tables 2—1 through 2—6 of the “Flammable and Combustible Code— 1977”. [ Comment: See § 265.17(a) for additional requirements.] § 265.199 Special requirements for Incompatible wastes. (a) Incompatible wastes, or incompatible wastes and materials, (see Appendix V for examples) must not be placed in the same tank, unless § 265.17(b) is complied with. (b) Hazardous waste must not be placed in an unwashed tank which previously held an incompatible w•ste or material, unless § 265.17(b) is complied with. - § 265.200-265.219 (Reserved] Subpau K—Surface Impoundments § 265.220 ApplicabIlity. The regulations inthis Subpart apply to owners and operators of facilities that use surface impoundments to treat, store, or dispose of hazardous waste, except as § 265.1 provides otherwise. § 265.221 (Reserved] § 265.222 General operating requirements. A surface impoundment must maintain enough freeboard to prevent any overtopping of the dike by overfihing, waye action, or a storm. There must be at least 60 centimeters (2 feet) of freeboard. [ Comment: Any point source discharge from a surface impoundment to waters of the United States is subject to the requirements of Section 402 of the Clean Water Act, as amended. Spills may be subject to Section 311 of that Act.J § 265.223 ContaInment system. All earthen dikes must have a protective cover, such as grass, shale, or rock, to minimize wind and water erosion and to preserve their structural integrity. § 265.224 (Reserved] § 265.225 Waste analysis and trial tests. (a) In addition to the waste analyses required by § 265.13, whenever a surface impoundment is to be used to: (1) Chemically treat a hazardous waste which is substantially different from waste previously treated In that impoundment: or - - ------- 33246 Federal Register I Vol. 45, No. 98 I Monday, May 19 1980 I Rules and Regulations (2) Chemically treat hazardous waste with a substantially different process than any previously used in that impoundment; the owner or operator must, before treating the different waste or using the different process: (i) Conduct waste analyses and trial treatment tests (e.g., bench scale or pilot plant scale tests); or (ii) Obtain written, documented information on similar treatment of similar waste under similar operating conditions; to show that this treatment will comply with § 265.17(b). [ Comment: As required by § 265.13, the waste analysis plan must include analyses needed to comply with § § 265.229 and 265.230. As required by § 265.73, the owner or operator must place the results from each waste analysis and trial test, or the documented information, in the operating record of the facility.]. § 265.226 inspectIons. (a) The owner or operator must inspect: (1) The freeboard level at least once each operating day to ensure compliance with § 265.222, and (2) The surface impoundment, including dikes and vegetation surrounding the dike, at least once a week to detect any leaks, deterioration, or failures in the impoundment. [ Comment: As required by § 265.15(c), the owner or operator must remedy any deterioration or malfunction he finds.] § 265.22? IReservedi § 265.228 Closure and post-closure. (a) At closure, the owner or operator may elect to remove from the impoundment: (1) Standing liquids; (2) Waste and waste residues; (3) The liner, if any: and (4) Underlying and surrounding contaminated soil. (b) If the owner or operator removes all the impoundment materials in paragraph (a) of this Section, or can demonstrate under § 261.3(c) and (d) of this Chapter that none of the materials listed in paragraph (a) of this Section remaining at any stage of removal are - hazardous wastes, the impoundment is not further subject to the requirements of this Part. [ Comment: At closure, as throughout the operating period, unless the owner or operator can demonstrate, in accordance with § 281.3 (c) or (d) of this Chapter, that any solid waste removed from the surface impoundment is not a hazardous waste, he becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263, and 265 of this Chapter. The surface impoundment may be subject to Part 257 of this Chapter even if it is not subject to this Part.] (c) If the owner or operator does not remove all the impoundment materials in paragraph (a) of this Section. or does not make the demonstration in paragraph (b) of this Section, he must close the impoundment and provide post-closure care as for a landfill under Subpart G and § 265.310. If necessary to support the final cover specified in the approved closure plan. the owner or operator must treat remaining liquids, residues, and soils by removal of liquids, drying, or other means. [ Comment: The closure requirements. under § 265.310 will vary with the amount and nature of the residue remaining, if any, and the degree of contamination of the underlying and surrounding soil. Section 265.117(d) allows the Regional Administrator to vary post-closure care requirements.] § 265.229 Special requirements for Ignitable or reactive waste. (a) Ignitable or reactive waste must not be placed in a surface impoundment, unless: (1) The waste is treated, rendered, or mixed before or immediately after placement in the impoundment so that (i) 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 Chapter, and (ii) § 265.17(b) is complied with; or. (2) The surface impoundment is used solely for emergencies. § 265.230 Special requirements for incompatible wastes. incompatible wastes, or incompatible wastes and materials, (see Appendix V for examples) must not be placed in the same surface impoundment, unless § 265.17(b) is complied with. § 265.231—265.249 [ Reserved] Subpart L—Waste Plies § 265250 ApplIcability. The regulations in this Subpart apply to owners and operators of facilities that treat or store hazardous waste in piles, except as § 265.1 provides otherwise. Alternatively, a pile of hazardous waste may be managed as a landfill under Subpart N. § 265.251 ProtectIon from wind. The owner or operator of a pile containing hazardous waste which could be subject to dispersal by wind must cover or otherwise manage the pile so that wind dispersal is controlled. § 265.252 Waste analysis. In addition to the waste analyses required by § 265.13, the owner or operator must analyze a representative sample of waste from each incoming movement before adding the waste to any existing pile, unless (1) the only wastes the facility receives which are amenable to piling are compatible with each other, or (2) the waste received is compatible with the waste in the pile to which it is to be added. The analysis conducted must be capable of differentiating between the types of hazardous waste the owner or operator places in piles, so that mixing of incompatible waste does not inadvertently occur. The analysis must include a visual comparison of color and texture. [ CommenL As required by § 265.13, the waste analysis plan must include analyses needed to comply with § § 265.256 and 265.257. As required by § 265.73, the owner or operator must place the results of this analysis in the operating record of the facility.] § 265.253 ContaInment, If leachate or run-off from a pile is a hazardous waste, then either: (a) The pile must be placed on an impermeable base that is compatible with the waste under the conditions of treatment or storage, run-on must be diverted away from the pile, and any leachate and run-off from the pile must be collected and managed as a hazardous waste; or (b)(1) The pile must be protected from precipitation and run-on by some other means; and (2) No liquids or wastes containing free liquids may be placed in the pile. [ Comment: If collected leachate or run- off is discharged through a point source to waters of the United States, it is subjecTLo the requirements of Section 402 of the Clean Water Act, as amended.] (c) The date (or compliance with paragraphs (a) and (b)(1) of this Section is 12 months after the effective date of this Part. § 265.254—265.255 (Reserved] § 265.256 Special requirements for Ignitable or reactive waste. (a) Ignitable or reactive wastes must not be placed in a pile, unless: (1) Addition of the waste to an existing pile (i) results in the waste or mixture no longer meeting the definition of ignitable or reactive waste under ------- Federal Register I Vol. 45. No. 98 / Monday, May 19, 1980 I Rules and Regulations 33247 § § 281.21 or 261.23 of this Chapter, and ii) complies with § 265.17(b); or (2) 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. § 265.257 Special requirements for Incompatible wastes. (a) Incompatible wastes, or incompatible wastes and materials, (see Appendix V for examples) must not be placed in the same pile, unless § 265.17(b) is complied with. - (b) A pile of hazardous waste that is incompatible with any waste or other material stored nearby in other containers, 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. - [ CommenL The purpose of this is to prevent fires, explosions, gaseous emissions, leaching, or other discharge of hazardous waste or hazardous waste constituents which could result from the contact or mixing of incompatible wastes or materials.] (c) Hazardous waste must not be piled on the same area where incompatible wastes or materials were previously piled, unless that area has been decontnminated sufficiently to ensure ompliance with § 265.17(b). § 265.258—265.269 [ Reserved] Subpart M—Land Treatment § 265.270 ApplicabilIty. The regulations in this Subpart apply to owners and operators of hazardous waste land treatment facilities, except as § 285.1 provides otherwise. § 265.271 [ Reserved] § 265.272 General operatIng requirements. (a) Hazardous waste must not be placed in or on a land treatment facility unless the waste can be made less hazardous or non-hazardous by biological degradation or chemical reactions occurring in or on the soil. (b) Run-on must be diverted away from the active portions of a land treatment facility. (c) Run-off from active portions of a land treatment facility must be collected. I Comment: If the collected run-off is a hazardous waste under Part 281 of this Chapter, it must be managed as a hazardous waste in accordance with all applicable requirements of Parts 262, 63, and 265 of this Chapter. If the ollected run-off is discharged through a oint source to waters of the United States, it is subject to the requirements of Section 402 of the Clean Water Act, as amended.] (d) The date for compliance with paragraphs (b) and (c) of this Section is 12 months after the effective date of this Part. § 265.273 Waste analysis. In addition to the waste analyses required by § 265.13. before placing a hazardous waste in or on a land treatment facility, the owner or operator must (a) Determine the concentrations in the waste of any substances which exceed the maximum concentrations contained in Table I of § 281.24 of this Chapter that cause a waste to exhibit the EP toxicity characteristic; (b)For any waste listed in Part 261, Subpart D, of this Chapter, determine the concentrations of any substances which caused the waste to be listed as a hazardous waste; and (c) If food chain crops are grown, determine the concentrations in the waste of each of the following constituents: arsenic, cadmium, lead, and mercury, unless the owner or operator has written, docuznente4 data that show that the constituent is not present. - [ Comment Part 261 of this Chapter specifies the substances for which a waste is listed as a hazardous waste. As required by § 265.13, the waste analysis plan must include analyses needed to comply with §* 285.281 and 285.282. As required by * 265.73, the owner or operator must place the results from each waste analysis, or the documented information, in the operating record of the facility.J § 265.274-265.275 [ Reserved] § 265.276 Food chain crops, (a) An owner or operator of a hazardous waste land treatment facility on which food chain crops are being grown, or have been grown and will be grown in the future, must notify the Regional Administrator within 60 days after the effective date of this Part. [ CommenL The growth of food chain - crops at a facility which has never before been used for this purpose is a significant change in process under § 122.23(c)(3)of this Chapter. O vners or operators of such land treatment facilities who propose to grow food chain crops after the effective date of this Part must comply with § 122.23(c)(3) of this Chapter.] (b)(1) 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 any arsenic, lead, mercury, or other constituents identified under § 265.273(b): (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 facihty 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 (b)(1) of this Section must be kept at the facility and must, at a minimum: (i) Be based on tests for the specific waste and application rates being used at the facility and (ii) Include descriptions 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 (iii) 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 6.5 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 cadmium from waste does 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 a inual cadmium application rate does not exceed: Annual Time penod , epphcation rate PresenttoJune30,1984 July l,1984 1o 0ec31,1988 .. .:.. . 20 125 Beginning Jan 1, 1987 — 05 (iii) The cumulative application of cadmium from waste does not exceed the levels in either paragraph (c)(1)(iii)(A) of this Section or paragraph (c)(1)(ffi)(B) of this Section. ------- 33248 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations Maximum cumulative Soil cation exchange capacity (meq/l O Og) application (kg/ha) Background Background aod pH sod pH leas than 6.5 greater than 65 Lessthan5 5 5 5-15 - 5 10 Greater than 15 . — 5 20 (B) For soils with a background pH of less than 6.5. the cumulative cadmium application rate dbes not exceed the levels below: Provided, that the pH of the waste and soil mixture is adjusted to. and maintained at 6.5 or greater whenever food chain crops are grown. Soul cation exchange capacity (meqI l O Og) Meramum cumulative application (kg/ha) Less than 5 5 5-15 10 Greater than 15 .. 20 (2)(1) The only food chain crop produced is animal feed. (ii) The pH of the waste and soil mixture is 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 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. [ Comment: As required by § 265.73, if an owner or operator grows food chain crops on his land treatment facility, he must place the information developed In this Section in the operating record of the facility.] § 265.277 [ Reserved] § 265.278 Unsaturated zone (zone of aeration) monitoring. (a) The owner or operator must have’ in writing, and must implement, an unsaturated zone monitoring plan which is designed to: (1) Detect the vertical migration of hazardous waste and hazardous waste constituents under the active portion of the land treatment facility, and (2) Provide information on the background concentrations of the hazardous waste and hazardous waste constituents in similar but untreated soils nearby; this background monitoring must be conducted before or in conjunction with the monitoring required under paragraph (a)(1) of this Section. (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 lysimeters. (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 ie taken is below the depth to which the waste is Incorporated into the soil; (2) The number of soil and soil-pore water samples to be taken is based on the variability of: (I) The hazardous waste constituents (as identified in § 285.273(a) and (b)) in the waste and in the soil; and (ii) The soil type(s); 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 or 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 for the hazardous waste constituents that were found in the waste during the waste analysis under § 265.273 (a) and (b). [ Comment: As required by § 265.73, all data and information developed by the owner or operator under this Section must be plaéed in the operating record of the facility.I § 265.279 Recordkeeping. 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 § 265.73. § 265.280 Ciosure and post-closure. (a) In the closure plan under § 265.112 and the post-closure plan under § 265.118, the owner or operator must address the following objectives and indicate how they will be achieved: (1) Control of the migration of hazardous waste and hazardous waste constituents from the treated area into the ground water, (2) Control of the release of contaminated run-off from the facility into surfacç water; (3) Control of the release of airborne particulate contaminants caused by wind erosion; and (4) Compliance with § 285.276 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 and hazardous waste constituents applied to the land treatment facility; (2) The mobility and the expected rate of migratioir of the hazardous waste and hazardous waste constituents; (3) Site location, topography, and surrounding land use, with respect to the potential 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 organic carbon, and pH; (6) Unsaturated zone monitoring information obtained under § 285.278; and (7) Type, concentration, and depth of migration of hazardous waste constituents in the soil as compared to their background concentrations. (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: (1) 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 contours, thickness, porosity and permeability, slope, length of run of slope, and type of vegetation on the cover (3) Collection and treatment of run-off; (4) Diversion structures to prevent surfa e water run-on from entering the treated area; and (5) Monitoring of soil, soil-pore water, and ground water. (d) In addition to the requirements of § 265.117, 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 ------- Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations 33249 ‘nanner and frequency specified in the st-closure plan (2) Restrict access to the facility as dppropriate for itâ post-closure use; and (3) Assure that growth of food chain crops complies with § 265.278. § 265.28 1 SpecIal requirements for Ignitable or reactive waste. Ignitable or reactive wastes must not be land treated, unless 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 281.23 of this Chapter. and (2) § 265.17(b) is complied with. § 265.282 Special requirements for Incompatible wastes. Incompatible wastes, or incompatible wastes and materials (see Appendix V for examples), must not be placed in the same land treatment area, unless § 285.17(b) is complied with. § 265.283-265.299 (Reserved] Subpart N—Landfills § 265.300 ApplicabIlity. The regulations in this Subpart apply to owners and operators of facilities that spose of hazardous waste in. landfills, ccept as § 265.1 provides otherwise. A aste pile used as a disposal facility is a landfill and is governed by this Subpart. § 265.301 (Reserved] § 265.302 General operating requirements. (a) Run-on must be diverted away from the active portions of a landfill. (b) Run-off from Active portions of a landfill must be collected. [ Comment: If the collected run-off is a hazardous waste under Part 261 of this Chapter. it must be managed as a hazardous waste in accordance with all applicable requirements of Parts 282. 263, and 285 of this Chapter. If the collected run-off is discharged through a point source to waters of the United States, it is subject to the requirements of Section 402 of the Clean Water Act, as amended.] (c) The date for compliance with paragraphs (a) and (b) of this Section is 12 months after the effective date of this Part. (d) The owner or operator of a landfill containing hazardous waste which is subject to dispersal by wind must cover otherwise manage the landfill so that nd dispersal of the hazardous waste controlled. [ CommenL As required by § 285.13, the waste analysis plan must include analyses needed to comply with § § 265.312 and 265.313. As required by § 265.73, the owner or operator must place the results of these analyses in the operating record of the facility.] § 265.303—265.308 [ Reserved] § 265.309 SurveyIng and recordkeeplng. The owner or operator of a landfill must maintain the following items in the operating record required In § 265.73: (a) On a map, the exact location and dimensions. mduding depth. of each cell with respect to permanently surveyed benchmarks; and (b) The contents of each cell and the approximate location of eath hazardous waste type within each cell. § 265.310 Closure and post-closure. (a) The owner or operator must place a final cover over the landfill, and the closure plan under * 265.112 must specify the function and design of the cover. In the post-closure plan under § 285.118, the owner or operator must include the post-closure care requirements of paragraph (d) of this Section. (b) In the closure and post-closure plans, the owner or operator must address the following objectives and indicate how they will be achieved. (1) Control of pollutant migration from the facility via ground water, surface water, and air (2) Control of surface water infiltration, including prevention of pooling; and (3) Prevention of erosion. (c) The owner or operator must consider at least the following factors in addressing the closure and post-closure care objectives of paragraph (b) of this Section: (1) Type and amount of hazardous waste and hazardous waste constituents in the landfill: (2) The mobility and the expected rate of migration of the hazardous waste and hazardous waste constituents; (3) Site location, topography, and surrounding land use, with respect to the potential effects of pollutant migration (e.g., proximity to ground water, surface water, and drinldng water sources); (4) Climate, including amount. frequency, and pH of precipitation; (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)In addition to the requirements of § 285.117. during the post.closure care period, the owner or operator of a hazardous waste landfill must: (1) Maintain the function and integrity of the final cover as specified in the approved closure plan; (2) Maintain and monitor the leachate collection, removal, and treatment system (if there is one present in the landfill) to prevent excess accumulation of leachate in the system; [ Comment: If the collected leachate is a hazardous waste under Part 261 of this Chapter, it must be managed as a hazardous waste in accordance with all applicable requirements of Parts 262, 263. and 265 of this Chapter. If the collected leachate is discharged through a point source to waters of the United States, it is subject to the requirements of Section 402 of the Clean Water Act, as amended.] (3) Maintain and monitor the gas collection and control system (if there is one present in the landfill) to control the vertical and horizontal escape of gases; (4) Protect and maintain surveyed benchmarks; and (5) Restrict access to the landfill as appropriate for its post-closure use. §265.311 (Reserved] § 265.3 12 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 (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) § 265.17(b) is complied with. § 265.3 13 Special requirements for incompatible wastes. Incompatible wastes, or incompatible wastes and materials, (see Appendix V for examples) must not be placed in the same landfill cell, unless § 265.17(b) is complied with. § 265.314 SpecIal requirements for liquid 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 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 leachate produced; 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), ------- 33250 Federal Register / Vol. 45, No. 98 / Monday, May 19. 1980 / Rules and Regulations so that free liquids are no longer present. (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 bold liquids or free liquids for a use other than storage, such as a battery or capacitor; or (2) The container is very small, such as an ampule. (c) The date for compliance with this Section is 12 months after the effective date of this Part. § 265.315 Special requirements for containers. (a) An empty container must be crushed flat, shredded, or similarly reduced in volume before it is buried beneath the surface of a landfill. (b) The date for compliance with this Section is 12 months after the effective date of this Part. if 265.316-265.339 [ Reserved] Subpart 0 § 265.340 ApplIcability. The regulations in this Subpart apply to àwners and operators of facilities that treat hazardous waste in incinerators, except as § 265.1 provides otherwise. if 265.341—265.342 [ Reserved) § 265.343. General operating requirements. Before adding hazardous waste, the owner or operator must bring his incinerator to steady state (normal) conditions of opera tion—including steady state operating temperature and air flow—using auxiliary fuel or other means. § 265.344 [ Reserved] § 265.345 Waste analysIs. In addition to the waste analyses required by § 265.13, the owner or operator must sufficiently analyze any waste which he has not previously burned in his incinerator to enable him to establish steady state (normal) operating conditions (including waste and auxiliary fuel feed and air flow) and to determine the type of pollutants which might be emitted. At a minimum, the analysis must determine: (a) Heating value of the waste; (b) Halogen content and sulfur content in the waste; and (c) Concentrations in the waste of lead and mercury, unless the owner or’ operator has written, documented data that show that the element is not present. - [ Comment: As required by § 265.73, the owner or operator must place the results from each waste analysis, or the documented information, in the operating record of the facility.) § 265.346 (Reserved] § 265 .347 MonItoring and Inspections. (a) The owner or operator must conduct, as a minimum, the following moñotoring and inspections when incinerating hazardous wastes: (1) Existing instruments which relate to combustion and emission control must be monitored at least every 15 minutes. Appropriate corrections to maintain steady state combustion conditions must be made immediately either automatically or by the operator. Instruments which relate to combustion and emission control would normally include those measuring waste feed, auxiliary fuel feed, air flow, incinerator temperature, scrubber flow, scrubber pH, and relevant level controls. (2) The stsck plume (emissions) must be obseived visually at least hourly for normel appearance (color and opacity). The operator must immediately make any indicated operating corrections necessary to return visible emissions to their normal appearance. (3) The complete incinerator and associated equipment (pumps, valves, conveyors, pipel, etc.) must be inspected at least daily for leaks: spills, and fugitive emissions, and all emergency shutdown controls and system alarms must be checked to assure proper operation. if 265.348-265.350 [ Reserved] * 265.351 ClesAre. At closure, the owner or operator must remove all hazardous waste and hazsrdous waste residues (Including but not limited to ash, scrubber waters, and scrubber sludges) from the incinerator. [ Comment: At closure, as throughout the operating period, unless the owner or operator can demonstrate, in accordance with § 261.3(c) or (d) of this Chapter, that any solid waste removed from his incinerator is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263. and 265 of this Chapter.] if 265.352-265.369 [ Reserved] Subpart P—Thermal Treatment § 265.370 ApplicabIlity. The regulations in this Subpart apply to owners and operators of facilities that thermally treat hazardous waste in devices other than incinerators, except as § 265.1 provides otherwise. Thermal treatment in incinerstors is subject to the requirements of Subpart 0. if 265.371—285.372 [ Reserved] § 265.373 General operatIng requirements. Before adding hazardous waste, the owner or operator must bring his thermal treatment process to steady state (normal) conditions of operation— including steady state operating temperature—using auxiliary fuel or other means, unless the process is a non-continuous (batch) thermal treatment process which requires a - complete thermal cycle to treat a discrete quantity of hazardous waste. § 265.374 (Reserved] § 265.375 Waste analysis. In addition to the waste analyses required by § 265.13, the owner or operator must sufficiently analyze any waste which he has not previously treated in his thermal process to enable him to establish steady state (normal) or other appropriate (for a non-continuous process) operating conditions (including waste and auxiliary fuel feed) and to determine the type of pollutants which might be emitted. At a minimum, the analysis must determine: (a) Heating value of the waste; (b) Halogen content and sulfur conten in the waste; and (c) Concentrations in the waste of lead and mercury, unless the owner or operator has written, documented data that show that the element is not present. [ Comment: As required by § 265.73, the owner or operator must place the results from each waste analysis, or the documented information, in the operating record of the facility.] § 265.376 [ Reserved] § 265.3fl Monitoring and inspections. (a) The owner or operator must conduct, as a minimum, the following monitoring and Inspections when thermally treating hazardous waste:% (1) Existing instruments which relate to temperature and emission control (if an emission control device is present) must be monitored at least every 15 minutes. Appropriate corrections to maintain steady state or other appropriate thermal treatment conditions must be made immediately either automatically or by the operator. Instruments which relate to temperature and emission control would normally include those measuring waste feed, auxiliary fuel feed, treatment process temperature, and relevant process flow and level controls. ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33251 ‘2) The stati.c plume (emissions), ere present, must be observed ually at least hourly for normal rpearance (color and opacity). The operator must Immediately make any indicated operating corrections necessary to return any visible emissions to their normal appearance. (3) The complete thermal treatment process and associated equipment (pumps, valves, conveyors. pipes, etc.) must be inspected at least daily for leaks, spills, and fugitive emissions, and all emergency shutdown controls and system alarms must be checked to assure proper operation. 265.378-265.380 (Reserved) § 265.381 Closure. At closure, the owner or operator must remove all hazardous waste and hazardous waste residues (Including, but not limited to, ash) from the thermal treatment process or equipment. [ Comment: At closure, as throughout the operating period, unless the owner or operator can demonstrate, in accordance with § 261.3(c) or (d) of this Chapter, that any solid waste removed from his thermal treatment process or equipment is not a hazardous waste, the ner or operator becomes generator hiazardous waste and must manage it accordance with all applicable require nents of Parts 262, 263, and 265 of this Chapter.) § 265.382 Open burning; waste explosives. Open burning of hazardous waste is prohibited except for the open burning and detonation of waste explosives. Waste explosives include waste which has the potential to detonate and bulk military propellants which cannot safely be disposed of through other modes of treatment. Detonation is an explosion in which chemical transformation passes through the material faster than the speed of sound (0.33 kilometers/second at sea level). Owners or operators choosing to open burn or detonate waste explosives must do so in accordance with the following table and in a manner that does not threaten human health or the environment. Pounds of waste explosives Mavinum distance from open Of propel lants burniop or detonation to frie property ot others § 265.383—265.399 (Reserved) Subpart 0—Chemical, Physical, and BiologIcal Treatment § 265.400 ApplIcability. The regulations in this Subpart apply to owners and operators of facilities which treat hazardous wastes by chemical, physical, or biological methods in other than tanks, surface impoundments, and land treatment facilities, except as § 265.1 provides otherwise. Chemical, physical, and biological treatment of hazardous waste in tanks, surface impoundments, and land treatment facilities must be conducted in accordance with Subparts J, K, and M, respectively. § 265.401 General operating requIrements. (a) Chemical, physical, or biological treatment of hazardous waste must comply with § 265.17(b). (b) Hazardous wastes or treatment reagents must not be placed in the treatment process or equipment if they could cause the treatment process or equipment to rupture, leak, corrode, or otherwise fail before the end of its intended life. (c) Where hazardous waste is continuously fed into a treatment process or equipment, the process or equipment must be equipped with a means to stop this inflow (e.g., a waste feed cut-off system or by-pass system to a standby containment device). IComment: These systems are intended to be used in the event of a malfunction in the treatment process or equipment.] § 265.402 Waste analysis and trial tests. (a) In addition to the waste analysis required by § 265.13, whenever: (1) A hazardous waste which Is substantially different from waste previously treated in a treatment process or equipment at the facility Is to be treated in that process or equipment, or (2) A substantially differe nt process than any previously used at the facility is to be used to chemically treat hazardous waste; the owner or operator must, before treating the different waste or using the different process or equipment: (i) Conduct waste analyses and trial treatment tests (e.g., bench scale or pilot plant scale tests); or • (ii) Obtain written, documented information on similar treatment of similar waste under similar operating conditions; to show that.this proposed treatment will meet all applicable requirements of § 265.401 (a) and (b). [ Comment: As required by § 265.13, the waste analysis plan must include analyses needed to comply with § § 265.405 and 265.408. As required by § 265.73, the owner or operator must place the results from each waste analysis and trial test, or the documented information, in the operating record of the facility.) § 265.403 Inspections. (a) The owner or operator of a treatment facility must inspect, where present: (1) Discharge control and safety equipment (e.g., waste feed cut-off systems, by-pass systems, drainage systems, and pressure relief systems) at least once each operating day, to ensure that it is in good working order (2) Data gathered from monitoring equipment (e.g., pressure and temperature gauges), at least once each operating day, to ensure that the treatment process or equipment is being operated according to its design; (3) The construction materials of the treatment process or equipment, at least weekly, to detect corrosion or leaking of fixtures or seams; and (4) The construction materials of, and the area immediately surrounding, discharge confinement structures (e.g., dikes), at least weekly, to detect erosion or obvious signs of leakage (e.g., wet spots or dead vegetation). - [ Comment: As required by § 265.15(c), the owner or operator must remedy any deterioration or malfunction he finds.] § 265.404 Closure. At closure, all hazardous waste and hazardous waste residues must be removed from treatment processes or equipment, discharge control equipment, and discharge confinement structures. [ CommenL At closure, as throughout the operating period, unless the owner or operator can demonstrate, in accordance with § 281.3 (c) or (d) of this Chapter, that any solid waste removed from his treatment process or equipment is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263, and 265 of this Chapter.) § 265.405 SpecIal requirements for ignitable or reactive waste. (a) Ignitable or reactive waste must not be placed in a treatment process or equipment unless: (1) The waste is treated, rendered, or mixed before or immediately after placement in the treatment process or equipment so that (i) the resulting waste, mixture, or dissolution of material no o to 100 -. ...... - 204 meters (670 feet) 101 to 1.000..... _.. ._ -. 380 meters (1.250 feet) 1,001 to 10.000 ..... 530 meters (1.730 feet) 01 to 30.000 690 meters (2,260 feet) ------- 33252 Federal Register/Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations longer meets the definition of ignitable or reactive waste under § 261.21 or 281.23 or this Chapter, and (ii) § 265.17(b) is complied with; or (2) The waste is treated in such a way that it is protected from any material or conditions which may cause the waste to ignite or react. § 265.406 SpecIal requirements for Incompatible wastes. (a) Incompatible wastes, or incompatible wastes and materials, (see- Appendix V for examples) must not be placed in the same treatment process or equipment, unless § 265.17(b) is complied with. (b) Hazardous waste must not be placed in unwashed treatment equipment which previously held an incompatible waste or material, unless § 265.17(b) is complied with. ft 265.407-265.429 LReserved] Subpart R—Underground injection § 265.430 ApplicabIlity. Except as § 265.1 provides otherwise: (a) The owner or operator of a facility which disposes of hazardous waste by underground injection is excluded from the requirements of Subparts G and H of this Part. (b) The requirements of this Subpart apply to owners and operators of wells used to dispose of hazardous waste which are classified as Class I under § 122.32(a) of this Chapter and which are classified as Class IV under § 122.32(d) of this Chapter. [ Comment: In addition to the requirements of Subparts A through E of this Part, the owner or operator of a facility which disposes of hazardous waste by underground injection ultimately must comply with the requirements of § § 265.431—265.437. These Sections are reserved at this time. The Agency will propose regulations that would establish those requirements.) § 265.431—265.999 (Reserved] Appendix I—Recordkeeping Instructions The recordkeeping provisions of § 265.73 specify that an owner or operator must keep a written operating record at his facility. This appendix provides additional Instructions for keeping porLions of the operating record. See § 265.73(b) for additional recordkeeping requirements: The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility in the following mannen Records of each hazardous waste received, treated, stored, or disposed of at the facility which Include the following: (1) A description by its common name and the EPA Hazardous Waste Number(s) from Part 281 of this Chapter which apply to the waste. The waste description also must include the waste’s physical form, i.e., liquid. sludge, solid, or contained gas. If the waste is not listed in Part 281. Subpart D. of this Chapter, the description also must include the process that produced it (for example, solid filter cake from production of , EPA Hazardous Waste Number W051). Each hazardous waste listed in Part 261, Subpart D. of this Chapter, and each hazardous waste characteristic defined in Part 281, Subpart C, of this Chapter, has a four-digit EPA Hazardous Waste Number assigned to it. This number must be used for recordkeeping and reporting purposes. Where a hazardous waste contains more than one listed hazardous waste, or where more than one hazardous waste characteristic applies to the waste, the waste description must include all applicable EPA Hazardous Waste Numbers. (2) The estimated or manifest-reported weight, or volume and density, where applicable, in one of the units of measure specified in Table 1; and (3) The method(s) (by handling code(s) as specified in Table 2) and date(s) of treatment, storage, or disposal. Table 1 Unit of measure SymboltDensaty Pounds .... P Shoit tons (2000 Ibs) . -- - ... I Gailons (US) ... . ... .. .. ... ... .. .. 0 PIG cubic yards.. . .._ . .. ..... V I/V K i iogTams ....... K Tomes (1000 kg) -- - - M Liters, . - -. - —. . . L KIL cubic meters . . —. .. C MIC ‘angle digit symbotk are used here for data piuceseing pwposes Table 2—Handling Codes for Treatment, Storage, amd Disposal Methods Enter the handling code(s) listed below that most closely represents the technique(s) used at the facility to treat. store, or dispose of each quantity of hazardous waste received. 1. Storage Sol S02 S03 S04 SO S Container (barrel, drum, etc.) Tank Waste pile Surface impoundment Other (specify) 2. Treatment (a) Thermal Treatment T06 Liquid injection incinerator T07 Rotary kiln incinerator T08 Fluidized bed incinerator T09 Multiple hearth incinerator Tb Infrared furnace incinerator Til Molten salt deatructor T12 Pyrolysis T13 Wet air oxidation T14 Calcination T15 Microwave discharge T16 Cement kiln T17 Lime kiln T18 Other (specify) (b) Chemical Treatment T19 Absorption mound T20 Absorption field T21 -Chemical fixation T22 Chemical oxidation T23 Chemical precipitation T24 Chemical reduction T25 Chlorination T26 Chlorinolysis T27 Cyanide destruction T28 Degradation T29 Detoxification T3o Ion exchange T31. Neutralization T32 Ozonation T33 Photolysis T34 Other (specify) (c) Physical Treatment: (1) Separation of components T35 Centrifugation T36 Clarification T37 Coagulation T38 Decanting T39 Encapsulation T40 Filtration T41 Flocculation - T42 Flotation T43 Foaming T44 Sedimentation T45 Thickening T46 Ultrafiltration T47 Other (specify) (2) Removal of Specific Component T48 Absorption-molecular sieve T49 Activated carbon T50 Blending T51 Catalysis T52 Crystallization T53 Dialysis T54 Distillation T55 Electrodialysis T56 Electrolysis T57 Evaporation T58 High gradient magnetic separation T59 Leaching’ T80 Liquid ion exchange T61 Liquid-liquid extraction T82 Reverse osmosis T63 Solvent recovery TM Stripping T65 Sand filter T66 Other (specify) (d) Biological Treatment T67 Activated sludge T68 Aerobic lagoon T69 Aerobic tank T70 Anaerobic lagoon T71 Composting T72 Septic tank T73 Spray irrigation T74 Thickening filter T75 Tricking filter T76 Waste stabilization pond T77 Other (specify) T78—79 [ Reserved] ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33253 Disposal D80 Underground injection ‘D81 Landfill D82 Land treatment D83 Ocean disposal D84 Surface impoundment (to be closed as a landfill) 085 Other (specify) APPENDIX fl—EPA REPORT FORM AND INSTRUcTJONS BIWNG CODE 6560-OI-M ------- 33254 Federal Register I Vol.45, No. 98 I Monday. May 19; 1980 I Rules and Regulations G ANo 12345XX Form Api roved 0MB No 758.ROOXX I. TYPE OF HAZARDOUS WASTE REPOR I PART A GENERATOR ANNUAL REPORT ‘ . PLEASE PLACE LABEL IN THIS SPACE THIS REPORT IS FOR THE YEAR ENDING DEC St. k I I PART B’ FACILITY ANNUAL REPORT THIS REPORT FOR YEAI ENDING DEC SI.f 1 19 I I PART C’ UNMAN IFESTED WASTE REPORT THIC REPORT 5$ FOR A WASTE - RECEIVED (day, me.. & yr) — — INSTRUCTIONS’ You may have receIved a preprlnted label attached to the front of thIs pamphlet, affix It In the designated space above—left If any of the informatIon on the label Is Incorrect, draw a line through It and supply the correct Information Ifl the appropriate section below If the label is complete and correct, leave Sections II, III, and IV below blank If you did not receive a preprinted label, complete all sections. ,“Installation” means a single site where hazardous waste is generated, treated, stored, or disposed of. Pleese refer to the specific instructions for generators or facilities before completing this form rhe information requested herein is required by law fS ctron 300Z0004 of the Resource Conservation and Racovery Act). II. INSTALLATION’S EPA 1,0. NUMBER IV. INSTALLATION MAILING STREET ORPO Box i j 1111111 I I I 11111111111 I I I I I CITY OR TOWN ST. ZIP CODE 1 1111111! IHIIHHIIIHH V. LOCATION OF INSTALLATION STREET OR ROUTE NUMBER I 1111 I LI 11111 II [ I liii 11111 11111 I II CITY OR TOWN ST ZIP CODE • •1 111111111 I 11111111111111 VII. TRANSPORTATION SERVICES USED ( for Part A reports only ) PHONE NO. (area code & no) I List the EPA Identificaton Numbers for those transporters whose services were used during the reporting year represented by this report VIII. COST ESTIMATES FOR FACILITIES (for Part B report, only) A. COST ESTIMATE FOR FACILITY CLOSURE - B COST ESTIMATE FOR POST CLOSURE MONITORING AND MAINTENANCE (disposal facsUtse . only) I j j IX. CERTIFICATION “JiLJJ I certify under penalty of law that I have personally examined and em familiar swth the in formation submitted in this and el i attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the wbm stied information is true, accurate, end complete. l.n av.ei, that there are significant penal des for submitting false ,nfomiat,on, Including the possibility of fine end lmprisonmeni A. PRINT OR TYPE NAME S SIGNATURE C DATE SIGNED EPA Form 8700 ’13 (4.50) 0 Please print or type with ELITE type (72 characters per inch ) U S. ENVIRONMENTAL PROTECTION AGENCY HAZARDOUS WASTE REPORT • 1 1111111111 ill Ill. NAME OF INSTALLATI IIIIIIIIIIIH 1111111111 II 11111 = - NAME ( last and fI st) 1 IIIII1I1III1I1I1II I 1111111111 I I J]ILIL}L1 I I PAGE _1 ? ------- Federal Register / Vol 45. No. 98 I Monday, May 19. 1980 / Rules and Regulations Please print or type with ELITE type (12 characrerslinch) p Pot OPP1CIAI. US C ONLY 5. aowa I e 3 ) I. Daft DCGCIVED I 1.1 I II 1191 I 1111—1111 1 TYPE OF REPORT (enter WI OPARTS Dpa tyc GSA No. I2345 .XJ( Fo,m Approved 0MB No 758-AOOXX RAJ XVII. FACILITYS EPA 1.0. NO. 1IlIlIIIIiliii GENERATOR ADDRESS (‘treet or P.O. box. city. elate. XXI. WASTE IDENTiFICATION C A OCSCRIPTION or WASTC z - HAZAROD s NUMBER (ace Inhtl•Uctiona) HAND ICTHOC OF WASTE codr - ---— • 1. . .“ 3 a. a, 2 . .. .., 3 ... ... 4 ... ... 5 ... ... 6 .:. ., 7 ... ... - 8 I-. - 9 ... ... 10 . . 11 - - ,.. ... i— i XXII. COMMENTS (enter information by line number — ice inalra.ctIon.J iI . I II . I I , 33255 EPA Poem u, i o (pool BIWNO CODE 6560-01-C I I T C (Collected under me authonft’ XIX. GENERATOR NAME (aped! vi PAGE OF — ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33256 GENERAL INSTRUCTIONS; HAZARDOUS WASTE REPORT (EPA FORM 8700-13) Import anL ’ Read all instructions before completing this form. Section I—Type of Hazardous Waste Report Part A: Generator Annual Report For generators who ship their waste off-site to facilities which they do not own or operate: fill in the reporting year for this report (e.g.. 1982). Note.—Generators who ship hazardous waste off-site to a facility which they own or operate must complete the facility (Part B) report instead of the Part A report. Part B: Faclifty Annual Report For owners or operators of on-site or off- site facilities that treat, store, or dispose of hazardous waste; fill in the reporting year for this report (e.g.. 1982). Part C: Unmanifested Waste Report For facility owners or operators who accept for treatment, storage, or disposal any hazardous waste from an off-site source without an accompanying manifest; fill In the date the waste was received at the facility (e.g., April 12, 1982). - Section II Through Section IV—Installation I.D. Number, Name of Installation, and Installation Mailing Address If you received a preprinted label from EPA. attach it in the space provided and leave Sections II through IV blank. If there Is an error or omission on the label, cross out the incorrect information and fill in the appropriate item(s). If you did not receive a preprmted label, complete Section II through Section N. Section V—Location of Installation if your installation location address is different than the mailing address, enter the location address of your installation. Section ‘lI—Installation Contact Enter the name (last and first) and telephone number of the person whom may be contacted regarding information contained in this report. Section Vil—Transportation Services Used (for Part A Reports Only) List the EPA Identification Number for each transporter whose services you used during the reporting year. Section VIlI—Cost Estimates for Facilities (for Part B Reports Only) A. Enter the most recent cost estimate for facility closure in dollars. See Subpart H of 40 CFR parts 264 or 265 for more detail. B. For disposal facilities only, enter the most recent cost estimate for post closure monitoring and maintenance. See Subpart H of 40 CFR Parts 264 or 265 for more detail. Section IX—Certification The generarator or his authorized representative (Part A reports) or the owner or operator of the facility or his authorized representative (Parts B and C reports) must sign and date the certification where Indicated. The printed or typed name of the person signing the report must also be included where indicated. Note—Since more than one page Is required for each report, enter the page number of each sheet in the lower right corner as well as the total number of pages. Facility Annual Report—Part B Instructions (EPA Form 8700—13B) Facility Annual Report for owners or operators of on-site or off-site facilities that treat, store, or dispose of hazardous waste. Note.—Cenerators who ship hazardous waste off-site to a facility they own or operate must complete this Part B report instead of the Generator (Part A) Annual Report. Important: Read all instructions before completing this form. Section XVI—Type of Report Put an “x” in the box marked Part B. Section XVII—Facillty’s EPA Identification Number Enter the EPA identification number for your facility. Example: XVII. FACILITY’S EPA 10.110. IIAID6 1AI 31 I 21 61 IeI fl i GENERATOR’S EPA IDENTIFICATION NUMBER Section XVIII—Generator’s EPA Identification Number Enter the EPA identification number of the generator of the waste described under Section XXI which was received by your facility during the reporting year. A separate sheet must be used for each generator. if the waste came from a foreign generator, enter Section XXI—A—Description of Waste For hazardous wastes that are listed under 40 CFR Part 261, Subpart D, enter the EPA listed name, abbreviated if necessary. Where mixtures of listed wastes were received, enter the description which you believe best describes the waste. For unlisted hazardous waste identified under 40 CFR Part 261, Subpart C, enter the description which you believe best describes the waste. Include the specific manufacturing or other process generating the waste (e.g., green sludge from widget manufacturing) and the EPA identification number of the importer In this section and enter the name and address of the foreign generator in Section XXII, Comments. If the waste was generated and treated, stored, or disposed of at the same installation, leave this section blank. Section XIX—Generator’s Name Enter the name of the generator corresponduig to the generator’s EPA identification number in Seciton XVIII. if the waste was generated and treated, stored, or disposed of at the same installation, enter ‘ON-SITE”. If the waste came from a foreign generator, enter the name of the Importer corresponding to the EPA identification number in Section XVffl. Section XX—Generator’s Address Enter the address of the generator - corresponding to the generator’s EP& Identification number in Section XVIII. If the waste was generated and treated, stored, or disposed of at the same installation, leave this section blank. If the waste came from a foreign generator, enter the address of the importer corresponding to the EPA identification number in Section XVIII. Section XXI—Waste Identification All information in this section must be entered by line number. A separate line entry is required for each different waste or mixture of wastes that your facility received during the reporting year. The handling code applicable to that waste at the end of the reporting year should be reported. Ifs different handling code applies to portions of the same waste, (e.g., part of the waste is stored while the remainder was “chemically fixed” during the year), u ea separate-line entry for each portion. if known, the chemical or generic chemical name of the waste. Section XXI-B—EPA Hazardous Waste Number For listed waste, enter the four digit EPA Hazardous Waste Number from 40 CFR Part 261. Subpart D, which identifies the waste. For a mixture of more than one listed waste, enter each of the applicable EPA Hazardous Waste Numbers. Four spaces are provided. If more space is needed, continue on the next line(s) and leave all other information on that line blank. Example: XXI WASTE IDENTIFICATION — I • A ONICR ON OP WASTE — _____ HAZARDOUS —‘:: (.D. ’. fl.PHRR.) HAND — hj:’ O S I Stee1F ziiings1 g 06’O K’06 ] - - “602 25000 T Steel P nith xu si 060XO6IT2i : 157245 T . ------- Federal Register / Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations 33257 For unlisted hazardous wastes, enter the EPA Hazardous Waste Numbers from 40 CFR Part 261. Subpart C. applicable to the waste. if more than four spaces are required, follow the procedure described above. Section XXI.-C—Handling Code Enter one EPA handling code for each waste line entry. Where several handling steps have occurred during the year. report only the handling code representing the waste’s status at the end of the reporting year or its final disposition. EPA handling codes are given in Appendix I of this Part. Section XXJ—D—-Amount of Waste Enter the total amount of waste described on this line which you received during this reporting year. Section XXI—E—Unit of Measure Enter the unit of measure code for the quantity of waste described on this line. Units of measure which must be used in this report and the appropriate codes are: Code P T K M Units of measure Pounds. . ... Short tons (2.000 Ibs) .. Kilograms Tonnes (1,000 kg) Units of volume may not be used fpr reporting but must be converted into one of the above units of weight, taking into account the appropriate density or specify gravity of the waste. Section XXII—Comments This space may be used to explain or clarify any entry If used, enter a cross- reference to the appropriate Section number. Note.—Since more than one page is required for each report, enter the page number of ea ’ch sheet in the lower right hand corner as well as the tojal number of pages. Where required by 40 CFR 284 or 265, Subparts F or R. attach ground-water monitoring data to this report. Unmanifested Waste Report—Part C Instructions (EPA Form 8700-.13B) Unmanifested Waste Report for facility owners or operators who accept for treatment, storage, or disposal any hazardous waste from an off-site source without an accompanying manifest Important. Read all instructions before completing this form For the Unmanifested Waste Report, EPA Forms 8700—13 and 8700—13B must be filled out according to the directions for the Part B Facility Annual Report except that. (1) blocks for which information is not available to the owner or operator of the reporting facility may be marked “UNKNOWN,” and (2) the following special instructions apply: Section VIll—Cost Estimates for Facilities Do not enter closure or post-closure cost estimates. Section XVI—Type of Report Put an “x” in the box marked Part C. Section XXI—A—Description of Waste Use as many line numbers as are needed to describe the waste. Section XXI-.C—Handling Code Enter the handling code which describes the status of the waste on the date the report is filed. - Section XXI—D—Aznount of Waste Enter the amount of waste received, rather than a total annual aggregate. Section XXH—Comments a. Enter the EPA Identification number. name, and address of the transporter, if known. if the transporter is not known to you. enter the name and chauffeur license number of the driver and the State and license number of the transporting vehicle which presented the waste’to your facility, if, known. b. Enter an explanation of how the waste movement was presented to your facility; why you believe the waste is hazardous; and how your facility plans to manage the waste. Continue on a separate blank sheet of paper if additional space is needed. Monitoring data Do not attach monitoring data.’ Appendix 111.—EPA ,nfenmpñma,ydnnk,ng water standards Parameter Maximum level (mgII) Arsenic 005 Banum_ lO Cadmium 001 Chromium 005 Fluonde - . . . . 14-24 Lead . . . - . 005 Mercury Nitrate (as N) . . Selenium . 0002 10 001 Silver . 005 End,ln 00002 Lindane . . ... . 0004 Methoxychlor . 01 Toxaphene - - . 0005 2.4-D . 01 2.4,5-TP Silver 001 Radium 5 pCi/I Gross Alpha . . . . 15 pCi/i Gross Beta. 4 milliremlyr Turbidity 11Th Cotiform Baclena 1/100 ml (Comment Turbidity is applicable only to surface water supplies) Appendix N—Tests for Significance As required in § 265.99(b) the owner or operator must use the Student’s t-test to determine statistically significant changes in the concentration or value of an indicator parameter in periodic ground-water samples when compared to the initial background concentration or value of that indicator parameter. The comparison must consider individually each of the wells in the monitoring system. For three of the indicator parameters (specific conductance, total organic carbon, and total organic halogen) a single-tailed Student’s t-test must be used to test at the 0.01 level of significance for significant increases’over background. The difference test for p1-1 must be a two-tailed Student’s t-test at the overall 0.01 level of significance The student’s t-test involves calculation of the value of a t-statistic for each comparison of the mean (average) concentration or value (based on a minimum of four replicate measurements) of an indicator parameter with its initial background concentration or value. The calculated value of the t-statistic must then be compared to the value of the t- statistic found in a table for t-test of significance at the specified level of significance. A calculated value of t which exceeds the value of t found In the table indicates a statistically significant change in the concentration or value of the indicator parameter. Formulae for calculation of the t-statistic and tables for t-test of significance can be found in most introductory statistics texts. Appendix V—Examples of Potentially Incompatible Waste Many hazardous wastes, when mixed with other waste or materials at a hazardous waste facility, can produce effects which are harmful to human health and the envu’onment, such as (1) heat or pressure, (2) fire or explosion, (3) violent reaction, (4) toxic dusts, mists, fumes, or gases, or (5) flammable fumes or gases. Below are examples of potentially incompatible wastes, waste components, and materials, along with the harmful consequences which result from mixing materials in one group with materials in another group. The list is intended as a guide to owners or operators of treatment, storage, and disposal facthties, and to enforcement and permit granting officials, to indicate the need for special precautions when managing these potentially incompatible waste materials or components. This list is not intended to be exhaustive An owner or operator must, as the regulations require, adequately analyze his wastes so that he can avoid creating uncontrolled substances or reactions of the type listed below, whether they are listed below or-not. It is possible for potentially incompatible wastes to be mixed in a way that precludes a reaction (e.g., adding acid to water rather than water to acid) or that neutralizes them (e.g., a strong acid mixed with a strong base), or that controls substances produced (e.g., by generating flammable gases in a closed tank Exampte: XXI WASTE IDENTIFICATION - - a S A CCSC1S PT•0N 0 CASTS 1 5 A .11 •t.* Nazaceut Wfl Y( NUMSEN i’ gl,N. rii....i 0 .nneu q , ,, u_ 0 0 ( 2 1ST Or CASTS a 1 F - - I Stae1Finishii S1i qe :0’G’o K 0 ’6’L ..0:6.?K.0:6.3T 2 1 2917455 ‘r 0: ::J [ 11111111 ------- 33258 Federal Register /Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations equipped so that ignition cannot occur, and California Department of Health, February burning the gases in an incinerator). 1975. In the lists below, the mixing of a Group A IFR Doc. 80-14309 Filed 5-i6-80 845 amj material with a Group B material may have SIWNG CODE 6555-6 1-ti the potential consequence as noted. Group 1-A Group I-B Acetylene sludge Acid sludge Akaline caustic hquids Acid snd waler Alkaline cleaner Battery acid Alkaline corrbaive liquids Chemical cleaners Alkaline corrosive baftery fluid Electrolyte, acid Caustic wastawater Etching acid liquid or Lime sludge and other corrosive solvent alkalies Piclding liquor and other Lime wastewater corrosive acids Lime and water Spent acid Spent caustic Spent mixed acid Spent sulfuric acid Potential consequences: Heat generation: violent reaction. - Group 2-A Group 2-S Aluminum Any waste in Group 1-A Beryllium or I-B Calcium Lithium Magnesium Potassium Sodium Zinc powder Other reactive metals and metal hydndea Potential consequences: Fire ofexplosion generation of flammable hydrogen gas. Group 3-A Group 3-B Alcohols Any concentrated waste Waler in Groups 1-A or 1-6 Calcium Metal hydndea Potassium 60,0, 500,, PCI,, CH,SiCI, Other water-reactive waste - Potential consequences: Fire, explosion, or heat generation; generation of flammable or toxic gases. Group 4-A Group 4-B Alcohols Concentrated Group 1-A Aldehydea or 1-a wsstes 1-talogenated hydrocarbons Group 2-A wastes Nitrated hydrocarbons Unsaturated hydrocarbons Other reactive organic compounda and solvents Potential consequences: Fire, explosion, or violent reaction. Group 5—A Group 5-B Spent cyanide and sulfide Group 1-B wastes ‘solutions Potential Consequences: Generatibn of toxic hydrogen cyanide or hydrogen sulfide g s. Group 6-A Group 6—B Chlorate, Acetic acid end other Ch lonne organic acids Ch lontes Concentrated mineral Chromic acid scides Hyphochlorttes Group 2-A wastes Nitrates Group 4—A wastes Nitric acid, fumIng Other flsmmeble and Perchlcrstes combustible wastes Permsngsnstes Peroxide, Other strong oxidizers Potential consequences: Fire, explosion, or violent reaction. Source: “Law, Regulations, and Guidelines for Handling of Hazardous Waste.” ------- Monday May 19, 1980 Part VIII Environmental Protection Agency Hazardous Waste Management System Proposal To Modify 40 CFR Part 265— Subpart H—Financial Requirements ------- 33260 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Proposed Rules. ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 264 and 265 (FRL 1459—7] Financial Requirements for Owners and Operators of Hazardous Waste Management Facilities AGENCY: Environmental Protection Agency. ACTION: Revision of Proposed Rule . SUMMARY: This proposal is a revision of regulations proposed on December 18. 1978 (43 FR 58995. 