[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Rules and Regulations]
[Pages 63417-63434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29896]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 124 and 270
[FRL-5319-4 RIN 2050-AD97]
RCRA Expanded Public Participation
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing new
regulations under the Resource Conservation and Recovery Act (RCRA).
The new regulations will improve the process for permitting facilities
that store, treat, or dispose of hazardous wastes by providing earlier
opportunities for public involvement in the process and expanding
public access to information throughout the permitting process and the
operational lives of facilities.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC) located at 1235 Jefferson Davis Highway,
Arlington VA. The Docket Identification Number is F-95-PPCF-FFFFF (the
docket number for the proposed rule is F-94-PPCP-FFFFF). The RIC is
open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal
holidays. To review docket materials, the public must make an
appointment by calling (703) 603-9230. The public may copy a maximum of
100 pages from any regulatory docket at no charge. Additional copies
cost $.15/page. The index and some supporting materials are available
electronically. See the Supplementary Information section for
information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing
impaired). In the Washington metropolitan area, call 703-412-9810 or
TDD 703-412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Patricia Buzzell, Office of Solid Waste (5303W),
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460, (703) 308-8632, email address [email protected].
SUPPLEMENTARY INFORMATION:
Internet Access
An abstract and fact sheet on this rule are available on the
Internet. Follow these instructions to access the information
electronically:
Gopher: gopher.epa.gov
WWW: http://www.epa.gov
[[Page 63418]]
Dial-up: (919) 558-0335.
From the main EPA Gopher menu, select: EPA Offices and Regions/
Office of Solid Waste and Emergency Response (OSWER)/Office of Solid
Waste (RCRA)/Hazardous Waste/Permits and Permitting.
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet address
Files are located in /pub/gopher/OSWRCRA
Preamble Outline
I. Statutory Authority
II. Background
A. Overview of the RCRA Permitting Program
B. Shortcomings of the Current Program
C. How Today's Rule will Improve the Program
D. The Rule: From Proposal to Final
III. Applicability of Today's Rule
IV. Review of Public Comments, Responses, and Changes from the
Proposed Rule
A. Equitable Public Participation and Environmental Justice
B. Pre-Application Meeting and Notice
C. Notice at Application Submittal
D. Information Repository
E. Trial Burn Notices
V. State Authority
A. Applicability of Today's Rule in Authorized States
B. Schedules and Requirements for Authorization
VI. Permits Improvement Team
VII. Regulatory Assessment Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Enhancing the Intergovernmental Partnership
I. Statutory Authority
EPA is issuing these regulations under the authority of sections
2002, 3004, 3005 and 7004(b) of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act (RCRA), as
amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA).
II. Background
A. Overview of the RCRA Permitting Program
In RCRA, Congress gave EPA the authority to write regulations, or
``rules,'' to govern, among other things, the permitting of hazardous
waste management facilities. EPA is issuing today's regulations to
enhance public participation in the hazardous waste facility permitting
process.
Under RCRA, EPA is responsible for regulating the ``cradle to
grave'' management of hazardous wastes. Hazardous wastes come in many
shapes and forms. They may be liquids, solids, or sludges. They may be
the by-products of manufacturing processes, or simply commercial
products--such as household cleaning fluids or battery acid--that have
been discarded. EPA determines if wastes are hazardous by judging,
among other things, the characteristics of the wastes and their
potential to cause harm to human health and the environment when not
properly managed. RCRA regulations identify hazardous wastes based on
their characteristics and also provide a list of specific hazardous
wastes (refer to 40 CFR 261 for more information). To manage hazardous
waste in an environmentally sound manner, companies often need to store
it, treat it (for instance, by burning it or mixing it with stabilizing
chemicals), and/or dispose of it into specially built landfills. In
most cases, a business that stores, treats, or disposes of hazardous
waste, needs a permit under RCRA.
Section 3004 of RCRA requires owners and operators of facilities
that treat, store, or dispose of hazardous wastes to comply with
standards that are ``necessary to protect human health and the
environment.'' EPA or EPA-authorized States implement these standards
by issuing RCRA permits to facilities that treat, store, or dispose of
hazardous wastes. In some circumstances, existing facilities may
continue to operate without a full RCRA permit under the ``interim
status'' provision of RCRA Sec. 3005(e). In RCRA, Congress gave EPA
broad authority to provide for public participation in the RCRA
permitting process. Section 7004(b) of RCRA requires EPA to provide
for, encourage, and assist public participation in the development,
revision, implementation, and enforcement of any regulation, guideline,
information, or program under the Act.
Under RCRA section 3006, States may seek EPA authorization to
administer and enforce the RCRA program in lieu of EPA. Once a State
adopts today's rule and receives EPA authorization for the rule, the
State will become the primary implementor of the rule (see Section V.
below for more information). In today's preamble, we refer to the
primary implementing agency for this rule as ``the permitting agency''
or ``the agency.'' ``The Director'' refers to the head of the primary
implementing agency. We refer to EPA as ``EPA'' or ``the Agency.''
B. Shortcomings of the Current Program
Many stakeholders have expressed the concern that the current RCRA
permitting process does not involve the public at an early stage in the
process, does not provide adequate information, and does not provide an
equitable opportunity to participate. EPA is responding to these
concerns in today's rule. In fact, EPA has emphasized the need for more
public involvement in all its activities. The Agency's Hazardous Waste
Minimization and Combustion Strategy calls for the development of
mechanisms to ensure that local communities are fully informed about
the RCRA decision-making process and have an opportunity to participate
in that process. Recommendations from the National Performance Review,
the RCRA Implementation Study, and the Permits Improvement Team have
all emphasized the need for expanded public participation in
permitting. A number of sources outside the Agency (e.g., environmental
groups, and business trade associations) have also supported enhanced
public participation.
C. How Today's Rule Will Improve the Program
Today's final rule will require a prospective applicant to hold an
informal public meeting before submitting an application for a RCRA
permit. Also, the regulations will require the applicant to advertise
the meeting in the newspaper, through a broadcast announcement (e.g.,
by radio or television), and on a sign posted at or near the property.
This meeting will provide a chance for the community to interact with
and provide input to a facility owner or operator before the owner or
operator submits a permit application. The rule also directs the
permitting agency to mail a notice to interested people when the
facility submits its application. The notice will tell members of the
public where they can examine the application at the same time that the
agency reviews it.
In some cases, RCRA permits can be the subject of intense debate.
When permits raise a lot of public interest, the public's demand for
information increases. Today's rule will give the permitting agency the
authority to require a facility owner or operator to set up an
information repository at any time during the permitting process or the
permit life. We anticipate that agencies will use this authority only
in those permitting cases that raise a lot of public interest, or in
other cases where the public needs more access to information. The
repository will hold all information and documents that the permitting
agency decides are necessary to fulfill the purposes for which the
repository was established. Finally, today's rule will require
combustion facilities (i.e., incinerators and other
[[Page 63419]]
facilities that burn hazardous wastes) to notify the public before they
hold a trial burn.1
\1\ The owner or operator of a combustion unit must conduct a
trial burn as part of the permitting process for a combustion unit.
The trial burn is a demonstration period held by the owner or
operator of a combustion unit to test the unit's ability to meet the
regulatory performance standards for treatment of hazardous wastes.
The permitting agency uses the results of the trial burn to
establish operating conditions in the RCRA permit.
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EPA anticipates that these regulations will provide an opportunity
for the public to participate earlier in the permitting process. In
addition, the rule will give the public increased access to facility
and permitting information. Finally, we hope that the rule will help
people become involved in the permitting process and increase
understanding of hazardous waste management facilities.
D. The Rule: From Proposal to Final
EPA proposed the RCRA Expanded Public Participation and Revisions
to Combustion Permitting Procedures rule on June 2, 1994 (59 FR 28680-
28711). The proposed rule contained changes and additions to the RCRA
public participation regulations (40 CFR 124) and RCRA Subtitle C
permitting regulations (40 CFR 270).
Today, EPA is finalizing the public participation portion of the
proposal (with a number of changes in response to comments received by
the Agency during the comment period for the proposed rule--see Section
IV below), which includes changes to both Parts 124 and 270. The Agency
is not finalizing the proposed revisions to combustion permitting
procedures at this time.
EPA decided to separate the two portions for a number of reasons.
First, the public comments on the proposed rule were more favorable
towards the public participation changes. On the other hand, the
commenters were less satisfied with the proposed combustion permitting
changes, particularly those changes regarding the trial burn. The
Agency is currently considering and addressing the commenters' concerns
on the proposed combustion permitting changes. In the meantime, EPA
sees no reason to delay the important changes to the public
participation provisions.
