[Federal Register Volume 59, Number 215 (Tuesday, November 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27300]


[[Page Unknown]]

[Federal Register: November 8, 1994]


_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 264, et al.




Standards Applicable to Owners and Operators of Closed and Closing 
Hazardous Waste Management Facilities; Post-Closure Permit Requirement; 
Closure Process; State Corrective Action Enforcement Authority; 
Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 264, 265, 270, and 271

[FRL-5100-2]
RIN 2050-AD55

 
Standards Applicable to Owners and Operators of Closed and 
Closing Hazardous Waste Management Facilities; Post-Closure Permit 
Requirement; Closure Process; State Corrective Action Enforcement 
Authority

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for public comment.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
amend the regulations under the Resource Conservation and Recovery Act 
(RCRA) in two areas. First, the Agency is proposing to remove the 
current requirement for a post-closure permit, and allow the Agency to 
use alternative authorities to address facilities with units requiring 
post-closure care. In addition, the Agency is proposing to amend the 
regulations governing State authorization to require authorized States 
to adopt, as part of an adequate enforcement program, authority to 
address corrective action at interim status facilities. This action 
also solicits comment on several issues related to closure and 
corrective action at hazardous waste management facilities.

DATES: Comments must be received on or before January 9, 1995.

ADDRESSES: Written comments on today's proposal should be addressed to 
the docket clerk at the following address: Environmental Protection 
Agency, RCRA Docket (OS-305), 401 M St., SW., Washington, DC 20460. 
Commentors should send one original and two copies and place the docket 
number (F-94-PCPP-FFFFF) on the comments. The docket is open from 9:00 
a.m. to 4:00 p.m., Monday through Friday, except for Federal holidays. 
Docket materials may be reviewed by appointment by calling 202-260-
9327. A maximum of 100 pages of material may be copied at no cost from 
any one regulatory docket. Additional copies are $0.15 per page.

FOR FURTHER INFORMATION CONTACT: The RCRA/Superfund Hotline (1-800-424-
9346) toll free, or (202-260-9327) in Washington, D.C. (for technical 
information); Barbara Foster (703-308-7057), Office of Solid Waste, 
Mail Code 5303W, U.S. Environmental Protection Agency, Washington D.C. 
20460 (issues related to closure or post-closure care), or Ellen 
Kandell (703-603-8996), Office of Enforcement and Compliance Assurance, 
Mail Code 5502G, U.S. Environmental Protection Agency, Washington, DC 
20460 (enforcement-related issues).

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority
II. Proposed Provisions Related to Closure and Post-Closure 
Requirements
    A. Background Information
    1. Overview of RCRA Permit Requirements
    2. The Closure Process
    3. Post-Closure Care
    4. Developments Since 1982
    5. Response to Post-1982 Developments
    6. State Involvement in Development of This Proposed Rule
    B. Summary and Discussion of Proposed Provisions
    C. Section-by-Section Analysis
    1. Section 270.1(c)--Use of Alternative Legal Authorities to 
Address Post-Closure Care
    2. Section 265.121--Interim Status Post-Closure Care 
Requirements for Facilities Subject to Sec. 270.1(c)(7)
    3. Post-Closure Plans and Permits
    4. Alternate Authorities Issued Prior to the Effective Date of 
the Rule
III. Request For Public Comment on Closure and Post-Closure Related 
Issues
    A. Regulatory Timeframes
    1. Closure Plan Review and Approval Process
    2. Timeframes for Completion of Closure Activities
    B. Regulatory Distinction Between Regulated Units Undergoing 
Corrective Action and Non-Regulated Solid Waste Management Units
IV. Proposed Provisions Related to State Enforcement Authority to 
Compel Corrective Action at Interim Status Facilities
    A. Background Information
    B. Summary of Proposed Provisions
    C. Analysis and Discussion
    D. EPA's Interpretation of the Scope of Section 3008(h)
    1. Definition of Facility
    2. Definition of Release
    3. Off-site Releases
    4. Compelling Compliance
    5. Application of Order Authority
V. Request for Comment on Authorizing States to Use State Orders to 
Impose Corrective Action at Permitted Facilities
VI. Public Participation
    A. Public Participation Requirements When Issuing a Section 
3008(h) Order in Lieu of a Post-Closure Permit
    B. Public Participation Requirements for State Corrective Action 
Orders at Interim Status Facilities
    C. Public Participation Requirements for Orders Used to Address 
Corrective Action Permitted Facilities in Lieu of Sections 3004(u) 
and (v)
VII. Effect of Today's Rule on State Authorization
    A. Applicability of Rules in Authorized States
    B. Effect of Today's Proposed Revisions to Closure and Post-
Closure Requirements on State Authorizations
    C. Effect of Today's Proposed Revisions to Requirements for 
Enforcement Authority on State Authorizations
    1. Requirement to Adopt Provisions of Today's Proposal
    2. Effect of Proposed Rule on Federal Enforcement Authorities in 
States that Obtain Authorization for Today's Proposed Provisions
VIII. Regulatory Impact Analysis
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act

I. Authority

    These regulations are proposed under the authority of sections 
2002(a), 3004, 3005, and 3006 of the Resource Conservation and Recovery 
Act, as amended, 42 U.S.C. 6912(a), 6924, 6925, and 6926.