59006—7). Under the revised proposal, as in the original, an owner or operator of each hazardous waste management facility would have to provide assurance that funds will be available when needed for properly closing the facility and, in the case of a disposal facility, for maintaining and monitoring it after closure. The revised proposal, however, allows a numberof options in providing such assurances, while the original proposal had only one option, trust funds. The revised provisions for financial assurance are proposed for inclusion both in the general standards to be used in permitting (Part 264) and in standards for facilities in interim status (Part 265). The revised proposal also includes a new requirement for liability insurance for facilities in interim, status. The liability requirements m the original proposal were only for inclusion in the general standards. These general standards have notbeen revised, but the comment period for them is reopened. EPA is reproposirig this rule because of the.many new and revised provisions which have not been subjected to public review. The.changes have resulted from reanalyses by the- Agencyin response to public comment oti the orignial proposal. DATES: Comments are due on or before July 18, 1980. A public hearing will be held July 1, 1980 from 9 a.m. to 5 p.m. ADDRESSES: Comments should be addressed to Deborah Villari, Docket Clerk, Office of Solid Waste (WH—562), U.S. Environmental Protection Agency, 401 M Street SW., Washington, D.C. 20460, (202) 755—9173. Comments should identify the regulatory docket as follows: “Section 3004, Financial Requirements.” The official record for this rulemaking is available at: Room 2711, U.S. Environmental Protection Agency, 401 M Street SW., Washington, D.C. 20460, and is available for viewing from 9 a.m. to 4:30 p.m., Monday through Friday. excluding holidays. A public hearing will be held at the - HEW North Building Auditorium, 330 Independence Avenue SW., Washington, D.C., on July 1, 1980, from 9 a.m. to 5 p.m., with registration from 8:30 to 9 a.m. Anyone wishing to make a- statement at the hearing should notify, in writing: Ms. Geraldine Wyer, Public Participation Officer, Office of Solid Waste (WH-562), U.S. E.P.A., 401 M Street SW., Washington, D.C. 20460. Oral and written comments may be submitted at the public hearing. Persons who wish to make oral presentations must restrict their presentations to 10 minutes and are encouraged to have written copies of their complete. comments for inclusion in the official record. FOR FURTHER INFORMATION CONTACT. George A. Garland, Chief, Economic-and Policy Analysis Branch, Office of Solid Waste (WH—565), U.S. Environmental. Protection Agency, 401 M Street SW., Washington, D.C. 20460, (202) 755—9190. For information about the liability requirements, contact Hugh Holman, Economic Analysis Division. Office of Planning and Evaluation (PM—220), U.S. Environmental Protection Agency, 401 M Street SW., Washington, D.C. 20460 (202) 755—2677. SUPPLEMENTARY INFORMATION: Authority This regulation is proposed under the authority of Section 1006, 2002(a), and 3004, of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Actof 1976 (RCRA), as amended, 42 USC § § 6905, 6912(a), and 6924. Background Section 3004(6)-of the Resource Conservation and Recovery Act of 1976 specifically requires EPA to establish _financial responsibility standards; applicable to owners and operators of hazardous waste management facilities as such standards may be necessary or desirable to protect human health and the environment. EPA proposed, on December 18, 1978 (43 FR 58995, 59006— 7), fmancial requirements intended to provide: (1) assurance that funds will be available when needed to close hazardous waste management facilities properly and to monitor and maintain hazardous waste disposal facilities after closure; and (2) liability coverage-for injuries to people and property which result from the operation of hazardous waste management facilities. The need for requirements for financial assurance of closure and post- closure care is indicated by the numerous instances of environmental damage resulting from abandonment of facilities and other failure-to provide for closure and post-closure care in a timely manner. (Several such cases are described in the Background Document for the financial requirements.) The likelthood of failure to provide adequately for closure and post-closure care is increased by the fact that the costs occur when the economic value of the facility is diminished or nonexistent. For some disposal facilities, post-closure care must extend for decades beyond the operating life of the facility. EPA believes that significant numbers of owners and operators may lack the ability to provide effectively for closure and post-closure costs unless they make provision for them during the active operating life of the facility. The Agency believes liability requirements are necessary because of the potential for damage to people and property from hazardous waste management operations, as indicated by actual damage cases and the essential nature of hazardous wastes. If the facility owner or operator has insufficient financial resources to pay for damages, private parties or government may be forced to bear the costs. The basic purposes of the financial requirements have not changed since the original proposal, but the provisions for achieving these purposes have been expanded and altered as a result of reanalyses following public comment on the original proposal. As explained in greater detail below, the revised proposaLwould allow owners and operators to choose from a number of mechanisms in providing financial assurance for closure and post-closure care, including trust funds, surety bonds, letters of credit, guaranties, a financial test, and a revenue test for municipalities. The provisions for the one option that was available in the original proposal, the trust fund, have been restructured to be less burdensome to owners and operators. Standard forms for the financial instruments have been added to the proposal. The revised requirements for financial assurance for closure and post-closure care are proposed for inclusion in both the general standards to be used in the permitting of hazardous waste management facilities (40 CFR Part 264) and the interim status standards (Part 265). The headings and citations are numbered for inclusion in Part 265 since theregulations on closure, post-closure care, cost-estimating, and applicability to which the proposed regulations must refer have been promulgated only for Part 265 (and appear in, today’s Federal Register). For inclusion in Part 264, these citations would be changed and other ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Proposed Rules 33261 minor modifications would be made, e.g.. the requirement that the assurance mechanisms be established by the effective date of the regulations would be dropped since the general standards must be applicable to new facilities seeking a permit after the effective date. The revised proposal also adds a liability insurance requirement for facilities in interim status. The insurance would cover damage claims resulting from sudden accidents. The general status liability requirements in the original proposal, covering both sudden and nonsudden events, are not part of the reproposal, but the public comment period for them is reopened, to run concurrently with the comment period for the reproposal. Other portions of the original proposal not included In the reproposal are: (1) the requirements for estimating the costs of closure and post-closure care, which, with an “Applicability” section, are promulgated in today’s Federal Register (2) the transfer of ownership provisions, which are dropped from these requirements since this topic is more appropriately covered by the Consolidated Permit Regulations, 40 CFR Part 122, Subparts A and B, which are promulgated today: and (3) the access and default provisions, which are - dropped since Sections 3007 and 3008 of RCRA contain access and enforcement provisions that apply to all regulations under Subtitle C of RCRA, and the Agency has decided that special provisions for financial responsibility requirements would be inappropriate. Applicability The applicability of the financial requirements for hazardous waste facility owners and operators is set forth in 40 CFR 265.140, which is promulgated today. The proposed regulation, as revised, includes amendments to § 265.140 to cover applicability of the proposed financial requirements. Essentially, the financial requirements for closure and the liability requirements would apply to owners and operators of all hazardous waste facilities, and the requirements for post-closure care would apply only to owners and operators of disposal facilities. States and the Federal government are exempt from the financial requirements. Financial Assurance for Closure Under Subpart C of the Part 265 regulations promulgated today, an owner or operator of each hazardous waste facility must prepare a closure plan for the facility. The owner or operator must also prepare a cost estimate for closure of his facility 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; he must adjust the estimate for inflation annually and prepare a new estimate whenever a change in the closure plan affects the cost of closure (see § 265.142). The originally proposed interim status standard for financial assurance for closure required that the owner or operator make a cash deposit for the entire amount of the closure cost estimate into a closure trust fund on the effective date of the regulations; the general standard required an owner or operator to make a cash deposit equal to the cost estimate for closure, multiplied by the appropriate “present value factor,” into a closure trust fund as a condition of receiving a permit. The present value factor accounted for growth of the fund over operating life at a 2 percent per annum real interest rate - (interest minus inflation). A number of commenters said that owners and operators of many facilities could not afford to comply with these requirements. They suggested that many facilities would have to close, - exacerbating the expected shortfall in hazardous waste management capacity. The Agency believes that depositing the full amount of the closure cost in the trust at the beginning may cause insolvency in a few cases representing a relatively small percentage of capacity. However, not being willing to risk aggravating a possible capacity shortfall, EPA proposes to allow the closure trust fund to build up over the expected life of the site or 20 years, whichever period is shorter. The revised proposed requirements for the trust fund include provisions for adjusting the annual payments in response to inflation, changes in the closure cost estimate, and changes in the value of securities in the fund. As noted above, the originally proposed general standard for the trust fund allowed adjustment of the lump- sum amount to be deposited on the basis that the fund would earn a real interest rate of 2 percent. Some cominenters felt that this rate was too low, while others felt it was too high. EPA agrees that a 2 percent real interest rate is too high. Provisions of the revised proposal are based on a zero real interest rate to adequately account for the effects of long-term inflation and trustee fees. Based on long-term data, the Agency believes that over an extended period. the purchasing power of the deposited funds is likely to be static, i.e., the nominal interest realized will be cancelled out by inflation and by trustee fees. The original proposal did not allow reimbursement of the owner or operator for closure expenses from the trust fund until closure was completed to the satisfaction of the Regional Administrator. Commenters stated that this provision imposed hardship on owners and operators since they would have to pay out twice for closure before being reimbursed. The Agency agrees that it would be preferable to reimburse owners and operators as closure is accomplished; Under the revised proposal the owner or operator would be reimbursed for closure bills submitted before closure was completed if the Regional Administrator found them to be iii accordance with the closure plan and if the amount remaining in the trust fund after such payment would be at least 20 percent of the amount in the fund when closure began. The 20 percent remaining would provide reasonable financial assurance for closure activities that may be found to be necessary after the owner or operator and an independent registered professional engineer have certified that closure was completed in accordance with the closure plan. The Regional Administrator must release all funds within 30 days of receiving such certifications unless he has reason to believe closure was not done according to the closure plan. EPA received numerous comments, especially from industry, suggesting that other financial assurance mechanisms in addition to the trust should be allowed. Commenters stated that allowing only trust funds is unnecessary and financially burdensome. The Agency now proposes to allow a number of mechanisms including surety bonds, letters of credit, guaranties, and tests of financial strength, as well as trust funds. EPA’s major concern with respect to surety bonds has been that they could be quicldy cancelled and thus did not assure coverage of closure. As the Agency has gone through the process of revising its proposed regulations. however, it has learned that cancellation provisions that assure coverage of closure may be obtainable by the regulated community. The surety bond provisions in the reproposal include two cancellation clauses. First. the owner or operator and EPA must - receive 90 days’ notice of cancellation from the surety company; during this time, if the owner or operator is unable to establish other financial assurance, the Agency may order closure. A second clause requires that the bond must remain in effect until completion of closure once closure begins or is ordered to begin by the Regional Administrator. ------- 33262 - Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Proposed Rules EPA believes that these provisions would make the surety bond an ,acceptable alternative mechanism A bank letter of credit assures that a bank will make available a specific sum of money over a specific time period on behalf of its customer to the party (beneficiary) in whose favor the letter is written. The beneficiary can draw on the credit by presenting documents specified in the letter. Under the proposed regulation. a letter of credit, payable to the Regional Administrator, would be obtained by a facility owner or operator in the amount of the closure cost estimate. The letter of credit would contain an automatic one-year extension.clause; if the bank decides not to renew the credit, it must give 60 days notice to the-Regional Administrator and the owner or operator. If the owner or operator fails to establish other financial assurance during this period, or if the owner or operator fails to carry out closure in accordance with the closure plan, the Regional Administrator could draw on the credit; the funds -would go into an escrow account from which closure bills would be paid. The revised proposal includes a financial test consisting of criteria for net worth, net working capital, and level of indebtedness. By meeting these criteria, firms could satisfy the requirement for financial assurance for closure. The purpose of the test is not to predict whether a firm will go bankrupt but rather to indicate whether it will have adequate funds to establish a trust fund or other allowable instrument to provide financial assurance for closure if its financial position deteriorates beyond the acceptable levels. Under the proposed regulation an entity meeting the financial test may guarantee another entity’s compliance with the closure regulations, and this guarantee would qualify as financial assurance for closure. For reasons explained in the preamble to 40 CFR Parts 264 and 265, facilities owned or operated by States or the Federal government are exempt from financial requirements under § 265.140(c). Since local governments can, and sometimes do, become insolvent, however, the Agency has included a simple revenue test for municipalities in the reproposed regulation. For added flexibility, the revised proposal explicitly allows an owner or operator to combine instruments (e g., coverage of half the closure cost estimate by a trust fund, half by a letter of credit), cover more than one facility with a single mechanism, or cover both closure and post-closure care with a single mechanism. Under the originally proposed interim status standards, the Regional Administrator could allow partial compliance with the financial assurance requirements if full compliance would render the owner or operator insolvent. This provision is not included in the revised proposal since it-could work against the main function of the requirements as minimum standards for financial responsibility on the part of owners and operators. It would also impose a severe administrative burden on the Agency, since the Financial status of owners and operators applying for such relief would have to be evaluated. Furthermore. EPA believes that by changing the trust fund to make it a less costly mechanism, and by providing for other financial mechanisms which, for many owners and operators, may be considerably cheaper to use than the trust fund, any need for such a provision is substantially reduced. Financial Assurance for PostClosure Care Subpart G.of the Part 265 regulations promulgated today requires that an owner or operator of each hazardous waste disposal facility prepare a plan for 30 years of post-closure care. The owner or operator must prepare, and keep current, w cost estimate for 30 years of post-closure care of the facility (see § 265.144). The original proposed regulation for financial assurance for post-closure care required establishment of a trust fund built up over the life of the facility. Assurance of post-closure care for 20 years was required since the basic period of post-closure care under the proposed post-closure regulations was 20 years. Again, a 2 percent real interest rate was assumed in directing the calculation of the amount to be paid in. The issues and comments received on the post-closure trust fund requirements were very similar to those received on the closure trust requirements. The Agency’s response in the revised - proposal is very much the same, and thus the post-closure trust provisions are quite similar to those of the closure trust provisions as revised. The owner or operator would be reimbursed for post- closure costs if they are in accordance with the post-closure plan. At the end of 30 years of post-closure care (or earlier if the Regional Administrator reduces the post-closure care period required,of the facility), any funds remaining in the trust would be returned to the owner or operator. In the revised proposal surety bonds and letters of credit have been added as acàeptable financial instruments for assuring post-closure care. These may be written so that they assure lump-sum post-closure funds at closure, or they may assure that the funds will be available at any point during the post- closure period should the owner or operator default. A financial test, guaranty, and a revenue test for municipalities are also being allowed as means of assuring post-closure care. - Mechanisms for Financial Assurance Suggested But Not Included All the basic methods for providing financial assurance that have been added since the original proposal were among those suggested by commenters on the original proposal. There were a number of other mechanisms suggested that are not in the reproposal, however. The escrow account has been considered by the Agency, but was not included in the reproposal because it would require the Regional - Administrator to become a signatory to tl e agreement and might present other administrative burdens without offering significant advantage over the other instruments allowed., The escrow account is used in the reproposed regulations as a means of holding funds following a default, since this use of escrows does not involve the Regional Administrator as a signatory. A national fund based on assessments on owners and operators and used to cover defaults was suggested by several commenters. Use of such-a method would clearly require special legislation. EPA is considering proposal of legislation for a national fund that may include coverage of defaults in providing post-closure care, as well as coverage of post-closure liability. Other mechanisms suggested included pledges of securities, liens against land and real improvements, interest-bearing accounts in financial institutions, and sinking funds. These were not included because the Agency concluded that they suffered from one or more of the following shortcomings: their status is uncertain in the event of financial failure; they would impose unreasonable administrative burdens on the Agency; they could be cancelled quickly, providing no long-term guarantee of financial assurance; or they depend on long-term solvency of the owner or operator. Liability Requirements The reproposal includes an interim status requirement for liability insurance during operating life. Under this requirement an owner or operator of each hazardous waste treatment, storage, or disposal facility must show evidence of a minimum of.$i million of liability insurance per occurrence per ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Proposed Rules 33263 firm with a $2 million annual aggregate, for sudden and accidental occurrences (exclusive of legal defense costs). EPA today also reopens the comment period on the general standards for liability coverage proposed December 18, 1978 (43 FR 59007). The proposed general standards differ from the interim status requirement proposed today, for reasons discussed below, the final general standards and interim status standards will be revised in promulgation to make them consistent as far as insurance for sudden accidents is concerned. The general standards proposed in December 1978 required each owner or operator to maintain liability insurance for both sudden and accidental occurrences and for nonsudden and accidental occurrences. The interim status regulations proposed at that time did not include any insurance requirement. Though cognizant of the need for financial responsiblity for third- party claims during intenm status, EPA was concerned that liability insurance would not lie made available to facilities managing hazardous waste until they could show compliance with permit requirements. Analysis performed since the December 1978 proposal suggests that many firms following good business management practices already possess liability insurance covering sudden accidents. Other firms that follow good management practices should easily be able to increase their coverage to the requisite amount or to obtain coverage in the event that they do not currently carry such insurance. Sudden accidents that cause damage to third parties are clearly a possibility during the operation of a hazardous waste management facility. An analysis of the 90 incidents of damage occurring on hazardous waste management sites in the EPA damage report files showed that damage occurred from sudden events in 15 of the incidents. Facilities Involved in sudden accidents were both “on-site” (adjacent to manufacturing facilities) and off-site, and were owned by small, independent operators as well as by large corporations. The analysis of liability coverage has confirmed that coverage for nonsudden occurrences may not be available at this time to all finns prior to compliance with permit requirements. Most insurance companies do not currently provide coverage-of nonsudden occurrences; most that do provide coverage.restrict it to their clients who are large and well-managed. Consequently, for the interim status period, the Agency has decided to propose that insurance coverage be required, but only for damages from sudden and accidental incidents. The analysis suggests that the required insurance can be obtained at a reasonable cost. The cost of liability insurance varies considerably with the inherent risk of the activity insured, the management practices of the firm, and the past accident record of the firm. The cost of annual coverage for sudden accidents is likely to range from $10— 20,000 for a small “average risk” waste disposal firm (with annual revenues of $1 million or less) and would increase, though at a decreasing rate, for larger sized firms. This cost of coverage is estimated to be 1—3 percent of annual revenues for small firms. If a small firm is deemed to pose greater risks, however, it could end up paying 5—10 percent of its revenues for insurance. A large high-risk waste disposal firm is likely to pay less than 1 percent of its revenues for in8urance coverage. Additionally, the cost of coverage for a firm that only stores waste should be less than the-cost of coverage for waste disposal firms. The Agency believes that the firms that do not currently have this coverage or do not have it in the requisite amount should be able to secure it at reasonable cost. - In addition to not requiring coverage for nonsudden events, the liability insurance requirement for the interim status period proposed here differs from the previously proposed general standards in sev ral respects: The amount of insurance coverage required for sudden incidents is $1 million per incident instead of the $5 million per incident specified in the proposed general standard. Many commenters on the proposed general standard argued that $5 million was too high, and that there have been no representative settlements in this amount. In response to these comments, EPA has reconsidered the required level of coverage. An extensive analysis of the Agency’s damage report files identified only one incident where damage caused by a sudden occurrence was estimated. The damages in this incident were $218,500 (1979 dollars). Insurance industry representatives informed EPA that small finns might typically maintain coverage for sudden events in an amount ranging from $300,000 to $1 million. Finally, EPA contacted four States (Washington, Oregon, Oklahoma, and Kansas) known to require insurance for hazardous waste management facilities, and found that the amount of insurance required by these States ranges from $300,000 to $1.2 million. On the basis of these findings, EPA is proposing to require $1 million of liability insurance per incident. Many commenters on the proposed general regulations argued that EPA should not specify any one amount of required insurance coverage,’ that the amount should be decided on a case-by- case basis after a review of the degree of risk posed by the operations of a hazardous waste management facility. EPA agrees that the degree of risk is of signal importance in setting an appropriate level of insurance coverage. EPA believes that $1 million is a reasonable minimum level of coverage for sudden and accidental occurrences for all firms managing hazardous wastes, and that many firms will choose to obtain coverage in greater amounts based on the risks inherent in their operations. EPA also believes that the predithms paid by facility owners and operators for a given level of coverage will reflect the degree of risk posed by the operations of the facility. Under today’s proposal, liability insurance is to be maintained on a per firm basis rather than a per site basis, accompanied by an annual aggregate liability limit. Many commenters on the proposed general standards requested clarification on this point. Liability insurance is required on a per firm basis rather than a per site basis because insurance companies generally provide coverage to all facilities owned or operated by a firm under a single policy. The insurance industry provides coverage in this manner because through the use of an annual aggregate they are able to take into account the risk of multiple accidents occurring at a firm which owns one or more facilities. Having reviewed prior damage incident histories, the Agency believes that an annual aggregate twice that of the liability limit per occurrence will provide adequate coverage for sudden accidents. The amount of liability insurance carried must exclude legal defense costs. Legal defense costs are excluded from the liability limits because the costs of legal defense could be considerable and, if included in the limits, could consume the major portion of insurance coverage and leave little coverage for actual damages. The exclusion of legal defense costs is also consistent with standard comprehensive general liability policies. An added requirement is that the deductible in the insurance policy must not exceed 5 percent of the per incident limit of liability of the policy. A maximum limit has been placed on the deductible in order to prevent firms from carrying a policy with a deductible so high as to render any insurance ------- 33264 Federal Register / Vol. 45, No. 98 I Monday. May 19, 1980 I Proposed Rules coverage ineffective, due to the underlying inability of the firm to meet its obligations under the deductible. Finally, self-insurance is not permitted as an alternative to liability insurance during interim status. Self-insurance, as proposed in the December 1978 general atandards. was defined as the absence of insurance and the sufficiency of equity to cover potential claims. The Agency believes that most if not all firms currently carry or can obtain comprehensive general liability policies and hence sees no need to allow self- insurance for the interim status period. Use of State-Authorized Mechanisms In the original proposal the Agency did not address the problem of differences between State and Federal financial requirements which potentially might cause problems to owners or operators. No such problem would develop in States that receive authorization to operate a hazardous waste regulatory program in lieu of the Federal program, since only the State’s requirements would apply. Some States. however, may not seek or obtain Federal authorization, and, for others, authorization may be delayed. In such States the owners and operators would be subject to Federal hazardous waste regulations and also to any State hazardous waste regulations that are in effect. To avoid causing unnecessary burdens on owners and operators, the Agency has included provisions in the revised proposal that would allow owners or operators to use State- authorized mechanisms to meet the Federal financial requirements if such mechanisms provide assurances that are substantially equivalent to that of mechanisms specified in the Federal requirements. Also, to the extent that a State assumes legal or financial responsibility for closure, post-closure care, or liability coverage for a facility, the owner and operator would be exempt from the respective Federal financial requirements. Comments Requested on Financial Assurance for Closure and Post-Closure Care In response to many comments on the original proposed regulation on financial assurance for closure and post-closure care, the Agency is proposing a greatly expanded regulation. The main objective has been to allow means in addition to trust funds which would be effective in assuring availability of needed funds. EPA has limited experience regarding financial mechanisms, however. The Agency wishes to receive, and expects to benefit greatly from, public review of this entire revised proposal. Furthermore, the Agency requests comments on the following specific matters: • The revised proposal allows the closure trust fund to be built up in annual payments over the life of the facility, or 20 years, whichever period is shorter. Does the benefit of lowering the cost of compliance with the financial requirement outweigh any reduction in financial assurance caused by the lengthy pay-in period? • What kinds of owners or operators of hazardous waste facilities are likely to be able to obtain letters of credit and surety bonds? Can the requirements for these instruments be altered in a way that will increase their availability without reducing their effectiveness? • What has been the experience of other governmental entities with collecting on surety bonds and letters of credit in the event of a default? Has experience led any governmental body to prefer one type of financial instrument over another in terms of reliability and ease of administration? What kinds of arrangements do banks and other financial institutions usually make to hold funds pending the outcome of legal determinations of default? • Are the proposed financial test, revenue test; and guaranty effective means of financial assurance? Are the criteria accurate measures of financial health? Are there relatively simple alternatives or substitutes for the criteria which promise greater accuracy or reliability? Is there empirical evidence available which would justify making the proposed financial tests more or less stringent? Should private bond-rating services be considered as an alternative to the revenue test for municipalities or added as an element of the test? • The Agency has considered escrow accounts as mechanisms for financial assurance and has tentatively decided that they are likely to present undue administrative burdens to the Agency without offering significant advantages over the other instruments allowed in the regulations. Comments are nonetheless invited on the idea of adding escrow accounts to the list of allowed instruments. • The revised proposal allows for use of a single financial mechanism to provide financial assurance for closure and/or post-closure care of multiple facilities. How useful is this provision to the regulated community? Will it pose administrative problems to the Regional Offices in cases where facilities in more than one Region are covered by a single financial instrument? • Suggestions and information on other possible mechanisms, or on different versions of the instruments already allowed, will be welcomed. The utility of such suggestions will be maximized by providing concrete examples of the form and operation of the instruments as well as an argument as to how they will succeed in meeting the problems of providing financial assurance for closure and/or post- closure care at a hazardous waste facility. • EPA has been considering proposing legislation for a national fund that would provide financial assurance for post-closure care. Under such an approach, owners or operators of hazardous waste disposal facilities would pay into a national fund which would then be used to pay for post- closure care at bankrupt facilities. Comments are invited on whether this approach might be less costly than the proposed requirements for financial assurance for post-closure care. • Forms for the trust instruments. surety bonds, letters of credit, and guarantees allowed in this revised proposal are included in these regulations in Appendices Il—Vill. The Agency would prefer to require the use of such formi in order to simplify review of the instruments and administration of the regulations. Are there errors of commission or omission in the language of the specific forms which may impede or prevent them from accomplishing the goals intended? Would changes in the language or requirements of the specific forms increase their availability to the regulated community without reducing their reliability? How can the costs of the instruments be minimized further? Comments Requested on Liability Requirements EPA also invites comments on several issues pertaining to the interim status liability requirement proposed today, and reopens the comment period on the general standard for liability coverage proposed December 18, 1978 (43 FR 59007). EPA invites comment on the following specific issues, as well as on any other issues raised by the proposed liability requirements: • Should the Agency require insurance coverage for nonsudden and accidental occurrences during the interim status period? • Will the insurance industry provide such coverage? - • Will such coverage be available on a continuing basis, or may the insurance industry withdraw such coverage in the event of large damage suits? ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Proposed Rules 33265 • Is it desirable to allow the use of financial responsibility mechanisms such as indemnity funds as alternatives to liability insurance for either sudden or nonsudden occurrences? How would such alternatives work? • Is the amount of coverage specified in the regulations appropriate? • Can we tailor the amount of required insurance to reflect better the degrees of risk posed by the operations of particular ites? How can this be done? • What will the likely annual cost of insurance be for nonsudden incidents? • Will all firms be able to afford Insurance for nonsudden incidents? • Can a useful self-insurance alternative be specified which will ensure financial responsibility? What criteria should be used in qualifying self- insurers? What should be the allowable level(s) of self-insurance? • EPA has obtained information on the above issues relating to liability requirements since the original proposal and has included the information as an appendix to the Background Document for the financial requirements. The Agency requests comments on this information as well as on the rest of the Background Document. Background Document - Copies of the Background Document prepared in support of this revised proposed rule are available for review in all EPA Regional Office libraries and in the EPA headquarters library (Public Information Reference Unit) Room 2404. Waterside Mall, 401 M Street, SW, Washington, D.C. Economic, Environmental, and - Regulatory Impacts In accordance with Executive Order 11821, as amended by Executive Order 11949, and 0MB Circular A—107, EPA policy as stipulated in 39 FR 37419, October 21, 1974. and Executive Order 12044, respectively, analyses of the economic, environmental, and regulatory impacts are being performed for the entirety of Subtitle C, Hazardous Waste Management. Copies of the draft documents covering the proposed requirements for financial assurance of closure and post-closure care are available for review in the EPA libraries noted above. The impacts of the liability requirement in this reproposal are not covered in the present drafts but will be covered in subsequent drafts. Dated: May 2, 1980 Douglas M. Costle, - Administrator. It is proposed to amend 40 CFR Part 265 by revising § 265.140(a) and (b), and adding § § 265.141, 285.143. 265.145. 265.148, 265.147, and Appendices 1—VIlI. It is also proposed that the same provisions, with changes in section numbers and other minor mo&fications, will be included in Part 264. Subpart H—Financial Requirements § 265.140 ApplicabilIty. (a) The requirements of § § 265.142, 265.143, 265.146, 265.147, and 265.149 apply to owners and operators of all hazardous waste facilities, except as provided otherwise in this section or in § 265.1. (b) The requirements of § 265.144 and 265.145 apply only to owners and operators of disposal facilities. § 265.141 DefinitIons. When used in Part 265, the following terms have the meanings given below: (a) “Assets” means debit balances carried forward upon a closing of books of account representing property values or rights acquired that are recognized and measured in conformity with generally accepted accounting principles. (b) “Current assets” means cash and other assets that are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of a business or within tone year, if the operating cycle is shorter than one year. (c) “Current liabilities” means liabilities expected t be satisfied by either the use of assets classified as current in the same balance sheet or the creation of other current liabilities; or those expected to be satisfied within a relatively short period of time,usually one year. (d) “Liabilities” means obligations carried forward upon a closing of books of account that are recognized and measured in conformity with generally accepted accounting principles. (e) “Marketable securities” means securities that are traded on recognized established securities markets where there are independent bona fide offers to buy and sell and where payment will be received in settlement of a sale within a relatively short time conforming to trade custom. (f) “Net working capital”-means the excess of current assets over current liabilities. (g) “Net worth” means the excess of total assets over total liabilities and is equivalent to owner’s equity. (h) “Standby letter of credit” means an irrevocable engagement by an issuing bank, at the request of an owner or operator, that it will honor demands for payment made by the U.S. Environmental Protection Agency for the period of the letter of credit and under terms specified for letters of credit in these regulations._ (i) “Surety bond” means a contract by which a surety company engages to be answerable for the default or debts by an owner or operator on responsibilities relating to closure or post-closure care, and agrees to satisfy these responsibilities if the owner or operator does not, in accordance with the terms specified for surety bonds in these regulations. (j) “Total-liabilities-to-net-worth ratio” means the value of total liabilities, which includes the sum of short-term and long-term obligations, divided by the value of net worth. (k) “Trust fund” means a fund established by an owner or operator and held by a financial institution as the trustee with a fiduciary responsibility to carry out the terms of the trust as specified in these regulations for the benefit of the U.S. Environmental Protection Agency. * § 265.143 FinancIal assurance for facilIty closure. By the effective date of these regulations, an owner or operator of each facility must establish financial assurance for closure of the facthty. He must choose from among the following options: (a) Closure trust fund. (1) The owner or operator may establish a closure trust fund. The trustee must be a bank or other financial institution. The beneficiary of the trust fund must be the U.S. Environmental Protection Agency. (2) The trust agreement must be executed on EPA Form 8700—15 (see Appendix II). The owner or operator must send the properly executed trust agreement to the Regional Administrator by certified mail within 10 days after the effective date of the agreement. (3) Replacement of a trust fund with another form or forms of financial assurance allowed in this section must be preceded by the written consent of the Regional Administrator. The owner or operator must report any change of trustee to the Regional Administrator within 10 days after such a change becomes effective. (4) Payments to the trust fund must be in cash or marketable securities. The value of each security must be determined in accordance with the Internal Revenue Service method for valuing securities for estate tax purposes (26 CFR 20.2031—2). In all valuations of the trust fund for purposes ------- 33266 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Proposed Rules of these regulations. securities must be valued by this IRS method. (5) Payments to the closure trust fund must be made annually over the operating life of the facility as estimated in the closure plan ( 265.112(a)) or 20 years. whichever period is shorter; this period is hereafter referred to as the “pay-in” period. The first payment must be equal to the adjusted closure cost estimate {see § 265.142) divided by the pay-in period in years. The first payment must be made by the effective date of these regulations. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The trust agreement must require the trustee to notify the Regional Administrator by certified mail within 5 days after the end of the 30-day period if he does not receive payment within such period. Upon receiving such notification, the Regional Administrator may order the facility to begin closure unless the owner or operator has established other financial assurance as allowed in this section. (6) The owner or operator must adjust the amount of each annual payment after the first one by multiplying the amount of the previous year’s payment by the inflation factor calculated in accordance with § 265.142(c). (7) If a new closure cost estimate is prepared in accordance with § 265.142(b), the next annual payment must be calculated as follows: Step 1—Divide the adjusted closure cost estimate by the number of years in the pay-in period as of the effective date of these regulations. - Step 2—Multiply the result by the number of payments made to the fund. Step 3—From the result of step 2 subtract the current value of the fund. The result is the amount which needs to je distributed over the remaining pay-in period. Step 4—Divide the result of step 3 by the remaining years in the pay-in period. Step 5—Add the result of step 4 to the. result of step 1 to obtain the new payment. (For an example of this calculation, see Appendix I.) (8) The owner or operator must determine the value of the trust fund each year within 30 days prior to the date each annual payment is due to be made. If the total value of the fund has decreased since the previous year’s valuation, the next payment must be calculated using the steps in paragraph (a)(7) of this section. The owner or operator may also use the calculation in paragraph (a)(7) to determine his next payment if the value of the fund has increased. If the value of the fund exceeds the total amount of the adjusted closure cost estimate, the owner or operator may submit a written request to the Regional Administrator for - release of the amount in excess-of the adjusted closure cost estimate. This request must be accompanied by a written statement from the trustee confirming the value of the fund. (9) An owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the closure cost estimate at the time the fund is established, but the trust fund must be valued annually and its value must be maintained at no less than the value that the fund would have had if annual payments had been made as specified in paragraphs (a)(5H8) of this section. (10) If an owner or operator establishes a closure trust fund after the effective date of these regulations, having initially used one of the other mechanisms specified in this section, his first payment must be in the amount that the trust fund would have contained if it had been established on the effective date of these regulations in accordance with the requirements of this section. (11) If the operating life of a facility extends beyond the maximum 20-year pay-in period, the owner or operator must determine the value of the trust fund every year after the 20th year until closure begins. Whenever the closure cost estimate changes during this period in accordance with § 265.142 (b) or (c), the owner or operator must compare the new estimate with the latest annual value of the fund. if the value of the fund is less than the amount of the adjusted closure cost estimate, the owner or operator must deposit cash or marketable securities into the fund so that its value equals the amount of the estimate. Such payment must be made within 60 days of the change in the closure cost estimate. if the value of the fund is greater than the total amount of the adjusted closure cost estimate, the owner or operator may submit a written request to the Regional Administrator for release of funds in excess of the estimate. This request must be accompanied by a written statement from the.trustee confirming the value of the fund. (12) Within 30 days after receiving a request from the owner or operator for release of excess funds as specified in paragraphs (a) (8) and (11), the Regional Administrator must direct the trustee in writing to release such excess funds to the owner or operator unless the Regional Administrator finds that the closure cost estimate was not prepared and adjusted in accordance with § 265.142. (13) An owner or operator may request reimbursement for closure e penditures by submitting itemized bills to the Regional Administrator. Within 30 days after receiving bills for closure activities, the Regional Administrator must direct the trustee in writing to pay those bills which the Regional Administrator determines to be in accordance with the closure plan or are otherwise justified. Such.payments must be made so long as the value of the fund after payment ii at least 20 percent of the value that the fund had befor any closure bill were paid. (14) if an owner or operator substitutes another form or forms of financial assurance specified in this section for all or part of the trust fund, he may apply to the Regional Administrator for release of funds from the trust fund. Within 30 days after receiving such request, the Regional Administrator must direct the trustee in writing to release the excess funds to the owner or operator. (15) The terms of the trust must require the trustee to make disbursements as specified in this paragraph. The trustee will disburse monies from the trust fund to parties designated by-the Regional Administrator upon written notification from the Regional Administrator that: (i) The value of the trust fund exceeds the amount of the adjusted closure cost estimate; or (ii) The itemized bills are in accordance with the approved closure plan or are otherwise justified, and they must be paid if the value of the trust fund after such payment is at least 20 percent of the value that the fund had before any closure bills were paid; or (iii) The owner or operator has established other financial assurance for closure as allowed in this section for part or all of the trust fund; or (iv) There has been a legaL. . determination, a copy of which is attached to this notification, of a violation ‘of the closure requirements of these regulations rendered in a proceeding brought pursuant to Section 3008 of RCRA. (16) The trust agreement must require the trustee to release all funds remaining in the trust fund to the owner or. operator upon receipt from him of the original or an authenticated copy of the Regional Administrator’s letter, specified in paragraph (h) of this section, notifying the owner or operator that he is no longer required to comply with the requirements of this section for financially assuring closure of the facility. (b) Surety bond guaranteeing performance of closure. (1) An owner or ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Proposed Rules 33267 operator may meet the requirements of this section by obtaining a surety bond guaranteeing performance of closure. A surety company issuing a bond in accordance with these regulations must, at a minimum, be authorized to do business in the United States and be certified by the U.S. Treasury Department. in Circular 570, to write bonds in the penal sum of the bond to be issued. The obligee of the bond must be the U.S. Environmental Protection Agency. (2) The bond must be executed on - EPA Form 8700-16 (see Appendix III). The terms of the bond must provide that the surety will send the properly executed bond to the Regional Administrator by certified mail within 10 days after the effective date, of the bond. (3) The surety bond must guarantee that the owner or operator will perform facility closure in accordance with the closure plan. The surety bond must be written in an amount equal to or greater than the adjusted closure cost estimate (see § 265.142). The surety bond must be written so that whenever closure activities begin or are ordered to begin by the Regional Administrator during the term of the bond, the bond coverage includes completion of closure in accordance with the closure plan. (4) If the closure cost estimate increases beyond the amount of the penal sum of the bond, the owner or operator must, within 30 days of such increase in the estimate, cause the penal sum of the bond to be increased or obtain other financial assurance, as - specified in this section, to cover the increase. If the closure cost estimate decreases, the penal sum of the bond may be reduced to the amount of the adjusted closure cost estimate. At the request of the owner or operator, the Regional Administrator must send written notice to the surety of any reduction in the required penal sum within 30 days after receiving the request. (5) The terms of the surety bond must provide that the surety company may cancel the bond by sending notice to the owner or operator and to the Regional Administrator by certified mail. Cancellation must not be effective for at least 90 days after the Regional Administrator receives the notice. The owner or operator, within 5 days of receiving a notice of cancellation from the surety, must notify the Regional Administrator by certified mail that he has received such a notice. The owner or operator may cancel the bond by providing 30 days’ notice to the surety company if the Regional Administrator has given prior written consent based on his having received evidence of other financial assurance as specified in this section. (6) Thirty days after receiving a notice of cancellation from the surety the Regional Administrator may order the owner or operator to begin closure unless the Regional Administrator has received evidence of other financial assurance as specified in this section. (7) A surety becomes liable on a bond obligation only when a proceeding brought pursuant to the provisions of Section 3008 of RCRA has determined that the owner or operator has violated the closure requirements of these - regulations. The terms of the bond must require that, following such a determination, the surety must: (i) Complete closure of the facility in accordance with the closure plan; or (ii) Pay the amount of the penal sum - into an escrow account as directed by the Regional Administrator. (8) The Regional Administrator must direct the depositary of an escrow account established under paragraph (b)(7)(ii) of this section to disburse funds to designated parties for the purpose of completing closure. (c) Standby letter of credit assuring funds for closure. (1) An owner or operator may meet the requirements of this section by obtaining an irrevocable standbyietter of credit. The letter must be written in favor of the Regional Administrator of the U.S. Environmental Protection Agency and must be for a period of at least one year. The letter of credit may be issued by any bank which is a member of the Federal Reserve System. (2) The letter of credit must be executed on EPA Form 8700—17 (see Appendix IV). The terms of the letter must provide that the issuing bank will send the properly executed letter of credit to the Regional Administrator by certified mail within 10 days after the effective date of the letter. (3) The credit must be issued for at least the amount of the adjusted closure cost estimate (see § 265.142). (4) If the closure cost estimate increases beyond the amount of the credit, the owner or operator must, within 30 days of such increase in the estimate, cause the amount of the credit to be increased or obtain other financial assurance, as specified in this section, to cover the increase. If the closure cost estimate decreases, the credit may be red iced to the amount of the adjusted closure cost estimate. At the request of the owner or operator, the Regional Administrator must send written notice to the issuing bank of any reduction in the required credit within 30 days after receiving the request. (5) The letter of credit must contain-a clause providing for automatic annual extensions of the credit, subject to 60 days’ written notice by the issuing bank to both the owner or operator and the Regional Administrator, by certified mail, of the bank’s intention not to renew the credit. The owner or operator, within 5 days of receiving notice of nonrenewal from the bank, must notify the Regional Administrator by certified mail that he has received such a notice. The owner or operator may cancel the letter of credit by providing 30 days’ notice to the issuing bank if the Regional Administrator has given prior written consent based on his having received evidence of other financial assurance as specified in this section. (6) Thirty days after receiving a notice of nonrenewal from the bank the Regional Administrator may draw upon the credit up to the full amount of the credit unless he has received evidence that the owner or operator has established other financial assurance as specified in this section. if the Regional Administrator draws upon the letter of credit following a notice of nonrenewal, the issuing bank must, under the terms of the letter, deposit the amount of the draft immediately and directly into an interest-bearing escrow account. Disbursements from the escrow account must be made in the same manner as specified for trust funds in paragraphs (a)(12)—(16) of this section. 47) If the closure cost estimate increases beyond the amount of the funds in the escrow account, the owner or operator must, within 30 days of such increase, add to the account or establish other financial assurance as specified in this section to cover the increase. If the owner or operator fails to do so, the Regional 4dministrator may order him to begin closure. (8) The Regional Administrator may otherwise draw upon the letter of credit only upon a legal determination of a violation of the closure requirements of these regulations rendered in a proceeding brought pursuant to the provisions of Section 3008 of RCRA. The terms of the letter must provide that, if’ the Regional Administrator draws upon the letter of credit following such a determination, the issuing bank will immediately and directly deposit the amount of the draft into an interest- bearing escrow account. The letter must require the escrow depositary to disburse monies from the escrow account to persons designated by the Regional Administrator to complete closure of the facility. (d) Use of more than one type of financial instrument. An owner or operator may meet the requirements of ------- 3326B Federal Register I Vol. 45, No. 98 I Monday. May 19,_1980 / Proposed Rules this section by establishing more than one type of financial instrument. These instruments are limited to a trust fund, surety bond, or letter of credit as specified in paragraphs (a), (b), and (c), respectively, of this section (e.g., a letter of credit may assure half the closure cost and a trust fund the remaining half). (e) Financial test and guaranty for closure. (1) An owner or operator may meet the requirements of this section by having all of the following financial characteristics: - (1) At least $10 million in net worth in the United States. (ii) A total-liabilities-to-net-worth ratio of not more than three. (iii) Net working capital in the United States of at least twice the adjusted closure cost estimate (see § 265.142). (2) These characteristics must be demonstrated in a financial statement which has been audited by an independent certified public accountant and which contains unconsolidated balance sheets dated no more than 140 days prior to the current date. The owner or operator who intends to use a financial test to meet both closure and post-closure requirements for a single facility or to meet closure and/or post- closure requirements for more than one facility must indicate in the statement which requirements for which facilities are to be met through the financial test’ and must demonstrate that his net working capital in the United States is at least twice the sum of all the adjusted estimates of closure and post-closure costs to be covered by the financial test. The owner or operator must have the financial statement available at the facility and must provide data from the statement if requested as part of annual reports to the Regional Administrator under § 265.75. (3) If at any time during the bperating life of the facility the owner or operator fails to meet the requirements of paragraph (e)(1) of this section, he must notify the Regional Administrator by certified mail within 5 days of learning of failure to meet the requirements. Evidence of other financial assurance as specified in this section must be sent to the Regional Administrator by certified mail within 30 days from the time that the owner or operator learns of failure to meet the requirements; otherwise the Regional Administrator may order him to begin closure. (4) An owner or operator may meet the requirements of this section by obtaining another entity’s written guaranty providing financial assurance, in an amount equal to the adjusted closure cost estimate, for the owner’s or operator’s compliance with the closure requirements of these regulations. The guarantor must meet the requirements for owners or operators in paragraphs (e) (1) and (2) of this section. (5) The guaranty must be executed on EPA Form 8700—18 (see Appendix V). The owner or operator must send the properly executed guaranty to the Regional Administrator by certified mail within 10 days after the effective date of the guaranty. (6) Under the terms of the guaranty, the guarantor must notify the Regional Administrator and the owner or operator by certified mail if he at any time fails to meet the requirements of paragraph (e)(1) of this section. The guarantor must send such notice within 5 days after learning of failure to meet the reqwrements. (7) The owner or operator must. within 30 days of receiving such notification, establish other financial assurance as specified in this section and provide evidence of such assurance to the Regional Administrator. If he fails to do so, the Regional Administrator may order him to begin closure. (8) The guarantor may cancel the guaranty with 90 days’ notice to the Regional Administrator and the owner or operator by certified mail, except that the guaranty must remain in effect if closure begins or is ordered to begin by the Regional Administrator before the end of the 90 days. Evidence of other financial assurance as specified in this section must be provided to the Regional Administrator within 30 days after a notice of cancellation is received by the Regional Administrator; otherwise, he may order the owner or operator to begin closure. (9) The guaranty may be cancelled at any time following the mutual written consent of th owner or operator, the Regional Administrator, and the guarantor. (10) Under the terms of the guaranty, in the event of a legal determination of a violation of the closure requirements rendered in a proceeding brought pursuant to Section 3008 of RCRA, the guarantor must pay parties designated by the Regional Administrator to complete closure in.accordance with the closure plan. (f) Revenue test for municipalities. (1) If the owner or operator is a municipality (as defined by RCRA), it may meet the requirements of this section by having annual revenues from property, sales, and/or income taxes equal to 10 times the adjusted closure cost estimate (see § 265.142). To be acceptable, these.tax revenues must be legally available to cover closure responsibilities, i.e., they must not be dedicated to other purposes or otherwise precluded from use in meeting closure responsibilities. (2) The owner or operator must send a letter signed by the chief financial officer of the municipality to the Regional Administrator stating that the municipality meets the requirements of paragraph (fl(1) of this section. The letter must be sent by certified mail within 10 days after the owner or operator begins use of the revenue test to meet the requirements of this sectiod. (3) If at any time during the operating life of the facility the annual tax revenues fail to meet the minimum multiple specified in paragraph (0(1), the owner or operator must notify the Regional Administrator by certified mail within 5 days of learning of failure to meet the requirement. The owner or • operator must send evidence of other financial assurance as specified in this section to the Regional Administrator by certified mail within 30 days from the time that the owner or operator learns of failure to meet the minimum multiple; otherwise the Regional Administrator may order the owner or operator to begin closure. (g) Use of a single financial mechanism for multiple facilities. An owner or operator may use a single financial mechanism, as specified in paragraphs (a) through (f) of this section, to meet the requirements of this section for more than one facility of which he is the owner or operator. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established for each facility. (h) Release of the owner or operator from the requirements of this section. Within 60 days of receiving certifications from the owner or operator-. and an independent registered professional engineer that closure has been accomplished in accordance with the closure plan (see § 265.115), the Regional Administrator must, unless he has reason to believe that closure has not been in accordance with the closure plan, send a letter to the owner or operator notifying him that he no longer has to comply with the requirements of this section for the facility in question. [ Comment: It should be noted that this letter from the Regional Administrator to the owner or operator releases him only from requirements for financial assurance for closure of the facility; it does not release him from legal responsibility for meeting the closure standards.], * * * * * ------- Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 I Proposed Rules 33269 § 265.145 FInancial assurance for post- closure monitoring and maintenance. By the effective date of these regulations, an owner or operator of each disposal facility must establish financial assurance for 30 years of post- closure care of the facility. He must choose from among the following options: (a) Post-closure trust fund. (1) The owner or operator may establisha post- closure trust fund. The trustee must be a bank or other financial institution. The beneficiary of the trust fund must be the U.S. Environmental Protection Agency. (2) The trust agreement must be executed on EPA Form 8700—19 (see • Appendix VI). The owner or operator must send the properly executed trust agreement to the Regional Administrator by certified mail within 10 days after the effective date of the agreement. (3) Replacement of a trust fund with another form or forms of financial assurance allowed in this section must be preceded by written consent of the Regional Administrator. The owner or operator must report any change of trustee to the Regional Administrator within 10 days after such a change becomes effective. (4) Payments to the trust fund must be in cash or marketable securities. The value of each security must be determined in accordance with the Internal Revenue Service method for valuing securities for estate tax purposes (26 CFR 20.2031—2). In all valuations of the trust fund for purposes of these regulations, securities must be valued by this IRS method. (5) Payments to the post-closure trust fund must be made annually over the operating life of the facility as estimated in the closure plan ( 265.112(a)) or 20 years, whichever period is shorter; this period is hereafter referred to as the “pay-in” period. The first payment must be equal to the adjusted post-closure cost estimate (see § 265.144) divided by the pay-in period in years. The first payn ent must be made by the effective date of these regulations. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The trust agreement must require the trustee to notify the Regional Administrator by certified mail within 5 days after the 30-day period if he does not receive payment within such period. Upon receiving such notification, the Regional Administrator may order the facility to begin closure unless the owner or operator has established other financial assurance as allowed in this section. (8) The owner or operator must adjust me amount of each annual payment after the first one by multiplying the amount of the previous year’s payment by the inflation factor calculated in accordance with § 265.142(c). (7) If a new post-closure cost estimate is prepared in accordance with § 285.144(b), the next annual payment must be calculated as follows: Step 1—Divide the adjusted post- closure cost estimate by the number of years in the pay-in period as of the effective date of these regulations. Step 2—Multiply the result by the number of payments made to the fund. Step 3—From the result of step 2 subtract the current value of the fund. The result is the amount which needs to be distributed over the remaining pay-in period. Step 4—Divide the result of step 3 by the remaining years in the pay-in period. Step 5—Add the result of step 4 to the result of step 1 to obtain the new payment. (Appendix I provides an example of a calculation of a new closure trust fund payment using these same steps.) (8) The owner or operator must determine the value of the trust fund each year during the operating life of the facility within 30 days prior to the date each annual payment is due to be made. If the total value of the fund has decreased since the previous year’s valuation, the next payment must be calculated using the steps in paragraph (a)(7) of this section. The owner or operator may also use the calculation in paragraph (a)(7) to determine his next payment if the value of the fund has increased. If the value of the fund exceeds the total amount of the adjusted post-closure cost estimate, the owner or operator may submit a written request to the Regional Administrator for release of the amount in excess of the adjusted post-closure cost estimate. This request must be accompanied by a written statement from the trustee confirming the value of the fund. (9) An owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the post-closure cost estimate at the time the fund is established, but the trust fund must be valued annually and its value must be maintained at no less than the value that the fund would have had if payments and valuations had been made as specified in paragraphs (a)(5)—(8) of this section. (10) If an owner or operator establishes a post-closure trust fund after the effective date of these regulations, having initially used one of the other mechanisms specified in this section, his first payment must be in the amount that the trust fund would have contained if it had been established on the effective date of these regulations in accordance with the requirements of this section. - (11) If the operating life of a facility extends beyond the maximum 20-year pay-in period, the owner or operator must determine the value of the trust fund every year after the 20th year until closure begins. Whenever the post- closure cost estimate changes during this period in accordance with § 265.144 (b) or (c), the owner or operator must compare the new estimate with the latest annual value of the fund. If the value of the fund is less than the amount of the adjusted post-closure cost estimate, the owner or operator must deposit cash or marketable securities into the fund so that its value equals the amount of the estimate. Such payment must be made within 60 days of the change in the post-closure cost estimate If the value of the fund is greater than the total amount of the adjusted post- closure estimate, the owner or operator may submit a written request to the Regional Administrator for release of funds in excess of the estimate. This request must be accompanied by a written statement from the trustee confirming the value of the fund. (12) Within 30 days after receiving a request from the owner or operator for release of excess funds as specified in paragraphs (a)(8) and (11), the Regional dministrator must direct the trustee in writing to release such excess funds to the owner or operator unless the Regional Administrator finds that the post-closure cost estimate was not prepared and adjusted in accordance with § 265.144. (13) An owner or operator may request reimbursement for post-closure expenditures by submitting itemized bills to the Regional Administrator. Within 30 days after receiving the bills for post-closure activities, the Regional Administrator must direct the trustee in writing to pay those bills which the Regional Administrator determines to be in accordance with the post-closure plan or are otherwise justified. (14) If an owner or operator substitutes another form of financial assurance specified in this section for all or part of the trust fund, he may apply to the Regional Administrator for release of funds from the trust fund. Within 30 days after receiving such a request, the Regional Administrator must direct the trustee in writing to release the excess funds to the owner or operator. (15) Reversion of excess funds after closure. (i) if, under the provisions of § 265.117(d), the Regional Administrator follows termination or reduction of some or all of the requirements of a post- ------- 33270 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Proposed Rules closure plan before the end of the 30- year period, the excess portion of the trust- fund must be released by the Regional Administrator: (ii) At the end of the post-closure care period or the end of 30 years of post- closure care, whichever comes earlier, the Regional Administrator must direct the trustee to release any funds remaining in the trust to the owner or operator. (16) The terms of the trust must require the trustee to make disbursements as specified in this paragraph. The trustee will disburse monies from the trust fund to parties designated by the Regional Administrator upon written notification from the Regional Administrator that: (i) The value of the trust fund during the operating life of the facility exceeds the amount of the adjusted post-closure cost estimate; or (iii) The itemized bills are in accordance with the approved post- closure plan or are otherwise justified; or (iii) The owner or operator has — established other financial assurance for post-closure care aé allowed in this section for part or all of the trust fund; or (iv) There has been a legal determination, a copy of which is attached to this notification, of a violation of the post-clpsure requirements of these regulations rendered in a proceeding brought pursuant to Section 3008 of RCRA; or (v) The post-closure care period has ended or the requirements for post- closure care have been reduced. (b) Surety bond guaranteeing-a lump- sum payment for post-c/os ure care. (1) An owner or operator may meet the requirements of this section by obtaining a surety bond guaranteeing a lump-sum payment into a post-closure trust fund. A surety company issuing a - bond in accordance with these regulations must, at a minimum, be authorized to do business in the United States and be certified by the U.S. Treasury Department, in Circular 570, to write bonds in the penal sum of the bond to be issued. The obligee of the bond must be the U.S. Environmental Protection Agency. (2) The bond must be executed on EPA Form 8700-20 (see Appendb VU). The terms of the bond must provide that the surety will send the properly executed bond to the Regional Administrator by certified mail within 10 days after the effective date of the bond. (3) Such surety bond must guarantee that the owner or operator will, within 30 days after the beginning of closure of the facility, pay a lump sum equal to the final post-closure cost estimate prepared in accordance with § 285.144 into a trust fund that complies with the provisions of paragraph (a) of this section. The surety bond must be written so that whenever closure activities begin or are ordered to begin by the Regional Administrator during the term of the bond, the bond coverage includes completion of the payment obligation guaranteed by the bond. (4) If the post-closure cost estimate increases beyond the amount of the penal sum of the bond, the owner or operator must, within 30 days of such increase in the estimate, cause the penal sum of the bond to be increased or obtain other financial assurance, as specified in this section, to cover the increase. If the post-closure cost estimate decreases, the penal sum of the bond may be reduced to the amount of the adjusted post-closure cost estimate. At the request of the owner or operator, the Regional Administrator must send written notice to the surety of any reductiq in the required penal sum within 30 days after receiving the request. (5) The terms of the surety bond must provide that the surety.company may cancel the bond by sending notice to the owner or operator and to the Regional Administrator by certified mail. Cancellation must not be effective for at least 90 days after the Regional Administrator receives the notice. The owner or operator, within 5 days of receiving a notice of cancellation from the surety, must notify the Regional Administrator by certified mail that he has received such a notice. The owner or operator may cancel the bond by providing 30 days’ notice to the surety company if the Regional Administrator has given prior written consent based on his having received evidence of other ‘ financial assurance as specified in this section. - (6) Thirty days after receiving a notice of cancellation from the surety, the Regional Administrator may order the owner or operator to begin closure unl?ss the Regional Administrator has received evidence of other financial assurance as specified in this section. (7) A surety becomes liable on a bond obligation only when the owner or operator fails to perform as guaranteed by the bond and fails to provide other financial assurance of post-closure care as specified in this section. (8) The Regional Administrator must notify the surety in writing within 60 days after the beginning of closure that the owner or operator has: (i) Established financial assurance for post-closure care that satisfies the requirements of this section; or (ii) Failed to fulfill the payment obligation guaranteed by the bond. The Regional Administrator will then direct the surety in the placement of funds in a trust fund meeting the specifications of paragraph (a) of this section. - (c) Standby letter of credit assuring a lump-sum payment at the time of closure for post-closure care. (1) An owner or operator may meet the requirements of this section by obtaining an irrevocable standby letter of credit assuring a lump-sum payment at the time of closure to provide for post- closure care. The letter must be written in favor of the Regional Administrator of the U.S. Environmental Protection Agency and must be for a period of at least one year. The letter of credit may be issued by any bank which is a member of the Federal Reserve System. (2) The letter of credit must be executed on EPA Form 8700—17 (seeS Appendix IV). The terms of the-letter must provide that the issuing bank will send the properly executed letter of credit to the Regional Administrator by certified mail within 10 days after the effective date of the letter. (3) The credit must be issued for an amount equal to the adjusted post- closure cost estimate (see § 265.144). (4) If the post-closure cost estimate increases beyond the amount of the credit, the owner or operator must, within 30 days of such increase in the estimate, cause the credit to be increased or obtain other financial assurance, as specified in this section, to cover the increase. If the post-closure cost estimate decreases, the credit may be reduced to the amount of the adjusted post-closure cost estimate. At the request of the owner or operator, the Regional Administrator must send written notice to the issuing bank of any reduction in the required credit within 30 days after receiving the request. (5) The letter of credit must contain a clause providing for automatic annual extensions of the credit subject to 60 days’ written notice by the issuing bank to both the owner or operator and the Regional Administrator, by certified mail, of the bank’s intention not to renew the credit. The owner or operator,’ within 5 days of receiving a notice of - nonrenewal from the bank, must notify the Regional Administrator by certified mail that he has received such a notice. The owner or operator may cancel the letter of credit by providing 30 days’ notice to the issuing bank if the Regional Administrator has given prior written consent based on his having received ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Proposed Rules 33271 - vidence of other financial assurance as pecified in this section. (6) Thirty days after receiving a notice of nonrenewal from the bank, the Regional Administrator may draw upon- the credit up to the full amount of the credit unless he has evidence that the owner or operator has established other financial assurance as specified in this section. The terms of the letter must provide that if the Regional Administratordraws upon the letter of credit following a notice of nonrenewal the issuing bank will deposit the amount of the draft immediately and directly into an interest-bearing escrow account. Disbur ements from the escrow account must be made in the same manner as specified for trust funds in paragraphs (a)(12)—(16) of this section. (7) If the post-closure cost estimate increases beyond the amount of the funds in the escrow account, the owner or operator must, within 30 days of such increase, add to the account or establish other financial assurance as specified in this section to cover the increase. If the owner or operator fails to do so, the Regional Administrator may order him to begin closure. (8) The Regional Administrator may otherwise draw on the credit only if the -owner or operator fails to establish. within 30 days after the beginning of closure, other financial assurance for post-closure care as specified in this section. The issuing bank must, under the terms of the letter, deposit the amount of such a draft immediately and directly into an mterest-bearing escrow account. Disbursements from the escrow account must be made in the same manner as specified for trust funds in paragraphs (a)(13)—(16) of this section. (d) Surety bond guaranteeing performance of post-closure duties. (1) An owner or operator may meet the requirements of this section by obtaining a surety bond guaranteeing performance of post-closure care. A surety company issuing a bond in accordance with these regulations must, at a minimum, be authorized to do business in the United States and be certified by the U.S. Treasury - Department, in Circular 570, to write bonds in the penal sum of the bond to be issued. The obligee of the bond must be the U.S. Environmental Protection Agency. (2) The bond must be executed on EPA Form 8700-21 (see Appendix VIII). The terms of the bond must provide that the surety will send the properly executed bond to the Regional Administrator by certified mail within 10 days after the effective date of the bond. (3) The surety bond must guarentee that the owner or operator will satisfy the post-closure care requirements of these regulations for 30 years or for the post-closure care period, whichever period is shorter. The surety bond must be written in the amount of the adjusted post-closure cost estimate (see § 265.144). (4) If the post-closure cost estimate increases beyond the amount of the penal sum of the bond, the own r or operator must, within 30 days of such increase in the estimate, cause the penal sum of the bond to be increased or obtain other financial assurance, as specified in this section. to cover the increase. If the post-closure cost estimate decreases, the penal sum of the bond may be reduced to the amount of the adjusted post-closure cost estimate. At the request of the owner or operator, the Regional Administrator must send written notice to the surety of any reduction in the required penal sum within 30 days after receiving the request. (5) Under the terms of the bond, the surety company may cancel the bond during the operating life of the facility by sending notice to the Regional Administrator and to the owner or operator by certified mail. Cancellation must not be effective for at least 90 days after the Regional Administrator receives the notice. The owner or operator, within 5 days of receiving notice of cancellation from the surety, must notify the Regional Administrator by certified mail that he has received such a notice. The owner or operator may cancel the bond at any time by providing 30 days’ notice to the surety company if the Regional Administrator has given prior written cofisent based on his having received evidence of other financial assurance as specified in this section. (6) Thirty days after receiving a cancellation notice from the surety, the Regional Administrator may order the owner or operator to begin closure unless the Regional Administrator has received evidence of other financial assurance as specified in this section. (7) The surety bond must be written so that whenever closure activities begin or the Regional Administrator orders them to begin during the term of the bond, the bond coverage extends to the end of 30 years of post-closure care or to the end of the post-closure care period, whichever is shorter. The owner or operator, as the principal of the bond. must notify the surety of the date on which post-closure care begins in accordance with the post-closure plan for the facility. (8) As post-closure obligations are completed, the penal sum of the bond may be reduced commensurately, so that the balance of the penal sum of the bond will equal the remaining cost obligations of the owner or operator for post-closure care. At the request of the owner or operator, the Regional Administrator must send written notice to the surety of any reduction in the required penal sum within 30 days after receiving the request. (9) A surety becomes liable on a bond obligation only when a proceeding brought pursuant to the provisions of - Section 3008 of RCRA has determined that the owner or operator has violated the post-closure requirements of these regulations. Following such a determination the surety must: (i) Complete post-closure care of the facility in accordance with the post- closure plan; or (ii) Pay the amount of the penal sum of the bond into a trust fund meeting the specifications of paragraph (a) of this section as directed by the Regional Administrator. (e) Standby letter of credit assuring funds during the post-closure period. (1) An owner or operator may meet the requirements of this section by obtaining an irrevocable standby letter of credit assuring availability of funds during the post-closure period. The letter must be written in favor of the Regional Administrator of the U.S. Environmental Protection Agency and must be for a period of at least one year. The letter of credit may be issued by any bank which is a member of the Federal Reserve System. (2) The letter of credit must be executed on EPA Form 8700—17 (see Appendix IV). The terms of the letter must provide that the issuing bank will send the properly executed letter of credit to the Regional Administrator by certified mail within 10 days after the effective date of the letter. (3) The credit must be issued for the amount of the adjusted post-closure cost estimate (see § 265.144). (4) If the pbst-closure cost estimate increases beyond the amount of the credit, the owner or operator must, within 30 days of such increase in the estimate, cause the amount of the credit to be increased or obtain other financial assurance, as specified in this section, to cover the increase. If the post-closure cost estimate decreases, the amount of the credit may be reduced to the amount of the adjusted post-closure cost estimate. At the request of the owner or operator, the Regional Administrator ‘ must send written notice to the surety of any reduction in the required credit - ------- 33272 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Proposed Rules within 30 days after receiving the request. (5) As post-closure obligations are completed, the credit guarantee may be reduced commensurately, so that the remaining credit will equal the remaining cost obligations of the owner or operator for post-closure care. At the request of the owner or operator, the Regional Administrator must send written notice to the bank of any reduction in the required credit guarantee within 30 days after receiving the request. (6) The letter of credit must contain a clause providing for automatic annual extensions of the credit subject to 80 days’ written notice by the issuing bank to both the owner or operator and the Regional Administrator, by certified mail, of the bank’s intention not to renew the credit. The owner or operator, within 5 days of receiving a notice of nonrenewal frqm the bank, must notify the Regional Administrator by certified mail that he has received such a notice. The owner or operator may cancel the letter of credit by providing 30 days’ notice to the issuing bank if the Regional Administrator has given prior written consent based on his having received evidence of other financial assurance as specified in this section. (7) Thirty days after receiving a notice of nonrenewal from the bank, the Regional Administrator may draw upon the credit up to the full amount of the credit unless he has received evidence that the owner or operator has established other financial assurance as specified in this section. The terms of the letter must provide that if the Regional Administrator draws upon the letter of credit following a noticeof nonrenewal, the issuing bank will deposit the amount of the draft immediately and directly into an interest-bearing escrow account. - Disbursements from the escrow account must be niade in the same manner as specified for trust funds in paragraphs (a)(12H16) of this section. (8) If the escrow account specified in paragraph (e)(7) of this section is established during operating life, and if the post-closure cost estimate increases beyond the amount of the funds in the escrow account, the owner or operator must, within 30 days of such increase, add to the account or establish other financial assurance as specified in this section to cover the increase. If the owner or operator fails to do so, the Regional Administrator may order him to begin closure. (9) The Regional Administrator may otherwise draw upon the letter of credit only upon a legal determination of a violation of the post-closure requirements of these regulations rendered in a proceeding brought pursuant to the provisions of Section 3008 of RCRA. The terms of the letter must provide that if the Regional Administrator draws upon the letter of credit following such a determination, the issuing bank will immediately and directly deposit the amount of the draft into an interest-bearing escrow account. The letter of credit must require the escrow depositary to disburse monies from the escrow account to persons designated by the Regional Administrator to carry out post-closure care of the facility. (f) Use of more than one type of financial instrument. An owner or operator may meet the requirements of this section by establishing more than one fype of financial instrument. These instruments are limited to a trust fund, surety bonds, or letters of credit as specified in paragraphs (a) through (e) of this section (e.g., a letter of credit may assure half the post-closure cost and a trust fund the remaining half). (g) Financial test and guaranty for post-closure care. (1) An owner or operator may meet the requirements of this section by having all of the following financial characteristics: (i) At least $10 million in net worth in the United States. (ii) A total-liabilities-to-net-worth ratio of not more than three. (iii) Net working capital in the United States of at least twice the adjusted post-closure cost estimate (see - § 265.144). (2) These characteristics must be demonstrated in a financial statement which has been audited by an independent certified public accountant and which contains unconsolidated balance sheets dated no more than 140 days prior to the current date. The owner or operator who intends to use a financial test to meet both closure and post-closure requirements for a single facility or to meet closure and/or post- closure requirements for more than one facility must indicate in the statement which requirements are to be met for which facilities through the financial test and must demonstrate that his net working capital in the United States is at least twice the sum of all the adjusted estimates of closure and post-closure costs to be covered by the financial test. The owner or operator must have the financial statement available at the facility and must provide data from the statement if requested as part of annual reports to the Regional Administrator under § 265.75. (3) If the owner or operator fails to meet the requirements of paragraph (g)(1) of this section at any time before the end of the post-closure care period or 30 years of post-closure care, whichever comes earlier, he must notify the Regional Administrator by certified mail within 5 days of learning of failure to meet the requirements. Evidence of other financial assurance as specified in this section must be sent to the Regional Administrator by certified mail within 30 days from the time that the owner or operator learns of failure to meet the requirements of paragraph (g)(1). If he does not establish other financial assurance, and this lapse in financial assurance occurs during operating life, the Regional Administrator may order the owner or operator to begin closure. (4) An owner or operator may meet the requirements of this section by obtaining another entity’s written guaranty providing financial assurance, in an amount equal to the adjusted post- closure cost estimate, for compliance by the owner or operator with the post- closure requirements of these regulations. The guarantor must meet the requirements for owners or operators in paragraphs (g) (1) and (2) of this section. (5) The guaranty must be executed on EPA Form 8700—18 (see Appendix V). The owner or operator must send the properly executed guaranty to the Regional Administrator by certified mail within 10 days after the effective date of the guaranty. (6) Under the terms of the guaranty, the guarantor must notify the Regional Administrator and the owner or operator by certified mail if he fails to meet the requirements of paragraph (g)(1) of this section at any time before the end of the post-closure period or the end of 30 years of post-closure care, whichever comes earlier. The guarantor must send such notice within 5 days after learning of failure to meet the requirements. (7) The owner or operator must, within 30 days of such notification, establish other financial assurance as specified in this section and provide evidence of such assurance to the Regional Administrator. If he fails to do so, and such failure occurs during operating life, the Regional Administrator may order him to begin closure. (8) The guarantor may cancel the guaranty during the operating life of the facility with 90 days’ notice to the Regional Administrator and the owner or operator by certified mail, except that the guaranty must remain in effect if clgsure begins or is ordered to begin by the Regional Administrator before the end of the 90 days. Evidence of other financial assurance as specified in this ------- Federal Register I Vol. 45, No. 98 / Monday, May 19. 1980 I Proposed Rules 33273 ection must be provided to the Regional Ldministrator within 30 days after a , otice of cancellation is received by the Regional Administrator; otherwise, he may order the owner or operator to - begin closure. (9) The guaranty may be cancelled at any time following the mutual ‘written consent of the owner or operator, the Regional Administrator, and the guarantor. (10) Under the guaranty, in the event of a legal determination of a violation of the post-closure requirements rendered in a proceeding brought pursuant to Section 3008 of RCRA, the guarantor must pay parties designated by the Regional Administrator to complete post-closure care for 30 years or the post-closure care period, whichever period is shorter. (h) Revenue test for municipalities. (1) If the owner or operator is a municipality (as defined by RCRA), it may meet the requirements of this section by having annual revenues from property, sales, and/or income taxes equal to 10 times the adjusted post- closure cost estimate (see § 265.144). To be acceptable, these tax revenues must be legally available to cover post- closure responsibilities, i.e., they must pot be dedicated to other purposes or itherwise precluded from use for post- ,dosure care. (2) The owner or operator must send a letter signed by the chief financial officer of the municipality to the Regional Administrator stating that the municipality meets the requirements of paragraph (h)(1) of’this section. The letter must be sent by certified mail within 10 days after the owner or operator begins use of the revenue test to meet the requirements of this section. (3) If the annual tax revenues fail to meet the minimum multiple specified in paragraph (h)(1) at any time before the end of the post-closure care period or 30 years of post-closure care, whichever comes earlier, the owner or operator must notify the Regional Administrator by certified mail within 5 days of learning of failure to meet the requirements. The owner or operator must send evidence of other financial assurance as specified in this section to the Regional Adufinlstrator by certified mail within 30 days from the time that the owner or operator learns of failure to meet the minimum multiple. If he does not establish other financial assurance, and this lapse in financial assurance occurs during operating life, the Regional Administrator may order the wner or operator to begin closure. (i) Use of a single financial mechanism for multiple facilities. An owner or operator may use a single financial mechanism, as specified in paragraphs (a) through (h) of this section, to meet the requirements of this section for more than one facility of which he is the owner or operator. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established for each facility. § 265.146 Use of a single mechanism for financial assurance of both closure and post-closure care. An owner or operator may use a single mechanism to provide financial assurance for both closure and post- closure care of one or more facffities of which he is the owner or operator. Such a mechanism must be one of the following: (a) A trust fund that meets the specifications of both § 265.143(a) and § 285.145(a). (b) A surety bond that meets the specifications of both § 265.143(b) and § 265.145 (b) or (d). (c) A letter of credit that meets the specifications of both § 265.143(c) and § 265.145 (c) or (e). (d) A guaranty that meets the specifications of both § 265.143(e) and § 265.145(g). (e) The financial test as specified under both § 265.143(e) and § 265.145(g). (f) The revenue test as specified under both § 265.143(1) and § 265.145{h). The amount of funds available under the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established for financial assurance of closure and of post-closure care of each facility. § 265.147 LIability requirement. An owner or operator of a hazardous waste treatment, storage, or disposal facility or group of facilities must have and maintain liability insurance from an insurer licensed or eligible to insure facilities in the jurisdiction where any one facility is located, for sudden and accidental occurrences in the amount of $1 million per occurrence with an annual aggregate per firm of $2 million, exclusive of legal defense costs, for claims arising out of injury to persons àr property from the operations of each such hazardous waste facility or group of facilities. The deductible written into the insurance policy must not exceed 5 percent of the per incident limit of liability of the policy. § 265.148 (Reserved] § 265.149 ApplicabIlity of State financial requirements. (a) A facility may be located in a State in which existing hazardous waste regulations include liability requirements and requirements for financial assurance for closure and post- closure care. If so, the owner or operator may use existing State-authorized financial mechanisms in meeting the requirements of § § 265.143, 265.145. and 265.147 provided that: (1) The State-authorized mechanism is a mechanism allowed in § § 265.143, 265.145, or 285.147; or (2) The State mechanism provides substantially equivalent assurance (e.g., escrow account) or liability coverage as the mechanisms of § § 285.143, 285.145, and 265.147. The owner or operator must obtain an additional financial assurance mechanism for closure or for post- closure care, chosen from § 265.143 for closure and from § 265.145 for post- closure care, or additional liability insurance as specified in § 265.147, if the amount of funds available from the State mechanisms is less than that required by this Subpart. The total amount of funds available through the combination of the State and Federal mechanisms must equal at least the athount required in § § 265.143, 285.145, and 265.147. (b) if a State assumes legal responsibility for an owner’s or operator’s compliance with the closure or post-closure requirements or liability requirements of these regulations or assures that funds will be available from State sources to cover such requirements, the owner or operator will be in compliance with such requirements of this Subpart to the extent the State’s assurances are substantially equivalent to meeting the requirements of this Subpart. The owner or operator must send a letter to the Regional Administrator describing the nature of the State’s responsibility regarding his facility’s closure, post- closure care, and/oJ..his liability, and citing the State regulation providing for such assumption of responsibility. The letter must be sent by certified mail within 10 days after the effective date of these EPA regulations or the date on which State assumption of responsibility for the facility becomes effective. A copy of the letter must be sent to the responsible State agency(ies). Appendix Ito Part 265 The following is an example of the calculation m § 265.143(a)(7) using these assumptions: The closure cost estimate at the time the closure trust fund was establiihed ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Proposed Rules 33274 was $70,000. Five annual payments have been made. The current value of the fund is $25,000 (including earnings of the fund and yearly increases in the payments as a result of the adjustment for inflation required by paragraph (a)(6)). The total pay-in period is 20 years. Now the owner or operator has changed the estimate to $120000 because of a change in the closure plan and therefore needs to recalculate his next payment. Step i—The adjusted estimate. $120,000. divided by the pay-in pçriod, 20 years, is $6,000. Step 2—$6,000 multiplied by the number of payments made, 5, is $30,000. Step 3—$30,000 minus the current value of the fund, $25,000, is $5000. Step 4—$5,000 divided by the remaining years in the pay-in period, 15, is $333. Step 5—Adding $333 to the $8,000 from Step 1 gives the new payment. $6,333. Appendix II to Part 285 EPA Form 8700-15 U.S. Environmental Protection Agency Closure Trust Agreement As provided for in 40 CFR 265.143(a) under authority of the Resource Conservation and Recovery Act of 1976, as amended (42 USC 6901) ‘EPA Facility Identification No. Adjusted closure cost estimate, in accordance with 40 CFR 285 142: $ Onthis—dayof , 19—,I (owner or operator) , am placing property described below in trust for the U.S. Environmental Protection Agency (EPA) to be held by (name of financial institution) as trustee under the terms set forth below. The trust shall be nomed the “Closure Trust” for the following hazardous waste management facilities’ - (name and address of facility, or write in “see attached Schedule A”’ if more than one facility). 1. Purpose Clause Pursuant to the financial assurance requirements of 40 CFR 265.143, the purpose of this trust is to pay for the costs of closing the above-named facthty(ies) in accordance with the closure requirements of 40 CFR Part 265. 2. Property Clause It is agreed to by (owner or operator) as grantor of this trust that the trust will be funded in accordance with the requirements of § 265 143(a) of the regulations. The initial transfer of property to the trust shall consist of the property listed in Schedule B. attached hereto 2 3. Period Clause This trust shall continue until terminated upon the happening of one of the following conchtions: (a) Wiien (owner or operator) presents to the trustee the original or an ‘If closure of more than one facility is covered by the trust, list on a separate sheet the EPA Facility Identification Numbers, names, and addresses, and adjusted closure cost estimates for all the faô,litiea, clearly label this list “Schedule A,” and attach it to this agreement Show total of Coat estimates 2 List property included in initial transfer on separate sheet, clearly label this list ‘Schedule B,” and attach it to this agreement. authenticated copy of the letter(s) signed by the EPA Regional Administrator(s) stating that he is no longer required to provide financial assurance for closure of the above- named facility(ies). In such an event, all remaining trust property, less final trust administration expenses, shall be delivered to (owner or operator) (b) By the mutual written consent of the grantor of this trust, the EPA Regional Administrator(s) of the Region(s) in which the factlity(ies) is (are) located, the trustee of this trust at any time. 4. Operation of the Trust, Duties of the Trustee (name of financial institution acting as trustee) acknowledges below its receipt of the trust property listed in Schedule B and its acceptance of the obligations and duties of the trustee as defined below. (a) The trustee agrees to notify the EPA Regional Administrator(s) by certified mail within five days following the expiration of the thirty-day period after the anniversary of the establishment of the trust, as specified i § 285.143(a)(5). (b) The trustee may resign from its obligations as trustee by submitting a written notice of its intent to the grantor and to the EPA Regional Administrator(s). (c) The trustee is to make payments out of the trust only under the conditions specified in 40 CFR 265.143(a)(15). (date) - (signature of grantor) (address of grantor) (autherized signature for trustee) (name of trustee) (address of trustee) (signature of notary) Mail original to the EPA Regional Administrator within 10 days of the effective date by certified mail. If more than one facility is covered and the facilities are in more than one Region, send original to Regional Administrator of Region in which the largest number of facilities are located and copies to the other Regional Administrator(s), by certified mail. Appendix 111 to Part 265 EPA Form 8700—16 U.S. Environmental Protection Agency Closure Performance Bond As provided for in 40 CFR 265.143(b) under authority of the Resource Conservation and Recovery Act of 1976, as amended (42 USC 6901) - ‘EPA Facility Identification No. Adjusted closure cost estimate, in accordance with 40 CFR 265.142’ $ Know all men by these presents, that we, (owner of operator) of (address) as Principal and (name of surety company) ,a company created and existing under the laws of (State) as Surety, are held and firmly bound unto the U.S. Environmental Protection If closure of more than one facility is covered by the bond, list on a separate sheet the EPA Facility Identification Numbers, names, addresses, and adjusted closure cost estimates for all thi facilities. clearly label this list “Schedule A,’ and attach it to this bond. Show total of cost estimates Agency (EPA) in the penal sum of U.S. dollars ( $ - ) for payment of which, well and truly to be made, we bind ourselve our heirs, executors, administrators, successors and assigns, jointly and severally, and firmly by these presents. Whereas, the Principal intends to obtain interim status, as defined by Section 3005 of the Resource Conservation and Recovery Act of 1976, as amended, for one or more hazardous waste management facilities, and such status depends upon compliance with the standards of 40 CFR Part 265, which includes the requirement, specified in § 285.143, that the owner or operator of each such facility must establish financial assurance that the applicable closure requirements of Part 265 will be met, and Whereas, this bond is written to assure compliance with the closure requirements of Part 265 for the following hazardous waste management facilities: (name and address of facility or write in “see attached Schedule A”if more than one facility) , and shall inure to the benefit of EPA in accordance with Part 265, Now, therefore, the condition of this obligation is such that, if the Principal shall faithfully fulfill the closure requirements of 40 CFR Part 265 at each of the facilities guaranteed by this bond, pursuant to all applicable statutes, rules and regulations, and shall close each such facility in accordance with the closure plan required by the said Part 285, then, and only then, the above obligation shall be void; otherwise to be and to remain in full force and effect. The Surety shall become liable on this bond obligation only upon legal determination rendered in a proceeding brought pursuant to Section 3008 of the Resource Conservation and Recovery Act, as amended, that the Principal has violated the closure requirements of 40 CFR Part 285. Following such a determination, the Surety must either complete closure of the facility in accordance with the approved closure plan for the facility or pay the amount of the penal sum into an escrow account as directed by an EPA Regional Administrator. The liability of the Surety shall not be - discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the Surety’s obligation hereunder exceed the amount of said penal - sum. The insolvency or bankruptcy of the Principal shall not constitute a defense to the Surety With regard to claims of liability on the bond obligations, and in the event of said insolvency or bankruptcy, the Surety must pay any unsatisfied final judgments obtained on such claims. The Surety agrees to furnish written notice forthwith to the Regional Administrator(s) of the EPA Region(s) in which the facility(tes) is (are) located of all suits filed, judgments rendered, and payments made by the Surety under this bond. This bond is effective the day of 19—, at the address of the Principal as stated herein and shall continue in force until terminated as hereinafter provided. The Surety may terminate this bond by written notice sent by certified mail ------- Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Proposed Rules 33275 “ithe Principal and to the EPA Regional dniinistrator(s) of the Region(s) in which the r.dcility(ies) is (are) located, such termination to become effective ninety (90) days after actual receipt of said notice by EPA; provided, however, no such termination shall become effective with respect to any facility closure guaranteed by this bond if closure of said facihty has begun or has been ordered to begin by an EPA Regional Administrator. The Principal may terminate this bond by sending written notice to the Surety, such termination to become effective thirty (30) days after receipt of such notice by the Surety; provided, however, that such notice is accompanied by written authorization for termination of the bond by the Regional Administrator(s) of the EPA Region(s) in which the bonded facility(ies) is (are) located. If more than one surety company joins in executing this bond, such action shall constitute joint and several liability on the ‘part of the sureties. In witness whereof, the Principal and Surety have executed this instrument on the day of , 19—. (Seal) (Surety) (Seal) (Principal) (Seal) (attorney-in-fact) (address of Principal) Surety Bond No. Mail original to the EPA Regional Administrator within 10 days of the effective date by certified mail. If more than one facility is covered and the facilities are in more than one Region, send original to Regional Administrator of Region in which the largest number of facilities are located and copies to the other Regional Administrator(s), by certified mail. Appendix IV to Part 265 EPA Form 8700-17 U.S. Environmental Protection Agency Standby Letter of Credit As provided for in 40 CFR 205.143(c), 285.145(c), and 265.145(e) under authority of the Resource Conservation and Recovery Act of 1976, as amended (42 USC 6901) ‘EPA Facility Identification No. Adjusted cost estimate(s) for the facility, for closure and/or post-closure care to be covered by this Letter of Credit, in accordance with 40 CFR 265.142 and 265.144: $ (closure) $ (post- closure) Administrator(s) for Region(s) U.S. Environmental Protection Agency Address(es) (Address to EPA Regional Administrator(s) of Region(s) in which the facility(ies) is (are) located) Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No. more than one facility is covered by this Letter of Credit, list on a separate sheet the EPA Facility Identification Numbers, names, addresses, and adjusted closure and/or post-closure cost estimates for all the facilities, clearly label this list “Schedule A,” and attach it to this Letter of Credit. Show total(s) of cost estimates. in favor of the Regional Administrator(s) for Region(s) — of the U.S. Environmental Protection Agency for the account of (owner or operator) up - to the aggregate amount of U.S. dollars ($ —) available by your drafts as specified below. This Letter of Credit is effective as of today’s date and will expire on the - day of 19—, subject to the operation of the renewal clause below. The purpose of this Letter of Credit is to provide financial assurance to the U.S. Environmental Protection Agency of compliance with the (“closure,” “post- closure,” or “closure and post-closure”) requirements of 40 CFR Part 205 as they apply to (name and address of facility, or write in “see attached Schedule A” ‘if more than one facility) Such assurance is required for closure by 40 CFR 265.143 and for post-closure care by 40 CFR 265.145. ThIs Letter of Credit provides assurance for (check those that apply): —Closure in accordance with the letter-of- credit specifications of 40 CFR 265.143(c) —A lump-sum payment at closure for the purpose of assuring post-closure care in accordance with letter-of-credit specifications of 40 CFR 265.145(c) —Funds for the performance of post- - closure care in accordance with letter-of- credit specifications of 40 CFR 265.145(e) All drafts on this Letter of Credit submitted in writing and accompanied by your signature will be promptly paid and deposited in an interest-bearing escrow account in this Bank. If a draft on the escrow account is accompanied by a copy of an order from a Federal Administrative Lew Judge or a Federal District Court Judge setting forth a determination of a violation of the above-mentioned closure and/or post-closure requirements, we will pay the party or parties designated by the court or the EPA Regional Administrator(s). Alternatively, payments may be made out of any amount in escrow following a draft upon this Letter of Credit by the mutual written consent of (owner or operator) and the EPA Regional Administrator(s), pursuant to 40 CFR 205.143(c)(8), 285.145(c)(6) and (8). or 285.145(e)(7), as applicable. It is.a condition of this Letter of Credit that it will be automatically extended for one-year periods from the expiration date set forth above, unless sixty (60) days before that date we notify you by certified mail of our intent not to renew the credit. In that case, for the remainder of the period of the Letter of Credit, you may draw upon the credit up to the aggregate amount of the credit remaining, such draft to be deposited in escrow as described above. This Letter of Credit may be terminated by (owner or operator) by sending written notice to this Bank, such termination to become effective thirty (30) days after receipt of such notice by this Banlq provided, however, that such notice is accompanied by your written authorization for termination of the Letter of Credit. This Letter of Credit is subject to Article Five of the Uniform Commercial Code and the “Uniform Customs and Practices for Documentary Credits” (1974 Revision) described in International Chamber of Commerce Brochure No.290. - All communications concerning this Letter of Credit are to be addressed to: (name and address of responsible officer of the issuing bank) (date) (authorized signature) (print or type name of person signing) (title of person signing) (name of bank) Mail to the EPA Regional Administrator(s) within 10 days of the effective date by certified mail. Appendix V to Part 265 EPA Form 8700-18 U.S. Environmental Protection Agency Guaranty As provided for in 40 CFR 265.143(e) and 205.145(g), under authority of the Resource Conservation and Recovery Act of 1976, as amended (42 USC 6901) ‘EPA Facility Identification No. — Adjusted cost estimates(s) for the facility, for closure and/or post-closure care to be covered by this guaranty, in accordance with 40 CuR 265.142 and 265.144; $ (closure) $ (post-closure) Guaranty made this day of 19—, by (name of guaranteeing entity) , a business entity organized under the laws of the State of with its principal office at ,herein referred to as guarantor, to the U.S. Environmental Protection Agency (EPA) as obligee on behalf of (owner or operator) of (business address) Recitals 1. Guarantor meets or exceeds the financial test requirements of 40 CFR 205.143(e) and/or 285.145(g). Guarantor agrees to notify the EPA Regional Administrator(s) for the Region(s) in which the facility(iea) listed below is (are) located and (owner or operator) within five days after the guarantor learns of Its failure to meet any of the test requirements at any time during the life of this guaranty. 2. (Owner or operator) operates or owns a hazardous waste facility at (address of facility, or write in “see attached Schedule A” If more than one facility is covered) Statement of Guaranty For value received from (owner or operator) ,the guarantor guarantees to the U.S. Environmental Protection Agency (EPA) that in the event that (owner or operator) ,fails to comply with the (“closure,” “post-closure,” or “closure and post-closure”) requirements of 40 CFR part 265 applicable to (name and address of facility or write in “see attached Schedule A”) ,the ‘If more than one facility is covered by this guaranty, list on a separate sheet the EPA Facility Identification Numbers, names, addresses, and the - adjusted closure and/or post-closure estimates for all the facilities, clearly label this list “Schedule A,” and attach it to this guaranty. Show total(s) of cost estimates. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Proposed Rules 33276 guarantor agrees to pay the persons(s) designated by EPA or to pay EPA itself. following a legal determination of a violation of the regulations, an amount sufficient to bring the above-mentioned facihty(ies) into compliance with the applicable regulations, but not to exceed the adjusted cost estimate(s) as prepared in accordance with 40 CFR 265.142 and 265 144. This guaranty is good for so long as (owner or operator) must comply with the applicable financial assurance requirements of 40 CFR 265.143 and 285 145 for the above- - named facility(ies). The guarantor may terminate this guaranty by sending notice by certified mail to the EPA Administrator(s) for the Region(s) in wInch the facility(ies) is (are) located and to (owner or operator) , such termination to become effective ninety (90) days after actual receipt of the notice by EPA; provided, however, that no such termination shall become effective if closure begins or is ordered to begin by an EPA Regional Administrator before the end of the 90 days. Furthermore, if compliance with post-closure requirements is guaranteed, no-such termination may become effective if closure has taken place. - This guaranty may be terminated at any time subject to the mutual, prior written consqnt of the guarantor, the EPA Regional Administrator(s) of the Region(s) in which the facility(ies) is (are) located, and (owner or operator) (effective date) (name of guarantor) (authorized signature for guarantor) (print or type name of person signing) (title of person signing) (signature of witness or notary) Mail original to the EPA Regional Administrator within 10 days of the effective date by certified mail. If more than one facility is covered and the facilities are in more than one Region, send original to Regional Administrator of Region in which the largest number of facilities are located and copies to the other Regional Administrator(s), by certified mail. Appendix Vito Part 265 EPA Form 8700-19 U.S. Environmental Protection Agency Post-Closure Trust Agreement As provided for in 40 CFR 265 145(a), under authority of the Resource Conservation and Recovery Act of 1976, as amended (42 USC 6901) EPA Facility Identification No. Adjusted post-closure cost estimate, in ac. cordance with 40 CFR 265 144. $ On this—day of ,19—,I (owner or operator) , am placing property described below in trust for the U S. Environmental Protection Agency (EPA) to be held by (name of financial institution) ‘If post-closure care of more than one faciliiy is covered by the trust, list on a separate sheet the EPA Facility Identification Numbers, names, and addresses, and adtusted post-closure cost estimates for the facilities, clearly label this list “Schedule A,” and attach it to this agreement. Show total of cost estimates as trustee under the terms set forth below. The trust shall be named the “Post-Closure Trust” for the following hazardous waste management faciluty(ies): (name and address of facility, or write in “see attached Schedule A” ‘if more than one facility). 1. Purpose Clause Pursuant to the financial assurance requirements of 40 CFR 285.145, the purpose of this trust is to pay for the costs of post- closure care of the above-named facility(ies) in accordance with the post-closure requirements of 40 CFR Part 265. 2, Property Clause It is agreed to by (owner or operator) as grantor of tlus trust that the trust will be funded in accordance with the requirements of § 265,145(a) of the regulations. The initial transfer of property to the trust shall consist of the property listed in Schedule B, attached hereto, 2 - 3. Period Clause This trust shall continue until terminated upon the happening of one of the following conditions: (a) Upon written notice(s) from the EPA Regional Administrator(s) that (owner or operator) is no longer required to maintain financial asswance for post-closure care of the above-named facihty(ies). In such an event, all remaining trust property, less final trust administration expenses, shall be delivered to (owner or operator) (b) By the mutual written consent of the grantor of this trust, the EPA Regional Administrator(s) of the Region(s) in which the ______ facility(ies) is (are) located, the trustee of this trust at any time. 4. Operation of the Trust, Duties of the Trustee (name of financial institution acting as trustee) acknowledges below its receipt of the trust property listed in Schedule B and its acceptance of the obligations and duties of the trustee as defined below. (a) The trustee agrees to notify the EPA Regional Administrator(s) by certified mail within five days following the expiration of the thirty-day period after the anniversary of the establishment of the trust, as specified in — § 265 145(a)(5). (b) The trustee may resign from its obligations as trustee by subnuttmg written notice of its intont to the grantor and to the EPA Regional Administrator(s). (c) The trustee is to make payments out of the trust only under the conditions specified in 40 CFR 265.145(a)(16) (date) (signature of grantor) [ address of grantor) (authorized signature for trustee) (name of trustee) (address of trustee) (signature of notary) Mail original to the EPA Regional Administrator within 10 days of the effective date by certified mail. If more than one facility is covered and the facilities are in more then one ‘Region, send original to 2 property included in initial transfer on - separate sheet, clearly label this list “Schedule B,” and attach it to this agreement. Regional Administrator of Region in which the largest number of facilities are located and copies to the other Regional Adnunistrator(s), by certified mail Appendix VII to Part 265 EPA Form 8700-20 U.S. Environmental Protection Agency Bond for Payment to Post-Closure Care Trust Fund As provided for in 40 CFR 285.145(b) under authority of the Resource Conservation and Recovery Act of 1976, as amended (42 USC 6901) ‘EPA Facility Identification No. Adjusted post-closure cost estimate, in ac- cordance with 40 CFR 265.144: $ Know all men by these presents, that we, (owner of operator) of (address) as Principal and (name of surety company) , a company created and existing under the laws of (State) as Surety, are held and firmly bound unto the U.S. Environmental Protection Agency (EPA1 in the penal sum of U.S. dollars ($ ) for payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, and firmly by, these presents. Whereas, the Principal intends to obtain interim status, as defined by Section 3005 of the Resource Conservation and Recovery Act of 1978, as amended, for one or more hazardous waste disposal facilities, and such status depends upon compliance with the standards of 40 CFR Part 265, which includes the requirement, specified in § 265.145. that the owner or operator of each such facility must establish financial assurance that the applicable requirements of Part 265 for post- closure care will be met, and Whereas, this bond is written to assure that the Principal will establish a trust fund in accordance with § 265.145 for the purpose of providing for post-closure care of the following hazardous waste disposal facilities: (name and address of facility or write in “see attached Schedule A” if more than one facility) ,and shall inure to the benefit of EPA in accordance with said Part 265, Now, therefore, the condition of this obligation is such that, if the Principal shall faithfully, for each of the facilities guaranteed by this bond, within 30 days after beginning closure, make full payment in the amount of the final adjustid post-closure cost estimate calculated in accordance with § 265 144 into a trust fund meeting the requirements of § 265 145(a) to assure the costs of 30 years of post-closure care, pursuant to all applicable statutes, rules and regulations, then and only then, the above obligation shall be void, otherwise to be and to remain in Full force and effect. The Surety shall become liable on this bond obligation only when the Principal fails ‘If provision for post-closure care of more than one facility is covered by the bond, list on a separate sheet the EPA Facility Identification Numbers, names, addresses, and adjusted Sost- closure cost estimates for all the facilities, clearly lable this list “Schedule A,” and attach it to this bond Show total ul cost estimates, ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Proposed Rules 33277 make payment in accordance with 265.145(b)(3). Upon notification by an EPA egional Administrator that the Principal has failed to fulfill the payment obligation, the Surety will place funds in the amount of the payment obligation into a trust fund as directed by an EPA Regional Administrator. The liability of the Surety shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the Surety’s obligation hereunder exceed the amount of said penal sum. The insolvency or bankruptcy of the Principal shall not constitute a defense to the Surety with regard to claims of liability on the bond obligations, and in the event of said uisolvency or bankruptcy, the Surety must pay any unsatisfied final judgments obtained on such claims. The Surety agrees to furnish written notice forthwith to the Regional Administrator(s) of the EPA Region(s) in which the facility(ies) is (are) located of all suits filed, judgments rendered, and payments made by the Surety under this bond. This bond is effective the day of 19—, at the address of the Principal as stated herein and shall continue in force for each facility guaranteed by this bond until ninety (90) days following the beginning of closure of that facility or until receipt of written notice sent, by EPA to the Surety of satisfactory completion of the financial assurance obligation of the rincipal with regard to post-closure care of hat facility, the sooner, or until otherwise erminated as hereinafter provided. The Surety may terminate this bond by written notice sent by certified mail to the Principal and to the EPA Regional Administrator(s) for the Region(s) in which the facihty(ies) is (are) located, such termination to become effective ninety (90) days after actual receipt of said notice by EPA; provided, however, that no such termination shall become effective if closure of said facility has begun, or has been ordered to begin by an EPA Regional Administrator. The Principal may terminate this bond by sending written notice to the Surety, such termination to become effective thirty (30) days after receipt of such notice by the Surety; provided, however, that such notice is accompanied by written authorization for termination of the bond by the Regional Administrator(s) of the EPA Region(s) in which the bonded facility(ies) is (are) located. If more than one surety company joins in executing this bond, such action shall - constitute joint and several liability on the part of the sureties. In witness whereof, the Principal and Surety have executed this instrument on the day of • 19—. (Seal) (Surety) (Seal) (Principal) (Seal) (attorney-in-fact) (address of Principal) Surety Bond No. Mail original to the EPA Regional Administrator within 10 days of the effective date by certified mail If more than one facility is covered and the facilities are in more than one Region, send original to Regional Administrator of Region in which the largest number of facilities are located and copies to the other Regional Administrator(s), by certified mail. Appendix vm to Part 265 EPA Form 8700-21 U.S. Environmental Protection Agency Post-Closure Performance Bond As provided for in 40 CFR 265.145(d), under authority of the Resource Conservation and Recovery Act of 1976. as amended (42 USC 6901) i EPA Facility Identification No. Adjusted post-closure cost estimate, In ac- cordance with 40 CFR 285 144: $ Know all men by these presents, that we, (owner or operator) of (address) as Principal and (name of surety company) , a company created and existing under the laws of (State) as Surety, are held and firmly bound unto the U.S. Environmental Protection Agency (EPA:) in the penal sum of U.S. dollars ($—) for payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally. and firmly by these presents. Whereas, the Principal intends to obtain interim status, as defined by Section 3005 of the Resource Conservation and Recovery Act of 1976, as amended, for one or more hazardous waste disposal facilities, and such status depends upon ompliance with the standards of 40 CFR Part 265, which includes the requirement, specified in § 265.145, that the owner or operator of each such facility must establish financial assurance that the applicable requirements of Part 265 for post- closure care will be met, and Whereas, this bond is written to assure compliance with the post-closure requirements of 40 CFR Part 265 for the following hazardous waste disposal facilities: (name and address of facility or write in “see attached Schedule A” if more than one facility) . and shall inure to the benefit of EPA in accordance with said Part 265. Now, therefore, the condition of this obligation is such that, if the Principal shall faithfully fulfill the applicable post-closure requirements set forth in 40 CFR Part 285 for each of the facilities guaranteed by this bond, pursuant to all applicable statutes, rules and regulations, and shall carry out the post- closure plan required by Part 265. then, and only then, the above obligation shall be void; otherwise to be and to remain in full force and effect. The Surety shall become liable on this bond obligation only upon a legal determination rendered in a proceeding ‘If post-closure care of more than one facility Is covered by the bond, list on a separate sheet the EPA Facility Identification Numbers, names, and addresses, and adjusted post-closure cost estimates for all the facilities, clearly label this list “Schedule A,” and attach It to this bond. Show total of coat estimates pursuant to Section 3008 of the Resource Conservation and Recovery Act, as amended. that the Principal has violated the post- closure requirements of 40 CFR Part 265 Following such a determination, the Surety must either complete post-closure care of the facility in accordance with the approved post-closure plan for the facility or pay the amount of the penal sum into a trust fund as - directed by an EPA Regional Administrator. The liability of the Surety shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the Surety’s obligation hereunder exceed the amount of said penal sum. The insolvency or bankruptcyof the Principal shall not constitut&a defense to the Surety with regard to claims of liability on the bond obligations, and in the event of said insolvency or bankruptcy, the Surety must pay any unsatisfied final judgments obtained on such claims. The Surety agrees to furnish written notice forthwith to the Regional Administrator(s) of the EPA Region(s) In - which the facihty(ies) is (are) located of all suits filed, judgments rendered, and payments made by said Surety under this bond, - This bond is effective the day of 19—, at the address of the Principal as stated herein and shall continue in force until the end of 30 years of post- closure care unless prior notice is received by the Surety from EPA, or until terminated as hereinafter provided. The Surety may terminate this bond by written notice sent by certified mail to the Principal and to the EPA Regional Administrator(s) of the Region(s) in which the facility(ies) is (are) located, such termination to become effective ninety (90) days after actual receipt of such notice by the Agency; provided, however, that no such termination shall become effective if closure of any said facility has taken place, has begun, or has been ordered to begin by an EPA Regional Administrator. The Principal may terminate this bond by sending written notice to the Surety, such termination to become effective thirty (30) days after receipt of such notice by the Surety; provided, however, that such notice is accompanied by written authorization for termination of the bond by the Regional Administrator(s) of the EPA Region(s) in which the bonded facility(ies) is (are) located. If more than one surety company joins in executing this bond, such action shall constitute joint and several liability on the part of the sureties. In witness whereof, the Principal and Surety have executed this instrument on the day of ,19—. (Seal) Sur ty) (Principal) (attorney-in-Tact) (address of Principal) Surety Bond No. Mail original to the EPA Regional Administrator within 10 days of the effective date by certified mail. If more than one facility is covered and the facilities are in ------- 33278 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Proposed Rules more then one Region, send original to Regional Administrator of Region in which the largest number of facilities are located and copies to the other Regional Administrator(s), by certified mail. - FR Doc )—i43iO Filed 5—1&-80 845 alnI BII.UNG cODE 6560-O1-M ------- Monday May 19, 1980 Part IX Environmental Protection Agency Hazardous Waste Management System Proposal To Modify 40 CFR Part 265— Subpart R—Underground Injections ------- 33280 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 265 (FRL 1447—1] Hazardous Waste Managment: Interim Status RequIrements for Underground Injection - AGENCY: Environmental Protection Agency. • fl 1 Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) is proposing specific requirements for disposal of hazardous waste by undeground injection under § 3004 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., as amended. These proposed requirements would amend Subpart R of the interim status regulations applicable to hazardous waste treatment, storage and disposal facilities. The proposed amendment includes requirements concerning general operating practices, waste analysis, monitoring and response, closure and post-closure care, financial responsibility and special handling of ignitable, reactive or incompatible waste. A public hearing will be held to receive public comment on the amendment as well as on issues raised in the Preamble to the regulations issued under Part 122 of this Chapter concerning regulation of Class IV wells. DATES: EPA will accept written comments on the proposed amendment until on or before July 18, 1980. A public hearing will be held from 9 a.m. to 5:00 p.m. on July 8, 1980. ADDRESSES: Comments should be addressed to Docket Clerk, Office of Solid Waste [ WH—562], U.S. Environmental Protection Agency. Communications should identify the regulatory docket number “Section 3004”. - The hearing will be held on July 8, 1980 at the H.E.W. Auditorium at 330 Independence Avenue, SW. Washington, D.C. from 9:00 am to 5:00 pm. The official docket for this proposed rulemaking is located in Room 2711, U.S. Environmental Protection Agency, 401 M Street, S.W., 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: Mr. Bernard J. Stoll, Office of Solid Waste [ WH—564], U.S. Environmental Protection Agency. 