Moreover, EPA is committed to issuing comprehensive emissions
standards for combustion facilities under RCRA and the Clean Air Act.
The Agency anticipates issuing a proposed rule on these standards in
the fall of 1995. Due to potential overlap between the procedures in
the emissions standards proposed rule and the combustion permitting
procedures in the June 2, 1994 proposed rule, EPA has decided to take
more time to consider the permitting provisions in the June 2 proposal.
We intend to find the best possible solution to coordinate these two
rulemakings.
Finally, EPA realized that the proposed rule may have caused some
confusion. A few commenters pointed to the different character of the
public participation changes and the combustion permitting changes. The
commenters expressed concern over combining these two dissimilar
portions in the same rule. Moreover, a number of commenters seemed to
be confused over the applicability of the rule. In particular, since
the combustion permitting provisions would apply only to combustion
facilities, and the proposed rule was an outgrowth of the Combustion
Strategy, a number of commenters seemed confused over the applicability
of the public participation procedures to all RCRA TSDFs.
III. Applicability of Today's Rule
Today's rule promulgates changes and additions to Parts 124 and 270
in the Code of Federal Regulations (CFR). The Part 124 changes, which
include new and earlier public involvement steps and procedures, apply
to every facility that has or is seeking a RCRA subtitle C permit to
treat, store, or dispose of hazardous waste, unless exempted under a
specific section. The changes to Part 270, in Secs. 270.2, 270.14, and
270.30, also apply to every facility. The changes to Secs. 270.62 and
270.66, however, apply only to combustion facilities.
The rule does not require RCRA facilities that are already involved
in the permitting process to step back in the process to comply with
the new requirements. Instead, the rule will apply to a facility
according to what stage of the process the facility is in when the rule
becomes effective. For instance, if a facility has submitted its part B
permit application before the effective date of this rule, then the
rule does not require the facility to hold a pre-application meeting
under Sec. 124.31. This facility would, however, have to comply with
all requirements relating to steps in the permitting process that it
has not yet undertaken.
IV. Review of Public Comments, Responses, and Changes From the
Proposed Rule
The following (IV. A through E) is a section-by-section summary of
the most significant comments on the proposed rule, EPA's responses to
those comments, and an explanation of any changes from the proposed
rule to the final. All of the public comments and EPA's comprehensive
response to comments document on this rulemaking are available through
the RCRA Docket (see the paragraph entitled ADDRESSES, above).
The most significant changes in the final rule involve our decision
to use guidance, instead of rule language, to encourage facilities to
strive toward some of the important goals in the proposed rule. EPA
recognized in the proposal that some of the proposed regulatory
provisions were very general and requested comment on how they could be
effectively implemented (see, e.g., 59 FR 28702). In response,
commenters argued that several portions of the proposed regulatory
language were vague and would spawn disputes, controversy, and
litigation. The commenters suggested that EPA relocate some of the
proposed regulatory text to the preamble as guidance.
EPA found these comments persuasive in certain instances. The
development of today's rule has, from the start, involved a balance
between promoting broader, more equitable public participation while
maintaining the flexibility for individual permit writers, facilities,
and communities to adopt the most appropriate, site-specific approach
consistent with the principles of fairness and openness. Some of the
principles underlying the proposed and final rules are inherently
difficult to prescribe through regulation. For example, it is possible
to require an applicant to hold a meeting; it is much more difficult to
require through regulation that the meeting be conducted in an
equitable fashion, since the steps required to accomplish this
objective will necessarily vary from situation to situation. Although
the final rule retains most of the proposed regulatory changes, EPA
concluded that, in certain instances, the need to maintain flexibility
is inconsistent with a national regulatory approach. In these
instances, as explained more fully in the sections below, EPA has
decided to proceed by using guidance, rather than regulations, to
encourage facilities to adopt and strive towards a number of the goals
in the proposed rule. The Agency will provide some guidance in today's
preamble; however, we also anticipate releasing a guidance document, in
the near future, to help permitting agencies and facilities to
implement today's rule.
The Agency believes that facility owners, State environmental
agencies, tribes, and private citizens are often in the best position
to determine what modes of communication and
[[Page 63420]]
participation will work best in their communities. The final rule
provides the flexibility necessary to find the best local solutions to
ensure equal opportunities for all members of the community.
A. Equitable Public Participation and Environmental Justice
Proposed Sec. 124.30 and Preamble. In section 124.30 of the
proposed rule, entitled ``Equitable Public Participation,'' EPA
proposed to require facilities and permitting agencies to ``make all
reasonable efforts'' to ensure equal opportunity for the public to
participate in the permitting process. The proposed rule language
defined ``reasonable efforts'' as including the use of multilingual
fact sheets and interpreters at meetings and hearings, when the
``affected community contains a significant non-English speaking
population.''
In the preamble to the proposed rule (see 59 FR 28686), EPA
solicited comments on several key environmental justice issues for the
RCRA permitting program: (1) The siting of hazardous waste facilities;
(2) the manner in which EPA should respond when confronted with a
challenge to a RCRA permit based on environmental justice issues; (3)
environmental justice concerns in corrective action cleanups; and (4)
how EPA programs can take account of ``cumulative risk'' and
``cumulative effects'' associated with the siting of a hazardous waste
management facility. The Agency noted that, while it did not expect to
address these issues in this rulemaking, public input on these topics
would be helpful.
Synopsis of Major Comments on Sec. 124.30 and Preamble. The major
comments on this section of the proposal involved definitions.
Commenters asked the Agency to define many of the terms in Sec. 124.30,
including ``all reasonable efforts,'' ``significant,'' ``non-English
speaking'' and ``affected community.'' The commenters were concerned
about the disputes, controversy, and litigation that could arise from
these undefined terms. Other commenters supported the concept of
equitable public participation, particularly as an approach to
addressing any environmental justice concerns that might be present.
The Agency received a number of comments supporting expanded public
participation as an effective approach to addressing environmental
justice issues. Commenters stated that additional opportunities for
public involvement and access to information will increase the
probability that all communities will have input into the permitting
process, and should strengthen involvement of those who have felt
disenfranchised from the process. Some commenters urged EPA to avoid a
one-size-fits-all approach and allow flexibility for State, local, and
facility leadership to make suitable determinations about how to
address environmental justice issues.
EPA's Response to Commenters. EPA is committed to the principles of
equitable public participation and equal treatment of all people under
our environmental statutes and regulations. The regulatory changes we
are making today will enhance the RCRA public participation process for
all citizens. We urge all permitting agencies, permit holders, and
applicants, to make all reasonable efforts to provide equal access to
information and participation in the RCRA permitting process.
While we continue to promote equitable public participation, we
have decided to address the objectives of Sec. 124.30 in guidance
rather than through regulatory language. In response to the concerns
expressed by many commenters, we are not including Sec. 124.30 in the
final rule. The Agency agrees with the commenters who expressed concern
that the language in the proposal was ambiguous, making compliance with
the requirements difficult to evaluate and enforce, and could engender
disputes and litigation without advancing the objectives of today's
rulemaking.
As we noted earlier, EPA continues to support the principles
embodied in Sec. 124.30 of the proposed rule. We encourage permitting
agencies and facilities to follow the spirit of that section and use
all reasonable means to ensure that all segments of the population have
an equal opportunity to participate in the permitting process and have
equal access to information in the process. These means may include,
but are not limited to, multilingual notices and fact sheets, as well
as translators, in areas where the affected community contains
significant numbers of people who do not speak English as a first
language.
In lieu of a regulation, the Agency will take additional steps to
encourage equitable public participation in RCRA permitting. In the
near future, EPA will issue further guidance to assist facilities,
permitting agencies, and communities in implementing the expanded
public participation requirements in today's rule. In this guidance
document, EPA plans to discuss additional options for increasing public
participation by going beyond the regulatory requirements. The guidance
document will address, in more detail, the approaches to equitable
public participation that we are emphasizing in this preamble.
EPA believes that this rule presents significant opportunities to
be responsive to environmental justice concerns in the context of
public involvement. Prior to the promulgation of today's rule, the
permitting process did not formally involve the public until the
permitting agency issued a draft permit or an intent to deny a permit.
In many cases, communities around RCRA facilities felt that the draft
permit stage was too late to enter the process, that the facility and
the permitting agency had already made all the major decisions by that
point, and any comments the public offered would have no real effect.
Insufficient opportunity for communities to become involved in
environmental decision-making is a contributing factor to environmental
justice concerns. The provisions in today's rule will address many of
these concerns by expanding public participation and access to
permitting information.