II. Proposed Provisions Related to Closure and Post-Closure 
Requirements

A. Background Information

1. Overview of RCRA Permit Requirements
    Section 3004 of the Resource Conservation Recovery Act (RCRA) 
requires the Administrator of EPA to develop regulations applicable to 
owners and operators of hazardous waste treatment, storage, or disposal 
facilities, as necessary to protect human health and the environment. 
Section 3005 requires the EPA Administrator to promulgate regulations 
requiring each person owning or operating a treatment, storage, or 
disposal facility to have a permit, and to establish requirements for 
permit applications. Recognizing that the Agency would require a period 
of time to issue permits to all facilities, Congress provided, under 
section 3005(e) of RCRA, that qualifying owners and operators could 
obtain ``interim status'' and be treated as having been issued permits 
until EPA takes final administrative action on their permit 
applications. The privilege of continuing hazardous waste management 
operations during interim status carries with it the responsibility of 
complying with appropriate portions of the section 3004 standards.
    EPA has issued numerous regulations to implement RCRA requirements 
for hazardous waste management facilities. These regulations include 
the standards of 40 CFR part 264 (which apply to facilities that have 
been issued RCRA permits), part 265 (which apply to interim status 
facilities), and part 270 (which provide standards for permit 
issuance). The general requirements for closure are found at 40 CFR 
parts 264 and 265, subpart G.
2. The Closure Process
    The closure regulations at 40 CFR parts 264 and 265, subpart G 
require owners and operators of hazardous waste management units to 
close these units in a manner that is protective of human health and 
the environment and that minimizes the post-closure release of 
hazardous constituents to the environment. These regulations also 
establish procedures for closure: they require owners and operators to 
submit closure plans to the Agency for their hazardous waste management 
units, and they require Agency approval of those closure plans.
    In addition, parts 264 and 265 establish specific requirements for 
closure of different types of units. Under parts 264 and 265, subpart 
L, owners and operators of landfills are required to cover the unit 
with an impermeable cap designed to prevent infiltration of liquid into 
the unit; then owners or operators must conduct post-closure care 
(including maintenance of the cap and groundwater monitoring). Owners 
and operators of surface impoundments and waste piles have the option 
either to remove or decontaminate all hazardous waste and constituents 
from the unit, or to leave waste in place, cover the unit with an 
impermeable cap, and conduct post-closure care. Closure of land 
treatment facilities must be conducted in accordance with closure and 
post-closure care procedures of Secs. 264.280 and 265.280. As part of 
the closure plan approval process, the Agency has the authority to 
require owners and operators to remove some or all of the waste from 
any type of unit at the time of closure, if doing so is necessary for 
the closure to meet the performance standard of Sec. 264.111 or 
Sec. 265.111.
    Owners and operators of incinerators and storage and treatment 
units (e.g., tanks and containers) are required to remove or 
decontaminate all soils, structures, and equipment at closure. Owners 
and operators of tanks who are unable to do so must close the unit as a 
landfill and conduct post-closure care.
3. Post-Closure Care
    As discussed above, owners and operators of hazardous waste 
management units that close with waste in place must conduct post-
closure care at those units, including groundwater monitoring and 
maintenance of the cap. EPA's current regulations anticipate that these 
requirements, for the most part, will be imposed through RCRA permits. 
Under 40 CFR 270.1, permits are required for the post-closure period 
for any landfill, waste pile, surface impoundment, or land treatment 
unit that received waste after July 26, 1982, or ceased the receipt of 
wastes prior to July 26, 1982, but did not certify closure until after 
January 26, 1983. In addition, Sec. 270.1(c)(5) requires owners and 
operators of surface impoundments, land treatment units, and waste 
piles that closed by removal or decontamination under former part 265 
standards to obtain a post-closure permit unless they demonstrate that 
the closure met the current standards for closure by removal or 
decontamination.
    In the case of operating land disposal facilities, the RCRA permit, 
when first issued, incorporates the closure plan and applicable post-
closure provisions. These post-closure conditions become effective 
after the facility ceases to manage hazardous waste and the closure 
plan has been implemented. The permit, when issued, also requires 
compliance with part 264 subpart F groundwater monitoring standards, 
and (if the permit was issued after November, 1984) it would include 
terms implementing the facility-wide corrective action requirements of 
RCRA section 3004(u). Like the post-closure care provisions, these 
requirements remain in effect after closure of the hazardous waste 
management unit.
    For interim status facilities that close without having obtained an 
operating permit, the post-closure permit (typically issued after 
completion of closure) performs a critical regulatory function. First, 
in securing a permit, the facility must meet the permit application 
requirements of part 270, which require extensive information on the 
hydrogeologic characteristics of the site and extent of any groundwater 
contamination. Second, once the post-closure permit has been issued, 
the facility then becomes subject to the standards of part 264 rather 
than part 265, most significantly to the site-specific groundwater 
monitoring requirements of part 264, subpart F. Third, the post-closure 
permit imposes facility-wide corrective action to satisfy the 
requirements of section 3004(u). Finally, the public involvement 
procedures of the permitting process assure that the public is informed 
of and has an opportunity to comment on permit conditions.
4. Developments Since 1982
    Though EPA has amended the 1982 subpart G regulations on several 
occasions, the basic closure process and the requirement for a post-
closure permit remain in place. Several significant developments since 
1982, however, suggest that the closure process and standards should be 
revisited.
    a. The agency has gained experience in the area of closure and 
post-closure. In 1982, when the regulatory structure for closure was 
established, the Agency had no experience with closure of RCRA 
regulated units. Since 1982, the Agency and authorized States have 
approved thousands of closure plans, and overseen the closure 
activities taking place under those plans. It has become evident that 
closure of these units is frequently more complex than EPA envisioned 
in 1982. In many cases, particularly with unlined land-based units, the 
unit has released hazardous waste and constituents into the surrounding 
soils and groundwater. In these cases, the closure activity is not 
simply a matter of capping a unit, or removing waste from the unit, but 
instead may require a significant undertaking to clean up contaminated 
soil and groundwater. The procedures established in the closure 
regulations were not designed to address these types of activities.
    For example, it has become evident that the two options for closure 
provided in the current regulations (i.e., remove or decontaminate all 
waste from the unit, or cover the entire unit with an impermeable cap) 
do not provide the best remedy in all situations. In fact, the 
requirement that an impermeable cap be placed on the unit if all waste 
has not been removed may, if read narrowly, discourage implementation 
of more protective remedies. This issue is discussed later in this 
preamble.
    In addition to gaining experience in the closure process, EPA and 
the States have issued more than 150 post-closure permits since 1982. 
In the course of reviewing post-closure permit applications, however, 
the EPA Regions and States have encountered many facilities where post-
closure permit issuance proved difficult or, in some cases, impossible. 
Generally, the Regions and States have found two major difficulties in 
post-closure permit issuance. The first is that, in many cases, the 
facility chose to close, or was forced to close, because it could not 
comply with part 265 standards--particularly, groundwater monitoring 
and financial assurance. If a facility cannot meet these requirements, 
EPA cannot issue a permit to it because section 3005(c) of RCRA 
requires facilities to be in compliance with applicable requirements at 
the time of permit issuance. The second difficulty is that the owner or 
operator often has little incentive to seek a post-closure permit. 
Without a strong incentive on the part of the facility owner or 
operator to provide a complete application, the permitting process can 
be significantly protracted. These difficulties are discussed further 
in section IV.A. of this preamble.
    b. The agency has acquired new corrective action authority. In 
1984, the Hazardous and Solid Waste Amendments (HSWA) to RCRA provided 
EPA with broad new authorities, under sections 3004(u), 3004(v), and 
3008(h), to compel corrective action (i.e., cleanup) of facilities 
subject to regulation under RCRA Subtitle C. Corrective action has 
since become a major component of the RCRA Subtitle C program. 
Approximately 1100 hazardous waste management facilities are now in the 
process of implementing corrective action requirements specified under 
orders or permits.
    The RCRA corrective action authorities, and the process that has 
been developed for implementing these authorities, require owners and 
operators to investigate the nature and extent of releases of hazardous 
waste or hazardous constituents at RCRA facilities (i.e., to soils, 
groundwater, and other environmental media). Owners and operators are 
required to investigate releases from solid waste management units at 
the facility, including releases from ``regulated units'' not addressed 
under subpart F of part 264. At the direction of the Agency, owners and 
operators are also required to characterize the sources of releases 
(i.e., the units from which wastes or constituents have been released), 
and to develop options for remediation of the facility. Remediation 
will typically address cleanup of the media contaminated by releases, 
and removal or containment of the source.
    In practice, the corrective action process is highly site-specific, 
and involves direct oversight by the reviewing Agency. The process 
provides considerable flexibility to the Agency to tailor 
investigations, and to decide on remedies that reflect the conditions 
and the complexities of each facility. The process of investigating and 
achieving cleanup goals at facilities is often technically complex, and 
can take many years to complete. This is the case particularly for 
groundwater contamination in complex hydrogeologic conditions. Given 
the site-specific nature of corrective action, the technical challenges 
involved, and the large number of RCRA facilities that may require 
cleanup, EPA is pursuing an implementation strategy for the corrective 
action program that involves assessing the environmental priority of 
each facility from the standpoint of its need for corrective action, 
and focusing the program's resources on high priority facilities. This 
implementation strategy is discussed in more detail below.
    c. The agency has developed a strategy for addressing worst sites 
first under RCRA. In 1990, EPA conducted the RCRA Implementation Study 
(RIS). This was the Agency's first comprehensive, in-depth evaluation 
of the RCRA hazardous waste program, its evolution, and its future. EPA 
produced the RIS after extensive discussion with stakeholders, private 
and public, in the RCRA program (i.e., industry, environmental groups, 
States, and the Agency). The RIS set forth a series of detailed 
recommendations regarding how to best ensure effective implementation 
of the RCRA program. An underlying theme throughout was the need to 
identify sound, environmentally-based implementation priorities in each 
area of the RCRA program and to demonstrate that those priorities are 
being effectively and efficiently addressed. The RIS advocated the use 
of strategic planning to define expectations and make choices among 
competing priorities.
    In response to the RIS recommendations, EPA has developed and is 
implementing a comprehensive strategy for addressing the RCRA 
treatment, storage, and disposal universe. At the heart of this 
strategy is the principle that EPA and the authorized States should 
address the universe of hazardous waste management facilities on the 
basis of environmental priorities. Further, at any given site, EPA or 
the State should use whatever regulatory authority is best suited to 
achieving environmental success. One essential element of this strategy 
is a system to prioritize facilities based upon their risk. This allows 
the Agency to address the RCRA universe on a ``worst-site-first'' 
basis. Another is providing the regulator flexibility in choosing 
regulatory options to address a given problem, rather than focusing on 
the number of particular regulatory actions taken.
    This approach is consistent with the Agency's response to recent 
recommendations from the General Accounting Office (GAO). In two 
recently issued reports, GAO evaluated EPA's progress in implementing 
the RCRA closure and post-closure program at land disposal facilities. 
In the first report, entitled Progress in Closing and Cleaning Up 
Hazardous Waste Facilities, issued in May of 1991, GAO criticized the 
Agency's progress in closing land disposal facilities that lost interim 
status in 1985. The report cited limited progress in this area as a 
basis for its concern that the Agency was placing too little emphasis 
on closing land disposal facilities, even though these facilities may 
pose some of the greatest environmental threats. In April of 1992, GAO 
issued another report entitled Impediments Delay Timely Closing and 
Cleanup of Facilities. This report criticized the Agency's progress in 
issuing post-closure permits and cited facility non-compliance with 
groundwater monitoring requirements as a result of permitting delays. 
In both of these reports, GAO recommended that EPA devote more of its 
time and resources specifically to addressing closed and closing land 
disposal facilities.
    The Agency agrees with GAO's concerns about addressing risk at 
closed and closing land disposal facilities, but believes that those 
risks must be addressed within the context of the Agency's overall 
strategy for implementing the RCRA program. The Agency has, for several 
years, been carrying out a combined closure and corrective action 
strategy that relies on all of EPA's authorities to address 
environmental issues at all RCRA facilities on a worst-site-first 
basis. The foundation of this strategy is the Agency's system for 
ranking RCRA facilities based on environmental priority. This system 
was developed to enable EPA to focus its resources on deterring 
violations and remediating contamination at RCRA facilities that 
present the highest priority for risk reduction and prevention. (It 
should be noted that, because of their nature, closed and closing land 
disposal facilities often rank as high priority.) EPA's priority-based 
approach dictates that resource commitments be made based on the 
priority ranking of facilities. This strategy acknowledges that 
activities to address risk at high priority facilities may take 
precedence over procedural activities (e.g., permitting) at lower 
priority facilities. EPA believes that this priority-based approach to 
RCRA implementation provides the best use of available resources by 
ensuring progress at high priority facilities across the RCRA universe, 
including closed and closing land disposal facilities.
5. Response to Post-1982 Developments
    In light of the developments discussed above, the Agency is 
reviewing the current closure and post-closure regulations. EPA's goals 
are to make the closure process more realistic, integrate the closure 
and corrective action processes, and provide greater flexibility in 
addressing risks at closed sites. Today's notice is the first step in 
that direction. It sets out several amendments to the closure 
regulations, including a new approach to addressing post-closure needs 
at facilities currently subject to post-closure permit requirements.
    In addition to the regulatory changes in today's proposal, section 
IV of this preamble solicits comment on further changes to the closure 
process. After reviewing public comment submitted in response to 
today's notice, the Agency will consider proposing further revisions to 
the closure process.
6. State Involvement in Development of This Proposed Rule
    Under the terms of Executive Order 12875, the Federal Government is 
urged to establish regular and meaningful consultation and 
collaboration with State, local, and tribal governments on Federal 
matters that significantly or uniquely affect their communities.
    Because this proposed rule would affect State RCRA programs, we 
provided the rule to the Association of State and Territorial Solid 
Waste Management Officials (ASTSWMO) to obtain their reaction. Seven 
States submitted written comments and nine States participated in a 
conference call with EPA on April 7, 1994, to discuss States' concerns. 
The States' written comments and a summary of the April 7 conference 
call can be found in the docket for this proposed rule.
    The States supported the proposal to remove the post-closure permit 
requirement. The States strongly supported removing the distinction 
between closing regulated units and solid waste management units, which 
is discussed in section III.B. of this preamble.
    Generally, States supported the inclusion of a corrective action 
order authority as part of an adequate enforcement program. Concerns 
were expressed that the Agency's review procedure of such order 
authorities would be duplicative of efforts undertaken during a State's 
authorization of HSWA corrective action at permitted facilities. The 
Agency recognizes that in some cases States' corrective action 
enforcement authorities may, indeed, have been reviewed by EPA during 
the authorization process for section 3004(u) authority, and determined 
to meet the requirements of this proposal. Where EPA determines this is 
the case, this proposed rule would not require States to submit 
additional information; in addition, EPA would minimize its review.