401 M Street, S.W., Washington, D.C. 20460, (202) 755—9116. SUPPLEMENTARY INFORMATION: Underground injection of hazardous waste is under the jurisdiction of both the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., which creates a “cradle to grave” management program for all hazardous waste, and the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300f et seq.) which creates an Underground Injection Control (UIC) program. After examining the goals and policies of these two programs, EPA has concluded that the disposal of hazardous waste by underground injection in each State will be regulated under RCRA until a UIC program has been established in that State. The hazardous waste management program, under Subtitle C of RCRA, provides a system for tracking and managing those solid wastes which are deemed “hazardous” according to the criteria established under Section 3001 of RCRA. A manifest system is employed to assure that hazardous waste is properly transported from its point of generation to facilities that store, treat or dispose of the waste. Under Section 3004 of RCRA, EPA is to establish standards, applicable to owners and operators of hazardous waste treatment, storage or disposal facilities which protect human health and the environment. Eventually all such facilities will be subject to permits, issued pursuant to Section 3005 of RCRA. whith implement the Section 3004 standards and other appropriate requirements. Under Section 3005, all treatment, storage or disposal of hazardous waste is prohibited, except in accordance with a permit under that section, six months after the promulgation of the Section 3004 standards. - -- The Congress recognized that it would not be possible for EPA to issue all permits within six months of the promulgation of Section 3004 standards. Therefore it created an “interim status” period during which existing facilities which have applied for apermit may be treated as having been issued a permit while the Agency reviews and processes the facility’s permit application. In keeping with the philosophy that facilities are to be treated as having been issued a permit during the interim status period, EPA believes it is appropriate to impose certain basic requirements on those facilities during the interim status period. The Agency has promulgated such interim status regulations for hazardous waste treatment, storage and disposal in a separate section of today’s Federal Register. Part C of the SDWA creates a program for the protection of underground sources of drinking water. As part of that program, EPA is to establish regulations containing minimum requirements for effective State underground injection control (UIC) programs and the Administrator is to list in the Federal Register each State for which, in his judgment, a State UIC program may be necessary to assure that underground injection will not endanger drinking water sources. The Administrator has listed a total of 57 States, territories and the District of Columbia as needing a UIC program. Once EPA has established the minimum requirements, each listed State shall apply for and may receive approval for primary enforcement responsibility over underground injection in their State. If the State does not seek such responsibility, or if EPA determines that State authority is inadequate to implement the minimum requirements, EPA shall establish a UIC program for the State. Thus. the UIC program does not have an equivalent of the “interim status” period under RCRA. To accommodate the RCRA goal that disposal of hazardous waste (including underground injection) be subject to control during that period, EPA has decided to-regulate underground injection under the RCRA interim status regulations. Accordingly, owners and operators of underground injection well used to dispose of hazardous waste will be subject to the same general requirements applicable to all treatment. storage and disposal facilities. These are set forth in Subparts A—E of Part 265, which is published in today’s Federal Register. In addition the interim status regulations of Part 265 include a Subpart R, which will contain specific requirements applicable to underground injection. The proposed hazardous waste management regulations of December 18, 1978 (43 Fed Reg 58946) did not - specifically address underground injection. The Agency has decided to propose the specific requirements applicable to underground injection to gain the benefit of public comment. Rulemaking Strategy EPA recognizes that the regulation of underground injection under RCRA must be coordinated with the UIC program. EPA anticipates that when State UIC programs become effective, underground injection of hazardous waste which falls under the jurisdiction of the UIC program will be regulated under that program. Thus the RCRA and LJIC programs must be structured to allQw foi such a shift without unnecessary - confusion. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Proposed Rules 33281 ‘PA plans to develop this portion of RCRA regulations in tandem with UIC program. Certain portions of the program regarding Class IV wells are being re-proposed today. For a discussion of those re-proposed elements commenters should see the Preamble to Subpart C of the Part 122 regulations published in today’s Federal Register. The hearing dates which have been established in this proposed regulation also match those for the re- proposed elements of Part 122. EPA anticipates that commenters may want to address their written comments and any statements at the hearing to both the Part 122 proposal and this proposed amendment to Part 265. The technological requirements specified in these proposed regulations apply to both Class I and Class IV underground injection wells, unless identified as applying only to one or the other. All Class I wells have similar characteristicsso that these applications should be easily understood. In the case of Class IV wells, however, this may not be the case. Underground injection wells for disposal of hazardous waste are classified as either Class I or Class IV. Class I wells are those which inject •aste beneath the lowermost formation ritaining, within one quarter mile of e well bore, an underground source of arinking water. However, the Class N wells can be subdivided into two types. The first type is those Class IV wells which discharge hazardous waste directly into underground sources of drinking water. The other type is those Class N-wells which discharge hazardous waste above underground - sources of drinking water. One of the key issues concerning underground injection is the approack that should be taken undet RCRA and the SDWA toward Class IV wells that involve the direct. injection of hazardous wastes into underground sources of drinldng water. For a more detailed description of this issue, conimenters should see the Preamble. to Subpart C of Part 122, which is published in today’s Federal Register. Comnienters shouldbe aware that. EPA is considering implementing some of the options discussed in Part 122 under RCRA and may incorporate one of those options in these interim status regulations. Under § 122.36 of the UIC program proposal, all injection of hazardous waste directly into an underground source of drinking water through a Class N well would be rohibited six months after approval of ,State program. EPA is considering a ,. milar ban under RCRA. Such a ban might be instituted on the effective date of the interim status regulation. implementing the ban or at some time after the effective date. Commenters should also be aware that EPA is considering incorporating such a ban into its Part 204 regulations to address direct injection while UIC programs are being developed. The Agency has not made a decision at this time concerning whether Class IV wells discharging hazardous waste above underground sources of drinking water should be banned. However, the Agency believes that in the event it decides to allow such wells to continue to operate, that it should alert the public to the kinds of technical controls it is considering imposing so that the public can meaningfully comment on them. Class IV wells discharge hazardous waste into or above uiiderground sources of drinking water through a variety of underground injection devices. As already discussed in this Preamble, no technical requirements are included in these’ regulations for Class IV wells which discharge directly into underground sources of drinking water. Requirements are included in these regulations, however, for those Class N wells which discharge hazardous waste bove underground sources of drinking water. Because of the variety of devices classified as Class N wells which discharge above underground sources of drinking water, the Agency recognizes that difficulties arise in developing requirements that would apply to all such injection devices. There are essentially four groups or types of these Class N devices. They are best described by expressing them in comparison to other devices and techniques. The first type are those normally called wells, which are similar to the usual dug or drilled well, with or without Well casing or. other fabricated side walls. They are always considerably deeper than they are wide. The second type is similar to the first but usually much shallower than the first. They are usually referred to as pits and are similar in most aspects to surface impoundments. They are usually open at the top and constructed.io allow liquid to seep through the bottom and sides into surrounding soil. The third type is more a treatment device than. an injection device. They are usually buried rigid vessels designed to contain waste for chemical, physical ot biologicaL treatment and equipped with distinct influent and effluent pipes. Septic tanks, devices which are designed to treat waste biologically under anaerobic’ conditions, are an example of this type. The fourth and final type are those that are designed to distribute fluids beneath the ground surface over a relatively large area and usually involve buried lateral pipes or trenches. An example of this type is a leaching field which distributes effluent from a septic tank. As can be seen from this discussion a given requirement for one type of device may not be appropriately applied to the other three devices: For this reason the Agency has directed the requirements in these proposed regulations primarily to those Class IV underground injection devices which are normally thought of as wells. In addition to, or instead of, the requirements specified in these proposed regulations for Class IV underground injection devices, the Agency is considering the specification of other more appropriate requirements for those Class IV underground injection devices which do not typify wells. In particular, the Agency is considering the requirements specified in Part 265-Subpart K. Surface Impoundments, or similar requirements for application to the second type described above (i.e., pits). The requirements specified in Part 265- Subpart Q, Chemical, Physical, and Biological Treatment or similar requirements are being considered for application to the third type (e.g., septic tanks) and the requirements in Part 265- Subpart M. Land Treatment, or similar requirements for the fourth or remaining type. The Agency specifically invites comment on the appropriateness of applying these requirements to Class IV underground injection devices. Because of the similarity between these latter three types of injection devices and those hazardous waste management techniques to be controlled by regulation in accordance with the Part 265’requirements under RCRA, the Agency is also considering regulating these injection techniques under RCRA only, now and in the future. The UIC program would still assume regulatory responsibility for those of these injection techniques which are generally considered as wells (i.e., the first type) when such programs go into effect. The Agency invites specific comments on this concept. These proposed regulations include a limited number of definitions, used throughout the regulations. These definitions also appear in § 122.3 of the Part 122 regulations published in today’s Federal Register. The Agency will be developing additional appropriate definitions for this proposed regulation in conjunction with the Part 146 regulations which are now under development. ------- 33282 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Proposed Rules The various requirements included in these proposed regulations are discussed as follows: General Operating Requirements These proposed regulations include specific operational requirementsfor Class I wells which dispose of hazardous waste beneath the lowermost formation containing, within one quarter mile of the well bore, an underground source of drinking water. Such wells typically pass through overlying aquifers which are to be protected as underground sources of drinking water. This protection involves requirements that injections only occur through properly designed and constructed wells. The injection of hazardous waste must be accomplished through tubing inside of a well casing which is cemented to the well bore. Furthermore, the annular space between the tubing and casing must be filled with a suitable fluid. As will be discussed later, the integrity of these seals is to be demonstrated by a monitoring program. A final requirement for protecting aquifers overlying the injection formation is the prohibition of injection of hazardous waste between the outermost casing and the well bore. Additional operational controls include limitations placed on injection pressure based on conditions in the injection zone. These limits are set to prevent the migration of hazardous waste, hazardous waste constituents, or formation fluids from the injection zone into underground sources of drinking water. This migration could occur either through fractures in the injection zone and the confining zone, or through improperly completed or plugged wells penetrating the injection zone. To prevent migration by the first of these pathways the pressure in the injection formation must remain below a calculated maximum known as fracture pressure. The injection pressure must at all times remain less than the fracture pressure. To prevent contamination by the second pathway, the owner or operator can either correct the problems in these wells or inject at a reduced pressure such that the injected fluids will not reach the improperly plugged or completed wells. Facilities under interim status are existing facilities for which proper injection pressures have already been determined. The regulations require that the owner or operator control and monitor his injection pressure to prevent migration of hazardous waste or hazardous waste constituents out of the injection zone by either pathway. The above discussion applies only to Class I wells disposing of hazardous waste. The regulations do not include any general operating requirements foil Class IV wells which inject above underground sources of drinking water. Since these wells are intended to introduce injection fluids above underground sources of drinking water, requirements to prevent leakage from the well are not pertinent. As will be discussed later, however, the regulations do specify ground-water monitoring requirements for these wells. Special Handling Requirements Facilities which dispose of hazardous waste by underground injection must comply with the § 265.13 General Waste Analysis requirements. In addition, in the case of underground injection, the owner or operator must ascertain that the waste is compatible with the components of the well and the injection formation. Trial tests are required when a well is used to inject a different hazardous waste to ensure that the new waste will not react with previously Injected fluids, the injection formation or components of the well and form gases which could cause a threat to public health or the environment, or otherwise damage the well or the receiving formation. Test results must demonstrate compliance with the requirements of § 265.17(b). If the owner or operator has on hand infordation demonstrating the compatibility of various hazardous wastes with the well components and the injection formation the trial tests need not be performed. In § 265.437 of the proposed regulations the underground injection of ignitable, reactive, and incompatible waste is prohibited unless such injection complies with § 265.17(b). Monitoring and Response As discussed earlier in the discussion of general operating requirements, for Class I wells both the mechanical integrity and the injection zone pressure are to be monitored. Monitoring to assure the mechanical integrity of the well is to be accomplished by applying a selected pressure to the material placed in the annular space between the tubing and the well casing, and then monitoring the pressure for changes. Any ab ipt change in the measured pressure indicates that the tubing is leaking into the annular space. In determining the pressure to be applied to the annular space the owner or operator must establish an allowable range based on generally accepted engineering practices. A sudden leak or fracture in the tubing or casing would cause an abrupt change in the annular pressure. If a significant change in the annular pressure is detected, the owner or operator is required to take approprial corrective action to restore mechanioa integrity. This action may include replacing or repairing tubing, casing, seals or other appurtenances. These proposed regulations do not specify appropriate annular pressures or the means to restore mechanical integrity. The regulations do require the owner or operator to implement a monitoring program to demonstrate mechanical integrity of Class I wells based upon a plan prepared and submitted to the Regional Administrator, all on the effective date of these regulations. Continuous monitoring of annular pressure is commonly employed at Class I facilities and therefore the Agency is requiring continuous monitoring and recording. In addition to the annuali eport that the Agency is considering requiring notice within a specified period (e.g., 24 hours) any readings falling outside the allowable range. Monitoring of the injection pressure is also required, for Class I wells. As discussed earlier in this document, injection at too high a pressure can cause hazardous waste, hazardous waste constituents, or formation fluids to migrate from the injection zone. To guard against this possibility, the owne or operator must measure the injection pressure to assure that it does not exceed the allowable pressure in the injection zone. Since the pressure is measured at the well head and not in the injection zone itself, he must calculate, based upon generally accepted engineering principles, the maximum allowable pressure at the well head based on the characteristics of both the fluid being injected and the injection well apparatus. If the well head pressure exceeds the allowable limit, the owner or operator must modify his injection proceis to restore the injection pressure to within allowable limits. For more information on this subject see “An Introduction to the Technology of Subsurface Wastewater Injection,” EPA—600/2—77—240, December 1977. As with the mechanical integrity monitoring program, the owner or operator must, on the effective date of these regulations, develop and submit to the Regional Administrator a plan for injection pressure monitoring and then implement it. This plan must include a specification of continuous monitoring and recording. The Agency is considering, in addition to the annual report, requiring periodic or episodic reporting. The owner or operator is required to keep records of monitoring data and ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Proposed Rules 33283 luations throughout the active life of facility. He must also submit to the fonal Administrator an annual report on his mechanical integrity and injection pressure monitoring programs. The report must contain a description of any corrective actions instituted during the year and the circumstances which necessitated the corrective actions. In the case of Class IV wells used to dispose of hazardous waste by injection above an underground source of drinking water, these proposed regulations require compliance with the requirements of Part 265 Subpart F— Ground-Water Monitoring. The Agency believes that wells ihjecting hazardous waste above an underground source of drinking water are very similar to surface impoundments used for the storage. • treatment or disposal of hazardous waste in terms of potential ground-water contamination. This is especially true if the surface impoundment leaks. Because of this similarity, the proposed regulations specify the same ground- water monitoring requirements for these wells as those which apply to surface impoundments, including the recordkeeping and reporting requirements of Subpart F. Subpart F requires indicator nitoring which may lead to a ground- ter quality assessment program. For se facilities where no hazardous waste or hazardous waste constituents are thought to be entering the ground water, an indicator monitoring program to detect leaks is described. For those facilities where ground-water contamination by hazardous waste or hazardous waste constituents from the facility is known or assumed to exist. the Subpart F regulations describe a ground-water quality assessment program to establish the magnitude of the impact on the ground water. Since most Class N wells may already have contributed hazardous waste or hazardous waste constituents to the ground water, the Agency anticipates that a ground-water quality assessment program will be implemented at most Class IV injection well facilities. Closure and Post-Closure The regulations require an owner or operator to close his injection well in such a way that migration of hazardous waste or hazardous waste constituents into or between underground sources of drinking water is.prevented. Furthermore, the need for maintenance to protect human health and the Iviromnent is to be minimized. On the fective date of these regulations the vner or operator is required to have a written plan for closure of his injection well at the end of its intended life or. for that matter, at any other time that closure would be necessary. The closure plan must describe the steps which will need to be taken to close the injection well. These proposed regulations specify requirements for closure plan amendments, plan approval, and notification which are very similar to the facility closure requirements specified in Part 265—Subpart G, Closure and Post-Closure. Commenters may wish to review these proposed requirements in consideration of Subpart C. In the case of Class I wells, these regulations specify that closure must be accomplished by plugging. Common plugging techniques include: the Balance Method; the Dump Bailer Method; and the Two-Plug Method. Each of these techniques requires that the well be brought into a state of static equilibrium, either by circulating the mud in the well at least once or a comparable method, prior to placement of the cement plug(s). For more information see “Cementing” by Dwight K. Sn ith, Chapter 10, Monograph Volume 4. Henry L. Doherty Series, SPE of AIME. 1976. In the case of Class IV wells which are used to dispose of hazardous waste by injection above underground sources of drinking water, the owner or operator must remove remaining hazardous waste from the injection well and then close the well, in accordance with the facility closure plan to satisfy § 265.435(a). One method of meeting this objective is to preclude the injection of additional fluids, even those which are not hazardous waste, which could result in mobilization of hazardous waste remaining in the aeration zone and introduction of these substances into the ground water. A “Comment” included in the proposed regulations reminds the owner or operator that any waste removed from the injection well during closure mupt be managed as a hazardous waste, unless he demonstrates that the waste is not hazardous. Following closure, the owner or operator of a Class IV well must implement’his post-closure plan. These proposed regulations impose the post- closure requirements specified in Subpart G, which, in the case of underground injection, involve post- closure monitoring of the ground water - in accordance with Subpart F. EPA believes that such post-closure monitoring is appropriate since hazardous waste may remain in the soil adjacent to the injection well. This monitoring will determine whether the waste migrates to ground water and, if such migration occurs, what degree of contamination occurs. The latter determination must, at a minimum, include a prediction of the rate of migration of the contaminants in the saturated zone. If the well is contaminating ground water the assessment of contamination in the ground water must continue as long as waste is being injected (i.e., until closure of the facility). This is necessary to account for differences in the waste injeãted (e.g., volume, constituents). If contamination first appears during the post-closure period a single ground- water quality assessment (including a prediction of the rate of migration) should be sufficient to characterize likely future contamination. While the Agency believes that the post-closure monitoring requirements of Subpart F are applicable to Class N wells that inject above an underground source of drinking water, the Agency does not expect that most Class IV wells will be engaging in extensive post-closure monitoring. Many Class IV wells will have triggered the ground-water quality asses&ment program of Subpart F during the active life of the facility. Such facilities would only monitor until final closure. Those that are using the indicator monitoring system during the post-closure period are likely to discover an impact on ground water. Under Subpart F. such facilities need only complete and report on a single ground- water quality assessment. Financial Requirements In imposing financial requirements on the owners or operators of underground injection facilities, these proposed regulations draw a distinction between the closure and post-closure requirements. Since closure is accomplished essentially through - plugging, it is appropriate to use financial requirements similar t&those in § 122.42(g), which seem appropriate for such techniques. Since the post- closure requirements of this Subpart are based on the requirements of Subpart C of this Part, it is appropriate to use financial responsibility requirements similar to those in Subpart H of this Part. Thq Agency is also considering distinguishing between Class I and Class N wells for purposes of financial responsibility. Under this alternative approach, requirements for Class I welle (which do not have post-closure requirements) would be based on those in § 122.42(g). The requirements for Class IV wells (which would include requirements during the post-closure period) would be based on Subpart H. The Agency is also considering imposing ------- 33284 Federal Register / Vol. 45, No. 98 / Monday, May 19,1980 / Proposed Rules either all of Subpart H or requirements similar to those in § 122.42(g) on all underground injection facilities disposing of hazardous waste above underground sources of drinking water. The Agency has decided to repropose financial responsibility requirements for owners or operators of hazardous waste management facilities. To the extent appropriate, the Agency may decide to promulgate such requirements for owners or operators of wells used to dispose of hazardous waste, at the time it promulgates such requirements for other hazardous waste management facilities. Dated; May 2. 1980. Douglas M. Costle, Administrator. It is proposed to further amend Title 40 CFR, Part 265, by adding § § 265.431— 265.437 to Subpart R, which has been promulgated in today’s Federal Register as follows: § 265.431 DefinitIons. The following definitions promulgated in § 122.3 of this Chapter apply: Formation means a body of rock characterized by a degree of lithologic homogeneity’, which is prevailingly, but not necessarily, tabular and 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. Injection well means a “well” into which “fluids” are being injected. Injection lone means a geological’ ‘formation”, group of formations, or part of a formation receiving fluids through a well. Plugging means the act or process of stopping the flow of water, oil, or gas in formations penetrated by a borehole or well. Underground source of drinking water (“USDW”) means an aquifer or its portion: (a) which supplies drinking water for human consumption; or (b) in which the ground water contains fewer than 10,000 mg/i “total dissolved solids”. § 265.432 General operating requirements. - The owner or operator of a Class I well for disposal of hazardous waste must prevent migration of hazardous . - waste or hazardous waste constituents into or between underground sources of drinking water as follows: (a) Wells must be cased and cemented between the well bore and casing; (b) Hazardous waste must be injected through tubing, with a packer set immediately above the injection zone and with the annuins between the tubing and the long string of casings filled with fluid, or by another equally effective technique for which the owner or operator has a written demonstration, available for review by the Regional Administrator, indicating that it provides a comparable level of protection to underground sources of drinking water. - (c) Injection of hazardous waste between the outermost casing and the - well bore is prohibited; and (d) Injection pressure at the well head must not exceed a maidmum pressure which must 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 otherwise cause the migration of hazardous waste, hazardous waste constituents, or formation fluids into an underground source of drinking water. § 265.433 Waste analysis. For disposal of hazardous waste by underground injection the owner or operator must, in addition to the waste analyses required by § 265.13: (a) Conduct waste analyses and trial tests; or - (b) Present written, documented information from his or similar disposal operations to show that this disposal will comply with § 265.17(b) and fQr Class I wells, that the waste is compatible with fluids in the injection zone and minerals in both the injection zone and theconfining zone and will not damage the mechanical integrity of the well. § 265.434 Monitoring and response. (a) The owner or operator of a facility which disposes of hazardous waste by underground injection into a Class I well must: - (1) On the effective date of these regulations develop and submit to the Regional Administrator a plan for a monitoring program capable of determining compliance with § 285.432, by: (i) Demonstrating the mechanical integrity of the injection well to satisfy § 265 432(a) and (b); and (ii) Demonstrating that the pressure of the injected fluids remains within allowable limits to satisfy § 265.432(d). (2) The plan to be submitted under paragraph (a) of this section must specify: (I) For demonstrating mechanical integrity: (A) The annual pressure range to be maintained and basis for determining it for the specific well tubing, packer and, casing characteristics and for the anticipated injection fluid temperatures (B) The devices and procedures for continuous monitoring and recording of the annular pressure, and evaluation of that information; and (C) Procedures for immediate response to changes in the annular pressure outside the allowable range, and for restoration of mechanical integrity; (ii) For demonstrating that injection fluid pressure remains within allowable limits: (A) The calculated fracture pressure and the basis for determining it for the specific formation and zone of injection; (B) The calculated allowable injection pressure to be me sured at the well head and the basis for determining it for specific injection fluid characteristics (i.e., specific gravity, viscosity and temperature); (C) The techniques and procedures for continuous monitoring and recording of the injection pressure at the well head, for evaluation of that information; and (D) Procedures for immediate response to an increase in the well head pressure above the allowable limit,, to restore pressure to within allowable limits. - (3) On the effective date of these regulations the owner or operator must implement the monitoring plan which satisfies paragraph (a)(2) of this section and determine the mechanical integrity of the well and the injection zone pressure. - (4) The owner or operator must keep records of the monitoring data and evaluations specified in paragraphs (a)(2) (i) and (ii) of this section throughout the active life of the facility. (5) Th owner or operator must submit an annual report to the Regional Administrator which assures compliance with § 265.432. He must separately identify in the annual report those corrective actions, specified in paragraphs (a)(2)(i) (C) and (a)(2)(ii)(D) of this section which were implemented during the reporting period, and an explanation of the circumstances which required corrective action. (b) The owner or operator of a facility which disposes of hazardous waste by underground injection into a Class IV well which discharges above an underground source of drinking water must monitor the ground water in accordance ,vith the requirements of Subpart F of this Part. § 265.435 Closure and post-closure. (a) The owner or operator must close his facility in a manner that: ------- Federal Ragister / Vol. 45, No. 98 / Monday, May 19, 1980 I Proposed Rules 33285 (1) Will prevent the migration of azardous waste or hazardous waste onstituents into or between derground sources of drinking water Ia the well structure; and (2) Will minimize the need for further maintenance to protect human health and the environment. — (b) On’ the effective date of these regulations, the owner or operator must have a written closure plan. He must keep this plan at the facility. This plan must identify the steps necessary to completely close the facility. The closure ?,lan must: 1) Identify the techniques to be used to close the well in accordance with paragrap is (c) and (d) of this Section; (2) Describe the steps which are necessary to decontaminate facility equipment during closure; and (3) Include a schedule for final closure which specifies the anticipated date when wastes will no longer be received, the anticipated date when final closure will be completed, and intervening milestone dates for tracking the progress of closure. (c) The owner or operator may amend his closure plan at any time during the active life of the facility. The owner or operator must amend his plan any time changes in operating plans or facility design affect the closure plan. (d) The owner or operator must ubmit his closure plan to the Regional dministrator at least 180 days before the date he_expects to begin closure. The Regional Administrator will modify, approve, or disapprove the plan within 90 days of receipt and after providing the owner or operator and the affected public (through a newspaper notice) the opportunity to submit written comments. If an owner or operator plans to begm closure within 180 days after the effective date of these regulations, he must submit the necessary plans on the effective date of these regulations. (e) Within 90 days after receiving the final volume of hazardous wastes, the owner or operator must treat all hazardous wastes in storage or in treatment, or remove them from the site, or dispose of them on-site, in accordance with the approved closure plan. (f) The owner oroperator must complete closure activities in accordance with the approved closure plan and within six months after receiving the final volume of wastes. The Regional Administrator may approve a longer closure period under paragraph (d) of this section if the owner or operator can demonstrate that: (1) The required or planned closure ctivities will, of necessity, take him rnger than six months to complete, and (2) That he has taken all steps to eliminate any significant threat to human health and the environment from the unclosed but inactive facility. (g) The owner or operator of a Class I well must close by plugging to satisfy paragraph (a) of this section. (h) At closure, the owner or operator of a Class IV well which discharges above an underground source of drinking water must; (1) Remove the hazardous waste remaining in the well; and (2) Close the well in a manner which satisfies paragraph (a) of this section. [ Comment: At closure, as throughout the operating period, unless the owner or operator can demonstrate, in accordance with § 261.3 (c) or (d) of this Chapter, that any solid waste removed from the injection well is not a hazardous waste, he becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263, and 265 of this Chapter.) (i) When closure is completed, the owner or operator must submit to the Regional Administrator certification both by the owner or operator and by an independent registered professional engineer that the facility has been closed in accordance with the speáffications in the approved closure plan. (j) The owner or operator of a Class IV well which discharges above an underground source of drinking water must provide post-closure care in accordance with the applicable requirements of § § 265.117—265.120 (see Subpart G of this Part). § 265.436 Financial requirements. (a) On the effective date of these regulations, the owner or operator of a facility which disposes of hazardous waste by underground injection must have a written estimate of the cost of closing the facility in accordance with the requirements in § 285.435. The owner or operator must keep this estimate, and all subsequent estimates required in this Section, at the facility. (b) The owner or operator must prepare a new closure cost estimate whenever a change in the closure plan affects the cost of closure. (c) The owner oroperator must maintain financial responsibility in the form of performance bonds or other equivalent form of financial assurance to close a facility which disposes of hazardous waste by underground injection. In lieu of individual performance bonds, owners or operators may furnish a bond or other equivalent form of financial guarantee covering all facilities which dispose of hazardous waste by underground injection in any one State. (d) On the effective date of these regulations an owner or operator of a facility which disposes of hazardous waste by underground injection in a Class IV well which discharges above underground sources of drinking water must have a written estimate of the annual cost of post-closure monitoring and maintenance in accordance with the applicable post-closure requirements in H 265.117—265.120. This estimate, and all subsequent estimates, must be kept at the facility. (e) The cost estimate required in paragraph (d) of this section must be revised whenever a change in the post- closure care plan affects the cost of -post-closure care (see § 265.118(b)). The latest post-closure cost estimate is calculated by multiplying the latest annual post-closure cost estimate by 30. (f) On each anniversary of the effective date’of these regulations, the owner or operator must adjust the latest post-closure cost estimate using an inflation factor derived from the annual Implicit Price Deflator for Gross National Product as published by the U.S. Department of Commerce in its Survey of Current Business. The inflation factor must be calculated by dividing the latest annual published Deflator by the Deflator for the previous year. The result is the inflation factor. The adjusted post-closure cost estimate must equal the latest post-closure cost estimate times the inflation factor. § 265.437 Special requirements for ignitable, reactive or incompatible wastes. Ignitable, reactive or incompatible wastes (see Appendix V for examples) must not be disposed by underground injection inless § 265.17(b) is satisfied. IFR Doc. 80-14310 Flied 5-i8-8O 845 aml BIWNO CODE 6560-01-U ------- Indexes covering the contents of the daily Federal Register are issued monthly, quarterly, and annually Ertries are carried primarily under the names of the issuing agenctes. Significant subjects are carried as cross-references Note to FR Subscribers FR lndet es and the — LSA (List of CFR Sections Affected) wili continue to be mailed free of charge to regular FR subscribers a a a — a a a a a a a LSA (LIST OF CFR SECTIONS AFFECTED) ($10.00 a year domestic; $12 50 foreign) = FEDERAL REGiSTER iNDEX ($8.00 a year domestic; $1000 foreign) = = Name • a • a = ,..Street Address = • a • — — a City St te ZiP : • a = Make check payable to the Superintendent of Decumentg = would you like to know if any changes have been made in certain titles of the CODE OF FEDERAL REGULATIONS without reading the Federal Register every day? 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Washington, 0 C 20402 There is enclosed for subscription(s) to the publications checked below. ------- 5-19-80 loU. 45—No. 98 BOOK 3: PAGES 33287—33588 Book 3 of 3 Books Monday, May 19, 1980 Environmental Protection Agency Consolidated Permit Program PartX Consolidated Permit Regulations Part Xl Consolidated Permit Application Forms 33287 33290 33516 ------- Monday May 19, 1980 Part X Environmental Protection Agency Consolidated Permit Regulations ------- 33290 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations ENV IRONMENTALPROTECT ION AGENCY 40 CFR Parts 122, 123, 124, and 125 (FAL 1453-5] 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 AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: 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 (UIC) program under the Safe Drinking Water Act (SDWA), the National Pollutant Discharge Elimination 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 consolidate 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. DATES: 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 I p m. eastern time on June 2. 1980; see 45 FR 26894, April 22. 1980. In order to assist EPA to corre 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 IV wells must be received by July 15, 1980. There will be a hearing on the requirements for Class IV wells on July 8. 1980, from 9 a.m. to 5 p.m. ADDRESSES: Comn ents 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 CONTACT: Edward A. Kramer, Office of Water Enforcement (EN—336), U.S. Environmental Protection Agency. Washington, D.C. 20460, (202) 755—0750. SUPPLEMENTARY 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 Drinkitig Water Act (SDWA); • The National Pollutant Discharge Elimination System (NPDES) program under the Clean Water Act (CWA); and State program requirements only are established for: • State section 404 “Dredge or Fill” programs under the CWA. In addition, procedures for permit decisionmaking are established for the above four programs, and for • The Prevention of Significant Deterioration (PSD) program under the Clean Air Act, where this program is operated by EPA or a delegated State 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 forms 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 NPDES and for hazardous waste permits under RCRA. When the draft consolidated application forms were published for 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 discussion of both forms and accompanying regulations has been 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. These common requirements are intended to ensure that State permit programs satisfy minimum.statutory and ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33291 environmental 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 activity 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 co itinue 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 institutional efficiency from permits consolidation: Environmental Benefits: Consolidation of permit requirements and processing procedures should result in more comprehensive management and control of wastes. • Regulatory Benefits: 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 singte set of application forms for EPA- issued permits should reduce 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 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 administering 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. Organization 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 REOUIREMENTS. • PART 124—PROCEDURES FOR DECISIONMAKINO. 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 unify 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 Regulalions • Part 122—Establishes definitions and basic permit requirements for EPA administered RCRA, UIC, and NPDES programs. Part 122 also provides certain requirements applicable to State 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 ricust 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. • Part 123—Establishes the requirements for State programs operated in lieu of EPA, after a program has received theapproval of the Administrator. In addition to the RCRA hazardous waste, UIC, and NPDES programs, Part 123 goyerns State section 404 programs for discharges of dredged or fill.material into certain waters of the United States. After receiving the approval of the Administrator a State may issue sectiqn 404 permits,-in lieu of the United States Army Corps of Engineers, in so-called “Phase II and III” waters (sometimes referred to as traditionally non-navigable waters). In addition, 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 criteria 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 and format of the consolidated permit regulations, and the location of the technical regulations which correspond to each program, are summarized in the following chart: BILLING CODE 6560-01-N ------- 33292 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations TABLE I: (X)VERAGE ND FO1 1 T - I I. * I nso1idated I I I . in Technical Na me brev .1 Q,verage 1122 ‘123 1241 Act Requirements’ I I I I I I zard 1s Waste FI 4 generation. trans- Yes Yesj Yes 1 Resource 40 CFR Managen nt I f portation, treat- I I Ccnservation & 260 -266 nent, storage, I I Recovery Act I disposal of (w. RA) I hazardous waste I I I 42 USC §6901 I uic I well injection/ Yes Yes Safe Drinking I 40 CFR 146 Injection protection of I %s ter Act 1 Ontrol Program I drinking water I ‘ (SL 1A) I , a uifers I I 42 USC §30 0f National NPDES ‘discharge of I Yes 1 Yesi Yesi Clean Water I 40 CFR 125, Et ,llutant waste ater into Act 129, 133, & Discharge Elimi— I waters of the U.S. I ( ) Subchapter N n1ation System I I 33 USC § 1251 ,Dredge or Fill 404 1 discharge of Par Yes 1 Pan Clean Water I 40 CFR 230 I IProgram dredged or fill tiyI tly Act ‘material into - I I (CW ) I I waters of U.S. ‘ I 33 USC § 1251 I -I IPrevention of PSI) I emission of tb N 1 YesI Clean Air Act 40 CFR 52 ISi 1ifioant I pollutants fran ‘ (CM) I I Deterioration I sources in I I . clean air areas I 42 USC §7401 ‘ I I I I III I . BIWNG CODE 6560-01-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 application requirements, standard permit conditions, and grounds for modification and termination of p,ermits. Subparts B through D of Part 122 describe additional program elements of these three programs. 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) Coippiexity. A large number of commenters .on proposed Part 122, and the consolidated’ permit regulations in general, stated that the regulations are difficult to use because of their complexity, length, and numerous cross- 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 eachotber. 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 ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 1 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 prbvisions 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 - repnnts 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 puisuing 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 thijeffort 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 programs are authorized, either through application far a permit or by permit substitutes such as interim authorization or authorization by rule; and (3) nforznation 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 tp permit. In addition, (4) Subpart A contains sections on the effect of having apermit, 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 organized to follow 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. regulations approved under Part 123, and the reader would consult those State statutes and regulalions. 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,te 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 cons ulied; these will - refer to the location of the other sections of these and other regulations that set forth the requirements for 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 ( 122.2). Finally, each of the program subparts of Part 122 now contains an introductory section setting out the basics of that - program% 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 Table ll..—O ganrzafton of Pvl 122 Subject Subpart A (General) Subpart B (RCRA) Subpart C (UtC - Subpart 0 (NPOES) I Onentation material Purposeandacope Basic program provisions- end cover- 1221 1o 1222. 122 3 . - 12221 . 12231 12232 to 12236 12251 122S2 age, prohibitions II Application Prespphcation rquiraments and 12223 — 12237 permit aubatitutes Whoapplieaforaperniit, and how” Special permits 1224 - 1225, and 1226 . . 12222 12224. and 12225 . 12226 to 12227 12236 12253 122541012258 1223910 12240 12259 Ill Establishing permit conditions Standsrdperrmtccnditions Establishing variable conditions 1227 1226 - 12291012212 . 12226 .. 122291012230 12241 12260and 12261 12242 . 12262 to 12263 122431012245 - 12264 1012266 IV Effect of a permit 122131012219 ... . . 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 ------- 33294 Federal Register / Vol. 45, No. 98 / 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 appr ival to operate in lieu of EPA (pr 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 j t 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 subparagraphs 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 comnienters raised concerns regarding the status 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 preamblie or the “purpose and scope” sections. However, we have retained some commenta. 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 Th The June 14, 1979 Proposal? - Subpart A—General Program Requirements The following is a discussion of the significant comments re eived and of the basis fur revisions made to Part 122 of the proposed regulations. Minor editoriai and stylistic changes (including “technical 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. § 222.1 What are the consolidated permit regulations? Much of this niaterial appeared in proposed § 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 § 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 § 123.33), the proposed section was moved to § 122.1 where it applies 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 122. This section is completely new. It has been added to make Part 122 easier to read and to clarify its organization. Many commenters noted that the applicability of Part 122 to the PSD program was unclear. The PSD program was not mentioned in proposed § 122.1, “Purpbse 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, PSD definitions appear in Part 124, Subpart C. § 122.3 Definitions. A number of commenters made general- suggestions to cope with the difficulty of finding the correct definition in § 122.3. The proposal organized the definitions into a paragraph containing “general definitions” followed by paragrapics 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 terni 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 “BMP” for “best management practices.” We have expanded the definition section to include these -acronyms, which are placed in their alphabetical order among 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 § 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 designees 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 § 122.2 above, EPA has deleted the reference to the Clean Air Act. Aquifer and undeiyround source of drinking water. Some commenters - objected to the fact that the proposal in effect set forth two definitions of ------- Federal Register / Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations 33295 “underground source of drinking water” IJSDW), one for use under RCRA and bne with “more latitude” for use in the LJIC program. (The greater flexibility for USDWs in the UIC program resulted from the procedures for eliminating certain aquifers, now called “exempted aquifers,” from the coverage of the U IC 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 formation that is capable of yielding a significant amount of water to a well or spring.” This is slightly 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” dnd “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 “USDW” 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 BMPs, and therefore has changed the definition to require that BMPa facilitate compliance with applicable water quality standards. Some commenters argued that there should be no reference at all to water uality standards because CWA section )4(h)(1)(A)(i) does not mention them. e 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 stnndards. Some commenters wanted the BMP definition to require consideration of practicability, feasibility, or economics. The final regulation allows States to include such considerations in addition to the minimum environmental requirements. It should also be noted that the section 404 BMPs contained in § 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 commenters stated that a full definition of “hazardous waste” rather than a cross - reference should be given. However, the definition in Part 281 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 hazardous 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 substantive RCRA regulations. Major facility. This is a new definition added to the final regulations. It is discussed in paragraph (2) of the preamble to § 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 it when ownership and operation are split. However, RCRA applications must be signed both by the owner andthe operator. The requirements of a RCRA permit bind 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 3004 ot 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 if 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 b bound. To ensure that both the owner and the operator understand their joint responsibility, EPA is requiring both the owner and the operator to sign the permit application, In adopting this approach, however, EPA bas 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. Nonetheless, 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 of the definition by adding references to other types of authorization or dotuments, such as “general permit,” “draft permit,” and “permit by rule.” Similarly, § 122.4, application for a.. permit, is now written to clarify which of the several types of permits or other authorizations under these regulations is covered by the application requirement. Finally, the procedures governing issuance, administration, or termination ------- 33296 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / 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 perfnits, 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 authorizations. BILLING CODE 6560-O1-M ------- Table III: TI PES PE! 4IT AND (YlIJER AUfl-DRIZATICt 1 a. (D — Type of Autlorization I Application Required? I i Part 122 Applies Generally? Part 124 Procedures i A 1icab1e? Permittee 1 lndividual Issued Document? — - I—— “permit” - — Yea, §122.4 Yes Yes / Yes I 1 RA interim status, §122.22 Part A, see §122.22 I I I b, only §122.22 I I Partly. Tarmina- tion, see §122.23 (a)(3) I Lb J permit by rule, §122.26 I Lb Lb, . only §122.26 I I I I emergency permit, §122.27 I Yes Lb. only §122.27 I Sometimes I — 13K aut r1zationby I rule, §122.37 Lb I . Lb. only § 122 • 37 I I Lb • I — area permit, §122.381 anergercy permit, I §122.39 Yes Yes I y Ib, only §122.39 y I Yes 5o ctimes I general permit, §122.59 Lb , I Yes I I Yes I I I eral permit, §123.95 Lb (Lbtice) I Yes I I . Yes I I Lb emergency permit, l22.59 yes I I - i So met im e s I ‘ BILLING CODE 6560-01-C - - - ------- 33298 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations Person. The definition has been reworded 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 RCRA, 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 281 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 anumber 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 UIC. 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 reason 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 States” 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 clarify 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 systeips, the definition makes clear that treatment systems created in those 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 dischargers, former indirect dischargers, and recommencing dischargers. Second, the definition now specifically includes a mobile point source that begins discharging at a new location for which it does not have an existing permit. This clarifies our existing interpretation that a mobile 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)(4)), that a mobile point source start up control equipment before beginning discharge and meet its permit condittons within the shortest feasible time. Under § 122.10, it 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 new location, unless that requirement is waived. Because a new permit is - required each time the source moves, 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 ( 122.62(m)) we have added a definition of “privately owned treatment works.” The definition includes any treatment system which is not a POTW and whose operator is not the operator of the facility vhose 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 used once, in the § 123.92 (proposed § 123.107) list of activities not requiring permits, EPA has moved them to that section. Responses to the many comments ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33299 received on these terms appear in the corresponding preamble. Discha, e of dredged materiaL One commenter questioned the distinction, in the definition of dredged material, between discharges from on-board 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 § 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 i esulting 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 Umted 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 :ommenter who said that the primary urpose test was too subjective. It has 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 create 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, such 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. Impoundment. 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. § 122.4 Application for a permit. (1) Commenters suggested that the use of the term “any person” in proposed § 122.6(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 section. 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 § 122.3. (2) Proposed §122.7(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 commenter suggested that a permittee 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 e cisting permit has been restated in the standard permit conditions ( 122.7). In addition, the program subparts contain information on how early permittees must submit their renewal applications for EPA-issued permits: 180 days for RCRA ( 122.23), a reasonable time before construction is expected to begin for UIC ( 122.37), and 180 days for NPDES ( 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 applications are due. (3) One commenter read proposed § 122.7 (“Permit issuance,” now § 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 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 subject of consolidation of permit applications and permit processing is further addressed in the preamble to Part 124. Some commenters objected to the vagueness of the term “completeness” or req iested that a notification of completeness be required 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 doeè 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 Includedhere. 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 forme containing questions for each specific program. Likewise, the information in. § 122.5(d) comprises the essentiaL information which i’s 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 HI of the June 14,1979 Federal Register along with certain proposed NPDES regulations.which listed the information requirements contained in Form 1 and Form 2 (44 FR 34393, 34346).. (The draft - Formi was to be applicable to all’ programs even though its contents were listed only in the proposed NPDES - regulations.) Proposed § § 122,23 and 122.36(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, it 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 (H 122.24 for RCRA, 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 34118), and applicability to States of the permit application requirements for RCRA and UIC appeared in the proposed consolidated permit regulationa 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 requiremenr is also listedin §a22.8lstandard permit conditions) r.equiring 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 expfring permits. (1) Some changes have been made in proposed § 122.8(c) (now § 122.5). in response to comments. Proposed § 122:8 (c)13)(ii) (now § 122.5(c)(2)) created some confusion as to what grounds were to be considered by-the’ Director in denying a permit renewal application when the permittee is out of compliance with the continued permit. In response to these comments, EPA has amended § 122.16, “termination of permits,” to state that any’grounds for terminating an existing 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 fordoing it is necessary and that, in some instances, such action will be appropriate. If the Director were required, as some commenters suggested, to base the decision of whether or’not to issue the permit solely on the permit renewal application, he or she would be in the position of having authority to terminate the existing permit for the grounds listed in § 122.16 but then being required to renew the permit for the same facility because the application did not reflect the noncompliance. We have reworded §424.6 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 the Director to either deny the renewal application, or take enforcement action when a facility with a continued pe,rmit 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 t hat issuance of w new permit. with appropriate conditions remains an option available to the Regional Administrator in this situation. (2)’ A large number of commenters noted the possibility under proposed § 122.7(6) that a Federally-issued permit might lapse after transfer o 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 the Fed ral Administrative Procedure Act, perhaps as a condition of program approval under Part 123. EPA has rewritten the section to emphasize that States may continue Federally-issued RCRA, UIC. or NPDES permits which expire while under State administration if adequate. ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33301 legal authority exists to do so. EPA believes that it is inappropriate to require States to extend Federally issued permits. In evaluating whether States 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 could impose 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. (3) One commenter argued that automatic continuation under this section should not insulate an NPDES discharger from violation of a statutory deadline which intervenes prior to permit renewal. EPA believes it lacks 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 § § 122.82 (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 permittee whose permit is continued beyond the deadline is still subject to enforcement for noncompliance with its continued permit. - § 122.6 Signatories to permit applications and reports (1) Some commenters challenged EPA’s legal authority to establish signatory and certification requirements at all. Clearly, the Resource Conservation and Recovery Act, the Safe 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 would be applicable to him or her and to the corporation in any event. (2) The majority of the comménters who read proposed § 122.5 (now § 122.6) objected to the requirement that corporate vice presidents sign and certify permit applications. Commenters 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 time 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 required these acts. These 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 addition, 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” mechanism for reports would still be available. After drafting a signatories section which adopted this approach, EPA found that negligible improvements were made at the expense of a great deal of complexity which was not likely to be received favorably. Some other solutions which were attempted 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 commenters questioned why it should be necessary to distinguish 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 corporation 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 incorporation 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). ------- 33302 Federal Register / Vol. 45, No. 98 / Monday, Maty 19, 1980 / Rules and Regulations Reports on the . other hand re usually requiredby the permit and involve monitoring requirements or reporting of instances of noncompliance. Having established the entity’s responsibility for submitting these reports in the permit, it is no longer necessary to require an executive officer to sign them each time. Furthermore, the reports usualry require familiarity with particular monitoring instrumentation at particular points, rather than an understanding and familiarity 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 ex eption 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 dischargers. While EPA has determined that Class II wells should be regulated 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 discus’sion of regulation of Class H wells, seethe preambles to Subpart C and to Part 146. For the reasons discussed in those places, Class II wells have been distinguished from Class Ill 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) EP hasmadea numberof changes from the proposal to make the authorized representative mechanism work better. First, the section has been reworded slightly to emphasize that delegation, of the authority to sign information reports and Class 11 well 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 clarification 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 commenters’ 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 tire 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 in 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) BecauseEPA 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 permit. The mechanism for including 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 with the information submitted “in this and all attached documents.” § 122.7 Conditions applicable to all 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 whi’ch 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 o 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 binding 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 the standard permit conditions should not be “incorporated by reference” in a Table I V.—Standard Permit Conditions -J Heading Subpart B SubpartB Subpart 0 Part 123 Subpart A (RCRA) (UIC) (NPDES) Subpart E (404) Duty to comply ... . Duty to reapply Duty to halt or reduce activity . .. . 