EPA continues to see public participation as an important activity
that empowers communities to become actively involved in local waste
management activities. The Agency believes that this rulemaking is an
important step in empowering all communities, including communities of
color and low-income communities.
EPA agrees with the commenters who stated that the expanded public
participation requirements in today's rule will be useful tools for
addressing environmental justice concerns. Today's rule provides all
communities with a greater voice in decision making and a stronger
opportunity to influence permit decisions early in the process. EPA
also agrees with the commenters who stated that environmental justice
issues should be addressed at a local level and on a site-specific
basis. Local agencies and leaders have an important role to play in
addressing environmental justice concerns. States and EPA Regional
offices are the principal implementors of the RCRA permitting program,
and have been directed to develop mechanisms that respond effectively
to environmental justice concerns during permitting activities (RCRA
Implementation Plan (RIP), 1995). In the RIP, EPA asked RCRA
implementing agencies to continue their commitment to seek
opportunities to address patterns of disproportionately high and
adverse environmental effects and human health impacts on low-income
communities and communities of color that may result from hazardous
waste management activities. The States and Regions have been involved
in
[[Page 63421]]
environmental justice pilot projects, which have included, among other
activities, increasing public involvement by tailoring outreach
activities to affected communities.
EPA and its Office of Solid Waste and Emergency Response (OSWER)
also remain committed to addressing environmental justice concerns
beyond those related to public participation. The preamble to the
proposed rule (see 59 FR 28686) discussed OSWER's environmental justice
efforts. Elliott P. Laws, OSWER Assistant Administrator, formed the
OSWER Environmental Justice Task Force (``EJ Task Force'') to begin
addressing many of these issues. EPA released the ``OSWER Environmental
Justice Task Force Draft Final Report'' (OSWER 9200.3-16 Draft) and its
separate executive summary (OSWER 9200.3-16-1 Draft) on April 25, 1994.
Since that time, the EPA Regional offices and the OSWER program offices
have been implementing the recommendations outlined in the EJ Task
Force's draft final report. The report was distributed to the National
Environmental Justice Advisory Council (NEJAC) for comment. In June
1995, after careful consideration of all comments, EPA released the
``OSWER Environmental Justice Action Agenda.'' The Action Agenda
provides a concise summary of OSWER's current strategy and describes
the implementation process for ensuring that major issues, identified
by the NEJAC and others, continue to be recognized and addressed. A
full report on implementation progress and accomplishments, entitled
``Waste Programs Environmental Justice Accomplishments Report,'' was
released concurrently with the Action Agenda. All of these documents
are ``living documents'' and, as such, are a part of the process of
continuously addressing environmental justice concerns. This process
represents OSWER's commitment to adhere to the principles of Executive
Order 12898, in which the President directed federal agencies to
identify and address the environmental concerns and issues of minority
and low-income communities. Furthermore, in an effort to make
environmental justice an integral part of the way we do business, the
Agency issued a policy directive, in September 1994 (OSWER 9200.3-17),
that requires all future OSWER policy and guidance documents to
consider environmental justice issues.
During the public comment period on the proposed rule, EPA received
a large number of comments on preliminary recommendations that the EJ
Task Force had developed regarding several other (i.e., beyond today's
public involvement rule) key environmental justice issues facing the
RCRA permitting program. The comments ranged from general observations
to more detailed suggestions, particularly with regard to siting
criteria, cumulative risk assessments, and the need to base decisions
on sound science.
We are disseminating the comments that deal with these
environmental justice issues in the following manner: (1) We are
forwarding the comments on RCRA facility siting to the Office of Solid
Waste's (OSW) RCRA Siting Workgroup and to the NEJAC's Waste and
Facility Siting Subcommittee's Siting Workgroup; (2) we are forwarding
the comments on issues affecting RCRA corrective action to the RCRA
Subpart S Workgroup, which is developing a rule to establish corrective
action requirements for releases of hazardous wastes or hazardous waste
constituents to any environmental medium, including ground water, from
any solid waste management unit, including regulated units; (3) we are
sharing the comments on cumulative risk, multiple exposure, and
synergistic effects with the EPA Science Policy Council, the group
actively working to address these issues; and (4) the comments on how
EPA should respond to RCRA permit challenges based on environmental
justice issues are being addressed by OSWER with assistance from the
Office of General Counsel, Office of Civil Rights, and any other
appropriate party.
EPA also received several comments that did not approve of the
Agency's decision to discuss and solicit comments on the more technical
environmental justice issues in the context of a RCRA public
involvement rule. Many commenters argued that these issues are broad,
far-reaching, and impact a much larger constituency than the intended
audience for the public participation rulemaking.
EPA acknowledges the breadth of these issues. The preamble to the
proposed rule has not been the only forum for discussing these issues.
As we discussed above, EPA has received and considered comments from
additional stakeholders, including States, the NEJAC, environmental
groups, environmental justice groups, and regulated industries in
developing the ``OSWER Environmental Justice Action Agenda.''
Furthermore, since the Action Agenda is a living document, OSWER will
continue to seek external comments, suggestions and experiences as we
strive to ensure environmental justice in all our programs.
B. Pre-Application Meeting and Notice
1. Applicability (Proposed Sec. 124.31(d)). EPA proposed to exempt
permit modifications, permit renewals, and permit applications
submitted for the sole purpose of conducting post-closure activities
from the requirements in Sec. 124.31.
Synopsis of Major Comments on Sec. 124.31(d). A number of
commenters stated that the rule should require facilities seeking
permit renewals to hold a pre-application meeting. Other commenters
recommended that the pre-application meeting requirements apply to
facilities making significant changes during the renewal process, or
that the permitting agency should have discretion in applying the
requirement to renewals. Opposing these commenters, several commenters
supported the requirement as proposed and urged EPA to keep the
exemption for renewals since many renewal applications simply continue
``business as usual.'' In these cases, said the commenters, the
community will have adequate opportunity to participate in the renewal
process; for instance, at the draft permit stage.
EPA's Response to Commenters. EPA has decided to expand Sec. 124.31
to cover facilities that make a significant change at permit renewal.
For the purposes of Sec. 124.31, a ``significant'' change in facility
operations is a change that is equivalent to a class 3 modification in
Sec. 270.42, e.g., operating conditions change significantly.
The Agency believes that this approach is a common sense compromise
that will ensure adequate public participation in the necessary cases.
At the same time, the regulated community will have the assurance that
facilities undergoing minor changes will be spared unnecessary
administrative burden.
EPA will continue the exemption for facilities that submit permits
for the purpose of conducting post-closure activities. As we stated in
the proposed rule, the goals of the pre-application meeting (e.g.,
establishing an early dialogue between the facility and the public) do
not apply at most post-closure facilities. EPA's experience is that the
public has usually been concerned with permit decisions relating to
active hazardous waste management operations, as opposed to decisions
relating to closed facilities. In addition, most post-closure
activities are mandatory (e.g., maintenance of a closed unit) and
involve fewer discretionary judgments than are involved in issuing an
operating permit. The existing public participation
[[Page 63422]]
requirements in Part 124 (e.g., the notice and comment period at the
draft permit stage) will continue to apply. Since closure and post-
closure plans are included in the permit application, and become part
of the permit, they will be available for public review and comment
along with the application and the draft permit. Any changes to these
plans after permit issuance will follow the modification procedures in
Sec. 270.42, which also have public notice requirements. We think that
the existing process provides sufficient public involvement in post-
closure permitting.
While we are retaining the exemption for post-closure permit
applications in the final rule, we have tried to clarify our intent in
the applicability requirements. Specifically, we have clarified that
the exemption applies to facilities seeking permits solely to conduct
post-closure activities, as well as to facilities seeking permits to
conduct post-closure activities along with corrective action. Our
intent in the proposal, which remains our intent in the final rule, was
to distinguish post-closure facilities from facilities with operating
units. However, someone could have read the proposed rule as not
providing an exemption for post-closure facilities with remaining
corrective action obligations (which post-closure facilities often
have). Because the rationale for exempting post-closure activities
applies whether or not the facility is also performing corrective
action, EPA has added language to Secs. 124.31(a) and 124.33(a) to
clarify our intent.
2. Meeting Requirements (Proposed Sec. 124.31(a)-(b)). In these two
paragraphs, EPA proposed to require the permit applicant to hold at
least one meeting with the public before submitting the part B permit
application. The proposed rule listed topics that the applicant must
cover and required the applicant to submit a record of the meeting and
a list of attendees.
Synopsis of the Major Comments on Sec. 124.31(a)-(b). The
commenters generally expressed support for the pre-application meeting.