B. Summary and Discussion of Proposed Provisions

    Today's notice proposes a new approach to addressing post-closure 
environmental needs at facilities that have not received an operating 
permit, and that have units requiring post-closure care. It proposes to 
modify the post-closure permit requirement to allow the Agency either 
to issue a permit to address post-closure care at a facility, or to 
impose the same substantive requirements at the facility using 
alternative legal authorities (e.g., a post-closure plan to address the 
regulated unit, and an enforcement action to address the solid waste 
management units at the facility).
    Today's proposal reaffirms that post-closure care requirements 
apply to all landfills, waste piles, surface impoundments, and land 
treatment units that received waste after July 26, 1982, or that ceased 
the receipt of wastes prior to July 26, 1982, but did not certify 
closure until after January 26, 1983. Under current regulations at 
Sec. 270.l(c), all facilities subject to post-closure care requirements 
must obtain RCRA permits. Today's proposal is intended to allow EPA or 
an authorized State to use any other available legal authority as an 
alternative to the post-closure permit, as long as that authority 
provides the same level of protection and public participation as does 
the post-closure permit.
    As discussed above, under the current regulations, facilities that 
cease operation without obtaining a permit are required to close and 
conduct post-closure care under the self-implementing standards of Part 
265 until the Agency issues a post-closure permit to the facility. This 
proposed rule would not modify those interim status standards 
applicable to closed and closing land disposal facilities. Thus, for 
example, those facilities would continue to be required to conduct 
closure under approved closure plans, conduct post-closure care under 
an approved post-closure plan, and obtain financial assurance.
    As a result of this proposal, rather than issue a post-closure 
permit to impose requirements beyond the self-implementing interim 
status standards, the Agency could use a variety of regulatory 
authorities. To ensure that the authority chosen by the Agency will 
provide the same level of environmental protection, this proposal 
specifically requires owners and operators to comply with the same 
regulatory requirements that would be imposed through a post-closure 
permit when those requirements are imposed by the Agency, regardless of 
the regulatory authority selected. Those requirements include the 
requirements of Part 264, Subpart F, facility-wide corrective action, 
and public involvement at the time of remedy selection (if corrective 
action is required).
    The Agency is proposing to remove the permit requirement and allow 
the use of other authorities at post-closure facilities because it has 
concluded that a permit is not always the best authority for addressing 
environmental risk at these facilities. In fact, as was mentioned 
earlier, in the course of issuing post-closure permits over the past 
several years, EPA and the States have encountered many facilities at 
which post-closure permit issuance was difficult or, in some cases, 
impossible. Several obstacles to post-closure permit issuance have been 
identified.
    One obstacle is a lack of incentive on the part of post-closure 
permit applicants. Unlike facility owners or operators seeking 
operating permits, owners or operators of closed or closing facilities 
often have little incentive to obtain post-closure permits, 
particularly where the post-closure unit is the only unit at the 
facility. While permit denial is a significant threat to a facility 
owner seeking an operating permit, it makes little difference to the 
owner of a facility that is already closed and that no longer actively 
manages hazardous waste. In the past, where the owner or operator has 
been uncooperative in obtaining a post-closure permit, the Agency and 
authorized States have taken enforcement actions to facilitate the 
permit issuance process, and to bring facilities into compliance with 
the applicable regulatory requirements so that a permit could be 
issued. Today's rule would allow the Agency to bring an uncooperative 
facility into compliance with the regulations through an enforcement 
action, and relieve the Agency of its obligation to force the facility 
through the permit application process, which was generally designed 
under the assumption that the permit applicant desired a permit. Under 
the proposal, while the Agency would not lose its authority to issue a 
post-closure permit at the facility by taking action under an 
alternative authority (e.g., an enforcement action), it would no longer 
be required to do so if all applicable regulatory requirements have 
been imposed at the facility.
    The financial status of the facility owner or operator is often 
another obstacle. Closed and closing land disposal facilities subject 
to post-closure permit requirements are in many cases businesses that 
are no longer operating and may be in poor financial condition, or they 
may be without significant resources. In fact, many facilities 
currently in the closure universe were forced to close because they 
could not meet the RCRA financial assurance requirements. Yet meeting 
these requirements is a precondition for receiving an RCRA permit, 
regardless of whether it is an operating permit or a post-closure 
permit. Where an owner or operator is financially unable to meet the 
threshold post-closure financial requirements for permit issuance, the 
current regulations do not allow EPA to issue a post-closure permit--
despite the regulatory requirement that these facilities obtain such a 
permit.
    Similarly, some closing facilities are located in areas where it is 
difficult to satisfy the Part 264, Subpart F and Part 270 groundwater 
monitoring standards. For example, in some areas of complex 
hydrogeology, it may be technically impractical for a facility to 
install an adequate groundwater monitoring system. The regulatory 
agency would deny a permit application from an operating facility in 
such a situation, because denial prevents further receipt of waste and 
forces the facility to close. Denial of a post-closure permit 
application from a closed facility, however, is meaningless in such a 
situation, because it would have no effect on management of wastes 
already disposed of at the site and would leave any environmental 
problems there unaddressed.
    To address environmental risk at facilities such as those described 
above, Regions and States have frequently utilized legal authorities 
other than permits. Use of enforcement actions enables the Agency to 
place these facilities on a schedule of compliance for meeting 
financial assurance and/or groundwater monitoring requirements over a 
period of time. And, even where enforcement actions cannot bring about 
full regulatory compliance (e.g., where the owner or operator cannot 
secure financial assurance), they will enable the Agency to prescribe 
actions to address the most significant environmental risks at the 
facility. For example, EPA has often issued corrective action orders 
under the authority of section 3008(h) to address releases from solid 
waste management units at these facilities. In other cases, Federal or 
State Superfund authorities have been used to address cleanup at sites. 
However, under the current regulations, EPA or the State is still 
required to issue a post-closure permit even where the environmental 
risks associated with the facility have been addressed through other 
authorities.
    EPA believes that this proposed rule, by allowing the use of 
alternative authorities will enable the Agency more effectively to 
address post-closure care at a significant number of uncooperative and 
financially burdened facilities. The Agency recognizes, however, that 
today's proposal may have little practical effect on the Agency's 
ability to address those facilities that are in too precarious a 
financial state to meet even an extended schedule of compliance for 
financial assurance or groundwater monitoring. It is important to note, 
however, that EPA's prioritization strategy considers the financial 
status of facilities and elevates in importance those whose financial 
condition indicates that timely action will increase the likelihood 
that owners or operators will be able to meet their post-closure 
obligations. And, in some cases, where the owner or operator's 
financial condition prevents it from fulfilling its obligations under 
RCRA, the facility may be referred to Superfund.
    EPA believes that more flexible use of the full range of available 
authorities will provide a more comprehensive approach to ensuring 
effective post-closure care at RCRA facilities. This approach will 
enable the Agency to address facilities on a worst-site-first basis 
using the regulatory or legal authority that is most effective at a 
given site. Examples of when an authority other than a post-closure 
permit may be most appropriately applied include cases where the owner 
or operator is financially incapable of meeting the threshold 
requirements for permit issuance, such as compliance with the financial 
assurance requirements, or where the owner or operator may be 
uncooperative and an enforcement action is necessary.
    On the other hand, a post-closure permit will generally be the 
preferable mechanism for cooperative facilities capable of meeting 
financial assurance requirements. It has been the experience of several 
EPA Regions and States that many facility owners or operators will 
cooperate in the development of a post-closure permit, while they would 
oppose the same conditions in an enforcement order. Additionally, 
permit issuance may be advantageous in some situations because it 
enables the Regional Administrator or State Director to invoke the 
omnibus authority of section 3005(c)(3) of RCRA at facilities with 
special environmental needs that are outside the scope of the current 
regulations. In these cases, post-closure permits would continue to 
provide the best means of addressing the needs of the facility.
    EPA has always interpreted sections 3004(a) and 3005 of RCRA to 
authorize--but not compel--the issuance of permits to implement post-
closure care requirements at facilities that have ceased operating. As 
EPA explained when it first established the post-closure permit 
requirement, it ``could have issued regulations * * * that are 
enforceable independent of a permit to impose many of the requirements 
that apply to a facility after closure * * *'' (47 FR 32366, July 26, 
1982). EPA, however, believed that permits would be the most effective 
enforcement vehicle, primarily because they facilitate the development 
of site-specific conditions tailored to individual waste management 
facilities. Id. The U.S. Court of Appeals for the District of Columbia 
Circuit has also ruled that the statute authorizes, but does not 
require, post-closure permits. (See In re Consolidated Land Disposal 
Regulation Litigation, 938 F2d 1386, 1388-89 (D.C. Cir. 1991)).
    Today's proposed amendments would eliminate the regulatory 
requirement that EPA issue permits to all facilities subject to post-
closure care requirements. This proposal, EPA has concluded, not only 
makes policy sense but is fully consistent with the statute, because 
the post-closure permit requirement is a regulatory rather than a 
statutory construct.
    Although EPA is proposing to allow alternatives to post-closure 
permits, today's proposed regulations ensure that all substantive 
conditions currently imposed through post-closure permits are imposed 
at all facilities subject to post-closure care requirements, regardless 
of which regulatory or legal authority is used. This proposal specifies 
that the Agency must impose at these facilities, through enforceable 
legal authorities, the requirements of part 264, subpart F and 
facility-wide corrective action. In addition, this proposal would 
require that the owner or operator provide to the Agency the same 
information required by the permit issuance process. It would also 
maintain the requirement for facility-wide corrective action, and it 
would require public involvement at the time of remedy selection, if 
corrective action were necessary, or when the Agency determines that 
corrective action is not required at the facility.
    These provisions would ensure that all the substantive requirements 
of a post-closure permit would be imposed when an alternative mechanism 
was used. In combination with requirements already imposed on interim 
status facilities through the part 265 interim status standards, these 
minimum requirements would ensure that all aspects of post-closure care 
are fully addressed.