122 7(a) 122 28(a) 122 41(a) 122 60(a) 12397(a). (b) 122 7(b) — 122 7(c) . . .... - 122.60(b) . ..... -. Duty to mitigate . . 122 7(d) - .. .. . — Proper operation and maintenance .. .. 122 7(e) . . . — Permit actions 122 7( 1) . .. . . — Property nghts . . . 122 7(g) .. . .. — Duty to provide information . .. . . . 122 7(h) . . . Inspection and entiy . . 122 7(i) . . .. . Monitonng and records Signatory requirement. .. —— . 122 7(j) 122 28(b) 122 41(b) 122 60(c) 122 7(k) . 122 60(d), - — Reporting requTrements —. . .. — . 122 7(l) 12228 (c)g (d) 12241(c), (d) 12260 (e) (1). - Additional standtird.condjtions. . . —. — . . . 12261 (a) (b ) . 122.28(e) 122.41(e)I 122 60(g) 123.i ,7 (C). (d) 12261(h) ------- Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations 33303 permit. Under final § 122.7, permit conditions 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, - § 122.60(c)(1) requires as a standard permit condition for all NPDES 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 permittees. Also, the corresponding RCRA ( 122.28(a)) and UIC ( 122.41(a)) provisions reflect the fact that emergency p&rmits issued under these programs may act as a limited modification of existing permit requirements. (4) Duty to reapply. EPA has added § 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 deadlines at this point if desired. (5) Duty to halt or reduce activities. Proposed § 122.11(j) (now § 122.7(c)) required 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. commenters argued that in many cases noncompliance with permit conditions 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 comnientera found the requirement inconsistent with the performance-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 permittee the principle that a perrnittee 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 permittee in an enforcement action that it world 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. If noncompliance with the permit is serious enough to warrant enforcement action, no perinittee will be allowed to argue that compliance would have been unreasonable because it would have required a halt or reduction of the regulated activity. Several commenters noted that proposed § 122.11(j) was quite similar to proposed § 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. (6) Duty to mitigate. Section 122.7(d) restates proposed §122.11(i). For the reasons discussed under (5) above, EPA rejects the argument that it may not require permittees to mitigate the damage caused by noncompliance with their permijs. It should benoted that in some circumstances noncompliance with this permit condition may ‘be used to establish willfulness in an enforcement action. (7) Proper 1 operation and 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 perniittees 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 SDWA 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 commentor argued thai if a permittee can meet its permit requirements by operating its treatment or control systems at less that optimum efficiency, 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 and maintenance” was unnecessary, overbroad, and would result in an intrusion into internal plant management. Although EPA still believes effective management requirements are-authorized by CWA, ------- 33304 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations EPA agrees, in part, that the term “effective management” may be overbroad as a generally applicable permit condition and has deleted it 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 e cisting -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. Commenters 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 should 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 § 122.7(d) clarifies the intent by stating, “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 conduct 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 permittee’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 “new 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 comthenters noted that proposed § 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(g) repeats the statement in § 122.13(b) (proposed § 122.7(b)) that-a permit is not a property right. For a discussion of permit transfers, see the preamble to § 122.14. (10) Duty to provide information. Final paragraph (h) states the duty of the permittee to provide information necessary in..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 308. Proposed § 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 § 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, fo example, a permit is being extensively rewritten or when a permit is being modified to reflect a transfer in ownership. However, it is not EPA’s intent to require a complete new application when not all of the information is needed to process a permit modification. 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 § 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 cominenters 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 informtion covered by such a claim, the Agency gives prior notice to the submitter. The Agency’s procedures for disclosure to contractors who are authorized representatives are contained in 40 CFR § 2.301(h) which is incorporated by reference in § § 2.302(h) (CWA), 2.304(h) (UIC) and 2.305(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 commenters 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 to deprive any permittee of its Fourth Amendment rights as interpreted by ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 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 complexity 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 inspe ’ction 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 it 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 § 122.11). 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 permittees in the permit document. The records retention requirements have been revised slightly in response to comment. 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 than 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 lready a requirement under common law. Likewise, the Director 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 § §1,22.28 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 § 122.6 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 permittee 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 nqncompliance 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.” Finally, 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 mandatory reporting of noncompliance raises questions of self-incrimination under the Fifth Amendment The privilege against compulsory sell- incrimination applies only in a criminal case. Moreover, corporations do not have the privilege. George Campbell Painting Corporation v. Reid. 392 U.S. 286 (1968). Finally, “records required to be kept” by individuals are outside the scope of the privilege. Shapiro v. United States, 335 U.S. 1 (1948). The reporting requirements of § 122.7(1) 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. AU 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, § 122.7(1), and corresponding sections of the - program subparts. These reporting requirements are summarized under eight headings in § 122.7(1) and are discussed here as follows: (a) planned changes and anticipated noncompliance;, (b) transfers; (c) monitoring reports; (d) compliance schedules: (e) 24-hour reporting; (f) 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 parngraphs (c) and (h) combined reporting of both past and future causes for modification or noncompliance. Commenters 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” ( 122.7(l)(1)). Except as - ------- 33306 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations provided in § 122.61(a) for NPDES (expected use or manufacture of toxic pollutants), this is the only reporting duty, which arises before the event 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 § § 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 § 122.16(a)(4), using the criteria in § 122.65. When plans are known sufficiently in advance, this notice should be given in time 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 an appropriate response to the change, the modification can be made in time to prevent noncompliance with the permit. Anticipated noncompliance. The “planned alterations or additions to the facility” that are to be reported under § 122.7(1)(1) are limited to physical changes to the facility and exclude changes in production or other activities (except as provided in § 122.61(a) for NPDES). In the case of all other changes to the facility or activity 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 r sult 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 further 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 modification; (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 permittee 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, § 122.16(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 § 122.61(a) takes care of parameters not limited in the permit in most instances; similarly § 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) Transfers. The provision on transfers appeared in the proposal in § 122.8(e). These final regulations contain a separate section on transfers, § 122.14. This standard permit condition reflects the requirements of that section; see the preamble discussion thereunder. (c) Monitoring reports. The new section of the permit listmg reporting requirements 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 § 122.11 and the sections which it refers to. (d) Compliance schedules. The requirement for the submi sion of reports on compliance or noncompliance with requirements in a compliance schedule appeared in proposed § 122.12(a)(2) (now § 122.10(a)(2)). Because this requirement is binding on all permittees with compliance schedules, it is referred to also in final § 122.7(1)(4) to make sure that it will appear in the permit. (d) Twenty-four hour rej orting. Proposed § 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 instances, and that- the Director “shall” require such reports within 24 hours in the case of NPDES permittees subject to CWA section 307(a) toxic standards or prohibitions. Many commenters objected that the duty to report these instances of noncompliance was vague, unreasonalbe, 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 five-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 endangerments 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 reporting is likely to be applicable. While in many cases the prompt reporting of instances ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33307 of noncompliance affecting human health and the environment must depend on the permittee’s good faith estimation pf 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 (NPDES), 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 requires notification of any fire or explosion at an HWM facility, as required in each RCRA permittee’s contingency plan, even though there may be no specific permit condition directly prohibiting fires or explosions io as to render the event technically a ‘noncompliance.” Each event reported under § 122.7(l)(6) snd the corresponding program sections must be followed by a written submission within 5 days. The list of information that must be submitted in the written report speaks in terms of “noncompliance,” but where a report mustbe 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 been eliminated. The requirement for oral reporting within 24 hours is now uniform in all instances covered by new § 122.7(l)(6). The provision for RCRA has been coordinated with the language in the section 3004 regulations; see § 122.28(d) and 40 CFR § 264.56. 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 hours or 5 days that the permittee would have to be informed of somehow, and there is no 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 all 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 under 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 permittee. The cross- reference has been eliminated. (h) Other information. This heading, which was only implied in the proposal through the duty to report causes for modification, requires permittees to update information submitted in their applications or reports. If the permittee learns that incorrect information is contained in its application or reports that have been submitted, it shall correct the information “promptly.” The permittee’s reporting requirements are summarized in Table V. § 122.8 Establishing permit conditions. Final § 122.8 (proposed § 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 consulted by permit writers in setting these variable permit conditions (see also Table II and preamble to § 122.13). 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, ahd to relevant portions of the technical regulations for the program. Table V.—Perm:ttee Reporting Requirements Type of information When Add,t ,onal program requirements 1 Planned In advance - § 122 28(c) (RCRA), changes § 122 41(c) (UIC). § 122 60(g)(3)(i) and § 122 61(a) . (NPDES) 2 Anticipated In advance noncompb . ance 3 Planned In advance transfers 4 Monitonng reports As specified in permit § 122 60(e) (NPDES) $ Compliance 14 days of schedutes compliance date 6 Endanger. 24 hours/5 days § 122 28(d) (RcRA), mentor § 122 41(d) (UIC). Other 24 § 122 60(f) hours/5 day (NPDES) 7 Other With monitoring noncompli- reports ance 8 Other PrompUy ,nformation 9 Additional As specified § 122 28(e) (RCRA). program § 122 41(e) (UIC), require- § 122 60(g), ments - § 122 60(h). § 122 61(a). and §12261(b) (NPOES) The fact that this section is the guide ‘to all permit conditions which do not always apply in the same way or in 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 Duration of permits. Proposed § 122.8 (now § 122.9) provided that RCRA and UIC permits ------- 33308 . Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations would be issued for terms up to the life of the facility. NPDES and 4O 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 § 122.14) provided that a “cross-review” of each issued permit would have been conducted every time another permit 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 and reissued,or terminated. Proposed § 122.9 on causes for modification (now § 122.15) 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 with 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, particulary for RCRA permits. These commenters felt that regular review and updating of permits is necessary for an effective mc 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.thinldng. EPA has extensively redrafted the permit duration, permit review (proposed § 122.9, now deleted but discussed below), permit termination (proposed § 122.10,. now § 122.16), effect of a permit (proposed § 122.7, now § 122.13), and , consolidation of applicatinns (proposed § 124.4, now § 124A) 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 mc 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’ Act. _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 § 122.9 now states that all HWM facilities may be issued permits which are effective Tor 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 webs)’ may be issued permits for up to 10 years.Wells for enhanced recovery, hydrocarbon storage, and special process mining (Class II and III 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 § 122.37)) may receive a permit for up to 10 years. EPA agrees with those commenters who believe that permit expiration and reissuance is an important mechanism for providing regular scrutiny of permit 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 netv or undergoing rapid evolution. Accordingly, EPA has determthed. that R RA facilities and Class I wells under the UIC program will be issued permits 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 approach, especially during the early. years while technical criteria for the regulation of hazardous and municipal waste are further developedt 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 determined 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 facilitie ’ .as a class, than for NPDES point sources as.a.class, particularly-in view of widespread shortages of capacity within approvable facilities and the consequent lack of local alternatives. In addition, a term of up to ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33309 10 years may be needed for some RCRA facilities because of their experimental nature and the need for adequate time to analyze differing approaches to hazardous waste management. Finally, 10 years was chosen because it is a multiple of five, which will make it easier to coordinate the reissuance of RCRA permits with NPDES and UIC permits for the same facility. Having chosen maximum 10-year terms for RCRA facilities, EPA determined that the maximum term for Class I wells should likewise be 10 years. To provide otherwise would not comport with EPA’s attempts through consolidation to achieve consistency between programs, particularly as Class I wells include those injecting hazardous wastes. Class II and 111 wells under the UIC program, on the other hand, will retain the maximum lifetime permit duration which appeared in the proposal. These wells, which are used for enhanced oil and gas recovery, certain types of hydrocarbon storage, and several kinds of special processes for mining of minerals or in situ gasification of hydrocarbon resources, present less hazard to the environment, so that the increase in permit issuing resources needed for fixed-term permits would not be justified. Instead, permits for these facilities will be reviewed every 5 years, as in the proposal. (2) Several commenters stated that UIC permits should be for the actual life of the facility rather than the “designed” life, on the grounds that for many facilities the “designed” life is hard to determine or arbitrary, and that a permit renewal application would be required if the facility happened to last longer than originally computed. The purpose of this provision was to be sure that EPA and States would have adequate oversight of the termination of facility operations, particularly the closure and financial responsibility provisions set forth in § 122.42. However, EPA agrees that setting the permit term on the basis of an estimate 05 the operating life of the facility is not the way to do it, - particularly as the estimate could fall on either side of the actual date of closure. Rather, EPA has amended § 122.41 to require UIC permittees to give notice 180 days prior to closure so that the financial responsibility and closure provisions of the permit can be reviewed and modified if necessary, and the permitting agency can be assured of adequate opportunity to oversee the termination of operations. This change has consequently allowed EPA to amend § 122.9 so that Class II and III wells may be permitted for up to the actual operating life of the facility. (3) Several conunenters noted that both the lifetime and fixed-term permit provisions gave the Director discretion to issue permits for less than the full allowable term. EPA believes that the option of issuing permits for less than the maximum duration is necessary in both instances. For example, Class II and Ill UJC wells include a wide variety of operations in various locations with differing environmental concerns. More rigorous oversight through a term permit may be appropriate because of the type of the well, its past operating history, and the risks to the environment which it may present. For the fixed term permits, permits of less than 10 year durations will be a normal occurrence, both in consideration of varying environmental risks and as permit durations will be set to allow permits for the same facility to expire and be reissued at the same time (see § 124.4 and accompanying preamble). Another example of short-term permits is the “short-term permit policy” for NPDES permits (see § 122.64), coordinating permit durations so as to incorporate BAT effluent limitations mandated by the NRDC v. Train settlement agreement. § 122.10 Schedules of compliance. (1) Proposed § 122.12 (now § 122.10) solicited comments on the possible need for uniformity in two requirements for schedules of compliance: (a) the deadline for permittees to give notice of compliance or noncompliance (14 days from the compliance date for EPA programs, but 30 days for UIC programs and for all State programs); and (b) the maximum interval between compliance dates (9 months for EPA programs, 4 year for States). In both instances, commenters heavilj favored greater uniformity. Not a single State specifically commented in favor of the greater latitude for States which appeared in the 1 proposal. As for uniformity among programs, almost all comrnenters stated that they favored it, and then went on to lend support to the less stringent requirements of 30 days and one year. EPA agrees with commenters that timing requirements associated with compliance schedules is an area where one of the potential benefits of consolidation—elimination of arbitrary differences in requirements shared by several programs—can be realized. (a) The NPDES program, which has had several years of experience in monitoring permit compliance and is the only program covered in these regulations with Federal enforcement experience, has found that the 14-day notice requirement is an important element of State and Regional oversight. In some cases delay in reporting could result in damage to the environment. Balanced against this possibility, there is little increased burden in requiring prompt notice, because notice is required in any event, and the permittee knows or should know that it is in noncompliance on the date specified for the requirement in the schedule. EPA has therefore determined that the deadline of 14 days after the compliance date for notice should be retained as a uniform requirement for all programs and, in view of comments in favor of uniformity, for States as well. (b) Stating a maximum time between interim compliance dates limits the Director’s discretion in writing permit conditions. The dates he or she sets for compliance will determine how soon information on noncompliance will be received. Timely receipt of information is particularly important for State- administered programs, where EPA will be relying on summaries of compliance schedule violations contained in quarterly or annual noncompliance reports. In the interest of uniformity, EPA has determined that a maximum one-year interval between compliance dates is practical. Because the provision sets forth the maximum interval between deadlines, the Director is always free to set deadlines closer together when more rigorous oversight is important. Normally “milestone” events occur at intervals shorter than one year. Under § 122.10 [ a)(3)(ii), Directors must require progress reports where it is impractical to specify compliance intervals of one year or less. (2) A comment following proposed § 122.12(a) stated that NPDES new dischargers, sources which recommence discharge after terminating operations, and those sources which had been indirect dischargers which commence discharging into waters of the United States, do not qualify for compliance schedules. This comment was taken from the language of § 122.17(f) of the NPDES regulations. Final § 122.10(a) reinstates this language as part of the text of the regulation rather than as a comment to emphasize the regulatory effect of the section. In addition, the proposed comment to § 122.12(a) failed to specify that NPDES new sources are ineligible for schedules of compliance. The comment was thus inconsistent with § 122.17(f) of the final June 7, 1979 NPDES regulations and with section 306(e) of CWA. This omission has been corrected in the final regulations. Some comnienters questioned whether the comment to proposed § 122.12(a) (and the corresponding provision in ------- 33310 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rirles and Regulations § 122.81(d)(4)) could be construed to mean that dischargers subject to its provisions are never eligible for schedules of compliance, even for permits issued after the first permit. EPA did not intend this interpretation and thus has clarified the section to indicate That these dischargers will be ineligible for schedules of compliance only for the first permits issued to them. An additional change in the text of final § 122.10(a) (and a parallel change in § 122.67(d)(4), proposed as § 122.81(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. Because a number of new dischargers had begun discharge before the August date with EPA’s consent pending Agency action on their permit applications, EPA believes it would be unfair to retroactively dedare such dischargers ineligible for schedules of compliance. (3) Several commenters, including the State of New Mexico, stated that they thought compliance schedules are unnecessary for the UIC program. This section will not disrupt those State- administered UIC programs which have used compliance schedules infrequently. Those States are free to continue their practice of requiring full compliance on “startup.” However, the UIC program does contain requirements for which compliance schedules may be appropriate. For example, although States may, if they wish, require even existing operations to stop injection pending permit compliance, the regulations require that, if States do not choose this route, permits for existing wells are at least required to contain schedules for compliance with constructions requirements; see § 122.42(a). (4) Some commenters expressed’ concern about the applicability of schedules of compliance to State 404 permits. Under proposed § 122.1.1(a) (now § 122.10(a)), permits will specify schedules of compliance only “where appropriate.” Because CWA does not establish a series of deadlines for the 404 program comparable to the “BPT” and “BAT” schedules for the NPDES program, and because 404 activities are generally not continuing ones, section 404 permits will rarely specify schedules of compliance. (.5) Several environmental groups and other commenters advocated a time limit, such as two years,. for compliance with RCRA requirements. They cite the importance of bringing existing. hazardous waste management facilities into full’ compliance with RCRA section 3004 requirements after they have obtained permits, as well as the need for an incentive for such facilities to begin upgrading during the interim period in anticipation of strict permit conditions. EPA agrees that speedy compliance by H’WM facilities with § 3004 standards is important, and has amended § 122.10(a) to require compliance “as soon as possible” for all compliance schedules, not just those in NPDES permits. See also § 122.10(a)(1)(ii). However, we believe that it would be a mistake to impose a strict deadline for RCRA or other program compliance, because it would eliminate any authority to shape the duration of compliance schedules as the circumstances warrant. EPA believes that decisions as to the duration of compliance schedules should be made through the permit-issuance process, where there’ is full opportunity for public participation and for interaction between the Director and the. applicant or’permittee. A requirement for strict interim compliance deadlines coupled with the new fixed-term permit requirements of § 122.9 should help support quick upgrading of existing HWM facilities, Likewise, a commenter suggested that it is unfair to require compliance as soon as possible, because this favors the company whose’ resources or wherewithal make it impossible to comply as soon as some other company with superior capabilities. It’is important to write a compliance schedule with consideration for the type’ of requirement at issue and the seriousness to the environment of delay in meeting it. Again, the permitting process’ is the proper forum for consideration or these issues, rather than forexample,. eliminating all distinctions by allowing all NPDES schedules to require compliance merely by the statutory deadline. (6) Proposed § 122.12’(b)and (c) has been combined in final § 122.10(b) to provide one “alternative’ schedules of compliance” provision applicable to all RCRA, UIC,, and NPDES situations where a facility chooses to terminate operations rather than meet permit requirements. The RCRA and UIC alternative schedules of compliance now follow the NPDES model. A principal feature of the RCRA and UIC proposal was that permittees could switch back and forth between the schedule leading to compliance and-the schedule leading to termination. That provision was subject to the very abuses which all of the alternative, schedule of compliance provisions are designed to prevent:. namely,. when. a facility chooses to terminate rather than comply with permit requirements by assuring EPA that it is going to terminate operations, but then changes its mind either in good or in bad faith, and therefore requires more time to make up what was lost while presumptively on the road to termination. To prevent this from happening, it is necessary to require the permittee to commit itself to terminating if it is to be placed on a termination schedule, as ih proposed § 122.12(c) for’ NPDES. Similarly, thecommitment has to be “a firm public commitment satisfactory to the Director.” However, the requirement that a bond be posted to back up the commitment, which appeared in proposed § 122.12(c), has - been eliminated. Several commenters argued that EPA lacked legal authority for such a bond under the Clean’ Water Act, and the need for a bond has not yet been demonstrated in the case of RCRA’ or UIC. An additional change from the proposal is that alternative schedules of compliance are now available to RCRA and UIC permittees in addition to applicants, as it was limited in the. proposal. Alternative schedules for applicants will, as with permittees, be determined through the permit-issuance process. The alternatives schedules of compliance provision is written to allow’ the final termination date in a schedule leading to termination to be somewhat later than the final compliance date in a schedule leading to compliance. However, the schedule leading to termination must still lead to “timely” cessation of activities. It is. not EPA’s intent for the termination route in this section to be used as a means of unduly delaying requirements that are applicable to the facility. The delay must be judged on a case-by-case basis. considering the type of permit requirement and, the harm. or potential harm to the environment that the noncompliance or a delayed. schedule will cause. In no event should the date for cessation greatly exceed what it would have been for compliance. Nor is it EPA’s intent that a schedule of compliance leading to cessation of activities relieve a permittee from applicable requirements any more than any other schedule of compliance. Obviously, if a permittee will cease activities, many permit requirements. which apply only to operating facilities will not have to be complied. with after cessation. Such requirements, to the extent that it would not cause harm to the environment, many also be relaxed during the period leading up to cessation when’ the permittee is firmly committed to the cessation course. To the extent that requirement for operating facilities ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33311. ire necessary to protection of human iealth and the environment, compliance nay not be excused. At a minimum, a CRA (or UIC injector of hazardous waste) permittee on a closure schedule should be required to meet RCRA interim status standards, just as a facility without a permit would be. Finally, RCRA (and certain UIC) 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 commenters noted that the proposal required the per.mittee 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 perinittee 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 compliance or closure alternatives. Where existing permits are concerned, the paragraph is designed to give the )irector an optional mechanism for modifying permits when the permittee has made the decision to terminate. Presumably such a perinittee 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 provision requires timely compliance in general, thus eliminating any implication th’at 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 permittee 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 ‘tCRA facility, this means ceasing to ccept hazardous waste which, under 40 FR Part 264, Subpart C, triggers the closure plan, which will contain its own schedule for subsequent events. § 122.11 Requirements for recording and reporting of monitoring results. Several commenters noted the inaccuracy of the comment that “generally installation of monitoring equipment is not required under the UIC program” in proposed § 122.14 (now § 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 cdmment 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 § 122.7(j); recordkeeping requirements are also in § 122.7(j). The requirement that DMRs be used for NPDES reporting now appears in § 122.80. Finally, proposed paragraph (e), which repeated requirements for compliance schedule reports, has been deleted. One commenter expressed concern that the recordkeeping and reporting requirements for 404 permittees in proposed § § 122.14 and 122.12 (now § 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 recordiceeping, 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 o assure compliance with 40 CFR 230. Part 230 does not contain specific monitoring requirements but will be used to determine what monitoring is appropriate. § 122.12 Considerations under Federal law. Proposed § 122.83 (now deleted) directed that EPA-issued NPDES permits be consistent with the requirements of several listed Federal laws and Executive orders. Several commenters objected to this section because it was too broadly written. The section has been rewritten (as § 122.12) to eliminate 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 limite .d 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 commenters objected to this proposal on 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 the address listed below on or before July 18, 1980. Edward A. Kramer (EN—338), Office of Water Enforcement, Environmental Protection Agency, Washington, D.C. 20460. § 122.13 - Effect of a permit. (1) New § 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 § 122.9.) This 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, ------- 33312 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations compliance with a permit is not a defense to actions brought under the emergency provisions of sections 7003 of RCRA, 504 of CWA or 1431 of SDWA.) A similar provision already applied to NPDES permits, as explicitly required by section 402(k) of CWA, and appeared in § 122.65 of the proposal. Because the provision is now generally applicable. § 122.65 has been eliminated. For State 404 programs, new § 122.13(a) is similarly required by the explicit wording of section 404(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 II or III well UIC permits, because it is important to be able to upgrade perniit requirements for permits which do not incorporate applicable requirements during periodic reissuance. Where RCRA is concerned, 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 “shield” 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 law. In addition, such a provision would increase pressure on EPA and States to keep the permit conditions applicable to a given facility in a perpetual state of re-examination. EPA’s resources will at most be barely suffiôient to issue and renew RCRA permits, and review State permits, at the time of their initial issuance and periodic renewal. EPA and States are 6 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 RCRA permit except for noncompliance with the conditions of that permit. (For reasons set out at length in the peramble to the section 3004 regulations, this 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 as to enforcement through citizen 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, as a practical matter tbere will be nothing beyond the permit conditions for a citizen 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 Snot 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 from 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 md regardless of whether the permittee were complying with the monitoring or reporting requirements of its permit. 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 correctly apply them to the permittee through its permit. This means that a permittee may rely on its EPA-issued permit document to know the extent of its enforceable duties under the appropriate Act, or on its State issued document to the extent 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 § 122.15 and 122.16). 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 § 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 permittee 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 § 122.16(a)(3)). In addition, EPA has the authority in certain circumstances to “veto” a State-issued - RCRA permit. 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 written 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 appropriate; see Table H and accompanying preamble. (2) Proposed § 122.7(b) (now § 122.13(b)) provided that a permit does, ------- Federal Register I Vol. 45, No. 98 / Monday, May 19. 1980 I Rules and Regulations 33313 not “infringe” State or local law or egulations or preempt any duty to btain State or local assent required by iw. EPA recieved several comments on these proposed provisions, particularly 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 Environmental Services v. Iberville, 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 iade a determination through these pgulations that in issuing a permit it is reempting State or local requirements. Review of permits (proposed § 122.9). In the proposal, the provisions for permit “reviews” were of central importance, and recieved an appropriately large volume of comment, because they were a counterpart to the proposed lifetime duration of RCRA and UIC 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 II and Ill UIC permits (proposed § 122.9 (a)) remains in § 122.9(c) (duration of UIC permits), the other provisions concerning review that appeared in proposed § § 122.9(a), (b) and (c) either have been eliminated or are adequately covered by Part 124. First (proposed § 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 reissuance. Second (proposed §122.9(b)), EPA has eliminated mandatory “cross-reviews” for facilities with more than one permit md 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’s 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, as 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 § 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 § 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 § 124.5, 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 ways 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” describes 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 § 122.9(d)) as misleading 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 evidentiary 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 submitted. 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 Transfer of permits. The provision on transfers appeared in the proposal in § 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 H 122.9(e)(4) and 122.10(b)(4fl. 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. It is EPA’s 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 ------- 33314 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / 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 permittee. 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 is desirable to require the prospective new permittee to submit a permit application; see preamble to § 122.15(b). For permits that are automatically transferred under this provision, the transfer-based cause for modification or revocation and reissuance ( 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-terfn 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 permittee and which necessarily 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 is 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 § 122.7(l)(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 § 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 transferred; 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 § 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 modified without requiring a new application. § 122.15 Modification or revocation and reissuance of permits. EPA has rewritten the permit modification section in two ways as part of the effort (see also § § 122.9 and 122.13 and accompanying preamble) to provide greater certainty to permitteeè 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.) In addition, certain “minor” modifications ( 122.17) can be made, with the consent of the permittee, absent cause from the list in § 122.15. First (see § 122.15(a)(1), proposed § 122.9 [ e)(1)), 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 permit 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 § 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 permittees 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 § 123.97(b).) For NPDES, see the related causes for modification discussedbelow under § 122.15(a)(5)(viii) and (ix). Permittees have a duty to report all changes in the physical facility, and all other changes that may result in noncompliance, under §122.7(1). ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33315 Second (see § 122.15(a)(2), proposed 122.9(e)(2)), the Director may receive - ew information which justifies applying conditions different from those in the permit. However, except for Class II and III 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 II 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 conditions 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 ime 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 “new information” is information that cumulative effects of activities authorized by a NPDES or 404 general permit or UIC area permit are unacceptable. Thus, for example, any new information indicating tj at 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 (c)), 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)(4), 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 permitt es with maximum certainty and rotection from regulatory change ‘uring the terms of their permits. EPA ias 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 U and Class Ill 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 § 122.15(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)(viii) and (ix)) 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 Ill of the June 14, 1979 Federal Register (44 FR 34393), a permittee was limited to five times the levels or the detection limit of all pollutants reported in the application form but not otherwise limited in the permit. Under the prop.osal, 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)(5)(x).) The Director 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 of 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 III 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 be 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 applicable requirements (see § 122.8). (“Revocation” is used in these regulations only as part of this “revocation and reissuance.” “Revocation” of a permit under section 3008 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 permit 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. ------- 33316. Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / 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 permittee’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 new 5 or 10-year permit over a limited modification to a permit which may be extensively revised again soon during the permit-reissuance 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 reyoked and reissued ( 122.15(b)(2)): see preamble discussion of permit transfers under § 122.14. In many cases a modification may be adequate to reflect the name of the new permittee; 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 pehnit with a full term may be more appropriate than a simple modification of the prior permit. Similarly, a new permit application to assure an updated plugging and abandonment plan ( 122.42(a)) may be appropriate for any UIC facility. Idkewise, existing industrial NPDES permittees 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 qpplication, 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 conditions 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 can be dealt with. § 122.16 Termination of permits. In general, commenters on proposed § 122.10 (now § 122.16) sought greater specificity regarding causes for termination and less breadth in their possible application, such as limiting terminations to “willfull 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 need is present. Most attempts to narrowly define the boundaries of cause are inadequate because they must be invoked in a wide var ety 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 significant. The objective is not to try to describe precisely the circumstances which provide grounds for termination, which 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 40 CFR Part 22 will no longer apply to RCRA 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 “enforcement” resources. Because of these limitations on resources, it makes no sense to enforce against trivial infractions when unremedied substantial infractions exist. This alone in most cases should prevent the Ditector from reading the termination causes too broadly. It should also be clear that in most cases less drastic actions, such as permit modifications, are available. Proposed § 122.9 stated that for NPDES and 404 permits, causes for termination could also be causes for modification or revocation and reissuance, thereby implying that this was not so for RCRA or LJIC. 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 revoking and reissuing permits during their terms (see §122.15(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, § 122.16(a)(1) (proposed § 122.10(b)(1)) has been narrowed to exclude violations of the appropriate Act as an independent cause for termination. It now reads “noncompliance by the permittee with any condition of the permit.” ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 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 cause for modification, provide a means of circumventing the limitations on opportunities for modifying permits during their terms which the changes from the proposal are intended to provide. 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 pbrmit. 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 partial 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 final § 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(g) (now § 122.17) contained several provisions for minor permit modifications which 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 commenters on the RCRA 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 mqdification on the list can be made without public notice if both the Director and the permittee agree to the minor modification. If either disagrees, the permit modification is not minor and must be for cause and with public notice as required under § 122.15. Several commenters suggested that the list of minor modifications should be examples, rather then exclusive. EPA rejects the nofion 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 commenters 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 course, as with any Part 122 requirement, a State is free to have such provisions as a part of its 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 commenters suggested that minor modifications 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 § 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 § § 122.9(g)(5) and (6) and 122.24(d)). These RCRA provisions have been deleted from the final regulations. They were so broadly phrased 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 permit 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 § 122.15 (now § 122.18) has been completely reorganized to bring all of the provisions for quarterly and annual noncompliance reports together in Subpart A. Minor changes have been made to achieve this reorganization, but 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 confusion between “program reports” and noncompliance reports. Because ------- 33318 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / 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 VI. Table Vl.—Noncomphance and Pmgram Reports Noncompliance Program Quarterly Annual Annual program ACRA UIC 122 18(a) 122 18(a) 122 18(c) 122 18(c) 122 18( )(3) 122 18(c)(4) NPDES 122.18(a) 122 18(c) . 404 . 12218(b) 122 18(d) . 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 noncompliance reports useful. (2) The most frequent comment received on this section was that EPA should provide a definition of major facility and minor facility. In 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 facilfly 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 specify this term more precisely, although that would be desirable as a matter of policy. However, it 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. For 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 § 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 § 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 reported by permittees in a number of ways. While it is true that permittees are required to report noncompliance ( 122.7), this has no bearing on the need for oversight agencies and the public to have summaries of information on how ihe programs are being enforced. (4) Three basic informational items for quarterly noncompliance reports which appeared in the final NPDES regulations 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 § 122.18 and § 122.18(a)(3) add a requirement for a quarterly report concerning noncompliance by RCRA hazardous waste generators and transporters and all RCRA facilities having interim status. While the proposed regulations dealt only with permittees, EPA realized it 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 § 122.18(e)(2) has been changed from the fiscal year as it appeared in the proposal for NPDES ( 122.72(f)) to the calendar year for all programs. EPA made this change to coincide with business recordkeeping 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. § 122.19 Confidentiality of information. Paragraph (a) of § 122.19 (proposed § 122.16) states that information claimed - as confidential will be treated according to the EPA’s rules contained in 40 CFR Part 2 (as amended Sept. 8, 1978; 43 FR 3999). Cominenters raised several questions concerning § 2.208 of those regulations. Section 2.208 sets forth the substantive criteria for use in business confidentiality determinations. First, commenters suggested that if under § 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 § 2.205(f). Second, commenters argued that § 2.208(e) should be amended to specifically prohibit releasing information which would violate 18 U.S.C. § 1905. The commenters argued that 18 U.S.C. § 1905 is incorporated in the third exemption to the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(3). EPA does not agree that 18 U.S.C. § 1905 is incorporated in the third exemption to the FOIA. Rather, EPA believes that 18 U.S.C. § 1905 limits the Agency’s discretion to disclose information. EPA recognizes this in its defiflition of “reasons of business - confidentiality” in 40 CFR § 2.201(e). As a matter of policy, EPA does not disclose information covered by 5 U.S.C. § 552(b)(4) (see 40 CFR § 2.119). EPA interprets 18 U.S.C. § 1905 to be within the scope of 5 U.S.C. § 522(b)(4). ------- FederalRegister/ Vol. 45, No. 98/Monday, May 19, 1980 / Rules and Regulations 33319 Consequently, information within 18 U.S.C. § 1905 would not be disclosed. Therefore, as a practical matter, the existing regulations adequately address this comment. Paragraph (b) of § 122.18 lists information specifically required by statute to be disclosed even if the information would otherwise be exempt from disclosur’e 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 § 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 he case of all permits other than NPDES permits, permit applications and permits. Data which are not specifically listed in paragraph (b) will be disclosed to the public under the procedures discussed in § 122.18(a). If 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. Thereforerif 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, EI A 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 § 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. If EPA determines that it is necessary to disclose 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 § § 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 Lhe clear purpose of section 402(j) of the CWA. Section 122.19(c) refers to the requirement in § § 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 § § 122.4 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 enbsantiate 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 12746, 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 permitting authority will use in making its determination. Under RCRA and FOIA, EPA has an affirmative dut3, to make non- confidential 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 confidentiality 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 Agency’s business confidentiality regulations. The final approach will provide the Agency and States with all the information they need to make ------- 33320 Federal Register /Vol. 45, No. 98. I Monday, May 19, 1980 I Rules and Regulatjons 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 confidentiality 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 time of filing the permit does not change the substantive criteria for determining whether infoi mation is entitled to confidential treatment. Subpart B—Additional Requirements for Hazardous Waste Program § 122.21 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 § 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 similarto 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 identification 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 NPDES Surface Impoundments. Proposed § 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 POTWs. 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 (1) mixed with domestic sewage in a sewer and then (2) discharged from the sewer into a POTW, is exempted by the statute from treatment as soild waste. This conclusion is 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 discharged into a POTVtI without losing their hazardous character by being mixed with domestic sewage in a sewer.i For example, the hazardous wastes might be dumped into the POTW from a truck or 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 imaterial 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 ( 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 “No.” - Manifested wastes may only be delivered to an approved HWM facility, and sewer systems will not be approved 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 domes tic sewage had in mind avoiding disruption of the existing patterns of funding and operation of POTWs receiving waste from “indirect dischargers,” 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 not a POTW that received hazardous waste in any form, whether or not mixed with domestic sewage in a sewer, Is subject to the full range of RCRA’s regulatory requirements However, if such a facility receives only domestic sewage it is of course exempt from RCRA requirements altogether because domestic sewage is not classified as a hazardous waste ------- Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 I Rules and Regulations 33321 health and the environment or should not have to obtain a permit where the lowner or operator can demonstrate that no harm to groundwater will occur. Others stated that requiring NPDES - surface impoundments to obtain RORA 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 {or 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 ai ended 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 BMP programs. Comments also stated that the requirement for a RCRA permit was inconsistent 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 environmental inipaèts. These types of problems are not directly addressed througb NPDES permits, but are directly regulated under RCRA. The CWA does not provide authority to sef 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 BMPs 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, regardless of the condition at the point of entry to 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 of 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 for a permit. Proposed § 122.23 described permit application requirements for existing and new F 1WM 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 forth 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 and Address 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 abc months. 2 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 284 regulations, in the fall of 1980 States with approved Phase II 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 preparatiqn of the application, actual’submission of the Part B application cannot be required before the spri’ngof 1981. For new sOurces the zegulations prohibit construction without a permit. For the reasons set fbrth later in this preamble, EPA believes such a rule is essential to carry out the purposes of RCRA. Exactly how itoperates 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 new 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 to promulgate regulations in June of 1980 listing or designating additional wastes beyond those listed or designated in its initial promulgation The wastes to be listed or designated in June are set forth in an Appendix to the initial promulgation EPA encourages owners or operators applying for interim status before that second set of wastes is actually published to list or designate any of the wastes in that set which they are treating, storing or disposing of. That will avoid the need to update the Part A application extensively when promulgation occurs. ------- 33322 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations listed. (As noted above, EPA intends to list or designate additional wastes-as hazardous in June of this year.) A more flexible rule applies 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 filing 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 them, 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 climatological data or information to determine compliance with the interim status standards. Commenters 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 recognizes 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, RCRA 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 th,eir 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 document 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 application. Earlier submittals are always possible. (2) Permit Prior to Construction of New Facilities. Many commenters objected to § 122.23(b) which would require a permit prior to construction of 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 capital and 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 HIIVM 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 requirement into R RA must have meant the task of permitting to have independent regulatory significance, and EPA intends 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 is made to the location, design, and construction which the applicant itself has chosen. Allowing such commitments to be made before assuring that they ------- Federal Register / Vol. 45; No. 98 / Monday. May 19, 1980 I Rules and Regulations 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 was 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. If the 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 critical 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 application 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 day 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) Revocation of Interim 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. Comnienters 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. 3 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 peritlit 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 HIIVM 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) Deft nition of Existing HWM Facility. The proposal defined an exJ ting 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 commenters stated that interim status should not apply to owners and operators of facilities under 5 Pailure to furnish an acceptable Part A, by contrast, means that Interim status never starts. construction buj only to facilities in operation. Others indicated that section 3005(e) refers to facilities in existence on the date of enactment of RCRA. 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 Octobel” 21. 1976. EPA regards it as all but certain that Congress will act to change this definition before these regulations become effective. Amencljnents 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’s Prevention of Significant Deterioration (PSD) regulations issued under the Clean Air Act. These regulations specify that construction has commenced before the date in question if: ------- 33324 Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations 1. The owner and operator has 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 intended that the continuous on- site, physical construction program include physical site preparation. De8ign 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 faclifty 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 feasibifity, 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 RCR.A permit process. (2) Changes in the Facility During Interim Status. A number of commenters 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 asare: LI) 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 statñs wotild provide a loophole to avoid the requirements for obtaining a permit (as would 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 application) 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 aftd 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 these instances the Director may inspect a facility prior to or after such a change and may disapprove a cl ,ange that would result in a violation of the interim status standards. Changes in ownership and operational cuntrol of a facility may only occur during the interim status period in accordance with the requirements of 40 CFR § 265.150. 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 during interim status will allow reasonable modifications in existing facilities without creating a situation in which the requirements for obtaining a permit are 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 patterns 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 not believe that facilities which have not yet 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 applicatidn 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 a• different effect under these regulations. The acknowledgment was not an ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 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 § 122.23(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 information has been sent and received. One commenter 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. § 122.24 Contents of Port A of the RCRA 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. § 122.25 Contents of Part B of the RCRA 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 facility standards. Also included were geological and hydrogeological data, a description of the climate at the site, a list of positions and job descriptions and a listing of the performance bonds and other financial instruments! This general approach created some confusion because the relationship between the proposed section 3004 regulation and the permi) application requirements was not clear. Many commenters 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 284 of this chapter. Only Subparts B through E of Part 264 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 284 later this year. Section 122.23 of the proposed rules contained provisions for the Director to waive 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 POTWs. 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 regulatioti 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 nile 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 back substantially, EPA continues to believe that such an approach is both legally justified and appropriate in certain cases. The courts have interpreted the Clean Water Act to allow the issuance of “general” or “area” permits coverthg point sources under that statute. Natural Resources Defense Council v. Costle, 568 F.2d. 1369, 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 RCRA, 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.C ean Water Act, the Ocean Dumping Aot 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 activitierthat a RCRA permit would regulate are for the most part already regulated under another EPA permit and thünly purely RCRA-related provisions are those that are not site-specific and do not need to be particularized in an individual permit. The choice here is b tween requiring a duplicate permitproceeding 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 POTWa for the reasons discussed above. This provision caused considerable confusion in the proposed regulation. Permit by rule was only to be ‘applicable to the rare situation where a 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 facilities ------- 33326 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations do not come under the special Congressional intent applicable to POTWs and there is therefore no reason to exempt them from otherwise applicable RCRA requirements. The remaining uses of pernilt 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 progrim 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 ECRA 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 UIC 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 same 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 jurisdictionat boundaries are retained in these final regulations, and are discussed below. In general, UIC permits will be required for the well itself, 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 U1C 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 SDWA. 