Few commenters opposed EPA's proposal to have a meeting early in the
process, though many suggested changes to the proposed rule itself.
Several commenters thought that the pre-application stage is too
early for a public meeting. Some commenters stated that neither the
applicant nor the agency could provide the public with accurate and
complete information about the facility at such an early stage.
Moreover, they noted, the application could change dramatically between
the pre-application meeting and application submittal.
Some commenters asked EPA to clarify the record-keeping
requirements in the final rule. A number of commenters opposed the
requirement, with some commenters opposing the term ``record'' because
it would qualify the meeting summary as an official document and make
it subject to litigation. Other commenters opposed the rule's
requirement that the applicant submit the record as a component of the
part B permit application.
Concerning whether the permitting agency should conduct, or even
attend, the meeting, the comments varied. Some commenters supported
agency attendance because the agency would provide the meeting with
credibility and a source of accurate information. Other commenters
expressed concern that agency attendance would interfere with the
``open and informal dialogue'' between the facility owner and the
public.
Finally, many commenters supported alternatives to the pre-
application meeting. Numerous commenters backed the idea of combining
pre-application meetings with the siting meetings that many States
already require. A few commenters noted that EPA should allow such a
combination only where the State meeting fulfills all the requirements
of the pre-application meeting. Another group of commenters supported
other options, such as using an Intent-to-Submit form in place of the
meeting or holding the meeting after application submittal.
EPA's Response to Commenters. Section 124.31(b) of the final rule
requires the facility to hold a meeting prior to submitting the part B
permit application; however, the rule language no longer lists specific
topics that the facility must cover in the meeting, requiring instead
that the facility solicit questions from the community and inform the
community about proposed hazardous waste management activities. After
the meeting, the facility must prepare a ``summary'' of the meeting and
submit it as a component of the part B permit application. The agency
should use its judgement in deciding whether to attend the meeting.
EPA disagrees with the commenters who stated that the pre-
application stage is too early to hold a meeting with the public. The
most important goal we hope to achieve from the pre-application meeting
requirement is the opening of a dialogue between the permit applicant
and the community. We believe that the applicant should open this
dialogue at the beginning of the process. The meeting will give the
public direct input to facility owners or operators; at the same time,
facility owners or operators can gain an understanding of public
expectations and attempt to address public concerns in their permit
applications (see the discussion two paragraphs below). We hope that
this requirement will help address the public concern that public
involvement occurs too late in the RCRA permitting process. Although
the Agency agrees with the commenters that the early timing of the
meeting may prevent the agency and the applicant from having complete
information, we believe that the benefits of early public involvement
and early access to information outweigh the drawbacks of incomplete
information.
In any case, EPA does not intend for the pre-application meeting to
be a forum for examining technical aspects of the permit application in
extensive detail; such technical examination is more suited to the
draft permit stage. Instead, the pre-application meeting should provide
an open, flexible, and informal occasion for the applicant and the
public to discuss various aspects of a hazardous waste management
facility's operations. We anticipate that the applicant and the public
will share ideas, educate each other, and start building the framework
for a solid working relationship. Of course, the public retains the
opportunity to submit comments throughout the process.
EPA has also revised the pre-application meeting requirements in
the final rule to make them more straightforward and more flexible than
the requirements in the proposed rule. The Agency is trying to provide
flexibility in the way that permit applicants hold pre-application
meetings. To this end, we have removed the list of required discussion
topics, proposed in Sec. 124.31(a). In addition, we have removed from
the rule provisions that the commenters considered vague, including the
requirement that the applicant describe the facility ``in sufficient
detail to allow the community to understand the nature of the
operations to be conducted at the facility and the implications for
human health and the environment.'' We agree with commenters that such
a requirement would be difficult to implement and enforce.
While we have removed such requirements from the final rule, we
expect permit applicants to follow the spirit of the proposed
requirements. For instance, we encourage permit applicants to address,
at the level of detail that is practical at the time of the meeting,
the topics we identified in Sec. 124.31(a) of the proposed rule: the
[[Page 63423]]
type of facility, the location, the general processes involved, the
types of wastes generated and managed, and implementation of waste
minimization and pollution control measures. The discussions may also
include such topics as the transportation routes to be used by waste
transporters and planned procedures and equipment for preventing or
responding to accidents or releases. These are examples of the types of
issues that might be of particular concern to a community and about
which the community might be able to provide useful suggestions to the
applicant. The applicant might then be able to incorporate that
information into the proposed facility design or operations, either as
part of the initial application, if time allows, or at subsequent
stages in the process (e.g., in submitting revisions to its
application, or in responding to a Notice of Deficiency issued by the
permitting agency). By learning about and addressing public concerns up
front, the applicant may be able to prevent misunderstanding from
escalating into community opposition.
Moreover, the applicant should make a good faith effort to provide
the public with sufficient information about the proposed facility
operations. While we do not expect applicants to go into extensive
detail at the pre-application stage, they should provide the public
with enough information to understand the facility operations and the
potential impacts on human health and the environment. In addition, as
we emphasized in the preamble to the proposed rule (59 FR 28691), the
permit applicant should encourage full and equitable public
participation by selecting a meeting date, time, and place that are
convenient to the public.
The final rule requires the applicant to submit a ``summary'' of
the pre-application meeting as a component of the part B permit
application. EPA shares the concern of several commenters that ``the
record'' could be subject to litigation, for instance, on the basis of
inaccuracy. EPA's intent in this rule is to foster communication and
mutual understanding, not to create divisiveness and additional points
of dispute in the permitting process. Thus, we have deleted the word
``record'' and replaced it with ``summary'' in the final rule. We do
not intend for the meeting summary to be a verbatim account of the
meeting; the Agency is aware of how difficult it is to keep a word-for-
word record of a public meeting. Applicants should make a good faith
effort to provide an accurate summary of the meeting and a list of all
attendees who wish to identify themselves (see Sec. 124.31(b) of the
final rule).
In accordance with our intent in the proposed rule, we are
requiring the permit applicant, in the final rule, to submit the
summary as a component of the part B permit application. Since the part
B application is available for review by the public, requiring the
meeting summary to be part of the application assures that people who
are unable to attend the meeting will have an opportunity to learn what
transpired at the meeting. In the proposed rule, however, the Agency
neglected to add the summary to the list of part B requirements in
Sec. 270.14(b). We have added this reference in the final rule.
The pre-application meeting summary will be useful to the
permitting agency. The summary will alert the agency to important
community concerns, areas of potential conflict, and other issues that
may be relevant to agency permitting decisions. In addition, the
meeting attendee list will help generate a mailing list of interested
citizens. (The permitting agency is responsible for developing a
representative mailing list for public notices under Sec. 124.10). The
list of attendees from the pre-application meeting will assist the
permitting agency in identifying people or organizations to include on
the mailing list so that it represents everyone who demonstrates an
interest in the facility and the permit process. It has been EPA's
experience that mailing lists often are not fully developed until the
permitting agency issues the draft permit for public comment. Since EPA
seeks to increase public participation earlier in the process,
generation of a mailing list should precede such activities. A mailing
list developed pursuant to Sec. 124.10 could also be available to
enhance public participation in other Agency or community-based
initiatives.
The actual timing of the meeting is flexible in the final rule. The
Agency believes that flexibility is necessary because the optimal
timing for the meeting will vary depending on a number of factors,
including the nature of the facility and the public's familiarity with
the proposed project and its owner/operator.
In today's rule, we require the facility to conduct the pre-
application meeting. We believe that the applicant should conduct the
meeting in an effort to establish a dialogue with the community. We
encourage permitting agencies to attend pre-application meetings, in
appropriate circumstances, but the agency should not run the pre-
application meeting. Although agency attendance may, at times, be
useful in gaining a better understanding of public perceptions and
issues for a particular facility, it may undercut some of the main
purposes of the meeting, such as opening a dialogue between the
facility and the community, and clarifying for the public the role of
the applicant in the permitting process.
In the proposed rule, EPA solicited comments (see 59 FR 28702) on
the option of allowing a State siting meeting to substitute for the
pre-application meeting. EPA is not including this option in the final
rule, because doing so would defeat some of the purposes of the pre-
application meeting (e.g., establishing an open dialogue on a range of
RCRA permitting issues that may differ from siting issues). Some
commenters suggested that siting meetings and pre-application meetings
be combined. There is nothing in today's rule to preclude States and
permit applicants from working together to combine these meetings. EPA
encourages them to do so, provided that the combined meetings fulfill
the pre-application meeting requirements in today's rule.