C. Section-By-Section Analysis

    Today's proposal would modify several provisions of the RCRA 
regulations in both the permit issuance procedures of part 270, as well 
as the requirements for interim status facilities of part 265. Each 
modification is described in detail below.
1. Section 270.1(c)--Use of Alternative Legal Authorities to Address 
Post-Closure Care
    EPA is proposing two amendments to Sec. 270.1(c). First, the Agency 
is proposing to revise Sec. 270.1(c) to provide an alternative to the 
requirement that post-closure permits be issued to closed landfills, 
waste piles, surface impoundments, and land treatment units, where 
post-closure care and corrective action are imposed through an 
enforceable alternative authority. Second, EPA is proposing a new 
Sec. 270.1(c)(7), which allows the EPA Regional Administrator (or an 
authorized State) to use alternate authorities to impose post-closure 
care requirements in lieu of a permit. Under this section, the Agency 
would be required to impose on post-closure facilities subject to 
alternative authorities the basic requirements imposed through post-
closure permits. (These requirements are specified in proposed 
Sec. 265.121, described below.) However, the Agency would have the 
discretion to impose those conditions through a permit, a RCRA 
enforcement authority, a Superfund authority, or a combination of these 
or other legal authorities. Similarly, an authorized State could impose 
conditions under a State cleanup authority. What is essential, in EPA's 
view, is that facilities meet the substantive standards currently 
imposed through post-closure permits, not that a specific regulatory 
authority be used to impose these standards.
2. Section 265.121--Interim Status Post-Closure Care Requirements for 
Facilities Subject to Section 270.1(c)(7)
    The current regulations at Secs. 265.117 through 265.120 govern 
post-closure care at interim status regulated units that close and 
conduct post-closure care without obtaining a permit. Under today's 
proposal, regulated units would continue to be subject to the 
requirements of part 265 for post-closure care, including the 
requirement to obtain a post-closure plan. Following the post-closure 
care period, the regulated units would remain in interim status until 
and unless interim status were terminated by the Agency through one of 
the available means (e.g., final permit determination).
    However, the current interim status post-closure care requirements 
are in some respects less stringent than post-closure permit 
requirements, specifically, the groundwater requirements of part 264, 
the facility-wide corrective action requirements, and the public 
involvement procedures associated with permit issuance. Therefore, to 
assure that facilities that do not obtain a post-closure permit are 
subject to the same requirements as those that do, today's proposal 
would add a new Sec. 265.121. That section, which would be applicable 
to those facilities subject to the requirements of Sec. 270.1(c)(7) 
that close and conduct post-closure care without obtaining a permit, 
would require that those facilities meet the same substantive 
requirements as permitted facilities must meet before the Regional 
Administrator can consider the post-closure needs at the facility to be 
addressed. Those requirements are described below.
    a. Part 264 subpart F ground-water monitoring and corrective action 
program (sections 264.90-264.100). Currently, the post-closure permit 
imposes part 264, subpart F requirements at closed land disposal units. 
Today's proposal would require that post-closure enforcement actions or 
other mechanisms used as alternatives to post-closure permits include 
conditions imposing part 264, subpart F standards on closed and closing 
land disposal units. Part 265 groundwater monitoring requirements for 
interim status land disposal units are less comprehensive than those 
established under the part 264, subpart F standards for permitted 
facilities. Whereas part 265 sets minimum standards for the 
installation of detection monitoring wells (e.g., one upgradient and 
three downgradient wells), part 264 establishes broader standards for 
establishing a more comprehensive monitoring system to ensure early 
detection of any releases of hazardous constituents. The specific 
details of the system are worked out through the permitting process. 
Consequently, compliance with part 264 standards usually results in a 
more extensive network of monitoring wells. Similarly, part 265 
specifies a limited set of indicator parameters that must be monitored, 
while part 264 establishes a more comprehensive approach under which 
the owner or operator is required to design a monitoring program around 
site-specific indicator parameters. As a result, monitoring systems 
designed in accordance with part 264 standards are specifically 
tailored to the constituents of concern at each individual site. 
Additionally, part 264 compliance monitoring standards are more 
comprehensive than part 265 standards both in terms of monitoring 
frequency and the range of constituents that must be monitored. 
Finally, the part 264, subpart F regulations provide for corrective 
action for releases to groundwater whereas part 265 does not.
    In light of these differences, the Agency is proposing that all 
units subject to post-closure care requirements be required to meet 
part 264, subpart F standards. This approach is designed to ensure 
equivalent protection of human health and the environment at all 
facilities, regardless of which legal authority used to address post-
closure care.
    b. Facility-wide corrective action. Under section 3004(u) of RCRA, 
which was added to the statute as part of the 1984 Hazardous and Solid 
Waste Amendments (HSWA), hazardous waste permits issued after November 
8, 1984, must include provisions requiring the facility owner or 
operator to take corrective action to address releases of hazardous 
waste or hazardous constituents from solid waste management units 
(SWMUs) at the facility. Section 3004(v) of HSWA extends corrective 
action authority to cover releases migrating off-site; section 3008(h) 
provides EPA enforcement authority to require corrective action at 
interim status facilities.
    EPA has codified corrective action requirements at 40 CFR 264.101 
and currently implements these requirements through the permitting 
process; at the same time, the Agency has made extensive use of the 
section 3008(h) authority to impose corrective action at interim status 
facilities. In addition, to facilitate the process, EPA proposed more 
extensive corrective action regulations in July, 1990, under a new part 
264, subpart S, and recently finalized several sections of that 
proposal related to temporary units and corrective action management 
units (see 58 FR 8658, February 16, 1993). The subpart S proposal set 
forth EPA's interpretation of the statutory requirements at that time.
    EPA recognizes that corrective action requirements are a central 
aspect of the HSWA amendments and that the post-closure permit 
currently provides the primary means of ensuring that corrective action 
will be adequately addressed at RCRA land disposal facilities that 
close without first receiving an operating permit. In allowing 
alternatives to the post-closure permit, EPA has no intention of 
undercutting or limiting its corrective action authority or the scope 
of the corrective action program. Consistent with this principle, 
today's proposal would require that authorities used at post-closure 
facilities as an alternative to post-closure permits impose corrective 
action requirements consistent with the statute and Sec. 264.101 of the 
regulations, as described in this preamble.
    Today's proposal would not specify the authorities that EPA or a 
State could use to impose corrective action as an alternative to a 
post-closure permit--only that the authority must be consistent with 
RCRA corrective action requirements. Certainly, RCRA section 3008(h) 
orders would be appropriate, but EPA does not believe it makes sense to 
limit alternative authorities to this section. For example, many States 
(including States not yet authorized for section 3004 (u) and (v) 
corrective action authority), have their own cleanup or State Superfund 
authorities that are consistent with RCRA corrective action authority. 
EPA believes that actions under these authorities should be allowed as 
alternatives to post-closure permits, as long as they are consistent 
with RCRA corrective action requirements. Similarly, if a facility is 
being addressed under a federal Superfund action, and the action 
addresses all releases at the site, issuance of a post-closure permit 
should be unnecessary.
    In requiring facility-wide corrective action consistent with RCRA 
section 3004 (u) and (v) provisions, EPA does not intend to require 
that alternative authorities use procedures identical to those in EPA's 
Subpart S proposal. For example, compliance with the NCP procedures for 
remedy selection would satisfy these proposed requirements. EPA wishes 
to emphasize, however, that to be considered consistent, an alternative 
approach to corrective action at a facility would have to include 
facility-wide assessments, and it would have to address possible 
releases (including off-site releases) from all solid waste management 
units within the facility boundary. Anything less than that, in EPA's 
view, would not meet the basic requirements of RCRA sections 3004 (u) 
and (v). EPA believes that this proposed approach is appropriate 
because it provides reasonable flexibility for regulatory agencies 
using available authorities to address environmental problems at RCRA 
sites. At the same time, however, the Agency requests comment on this 
approach and suggestions for alternatives.
    c. Public participation. Section 7004 of RCRA requires public 
participation in the permit issuance process. EPA has codified this 
requirement and has established specific public participation 
procedures for RCRA permitting at 40 CFR part 124. In the case of post-
closure permits, these procedures assure that the public has access to 
information gathered by the Agency about the facility, and has an 
opportunity to review the Agency's decisions related to the regulated 
unit and to facility-wide corrective action. In addition, EPA's permit 
regulations in part 270 typically require a permit modification--with 
public participation--at the time a corrective action remedy is 
selected, if section 3004(u) corrective action is required as part of a 
facility's permit.
    In developing today's proposal, the Agency sought to assure that by 
allowing alternative post-closure mechanisms, the Agency would provide 
adequate, mandatory public participation in the post-closure and 
corrective action processes. EPA believes that the current interim 
status procedures for closure and post-closure plan approval and 
modification (Secs. 265.112 and 265.118) provide for acceptable public 
participation. While the procedures for plan approval are not identical 
to those used in permit issuance, they do require public notice and 
provide an opportunity for written public comment; they also include an 
opportunity for a hearing.1 In EPA's view, these requirements 
ensure a reasonable opportunity for public participation in decisions 
that affect long-term care of the regulated unit.
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    \1\The specific differences between public participation in 
permit issuance and post-closure plan approval are: permits allow a 
45-day public comment period, plans allow 30 days; opportunity to 
comment must be noticed in local newspapers and through radio spots 
for permits, but only in newspapers for plans; the Regional 
Administrator is required to hold a public hearing if asked in the 
case of permits, but a hearing on a plan is held at the Regional 
Administrators discretion; and permit decisions are subject to 
Agency appeal procedures, while approved plans are not. Both, 
however, may be challenged in the courts.
---------------------------------------------------------------------------

    At the same time, EPA acknowledges that the public currently has no 
absolute assurance that it will have an opportunity to participate in 
the corrective action process when corrective action is imposed through 
an enforcement order. EPA's enforcement programs have retained 
discretion to limit public participation when circumstances require it. 
However, where orders will operate in lieu of permits (which always 
require public participation), EPA is proposing to limit this 
discretion and require a minimum level of public participation for all 
facilities, except in rare cases as described below.
    In proposing to make public participation mandatory, EPA notes that 
many cleanup authorities, including the federal Superfund authority and 
a number of State cleanup programs, already provide for significant 
levels of public participation in the majority of cases. In the case of 
CERCLA actions, procedures for public participation at point of remedy 
selection are established in Sec. 300.430(f) of the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP). In addition, the 
CERCLA Community Relations Program guidance (``Community Relations in 
Superfund, A Handout'') provides for extensive involvement of the 
public in Superfund actions. This guidance sets forth a community 
relations plan designed to promote two-way communication between the 
public and the lead Agency. In the case of corrective action imposed 
through RCRA enforcement orders, EPA has issued guidance announcing its 
policy to provide opportunity for public involvement at the time of 
remedy selection (see ``RCRA Corrective Action Decision Documents: The 
Statement of Basis and Response to Comment,'' issued on April 29, 1991, 
which is available in the docket for this rulemaking).
    Today's proposal would establish, at Sec. 265.121(b), minimum 
requirements for public involvement in the remedy selection process. 
These requirements would apply to both regulated units and solid waste 
management units subject to the requirements of Sec. 270.1(c)(7), at 
which closure and/or corrective action is imposed through an 
alternative authority, in lieu of a post-closure permit. Section 
265.121(b) would require, at the point of remedy selection, public 
involvement that includes, at a minimum, the following procedures: 
Public notification of the proposed remedy through a major newspaper; 
opportunity for public comment (at least 30 days); opportunity for a 
public meeting; availability of a transcript of the public meeting; 
availability of written summary of significant comments and information 
submitted and the EPA or State response; and, if the remedy is 
significantly revised during the public participation process, a 
written summary of significant changes or opportunity to comment on a 
revised remedy selection.
    In developing the proposed minimum requirements for public 
involvement under an alternate mechanism, the Agency intends to provide 
States and Regions the opportunity to continue to use public 
participation procedures established under existing authorities, 
provided that they meet the requirements in Sec. 265.121(b). Most 
Federal and State statutes and regulations already require that 
affected communities be informed about and involved in decisions 
regarding response to hazardous releases. In developing today's 
proposal, the Agency wished to avoid imposing new requirements that 
would force EPA and States to amend existing public participation 
procedures in order to use an alternate mechanism in lieu of a permit.
    The Agency believes that today's proposal establishes minimum 
requirements necessary for adequate public involvement that are, at the 
same time, likely to be met by most public involvement procedures for 
remedy selection. For example, compliance with either the permit 
issuance procedures of part 124 or the NCP procedures for remedy 
selection would satisfy these proposed requirements. Similarly, use of 
public participation procedures imposed under other Federal and State 
authorities would also be allowed, if those procedures met the minimum 
criteria set forth under Sec. 265.121(b) of today's proposal. The 
Agency solicits comment on the requirements for public involvement at 
remedy selection proposed today. Specifically, the Agency solicits 
comment on State or Federal authorities with public involvement 
requirements that would not satisfy today's proposed rule, and on the 
adequacy of today's proposed minimum requirements.
    While today's proposed rule would require public participation at 
the point of remedy selection for facilities subject to 
Sec. 270.1(c)(7), the Agency recognizes that there may be cases where 
emergency remedial actions may be needed to address immediate threats. 
Therefore, while today's proposal would ensure a minimum 30-day public 
comment period for corrective action remedies imposed under an 
alternative mechanism in most cases, EPA is proposing to allow 
reduction or elimination of the public comment period if the Regional 
Administrator determines that even a short delay in the implementation 
of the remedy would adversely impact human health or the environment. 
The Agency anticipates that this discretionary authority will be 
invoked only in rare circumstances. Where the Agency finds it is 
necessary to implement the remedy prior to the public comment period, 
Sec. 265.121(b) of today's proposal would require the Regional 
Administrator to solicit public comment on the remedy before making a 
determination that the facility's corrective action needs have been 
addressed in full.
    As an alternative to providing an exemption to the public 
involvement procedures for section 3008(h), as described above, EPA 
solicits comment on whether to rely on RCRA, CERCLA, and State imminent 
and substantial endangerment authorities where immediate action is 
necessary.
    Also, the Agency recognizes that corrective action at some 
facilities subject to Sec. 270.1(c)(7) may have been implemented 
through a non-permit authority prior to the effective date of today's 
proposal. In these cases, Sec. 265.121(c) would require the Regional 
Administrator to evaluate whether the remedy satisfies the requirements 
of this rule before considering the facility addressed. This process is 
discussed in more detail in section II.C.4. of this preamble.
    d. Section 270.27 information requirements. RCRA permitting 
regulations do not distinguish between information requirements for 
operating permits and post-closure permits. Facilities seeking post-
closure permits must generally provide EPA, as part of their Part B 
permit applications, the facility-level information required in 
Sec. 270.14 as well as relevant unit-specific information required in 
Secs. 270.16, 270.17, 270.18, 270.20, and 270.21. EPA needs this 
information to ensure compliance with part 264 requirements during 
operation and throughout the post-closure care period. Information 
required under Sec. 270.14 includes such areas as general inspection 
schedules, floodplain information, the post-closure plan, the notice of 
deed or appropriate alternate instrument, closure and post-closure care 
cost estimates, site characterization and groundwater monitoring for 
land disposal facilities, and exposure information for landfills and 
surface impoundments.
    The Agency has found that certain of the 270 information 
requirements are essential to ensuring proper post-closure while others 
are generally less relevant to post-closure. The most important 
information for setting long-term post-closure conditions are 
groundwater characterization and monitoring data, long-term care of the 
regulated unit and monitoring systems (e.g., inspections and systems 
maintenance), and information on SWMUs and possible releases. 
Therefore, EPA is today proposing to add a new section (Sec. 270.27) to 
identify that subset of the Part B application information that must be 
submitted for post-closure permits. Under today's proposal, an owner or 
operator seeking a post-closure permit would have to submit only that 
information specifically required for such permits under newly added 
Sec. 270.27, unless otherwise specified by the Regional Administrator. 
The specific items required in post-closure permit applications are:

--A general description of the facility;
--A description of security procedures and equipment;
--A copy of the general inspection schedule;
--Justification for any request for waiver of preparedness and 
prevention requirements;
--Facility location information;
--A copy of the post-closure plan;
--Documentation that required post-closure notices have been filed;
--The post-closure cost estimate for the facility;
--Proof of financial assurance;
--A topographic map; and
--Information regarding protection of groundwater (e.g., monitoring 
data, groundwater monitoring system design, site characterization 
information)
--Information regarding solid waste management units at the facility.