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 beenTevised so that they can be applied to wells. Thus, e dsting UJC 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 l-IWM 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 U1C programs become effective, all such wells will either be issued UIC permits (in which case they will qualify for the RCRA permit by rule. § 122.261, or they will be required to shut down (see, for example, § 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 this period. Per .haps 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 UIC permits will not be in place for some time. Thus, the only practical altematiye 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 270 days after the promulgation of UJC regulations to submit a program, and the Administrator may extend this period by as much as another 270 days. If the program submitted is unacceptable. EPA must promulgate one. This could take considerable additional time, resulting in delays of perhaps as much as two years after 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 UIC wells with interim status wifi 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 UIC hazardous waste injection well, the well will become subject to the general RCRA permit by rule. Thus, they will not be required to obtain individual 1-IWM facility permits. Sections 122.38 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 § 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 § 1006(b) of RCRA, which obligates EPA to ‘avoid duplication, to the maximum extent practical, with the appropriate provisions of * * * the Safe Drinking Water Act” * * § 122.27 Emez ency perm its. Several comments were received on the proposed emergency authorization provision. In general, commenters supported EPA s proposal. Some commenters stated that the 90-day limit for such authorization was too short while another commenter stated this action should not be limited to permitted facilities. Another commenter stated that this provision was unnecessary as ------- Federal Register I Vol. 45, No. 98 / Monday . May 19, 1980 / Rules and Regulations 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, RCRA 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 program is still so new, and to restrict the number of cases in which regula.tory. action will be taken without an opportunity for public comment. § 122.28 Additional conditions applicable to all 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 allows 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 comxnenters 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 cominenters argued that this requirement is too restrictive for Federal facilities. Other commenters argued this requirement is not necessary as most States have reciprocity agreements for registered engineers. EPA agrees thit 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. Most commenters 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 certification, he or she waives the right to prior inspection, and authorization to commence operations is -automatically granted. Another commenter stated that EPA had not provided a standard to be applied by the Director to determine whether operation shoi!ld begin. The regulation now provides that the Director shall authorize commencement of operation if he or she finds the facility is in compliance with the conditions of the permit. - Several commenters also objected to the proposed requirement (§ 122.24(b)) which allowed the Director to establish permit requirements as necessary to protect human health and the environment. Cominentera thought this provision allowed the Director too much discretion and would lead to imposition of conditions unrelated to RCRA. EPA agrees that this provision 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 paperwork 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 UIC wells. 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 N wells with interim status may continue to operate. New UIC Class I wells and Class N 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 RCRA permit by rule ( 122.26). However, many States 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 program and therefore no authority to permit new Class I wells (or Class IV wells, if EPA decides to allow them to be permitted). Thus, EPA could inadvertently create a moratorium on the construction of new Class I wells which could last two or more years. Because these wells are, in some cases, the preferred method of disposal of hazardous waste, EPA believes this result is undesirable. Accordingly, EPA intends to issue standards under RCRA § 3004 which would allow EPA or approved States to issue RCRA permits to new hazardous waste injection wells. Such standards would be patterned closely on 40 CFR Part 146, so that wells would not be subject to possible new or inconsistent construction and operation requirements as their RCRA permits expire and they come under regulation under the UIC program. The actual issuance of the permits involved can be done either by EPA Regional Administrators or by the States. At their option, States may assume, under section 3000 of RCRA and 40 CFR Part 123, permitting authority forClass I wells during the period after the RCRA permit requirement goes into effect, but prior to approval or promulgation of a UIC program in the State. Accordingly, States may apply to EPA for approval to issue permits under RCRA to Class I wells, as part of their applications either ------- 33328 Federal Register I Vol. 45, No. 98 / Monday, May 19, -1980 I Rules and Regulations for interim-or final authorization. The technical standards for such permits will be issued this fall at the same time as the other RCRA technical standards. and will be closely modeled upon 40 CFR 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 the State 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 IV wells are continuing to be studied in connection with the request for comments on Class IV 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(a), 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 regulations 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 requirements. 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 responsibleway. Since the program has not started yet, any estimate of the reporting needs is 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 § 122.18. Subpart C—Additional Requirements for UIC 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 146 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 believes, 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 “prbmulgation” of Part 122, 123, and 124, to the extent that they establish UIC 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 146. § 122.31 Purpose and scope of 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 USDWs are to be protected regardless of whether they have been accurately mapped or otherwise identified. Mapping or otherwise identifying USDWB will aid the Director in fulfilling this requirement. The Director may also identify “exempted aquifers” using criteria in Part 148. 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. Exempted aquifers are treated as exempt only if they have been affirmatively identified as “exempted aquifers” by the Director in the UIC program for 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 commentêrs questioned whether EPA should impose the same monitoring, reporting, construction and operating requirements for injection wells sited in areas without any USDW to be protected as it does in areas with one or more USDW. One commenter questioned EPA’s legal authority to control wells located outside State territorial waters. Several additional commenters 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. § 122.32 Classification of injection wells. In response to several comments the definition of Class I wells (other than hazardous waste wells) has been limited ------- Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations 33329 to include 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 E requirements simply because it injects under an aquifer which, miles away. contains drinking water. Such a well would now be treated 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- - - - Commissio , 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 Cjass 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 IV 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 comrnenters questioned the need for regulations governing Class II 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 Director; and elimination of the area of review and corrective action re uirements for - existing Class II wells. Those Part 148 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 ga 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.” In both the SDWA and the 1977 Amendment to the Act the term- “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 ta 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 146 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(6).) 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 operators 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 classify the underground storage of natural gas and .other gaseous hydrocarbons 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 § 122.37(c). Underground storage of liquid hydrocarbons (gasoline, crude petroleum, and others) will remain in Class 11. 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 tap. The definition of Class Ill injection wells has remainedimchanged. 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 N 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 other classes of wells in Part 146. Commenters said that sand backfill operations using uranium mill tailings which meet the hazardous waste criteria ------- 33330 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations of RCR.A might be injecting materials 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 operations, in some instances, it is the most environmentally safe method of disposal. EPA believes further study is needed before technical criteria can be prescribed for these wells. They will therefore be classified in Class V. 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. Provisions are already contained in the regulations for removal (including immediate closure) of any Class V wells which present a significant risk. § 122.33 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 146 are construction requirements. It may not be possible to assure compliance with these requirements if a permit is not issued until after construction of the well. § 122.34 Prohibition of movement of fluid into underground sources of - drinking water We have moved proposed § 122.38. the general prohibition against movement of fluids into USDWs, up front as new § 122.34. The technical rationale for the prohibition, and responses to comments, appear in the - preamble to Part 146. The provision has been augmented to include the basic provisions designed to achieve protection of IJSDWs for all classes of wells, not just Class I, II. and Ill. - 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 I, II, 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 requirements as necessary. This standard for Classes I, II, and Ill was selected because it’is operationally meaningful (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 H 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 § 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. 122.35 Identification of underground sources of drinking water and exempted aquifers Numerous commenters 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 mc 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 example, an injector might commence drilling a well believing it was not going to inject hazardous wastes and that the well 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 arnenab4 to description by geographic methods. The Director may identify USDWs 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 § 122.3(a). The term and its definition have been adopted by EPA from several suggestions by commenters. An exempted aquifer is an aquifer or portion which would normally qualify as a USDW but which for any of several specified reasons has no actual potential for providing drinking water and which has been affirmatively identified as an exempted aquifer by the ------- - Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 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 IV and other hazardous waste wells. In the final regulations, all wells which are used to inject “hazardous waste,” as defined under RCRA. are grouped into Classes I or IV. Class IV also covers the injection of radioactive wastes. Standards for Class I wells have already been discussed above. Section 122.35 establishes, on an interim basis, a prohibition, also required for approvable 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 wells— those which inject above, but not into, USDWs—are reserved. Also reserved are additional requirements (for example, monitoring and retention of records) for Class IV 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 ( 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 definition of Class N 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 (3) that the injection be into or above a USDW in order to be included iii Class N. Commenters correctly pointed out that this definition could embrace wells that were not in fact used to inject hazardous waste. A reqtilrement 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” ( 122.32). A second major change has been made with regard to the coordination of regulatory authorities under RCRA and SDWA. Both Acts mandate 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 wellhead 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 SOWA allows States up to 18 months to develop UIC programs, there could be instances in which no effective U1C 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, § 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 becomes effective, such injectors will be regulated under the UIC program. However, § 122.28 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 RCR& § 122.45 has been expanded to include appropriate standards from 40 CFR Part 264 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 comménters 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 commenters suggested that a well should not be banned if it overlies 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 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. 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 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 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 N 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 UIC 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 standards 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, EPA is considering invoking RCRA authority to deal with ------- 33332 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations Class 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 time, EPA may decide to prohibit all Class N 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 SOWA (HR. 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 containing 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 expanding the range of allowable Class N 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 drinking water. Option A takee 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 drinldng 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 supply all foreseeable needs for drinking water. In such cases. EPA is willing to consider a policy which would authorize injection through Class N 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 drinldng 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 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 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 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 in a 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 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 into account the costs; • injecting fluid will be less harmful than use of other available means; and • technology and other means will be employed to reduce volume and toxicity of waters. The applic nt 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 commoA elements under both options. Injectors would be required to obtain a permit to 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 which 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 drinking water sources, and what criteria should the Director use in granting or denying permits? Third, should new and existing Class IV wells be treated differently or alike? Fourth, should the decision to allow the use of a Uass N well be made as part of a statewide or regional plan (e.g., section 208, land use, RCRA section 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 USDWa? ------- Federal Register I Vol. 45, No. 98 I Monday, May 19 , 1980 / Rules and Regulations 33333 Sixth, what procedures should be imposed to ensure full public participation in decisions to allow injection through Class N wells? Seventh, what kinds of post-closure care requirements (monitoring, third-party liability, use restrictions) should be imposed on Class N 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 enviromnerital concerns such as aquifers discharging to streams and surface impact on vegetation? These final regulations prohibit new Class IV wells injecting directly into USDWs 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 close, which will in many cases, be more than two years after the date of these national regulations. Even though requirements for these wells are reserved under the UIC program, a11 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 V inventories. 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 to by permit. This section has been revised to incorporate the applicable requirements of § § 122.41 and 122.42. Most 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 zi injector 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. The estimated costs for this monitoring and reporting are given in the preamble to 40 CFR Part 146. § 122.38 Authorization of underground injection by permit. As proposed, the section referred to a schedule 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 permittihg 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 prior 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-in. 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 period 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 § 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 an applicant submit applications at least six months in advance of planned construction. § 122.39 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 Ill 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 of 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. Commenters pointed out that many Class [ I well fields are cut by faults, even though the field is a distinct unit. These commenters 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 permits. 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 time of permit issuance. EPA agrees, and has added a requirement that the Director consider these cumulative impacts before issuing an area permit which authorizes new wells to be drilled without specific approval by the ------- 33334 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 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 issuance. 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. § 122.40 Em ez ency permits. EPA proposed this section as § 122.40, “Temporary authorization.” It has been renamed “Temporary permits” to corresp6nd 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 Sfate Director. No State which does not wish to issue temporary .pernilts 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 he 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 it is 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. § 122.41 Additional conditions applicable to all U/C 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 § § 148.12, 146.22, 146.32 and 148.42. 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, § 122.40 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 H 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. § 122.42 Establishing U/C permit conditions. While § 122.41 itself prescribes permit conditions, this section prescribes the - 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 Part 148, 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. The injector is presumably in the best position to know how these construction-related requirements can 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 § 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 revisedthe regulations to give the Director clear 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 financial statement showing large assets sufficiently proves the applicant’s financial stability and reliability. A ------- Federal Register / Vol. 45. No. 98 / Monday, May 19, 1980 I Rules and Regulations 33335 State Director might require an applicant to set up an escrow account where authorized by State law (because 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 inconsi8tent with the broad discretion granted to the Director to approve alternative methods of establishing financial responsibility. Second. no dollar amount could 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 II wells to as much as $30,000—$40,000 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 able 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 comznenters suggested that some of the technical requirements of these regulations are not necessary when 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 gative number. In cases where .j ection does not take place into, rough 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, § 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 shall 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 action have been clarified. The applicant must identify wells within the area of review. The applicant may, but is not required to. include a plan for corrective action in the application. If no such plan is included, or if the plan is inadequate, the Director may request one, or require further information. The Director then places corrective action requirements In the permit. Several of the paragraphs 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 commenters suggested that Frasch wells should be exempted from corrective action requirements because economics preclude leaks in such wells. If these commenters 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. RCRA 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 IJIC 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 UIC 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 and 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 UIC wells than for RCRA facilities and has accordingly left the Director broad flexibility. Similarly, plugging and abandonment for a UIC well is dissimilar to closure for a RCRA facility. Plugging and abandonment is as close 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 operating and pressure monitoring practices provide assurance against migration and 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- closure 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 an independent registered professional engineer. ItCRA ------- 33336 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980’ / 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 ( 146.13(b)(l)). 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 out of the injection zone ( 146.13(c)). If.the well leaks or otherwise causes movement of fluids into USDWs, it must be repaired. To the extent that these wells present the hazards of explosion or other sudden incidents requiring emergency equipment or contingency plans under RCRA, these hazards will be associated with surface facilities, which continue 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—Additional 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 contents of the new NPDES application form, new duties to report certlin pollutants, and accompanying requirements for establishing permit conditions. The regulations appear now In § § 122.53. 122.62, 122.63. and Appendix D, and are discussed in detail in 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 § 122.51, Purpose and scope, to include proposed § § 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,” § 1?2.51(c)(2)(iv), which deals with the need to discharge chemicals and other materials to counter the effects of sudden hazardous discharges. 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 Guard to direct Federal discharge removal efforts at the scene of an oil or hazardous substance discharge according to Regional Contingency Plans. The exemption is necessary because the NPDES permit process is inappropriate for discharges required by a Federal official 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. § 122.52 Prohibitions. Proposed § 122.67(1) (now § 122.52(i)) included the terms “effluent limitation segment” and “water quality segment,” which were defined in 40 CFR § 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 standar4. A new source or new discharger proposing to discharge into a water segment that does not now meet water quality standards or is 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 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 dischargers 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 time before the close of the public comment period. This change was made in response to comments that compliance with the proposed regulation - would be unduly burdensome and that the information necessary to make the required demonstration, in many cases, would not be readily available to the discharger at the time of application. § 122.53 Application for a permit. (1) New application requirement. Proposed § 122.64(b) required existing permittees 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. Commenters 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 ( 122.7(l)(1)); (2) application-based notification requirements have been established for toxic pollutants ( 122.61(a)); and (3) § 124.5 gives the Director authority to request an updated application from the permittee, if necessary, where cause exists to modify’ ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33337 r 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) and 122.53(e)) for existing dischargers other than POTWs. 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 discussed below: The sched ile 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 cominenters 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 consolidated permit regulations as § 122.04(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 to 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 have 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. Dischargers 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 a iappropriate 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 • is 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 § 122.53(c). EPA recognizes that in some situations, despite 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 § 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, § 123.7(d) requires State forms to include at least the information listed in § 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, 1979 Federal Register (44 FR 34393, 34346). A detailed discussion of the significant comments received on the proposal and EPA’s responses appears in the preamble 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 seãtions of the regulations listing information to be provided by all applicants have been moved to Subpart A of Part 122, discussed above at § 122.4(d). (ii) A new paragraph has been added ( 122.53(d)(1)) which requires applicants to list the latitude and longitude of each outfall and the name of the receiving water. (lii) The requirement for submission of a line drawing with a water balance ( 122.53(d)(2), proposed as - § 122.84(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 wastewater, and treatment units ( 122.53(d)(3). proposed as § 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, and privately-owned treatment works must identify 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, ( 122.53(d)(5), proposed § 122.64(d)(8)), has been modified to require listing of only a maximum measure of actual production as required by § 122.63(d)(2). (vi) The analytical testing requirements have been modified in a number of ways ( 122.53(d)(7), proposed § 122.64(d)(16)): 1. The list of pollutants ( 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 process wastewater has been specified for each of the 34 primary categories (see Table II 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 applicant’s use or production of a specific list of chemicals potentially contaminated with TCDD.) The organic toxic pollutants are specified by the four fractions tested by the Gas Chromotographyf Mass Spectrometry analytical method. All primary applicants must test for cyanide, 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 ------- 33338 Federal Register / Vol. 45, No. 98 / Monday, May 19 1980 / Rules and Regulations pesticides (see Table IV 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 whidh 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 [ 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 ( 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)). (xi) The paragraph allowing applicants the option of reporting information to obtain exclusions from the requirements and penalties of section 311 of CWA has been deleted (proposed § 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. (xli) The requirement to report the identity of laboratories performing any reported analyses ( 122.53(d)(12)), has been added, and modified to require identification of which pollutants were analyzed by the laboratories. - (xiv) The paragraph allowing the Director to require additional information from an applicant (proposed § 122.64(d)(20), now § 122.53(d)(13)) has been modified by adding the word “reasonably.” Section 122.53(e) deals with concentratMd 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 to 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, § 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 UI 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). The 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 § 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 summer of 1980 ( 122.53(f) and (g)). (4) New source applications and variance requests. Certain requirements from Part 124 of the final NPDES regulations for applications from new sources and requests for variances were moved to the application section of Part 122. Subpart D in the proposal. Final § 122.53(h), (i), (j) and (k) include these requirements with some rewording, but no substantive changes. Also, the definition of variance in § 122.3 has been amended to include all modifications and variances specifically authorized by the Clean Water Act. Therefore, the term “variance” can be used for all permit conditions based on these CWA provisions, and the term “modification” reserved for permit modifications 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 of the variance. § 122.54 and § 122.55 Concentrated animaifeeding operations and concentrated aquatic an/ma/production facilities. - The detailed criteria for determining whether facilities are “concentrated animal feeding operations,” ( 122.54, proposed § 122.76), or “concentrated aquatic animal production facilities.” ( 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 § 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 notdesignated) to be point sources subject to NPDES permit requirements unless the storm water runoff is contaminated (see § 122.57(b)(3)). The former NPDES regulations had a comment to that effect, see 40 CFR § 125.52(a)(1). Because we did not repeat the language of the comment In the June 7, 1979 revised NPDES regulations or in the Jum 14, 1979 proposed consolidated regulations, commenters asked whether EPA was changing its policy. To make clear that we are not changing our policy, a sentence has been added ( 122.57(b)(2)) stating that such storm sewers are not point sources. § 122.59 Genera/permits. EPA has rewritten and reorganized the general permits section (proposed § 122.82) for clarity and to make minor changes. First, the “General Permit 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 can be modified for any of the causes listed in § 122.15 that apply to all permits. Information indicating unacceptable cumulative impacts now appears as an example of information which is- cause for modifying a permit under § 122.15(a)(2) and applies as well to general and area permits under the State i 404 programs and UIC programs. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33339 Third, the procedure for EPA eadquarters review of EPA issued raft 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(e)(2)) 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 bec ’use 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 no longer limited to “minor” sources, so long as the category specified in the permit meets the requirements of § 122.59(a)(2). Finally, § 122.59(b)(2)(iv) clarifies that the general permit automatically terminates on the effective date of an individual permit’. § 122.60 Additional conditions ‘ipplicable to all NPDES permits. § 122.60(a)(1) states the duty of the )ermittee 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 permittees and as such properly appear in the standard NPDES permit conditioni. They are discussed under ‘ 122.62(i) below. • Section 122.60(f) contains the 24-hour reporting requirements for NPDES. This paragraph is intended to coordinate with the eporting requirements under § 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 122.60(g) contains provisions covering bypass. The paragraph has been extensively redrafted for clarity. In general, the paragraph now clarifies that bypass which causes violation of effluent limitations is prohibited; the proposal appeared to place the presumption in favor of approval of a bypass. Consequently, ten day advance 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 § 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. § 122.61 Additional conditions applicable to specified categories of NPDES permits. (1) Section 122.61(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 fr?m the proposal ( 122.68(a) in Part III 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 122.61(b) specifies conditions applicable to all POTWs. They were proposed as § 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. § 122.62 Establishing NPDES permit conditions (1) We have divided proposed § 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 § 122.69(c). (2) Section 122.62(c) modifies the proposed § 122.69(b) by deleting the four dates in proposed Appendix A (September 30 and December 31, 1980 and March 31 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 dischargers 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 dischargers. 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. ------- 33340 Federal Register / Vol. 45. No. 98 I Monday, May 19,1980 / Rules and Regulations The effect of the revision from the proposal is to extend the time during which permit writers may wait for promulgation of guidelines before writing permits requiring BAT and BCT. 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. As 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 Cortsent 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 -guidelinea will be promulgated after the applicable dates in proposed Appendix 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 date by 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 poiicy. On page 25. of ‘Policies and Guidance for Issuing the Second Round of NPDES Permits to Industrial Dischargers” (July 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 BCT and contain reopener clauses. The reason for this change is that the July 1, 1984 deadline for compliance with. BAT and BCT 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 administratively 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 fsee § 122.53(c)). However, EPA permit writers are now being, given the same flexibility as’ State permit writers have had to issue long-term BAT and BCT permits, based on best engineering judgment, in appropriate circumstances. The proposal also required the reopened permit to be modified to include “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 and, because they are not required by paragraph 10 of the NRDC v. Train 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 § 122.69(f)) lists water quality standards and State requirements in addition to or more stringent than technology-based standards or limitations. Proposed § 122.69(f)(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’ § 122.62(a). In response to a comment that proposed § 122.69(fl(3) was overbroad, EPA has amended § 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 include in the permit. however, any more stringent conditions necessary to meet EPA’s obligation under § 3o1(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. Limits may be placed directly on these toxic pollutants, or indirectly on other pollutants if those limits will result in equivalent treatment of the toxic pollutants. This provision is included in the final regulations as a result of a changein 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 (pr 9 posed § 122.68(a)) was designed only to control unexpected pollutants. In response t5 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 ( 122.61(a)). A more detailed discussion of these regulations appears elsewhere in today’s Federal Register, in the preamble to thee ptjblic notice of the consolidated applicat!6ñ forms. (5) Section 122.62(g) is a new provision which requires- permit writers to specify which pollutants wilF require 24-hour notice,underl 122.6010(3) to thd Director when their maximum daily discharge limitations are violated. This is a change from the proposal ( 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. (6) 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 122.62(i) (proposed § 122.71) specifiei the monitoring requirements that must be placed in NPDES permits. Proposed § 122.71, “NPDES requirements for recording and reporting of monitoring reports” (sic) has been deleted and its provisions placed in this sectidn and § § 122.7 and 122.60 to conform to the organization of the consolidated regulations. The requirement to report all monitoring and the statements of the ------- Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 / Rules and Regulations 33341 otential liability for falsifying lonitoring results under the Clean Vater Act have been moved to final s 122.60 (conditions applicable to 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 compliance 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 general 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(i). 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 138. 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 effluen( limitations, proposed § 122.71(b)(3) and (4). This requirement has been deleted because it is not always appropriate to constrain the choice of monitoring methods to those used in developing effluent guidelines. Additional provisions is the proposal which required the permit to specify any test methods and sampling Jrequency required by standards or luidelines (proposed § § 122.71(b)(3), (4). md 122.71(c)) have been deleted because the general requirements of § 122.62 that permits correspond to standards and guidelines will ensure that these requirements (which are unusual in standards and guidelines) will be 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 III of the June 14, 1979 Federal Register (44 FR 34393) as a part of the proposed consolidated application forms. Final § 122.62(i)(1)(iii) 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 § 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 ( 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 § 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 § 122.69(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 K. (10) “Anti-backsliding. “Proposed § 122.68(i) (now § 122.62(1)) reflects EPA’s “anti-backsliding 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 exceptions applied only when both (1) the previous permit limitations were made on a case- by-case basis under ection 402(a)(1) of CWA i•n 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 commeriter noted that the proposed regulation could be construed to “lock” dischargers into. maintaining a fixed treatment efficiency 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, § 122.62(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. 1972), affd. 470 F.2d 303 (1st Cir. 1972). Some dischargers, however, arrange for other private companies to treatiheir 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 treatment. 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 applicableto any user, as a limited co-permittee, 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 oi ’ expects to begin to use or manufacture a toxic pollutant not reported in the permit application. The permit writer alternatively may issue separate permits ------- 33342 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations to the treatment works and to the users. or may require any user to submit its own permit application. The Directors 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 discretionary 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 § 124.11(b)(1) to add a new subparagraph (now § 124.1O(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). § 122.63 Calculating NPDES permit con dit,bns. (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 is 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 reworded somewhat 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 term “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(f) (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 mass 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 basis the mass of the discharge cannot be related to production or other measures of operation, and dilution will no.t 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 m addition to a mass limit, and the permittee must comply’ with both. (3) § 12a63(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 reasonn why such limitations, which are to be imposed only in exceptional - circumstances are being used in each case. - § 122.64 Duration of certain NPDES permits. This requirements section has been modified.by deleting the dates in - pi oposed 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 discussed in the preamble to § 122.62(c). § 122.68 New sources and new dischargers. (1) Paragraph 122.66(d)(2) (proposed § 122.81(d)) governing exclusions front 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 final § 122.66(d)(3) to allow additional time for compliance, but only when necessary to comply with requirements promulgated less than 3 years before the expiration of the protection period. This three-year period parallels the requirements of sections 301(b)(2)(D) and (F) of CWA, which allow dischargers up to three years to comply with certain newly promulgated effluent limitations. (3) An additional change’ to proposed’ § 122.81(d)(4) (now § 122.68(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 § 122.10(a).) (4) Some commenters seemed confused about the distinction in proposed § 122.81(b) (now § 122.66(b)) between construction that creates a new source at the site of an existing ,source and construction that only modifies the existing lource. 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 exis hg process or production equipment without creating these separate, physical entities is merely a modification subject to § 122.15. For example, the construction ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33343 of an additional digester within an pxisting building at a pulp mill to increase plant capacity would be a modification, whereas the construction of a separate building to produce inorganic chemicals at 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 substitutes the phrase “finding of no significant impact” where the proposal required a “negative declaration.” Section 122.68(c)(4)(ii) (proposed § 122.81(c)(4)(ii)) barred on-site construction 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’s NEPA regulations at 40 CFR § 1501.4(e), and EPA’s regulations implementing CEQ’s regulations at 40 CFR § 6.400(d). CEQ’s regulations. 40 - CFR § 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 has 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 § 122.72. Proposed § 122.72, which contained NPDES noncompliance reporting requirements, ha8 been moved to § 122.18. The substance of the proposed section has not changed. All of the noncompliance reporting requirements - for each program have been consolidated in § 122.18. Proposed § 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 3o1(b)(i)(C) of CWA, as incorporated in § 122.61(g)(5). In addition, all EPA- issued permits must reflect requirements of other Federal laws or regulations, as listed in § 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 § 122.62(c)). Appendix B lists criteria for concentrated animal feeding operations under § 122.54 and Appendix C lists criteria for concentrated aqua tic animal production facilities under § 122.55. Appendix D lists several tables of pollutants required to be tested by existing industrial dischargers under § 122.53(d), discussed in the preamble to the consolidated application forms elsewhere in today’s Federal Register. Table Vfl.—Relationship of June 7 Part 122 to Today’s Regulations Summary of Changes from Part 122 of the June 7 Regulations EPA has developed the Table V I I 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 changes, 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 summary indication of changes from the June 7 regulations. • The last column lists the paragraphs or subparagraphs 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 that 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 the end of the section. BIWNG CODE 6560-O1-M ------- 33344 . Federal Register / Vol. 45, No. 98 / Monday. May 19 1980 I Rules and Regulations TABLE VII REIATICT 1SHIP OF JUNE 7 PART 122 TO 1OD Y’S R ULATI( S June 7 Paragraph ‘D3day’ s Paragraph Number Subject and Any Changes Number(s ) §122.1 Purpose and s pe §122.1, §122.2, §122.51 §122.1(a) Coverage of NP S. §122.1(a)(iii) Reworded, no substantive change §122.1(b) Coverage of 122, 123, 124. §122.1(b) Reworded, no substantive change §122.1(b) (3) Coverage of 125 by States. §123.7(d) Moved to Part 123 § 122 • 1(c) Permits inpiement the law. Deleted, duplicates other provisions - .S122.1(d) Permits issued by RA or State Director. Deleted, duplicates’ definitions §122.1(d) RA and State Director include [ C nent] delegees. Deleted, duplicates definitions §122.2 Law authorizing NPDES permits. §122.51 Minor wording changes §122.2(a) 301(a) of CWA. §122.51(b) (1) Minor wording changes ç122.2(b) 402(a)(1) of CWA. §122.51(b)(2) Minor wording changes §122.2(c) 318(s) of CWA. §122.51(b)(3) Minor wording changes §122.2(d) 405 of G . §122.51(b)(4-) Minor wording changes S122.2(e) 402(b), 318(b) & (c), 405.(c) of CWA. §122.51(b)(5) Minor wording changes ------- Federal Register I Vol. 45. No. 98 / Monday. May 19. 1980 / Rules and Regulations 33345 TABLE VII REL1 TIQ1SHIP OF JUNE 7 P i r 122 TO TODAY’S EGUI TIQ1S (Continued) June 7 Paragraph Today’s Paragraph Number Subject and Any thar ges Number(s ) §122.2(f) 404 of cw . §123.1 Moved to Part 123 §122.2(g) 304(i) of CWA. §122.51(b)(6) Minor wording changes §122.2(h) 501(a) of CWA. §122.51(b)(7) Minor wording changes §122.2(i) 101(e) of CWA. §122.51(b)(8), Minor wording changes §122.1(e) §122,3 Definitions §122.3, No longer with paragraph numbers §122.3 Other terms defined in CWA. §122.3 [ Cc mient] Minor wording changes; ccnui nt incx rporated §122.3(a) “Act” CWA used instead Deleted, CWA used instead §122.3(b) “Administrator” §122.3 Added: “or an authorized representative” §122.3(c) “Application” §122.3 Minor wording changes §122.3(d) “Applicable standards and §122.3 limitations” Minor wording changes §l22.3(e) “Approved State program” §122.3 Most of definition deleted §122.3(f) “BMPs” §122.3 Minor wording changes; ccmbined with 404 §122.3(h) “Direct discharge” S122.3 Minor wording changes ------- 33346 Federal Register I Vol. 45. No. 98 I Monday. May 19. 1980 / Rules and Regulations TABLE VII RELATICNSHIP OF JUNE 7 PAR1 122 ¶10 ¶IODAY ‘S REGUtATIC S (Continued) June 7 Paragraph Today’s Paragraph Number Subject and Any Changes Number(s ) §122.3(i) “Director” §122.3 - CC iuient incorporated into text §122.3(j) “Discharge” §122.3 Minor wording changes §122.3(k) “Discharge of a pollutant” §122.3 - Minor wording changes §122.3(1) “DMR” §122.3 Minor wording changes §122.3(m) “Effluent limitation” §122.3 Minor wording changes §122.3(n) “Enforcement Division Director” - Deleted as duplicative §122.3(p) “Indirect discharger” §122.3 Minor wording changes §122.3(q) - “Interstate agency” §122.3 Minor wording changes §122.3(s) “NPDES” S122.3 Added: “pretreatment” §122.3(t) ‘“Navigable waters” Term is deleted: minor wording changes. for definition of “waters of the United States” §122.3(u) “New discharger” §122.3 Includes indirect discharger switching to direct discharge, and nobilè point sources which nove (e.g., drilling rigs) §122.3(v) “New source” §122.3 Minor wording changes; c uaent deleted ------- Federal Register / Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations 33347 TABLE VII REIATICI SHIP OF JUNE 7 PART 122 W ¶LODAY’S REGUIATIC S (Continued) June 7 Paragraph ¶ day ‘s Paragraph Number Subject and Any Changes Number(s ) §122.3(w) “Permit” §122.3 Reworded; includes general permit; exc’l.udes draft and prcçosed permits §122.3(x) “Person” §122.3 Reworded, no substantive change §122.3(z) “Pollutant” §122.3 Minor wording changes; c tuient incorporated into note - §122.3(aa) “Process wastewater” §122.3 Same sl22.3(bb) “p(YJW” §122.3 Reworded, no substantive change 122.3(cc) “Regional Administrator” §122.3 Minor wording changes S122.3(dd) “Schedule of cc plianoe” Minor wording changes §122.3(hh) “State” §122.3 Minor wording changes §122.3(u) “State Director” - §122.3 Minor wording changes §122.3(jj) “Variance” §122.3 Added: nc includes nodifica— tions of tine deadlines §122.3(kk) “Waters of the United States” §122.3 N defined; wording changes, clarifying treatment ponds - exclusions [ S122.16(c)(3)J “Average nonthly discharge §122.3 limitation” ES122.16(c)(4)J “Average weekly discharge §122.3 limitation” ------- 33348 Federal Register I Vol. 45. No. 98 I Monday, May 19. 1980 / Rules and Regulations TABLE VII RELATIa JSHIP OF JUNE 7 PAJ 122 TO ‘IOD Y ‘S REGUtATIQ JS (Continued) June 7 Paragraph - ¶I’Dday’ s Paragraph Number Subject and Any Changes Number(s ) [ S122.16(c)(1)J “Continuous discharge” §122.3 “Daily discharge” §122.3 “Draft permit” §122.3 “Effluent limitations guideline” §122.3 “Facility or activity” §122.3 “General permit” S122.3 “Hazardous substance” §122.3 “Major facility” §122.3 [ S 122.16(c)(2)J “Maximum daily discharge limitation” §122.3 “Owner or operator” §122.3 “Primary industry” §122.3 “Privately owned treatment works” §122.3 “Proposed permit” §122.3 “Recomnencing discharger” §122.3 “Secondary industry” §122.3 “Site” §122.3 “State/EPA Agreement” §122.3 “Toxic pollutant” §122.3 [ 122 .3(t)(6)] “Wetlands” §122.3 §122.4 Exclusions §122.51(c)(2) §122.4(a)(l) Sewage fran vessels. §122.51(c)(2)(i) Added: when secured to a storage or seafood facility §122.4(a)(2) 404. §122.51(c)(2)(ii) Same ------- Federal Register / Vol. 45. No. 98 / Monday. May 19, 1980 / Rules and Regulations 33349 TABLE VII RELATICI SHIP OF JUNE 7 PART 122 W IODAY ‘S REXUIATIC S (Corttinued) June 7 Paragraph day’s Paragraph NunI,er Subject and Any Changes Number(s ) §122.4(a)(3) Indirect dischargers. §122.51(c)(2)(iii) Part of comitent incorporated §122.4(a)(4) Si lvicu] .tural. §l22.51(c)(2)(v) Minor wording changes §122.4(b) State regulation not precluded. §122.1(f) Minor wording changes Inclusions — a specific list. §l22.5l(c)(l) Exclusions — ordered by on—scene §122.51(c)(iv) coordinator. Exclusions — irrigation return flows. §122.51(c)(vi) l22.5 Signatories §122.6 §122.5(a) Permit applications. §122.6(a) Sane S122.5(b) Reports; authorization. §122.6(b) Added: a position can be authorized §122.5(c) Changes to authorization. §122.6(c) Reworded: subnitted prior to or together with reports §122.5(d) Certification. §122.6(d) Same; conutent deleted §122.5(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 §-122.4, §1 2.53 §l22.10(a) Who must apply. . §122.4(a), §122.53(a) Minor wording changes ------- 33350 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations TABLE VII RELATIC SHIP OF JUNE 7 PART 122 10 IODAY’S REGULATI S (Continued) June 7 Paragraph Today’s Paragraph Number Subject and Any Changes Number(s ) §122.10(b) (1) Reapplication when increase discharge. Deleted - n z grounds for nodification, Director may require new application, see §124.5 §122.l0(b)(2) Expiring permits — 180 day rule. §122.53(c) Same for POIWS; reworded: phasing-in for new application forms - §122.10(c) New discharger. §122.53(b) Minor wording changes Who applies? §122.4(b) Operators must apply - [ S122.1l(a)] Ccznpleteriess. . §122.4(c) Permit can’t be issued until application is complete, to Director’s satisfaction Information requirements. §122.4(d) Lists information required in Form 1 Recordkeeping. §122.4(e) Requires applicants to keep data used for applications for three years Information requirements for §122.53(d) existing industrials. Lists information required in Form 2c Information from animal feedlots & §122.53(e) fishfarms. Lists information in Form 2b Information from POIWs . [ Resers,edj. §122.53(f) Will list information in Form 2a Informatiqn from new industrials §122.53(g) [ Reserved rd — - Will list ‘information in Form 2d ------- Federal Register / Vbl. 45 Nb. 98 I Monday. May 19. 1980.. I Rules and Regulatibns. 33351 TABLE VII RELATI( SHIP OF JUNE 7 PART 122 ‘10 IODI%Y’S REXULATICZ S (Continued) June 7 Paragraph Today ‘s . Paragraph Number Subject and Any Changes Number(s ) [ S124.12] Special provisions for new sources. §122.53(h) Minor wording changes. [ S 124.51(a),(b)] Variance: r uests by non—PO’IWs.. §122.53(i) Reworded, no substantive change ES124.51(a),(c)] VarianceS requests:by 1Ws.. §122.53(j) Reworded, no substantive, thange’ [ S124.51(d)] Expedited variance procedures. - §122.53(k) Reworded, tine specified after notice is received (instead of’ “before draft permit is formulated”) added: draft or final permit ney’ contain alternative, limitations; caturent deleted ‘S 122.11 Permit issuance,- effect of a permit §122.13 s122.r l(a), Application canpleteness. §122.4(c) Reworded, no substantive change §122.11(b) Final EPA action. §124.19 Incorporated into 124. §122.11(c) Canpliance is compliance with CWA. §122.13(a) Minor wording changes §122.11(d) (1) Issuance does not convey; rights or §122.13(b) privileges. Sane §l22.11(d)(2) Issuance does not authorize injury. §122.13(c) Reworded, no substantive change §122.ll(d)(3) Issuance does not preempt State law.. Deleted as redundant §122.12 Duration, continuation, transfer §122.5, §122.9, §122.14, §122.64 §l 22 .12(a) Duration. §122.9(a) Reworded; “nodification etc.” deleted as redundant ------- 33352 Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 / Rules and Regulations TABLE VII RELPJTICtSISHIP OF JUNE 7 PAI r 122 ‘10 ¶IODAY’S REXUIATICtqS (Continued) June 7 Paragraph . Today’ s Paragraph Number - Subject and Any Changes Number(s ) §122.12(b)(1) Continuation by EPA. S122.5(a) Minor wording changes. §122.12(b)(2) Effectiveness of continued permits.. §122.5(b) Minor wording changes §122.12(b)(3) Enforcement of continued permits. §122.5(c) Reorganized, no major changes §122.12(b)(4) Continuation by States. §122.5(d) Minor wording changes §122.12(c) Short—term permits. §122.64 All dates in Appendix A are June 30, 1981; rearrangenent- and wording changes; parts of cofluTents deleted or noved to §122.62(c); no BAT permits without toxics data. §122.12(d) Transfer. §122.14, §122.7(1)(3) Reworded: auta atic transfers under conditions similar to §122.12(d); otherwise, permit must be nodified to transfer §122.13 Prohibitions §122.52 §122.13(a) Nonccxnpliance with CWA. §122.52(a) Minor wording changes §122.13(b) No State certification. §122.52(b) Minor wording changes §122.13(c) Regional Administrator objects. §122.52(c) Same §122.13(d) Nonattainnent of water quality of §122.52(d) States. Minor wording changes §122.13(e) Impairing navigation. §122.52(e) Same ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33353 TABLE VII REL1 TICtJSHIP OF JUNE 7 PART 122 ‘10 ‘I0D1 Y’S RFXUIATI(Z S (Continued) June 7 Paragraph 1 day ‘s Paragraph Number Subject and Any Changes Number(s ) §122.13(f) Radiological waste. §122.52(f) Same §l22.13(g) Inconsistent with 208 plan. §122.52(g) Minor wording changes §122.13(h) Ocean discharge. §122.52(h) Minor wording changes §122.13(j) Violation of water quality. §122.52(i) and (j) Change to prohibit any discharge violating water quality standards; new source must denonstrate sufficient allocation before close of public cuiuTent period, need not prove “entitlement” §122.14 Conditions applicable to all permits §122.7, §122.60, Incorporation by reference §122.61 requires specific cite. §122.14(a) [ Application—based limits]. §122.61(a) [ Reserved] Existing dischargers must notify Director if they exceed five—times levels reported in the application §122.14(b) Duty to canply. §122.7(a) Reworded, no substantive change Sl 2 2.l4(c) Permit may be nodified. §122.7(a), §122.7(f) Added: filing of a nodification request does not stay conditions §122.14(d) ‘I xic standards or prohibitions §122.60(a)(1), Cann nt into standard permit terms, §122.15(a)(5)(ii), §122.60(a)(1); requirement to §122.62(b) nodify into nodification §122.15 and into §122.62 ------- 33354 Federal Register / Vol. 45. No. 98 / Monday. May 19. 1980 / Rules and Regulations TABLE VII RE lATIONSHIP OF JUNE 7 PART 122 ‘10 IODAY’S REGULATIONS (Continued) June 7 Paragraph Number Subject and Any thanges ¶I day ‘s Paragraph Number ( s) §122.14(e) Reporting requirements. No longer tied to causes for nodification; causes spelled out individually; Director’s right to request application in nodification (S124.5) §122.7(1) Operate efficiently. Added: requires backup equip ent- only to comply with permit; minor wording changes Noncompliance reporting. Extensively rearranged, sare substantive changes. Added: permits must specify 24—hr. pollutants, others not reported; planned changes and anticipated non-caupliance in advance Duty to minimize :impact of noncar 1ianoe. Minor wording changes Duty to halt activities. In §122.7; not a defense against enforcement, §122.60; minor wording changes Bypass. Rearranged, ‘no sUbstantive change §122.7(i.)(2), (l)(6), (l)(7), §122.60(f)(3), §122.62(g) §122.14(1) - L pset. Cc*tutent partially inoorporated, no substantive change - §122.60(h) Right of entry, Minor wording copying, etc. changes §122.7(i) §122.7(e) §122 • 14(f) §122.14(g) §122.14(h) §122.14(i) §122.14(j) §122.14(k) §122.7(d) §122.7(c), §122.60(b) §122.60(g) ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules arid Regulations 33355 TABLE VII RELATICL 1SHIP OF JUNE 7 PART 122 ‘10 ‘IODAY’S REXUIATICNS (Continued) June 7 Paragraph Number - Subject and Any Changes Today ‘s Paragraph Number ( s) [ S 122.l0(a)] [ S122.11(d) I [ S122.20(b) (2)] [ S122.21(b)] [ S122.5(a)] (S122.31(e) (1)] [ S122.12(d) (1)] LS122. 22(a)] [ S122.22(c)] [ S122.31(d) (2)] [ S122.20(c)] [ S122. 20(f)] [ S122.21(c), §122.22(d)] [ S122.22(a), (b); 122.16(c)] [ S122.14(k) (2) (iii), §122.14(1) (3) (iii)] [ S122.15(d) (1)] Duty to reapply. Pei:mit does not convey prc erty rights. Duty to provide information to the Director. Monitoring must be representative. Retaining records of nonitoring. Signatory requirements. Reporting planned changes. Reporting transfers. Reporting nonitoring results. Reporting compliance with construction schedule. Reporting other information previously reported falsely. Listing of civil & criminal penalities. Monitor using 40 CFR 136. Penalties for falsifying nonitoring. Penalties for false statements. Monitoring reports. 24—hr. reporting for upset & bypass. Application-based notification. New users reporting by PO’B s. §122.7(b) §122.7(g) §122.7(h) §122.7(j) C 1) §122.7(j) ( 2) §122.7(k) §122.7(1) (1) §122.7(1) (3) §122.7(1) (4) §122.7(1)(5) §122. 7( 1) (7) §122.60(a) ( 2) §122.60(c) ( 1) §122.60(c)(2) §122.60(d) §122.60(e) §122.60(f) §122.61(a) §122.61(b) ------- 33356 Federal Register / Vol. 45, No. 98 / .Monday. May 19. 1980 I Rules and Regulations TABLE VII REIATIC*4SHIP OF JUNE 7 PART 122 ?I’O IODAY’S REGULATIC 4S • (Continued) June 7 Paragraph I day ‘s Paragraph Number Subject and ) ny thanges Number(s ) S122.15 Applicable limitations and §122.8, §122.62 standards §122.15 “Applicable requirement.” §122.8(b) Minor wording changes §122.15(a) Effluent limitations and standards. §122,62(a),(b) Clarifications, separation of technology-based and other standards; including new sources; no substantive changes §122.15(b) Short—term permits; recpener clause. §122.62(c) All dates in Appendix A are June 30, 1980, conforming changes here; re ener clause r only re ens permit to include guideline, not all requirements of CWA §122.15(c) New source performance standards. §122.62(a) Wording changes, incorporated into technology-based standards sect ion, no substantive changes §122.15(d)(l) P0’IW notice of new users. §122.61(b) Moved to standard permit conditions, ccituTent incorporated §122.l5(d)(2) YIW pretreatment program. §122.62(j) Minor wording changes §122.15(e) PO’IW grant requirements. §122.62(n) Cc iuient deleted §122.15(f)(l)—(9) Additional waterquality standards. §122.62(d)(1)—(9,) Minor wording changes §122. 15(f)(10) Technology—based case—by—case limits. §122.62(a) - Incorporated into §122.62(a) §122.15(f)(3) State certification. S122.62(d)(3.) Added: if certification is stayed, conditions under CWA section 30l(b)(1)(c) ------- Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations 33357 TABLE VII RELATICNSHIP -OF JUNE 7 PART 122 TO ‘IOD Y ‘S REGULAi’IC S (Continued) June 7 Paragraph Today’s Paragraph Number Subject and Any thanges Number(s ) §122.15(g) Best management practices. §122.62(k) C nent deleted §122.15(h) Sewage sludge. §122.62(o) Same §122.15(i) Reissued permits with no less • §122.62(1) stringent limits. Added: changes in circume tances allows less stringent limits; increased production leading to reduced treatment efficiency §122.15(j) Vessels — Coast Guard regulations. §122.62(p) Minor wording changes §122.15(k) Conditions for navigation. §122.62(q) Same Incorporation of conditions by - §122.8 Cc) reference. Limits on toxic pollutants. §122.62(e) Higher notification level. §122.62(f) Indicators for 24-hr. reporting. §122.62(g) [ S122.12(a)J Permit durations. §122.62(h) [ S122.20(a)] Monitoring requirements. §122.62(i) Privately owned treatment works. §122.62(m) §122.16 Calculation of effluent limits §122.63 §122.16(a) (1) Limits for each outfall. §122.63(a) Reworded, no substantive change §122.16(a)(2) Actual production limits for §122.63(b)(2) non—PO’IWs. Reworded, ccim nt incorporated; time period for production same as time period for limits j122.16(a)(3) Design flow limits for PO’IWs. §122.63(b) (1) Same ------- 33358 Federal Register / Vol. 45, No. 98 / Monday, May 19. 