azardous
Waste and
Consolidated
Permit
Regulations
1980
bk 2 3
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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
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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.
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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
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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
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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,”
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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
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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-
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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.
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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
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
on the environment resulting from
noncompliance with this permit.
(e) Proper operation and maintenance.
The permittee shall at all times properly
operate and maintain all facilities and
systems of treatment and control (and
related appurtenances) which 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
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33427
applicable requirement is a statutory or
regulatory requirement (including any
interim final regulation) which takes
effect prior to the issuance of the permit
(except as provided in § 124.86(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
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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
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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;
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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
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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
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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
,
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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.
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(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).
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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
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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
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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
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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
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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
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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
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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
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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:
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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
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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
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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
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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.)
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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
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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:
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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
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(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
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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
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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.
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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
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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)
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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
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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
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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
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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
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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
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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);
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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
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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
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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
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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
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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
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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.
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§ 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
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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;
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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
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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:
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(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;
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(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
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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.
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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
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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:
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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.
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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
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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
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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.
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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
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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
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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
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(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
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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.
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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) -
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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.
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(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 -
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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
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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
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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
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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
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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
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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:
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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).
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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..
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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,
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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.
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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
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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
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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.
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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
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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.
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§ 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:
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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
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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
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(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
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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.
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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
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Figure 1-Conventional
EPA Permitting Procedures
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BILLING CODE 6560-01-C
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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
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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
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Monday
May 19, 1980
Part XI
Environmental
Protection Agency
Consolidated Permit Application Forms
for EPA Programs
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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,
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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.
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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.
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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,
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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
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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
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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
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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,.
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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
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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.
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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
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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
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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
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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
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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 -
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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
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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
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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:
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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
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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
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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.
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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
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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
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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),
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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.
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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,
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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
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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
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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
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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•
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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
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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.
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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’
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INJECTION WELL
LANDFILL
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LAND APPLICATION
OCEAN DISPOSAL
SURFACE IMPOUNDMENT
LiP.IIT OS USAELIRE
UNIT OF
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eons
GALLONS PER DAY OR
LITERS PER DAY
GALLONS PER DAY OR
LITERS PER DAY
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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
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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
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B.ESTIMAFEDANNUAL
QUANTITY OF WASTE
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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))
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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
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33588
Federal Register / Vol. 45. No. 98 I Monday. May 19. 1980 / Rules and Regulations
Continued from page 4
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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)
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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• 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.
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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.)
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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.
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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.
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.]
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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
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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
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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
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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.
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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’)
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-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)
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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).
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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
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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
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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
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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
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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
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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
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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
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CITY OR TOWN
IHHIHHHIHIII1HII
V. LOCATION OF INSTALLATION
STREET OR ROUTE NUM8ER
—
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ZIP CO
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CITY OR TOWN -
ST
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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
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STREET ORPO BOA
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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 _________
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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
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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)
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OF WASTE
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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
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A DESCRIPTION OF WASTE
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CLASS
EPA Fo.w. 870043*15.00)
BIWNO CODE 6550.01-C
PAGE _OF_
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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
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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.,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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.
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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
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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
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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.
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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
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-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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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.)
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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.
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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.
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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
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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.
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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
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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,
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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’
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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
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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.
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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
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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
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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 —
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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
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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
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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
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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.
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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
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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
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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:
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(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
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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
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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
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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
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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
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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
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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. -
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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 - -
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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
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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.
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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
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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),
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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.
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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)
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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]
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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 -
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.
.“
3
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2
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4
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7
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XXII. COMMENTS (enter information by line number — ice inalra.ctIon.J
iI . I
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,
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 —
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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
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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.
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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
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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
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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?
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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
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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
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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
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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.],
* * * * *
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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-
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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
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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 -
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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
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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
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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
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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.
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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,
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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
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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.
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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.
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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
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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:
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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
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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
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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
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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
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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
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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
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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
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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
- - -
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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
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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
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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.
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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).
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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)
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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,
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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
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33305
Supreme Court decisions. However, we
have retained the general wording
requiring “presentation of credentials
and such other document as may be
required by law” because of the
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 -
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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
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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
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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
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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
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§ 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
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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,
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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,
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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
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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).
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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.
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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.”
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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
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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).
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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
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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
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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.
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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
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33323
will be in conformity with the best
application of the statute would force
the permitting agency to the
unjustifiable choice of either requiring a
lesser degree of health and
environmental protection than would
otherwise have applied, or forcing the
abandonment or devaluation of the
premature investment.
The only significant argument made in
favor of allowing construction to begin
before receipt of a permit 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:
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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
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33325
attempt to place further restriction on or
delay interim status. However, a method
is necessary to insure that the Director
and applicant know the required
information has been submitted.
EPA has revised the proposal at
§ 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
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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
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33327
EPA had available to it immediate relief
through court action.
EPA continues to believe this
provision is fully justified under the
statute. Though section 7003 does
authorize a court to grant emergency•
relief, that requirement is independent
of permitting authority under section
3005 and is probably better adapted to
forbidding certain acts than to
permitting disposal. The right of the
government to take summary
administrative action in response to an
emergency is well recognized in other
regulatory fields and in the law
generally. As the preamble to Part 124
explains, 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
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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
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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
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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
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33331
State Director as part of the program
description required by § 123.4(g). If a
State Director exempts an aquifer or
portion of an aquifer, it is not treated as
a USDW subject to the protections of
these regulations.
§ § 122.36 and 122.45 Requirements for
Class 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
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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?
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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
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Director. The final rules do not require
that the location of every well that might
be drilled under an area permit be
identified in advance of permit 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
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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
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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’
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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”
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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
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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
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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
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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
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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
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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)
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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)
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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)
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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
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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
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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
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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”)
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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
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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
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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
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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)
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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
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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.
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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
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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
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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,
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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,
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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
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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’
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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
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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
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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
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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
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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
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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
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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
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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
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33409
basis is supposed to be a brief summary
that meets minimum requirements. If the
‘Director needs to provide more detail,
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.
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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.
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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.
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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
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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
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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.
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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
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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
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