    In many cases, this information will be sufficient for the 
permitting agency to develop a draft permit. However, since RCRA 
permits are site-dependent, EPA believes it is important that the 
Regional Administrator have the ability to specify additional 
information needs on a case-by-case basis. Accordingly, to ensure 
availability of any information needed to address post-closure care at 
surface impoundments (Sec. 270.17), waste piles (Sec. 270.18), land 
treatment facilities (Sec. 270.20) and landfills (Sec. 270.21), 
Sec. 270.27 of today's proposal would authorize the Regional 
Administrator to require any of the Part B information specified in 
these sections in addition to that already required for post-closure 
permits at these types of units. This approach would enable the 
Regional Administrator to require additional information as needed but 
would not otherwise compel the owner or operator to submit information 
that is irrelevant to post-closure care determinations.
    To ensure substantive equivalency of authorities used in lieu of 
post-closure permits, today's proposal would require that part 270 
information specifically required for post-closure permits must also be 
provided upon request by the Agency when an alternative authority is 
used in place of a post-closure permit. EPA requests comment on this 
approach.
3. Post-Closure Plans and Permits
    EPA anticipates that, in many cases where a post-closure permit is 
inappropriate or difficult to issue, the regulatory agency will choose 
to issue a post-closure plan under interim status authorities to 
address long-term care of the regulated unit (e.g., groundwater 
monitoring and maintenance of the cap) and a section 3008(h) order for 
facility-wide corrective action. EPA generally believes that this 
approach provides a reasonable alternative to a post-closure permit, as 
long as the substantive post-closure care requirements of proposed 
Sec. 265.121 are satisfied.
    EPA believes that, for the most part, proposed Sec. 265.121 
requirements can be satisfied using this approach. The section 3008(h) 
corrective action order would be structured to address all SWMUs on the 
facility, and public participation, under EPA's current policy, would 
occur at the time of corrective action remedy selection. The post-
closure plan approval would be subject to public comment, in accordance 
with Sec. 265.118, and it would in most respects impose appropriate 
long-term care requirements.
    To assure that the post-closure plan will provide the same degree 
of environmental protection as would a permit, EPA is proposing in 
Sec. 265.121(a)(1) to provide EPA the authority to impose part 264 
groundwater monitoring requirements through the part 265 post-closure 
plan process. In addition, proposed Sec. 265.121(a)(3) would provide 
EPA the authority to require submission of information necessary to 
impose part 264 groundwater monitoring requirements through a post-
closure plan. This authority would expand the options available to the 
Agency to address post-closure facilities, without affecting the level 
of environmental protection or public participation.
4. Alternate Authorities Issued Prior to the Effective Date of the 
Final Rule
    It is likely that prior to final promulgation of this rule, EPA and 
authorized States will have initiated and, in some cases, completed 
actions under a variety of regulatory authorities, other than post-
closure permits, to address post-closure and corrective action at 
facilities currently subject to post-closure permit requirements. It 
also is likely that those actions, if taken after promulgation, would 
have satisfied the requirements of this rule. The Agency does not 
believe it would make sense to require EPA or the State to go through 
procedural steps to satisfy regulatory requirements where environmental 
needs at a facility have been addressed adequately. Therefore, the 
Agency is proposing, under Sec. 265.121(c), a procedure for the Agency 
to review activities initiated or conducted in full prior to 
promulgation of this rule, to determine whether the requirements 
applicable to the facility have been met.
    Under proposed Sec. 265.121(c), EPA would provide public notice of 
its activities at the facility and its determination that the facility 
has been addressed, and solicit public comment. After review of public 
comment, the Agency would determine whether the activities conducted at 
the facility were adequate to satisfy the requirements of part 265. If 
the activities were found to be deficient, EPA would impose additional 
requirements either by amending the existing order, issuing a new 
order, modifying the post-closure plan, or requiring a post-closure 
permit.

III. Request for Public Comment on Closure and Post-Closure Related 
Issues

    Today's notice proposes several amendments to the regulations 
governing closure and post-closure care. It is important to clarify 
that the regulatory amendments proposed today represent an initial step 
in a broader effort to improve the existing closure process. The Agency 
recognizes the need to amend the existing regulations beyond what is 
proposed today.
    Specifically, the Agency recognizes a need to more effectively 
integrate the closure and corrective action activities at facilities, 
and to have closure requirements and timeframes that reflect the 
complexities of such activities. In the following discussion, the 
Agency solicits comment on both of these issues. In addition to 
soliciting comment on both specific issues discussed below, the Agency 
also solicits general comment on the closure process, including 
impediments to implementing the current requirements and options to 
improve the process.

A. Regulatory Timeframes

    As was discussed above, the current closure regulations were 
promulgated before the Agency had any experience with closure under 
RCRA standards; not surprisingly, therefore, they do not always reflect 
the complexity of closure activities. One oversimplification in the 
current closure process is the imposition of timeframes for closure 
activities and closure plan approval. Expectations built based on these 
timeframes (as well as other factors) have caused GAO to criticize the 
pace at which the Agency is bringing facilities to closure.
    In a report issued in May of 1991, entitled Progress in Closing and 
Cleaning Up Hazardous Waste Facilities, GAO criticized the Agency's 
progress in completing closure activities at the approximately 1000 
land disposal facilities that lost interim status in 1985. GAO pointed 
to the regulatory timeframes in the closure process and determined that 
the closure activities should be complete at those facilities. In a 
later report entitled Impediments Delay Timely Closing and Cleanup of 
Facilities, issued in April of 1992, GAO expressed concerns that owners 
and operators can almost indefinitely delay the closure process. GAO 
suggested that the Agency should use the regulatory closure timeframes 
to prevent prolonged cleanup activities.
    The Agency disagrees that the current regulatory timeframes for 
closure completion could be used to ensure that closure is completed 
within those timeframes. Rather, the Agency believes, as was discussed 
earlier in this preamble, that in many cases the timeframes for closure 
completion do not reflect the technical complexity of the process. In 
the following discussion, the Agency solicits comment on options for 
removing or extending the timeframes in the current closure 
regulations.
1. Closure Plan Review and Approval Process
    In 1982, the Agency promulgated regulations that included 
timeframes for review and approval of closure plans. At the time, the 
Agency believed the timeframes were reasonable. Under these 
regulations, EPA must approve, modify, or disapprove a closure plan 
within 90 days of its initial submission. Upon disapproval of the plan, 
the owner or operator must submit a new or revised plan within 30 days. 
The Agency then has 60 days to approve or modify the resubmitted plan.
    These timeframes were developed before the Agency had experience 
implementing closure, and prior to the enactment of HSWA. Since that 
time, experience has indicated that closures are often more complex 
than anticipated, particularly for older units requiring corrective 
action. Consequently, the timeframes established in the regulations 
often are not met by the Agency and the regulated community. Based on 
this experience, the Agency today seeks comment on the need to revise 
existing timeframes, and on alternative approaches to the review and 
approval process.
    EPA specifically seeks comment on the option of eliminating 
mandatory timeframes. This change would allow for case-by-case 
variation in the time allowed for closure plan review and revision. The 
time required to process individual closure plans varies widely 
according to the scope and complexity of the closure activity, the 
quality of the plan submitted, and the extent of revision required. An 
additional important variable is the need to coordinate closure with 
corrective action required at the site. In addition to providing 
flexibility to account for site-specific variation, removing timeframes 
would allow EPA and the States to prioritize their workloads and to 
process closure plans on a worst-site first basis.
    On the other hand, EPA recognizes the need to maintain 
accountability for timely and effective implementation of RCRA. 
Timeframes provide a simple, straightforward means of auditing 
performance and, by removing them, the Agency may be removing an 
important means of insuring accountability. In light of this concern, a 
second alternative may be to retain but extend the current timeframes 
to more accurately reflect time needed to complete specific closure 
activities. The Agency is not now suggesting alternate time periods, 
but solicits comment on specific timeframes that may be more reasonable 
and appropriate.
2. Timeframes for Completion of Closure Activities
    Under existing regulations, facilities must complete closure within 
180 days of receipt of the final volume of hazardous waste, or 180 days 
after the closure plan has been approved, whichever is later. 
Extensions may be approved upon demonstration of need. These timeframes 
are designed to prevent closures from dragging on for indefinite 
periods. The Agency is concerned that if closure is not addressed in a 
timely manner, there is an increased likelihood of releases from the 
unit into the environment, and that the financial situation of the 
facility may deteriorate such that it will be unable to complete 
closure activities on its own.
    On the other hand, the Agency has found that the 180-day time 
period has been insufficient for a majority of closed and closing RCRA 
facilities. Activities required to complete closure (e.g. securing 
contracts, developing plans and specifications, bidding and 
construction) have proven to be more time consuming and complicated 
than originally anticipated. As noted above, the size and scope of the 
closure activities are important variables that may significantly 
affect time required to achieve final closure. Appropriate timeframes 
may also vary widely based on the type of remedies pursued. 
Bioremediation or waste fixation, for example, may constitute 
effective, albeit longer-term means of meeting closure performance 
standards. Another important consideration that frequently warrants 
extension of the closure period is the need to schedule closure 
activities to correspond with required corrective action.
    Extensions may be granted if the owner or operator can demonstrate 
need in accordance with existing provisions. EPA is concerned, however, 
that extensions may have become the rule rather than the exception. 
Based on these concerns, EPA is considering revision of the 180-day 
closure completion period. Given the site-specific nature of time 
needed to complete closure, EPA is considering proposing that time 
periods for completing closure be developed on a facility specific 
basis through the closure plan process. Another alternative would be to 
establish a longer more appropriate mandatory time period for 
completing closure.
    Under any alternative, EPA believes it is appropriate to retain the 
existing provision that, in instances where closure will take longer 
than 180 days, the owner or operator must certify that he has taken and 
will continue to take all steps to prevent threats to human health and 
the environment.
    EPA solicits comments on whether the 180-day closure completion 
period should be revised and, if so, how it should be amended to 
provide necessary flexibility while ensuring effective and timely 
closures.