3. Notice of the Pre-Application Meeting (Sec. 124.31(c)).
Paragraph (c) of proposed Sec. 124.31 required the facility to give
notice of the pre-application meeting at least 30 days prior to the
meeting ``in a manner that is likely to reach all affected members of
the community.'' EPA proposed to require the facility to give the
notice in three ways: as a display advertisement in a newspaper of
general circulation; as a clearly-marked sign on the facility property;
and as a radio broadcast. Each of these notices had to include the
date, time and location of the meeting, a brief description of the
purpose, a brief description of the facility, and a statement asking
people who need special access to notify the applicant in advance.
Synopsis of the Major Comments on Sec. 124.31(c). Most commenters
expressed general support for the expanded notice requirements, but
questioned specific aspects of the proposal. The commenters also asked
for flexibility in choosing the types of notice that would best reach
different communities.
The newspaper advertisement requirement brought up the most
controversy. Some commenters challenged as vague the provision that the
facility publish the notice in the local paper and also in papers of
adjacent counties.
A number of commenters pointed out problems with requiring a large
sign at the facility. Some commenters mentioned that nobody would pass
near enough to some rural facilities to see the
[[Page 63424]]
sign. Other commenters reminded EPA that some communities have
ordinances that ban large signs. The commenters urged that the rule be
more flexible and allow applicants to place signs at nearby
intersections or on town bulletin boards. Other commenters recommended
that the agency approve the sign or grant waivers where communities ban
signs.
The commenters did not express many objections to the radio
requirement, but asked for overall flexibility in the notice
requirements.
EPA's Response to Commenters. In response to these comments, EPA
has enhanced the flexibility of the final rule. Instead of requiring
the applicant to provide three specific types of public notice, as in
the proposed rule, the final rule specifies only one type of notice
(i.e., the display advertisement). The other notices must fall within
broader categories--one must be a broadcast announcement and one must
be a sign--but are otherwise flexible.
We have decided to retain the display ad requirement because of the
expanded public notice it will provide; at the same time, we have
increased the flexibility of the requirement by moving some of the
proposed rule's more general provisions out of rule language and into
guidance, both in today's preamble (see below) and in the future
guidance document for implementing this rule.
Section 124.31(d) requires the applicant to keep documentation of
the public notice and provide the documentation to the permitting
agency upon request. The reason for this requirement is to provide
proof of the public notice that can be verified by the permitting
agency. We do not want this requirement to be burdensome for the
facility. Instead, we encourage the facility to keep a simple file for
the notice requirements. Items for inclusion in the file may include:
copies of the newspaper announcement, a receipt or affidavit of the
radio announcement, a photograph of the sign, or a receipt of purchase
for the sign.
The Agency expects that applicants and permit holders will make a
good faith effort to announce the pre-application meeting to as many
members of the affected community as possible.
The newspaper advertisement. The applicant must print a
display advertisement in a newspaper of general circulation in the
community. The display ad should be located at a spot in the paper
calculated to give effective notice to the general public. The ad
should be large enough to be seen easily by the reader. In addition to
the display ad, we also encourage facilities to place advertisements in
free newspapers and community bulletins.
In some cases, potential interest in the facility may extend beyond
the host community. Under these circumstances, we encourage the
applicant either to publish the display ad so that it reaches
neighboring communities or to place additional ads in the newspapers of
those communities.
The visible and accessible sign. The final rule requires
the applicant to post the notice on a clearly-marked sign at or near
the facility. If the applicant places the sign on the facility
property, then the sign must be large enough to be readable from the
nearest point where the public would pass, on foot or by vehicle, by
the site. The Agency anticipates that the signs will be similar in size
to zoning notice signs required by local zoning boards. If a sign on
the facility grounds is not practical or useful--for instance, if the
facility is in a remote area--then the applicant should choose a
suitable alternative, such as placing the sign at a nearby point of
significant vehicular or pedestrian traffic. In the case that local
zoning restrictions prohibit the use of such a sign in the immediate
vicinity of the facility, the facility should pursue other available
options, such as placing notices on a community bulletin board or a
sign at the town hall or community center. EPA intends the requirement
that the sign be posted ``at or near'' the facility to be interpreted
flexibly, in view of local circumstances and our intent to inform the
public about the meeting. In addition to the requirements of
Sec. 124.31, we encourage the applicant to place additional signs in
nearby commercial, residential, or downtown areas.
The broadcast media announcement. The final rule requires
the applicant to broadcast the notice at least once on at least one
local radio or television station. EPA expects that the applicant will
broadcast the notice at a time and on a station that will effectively
disseminate the notice. The applicant may employ another medium with
prior approval of the Director. We encourage the applicant to consult
the preamble to the proposed rule (59 FR 28690) for recommendations on
choosing the best circumstances for the broadcast announcement.
EPA will soon issue a guidance document to assist facilities and
agencies in implementing the expanded public participation
requirements. The guidance document will include more detailed
discussions on the approaches to broad and equitable public notice that
we are emphasizing in today's preamble.
C. Notice at Application Submittal (Sec. 124.32)
1. Applicability (Proposed Sec. 124.32(c)). The proposed rule
required the permitting agency to send a notice to the facility mailing
list upon receipt of a permit application. EPA proposed that the rule
apply to all new and interim status facilities, but not to permit
modifications or applications submitted for the sole purpose of
conducting post-closure activities.
Synopsis of Major Comments on Proposed Sec. 124.32(c). The
commenters generally supported this provision of the proposed rule. A
few commenters recommended that EPA apply the provision to
modifications, post-closure permits, and interim status facilities.
EPA's Response to Commenters. The final rule retains the
applicability standards of the proposed rule. We continue to believe
that the notice at application submittal is an effective means to let
the community know that the permitting agency has received a permit
application. The notice allows members of the community to keep track
of new or existing facilities and to review, concurrently with the
permitting agency, the permit application, which will be available for
review at a location specified by the permitting agency (either in the
vicinity of the facility or at the permitting agency's office). We
suggest that the permitting agency consult the public when choosing a
suitable location to place the application materials for public review.
The notice requirement does not apply to permit modifications or
permit applications submitted for the sole purpose of conducting post-
closure activities or post-closure activities and corrective action at
a facility. The permit modification requirements in Sec. 270.42 already
include provisions for providing public notice of modification
requests. We explain the exemption for post-closure activities in
section B.1. above.
2. Responsibility and Timing (Proposed Sec. 124.32(a) and (b)). The
proposed rule directed the permitting agency to give the notice
``within a reasonable period of time after the application is received
by the Director.'' The proposed rule also listed the information that
must go in the notice.
Synopsis of Major Comments on Proposed Sec. 124.32(a) and (b). Many
of the commenters provided suggestions on who should be responsible for
the notice at application submittal. The majority of these commenters
supported EPA's proposal, agreeing that the Director should issue the
notice. A few commenters expressed concern over the
[[Page 63425]]
timing of the notice. They suggested that EPA rewrite the rule to
require the Director to issue the notice within 30 days of application
submittal.
EPA's Response to Commenters. These provisions have not changed
from the proposed rule to the final rule. EPA maintains its position
that the permitting agency should be responsible for providing the
public notice at application submittal. Providing the notice will
demonstrate clearly that the permitting agency's role in the process
has begun.
We anticipate that the permitting agencies will issue timely
notices and, thus, we have decided not to prescribe a time frame for
agency issuance of the notice at permit application.
D. Information Repository
1. Applicability/Use/Responsibility (Proposed Secs. 124.33(a) and
270.30(m)). EPA proposed to give the Director the authority to require
the facility to establish and maintain an information repository during
the permitting process (Sec. 124.33(a)) or during the life of a permit
(Sec. 270.30(m)). The purpose of the repository, as proposed, was to
make information available to the public during the permit issuance
process and during the life of a permit.
Synopsis of Comments on Proposed Secs. 124.33(a) and 270.30(m). A
number of the comments asked EPA for exemptions from the repository
``requirement,'' especially for boilers and industrial furnaces (BIFs)
and federal facilities that must fulfill similar standards under other
rules. Many commenters asked for flexibility, suggesting that EPA allow
the Director to decide when to require a repository. Some commenters
suggested that the Director use this authority only in cases where the
community shows true need or public interest when the facility is high.
Making a contrary point, a group of commenters argued that the
repository should be mandatory for all facilities. Another group of
commenters insisted that the permitting agency should be responsible
for the repository, or at least split the responsibility with the
facility.
EPA's Response to Commenters. In the final rule, EPA has rewritten
Secs. 124.33(a) and 270.30(m) to better reflect our original intent in
proposing the information repository requirement. Our intent was for
permitting agencies to use the information repository requirement
sparingly. We anticipate that the Director will require such a
repository only in special cases where a significant amount of public
concern has surfaced or where the community has unique information
needs.