1980 I Rules and Regulations TABLE VII REIATIQ4SHIP OF JUNE 7 PART 122 TO IOD1 Y’S REXUIATIQ IS (Continued) - June 7 Paragraph ‘D day ‘s Paragraph Number Subject and Any thanges Number(s ) §122.16(b) ¶Ibtal n ta1s. §122.63(c) Reworded, no substantive change - §122.16(c) Maximum daily etc. limits. §122.63(d) Added: “unless impracticable” Ccxnment added to §122.60(e)(3) S122.16(c)(l)—(4) Definitions. §122.3 Put into definitions section, saie rewording, no substantive change §122.16(d) Mass limits. §122.63(f) Added: (1) mass—based limits not required when case—by—case production can’t be used; (2) concentration—based limits allowed in addition to mass—based limits, and permittee must cx 1y with both §122.16(e) Gross limits. §122.63(g) Same §122.16(f) Net limits. §122.63(h); Reworded, no substantive §122.15(a)(5)(iv) change, also added to causes for and (a) (5) (v) i odification (S122.15) - §122.16(g) Noricontirkuous discharges. §122.63(e) Same §122.16(h) Limits on internal wastestreams. - §122.63(i) Added: the fa tsheet must include an explanation of why the limits are necessary; conmant incorporated [ S122.41] Disposal into wells, etc. §122.63(j) §122.17 Schedules of ccepliance §122.10 ------- Federal Register I Vol. 45, No. 98 / Monday. May 19, 1980 I Rules and Regulations 33359 TABLE VII REIATICt SHIP OF JUNE 7 PART 122 ¶10 TODAY’S REGULATI(} S (Continued) June 7 Paragraph Today’s Paragraph Number Subject and Any Changes Number(s ) §122.17(a) Require compliance ASAP and no later §l22.lO(a)(1) than CWA deadline. Rearranged, no substantive change §122.17(b) Interim requirements. §122.l0(a)(3), Interim dates required if S122.l0(a)(3) (Note] - catpliance is nore than 1 year (instead of 9 nonths) away; examples put in Note §122.17(b) (1) Tine between dates. §l22.l0(a)(3)(i) Tine between interim dates may be up to 1 year (instead of 9 nonths) §122.17(b)(2) Divide into stages; submit reports. §122.10(a)(3)(ii) Again, time between interim dates may be 1 year; no other change S122.17(c) Alternative schedules of compliance. §122.10(b) Reworded, any termination of discharge §122.17(c)(1) Termination after permit is issued. §122.10(b) (1) Minor wording changes §122.].7(c)(1)(i) Modification to include termination. §122.lO(b)(1)(i) Reworded, no substantive change § 1 22.17(c) (1) (ii) Terminate before miss any interim S122.l0(b)(l)(ii) date. Same §122.17(c)(2) Decision before permit is issued. §122.l0(b)(2) Reworded, no substantive change §122.17(c) (3) Alternative schedules. §122.l0(b)(3) Added: Director may nodify a permit to include two schedules (as well as issue a permit) §122.17(c)(3)(i) Date for final decision. §122.10(b)(3)(i) Reworded, no substantive change l22.l7(c)(3)(ii) Schedule leading to termination. §122.10(b)(3)(iii) Reworded, no substantive change ------- 33360 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations TABLE VII REL TICtJSHIP OF JUNE 7 PART 122 TO ¶IOl1 Y’S REGULATICt S (Continued) June 7 Paragraph ¶I day ‘S Paragraph Number Subject and Any thanges Number(s ) §122.17(c)(3)(iii) Schedule leading to cosipliance. §122.10(b (3)(ii) Reworded, cxxnpliance must be achieved as soon as possible §122.17(c) (3) (iv) Follow appropriate schedule after §122.10(b) (3) (iv) decision. - Reworded, no substantive change §122.17(c) (4) Reguiremant to post a bond. DELETED §122.17(c)(5) Fii:m public conunitment. §122.10(b) (4) Reworded, cQm nt deleted; no substantive change §122.17(d) Director may nodify conpliarice §122.15(a) (4) schedule. Reworded, noved to -causes for - nodification, no substantive change §122.17(e) P01W innovative technology grants. §122.15(a)(5)(xi) Reworded, noved to causes for nodification, no substantive change §122.17(f) No compliance schedule for new §122.10(a)(2) sources, etc. Reworded, noved to first paragraph, no major -change §122.20 Monitoring §122.7( 3), §122.7(1)(4), §122.11, §122.60(c), §l22.60(j)(1), §122.62(i)(1) §122.20(a) - Permits must contain .noni.toring S L22.62(i)(l) requirements. Reworded, no substantive change §122.20(a) (1) Monitor for each pollutant limited. §122.62(i)(1)(i) Reworded, no substantive change §122.20(a) (2) Monitor vo]uine. S122.62(i)’(1)(ii.) Reworded, no substantive change ------- Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations 33361 TABLE VII RELATIONSHIP OF JUNE 7 PARr 122 ‘10 ¶LODAY’S REGUT.ATIONS (Continued) June 7 Paragraph Today’s Paragraph Number Subject and My Changes Number(s ) S 122.20(a)(3) Monitor othetwise. §122.62(i)(1)(iii) Reworded, added example of requir- ing nonitoring for pollutants reported in application, internal wastestreams, and net limits §122.20(b)(1) Permits must specify nonitoring §122.11(a) equipTent. Minor wording changes §122.20(b)(2) Monitoring frequency must be §122.11(b), sufficiently representative. §122.7(j) (1) 1 dded: may require continuous nonitoring; deleted specific requirement for nore frequent nonitoring of variable effluents (representativeness requirement remains) other rewording; in standard permit conditions, permi ttees must take representative samples §122.20(b)(3) Permits must specify nonitoring methods. Deleted as redundant §l22.20(c)(l) 40 CFR Part 136 listedor alternate §122.62(i)(iv), approved methods must be used. § 122.60(c) (1) Petmittees must use 40 CFR Part 136 methods or a method specified in the permit §122.20(c)(2) Director specifies a method in permit §l22.62(i)(l)(iv) - where no 136. Minor wording changes §122.20(c)(3) Director may specify guideline method. DEL ED §122.20(c)(4) Director must specify guideline method if 40 CFR 136. DEIE ED §122.20(d) Sampling frequency shall be consistent with guideline. DEL ED ------- 333 Federal Register / Vol. 45 , ’No. 98 I ‘Monday. May 19, 1980 / Rules and Regulations TABLE VII REtATIC SliIP OF JUNE 7 PART 122 ‘10 t 10D Y ‘S REGULATIC24S (Continued) June 7 Paragraph 1 3day ‘s Paragraph Number Subject and Any Changes Number(s ) §122.20(e) Perrnittee should request nore frequent nonitoring. DEIEI’ED §122.20(f) Penalties for falsifying nortitoring. §122.60(c)(2) Same, noved to standard permit conditions [ S122.22(a)J Reporting frequency. §122.11(c) §122.21 Recording of nonitoring results §122.7(j)(2),(j)(3); §122.60(d) §122.21(a)- Records of nonitoring information. §122.7(j)(3) Deleted “and nonitoring activities” §122.21(a)(1) Date, place, and time of sampling. S122.7(j)(3)(i) Sane §122.21(a)(2) Samplers. §122.7(j)(3)(ii) Minor wording changes. §122.2l(a)(3 Date of analyses. §122.7(j)(3)(iii) Same §122.21(a) (4) Analyzers. §122.7(j)(3)(iv) Minor wording changes. §l22.21(a)(5) Analytical techniques. §122.7(j)(3)(v) Sane §122.21(a)(6) Results. §l22.7(j)(3)(vi) Same §122.21(b) Records and results kept for 3 years. §122.7(j)(2) Added: all reports required by the permit and application data; at least 3 years fran ‘the date of the sample, measurement, or report; minor wording changes ------- Federal Register / Vol. 45. No. 98 I Monday. May 19. 1980 / Rules and Regulations 33363 TABLE VII REIATICNSHIP OF JUNE 7 PART 122 ‘10 TODAY’S REGULATI(1 S (Continued) June 7 Paragraph ‘1 day ‘s Paragraph Number Subject and Niy Changes Number(s ) §122.21(b)(1) Three years autaTlatically extended §122.7(j)( 2 ) during litigation. Now Director must request extension S122.21(b)(2) Three years extended by Director’s §122.7(j)(2) request. Minor wording changes §122.21(c) Penalties for false statenents. §122.60(d) Minor wording changes §122.22 Reporting of nonitoring results by S122.7(1)(5), permittees §122.60(e), §122. 60( 1) ( 5) , §122.60(d), §122.62(i), §122.10 (a) (4) §122.22(a) Permittees must use Et4R. §122.60(e)(1) Minor wording changes §122.22(a) Reports at least once per year. §122.62(i)(2), Now is duty of Director to specify §122.11(c) in permit §122.22(a) Permittee must report other data not required by permit. DELETED §122.22(a) Examples of reporting frequency. §122.62(i)(2) ECcxment] Most of a ient deleted §122.22(b) Permittee must report nore frequent §122.60(e)(2) - iTonitoring. Reworded, no substantive change §122.22(c) Permittee must report compliance §122.7(1)(5), with interim dates. §122.10(a)(4) Reworded, put in )x)th standard permit conditions and schedules of compliance; no substantive change §122.22(d) Penalities for false statement. §122.60(d) Ccithined with §122.21(c) in standard permit conditions ------- 33364 Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations TABLE VII RELATICt SHIP OF JUNE 7 PART 122 TO TODAY’S REGULATICts S (Continued) June 7 Paragraph ‘I day ‘s Paragraph Number - Subject and Any Changes - Number Cs ) §122. 23 Noncxxnpliance reporting by the §122.18 Director §122.23(a) State reports to Region; Regional §122.18, §122.18(e) reports to HQ. Changes: reports submitted to RA (instead of Enforcement Division Director), Regional reports sub- mitted by RA to EPA Headquarters (instead of by Enforcement Division Director to EPA C JE) §122.23(b) Reports of noncc np1iance by majors. S122.18(a) Reworded, no substantive change §122.23(b)(1) Report failure to meet construction §122.18(a)(2) date. Reworded, no substantive change §122.23(b)(2) Failure to submit schedule reports. §122.18(a)(2)(iii) Ccithined with failure to submit nonitoring reports; minor wording changes §122.23(b)(3)(i) Nonco i 4iance with applicable S122.18(a)(2)(v)(A) limitations. Keyed on violation of permit (instead of applicable standards); unless returned to co ip1iance before 45 days after reporting noncoapliance was due (instead of “or date when EMR was due”) §122.23(b)(3)(ii) Pattern of noncompliance. S122.l8(a)(2)(v)(B) Reworded, no substantive change §122.23(b)(3) (iii) Significant nonccxnpliance. S122.l8(a)(2)(v)(C) Reworded, no substantive change §122.23(b) (4) Failure to report S122.18(a)(2)(iii) Combined with failure to submit progress reports, minor wording changes ------- Federal Register I Vol. 45. No. 98 I Monday, May 19, 1980 1 Rules and Regulations 33365 TABLE VII RELATICtISHIP OF JUNE 7 PARP 122 10 IODAY’S REGUIATIC1 S (Continued) June 7 Para raph 1 day’ s Paragraph Number Subject and Any thanges Number Cs ) §122.23(b) (4) Failure to report nonccinpliance. Deleted as duplicative §122.23(b)(5) Deficient reports. §122.18(a)(2)(iv) Reworded, no substantive change §122.23(b) (6) Modification of cc p1iance schedule. S122.18(a)(2)(ii) Reworded, reporting required when schedule is n dified §122.23(b)(6) All noncaupliance reported until S 122. 18(a)(2) [ Cc i’irrent] resolved. Reworded, no substantive change S122.23(c)(l) Information required in report. §122.18(a)(l)(iv) Rearranged, no substantive change S122.23(c)(l)(i) Name, location, permit number. §122.18(a)(l)(iv)(A) Sane S122.23(c)(l)(ii) Date and description of nonco T!p1iance. S122.18(a)(1)(iv)(B) Canbined with requirement for a single entry per permittee (S122.23(c)(3)); minor wording changes S122.23(c)(l) (iii) Date and description of Director’s S122.18(a)(l)(iv)(C) - actions. Same §122.23(c)(l)(iv) Status of nonccxipliance. §122.18(a)(l)(iv)(D) - Status as of date of review (instead of date of action) - §122.23(c)(l)(v) Mitigating factors. S122.l8(a)(l)(iv)(E) Same S122.23(c)(2) Separate lists for P01W, non—PO1W, §122.18(a)(l)(i) Federal. Minor wording changes §122.23(c)(3) Single entry per permittee. §122.18(a) (l)(iv) (B) Cc nbined- with date and description requirement; minor wording changes ------- 33366 Federal R ister / Vol. 45, No. 98 I Monday. May 19. 1980 / Rules and Regulations TABLE VII REIATIC SHIP OF JUNE 7 PARE 122 ‘10 IODIIY’S RJLATICNS (Continued) June 7 Paragraph ‘ 1’ day’s Paragraph Number Subject and Any Changes Number(s ) §122.23(c)(4) Alphabetized. §122.18(a)(1)(iii) Minor wording changes §122.23(d) Statistical information. §122.18(a)(2)(vi) Minor wording changes §122.23(e) Annual reports for non—majors. §122.18(c)(1) Reports must include number reviewed, number noncxxi lying, number of enforcement actions, and number of nodifications extending deadlines §122.23(e) Separate list of non—majors behind §122.18(c) in construction. Same §122.23(f) (1) Reporting schedule for quarterly §122 • 18(e) (1) - reports. Same §122.23(f)(2) Reporting- schedule for annual §122.18(e)(2) reports. Reports submitted at end of calendar year (December 31) (instead of fiscal year) §122.23(g) Reports available to the public. S122.18(e)(2) No longer specified separately footnote §122.23(g) Designation of majors. 1122.3 [ Cc iui nt] Majors are- defined in §122.3 Separate list for facilities with §l22.18(a)(1)(ii) two or nore permits. §122.30 General nodification, revocation, termination . No longer a separate section §122.31 Modification, revocation and §122.15, §122.16, reissuance, and termination §122.17 §122.31(a) Any permit may be nodified, etc. §122.13(a), for cause. §122.15 Same ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33367 TABLE VII REIATICt SHIP OF JUNE 7 PART 122 10 10D Y’S REGUIATICt4S (Continued) June 7 Paragraph 1 day’s Paragraph Number Subject and Any Changes Number Cs ) §122.31(b) Modification can’t give longer §122.9(d) than 5—year term. Put into duration section §122.31(c) Director may initiate. §122.15 Director may revoke and reissue only for separate cause or at permittee’s request; may initiate nodification if cause exists §122.31(c) Any interested person may request. §124.5(a) In rporated into 124 §122.31(d) Causes for nodification, 1122.15(a) revocation and reissuance, and termination. Separated causes for revocation and reissuance or termination, fran nodification; nodifications only of condition giving cause §122.31(d)(l) Noncx mp1iance with permit. § 122.16(a)(1) - Now cause for termination, “noncompliance” (instead of “violation”) § 122.31(d)(2) Misrepresentation of facts. §122.16(a) (2) Now cause for termination; reworded: failure to disclose fully “at any tima” §122.31(d)(3) Reduction or elimination of §l22.16(a)(4) discharge. Now cause for termination; last two examples deleted §122.3l(d)(4) Threat to human health. §122.16(a)(3) Now cause for termination; reworded: determination (instead of “information”); “human health or the environnent” (instead of “human health or welfare”); added: “which can only be regulated to acceptable levels by permit rrodification or termination.” ------- 33368 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations TABLE VII RELATIONSHIP OF JUNE 7 PART 122 TO TODAY’S REGULATIONS (Continued) June 7 Paragraph Tbday ‘s Paragraph Number Subject and Any thanges Number(s ) § 122.3l(d)(5) Transfer. §122.15(b)(2) Cause for a revocation and reissuance; continues to be cause for nodification but not revocation and reissuance after autanatic transfer. §122.31(e) Cause for ncdif ication or revocation §122.15(a) and reissuance. dification only, unless permittee requests; nodification only opens up condition giving cause §122.31(e) (1) Substantial alterations. §122.15(a) (1) Reworded: “which justify the application of permit conditions that are different or absent in the existing permit” (instead of “which were not covered in the - effective permit”); examples deleted; ccmiient partially incorporated, with less discussion of new sources §122.31(e)(2) New information. §l22.15(a-)(2) Reworded, clarified, “information” not “factors”; other changes §122.31(e)(3) New regulations. - §122.15(a)(3) Canbined with judical remand (Sl22.3l(e) (4)) §122.31(e)(3)(i) Permit condition based on revised §l22.l5(a)(3)(i)(A) regulation. Minor wording changes §122.31(e)(3)(ii) EPA action has revised. §122.15(a)(3)(i)(B) Minor wording changes §122.31(e)(3)(iii) Request filed within 90 days. §122.15(a)(3)(i)(C) Reworded, no substantive change §122.31(e)(4) Judicial remand or stay. §122.15(a)(3)(ii) Remanded by a court of cc* petent jurisdiction; “remand or stay” (instead of “remand”) ------- Federal Register I Vol. 45. No. 98 .1 Monday. May 19, 1980 / Rules and Regulations 33369 TABLE VII RELATICt SHIP OF JUNE 7 PARE 122 ‘10 IODAY’S REGU lATIONS (Continued) June 7 Paragraph ¶I% day’ s Paragraph Number subject and Any Changes Number(s ) S122.31(e)(5) As authorized by CWA. §122. 15(a)(5)(ii) Requirements listed separately in §122.15(a)(5)(ii) §122.31(e)(6) Cross references. §122.15(a) Separated §122.31(e)(6) Required by toxic standard or §122.15(a)(5)(ii) prohibition. - Written out §122.31(e)(6) Required by toxics reopener clause. §122.15(a)(5)(iii) Written out §122.31(e)(6) ‘lb nodify ccm p1iance schedule. §122.15(a)(4) Written out, transferred frou §122.17(d) §122.31(e)(6) Innovative waste treatment grant §122.15(a)(5)(xi) to P(YIW. Written cut, transferred fran §122.17(e) §122.31(e)(7) Failure to notify affected State. §122.15(a)(5) (vii) Sane §122.31(f) Minor nodification. §122.17 Added: consent of pei:mittee required; deleted: unless would make petinit less stringent §122.31(f)(l) Minor nodification, Correction §122.17(a) of typos. Same §122.31(f)(2) More frequent nonitoring. §122.17(b) Minor wording changes S122.3l(f)(3) Change in cx npliance schedule. §122.17(c) Minor wording changes §122.31(f)(4) Transfer. - §122.17(d) Reworded, requirement for agreement included (instead of referenced), no substantive change ------- 33370 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations TABLE VII RELATI(IJSHIP OF JUNE 7 PARI’ 122 ‘10 ‘I0D Y’S REGUtATIa S (Continued) June 7 Paragraph Today’s Paragraph Number Subject and Any Changes Number(s ) §122.31(f)(5) Change in cxnstruction for new Sl22.17(g)(1) source. Same §122.31(fl(6) Delete outfall. S 122.17(g)(2) Minor wording changes ES122.l0(b)(l) Director may request an application. §122.15 §122.14(e)] Modification when State §122.15(a)(3)(iii) certification changes. [ S122.16(f)(1)] To incorporate net limits. §122.15(a)(5)(iv) (S 122. 16(f)(1)(ii)] To r ove net limits. §122.15(a)(5)(v) When “reopener” for pretreatment §122.15(a)(5)(iii) is triggered. To reopen pretreatment compliance §122.15(a)(5)(vi). schedule. When discharge exceeds §125.3 levels. §122.15(a)(5)(viii) When permittee begins to use or §122.15(a)(5)(ix) manufacture toxics. To establish a higher S122.15(a)(5)(x) “notificaton level.” LS122.31(d)]’ Arty cause for termination is §122.15(b) (1) cause for revocation. [ S122.30] Director follows Part 124 §122.16(b) procedures for termination. §122.40 General—Special NPDES programs No longer a separate section §122.41 Disposal into wells, etc . §122.65 §122.41(a) When to make adjustments-. §122.65(a) Same ------- Federal Register / Vol. 45. No. 98 / Monday, May 19. 1980 I Rules and Regulations 333fl TABLE VII REIATIQ SHIP OF JUNE 7 PART 122 ‘10 ¶IODAY 1 S REGU1ATI( S (Continued) June 7 Paragraph Today’s Paragraph Number Subject and Any Changes Number(s ) S122.41(a)(l) If no waste discharged. § 122.65(a)(l) Sane §122.41(a)(2) Calculation for partial discharges. S122.65(a)(2) Minor wording changes, cament incorporated S122.41(b) Not applicable for concentration §122.65(b) guidelines. Minor wording changes §122.41(c) May be nore stringent. §122.65(c) Increased number of cross— references §122.42 Concentrated animal feeding §122.54 operations §122.42(a) Permit requirements. §122.54(a) Same §122.42(b)(1) Definition of animal feeding § 122.54(b)(1) operation. Same §122.42(b) (2) Definition of concentrated. §122.54(b)(2), Moved to Appendix B, no Appendix B substantive change §122.42(c) Case—by—case designation. §122.54(c) Minor wording changes §122.43 Concentrated aquatic animal §122.55 production facilities §122.43(a) Permit required. §122.55(a) Same §122.43(b) Definition of concentrated. §122.55(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 kiuaculture projects §122.56 ------- 33372 Federal Register / Vol. 45. No. 98 / Monday. May 19, 1980 I Rules and Regulations TABLE VII REIATI JSHIP OF JUNE 7 PART 122 10 ¶LODAY’S REXUIATI( S (Continued) June 7 Paragraph Tcday ‘s Paragraph Number Subject and Any Changes Number(s ) §122.44(a) Permit requirements. §122.56(a) Same - §122.44(b) Definitions. §122.56(b) Same §122.45 Separate storm sewers §122.57 §122.45(a) Permit required. §122.57(a) Added: coverage of permit fran ccrment at end of §122.45, minor wording changes §122.45(b) Definitions. §122.57(b) Reworded, clarified §122.45(c) Case—by—case designation.. §122.57(c) Minor wording changes §122.46 Silvicultural activities §122.58 §122.46(a) Permit required. §122.58(a) Same §122.46(b) Definitions. §122.58(b) Minor wording changes §122.47 New sources and new dischargers §122.66 §122.47(a) Definitions. §122.66(a) Sane, “site” noved to §122.3 §122.47(b)(1)(i) Construction on a new site. §122.66(b)(1)(i) Same §122.47(b)(1)(jj) Construction on an existing site. S122.66(b)(1)(ii) Reworded, totally replaces or causes change in discharge; caiuient deleted § 122.47(b)(2) Modification of existing source. §122.66(b) (2) Reworded - construction must create new building ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33373 TABLE VII RELATICI SHIP OF JUNE 7 PA1? 122 ¶ [ O ¶LODAY’S REGULATICt S (Continued) June 7 Paragraph - Thday’ s Paragraph Number Subject and Any thanges Number(s ) §122.47(b)(3) Caiuiencement of construction. §122.66(b)(3) Same §122.47(c)(1) Requirement for an EIS. §122.66(c) (1) Sane S122.47(c)(2) EIS includes recommendation. §l22.66(c)(2) Minor wording changes - §122.47(c)(3) RA review. §122.66(c)(3) Added: “issue, condition, or deny”; “or a finding of no significant impact” §122.47(c) (4)(i) No on—site construction with EIS. §122.66(c)(4)(i) Added: RA must find no irreversible impact; provisions of agreement shall be put into permit S 122.47(c)(4)(ii) No on—site construction with no §122.66(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) §122.47(c)(5) Notification of on—site construction. §122..66(c)(5) Salie §122.47(d) Effect of NSPS. - §122.66(d) Added: paragraph clarifying that existing sources are not co’ ered fran cawient at end of §122.47 §122.47(d)(1) Protection period. §122.66(d)(1) Same §122.47(d) (2) Doesn’t apply to toxics. §122.66(d)(2) Added: Does not apply to any §125.3 limit on toxics or hazardous substances ------- 33374 Federal Regi ter I V’ol. 45 No. 98 / Monday, May 19, 1980 I Rules and Regulations TABLE VII RELATIQ JSHIP OF JUNE 7 pARr ’ i 2’2 10 IODAY 1 S REGUIATI(}1S (Continued) June 7 Paragraph ltday ‘S Paragraph Number. Subject arid Any thanges. Number(s) , §l22.47(d)(3) C xnpliance schedules’. §l22.66(d)(3) Added: cx npliance schedules allowed to flEet conditions pranulgated within 3 yearS’ of: permit expiration §l22.47(d)(4) Start—up control equi nent ’ . §P22.66(d)(4) Same §122.47(d)(5) Effectiveness of NSPS. §]f22.66(d)(5) Same §122.48 General permits §122.59 §122.48(a) (2’) Definition- of GPPA.” §122.59(a) (1 ’) No l’onger separately’ defined’, no substantive, change - §122.48(a)(2) Objection by EPA. §124. , ,, [ Coniient] Moved to 123 and 124 §123.76 §122.48(a) (3) Definition of general permit-. §122.3,. §124.57, Definition shortened, regulatory’ §123.76, requirements elsewhere; no §122.59(a)(l) substantive’ change S122.48(b)(1) Coverage of separate storm sewers. §122.59(a) (2) (,i) Same’ §122.48(b)(2) Coverage of other sources. §122.59(a)(2)(ii). Minor wording changes §122.48(c) - Covers a’ category’ wrthln’ area’. §122.59(a)(l) No longer’ a separate’ requirement §122.48(c)(1) Area. §l22.59(ä)(1) Minor wording changes §122.48(c)(2) Designation subject to- revi ew DEIEI’ED §122.48(c)(3) Procedures follow Part 124’. §122.59(b)(l) . Reworded, no substantive change ------- Federal Register I Vol. 45. No. 98 / Monday. May 19, 1980 1 Rules and Regulations 33375 TABLE VII RELATICNSHIP OF JUNE 7 PAgr 122 TO WD Y ‘S REGULATI S (Continued) June 7 Paragraph Number §122.48(c)(3) [ Cam nt I §122.48(d) (1) §122.48(d) (2) (i) §122.48(d) ( 2) (ii) §122.48(e) (1) §122.48(e) (2) 122.48(e) (3) §122.48(e) ( 4) §122.48(e) (5) §122.49 §122.49 (a) §122.49(b) §122.49(c) §122.49(d) 2 .49(e) Subject and Any Changes Providing notice. Mded to §124.57 Excluded sources. Reworded, no substantive change Permit applies to all not excluded. Reworded, no substantive change Request for coverage. Minor wording changes Requiren nt for individual permit. Reworded, no substantive change EPA revocation. Reworded, requirenent for onsite inspection deleted; all ance for additional tine added Request for individual permit. Reworded, no substantive change Effect of individual permit. Incorporated with §122.48(e)(5) Processing under Part 124. Incorporated with §122.48(e) (4) Special considerations under Federal law . ED 11990 (Wetlands). Reserved in today’s regulations ED 11988 (Floodplains). Reserved in today’s regulations Wild and Scenic Rivers. Narrative added National Historic Preservation. Narrative added Land and Water Conservation Act. DELETED day ‘s Paragraph Number(s) §124.57 §122. 59(a) (1), §122. 59(b) C 2) §122. 59(a)(l) §122. 59(b) ( 2) (v) §122.59(b)(2)(i) §122.59(b) (2) (ii) §122.59(b) (2) (iii) §122.59(b) (2) (iv) §122 . 59(b) ( 2) (iv) §122.12 §122.12(f) (Reserved) §122.12(f) (Reserved) §122.12(a) §122.12(b) ------- 33376 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations TABLE VII REIATICt 1SHIP OF JUNE 7 PAR2 122 TO TODAY’S REGUIATICt S (Contini.ied) - June 7 Paragraph day’s Paragraph Number Subject and Any thariges . Number(s ) -S12249(f) Endangered Species. §122.12(c) Narrative added §122.49(g) Coastal Zone Management. §122.12(d) Narrative added, caTilTent deleted §122.49(h) RcRA. DELETED §122.49(i) S JA. DELETED §l22.49(j) Ocean Dumping. DELETED §122.49(k) Surface Mining. - DELETED’ §122.49(1) Fish arid Wildlife Coordination. §122.12(e) Minor word - changes [ 122.47(c)] NEPA. §122.12(f) Coverage specified - §122.60 Delegation of Authority DELETED confidentiality of Infonnation §122.19 BILLING GODS 8560-01-C ------- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33377 PART 123—STATE PROGRAM REQUIREMENTS A. What Does This Part Do? This Part establishes the requirements- for State RCRA, UIC, 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 lust meet to qualify for approval. States re allowed some flexibility in how they nplement these requirements and are free to impose more stringent controls pursuant to State law. (The exception, discussed below, concerns the statutory requirement under RCRA that State - hazardous waste programs be “consistent” with other approved State programs and 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 to multiple interpretations, would subject the State to the risk of disapproval by EPA unless it enacted legislation identical to the Federal law. It 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 State’s submission for approval. Moreover, unless EPA established standards on which to judge whether the program was effective, it would be difficult to justify approving one State’s program and denying another’s. These regulations establish the specific criteria which are needed in order to make and justify these approval decisions. In addition, because decisiomnaking 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(i): 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 suggestion that State programs be nationally uniform (i.e., that they should meet all the requirements of P arts 122 and 124). The Agency has carefully anal ’zed each of the Part 122 and Part 124 requirements to determine which are essential to State programs. In evaluating which requirements the State should adopt, 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). Many of the procedures of Parts 122 and 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 participation (an explicit goal of Federal environmental programs), it does not ‘In this regard, there was one place in the proposed regulations where the Agency suggested that past performance in enforcement would be a factor in evaluating State RCRA programs (see the Comment after proposed § 123.34(d)). This provision was strongly criticized by a large number of comxnenters who felt that past performance is not a relevant factor in evaluating a State program. While EPA believes that past performance can be considered, it agrees with the commenters 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. ------- 33378 Federal Register / Vol. 45, No. 95 / 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 Fart Relate to the June 14, 1979 Proposal? The following is a discussion of the significant comments receivedand 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 , it has resulted in the elimination of many cross- references and sections. Subpart A is not applicable to State RCRA programs under interim authorization. § 123.1 Purpose and scope. Some commenters questioned whether a State authorized to administer one of the progfams 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 authority to administer all programs under this Part, and 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 aiiswer to a sliniliar 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)), regarding 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 p rmittees 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 404th)). Upon approval the State has the sole permit issuing authority. EPA canupt preclude States from reconsidering decisions made by EPA (or the Corps) during the processing of a permit application, as some commenters req uested. 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 included in the Memorandum of Agreement: Most of what was a Comment to proposed § 123.1(e) has now been included in the body of the regulation in § 123.1(j). 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 the comments suggested that requiring the - State to take a position on the issue could generate significant political controversies, EPA has modified the requirement of the proposal. EPA will 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. 2I’he provisions in § 123.1(k) (proposed § 123.1(f)) clarify that, except in regard to certain aspects of State RCRA programs, States may provide more stringent controls than do lhe comparable Federal programs. Provisions applicable under an EPA- administered program need not be adopted or may be modified by a State if their omissipn 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 in proposed § 123.1(1) regarding State programs with a greater scope of coverage then required by Federal law has been incorporated into the regulation, § 123.1(k)(2). § 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 State 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. § 123.3 Elements of a program 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 State program submission is quite limited, it is ------- Federal Register I Vol. 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 submission as essenfial to review in making its approval decision. Program- specific additions have been added io the list of required elements so that all the elements are contained in one section. Apparently, many comménters misconstrued the language of proposed paragraph (a). These commenters 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 legat. 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, ha8 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 (RCRA), 123.52 (UIC), and 123.95 (404)) 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. § § 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 F° explicitly provide that any agency administering a program must 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 § 123.3(d)(5)) has been retained, but is now included as a part of the program description ( 123.4(d)). Some commenters 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 Discharge Monitoring Report is an identical form required. § 123.5 Attorney General’s statement. The Attorney General’s statement is a central 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 State’s legal authorities, a complete evaluation is not possible without the Attorney General’s interpretation of various 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 ( 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, even 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. § 123.8 Memorandum of agreement. 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 sugge ted that MOAs be submitted to rulemaking, public notice, comment and hearing procedures before execution by the State Director. All MOAs 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 r public comment and hearings on tLci’r 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, although some may do so. However, under all four programs, EPA will provide public notice of the receipt of State program submissions, including MOAs, 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 ------- QQ2Rfl Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / 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 review 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 § 123 6(b)(4)(i) stating 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 notification. However, for cases of emergency and when otherwise necessary. EPA must retain the right to dispense with advance notification of ‘ pections. § 123.6(b)(4)(i) has therefore o . y qtained in its proposed form. P ô aed § 123 6(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 Attorney 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 § 123.6(b)(4) requiring that the MOA include arrangements for the coordination of enforcement activities by EPA and the State. Some commenters were concerned that § 123.6(b)(5), regarding 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. § 124.4 provides for this separation. Further, the public would have an opportunity to comment on any provision regarding joint processing before program approval. § 123.6(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. § 123.4(b) requires a description of these intra-State procedures for coordination. In the case of State 404 programs a memorandum of understanding between the responsible State agencies will 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. § 123.8(f)—Several comments were received on this paragraph (proposed § 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 404(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 cómnienter requested an - escalation procedure for resolving disagreements among Federal agencies on the scope of waivers: EPA disagrees. The waiver provision under section 404(k) 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 waivers to be contained in the State/EPA MOA. Since the MOA is part of the State program submittal, these agencies will have an opportunity to comment on the 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 cominenter felt that the term “discharge which may affect the waters of another State” in § 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 § 123.6(f)(1)(fl(C). EPA agrees with one commenter who felt that if no problems are encountered with permits that are waived, the Agency should, consider expanding the 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 § 123.6(g)(1). The only way the Agency has of determining this is by monitoring permit applications within waived categories when needed. Proposed § 223.7 Requirement to obtain a permit. - This proposed section ha’s 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. § 123.7 Requirements for permitting. This section was proposed as § 123.8. It lists the provisions of Parts 122 and 124 with which State programs must comply. The program-specific additional permit requirements [ proposed § § 123.39 (RCRA), 123.57 (UIC), and 123.73 (NPDES)J have been, moved into this section for convenience. In addition, th cross-referenced section of Parts 122 and 124 now specify, in their headings, ------- Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980/ Rules and Regulations 33381 t they are applicable to State ograms. It should be noted that States re 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 ( 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, certain 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). EPAconsiçlered 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 bifurqaiion would cause among States ekin to determine what authorities . ould 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 programs 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 belief 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 quirements were made applicable to DES States in the Agency’s June 7, ‘9, NPDES regulation (44 FR 32854) . A 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 States 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 § 122.16(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 listbf 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 § 123.8 has been amended, in response to commenters’ concern that the section limited State authority to impose requirements more stringent than Federal requirements, to make clear that the applicability of the listed 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 § 122.60. However, when States include provisions on bypass and upset, these may not be less stringent than those allowed by EPA regulations. § 123.8 Requirements for compliance evaluation programs. This section was proposed as § 123.9. The additional requirements for State NPDES compliance evaluation programs (proposed § 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 intend to interfere with State litigation. However, the information collected 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 § 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 section of Subpart A. The proposal generalized the requirements to a degree which ma4e 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 States 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 State 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, ------- 33382 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations not EPA, is to have primary enforcement responsibility upon program approval. The violations for which these fines and penalties must be recoverable, which some commenters 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 State enforcement programs. Without such minimum levels, EPA would often be forced to take its own enforcement action in approved States because the State action imposed inadequate penalties. Such EPA action, while available as a backup, i 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 has 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 $10,000 per day at the suggestion 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 cominenters pointed out that EPA cannot obtain criminal remedies for any program violation. The situations where criminal remedies must be available now closely parallels the language of section 3008 of RCRA. The levels 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 State UIC programs have been similarly reduced below Federal amounts. The minimum civil penalties and criminal fines have been set at $2,500 and $5,000 per day, respectively. However, in the case of Class II wells, States need only have the authority to recover a civil penalty of $1,000 per day, and may substitute the authority for pipeline (or production) severance for criminal fines. Several commenters noted that they had this authority 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 II wells. One commenter suggested that the requirement of § 123.9(a)(1) (proposed § 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 coxnmenter cited section 1431 of SDWA which allows immediate action only when there is an “imminent 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 § 123.10(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 wider 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 les8 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 “deadline” violations and are inherently flexible so as to provide States with a wide margin of discretion in their application. Some commenters argued that the penalty policy could not be applied to States administering RCRA programs because under section 3008(c) of RCRA the Administrator may only consider the 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 § 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. § 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. Additional y. this regulation is promulgated in response to the opinion of the Seventh Circuit in Citizens for a Better Environme tv. EPA (596 F. 2d 270, Petition for rehearing denied. 13 ERC 1095, 7th Cit. 1979). It was proposed as § 123.10(d) on August 22, 1979 (44 FR 49275). The August 22, 1979 proposal required all States wi8hing to receive or maintain programs covered by the consolidated 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 Agency ------- Federal Register / Vol. 45 , No. 98 I 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 citizens 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 UIC programs. Many pointed out that GEE v. EPA, supm, 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 requirements 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. section 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 minimum public participation ;equirements 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. Numerous comnienters 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 commenters 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 be published. 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 § 50.7). Some commenters stated that the Agency should define “citizen.” Many pointed to section 505(d) o CWA which defines citizens 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-discretionary 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 withdraw 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 commenters asserted that EPA has 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 CBE v EPA, supra, the proposal was developed by EPA. However, States were fully informed and their views on the proposal were acti’ ’ely sought. Comments were received from agencies in over 30 States. These comments were carefully and fully considered in developing this regulation. § 123.10 Sharing oflnformation. 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 information, 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 claimed 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 § 2.205. if a State operates a broader program than is required by Federal law, this information sharing requirement applies only to the Federally required portion. Under § 123.10(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(h)(3), which is incorporated by reference in § 2.302(h)(3) (NPDES/404 permits), § 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 ihat information or, if it does not have 8uch 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 information. If the State does have the authority to compel submission of the information, notice is not required. EPA’s disclosure of ------- 33384 Federal Register / 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 § § 2.209(c)(3) and (e). Proposed § 123.11 Progress reports. This proposed section has been dropped because it was duplicative of other provisions in this Part. The requirement that States with interim authorization under RCRA, and those listed as needing a UIC program submit progress reports is found in Sul parts F and C, respectively. § 123.13 Procedure for revision of State programs. Thissection 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 proposes to transfer all or part of a • program 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 ( 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. § 123.13(g) also requires NPDES States to implement the new NPDES application requirements for existing dischargers other than POTW’s contained in § § 122.4fd) and 122.53(d) and (e), for all dischargers whose permits expire after November 30, 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, and 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 § 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 publication in today’s Federal Register of EPA consolidated application forms). EPA will provide adequate supplies of these forms to States wishing to use them. States which develop new application forms consistent with § § 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 § 123.13(b)(2). § 123.14 &iteria for withdrawal of State proglvms. This section was pr 1 oposed as § 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 Save the Bay v. Adminis1rator, 556 F.2d 1282 (5th Cir. 1977). § 123.15 Procedures for withdrawal of St ale 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 after withdrawal. This provision appears at § 123:15(c). Subpart B—Additional Requirements for State Hazardous Waste Programs Subpart F—Requirements for Interim Authorization of State Hazardous Waste Programs RCRA.is unique among the statutes covered by these consolidated regulations in that it provides for two different types of EPA approval of State programs—”interim authorization.” which may extend for only 24 months after the full Federal program has been established—and “final authorization,” which is the same type of permanent approval authorized by the other - statutes implemented by this Part. EPA originally proposed guidelines for both interim and final authorization of State hazardous waste programs under section 3006 of RCRA on February 1, 1978 (43 FR 4365). On June 14, 1979, EPA reproposed the guidelines as part of these consolidated permit regulations. Because of the public interest in the Federal hazardous waste regulatory program.and because of the particular need for States to know early in 1980 what EPA would require for interim authorization, the Agency, on January 29, 1980, published in the Federal Register (45 FR 6752) Advance Notice of what today’s regulations impose as requirements for.both interim and flnal authorization of State hazardous waste programs. The Agency did not accept comments on this Advance Notice, nor did it respond in the Advance Notice to 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 program decisions. These will not be reiterated fully here. However, EPA strongly solicited comments on many aspects of the proposal pertaining to interim authorization. Comments on these aspects and the basis for this final regulation for interim authorization as it appears today are addressed below. In the June 14, 1979 proposal of Part 123, requirements for both interim authorization and final authorization were contained in Subparts A and B. This caused confusion among many commenters as to which requirements pertained to which type of authorization. In order to make the final regulations easier to read and work with, EPA has now separated the RCRA provisions in this Part into two Subparts—one for final authorization and one for interim authorization. EPA believes that the ------- Federal Register f Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33385 requirements for interim authorization are most comprehensible when set forth as a discreet, autonomous subpart of Part 123. Thus, new Subpart F includes all of the requirements for interim authorization, 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 includes 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 the 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 squivalent” 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 stringenirState 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 inipose requirements under their own laws which are more stringent than the Federal requirements, but section 3006 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 State 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, it has adhered to a more flexible approach, particularly where interim authorization is concerned. Final State 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 giving notice, to revoke any RCRA permit whose holder is in violation of any of the requirements of Subtitle C, or State requirements established under that Subtitle, and 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 State- issued permits or enforce against their holders to the extent permittees do not comply with conditions included m comments made by EPA during the period for review of State permits required by § 123.6, 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 included 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 under 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 is not adequate to carry out the ------- 33386 Federal Register / 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 approach 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 DirecLor 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, bu4 also for a preliminary transitional stage’ called “interim authorization.” Section 3p05(c) of RCRA provides that Any State whicb has in existence a hazardous waste program pursuant to State law before the date 90 days after the date of promulgation of regulations under sections 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. The Admimsfra tar shall, if the evidence submitted shows the ekisting State program to be substantially equivalent to the Federal program under this subtitle, grant 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 period beginning on the date 8 months after the date of promulgation of regulations under sections 3002 through 3005. Unlike final authorization programs, which must be “equivalent” to the Federal program, “oonsistent” 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 i.egislative history emphasizes Congress’ intent that interim authorization 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 Lull program when interim authorization is over. The timing and conditions for interim authorization, and the relationship between various State program.s 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 ixiterim authorization, namely “the date 6 months after the promulgation of regulations under section 3001 of RCRA.” The proposed requirements for obtaining interim authorization were relatively loose. A State 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 in 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 ihe 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 262 and 263), erect “interim status” standards applicable to existing HWM facilities before they receive permits (Part 265) and set out permitting procedures (Part 122). The second set of regulation.s (or “Phase IF’), 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 the effective date of these regulations. This two-stage approach has proved to be the only practical way, given the size of the regulatory task involved, of putting the program in motion expeditiously. As far as the Federal program.is concerned, the only concrete operational difference that will flow from this two- stage approach, as opposed to one in which the regulations were all promulgated at once, will be that a period of 6 months will be created during which existing HWM facilities will be subject to InteTim status standards but no permits will be issued. However, as the preamble to the section 3004 regulations explains, the statute explicitly foresees that many facilities will not be permitted for years after the program starts and provides for “interim status” for these facilities. The two- stage approach operates within that basic understanding. It-would be inconsistent and contrary to Congressional intent to establish interim authorization in one stage only when the basic Federal program is being established in two stages. As a practical matter, a one stage interim authorization program could only have been done by postponing the beginning of interim authorization until after both stages of the Federal program were promulgated. That would have meant creating a period of 6 months in which EPA would run a purely Federal program without any possibility of a State formally taking it over. This would have been contrary to the Congressional desire that States take formal responsibility for the program as soon as possible. For these reasons, EPA has elected to allow interim authorization for the first phase of the Federal program as well as for the second. EPA believes this approach is legal under the statute. Section 3006(c) of RCRA consists of two sentences embodying somewhat different policies. The second sentence requires EPA. upon finding that a State program is “substantially equivalent” to the Federal program, to grant an interim authorization to the State to carry out such program in lieu of the Federal program for a 24-month period beginning on the date 6 months after the date of promulgation,of regulations under sections 3002 through 3005. This sentence allows States 2 years from the effective date of the regulations establishing the full Federal program in its initial form to come into compliance with the Federal program and, during that grace ‘period, allows Federal approval of State programs that do not ------- Federal Register / Vol. 4S, No. 98/ Monday, May 19, 1980 / 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 effective date of the full initial RCRA program regulations, which includes the Phase II 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 entirely to carry out the policies in the first sentence of section 3006(c) That sentence reads: Any State which has in existence a hazardous waste management program pursu,nt to State law before the date 90 days after promulgation of regulations under sections 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 underlines, 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 ceilmg 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 existence a hazardous waste program pursuant to State law” no more than 90 days after promulgation of the RCRA program regulations. EPA interprets 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. Ninety 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 mto “substantial equivalence” with them. Given the statements favoring use of interim authorizationin the legislative history of RCRA. 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 “substantially 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 II 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 11 regulations. § 123.122 Schedule. With the jssuance 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 I, today, and the effective date of the Phase H regulations, which will be 6 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 6 months between promulgation of Phase I and promulgation of Phase II; and a second half, consisting of the 6 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 This issue of the Federal Register contains EPA’s initial list of wastes under section 3001 of RCRA In June. EPA expects to list additional made that after the Phase II requirements are known, only applications for complete interim authorization, including 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 proposal, 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 II 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 U as of the promulgation date of Phase H would create a period when no interim authorization applications could be filed because States would be adjusting their programs to the newly promulgated Phase H 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 Phdse II of the Federal program (and Phase I, at the same time, if it has not already been approved for Phase 1), any time between the time the requirements establishing Phase II 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 11 authorization. As noted above, for 6 months after prom.ulgatian of the Phase II regulations, a State may apply for Phase 1 interim authorization or for both Phase I and U or for Phase II interim authorization, if it already has Phase I authorization (or for final authonzation). A State may never obtain only Phase U interim authorization. Starting with the effective date of the Phase II regulations wastes, and the c ,,mt , ,tes for that listing have also been published today. EPA encourages States applyrng for inierun authorization before the June promulgation to include the wastes set forth today as candidates for listing in June in their Phase I submissions. That will avoid the need to supplement the apphcatio later and will reduce confusion and paperwork. ------- 33388 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations in approximately April of 1981, only applications for Phase II, 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 October 1981, or lose the program. EPA established this requirement to minimize 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 II regulations to apply for Phase II interim authorization. This is the same length of time allowed to States to file Phase I appli tions, and was set for the same reasons. It allows a period of 6 months (approximately April 1981 to October 1981) when Stateicould 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 as Congress intended, it has obvious potential for creating confusion and inconsistency and its duration should be minimized. Finally, nutting 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 requi’rements necessary for Phase II. Relationship between interim authorization and final authorization. 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 aut,horization 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 II regulations (about April 1983) will automatically lose interim authorization and the program will revert to EPA. (See Schedule of Events.) BILLING CODE 6560-O1-M ------- Federal Program Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations SCHEDULE ‘OF EVENTS 33389 - Phase I promulgated I. Phase I commences 6 months I I effective Phase II commences Phase II promulgatedj 6 months I leffective State P rag rams Appi ication for Phase I without Phase II .1 Application for Phase II for Prograi s with Phase I Application for Phase I and Phase II (simultaneous) Application for Final Authorization 3 I 6 mos I 6 mos 16 24 mos l8mos .L Interim Authorization Expire —I —I BILUNG CODE 6560-01-C ------- 33390 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations - Manifest system. In general, as later portions of this preamble discuss, State programs approved for Phase I or Phase 11 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 St$e 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 H application, even though the corresponding Federal requirements were promulgated in Phase I. 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 of a program submission. This section lists the elements a State must submit to EPA in its application for interim 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 H. § 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 States 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, Attornvy Generals’ statemen s submitted for Phase I authorization will probably have to be amended to be acceptable for Phase II. § 123.126 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 MOAs which are part of a Phase I application. Any MOA negotiated during Phase I must be amended at the time of the Phase II 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)(6) 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 “problem;” This would negate a significant aspect of the oversight role, which is to ensure that problem sites do not arise or are identified in the first place. An additional comment on EPA’s inspection authority was that only EPA 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 employee 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, great disruption would occur if a large number of States with interim authorization did not qualify for final authorization when interim authorization was over. The program would then revert in full to EPA and would have to be redelega ted 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 application. 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 time in the Phase II application. The Attorney General’s statement 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 comment that EPA should make the decision as to ------- Federal Register I Vol. 45, No. 98 / 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 plan, it is the State which is in the best position to identify required revisions and modifications and to determine how best to accomplish them. § § 123.128 and 123.129 Program requirements for interim authorization for phase I and for phase II. These sections set forth the substantive requirements for ‘an approvable State interim authorization 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 States to implement (i.e., regulate and enforce) 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 commenters 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 State 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 interests evident in RCRA. its legislative 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 interi i authorization to reconcile these two interests. Interim authorization 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 equivalence.” 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 concerns 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 inconsistencies, and to the governments that would have to regulate taking the differences in the manifest systems into account. Here, both concern for the environment 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 arguments for uniformity are weaker, though EPA sets minimum standards to assure protection of human health and the environment. EPA believes this general working definition, and the specific requirements found in these sections, represent a middle ground between the approaches advocated in the public comments. The comments generally fell into two groups. Some commenters wanted EPA to require States to regulate all facilities that the Federal program would, and wanted State standards to be very similar to 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 requirements, 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 authorization. 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. ParLial 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 plogram 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 / Monday. May 19. 1980 / Rules and Regulations requirements, to rejection of State regulation of certain activities and EPA regulation of others. Commenters 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. 5 In all other areas, the State 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.° § 123.128(0) (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 harardous waste by States during interim authorization. This definition will necessarily determine what wastes will become part of the hazardous waste management program required by RGRA, thhs assuring-their proper management. Wastes outside of the definition will not receive the attention RCRA 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 allowing 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 harm from wastes not defined or listed as hazardous and not properly managed even during Interim authorization. § 123.128(b)—(d) (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 I. 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 for this program part should cause States to be denied interim authorization. That approach could result in a great many 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 with the Federal system as required for final authorization. In order to obtain interim authorization, States are not required 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 changes. For interstate transportation of hazardous waste these DOT requirements operate independently of the requirements that are contained in a State hazardous waste program. Thus, a degree of control of hazardous waste and protection of human health and the 5 The phasing of interim authorization can also be seen as the authorization of part of a State program and thus as another exception to the requirement for a complete State program. EPA does not view it this way, however, for two reasons. First, the two phases of mterim authorization are necessitated by the two phases of the Federal regulations, and the State program for Phase I or Phase II will be substantially equivalent to the Federal program for Phase I and Phase II; and second, EPA does not intend to authorize a Slate for only one phase of the program (evidenced by the automatic reversion of Phase Ito EPA If a State does not apply for, or Is denied. Phase II). ‘For example, since EPA will not enforce the Federal requirements for those elements of a State piogram which it has authorized, further fragmentation of program approval would subject the reguld(ed community to a patchwork of State nd Federal regulations. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 I Rules and Regulations 33393 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 auth’orization 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 winch 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 123.129 (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 II 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, will be to a great extent a matter of site-specific 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 122, Subpart B, EPA also will make provisions for issuing interim RCRA permits to class I wells handling hazardouá waste. Because this regulation under RCRA of wells injecting 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 Hof 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 thd permitting standards for Class I wells injecting hazardous waste are in place, issue permits to owners and operators requesting them. Belationshi o of State programs to each other and to the Federal program 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 several types of inconsistencies which may still arise. The independent application of DOT regulations respecting interstate shipments (including requirements for the identification 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 can 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 hated. 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 from 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 inconsistencies. EPA intends to administer the program so as to minimize the chances that this situation will in fact occur. Specifical1y EPA will not approve State programs which affirmatively appear to include a smaller “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 not 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 it has been transported. In addition, § 123.128(b)(6) requires State manifest systems to insure 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 cannot be avoided under any approach which gives effect to the “substantial equivalence” language of RCRA. 7 T EPA will also permit States to obtain interim authorization even if they lack regulatory authority over certain types of storage, treatment, or disposal facilities as long as those facilities do not exist in the State at the time interim authorization is granted This provision raises the possibility that such a facility could be opened in the State during the time of interim authorization and operate unregulated. However, EPA believes that this will not prove Lobe a practical problem. It will be difficult to construct and open large or complex Footnotes continued on next page ------- 33394 Federal Register / Vol. 45, No. 98 / 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 II. 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(f) and(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 evaluatiQn programs for interim authorization are now bontained in § 123.128(f) and (g). For compliance evaluation, the requirements for interim authorization are substanti,vely 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 number of State programs would not qualify for interim authorization if required to have the Footnotes continued from last page facilities during the 2 years allowed for interim authorization, and anyone who does build such a facility will do so In the knowledge that he or she will be subject to RCRA’s Ml permit requirements when interim authorization expires, and may lose his or her investment If he or she does not qualify under them. same enforcement 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 the 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 shoul4be 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. § 123.132 Sharing of information. Th is section is the same as § 123.10 and is discussed in the preamble to that section. § 123.133 Coordination with other programs. This section is self-explanatory. The question of coordination is fully discussed in the preamble to Part 124. § 123.134 EPA review of State permits. The major issue raised by this section—when EPA will 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 numberschosen will result in review of approximately ten percent of the permit applications for a State. One commenter suggested that EPA limit its review of permits to receiving “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 require 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. § 123.1 35 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 3006(c), the provision for interim authorization, contains none of these procedural requirements. Second, extensive procedural requirements for interim authorization approvals would be inappropriate given 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 foiduplicate State and Federal programs while an application is being processed. The Agency is, however, committed to extensive public participation in the interim authorization process and is mindful of the need for reasoned decisioninaking 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’s desire to minimize the possibility of duplicate State and Federal programs. ------- 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 for 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. § 123.136 Withdrawal of state programs. This section is derived from § 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, If it 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. § 123.137 Reversion of State programs. This section is new. It provides that a State program shall terminate and revert to EPA if either the State fails to submit the amended application required for Phase II interim authorization as required by § 122.122(c)(4) or the Regional Administrator determines, in accordance with procedures set forth at § 123,138, that the amended State program submission does not meet the - requirements for interim authorization corresponding to Phase IL There are no similar provisions in other subparts of this Part. This automatic termination and 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 II; and States which received Phase I interim authorization but do not apply for interim authorization for Phase II shall not retain Phase I interim authorization beyond the 6 month period following the effective date of Phase IL 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 F,ederal 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 should 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 F and 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. St tes 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. § 123.32 Consistency. As the discussion earlier in this Preamble states, Congress intended 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 RCRA 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 requirements 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 within 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, it is important that the various States be very similar in this regard. - A number of comments raised as a “consistency” issue that State programs might be too lax in some respect so that a State would become a “waste haven” for a region. Though the terms “consistent” and “equivalent” do have a certain degree of overlapping content, in general EPA, during final authorization, will deal with problems of State programs that conflict with each other or impose unnecessary procedural burdens, as a “consistency” issue. 