B. Regulatory Distinction Between Regulated Units Undergoing Corrective 
Action and Non-Regulated Solid Waste Management Units

    The universe of closed and closing regulated land disposal units 
includes a number of units that have released hazardous wastes and 
constituents into soils and groundwater surrounding the unit. In terms 
of the environmental risk associated with these regulated units, and 
the activities necessary to address that risk, these units are 
indistinguishable from non-regulated solid waste management units. In 
many cases, particularly in the case of unlined land-based units, 
closure of the regulated unit will involve many of the same activities 
as do corrective actions conducted under the authority of Sec. 264.101 
or RCRA section 3008(h). However, in the case of regulated units, the 
regulations of parts 264 and 265 governing groundwater monitoring, 
closure and post-closure care, and financial assurance continue to 
apply during cleanup.
    The Agency is concerned that this dual regulatory scheme often 
limits the Agency's ability to determine the best remedy at regulated 
units. The Agency believes that there are many situations where 
allowing the Regional Administrator to make a site-specific 
determination, rather than strictly applying the full range of parts 
264 and 265 requirements, would better serve the goal of expedited 
closure of the unit.
    Consider, for example, the situation where EPA or an authorized 
State addresses, through its corrective action authorities, a 
collection of adjacent units releasing hazardous constituents to the 
environment. If one of those units were a regulated unit, while the 
others were non-regulated solid waste management units, two regulatory 
regimes would arguably apply. Under the current regulatory structure, 
EPA might select remedies for the solid waste management units through 
the proposed 40 CFR subpart S process, while the regulated unit would 
remain subject to part 264 and part 265 closure and groundwater 
monitoring requirements. Thus, in one case groundwater cleanup levels 
would be selected through a balancing process comparable to 
Superfund's, while for the regulated unit, the owner or operator might 
be required to clean the site up to background, or seek an Alternative 
Concentration Limit under Sec. 264.94. In this case, EPA does not 
believe retaining a dual regulatory structure serves the goal of 
expedited cleanups. Rather, it believes that the corrective action 
process, which was specifically designed for remedial activities, would 
be more appropriate to address the closed regulated units.
    In other cases, the regulations might prevent the owner or operator 
from closing the unit in a manner that meets the closure performance 
standard of Secs. 264.111 and 265.111. For example, where waste has 
been removed from a unit but contaminated soils remain, the remedy that 
might best prevent future releases from the unit could include 
installation of an infiltration system and flushing of soils over time 
to remove remaining contamination. However, the requirement of 
Secs. 264.310 and 265.310 that the unit be covered with an impermeable 
RCRA cap would arguably rule out or significantly complicate the 
remedy, because soils could not be flushed beneath a cap, and the 
contaminated soils would remain untreated.
    The Agency is considering amendments to the requirements of parts 
264 and 265 that would reduce or eliminate the regulatory distinction 
between closed or closing regulated units that require corrective 
action and other solid waste management units. EPA, therefore, solicits 
comment on whether to allow the Regional Administrator to establish 
groundwater monitoring, closure and post-closure care, and financial 
assurance requirements on a site-specific basis at regulated units 
addressed through the corrective action process. Under this approach, 
the Regional Administrator would look to the corrective action process, 
rather than the unit-specific technical standards designed for 
regulated units, to determine remedial objectives and standards. This 
would allow EPA to develop, through the corrective action process, a 
consistent overall remedy, tailored to the specifics of the situation.
    The Agency specifically solicits the following information:
    (1) Situations where it is important to retain the regulatory 
distinction between regulated units undergoing corrective action and 
other solid waste management units,
    (2) Specific requirements applicable to regulated units that should 
be retained (if any),
    (3) Situations where it is important to eliminate the distinction 
between regulated units undergoing corrective action and other solid 
waste management units, and
    (4) Specific requirements applicable to regulated units that impede 
cleanup at those units.

IV. Proposed Provisions Related to State Enforcement Authority to 
Compel Corrective Action at Interim Status Facilities

A. Background Information

    The HSWA amendments of 1984 substantially expanded corrective 
action authorities for both permitted RCRA facilities and facilities 
operating under interim status. Section 3004(u) requires that any 
hazardous waste management permit issued after November 8, 1984, 
address corrective action for releases of hazardous waste or hazardous 
constituents from any solid waste management unit (SWMU) at the 
facility. Section 3004(v) extends corrective action authority to cover 
releases migrating off-site. Section 3008(h) provides EPA with 
enforcement authority to require corrective action at interim status 
facilities. Sections 3004 (u) and (v) became immediately effective in 
all States and are administered by EPA until States become authorized 
for HSWA corrective action (see section VI of this preamble for further 
discussion). Section 3008(h) also became effective immediately.
    On July 15, 1985, and December 1, 1987, the Agency codified in 
Sec. 264.101 the requirements of sections 3004 (u) and (v) for 
addressing corrective action at permitted facilities (see 50 FR 28747 
and 52 FR 45788). As a result, States wishing to obtain or retain 
authorization to implement subtitle C hazardous waste management 
programs must adopt permitting authorities that are at least as 
stringent as the provisions in Sec. 264.101.
    Prior to today's rule, however, the Agency had not proposed that 
States adopt as part of an adequate enforcement program, the authority 
to issue enforcement orders to compel corrective action at interim 
status facilities (section 3008(h) authority). While many States may 
have authorities comparable to section 3008(h), they have not been 
reviewed by the Agency through the State authorization process. EPA is 
proposing today to require States to adopt such authority. As with all 
other EPA enforcement authorities, EPA will maintain it's authority to 
implement section 3008(h).

B. Summary of Proposed Provisions

    The Agency, through today's proposal, would require States to 
adopt, as part of an adequate enforcement program, the authority to 
issue enforcement orders to compel corrective action at interim status 
facilities. States will now need to be authorized for both corrective 
action at permitted facilities under authorities comparable to sections 
3004 (u) and (v) and at interim status facilities under an authority 
comparable to section 3008(h). States may choose to enhance their 
enforcement program by adopting an authority comparable to section 
3008(h) prior to authorization for corrective action at permitted 
facilities. For example, a State with a cleanup authority that can 
address interim status facilities could include such authority as part 
of its adequate enforcement program, even if it did not yet have 
authority to address corrective action at permitted facilities.
    The Agency would require that the State interim status enforcement 
authorities be comparable in scope to section 3008(h) authority. 
Section III.C. of this preamble describes conditions that a State 
enforcement authority would have to meet to be considered comparable to 
section 3008(h) authority.

C. Analysis and Discussion

    The RCRA regulations at Sec. 271.16 specify the requirements for 
enforcement authorities that States must meet in order to gain and 
maintain authorization to administer the RCRA program. The Agency is 
proposing to amend the requirements for enforcement authorities at 
Sec. 271.16 to require States to have authority to compel corrective 
action at interim status facilities.
    The Agency believes that requiring States to adopt such authority 
will enhance the State's role as the primary implementing authority for 
the RCRA Subtitle C program. Furthermore, today's proposal will ensure 
that States have the full range of RCRA clean up authority granted EPA 
by Congress, and, therefore, will promote a more complete and 
consistent delegation of the corrective action program to the States. 
As currently practiced, delegation of the corrective action program to 
address permitted facilities, but not interim status facilities, causes 
confusion in the regulated community and makes it more difficult for 
the States to establish priorities and manage resources efficiently. 
Furthermore, redundant or inconsistent regulation may result. Today's 
proposal enhances the State's ability to take the lead for RCRA cleanup 
activities at all RCRA treatment, storage, and disposal facilities--
interim status as well as permitted. Furthermore, EPA believes that 
this will promote consistency between corrective actions compelled by 
the Federal and State corrective action programs. The proposed 
regulations will ensure that equivalent corrective action activities 
are implemented at interim status facilities, regardless of whether the 
action is initiated by EPA or a State.
    The Agency believes that most States, especially those authorized 
for corrective action under sections 3004 (u) and (v), may already have 
the type of enforcement authority that would be required by today's 
proposal. EPA specifically requests comment from States as to whether 
the Agency is correct in this assumption. In addition, the Agency 
requests comment regarding the difficulty of obtaining such an 
enforcement authority in States where it does not already exist.
    Requiring States to obtain the ability to issue interim status 
corrective action orders also complements today's proposal to allow 
alternative mechanisms (i.e., orders) to replace post-closure permits. 
Today's proposal ensures that all States have authority to address both 
corrective action and post-closure care at interim status facilities.
    The Agency will retain its ability to issue section 3008(h) orders. 
The Agency believes that in many cases, it will be more efficient to 
continue to implement section 3008(h) orders already in place, even if 
the facility is located in a State which has adopted a corrective 
action order authority as part of their adequate enforcement program. 
Issuance of a State corrective action order to an interim status 
facility would not preclude subsequent corrective action requirements 
pursuant to sections 3004 (u) and (v). Although EPA would retain the 
authority to issue section 3008(h) orders to interim status facilities, 
the Agency anticipates that such actions would be filed in States 
authorized for interim status corrective action authority only after 
careful consideration and only in cases that meet any of the following 
criteria:
    (1) The State fails to take timely and appropriate action;
    (2) The State's action is clearly inadequate; or
    (3) Cases that are of national significance. Of course, the Agency 
will consider using its section 3008(h) authority to compel corrective 
action if requested by a State.
    The Agency does not intend to duplicate past efforts conducted as 
part of the State authorization process for HSWA corrective action 
through this rulemaking. Where appropriate, the Agency will review 
previously submitted State corrective action authorization packages for 
permitted facilities to evaluate a State's interim status corrective 
action order authority. However, it may be necessary for States to 
augment previous authorization packages with supplemental information 
to enable the Agency to evaluate fully such order authorities.
    Under this proposed rule, States that have not yet been authorized 
for corrective action at permitted facilities could apply for 
authorization for corrective action authority at interim status 
facilities. In such a case, EPA would require the State to develop a 
Memorandum of Agreement (MOA) with EPA to provide the Agency the 
opportunity to comment on draft orders prior to issuance. Prior to 
today's proposal, EPA has not established a right to comment on draft 
orders. However, in the case where States are not yet authorized for 
corrective action at permitted facilities, the Agency believes that it 
would be important to have such opportunity to ensure consistent 
implementation of the RCRA corrective action program. To accommodate 
variations in State procedural rules, EPA would allow these States and 
the Regions to decide exactly how and when EPA would submit comments on 
State orders in the State/EPA MOA.