Many commenters suggested exemptions from the ``information
repository requirement.'' However, the information repository is not a
requirement that applies to a pre-determined group of facilities.
Instead, the information repository is a public involvement tool that
today's rule makes available to permitting agencies for use on a case-
by-case basis. Accordingly, there is no need for exemptions from
Secs. 124.33 or 270.30(m).
Some of the confusion over this section may be the result of the
language in the proposed rule. We have reworded Secs. 124.33 and
270.30(m) in the final rule to make clear that the Director shall
assess a variety of factors, including the status of existing
repositories and the community's proximity to a copy of the
administrative record, when considering whether or not to require a
repository at any facility. So, for instance, if the Director
determines that public interest warrants a repository at hypothetical
Facility X, but finds that a BIF repository already existing at the
facility is responsive to the public interest, then the Director may
determine that the facility has no need for a repository under
Secs. 124.33 or 270.30(m). Or, if the existing repository does not
completely satisfy the need that the Director identified, then the
Director may specify additional steps that the facility must take to
make the repository meet the public need. At Facility X, for instance,
the Director may require the facility to make available more
information on the general permitting standards, or on the permit
application and technical standards for the other units on site, aside
from the BIF unit. The facility could then add this information to the
existing repository if the repository meets the requirements of
Secs. 124.33 or 270.30(m).
2. Contents (Proposed Sec. 124.33(b) and (e)). The proposed rule
language required the repository to contain all ``documents, reports,
data, and other information deemed sufficient by the Director for
public understanding,'' as well as information on public involvement
activities and how to get on the facility mailing list.
Synopsis of the Major Comments on Proposed Sec. 124.33(b) and (e).
A number of commenters recommended specific documents and types of
documents (e.g., the permit application, all relevant fact sheets) that
EPA should require in the information repository provisions. Some
commenters insisted that the content requirements in the proposed rule
were too vague. Other commenters thought that EPA should ban certain
materials (e.g., public relations literature) from the information
repository.
EPA's Response to Commenters. We have changed the repository
content requirements in the final rule. The new provision requires the
repository to hold ``all documents, reports, data, and information
deemed necessary by the Director to fulfill the purposes for which the
repository is established.'' We have tried to be as flexible as
possible in this section since the permitting agency could require a
facility to establish a repository at any stage during any permit
process or for any time during the life of the facility. Moreover, the
requirement to establish a repository will be imposed by the Director
on a case-by-case basis; after taking into account the site-specific
factors in each case, the Director will decide what materials are
appropriate for the repository.
The final rule gives the Director the authority to limit the
contents of the repository. While the rule creates no outright bans on
materials, EPA anticipates that the Director will use his or her
discretion to ensure that repository materials are relevant to
permitting activities and to prevent parties from placing inappropriate
materials in the repository. We encourage permitting agencies, in the
spirit of equitable public participation and access to information, to
consult the public regarding what materials would be most useful to
members of the surrounding community.
3. Location (Proposed Sec. 124.33(c)). The proposed rule stated
that the facility should choose the location for the repository in a
place with suitable public access. If the Director opposed the site,
then the Director could choose a more appropriate location. The
proposed rule also required the repository to be open during reasonable
hours and to give the public access to photocopy service (or an
alternative means for people to obtain copies).
Synopsis of Public Comments on Sec. 124.33(c). Several commenters
expressed concern over the geographic location of the repository. Other
commenters asked that EPA rewrite the rule to allow for on-site
repositories.
EPA's Response to Commenters. EPA has tried to be flexible in
revising the final rule. While we expect that the Director will only
infrequently require a repository, we anticipate that those situations
will all be different. For this reason, we have avoided writing narrow
prescriptions for the location of the repository. Instead,
Sec. 124.33(d) of the final rule retains the provision allowing the
facility to choose the location. We encourage facilities, in the spirit
of
[[Page 63426]]
equitable public participation and access to information, to involve
the public when suggesting a location for the repository. The Director
has the discretion to choose a more suitable location if he or she
finds that the one chosen by the facility is unsuitable based on
access, location, hours of availability, or other relevant criteria.
The Director should exercise this authority sparingly; we are
anticipating that, in the great majority of cases, the facility will
choose a suitable location. EPA encourages facilities to establish
repositories off-site (i.e., within the community where the facility is
located) whenever an off-site repository is feasible and would be more
readily accessible to the public. Today's rule does not, however,
preclude the use of on-site repositories.
4. Timing and Duration (Proposed Sec. 124.33(f)). The proposed rule
required the facility to maintain and update the repository for a time
period determined by the Director. The proposal also stated that the
Director could require the repository at any time during the
application process for a RCRA permit or during the active life of a
facility.
Synopsis of the Major Comments on Proposed Sec. 124.33(f). The
commenters submitted a variety of comments concerning the timing and
duration of the repository. Some commenters thought that permitting
agencies need flexibility in applying the repository requirement.
Others thought that EPA should require the repository to open and close
at specific points during the permitting process. One group of
commenters insisted that EPA include a provision in the rule to allow
for automatic closure of the repository once the permit is issued,
denied, or appealed.
EPA's Response to Commenters. In the final rule, EPA clarifies its
intent that the Director have the discretion to apply the repository
requirement at any time during the permitting process or the life of a
facility. Given that it is within the Director's discretion whether to
establish a repository at all, we believe that it would be
inappropriate to prescribe specific timing and duration requirements
that are triggered by the creation of a repository; rather, the
Director should decide on questions of timing and duration on a case-
by-case basis. The final rule continues the proposed rule's provision
that the Director determine the duration of the repository. The final
rule provides that the Director can close the repository, based on the
same standards (found in paragraph (a)) that the Director uses when
assessing the need for a repository.
E. Trial Burn Notices
1. Notice of the Trial Burn for Permitted Combustion Facilities
(Proposed Secs. 270.62(b)(6) and 270.66(d)(3)). Permits for new
hazardous waste combustion facilities must include a plan, approved by
the permitting agency as part of the permit, that describes how the
facility will conduct the trial burn. However, because construction of
a new facility may take a considerable period of time, the trial burn
itself might not take place until several years after permit issuance.
The proposed rule required the permitting agency to give public notice
of the impending trial burn for permitted incinerators and BIFs. Under
the proposed rule, the permitting agency would send a notice to the
facility mailing list and appropriate units of State and local
governments announcing the scheduled commencement and completion dates
for the trial burn. The notice would also provide the public with
contact information at the permitting agency and the facility and a
location where members of the public could review the approved trial
burn plan. The proposal required the permitting agency to mail the
notice within a reasonable time period prior to the trial burn.
Synopsis of the Major Comments on Proposed Secs. 270.62(b)(6) and
270.66(d)(3). We received both positive and negative comments on the
proposed notice of trial burn for permitted combustion facilities. The
supporters noted the importance of informing the public of the
anticipated time period for conducting the burn, because a significant
amount of time may elapse between issuing the permit and conducting the
trial burn.
Those who opposed the trial burn notice asked what benefit would
accrue from public notice of an impending, scheduled trial burn for a
new (permitted) facility. One commenter asked EPA to discuss the
purpose for requiring this notice from a new facility, considering that
the schedule is set out in the permit and the trial burn plan is
already open for public comment as part of the draft permit. Some
commenters thought that the other permitting events already provide
sufficient opportunity for public comment. Other commenters opposed the
requirement that the permitting agency give the trial burn notice,
claiming that delays would ensue when the agency could not publish the
notice on time.
EPA's Response to Commenters. EPA has decided to finalize the trial
burn notice provisions for permitted facilities as proposed. The Agency
agrees with the commenters who noted the importance of keeping the
community up to date on permitting activities at the facility. Several
years may pass between the approval of the trial burn plan and the
actual date of the trial burn. During the intervening time, the public
may not necessarily remain up to date on activities at the facility.
The trial burn is a significant step in the process of a combustor
moving toward full operation; experience has shown that the public is
often interested in knowing when the burn will occur so that citizens
can review the trial burn results. Thus, we remain committed to giving
notice of the impending trial burn at permitted facilities.
The final rule requires the permitting agency to send the notice to
the facility mailing list. While we do not specify a time period during
which the permitting agency should send out the notice, we anticipate
that permitting agencies will typically notify the public at least 30
days before the trial burn.