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 required them to achieve the same effect, and has been particularly careful ------- 33396 Federal Register / Vol. 45, No. 98/ Monday, May 19, 1980 / 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. § 123.34 Requirements for generators of hazardous waste. As explained above, EPA places particular weight on 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 § 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 whiqh 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 § 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 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. 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 elimination 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. § 123.36 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 permit 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 authoçization. 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. §123.38 EPA review of State permits. The significant issues raised by this section have been discussed earlier in this preamble. § 123.39 Appro 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 rule 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 § § 123.52, 123.57, and 123.60 have been moved into § § 123.4, 123.7, and 123.13, respectively. In addition, the requirements for State programs listed in § 123.7 are changed to the extent changes have been made in Parts 122 and 124. All States must ban certain Class IV wells as provided in § 122.36. Treatment of other Class IV wells has - been reserved as discussed in the preamble to that section. § 123.51 Purpose and scope. - § 123.51(d)—This paragraph (proposed § 123.51(f)(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 N) have the following options: (1) Without distinguishing between classes of wells, treat all injections as though they fall into EPA’s Class I. (2) Prohibit injections in non-existent classes explicitly. - (3) When the State can demonstrate that injections are not authorized in the 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 N wells to the extent required by § § 122.38 and 122.45 even though the State may not currently have any Class IV wells. § 123.52 Requirement to obtain a permit. This section was proposed as § 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 the State, either by rule or by permit. Before any type of well injection not currently in i5lace can be authorized, the State progam must be amended to cover that type of injection. - Proposed § 123.53 Attorney General’s statement. The specific requirement in this section has been dropped. The State’s authority to prohibit or authorize well injections without a permit must be discussed, however, in the Attorney General’s statement under § 123.5. ------- Federal Register I Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations 33397 Proposed § 123.56 Annual report. This section has been moved to § 122.18. § 123.54 Appro vol process. Some commenters suggested that EPA was too stringent in its public notice requirements in proposed § 123.58(a), now § 123.54(a). They suggested that States should be given greater flexibility to handle public notice of their programs 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 fl—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 U 123.77 and 123.78) have been reorganized for greater clarity. Proposed § 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 § § 122.7 (applicable permit conditions), 122.11 (monitoring requirements), and 123.8 (requirements for compliance eyaluation programs). Subpart E—Additional Requirements for State Programs Under Section 404 of the Clean Water Act - This Subpart has been reorganized to be more comprehensible. § 123.91 Purpose and scope. One commenter suggested that § 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 waters.” 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 clearly indicate that State section 404 programs must regulate discharges of dredged or fill materials into all waters - of the United States except those expressly reserved to the Corps of Engineers under section 404(g)(1) of CWA. For this reason, partial programs cannot be approved. One commenter argued that § 123.91(d) limited the scope of State programs to regulation of only those activities permitted by the State after program approval. EPA disagrees. § 123.91(d) clearly allows approved States to assume responsibility over existing general permits Issued by the Corps of Engineers. The Memorandum of Agreement between the State and the Secretary, under § 123.99, will be the vehicle for establishing which Corps issued permits the State will administer and enforce. § 123.92 Activities not requfring permits. This section was proposed as § 123.107. A number of commenters objected to the description of activities exempt from the requirement of having to obtain a permit, on the grpunds 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. It is clear from the statutory scheme and legislatfve history that sections 402 and 404 must reach all point source discharges except those explicitly exempted in sections 404(1), 404(r), or 402(1). 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 BMJ s in section 404(f)(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. § 123.92(a)(1)—Several commenters objected to the restrictive language of § 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 § 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: CultivotilRg EPA agrees with the commenter 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 Drain age A large number of commenters 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 commenters 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(fl(2) would serve as assurance that the exempted 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 wetlands before he or she would know whether a permit is needed. A few commenters, citing the potential for abuse from wetlands drainage, recommended that the proposed definition be retained. The definition of minor drainage is not an easy problem to solve. The legislative history contains numerous, inconsistent references to minor drainage and to other section 404(fl(1) exemptions. Some portions of the legislative history clearly 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 and fill material in waters of the United States, and therefore does not ever need a permit. However, other passages in the legislative history suggest that the minor 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 ------- 33398 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations After a careful review of the entire legislative history and consideration of the numerous comments, EPA has concluded that it would be appropriate to define “minor drainage” to include certain clearly defined drainage activities in wetlands which are part of on-going agricultural and sfivicultural operations and which have minimal .adverse effects, where permits are an unnecessary burden. Subparagraphs (ii), (iii), and (iv) of the new definition reflect this revision. It should be stressed that each of these provisions applies to activities that are part of an on-going farming or forestry operation: they do not exempt activities which convert wetlands to non-wetlands or which bring wetlands into farming use. ‘I he 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 without 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 situation of rice and cranberry (and possibly other farm or forest crop) growers, whose manipulation of water levels may involve the discharge of fill material. Subparagraph (iv) 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 fhzvial action over a period of time. EPA considered adding a provision to exempt drainage of 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 exception 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 Army to take over the administration of such general permits, for State regulated waters, upon program approval. (See § 123.91(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) Non-tidal rivers, streams and their impoundments including adjacent 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 sprface 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 lakes larger than 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 FR § 323.2(a)(511. These small isolated wetlands would be covered by this nationwide permit There are strong policy grounds for continuing to rely on the general permit approach for regulating small. Isolated, wetlands in regions where agricultural and silvicultural activities predominate. For example, the general permit approach allows a certain flexibility, in the event that the cumulative impact of such drainage should become more significant in the future. This flexibility arises in two ways. First, under the Corps’ regulations and under State programs, the permitting authority has the discretion to require an individual 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 permit 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 prairie potholes has had such an Impact on migratory waterfowl that 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 more protective approach than the minimum standards set by the Federal program. At the same time, this definition assures that the legitimate interests of farmers and other groups, as reflected in section 404(f), are also protected. P/owing Several comnienters pointed out that plowing is a normal forestry as well as farming activity. We have amended the definition of plowing to reflect this. Others objected to the exclusion from plowing of redistribution of surface materials by grading, on the grounds that filling in depressions in irrigated fields may actually be a BMP. Plowing, as defined, is not a point source and, under § 123.92, will not require a section 404 permit. However, other activities which involve the redistribution of soil or other surface materials to fill in waters of the U.S. are ------- Federal Register / Vol. 45, No.98 t Monday, May 19, 1980 T Rules and Regulations 33399 not includedim this definition and may require a section 404 permit. Several commenters questioned the requirement that plowing lake pface on “established” fann or forest lands. This requirQment has been deleted. However,. it is still necessary to distinguish ongoing farming’and forestry activities, which are. exempt under section 404(13(1) of CWA, from activities which convert waters of the Unitedi States to a new use, which,, undS section 404 (f3 (Z) are not exempt EPA believes that redistribution of materiat shoulitbe’ subject to the scrutiny of thepermit process when it results ira the conversion of waters of the United States to.dry lunch In appropriate’ circumstances, with appropriate - conditions, such redistribution may be permitted’ as provided in the section 404(bfli) guidelines. §.723.92fr)(2)—Scrne commenters felt that § 123.92(a)(2) was. too vague or too inflexible for nil emergency situations. EPA disagrees, and has retained this paragraph with only minor retsions. § 123.92j”a)(’3)—.Anuruber of commenters objected to the language defining theexemption for the connection of irrigation ditches tG 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 discernabre alterations to.the flow or circulation ot waters of the.’ United’ Sta tes. It ta not the intent of EPA that simple connections fall under the permit requiremenL Furthermore, construction of bank. protection features for ditches which do not reach into waters of the U.S dci not need a permit in any case. § 123.92(o)(6)—.Numerous reviewers objected 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, [ 2rj whether the baseline UMP 5 in the proposal improperly control activities that do not relate to road. construction 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.aection 404(f)(1J(Ej, finds no direct or implicit guidance as to the means by which Congress intended the best management practices requirement to be implemented. Our intent in specifying baseline best anagement practices was, and is, to denlify basic measures which are nationally applicable .nd which can form a’ core or framework to which States may add more detailed and locally applicable EMPs which they believe are needed to assure that the environmental protection objectives of section 404(fXlflE) are met. We also believe that an explicit statement of minimum standards will aid States in preparing,program submissions for approval. Forts reason, we have retained the approach of baseline EMP’s in §‘ 123 92 (a)(6). EPA has carefully considered. the second’ objection, relative to the scope of the specific BMPs;, in ligJit of the legisLative histosy of section 404(fl(1J(EL and has concluded that in some cases the proposed ! BMPs were too broad. The Agency has,, therefore; revisedibe- list of - BMPs In order to fousupoii environmentally protective measures which are directly liuikedto the methodology and location of discharges for road construction. Proposed (i), (x), (xi), (xvi) and’ (xvi-i]jl±ave been deleted, and other proposed EMPs 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’dlsturbance within the waters of the United States 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 mad 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 of Engineers. New (xi) requires that the public health and welfare be protected. New (xii) requires that health and economic concerns be protected by the protection ofsliellflsh production areas. Below is a EMP hyBMP analysis of comments received ant I changes made in each of the proposed baseline EMPs. Most of the comments on proposed (i) were not favorable, expressing concerns that this OMP was outside EPA’s authority, that the absolute nature of the prohibition made it impracticable, and that it might even result in the nee d for additional road construction. Although the Agency agrees with the comments favorable to proposed (i) that logging in streams may be environmentally harmful, proposed (1)’ has been deleted as not being within the’proper- scope of this section: Although many comnienters approved of proposed (ii)’ (now (1)], others felt that it was already covered under section 208 or that it was too inflexible. In response to this fatter comment, the Agency has included more factors to be used in determining what restrictions are feasible in any given case. Proposed (iii) (now (ji) ) has been revised to require the’ minimization of discharges of dredged’ or fill material’ only. This responds to’ those comments which stated that the’ 13KW, as proposed, was not limited to &edged’or filt material!, and was impractical. Many commenters agreed with proposed’ (iv) [ now’ @iiflj knd’so it has’ been retained and onl r 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 13KW. The phrsse “high” flows has been changed’ to “flood” flows for clarity-. Comments on’ proposed (vi: (now Cvii)) were generally favorable, and so this BMP’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 comnienters agreed with proposed (vi) (now (xfl and proposed (vii) (now (idv)), and they have been retained unchanged. - Although a few cominenters felt that proposed (viii) (now (ix)) needed more definition orexplanaticn. EPA has- retained this BMP unchanged in light of the predominance of favorable comments and the availability of information compiled under the Endangered Species Ac S for implementing this requirement. Most commenters agree with - proposed (ix) (now (iv)); and it has been retained, although limited to erosion prevention. Several commenters suggested. that the word “prevent” be replaced with “minimize” or “control,’ t but the Agency and the greater number of commenters felt that the original language is both’preferabl and practicable. Ml comments on proposed (ii) 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 coinnients, proposed (4 has been deleted. Almost all of the comments on proposed (xi ) werE negative. Primary concerns were that it exceede( EPA’s scope of suthority. was covered under section 208 and was inappropriately regulated under section 404, was’ ------- 33400 Federal Register I VOL 45, No. 98 / Monday. May 19, 1980 I Rules and Regulations 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 BMP. In response to these comments, proposed (xi) has been deleted. Many commenters agreed with proposed (xii) (now (vi)) whichMn 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 kinder section 208 only, since it is clearly concerned with potential discharges into waters of the ( 1.5. Proposed (xiii) (now (viii)) has been revised in response to s 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 EMP may be appropriate to both sections 404 • and 208. A number of commenters agreed with this positioa. and so proposed (xiii) has been revised and retained. A large number oS commenters agreed with proposed (xiv) (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 requirement is impractical or that it might result in environmentally harmful activities. No favorable comments were received - regarding proposed (xvi). The general criticisms were that this BMP was not adequately related to section 404 and was more appropriately regulated under section 208 and/or FIFRA, 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 practicsble 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 BMPs. As explained above, new BMP (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 water supply and food production areas from contamination resulting from discharges allowed under this paragraph. § 123.92(d)—One commenter expressed concern that proposed § 123.107(d), which exempts Federal projects qualifying under section 404(r) of CWA from State section 404 permit requirements, is contrary 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 requirements of proposed § 123.108(c) be simplified and reduced. The Agency agrees, nd in revising those requirements has attempted to clarify what is required in the application, redtice duplication, and limit application requirements to the infqrmation 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 bythe 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)(2)(v) also seeks to ensure that the level of information required will be appropriate to the necessary review, pursuant to the section 404(b)(1) guidelines. 40 CFR § 230.4(c) (as proposed in 44 FR 54222, September 18, 1979). § 123.96 Emei ency 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 Additional conditions applicable to all 404 permits. This sectioncontains 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 addition every permit must specify that only activities specifically identified and authorized in the permit are authorized activities. This maintains consistency with Corps permits, and alerts the permittee to the fact that the permit allpws him/her to perform only work specifically • described by the permit. Any other activities which require a permit but are not specifically identified and authorized in the permit cannot be performed unless the permit is modified or a new permit is obtained. - § 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 area, specific site, 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 is authorized by the permit and what limitations are imposed on the ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33401 authorized discharge. The permit must ilso include a specific date by w) ich vork must commence. This will ensure that the permittee knows exactly when the discharge is authorized and when it is not. § 123.99 Me,norandwn of agreement with the Secretary This section was proposed as § 123.93. One commenter suggested that the requirement for the State and the Secretary tt 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 o 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. andT confirm the State’s understanding’ of its jurisdiction as set out in the program description under § 123.4(h)(1) Two commenters felt that § 123.99(f), which prohibits the State from issuing, a ection 404 permit if in the judgement of .he 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 C WA. § 123.100 Transmission of information to EP4 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 § 124.6 of this preamble for a general justification of the draft permit requirement.) As discussed in the preamble to § 123.6(f), e categories of discharges for which a aft State section 404 permit is required ye been more clearly defined. § 123.101 EPA review of and objections to State permits. Two industry commenters and one State agency objected to EPA. review of State permits in general and the 90-day review periodi in particular. No changes were made because the provisions of this sectton 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 days to respond. Responses will normally be given in less than the full’ 90-day period. The following chart should clarify the entire State section 404 permit application review process. BILLING CODE 6560-O1-M ------- STATE 404 PROGRAMS—PERMIT APPLICATION REVIEW PROCESS E z 0 8 20 30 50 90 days Receipt of complete permit application (draft permit where required) by E P.A. (also sent to F.W.S., C.O.E., N.M.F.S.). 0 I I ) Deadline for C.O.E., F.W.S., N M.F.S., notice to E.P.A. of intent to comment. C D Notice from E.P A. to State of intent to comment, or of reservation of right to object. (Request for preparation of draft permit or additionat information). Am uIi4 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). C l i z 0 cc cc 0 0 0 c c cc CD 0 0 CD cc 0 0 0 1 Deadline for E.P.A to submit written comments to State State reviews E P.A comments ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33403 § 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. BILLING CODE 6560-01-U ------- 33404 Federal Register I Vol. 45. No. 98 I Monday. May 19. 1980 / 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 GENE RAL’S 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 C.O.E, F.W.& , N.M.F.& WITHIN 10 DAYS OF RECEIPT E.P.A. NOTIFIES STATE WITHIN 30 DAYS OF RECEIPT WHETHER SUBMISSION IS COMPLETE ‘I ONCE COMPLETED SUBMISSION IS RECEIVED E.P.A. PUBLISHES PUBLIC NOTICE OF STATE’S APPLICATION NOTICE MUST INCLUDE COST OF OBTAINING A COPY OF sTATE’S SUBMISSION WHEN AND WHERE sTATE’S SUBMISSION MAY BE REVIEWED BY THE PUBLIC WHO THE PUBLIC SHOULD CONTACT WITH QUESTIONS OUTLINE OF FUNDAMENTAL ASPECTS OF STATE’S PROPOSED PROGRAM AND E.P.A.’i REVIEW AND DECISION PROCESS NOTICE OF PUBLIC HEARING, AND 45 DAY COMMENT PERIOD PUBLIC HEARING HELD NO LESS THAN 30 DAYS AFTER NOTICE , _______________________ I COMMENT PERIOD OF NO LESS THAN I IF STATE SUBMISSION IS 1 45 DAYS AFTER NOTICE CHANGED. REVIEW PERIOD 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 - APPROVES NOTIFY STATE OF REASONS FOR ADMINISTRATOR NOTIFIES STATE AND DISAPPROVAL AND ANY MODIFICATIONS PUBLISHES NOTICE IN THE FEDERAL REGISTER OR CHANGES NECESSARY FOR APPROVAL BIWNG CODE 6560-01-C ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33405 1. Part 124—Procedures for Decisionmaking. 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, PSO, or NPDES permits separately or in combination. 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 for 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 regulations encourage joint proceedings. Part 124 includes procedures for issuing permits under regulations implementing the “prevention of significant deterioration” (PSD) provisions of the Clean Air Act. These procedures are similar to 40 CFR § 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 differs from that for other permit programs. EPA will explore the possibility of more comprehensive consolidation in the future. - B. How Does This Part Work? Under these procedures, a facility must apply for a permit under the requirements in Part 122 (RCRA, UIC, NPDES) or 40 CFR § 52.21 (PSD). The Director reviews the application and notifies the applicant when the application is complete ( 124.3). The Director then decides whether to deny the application or prepare a draft permit. If the former, the Director issues a notice of intent to deny; if the latter, he or she prepares a draft permit under § 124.6. Both decisions are accompanied by a “statement of basis” ( 124.7) or a “fact sheet” ( 124.8) that becomes part of the “administrative record” assembled for all EPA-issued permits ( 124.9). Because of practical limits on PA’s ability to explain in pmprehensive detail 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 ( 124.5) also require the Director to deny the request or prepare a draft peimit. 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 § 124.5(b). All draft permits prepared under H-124.5 and 124.6 are subject to public notice ( 124.10), public comment ( 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. After the comment period (including any public hearing) has closed, EPA issues a final decision on a permit ( 124.15). The final permit decision is accompanied by a response to all significant comments ( 124.17) which, together with additional supporting material, completes the final administrative record ( 124.18). Whenever commenters on a draft permit ask that’ changes be made, the final permit will not become effective until 30 days after notice is served 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 § 124.19 or request an evidentiary hearing for an NPDES permit under § 124.74. If 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 PSD 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 general, 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 Evidentiary 1-fearing. Evidentiary hearings are provided for in Subpart E. These hearings are available whenever NPDES permits are contested, if a written request is filed within 30 days after a decision on the final permit. Evidentiary hearings also are available whenever RCRA permits are terminated. Under certain circumstances (outlined in § 124.74(b)(2)), persons requesting an evidentiary hearing on an NPDES permit also may request that the evidentiary hearing include closely related conditions of a RCRA or UIC permit. PSD permits can never be made subject to a Subpart E hearing. (3) The Non-Adversary Panel Hearing. Subpart F contains procedures for conducting a non-adversary panel hearing. These new procedures primarily apply to specific kinds ci NPDES permits. Panel hearings may be held for first decisons on any CWA variance and for the issuance of any other NPDES permit which constitutes “initial licensing” under the Administrative Procedure Act. The Regional Administrator also may use these procedures when making RCRA or UIC permit decisions, or when preparing a draft NPDES general permit under § 122.59. Finally, the parties to an evidentiary hearing under Subpart 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 with that first permit, all ------- 33406 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / 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 days. (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 if 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 hcaring” 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 Pert 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 FR 32854. Many comments addressed in 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. Several 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 decisiomnaking on another. These commenters also argued for the efficiency of a facility getting its permits in 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. First, RCRA. UIC, PSI), 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 begin. 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 cases, will accelerate the granting of tha) last and most important permit. Second, and more important, the very process of issuing permits to a major source in sequence, rather than at the same time, leads to problems of its own. The issuance of an earlier permit may have been based on assumptions 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 evideCce at an earlier proceeding and call into question an earlier decision. Whenever such situations arise, the Agency (and the applicant) are faced with either frying to patch up the earlier permit, which is slow and cumbersome, or moving toward final action and judicial review with questions 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 reasons EPA has rejected the suggestion not to proceed further with consolidation at this time.* One commenter argued that these regulations should be delayed because of possible inconsistency with the Energy Mobilization Board proposals In fact, these regulations are entirely consistent with that legislation. Both the House and Senate versions of the bill place their major emphasis on coordinating, and where possible. consolidating decisionmaking for a facility. Tins Is also the aim of these regulations. EPA also has rejected the suggestion that consolidation should be the choice of the permit applicant only. The regulations provide that the permit applicant may request consolidation, - and in most cases considerable weight 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. Onecommenter 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 untested effort. It is quite likely that in a few years, these consolidated regulations might be comprehensively rewritten to account for what we will have learned, just as the NPDES regulations had to be 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 consolidated regulations are simply an effort to address in advance some of those questions explicitly rather than to improvise solutions later on a case-by- case basis. (3) Consolidation will make NEPA more broadly applicable. When these regulations were proposed, the preamble stated EPA’s - position that the National Environmental Policy Act (NEPA) does not require preparation of an environmental impact statement (EIS) when permits are issued under the RCRA. UIC, or PSD programs, or when non-new source NPDES permits are issued. 44 FR 34247. (June 14, 1979) No comments opposing this position were received, and a number of comments supported it, either directly or by necessary implication. Accordingly, the same position has been adopted in the final regulations. See § 124.9. Several comnienters were concerned that consolidating’permits would make ------- Federal Register •/ VoL 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33407 NEPA more broadly applicable. One commenter argued that even though PSD permits are exempt from NEPKby statute, if a PEG permit were consolidated with a new source NPDES permit for the same plant, PSD issues might have to be discussed in the ElS on the NPDES permit. The result would make NEPA applicable to the P50 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 ELS, a strong argument can be made that the lind 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 P50 permit. Save the Valley. •Inc. v. EPA. Civil No.79-3056(6th Cir. 1979). In such a case, issuingpermits 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 E IS is inadequate for not considering it. 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. Consolidating permit proceedings offers a procedural vehicle for avoiding these results and ensures that work en the E IS does not have to be re-examined ip the context of an individual permit decision. - § 124.2 Definitions. A few commenters stated that the regulations did not clarify whether permit modification, revocation and reissuance, and termination would be processed through 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 precisply the definitions that apply to the P90 program, and to elp make clear that, for PSD, the eneral provisions of Part 122 do not apply. § 124.3 Application for a permit (1) A number of commenters 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, An 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 commenters 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 FR 32692 (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 decisionniaking 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 tb set schedules tight enough to pose some risk of not meeting them, and it expects some schedules will not be met. This provision does not apply to PSO 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 UIC activities authorized by rule under § 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 thu explicit. (4) 40 CFR § 52.21(r)(3) provides that certain sources requiring a PSD-perntit 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 § 1243(b). § 124.4- .ConsoJjdotion of permit processing. (1) EPA has redrafted proposed § 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 ith applications for new NPDES permits or with reapplications for expiring NPDES permits. These elaborate provisions were included in the proposal because RCRA and IRC 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 renewals 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 will partially depend on State cooperatin the comment has not been accepted. The regulations have been 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 § 1246. Proposed § 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 commenters objected to the potential consolidation of PSD permits with other permits. They argued that consolidation of P50 permits would ------- 33408 Fi cc.ral Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations cause unreasonably delay, and might even breach the one-year statutory deadline imposed by CAA section 185(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 PSD 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 reissuance, or termination of permits. This section combines proposed § § 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 fi 122.15 or 122.16. This section has been amended to allow the Director to request the submission of an updated application whenever a permit is being modified and to require the submission of a new application whenever a permit is being. revoked and reissued. A draft permit must be prepared for any modification or revocation and reissuance unless the permit modification qualifies as a minor modification 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 § 124.8. They are accompanied by a statement of basis ( 124.7) or a fact sheet ( 124.8), based on the administrative record (* 124.9), subject to public notice ( 124.10), and public comment ( 124.11) and public hearings (* 124.12). Terminations of RCRA and NPDES permits are eligible for evidentiary hearings under § 124.74. (1) EPA has kept this section separate from 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 commenter 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 § 124.8.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 under § 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 reexamination should not be encouraged in such a manner. If encouraged, they could keep many permits in a state of perpetual reexamination thus impeding the control program being implemented. (2) Other commenters urged that the Director should be required to consult with the permittee 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 be 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 - beèides the permittee be allowed to request permit modification, revocation and reissuance, or termination. EPA agrees with this comment and has rewritten § 124.5 to reflect this. (4) This section does not contain special procedures for modifying PSD permits. EPA will decide whether such procedures are necessary when it promulgates rules based on its September 5, 1979 Notice of Proposed Rulemaking and may amend this section at that time. This section, however, does contain procedures based on 40 CFR § 52.21(w) for terminating PSD 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. § 124.6 Draft permits. (1) A number of 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 commenters feel that preparing a draft permit creates the impression that the agency already has prejudged the case. EPA disagrees with this view. A draft permit functions only as a tentative decision on the issuance, modification, revocation and reissuance, or termination of a permit. It is a mere proposal, subject to change based upon comments received during the public comment (including the public hearing) 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. (2) 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. § 124.8 Fact sheet. (1) EPA has rejected comments urging that the discussion requirements in both these sections be expanded. As explained in the preamble to EPA’s Final NPDES Regulations (see 44 FR 32881 Uune 7, 1979)), the statement of ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33409 basis is supposed to be a brief summary that meets minimum requirements. If the ‘Director needs to provide more detail, he or she always may prepare a fact - sheet, which is more comprehensive than a statement of basis. (2) EPA also has rejected comments urging that the statement of basis requirement be eliminated for UIC permits for Class H 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) Cominenters suggested that EPA define “major permits” more precisely. Though this would be desirable, the comment cannot be accepted now. Such a definition is a function both of EPA’s knowledge of the impact of the pollution involved 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 described in § 122.3. § 124.9 Administrative record for draft permits when EPA is the permitting authority. - (1) Several commenters urged EPA to nclude supporting as well as ionsupporting documents in ‘the administrative record. Because the documents for draft permits under this section will generally comprise most of the material in the final administrative 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 statements of the issues ‘faced by EPA and should cite documents on both sides of controversial issues. No change has been made because the existing text is consistent with this interpretation. (2) Another commenter suggested that all material 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 commenters stated that this section sounded as if public hearings could not be scheduled when a ermjt is issued and would only be held response to requests received during ie public comment period. The commenters 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 commenter questioned the provision for giving notice of 404 permit action to adjacent property owners, arguing that the identity of such owners in 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 adequate “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 participation. Other interested persons may request copies of these documents. § 124.12 Public hearings. Several commenters argued that the ground for granting a hearing— “significant degree of public interest”— was vague, and that it did not take account of the permit applicant’s interest (or someone else’s 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 measuremenL EPA, however, has added a second ground for holding a public hearing which allows the Director 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, 5 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. I. Adjudicatory hearings or public hearings. In the preamble to the proposed regulations, EPA stated its opinion that a formal evidentiary hearing under § 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 34264—65. (June 14, 1979) This conclusion proved pncontroversial 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. 9 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 by EPA were more elaborate than justified. Because of its importance this issue will be discussed in detail. A. Arguments in Favor of a Formal Hearing (1) Due-Process Arguments. Some commenters urged that due process required a formal APA hearing before the initial decision on a RCRA permit. It is well settled by now, however, that the requirements ‘of due process are flexible, and that the procedures used can be adapted to the nature of the problem being addressed. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 517, 524 (1978), Mathews v. Eldridge, 424 U.S. 319 (1976), Goss v. Lopez, 419 U.S. ‘Except for the PSD program, where an opportunity for a hearing is required by statute. See CAA section 165(a)(2) EPA believes that this requirement should be read ‘m the light of th provisions of CAA section 307(d)(8) coilcerning procedural errors. ‘One commentar argued that because the SDWA section 1424(b)(2) required a formal hearing for certain interim permits issued by the Administrator, - Congress must also have intended to impose such requirements where the statute Is silent, as it is in section 1421 However, as the presmbleio the proposal explained, the normal approach in statutory construction is the opposite of that advocated by the comment. (See 44 FR 34265 (June 14, 1979).) Differing language generally indicates differing meanings, rather than the same meaning. ------- 33410 Federal Register I Vol. 45, No. 8 I Monday, May 19, 1980 / 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 Law Treatise, Chs. 10. 12 (2d ed 1979).) EPA believes it has fully met whatever due process 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 RCRA permits certainly would lead to the conclusion that such a hearing is required, on both the Federal and State levels, for PSD and UIC permits. 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 Intent. Most commenters did not emphasize the due process argument. Instead, they looked to 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 commenter denied that the permitting section of RCRA, section 3005, contains no reference to a “hearing” of any sort in connection with the initial grant or denial of a permit. Instead, the cominenters fixed on section 3008 (b), 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 Administrative Procedure Act, namely: “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in’ form, of an agency in a matter other than rulemaldng but including licensing.” 5 U.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 when it chose to, rather than leaving such procedures 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 that “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 is enforcement,’° 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 obviously refers to a compliance order. The reference to “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, section 3005 is entitled “Permits for Treatment, Storage, or Disposal of Hazardous Waste” - throughout the body of the text as a shorthand form of reference. Third, to adopt the APA definition of “order” here would lead to absurd and impractical results. It would require a formal hearing for all actions under 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 have been dropped. First, this argument overlooks the fact that the final version tracked the House bill, not the Senate bill. Second, the House debates are equally free from any mention of a change of approach, Thus, acounter-argument can be made that if the Senate’s hearing requirement had been 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 reference 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 “hyifrid” 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 evidentiary hearing and a non- - adversary panel hearing. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19,1980 / Rules and Regulations 33411 EPA recognizes that some RCRA and UIC permits may raise issues better suited to a more formalized mechanism for discussion than that provided by the traditional public hearing and has amended 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 SDWA do not require any hearing before permits are issued. Accordingly, in providing the Director with a range of choices under these regulations. EPA takes the position that no particular form of hearing is required for these permits. The Director is given discretion to choose the procedures that appear likely to result in the best decision under the circunis lances of the case. C. Other Considerations EPA has previously said that a formal APA hearing is required under section 3008 for termination of a RCRA permit. See 43 FR 34730 (August 4, 1978). 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 FR 34730 (Aug. 4, 1978). “EPA has now 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 different EPA permit programs than the approach originally proposed. In addition, the NPDES procedures are somewhat better adapted than the others to handle complicated factual records 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 reissuance (which amounts in effect to a modification) should be handled by the procedures “These rules were promulgated in final form on Apnl 9.1980.45 FR 24360. used for permit issuance, rather than those used for permit termination. Although the statute is not 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 3008 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 subject 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, S-- namely the authorization to operate. A contrary conclusion would lead to the result that even permit modifications which make the permit more lenient must be treated ds “revocations” under the statute, since the conditions 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 commenters 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 FR 32884—85 (June 7, 1979). It would be illogical to accept this comment with respect to RCR.A, UIC, or PSD permits because the public comment on draft RCRA, mc, 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 should not be raised on appeal. § 124.15 Issuance and effective date of permit. (1) Several cominenters pointed out that the provision which makes a permit effectiv 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 § 124.80. A new permit may become effective immediately where no adverse comments are received. Any delay is a necessary part of a party’s right to request an evidentary hearing. (2) This section has been changed to eliminate the possibility, noted in some comments, that an NPDES permit might become “effective” after 30 days, and then become “ineffective” upon the granting of a request for evidentary hearing. / § 124.16 Stays of contested permit conditions. (1) One commenter urged that this provision be amended to allow stays while requests for further proceedings jvere pending. The way the “effective date” of the permit is handled under section 124.15 accomplishes this result automatically. “One commenter argued that the provision in proposed § 124.11(a) for a minimum 30 day notice of a public hearing conflicted with the requirement in 40 CFR § 25.5 for a minimum 45 day notice period. However. § 122.1(e) provIdes that these regulations supersede Part 25 as It applies to actions covered by Parts 122 through 124. ------- 33412 Federal Register/Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations (2) Several commenters argued against the provision in proposed § 124.18(b) for stays 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 commenters urged that permits (particularly permits for new facilities) should not be stayed pending Agency appeal proceedings. This comment has not been accepted for the reasons stated in the final NPDES regulations. See 44 FR 32883—32884 Uune 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 is 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 (* 124.60) by which the Presiding Officer at the hearing can ‘authorize operations to begin before the ‘date of final agency action If certain 1 conditions are met. These conditions are based on those normally required for issuance of a preliminary injunction. § 124.17 Response to comments. One commenter attacked the. statement in the “comment” in proposed § 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 commenter argu d that this would vioTate the standards set out in Portland Cement Ass ‘n v. Ruckelshaus, 486 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, theie 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. Ruckeishaus, 478 F. 2d 615, 632 n. 51 (DC. 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 embarldng on the same kind of endless cycle of reproposala which the courts have already rejected. § 124.18 Administrative record for fin al permit where EPA is the permitting authority. One commenter urged that the 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 complete 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. § 124.19 Appeal of RCRA, UIC, and PSD permits. (1) A number of commenters objected to the substantial showing required to justify an appeal to the Administrator. We agree with those commenters 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 exercised; (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 45- day time limit on sua 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 itself, no change in the regulations is necessary. (4) One commenter objected to PSD appeals on the grounds of delay. EPA believes that an appeal mechanism is necessary to ensure consistency in a national program and to provide central policy guidance. The best evidence is 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 permittee while the final permit contained unfavorable changes. This comment has been accepted and expanded to allow an appeal 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 Computation of time. This section has been amended to include methods for computing time that conform with the Federal Rules of Civil Procedure. Subpart B—Special Procedures Applicable to RCRA Permits tReservedi § 124.31 Public notice of receipt of application and availability of summary. EPA has deleted proposed § 124.31 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 34268. EPA has decided that this function is served equally well for all the permit programs at. the general public notice stage under § 124.10 and that dual notification for R RA applications is. therefore, unnecessary. The methods of public notice contained in § 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 commenters, beside generally opposing the notion of consolidation, particularly criticized the inclusion of PSD in the consolidation effort. These commenters argued that as PSD is a ------- Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations 33413 preconstruction review program, the time for considering P80 issues will not be the same as the lime for considering issues involving other permits. They also argued that EPA has made the procedures for issuing PSO permits more complicated and time-consuming, leading to confusion in the allocation of increments. EPA has not accepted these comments. First, P50 does not differ from the other programs included in this Part in being a preconstruction requirement. As explained earlier, EPA’s 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 P80, therefore, should not strain permit processing schedules. Second, the procedures for issuing a P80 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 formal opportunity to appeal a P50 permit to the Administrator. Such appeals are already made (usually at industry’s Inititative) and considered, even though the rules do not provide for them. Some new pr cedures have been added to enable a single proceeding to handile more than one permit. As explained in detail above, although 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 P80 in the consolidated permit regulations will make any great difference in the EPA- - administered PSD 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 P50 Program Although the PSO 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 speàial procedures for permitting “small sources.” The Alabama Power decision in effect has eliminated that category of sources from mandetory PSD 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 § 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 § 52.21(v) (or any successor provision) is distinct from transfer of the P50 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” Pan 124 does not apply to State-issued PSD 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 i65(d)(2) (C) and (D) of the Clean Air Act, and 40 CFR § 52.21(q) provide a complicated series of variances and exemptions which may be applied to the P50 permit for a source that will affect 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. 5. Section 124.74 has been amended so that issues concerning a PSO permit may never be consolidated with a formal evidentiary hearing under Subpart E though they may continue to be consolidated in non-adversary panel hearings under Subpart F. EPA accepted comments which argued that the potential for exceeding the one-year deadline under Subpart E proceedings was tQo great to risk. 6. As noted above, changes to better incorporate the PSO program have been made in fl 124.3, 124.5 and 124.6. 7. In addition to these changes, complementary changes will be made to 40 CFR § 52.21 to darify its relationship with Part 124. In particular, EPA expects to repeal § 52.21(r), which has been supplanted by this Part, and to insert appropriate cross-references to this Part in § 52.21. C. Other 1. A number of commenters argued that the provision in section 307(d) of the Clean Air Act allowing 60 days to seek judicial review of a P80 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. § 704, forbids making a permit effective before judicial review is available, judicial review of a P50 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 Activity under Title I of the Clean Air Act, that requires P50 applicability determination to be published in the Federal Register as rmal agency actions. Because of the consequencel of applicability determinations for a source (for example, the triggering of a one-year monitoring requirement under CAA section 165(e)(2)) and the infrequency of factual questions, EPA has decided that for reasons of fairness and efficiency these determinations should be treated as final agency action. Subpart D—Speciflc 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 regulations, issued June 7, 1979, 44 FR 32854, and cross-references to that preamble are included here. - § 124.53 Stole certification. Comments received here questioned both the requirement for States to supply a complete certification within 60 days, and the statement that conditions properly certificated would be automatically acce ited in almost all cases. However, no new arguments were raised, so the reasons given for ------- 33414 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations these provisions in the June 7 regulations remain applicable. 44 FR 32880. § 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 incleded in the fact sheet. See § 122.62(e) 122.63(i) and 125.3(g). § 124.59 Conditions requested by the Carps of Engineers 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. (2) One commenter also questioned the provision in § 124.59(c) for informal onsultation with other agencies before Fi6suing a draft permit. Consultation ‘before a draft permit is prepared does not violate any rules against “ex parte” 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 NPDES regulations. See 44 FR 32881 Uune 7, 1979). § 124.60 Issuance and effective date of NPDES permits. (I) Commen ,ters again objected to the provision that an NPDES permit to a new discharger or new source would not take 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 haveinterpreted this provision to 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. § 704 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 § 124.80(a) to-give the Presiding Officer at an evidentiary 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. if a party objects, the order cannot be issued unless the source can meet the requirements listed in § 124.60(a)(2). (2) One commenter asserted that although § 124 60(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 permjt 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 on 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. § 124.64 Appeals of variances. A number of commenters objected to the test set forth in this section and § 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 301(j)(2) of the CWA. § 124.65 Special procedures for thschai e into marine waters under section 301(h). In these final regulations EPA has decided to make section 301(h) decisions subject to the same procedural options as other types of variance decisions. This section and § 124.111 have been revised to eliminate the requirement that 301(h) variances be atitomatically processed through a panel hearing, independent of other pending permit actions. Giving the Regional Administrator 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. § 124.86 Special procedureè far decisions on thermal variances. • One commenter urged that other types of variances should be made subject to the “early decision” provisions of this section. The comment pointed out that in these cases a decision on variance 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 type of fragmented procedure, and therefore has not enlarged the “early decision” provision. Subpart E—Evidentiary Hearing for EPA-issued NPDES Permits and EPA- Terminated RCRA Permits § 124.71 Applicability. One commenter questioned the statement in EPA’s prior preambles that évidentiary hearings would not be held on general permits. 43 FR 37087; 44 FR 32884. It. stated that although application 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 judicial review, afford interested persons ample procedural protection. However, if the Regional Administrator decides to employ a more formal mechanism. ------- Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations 33415 ’ Subpart F panel hearings are available for this purpose. EPA has added a sentence stating that termination and suspension of RCRA permits are governed by this Subpart. § 124.74 Requests for evidentiary hearing. (1) Some commenters questioned the consequences of raising both legal and factual issues in a request for an evidentiary hearing. This section allows the submission of requests for evidentiary hearings even though both legal and factual issues may be raised. or only legal issues may be raised. In the latter case, because no factual issues were raised, the Regional Administrator would be required to deny the request. However, on review of the denial, the Administrator is authorized by § 124.91(a)(1) to review policy or legal condusions 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 evidentiary hearing, but believes this comment goes further than appears necessary. Section 124.76 provides that, generally speaking, the material and argument for an evidentiary 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 commenters contended that the provision requiring the requester to produce documents and witnesses was too broad. This provision is no broader than the Agency subpoena power for which it substitutes. See 44 FR 32884. § 124.75 Decision on request for a hearing. One commenter 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 evidentiaiy hearing request. § 124.76 Obligation to submit evidence and raise issues before a finn/permit is issued. A number of commenter8 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 FR 32884—32885. However, EPA does wish to emphasize the value of the good cause provision. This provision functions as a safety valve to prevent § 124.76 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” wifi 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 clarify 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 unrestrictive manner. Request should be rejected only if they are frivolous or clearly 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 Ex porte communications. (1) One commenter objected to the statement that appearance as a witness is not automatically the same as the performance of “investigative or prosecuting functions” so as to invoke the ex porte rule. This, however, is the conclusion of Professor Davis, with which EPA concurs and which it has adopted. I C Davis, Administrative Law Treatise, § 11.17 (1958). (2) Another commenter questioned why witnesses from EPA were not automatically subject to the “ex 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 U.S.C. § 554(d). H wever, the “ex parte 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(1976); S. Rep. No. 94— 354, 94th. Cong., 1st. Sess. at 36 (1975). § 124.83 Preheoring canference. (1) One commenter argued, without supporting 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” pI ocedures. The report accompanying Recommendation No. 21 asserts that such procedures would be legal. Tomlinson, “Report of the Committee on 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 abus Any request for discovery is explicitly-. made subject, by § 124.83(c)(5), to the approval of the Presiding Officer. Accordingly, no change in the proposeq regulation is necessary. (3) Another commenter asked whether furnishing the names of witnesses under § 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 determination. (a) One commenter urged that motions for summary determination should stay the hearing. This is 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 § 124.90 has also been rejected.) (2) EPA has accepted another conunenter’s suggestion that this provision be amended to include language patterned on Rule 56(f) of the Federal Rules of Civil Procedure. § 124.85 Hearing procedure. (1) Several commenters questioned’ EPA’s conclusion that the burden of persuasion for permit issuance always rests with the permit applicant. The only ------- 33416 Federal Register / Vol. 45, No. ‘98 I Monday. May 19, 1980 / 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 persuasion, but having the burden 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 forward could always be derived from the burden of persuasion. However, not only are both concepts well established; It Is 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 Law of Evidence, at 675 (1954). See also, Wigmore, Treatise on the Low of Evidence, § 2486. (2) One commenter objected to the provision in § 124.85(b)(14) for hearing opposing witnesses simultaneously or for asking them to confer outside the hearing. It claimed that this would convert an adversary hearing into a bargaining session or a scientific forum, PA disagrees with.the apparent - ,niise of this comment that hearing edures should be chosen to preserve rotect adversary conduct. Hearing !cedures 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 sides 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 informally; not to bargin 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)(16) prohibited cross-examination on questions of law and policy, or regarding matters (such as the validity of effluent limitations guidelines) that are not subject to challenge in a NPDES proceeding. Numerous comments were received on this provision, contending that it was unduly restrictive. One com.menter 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 cominenters 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 44 FR 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 administrative record can be viewed as direct testimony introduced in writing, and so a sponsoring witness may be needed to allow cross-examination of the writtea direct. Accordingly, there is no need for an additional “legitimate doubt” test. 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)(1o). (6) Commenters also argued that this section restrtcted cross-examination too much. Those comments have been rejected for the reasons stated in the June 7 preamble. See 44 FR 32886, (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. § 124.88 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 44 FR 32886—87. § 124.89 Decisions. The provision in the proposal for treating the decisions of Administrative Law Judges simply as recommendations to the Regional Administrator when RCRA or mc permit conditions are concerned has been deleted as causing unnecessary procedural complexity. Instead, the AU’s decision regarding these permit conditions will be subject to appeal, to the Administrator like any other decision after an evidentiary hearing. § 124.90 Interlocutory appeal. (1) One com.menter argued that the test for interlocutory appeal stated in § 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 commenter also challenged the provision in section 124.90(d) that interlocutory relief is extraordinary relief. This provision has been retained to ensure that interlocutory appeals do not become an administrative burden. (3) The provision in this section and § 124.91 for mandatory consultation of the General Counsel on matters of law has been deleted. Of course, the Administrator or the Judicial Officer will still be free to consult any member of the General Counsel’s Office on such 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. * 124.91 Appeal to the Administrator. One commenter 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 best addressed case-by-case. Subpart F—I Procedures ‘y Panel 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 44 FR 32887—32891. A major feature of these procedures is the merging of the notice-and-comment procedures under Subpart A and the hearing under Subpart E into one proceeding. Accordingly, EPA believes that the full benefit of these procedures will be felt only if they are used beginning with the draft permit. However, cases may arise in which it becomes apparent during or after Subpart A proceedings, that use of this ------- |