D. EPA's Interpretation of the Scope of Section 3008(h)

    The Agency uses section 3008(h) authority to address releases at 
interim status facilities authorized to operate under section 3005(e) 
of RCRA. In a December 16, 1985, memorandum from J. Winston Porter, 
then Assistant Administrator of the Office of Solid Waste and Emergency 
Response, ``Interpretation of Section 3008(h) of the Solid Waste 
Disposal Act,'' EPA interpreted section 3008(h) to enable the Agency to 
respond to releases of hazardous waste or hazardous constituents at 
facilities that have, had, or should have had authorization to operate 
under interim status by taking either judicial or administrative 
action. States must demonstrate that their authority can address an 
equally broad universe of facilities, through either judicial or 
administrative action, and that their order authorities, at a minimum, 
meet the criteria discussed below.\2\
---------------------------------------------------------------------------

    \2\The Agency's interpretation of the corrective action 
authorities under section 3008(h) and sections 3004 (u) and (v) are 
virtually identical. Therefore, criteria discussed in this section 
related to the Agency's interpretation of section 3008(h) are 
applicable to the discussion of sections 3004 (u) and (v) in section 
IV of this preamble, unless otherwise noted.
---------------------------------------------------------------------------

1. Definition of Facility
    In a recent rule, (Corrective Action Management Units and Temporary 
Units (58 FR 8658, February 16, 1993)), EPA defined ``facility'' for 
corrective action purposes as ``all contiguous property under the 
control of the owner or operator seeking a permit under Subtitle C of 
RCRA.'' The Agency interprets ``facility'' to have the same meaning 
under section 3008(h). EPA is proposing that States must demonstrate 
that their cleanup order authorities contain a definition of 
``facility'' that is at least as broad as that available under section 
3008(h) or that the State authority otherwise has a scope as broad as 
section 3008(h).
2. Definition of Release
    While the statute does not define the term ``release,'' the Agency 
has interpreted the term to be at least as broad as the definition of 
release under CERCLA section 101 (22). The Agency considers a release 
to be any spilling, leaking, pumping, pouring, emitting, emptying, 
discharging, injecting, escaping, leaching, dumping, or disposing into 
the environment. The legislative history (***) also makes it clear that 
the term release is not limited to releases to ground water. Therefore, 
the Agency uses section 3008(h) to address releases of hazardous waste 
or hazardous constituents\3\ from a facility. EPA is proposing that 
States demonstrate that their corrective action order authorities 
include a definition of release that is as broad as that being used by 
EPA under section 3008(h), or otherwise has the authority to address 
all ``releases'' as defined under that section.
---------------------------------------------------------------------------

    \3\Hazardous constituents are the substances listed in 40 CFR, 
Part 261, Appendix 8.
---------------------------------------------------------------------------

3. Off-Site Releases
    EPA interprets section 3008(h) to include the responsibility to 
address corrective action beyond the facility boundaries as set out in 
section 3004(v). Section 3004(v) requires owners and operators to take 
corrective action beyond the facility boundary where such action is 
necessary to protect human health and the environment unless the owner 
or operator of the facility demonstrates that, despite best efforts, it 
is unable to obtain the necessary permission to undertake such action. 
EPA proposes to require States to be able to impose similarly stringent 
requirements.
4. Compelling Compliance
    In cases of failure to comply with an order issued under section 
3008(h) of RCRA, EPA may assess a civil penalty of up to $25,000 for 
each day of non-compliance. Section 3008(h) also allows EPA to commence 
a civil action for appropriate relief including a temporary or 
permanent injunction, or a suspension or revocation of a facility's 
authority to operate under interim status.
    Before States enforcement programs can be deemed adequate under 
today's proposal (i.e., authority to address corrective action at 
interim status facilities), they must have the ability, either judicial 
or administrative, to assess and collect civil penalties. Current 
requirements for adequate enforcement programs found in Secs. 271.15 
and 271.16, require States to have administrative or judicial authority 
to assess penalties up to $10,000 per day. Although section 3008(h) 
enables the Agency to assess penalties up to $25,000 per day, at this 
time, EPA is not proposing to require States programs to meet the 
penalty amounts currently specified in section 3008(h). However, the 
Agency is seeking comment on whether Secs. 271.15 and 271.16 should be 
amended to require States to demonstrate that their penalty authority 
is consistent with EPA's (the ability to collect penalties of up to 
$25,000 per day for non-compliance with RCRA and/or its regulations).
    In addition, EPA will accept any State authority as part of their 
adequate enforcement program that allows assessment and collection of 
penalties for non-compliance with a cleanup order. States must be able 
to apply such penalty authority to facilities subject to interim status 
requirements under Subtitle C.
    Today's proposal would also require States to demonstrate that they 
have the ability to suspend or revoke a facility's authority to operate 
under interim status and commence a civil action for appropriate 
relief, including a temporary or permanent injunction under the cleanup 
order authority or under a separate authority that can be applied to 
interim status facilities.
5. Application of Order Authority
    EPA believes that State enforcement programs will be enhanced by 
requiring that such programs have the authority to use orders to 
address corrective action at interim status facilities. To provide 
States flexibility to satisfy this newly proposed requirement for 
authorization, EPA would allow States to request authorization for any 
State law or enforcement authority that meets the minimum requirements 
of section 3008(h) as discussed earlier in this section of the 
preamble.
    Furthermore, the Agency has found that in some States, those 
agencies responsible for the RCRA program may not be responsible for 
enforcing RCRA order requirements. For example, the State's interim 
status corrective action orders might only be enforceable through the 
State Attorney General's Office. In this case, a Memorandum of 
Agreement (MOA) would be required between the two State agencies to 
allocate responsibilities for any necessary enforcement. Such MOA must 
be available for Agency review.
    In order to facilitate authorization of State enforcement programs, 
the Agency requests comment on whether or not it would be appropriate 
to provide interim authorization for the corrective action order 
authority as proposed in today's rule.

V. Request for Comment on Authorizing States to Use State Orders to 
Impose Corrective Action at Permitted Facilities

    In the course of authorizing States for sections 3004 (u) and (v) 
authority, the Agency has recognized that some States would like to 
compel corrective action at permitted facilities (all TSD facilities) 
through a State order, in lieu of writing specific permit conditions to 
implement section 3004 (u) and (v). For example, a State that has years 
of experience implementing a broad and powerful cleanup order authority 
may prefer to rely on this authority rather than imposing corrective 
action through permits; or a State that is already requiring facility-
wide cleanup through an order issued under a State statute may find 
that at the time of permit issuance, no additional permit requirements 
are necessary.
    To ensure that such cleanup orders meet the requirements of 
sections 3004(u) and (v), EPA would require States to assess the 
completed cleanup conducted under an order against the requirements of 
sections 3004(u) and (v). In addition, such orders must be incorporated 
by reference in the permit, which means the State's normal permit 
appeal procedures apply to the provisions of the order. Finally, the 
permit would need to include ``reopener'' language to ensure that if 
the requirements of sections 3004(u) and (v) were not met, the State 
would have the opportunity to modify the permit to require any 
additional work.
    EPA is seeking comment on whether this concept (i.e., using orders 
in lieu of section 3004(u) and (v) permit conditions) should be made 
available to the States as an option for implementing corrective 
action, and whether it would be useful to facilitate cleanups and 
provide flexibility to States seeking authorization for corrective 
action. If this concept were eventually adopted, States wishing to use 
cleanup order authority as the principal vehicle for corrective action 
at permitted facilities would have to demonstrate to EPA that the order 
authority is at least as broad as the requirements of sections 3004(u) 
and (v). The specific requirements for section 3004(u) and (v) can be 
found under the similar discussion of section 3008(h) requirements 
found in section IV. of this preamble. Please note, however, that the 
Agency is not expanding its interpretation of section 3008(h) authority 
to include permitted facilities. Rather, the Agency believes that some 
States may have very broad authorities that can address both interim 
status and permitted facilities.

VI. Public Participation

    It is the Agency's policy to provide a meaningful opportunity for 
members of the public to be informed of, and participate in, decisions 
that affect them and their communities. This policy applies to 
corrective action conducted under both orders and permits.
    In this notice, the Agency is proposing to:
    (1) Allow the use of orders in lieu of post-closure permits, and
    (2) Require States to adopt authority, as part of their authorized 
programs, to address corrective action at interim status facilities. 
Furthermore, the Agency has asked for comment on allowing States to 
address corrective action through order authorities in lieu of sections 
3004(u) and (v) at permitted facilities. The Agency would involve the 
public in each of these scenarios through the following procedures.

A. Public Participation Requirements When Issuing a Section 3008(h) 
Order in Lieu of a Post-Closure Permit

    Under today's proposal, all orders issued in lieu of post-closure 
permit conditions, in conformance with proposed Sec. 270.1(c)(7), must 
follow the public participation procedures of 40 CFR part 121, which 
are discussed in section V.A.2.c. of this preamble.

B. Public Participation Requirements for State Corrective Action Orders 
at Interim Status Facilities

    Today's proposal would require States to obtain the ability to 
address corrective action at interim status facilities with an order 
authority. Current Agency policy strongly encourages that the 
opportunity for public participation be provided prior to final remedy 
selection.4 Therefore, States seeking authorization for 3008(h) 
order authority must have a rule or a policy for public participation 
that is consistent with EPA's current policy.
---------------------------------------------------------------------------

    \4\ This policy reflects section 7004(b) of RCRA, which requires 
EPA to provide for and encourage public participation in RCRA 
actions, including enforcement.
---------------------------------------------------------------------------

    At this time, the Agency is also asking for comment on whether it 
would be appropriate to mandate the use of public participation through 
regulation (specifically the public participation regulations proposed 
under today's rule at section V.A.2.c. (40 CFR part 121)), for all 
orders addressing RCRA corrective action at interim status facilities.

C. Public Participation Requirements for Orders Used to Address 
Corrective Action at Permitted Facilities in Lieu of Sections 3004(u) 
and (v)

    The Agency is asking for comment on whether it would be appropriate 
to allow State corrective action order authorities to address 
corrective action at permitted facilities in lieu of sections 3004(u) 
and (v). States seeking to be authorized for such authority would have 
to demonstrate that their cleanup order authority provides for public 
participation prior to final remedy selection. The Agency solicits 
comment on whether it should require that those public participation 
requirements be equivalent to the requirements of parts 124 and 270, or 
whether it should approve the use of alternative procedures.

VII. Effect of Today's Proposed Rule on State Authorization

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA program within the State (See 40 CFR 
part 271 for the standards and requirements for authorization). 
Following authorization, EPA retains the enforcement authorities of 
sections 3008, 7003, and 3013 of RCRA, although authorized States have 
primary enforcement responsibility.
    Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a 
State with final authorization administered its hazardous waste program 
entirely in lieu of the Federal program. The Federal requirements no 
longer applied in the authorized State, and EPA could not issue permits 
for any facilities in a State where the State was authorized to permit. 
When new, more stringent Federal requirements were promulgated or 
enacted, the State was obligated to enact equivalent authority within 
specified timeframes. New Federal requirements did not take effect in 
an authorized State until the State adopted the requirements as State 
law.
    In contrast, under section 3006(g) of RCRA, 42 U.S.C. 6926(g), new 
requirements and prohibitions imposed by HSWA take effect in authorized 
States at the same time they take effect in unauthorized States. EPA is 
directed to carry out those requirements and prohibitions in authorized 
States, including issuance of permits, until the State is granted 
authorization to do so. While States must still adopt more stringent 
HSWA-related provisions as State law to retain final authorization, the 
HSWA requirements apply in authorized States in the interim.

B. Effect of Today's Proposed Revisions to Closure and Post-Closure 
Requirements on State Authorizations

    This rule proposes revisions to the post-closure requirements under 
HSWA and non-HSWA authorities. The proposed requirements in 
Secs. 265.110, 265.121 (except for paragraph 265.121(a)(2)), 270.1, and 
270.27 are proposed under non-HSWA authority. Thus, those requirements 
would become immediately effective only in States that do not have 
final authorization, and would not be applicable in authorized States 
unless and until the State revises its program to adopt equivalent 
requirements. Section 265.121(a)(2) is proposed under HSWA authority. 
Thus, that section would become immediately effective in all States.
    In general, 40 CFR 271.21(e)(2) requires States that have final 
authorization to modify their programs to reflect Federal program 
changes and to subsequently submit the modifications to EPA for 
approval. It should be noted, however, that authorized States are only 
required to modify their programs when EPA promulgates Federal 
standards that are more stringent or broader in scope than the existing 
Federal standards. Section 3009 of RCRA allows States to impose 
standards more stringent than those in the Federal program. For those 
Federal program changes that are not more stringent or reduce the scope 
of the Federal program, States are not required to modify their 
programs (See 40 CFR 271.1(i)).
    The provisions of today's rule related to post-closure permit 
requirements are not more stringent than the existing Federal 
requirements. Therefore, authorized States are not required to modify 
their programs to adopt requirements equivalent to the provisions 
contained in today's proposed rule. If the State does modify its 
program, EPA must approve the modification for the State requirements 
to become subtitle C RCRA requirements.