The final rule does not provide for a comment period after the
permitting agency gives notice of the trial burn dates. A number of
commenters asked EPA what the purpose of such a notice would be, if not
to open a comment period. Other commenters asked the Agency to make
clear whether or not the rule would require a comment period during the
trial burn stage. EPA decided that a comment period during the trial
burn phase would not be necessary or appropriate. The public has
already had the opportunity to be involved with, and comment on, the
trial burn plan during the draft permit stage. Our intent in providing
for the notice at this stage is to make the public aware of an
impending trial burn. The notice will serve as an update, rather than
the opening of a comment period.
Finally, EPA has clarified in Secs. 270.62(b)(6) and 270.66(d)(3)
that a new hazardous waste combustion facility applying for a permit
may not commence its trial burn until after the permitting agency has
issued the required notice. It was clear from the proposal that we
intended for the permitting agency to issue the notice before the trial
burn. However, the proposed rule language did not explicitly state the
obvious corollary, which was that the facility may not commence the
trial burn until after the notice.
EPA does not believe that the notice requirement established by
today's rule will delay trial burns. The notice requirement is
straightforward and easy to implement; we do not anticipate that
permitting agencies will fail to issue the required notices in a timely
fashion.
[[Page 63427]]
Because the notice is purely informational, EPA will be flexible in
interpreting the requirement that the notice be mailed a reasonable
time before the commencement of the trial burn. Ideally, the Agency
anticipates that permitting agencies will mail the notice at least
thirty days before the trial burn. However, as long as the notice is
mailed sufficiently in advance of the scheduled trial burn so that the
recipients would be expected to receive the notice prior to the
commencement date, EPA would consider the notice timely.
It is EPA's intent that the trial burn notice requirements in
Secs. 270.62(b)(6) and 270.66(d)(3) apply only to initial trial burns,
and not to subsequent trial burns that may be conducted as part of the
permit modification procedures. EPA believes that the trial burn
notices required by today's rule are not necessary in these latter
circumstances, since the amount of time between modification approval
and the subsequent trial burn is typically much shorter than the amount
of time that may elapse between permit issuance and the initial trial
burn. Moreover, the modification procedures in Sec. 270.42 include
provisions for involving the public throughout the modification
submittal and approval process (e.g., through notices or public
meetings). Of course, if there are substantial unforeseen delays
between the approval of the modification request and the trial burn,
EPA suggests that the permitting agency issue a notice in accordance
with the procedures set forth in today's rule.
2. Notice of Planned Trial Burn Plan Approval for Interim Status
Combustion Facilities (Proposed Sec. 270.74(b) and (c)(3)). Trial burns
at interim status facilities generally take place before permit
issuance so that the permitting agency can set operating conditions in
the permit based on the results of the trial burn. The proposed rule
required the permitting agency to give public notice of the tentative
approval of a trial burn plan for interim status incinerators and BIFs.
The notice requirements are the same as those proposed for permitted
incinerators and BIFs, except for an additional provision that the
notice contain a schedule of activities that are required prior to
permit issuance, including the permitting agency's anticipated schedule
for trial burn plan approval and the actual trial burn.
Synopsis of Major Comments on Sec. 270.74(b) and (c)(3). Many of
the comments described in section E.1. above with regard to the trial
burn notice for permitted incinerators and BIFs also are relevant to
the trial burn notice for interim status incinerators and BIFs (e.g.,
comments on the timing of the notice). A number of commenters raised
the issue of a comment period on the trial burn plan for interim status
facilities. A few commenters supported the idea, some opposed it, and
several more asked EPA to clarify whether or not we would require a
comment period on the tentatively approved trial burn plan. One
commenter noted that this additional information was critical for
interim status facilities where the public has not yet had an
opportunity for involvement.
EPA's Response to Commenters. EPA has decided to finalize the
provisions for interim status facilities with two slight changes from
the proposal. First, the final rule provides for notice of the
Director's intention to approve a trial burn plan, rather than his or
her ``tentative approval.'' In response to commenter concerns that the
notice could be an extra time-consuming step in the process, EPA has
changed the language to better reflect its intent that the notice
occurs in the final stages of review, rather than being a separate step
following completion of review.
Second, we proposed to place the notice requirements in a newly
created Sec. 270.74, which contained interim status combustion
permitting requirements. However, since EPA is not finalizing the
combustion permitting sections of the proposed rule at this time, we
have integrated the notice requirements with the regulations for the
permitting of interim status combustion facilities, i.e.,
Sec. 270.62(d) for incinerators and Sec. 270.66(g) for BIFs.
Although the Agency has not changed the trial burn plan notice
requirements for interim status combustors in the final rule, the
requirements are in a different format than in the proposal. First, the
notice requirements are now located in the centers of the paragraphs
(Sec. 270.62(d) for incinerators and Sec. 270.66(g) for BIFs) along
with other permitting requirements. Since the notice contents for
interim status facilities differ from the contents for permitted
facilities with regard to announcing planned approval of the trial burn
plan, we are amending Secs. 270.62(d) and 270.66(g) to list the
specific information that the permitting agency must include in the
notices for interim status combustors. Second, we do not list the
timing and distribution requirements for the notice for interim status
facilities, as we did in the proposed rule. Instead, each of these
paragraphs refers the reader to another paragraph (Sec. 270.62(b) and
Sec. 270.66(d), respectively) that covers the notice of the trial burn
for permitted facilities. For instance, Sec. 270.62(d) states that the
agency shall issue the notice ``in accordance with the timing and
distribution requirements of (b)(6) of this section.'' The requirements
in (b)(6) are the new notice requirements that we are issuing today for
permitted combustion facilities (see section E.1. above). In following
the standards in (b)(6), the permitting agency will send the notice to
the facility mailing list and the appropriate units of State and local
government within a reasonable period of time before the trial burn.
Section 270.66(g) takes the same approach for BIFs by referring to
paragraph (d) of that section.
For permitted combustion facilities, EPA has clarified in
Secs. 270.62(b)(6) and 270.66(d)(3) that a facility applying for a
permit may not commence its trial burn until after the permitting
agency has issued the required notice. EPA does not believe that
comparable clarifying language is necessary in Secs. 270.62(d) or
270.66(g) for the notice of planned approval of a trial burn plan for
an interim status facility. EPA believes it is clear under these
provisions that the permitting agency will not approve a plan and,
consequently, the facility cannot commence its trial burn, until
issuance of the required notice.
The role of the notice for interim status BIFs and incinerators is
much the same as the notice for permitted facilities, i.e., to keep the
public informed throughout the trial burn stage. The final rule does
not require a comment period after the permitting agency gives notice
of the planned approval of the trial burn plan and the trial burn dates
for interim status facilities. The trial burn notice, like the other
notices required by this rule, is primarily intended to keep the
community informed while not slowing down the permitting process. Since
interim status facilities are already operating, and continue to
operate while the permitting agency evaluates the permit application,
EPA does not believe it would generally be in the public interest to
delay the evaluation process in order to provide a formal response to
comments on the trial burn plan. However, if members of the public
submit significant information or views relating to the trial burn
plan, the Director should consider this information, and may choose to
respond in writing at the time of plan approval. In addition, a formal
comment period will, of course, still take place after draft permit
issuance.
EPA believes that the final rule strikes the appropriate balance
between public
[[Page 63428]]
involvement and the efficiency of the permitting process. The notice
alerts the public of the impending trial burn, and of the opportunity
to review the trial burn plan. Since EPA is not yet finalizing the
other revisions to combustion permitting procedures proposed in
Sec. 270.74, trial burn plans for interim status combustors may not
always be available for review with the rest of the application.
Through today's notice requirement, the public will still have an
opportunity to stay informed and to review the plan before the Director
approves it.
EPA is currently considering and addressing the comments it
received on the revised combustion permitting procedures. If those
procedures are finalized and go into effect as proposed, including the
provision requiring facilities to submit trial burn plans with permit
applications, the public will have the opportunity to review and submit
opinions or suggestions on the proposed trial burn plan at any time
after the facility submits the application. At that time, EPA will have
the opportunity to consider any such submissions in the process of
reviewing the plan. Accordingly, EPA is not requiring a comment period
for the planned trial burn plan approval in this rule, since such a
requirement could likely be rendered unnecessary in the future.
V. State Authority
A. Applicability of Today's Rule in Authorized States
The overall effect of today's final rule is to increase the
stringency of the RCRA permitting process. Therefore, States that are
authorized to administer and enforce the RCRA program in lieu of EPA
under section 3006 of RCRA are required to modify their programs by
adopting equivalent requirements if necessary (see Sec. 271.21(e)).
States must submit their proposed program modifications to EPA for
approval according to the schedules set forth in section V.B. below.