C. Effect of Today's Proposed Revisions to Requirements for Enforcement 
Authority on State Authorizations

1. Requirement to Adopt Provisions of Today's Proposal
    The provisions of today's rule requiring States to adopt 
enforcement authorities comparable to section 3008(h) are more 
stringent than the current Federal program. Therefore, States wishing 
to seek or retain authorization would be required to adopt those 
provisions.
2. Effect of Proposed Rule on Federal Enforcement Authorities in States 
that Obtain Authorization for Today's Proposed Provisions
    Since 1980, EPA has required States to adopt civil and criminal 
enforcement authorities to enforce violations of authorized State 
statutes and regulations. EPA's authority to use its own enforcement 
authorities, however, does not terminate when it authorizes a State's 
enforcement program.
    Section 3008(a) allows EPA to enforce any ``requirement'' of 
subtitle C. This provision allows EPA to bring administrative and/or 
judicial enforcement actions to enforce subtitle C requirements even in 
States authorized to implement subtitle C programs in lieu of the 
federal program. (Section 3008(a)(2) clearly reflects this authority.) 
EPA has always used this authority sparingly because it believes States 
should take the lead role in enforcing their authorized programs. 
Nevertheless, EPA's continuing enforcement authority can be an 
essential tool in ensuring that the regulated community meets its 
obligations to manage hazardous waste in a manner that provides 
adequate protection for human health and the environment. For the same 
reasons, EPA will retain its authority to issue corrective action 
orders to interim status facilities under section 3008(h).

VIII. Regulatory Impact Analysis

A. Executive Order 12866

    Under Executive Order 12866, which was published in the Federal 
Register on October 4, 1993 (see 58 FR 51735), the Agency must 
determine whether a regulatory action is ``significant'' and, 
therefore, subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Under the terms of Executive Order 12866, OMB has notified EPA that 
it considers this a ``significant regulatory action'' within the 
meaning of the Executive Order. EPA has submitted this action to OMB 
for review. Changes made in response to OMB suggestions or 
recommendations are documented in the public record for this rulemaking 
(see Docket # F-94-PCPP-FFFFF).

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. at the 
time the Agency publishes a proposed or final rule, it must prepare a 
Regulatory Flexibility Analysis that describes the impact of the rule 
on small entities, unless the Administrator certifies that the rule 
will not have significant economic impact on a substantial number of 
small entities. The provisions of today's rule would expand the options 
available to address post-closure care so that a permit would not be 
required in every case, would impose no requirements on owners and 
operators in addition to those already in effect--nor would the 
provisions of this proposal that would require States to adopt, as part 
of an adequate enforcement program, authority to compel corrective 
action at interim status facilities. Therefore, pursuant to 5 U.S.C. 
601b, I certify that this regulation will not have significant economic 
impact on a substantial number of small entities.

C. Paperwork Reduction Act

    The recordkeeping and reporting requirements of this proposed rule 
would replace similar requirements already promulgated. Thus, this rule 
imposes no net increase in recordkeeping and reporting requirements. As 
a result, the reporting, notification, or recordkeeping (information) 
provisions of this rule do not need to be submitted for approval to the 
Office of Management and Budget (OMB) under section 3504(b) of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects

40 CFR Part 264

    Air pollution control, Hazardous waste, Insurance, Packaging and 
containers, Reporting and recordkeeping requirements, Security 
measures, Surety bonds.

40 CFR Part 265

    Air pollution control, Hazardous waste, Insurance, Packaging and 
containers, Reporting and recordkeeping requirements, Security 
measures, Surety bonds, Water supply.

40 CFR Part 270

    Administrative practice and procedure, Confidential business 
information, Hazardous materials transportation, Hazardous waste, 
Reporting and recordkeeping requirements, Water pollution control, 
Water supply.

40 CFR Part 271

    Administrative practice and procedure, Confidential business 
information, Hazardous materials transportation, Hazardous waste, 
Indians--lands, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

    Dated: October 25, 1994.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, chapter I, title 40 of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

    2. Section 264.90 is amended by adding a new paragraph (e) to read 
as follows:


Sec. 264.90  Applicability.

* * * * *
    (e) The regulations of this subpart apply to all owners and 
operators subject to the requirements of Sec. 270.1(c)(7) of this 
chapter to obtain either a post-closure permit or equivalent mechanism. 
Where these facilities are addressed through mechanisms other than a 
permit, references to ``in the permit'' in this subpart mean in 
whatever mechanism the Agency uses to implement the post-closure 
requirements. In the case of unpermitted facilities that are required 
by Sec. 265.121 of this chapter to comply with the requirements of this 
section, any necessary corrective action will be specified in the 
enforcement order or other enforceable document issued by the Agency in 
lieu of a post-closure permit.

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for part 265 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, 6935, and 6936.

    2. Section 265.110 is amended by adding a new paragraph (c) to read 
as follows:


Sec. 265.110  Applicability.

* * * * *
    (c) Section 265.121 applies to owners and operators of units that 
are subject to the requirements of Sec. 270.1(c)(7) of this chapter and 
do not obtain a post-closure permit for the unit.
    3. A new Sec. 265.121 is added to subpart G to read as follows:


Sec. 265.121  Additional post-closure requirements.

    (a) The Agency will impose the following additional requirements on 
owners or operators that do not obtain a post-closure permit but are 
subject to post-closure care requirements:
    (1) The requirements of Secs. 264.90-264.100 of this chapter;
    (2) Facility-wide corrective action, consistent with Sec. 264.101 
of this chapter;
    (3) The information submission requirements of Sec. 270.27 of this 
chapter;
    (b) The Regional Administrator must either:
    (1) Provide opportunity for public participation, at the point of 
remedy selection if corrective action is required at the facility, or 
upon making a determination that corrective action is not needed, that 
includes the following:
    (i) Publication of a notice of availability and a brief analysis of 
the proposed remedy, or notice of the determination that corrective 
action is not needed, in a major local newspaper of general 
circulation;
    (ii) A reasonable opportunity, not less than 30 calendar days, for 
public comment and, upon timely request, extend the public comment for 
a period by a minimum of 30 additional days;
    (iii) Opportunity for a public meeting to be held during the public 
comment period at a location convenient to the population center 
nearest the site at issue;
    (iv) A tape or written transcript of the public meeting available 
to the public;
    (v) A written summary of significant comments and information 
submitted during the public comment period and the EPA or State 
response to each issue available to the public;
    (vi) In the written summary required in paragraph (b)(1)(v) of this 
section, a discussion of significant changes in documentation 
supporting the final remedy selected or a request for additional 
comment on a revised remedy selection if, after publication of the 
proposed remedy and prior to the adoption of the selected remedy, the 
remedy is changed such that it significantly differs from the original 
proposal with respect to scope, performance, or cost as a result of new 
information; or
    (2) If the Regional Administrator determines that even a short 
delay in the implementation of the remedy would adversely affect human 
health or the environment, the Regional Administrator may comply with 
the requirements of paragraph (b)(1) of this section after initiation 
of the remedy. These requirements must be met before the Regional 
Administrator may consider the facility addressed under 
Sec. 270.1(c)(7) of this chapter.
    (c) If the activities required of the owner or operator by this 
section were initiated or conducted prior to [effective date of the 
final rule], the Regional Administrator may make a determination that 
the requirements of paragraphs (a) (1), (2), and (3) of this section 
have been met. Upon making that determination, the Regional 
Administrator must, before considering the facility to be fully 
addressed under Sec. 270.1(c)(7)(ii) of this chapter, provide the 
public notice of that determination in accordance with the procedures 
outlined in paragraph (b)(1) of this section.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

    1. The authority citation for part 270 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

    2. Section 270.1 is amended by revising paragraph (c) introductory 
text and adding a new paragraph (c)(7) to read as follows:


Sec. 270.1  Purpose and scope of these regulations.

* * * * *
    (c) Scope of the RCRA permit requirement. RCRA requires a permit 
for the ``treatment,'' ``storage,'' and ``disposal'' of any ``hazardous 
waste'' as identified or listed in part 261 of this chapter.
    The terms ``treatment,'' ``storage,'' ``disposal,'' and ``hazardous 
waste'' are defined in Sec. 270.2. Owners and operators of hazardous 
waste management units must have permits during the active life 
(including the closure period) of the unit. Owners and operators of 
surface impoundments, landfills, land treatment units, and waste pile 
units that received waste after July 26, 1982, or that certified 
closure (according to Sec. 265.115 of this chapter) after January 26, 
1983, must have post-closure permits, unless they demonstrate closure 
by removal or decontamination as provided under Sec. 270.1(c) (5) and 
(6), or they comply with the alternative post-closure requirements of 
Sec. 270.1(c)(7)(i)(B). If a post-closure permit is required, the 
permit must address applicable part 264 Groundwater Monitoring, 
Unsaturated Zone Monitoring, Corrective Action, and Post-closure Care 
Requirements of this chapter. The denial of a permit for the active 
life of a hazardous waste management facility or unit does not affect 
the requirement to obtain a post-closure permit under this section.
* * * * *
    (7) Post-closure care permits. (i) Unless they demonstrate closure 
by removal or decontamination as provided by Sec. 270.1 (c)(5) and 
(c)(6), owners or operators of surface impoundments, landfills, land 
treatment units, and waste pile units that received wastes after July 
26, 1982, or that certified closure (according to Sec. 265.115 of this 
chapter) after January 26, 1983, must comply with either of the 
following requirements, as determined by the Regional Administrator:
    (A) Obtain a post-closure permit in accordance with Sec. 270.1(c); 
or
    (B) Obtain an enforceable order or other enforceable document (or 
combination thereof), or be subject to a CERCLA response action or 
state response action imposing the conditions specified in Sec. 265.121 
of this chapter.
    (ii) The Regional Administrator must assure that post-closure needs 
at facilities subject to the requirements of this paragraph (c)(7) are 
addressed under either paragraph (c)(7)(i)(A) or (c)(7)(i)(B) of this 
section.
    4. Section 270.14 is amended by adding a sentence to the end of 
paragraph (a) to read as follows:


Sec. 270.14  Contents of part B: General requirements.

    (a) * * * For post-closure permits, only the information specified 
in Sec. 270.27 is required in Part B of the permit application.
* * * * *
    5. A new Sec. 270.27 is added to subpart B to read as follows:


Sec. 270.27  Part B information requirements for post-closure permits.

    For post-closure permits, the owner or operator is required to 
submit only the information specified in Secs. 270.14(b) (1), (4), (5), 
(6), (11), (13), (14), (16), (18) and (19), 270.14(c), and 270.14(d), 
unless the Regional Administrator determines that additional 
information from Secs. 270.14, 270.16, 270.17, 270.18, 270.20, or 
270.21 is necessary.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    1. The authority citation for part 271 continues to read as 
follows:

    Authority: 42 U.S.C 6905, 6912(a), and 6926.

    2. Section 271.16 is amended by adding a new paragraph (e) to read 
as follows:


Sec. 271.16  Requirements for enforcement authority.

* * * * *
    (e) Any State administering a program shall have available judicial 
or administrative action to respond to releases of hazardous waste or 
hazardous constituents at interim status facilities as provided by 
section 3008(h).

[FR Doc. 94-27300 Filed 11-7-94; 8:45 am]
BILLING CODE 6560-50-P