EPA is promulgating today's rule pursuant to statutory authority
that existed prior to the Hazardous and Solid Waste Amendments (HSWA)
of 1984. As we explained in more detail in the proposed rule (59 FR
28703-04), EPA will implement Secs. 124.31 (the pre-application
meeting), 124.32 (the notice at application submittal), and 124.33 (the
information repository) of this rule in authorized States only when EPA
is processing permit applications for hazardous waste management units
over which it has the basic permit issuance authority (e.g., BIFs in
States not yet authorized to issue BIF permits). EPA has added language
to Secs. 124.31(a), 124.32(a), and 124.33(a) of the final rule to
clarify that EPA will implement these sections only for such
applications. For all other permit applications in authorized States,
the requirements of these sections will not take effect until the
States adopt and become authorized for this rule.2
\2\ EPA is not including similar limiting language, like the
language in Secs. 124.31, 124.32, and 124.33, in the other
provisions of today's rule. With respect to Sec. 270.14, the
requirement to submit the summary of the pre-application meeting
with the Part B permit application expressly references Sec. 124.31.
Accordingly, where the regulations do not require a meeting, it is
clear that the applicant does not need to provide a meeting summary.
With respect to the information repository requirement of
Sec. 270.30(m), EPA will follow the general principles applicable to
the inclusion of the Sec. 270.30 ``boilerplate'' provisions in HSWA
portions of RCRA permits (see, e.g., In re General Motors Corp.,
RCRA Appeal Nos. 90-24, 90-25, at 23 (EAB Nov. 6, 1992)). Finally,
Secs. 270.62 and 270.66 apply only where EPA has permit issuance
authority over incinerators and BIFs, respectively, so there is no
need to limit the applicability of the specific requirements added
to these sections today.
---------------------------------------------------------------------------
Under this approach, EPA will be implementing Secs. 124.31, 124.32,
and 124.33 only where it is the basic permitting authority for the
unit. EPA will, of course, implement these sections in non-authorized
States. EPA will also implement these sections in authorized States
when the permit application in question contains one or more hazardous
waste management units for which the State is not authorized to issue
RCRA permits and, thus, EPA has basic permit issuance authority. For
example, EPA will implement today's rule when processing an application
that includes a BIF if the State is not authorized to issue BIF
permits. The facility with the BIF unit will be subject to all the
applicable requirements in today's rule.
However, if the State is authorized to issue RCRA permits for all
of the hazardous waste management units in an application, then EPA
will not implement the requirements in Secs. 124.31, 124.32, and
124.33. EPA will not implement those provisions in such a case, even
though EPA may retain authority to issue a HSWA ``rider'' relating to
the units in the application (e.g., authority to control air emissions
from certain units under 40 CFR Part 264 Subparts AA, BB, and CC), or
relating to the facility as a whole (e.g., corrective action authority
under 40 CFR Sec. 264.101). For example, EPA will not implement
Secs. 124.31, 124.32, and 124.33 when processing the corrective action
portion of a tank storage permit application in an authorized State.
The Agency believes that this arrangement best implements the
intent of today's rule. EPA designed the pre-application meeting, the
notice at application submittal, and repository requirements to enhance
communication and understanding between the public, the facility owners
and operators, and the permitting agency. These requirements will
foster a dialogue between facilities and communities with a focus on
fundamental permitting issues. EPA believes that these interactions are
properly part of the application process for the basic permit to
conduct hazardous waste management operations, and not part of the
process to evaluate and issue additional conditions through a HSWA
rider. Accordingly, and consistent with the proposal, we have
explicitly tied these requirements to the basic permit issuance
authority for hazardous waste management units.
For most units in most States, the basic permit issuance authority
rests with the State. Accordingly, EPA strongly urges authorized States
to adopt this rule in an expeditious manner. Specifically, EPA
encourages States that have not yet adopted the BIF rule to adopt the
new public participation procedures concurrently with their BIF rules,
rather than deferring adoption to the somewhat later deadline that
applies to today's rule.
In adopting today's rule, authorized States should not include in
their approved regulations the limiting language added to the final
applicability sections of Secs. 124.31, 124.32 and 124.33. This
language includes both the limitation of the sections' applicability to
``all applications seeking RCRA permits for hazardous waste management
units over which EPA has permit issuance authority'' and the definition
of the phrase ``hazardous waste management units over which EPA has
permit issuance authority.'' Obviously, the reference to EPA would be
inappropriate in a State rule. Moreover, even if the State changed the
language to refer to the State environmental agency, the provision
would be unnecessary because authorized States process RCRA permit
applications and administer RCRA permits only at facilities with units
over which they have permit issuance authority. Accordingly, EPA
recommends that States not include in their regulations limiting
language similar to that in today's final rulemaking.
[[Page 63429]]
B. Schedules and Requirements for Authorization
40 CFR 271.21(e) requires States with final authorization to modify
their programs to reflect federal program changes and submit the
modifications to EPA for approval. The deadlines for State
modifications are set out in Sec. 271.21(e)(2) and depend upon the date
of promulgation of final rules by EPA. Thus, because EPA has
promulgated today's rule before June 30, 1996, States must modify their
programs, if necessary, to adopt this rule before July 1, 1997 (or July
1, 1998 if a State statutory change is needed). States then must submit
these program modifications to EPA according to the schedules in
Sec. 271.21(e)(4). Once EPA approves the modifications, the State
requirements become RCRA Subtitle C requirements.
States with authorized RCRA programs may already have requirements
similar to those we are proposing today. EPA has not assessed these
State regulations against the final federal regulations to determine
whether they meet the tests for authorization. Thus, similar provisions
of State law are not authorized to operate in lieu of today's RCRA
requirements until the State submits them to EPA, who then evaluates
them against the final EPA regulations. Of course, States may continue
to administer and enforce their existing standards in the meantime.
In developing today's final rule, EPA considered impacts on
existing State programs. The public participation requirements may be
viewed as performance objectives the Agency wants States to meet in
their own authorized programs. It is not EPA's intent to restrict
States from conducting similar activities that accomplish the same
objectives. Therefore, EPA intends to be flexible in reviewing State
program submissions and evaluating them against the requirements for
authorization.
VI. Permits Improvement Team
In July 1994, EPA created a group of EPA, State, Tribal and local
government officials (Permits Improvement Team) to examine and propose
improvements to EPA's permit programs. As part of its efforts, the
Permits Improvement Team is examining ways to streamline the permitting
process, exploring possible alternatives to individual permits, and
evaluating ways to enhance public involvement in the permitting
process. The Team plans to develop recommendations in each of these
areas, discuss them with stakeholders, and submit them to Agency
management for consideration.
The public participation requirements that EPA is promulgating in
today's rule are appropriate for the RCRA permitting program as it
currently exists. If, however, the nature of the RCRA permitting
program changes as a result of the Permits Improvement Team's efforts,
then the Agency may amend these procedures, or develop additional
procedures. For example, the Team is considering recommending several
alternatives to individual permits, such as establishing general
permits for RCRA non-commercial storage and treatment units. The
process of issuing general permits is very different from the current
RCRA permitting process; thus, different approaches for involving the
public may be appropriate.
VII. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735, October 4, 1993) the
Agency must determine whether a regulatory action is ``significant''
and, therefore, subject to review by the Office of Management and
Budget (OMB) and to the requirements of the Executive Order, which
include assessing the costs and benefits anticipated as a result of the
regulatory action.
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 serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, 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.
The Agency has determined that this rule is not a significant rule
under Executive Order 12866. Pursuant to the terms of Executive Order
12866, this section of the preamble summarizes the potential economic
impacts of the RCRA Expanded Public Participation rule.
Based upon the economic impact analysis for today's rule, the
Agency's best estimate is that the expanded public participation
requirements would result in an incremental national annual cost of
$180,000 to $500,000.
A complete discussion of the economic impact analysis is available
in the regulatory docket for today's rule in a report entitled
``Economic Impact Analysis for the RCRA Expanded Public Participation
Rule.''
Cost Analysis. Today's rule includes several requirements that
would result in direct costs to facilities submitting initial permit
applications or submitting permit renewal applications that propose a
significant change for facility operations (see Sec. 124.31). The
analysis estimates the costs to all affected facilities of (1)
preparing a public notice announcing the intention to hold a public
meeting; (2) disseminating the public notice in a local newspaper, over
a broadcast medium, and by posting a sign; and (3) holding a public
meeting and preparing a meeting summary.
In addition, the rule gives the Director the discretion to require
a facility to set up an information repository, based on the level of
public interest or other factors. This requirement can apply anywhere
in the permitting process or at any time during the active life of a
facility.
The total cost per facility of the above requirements is
approximately $5,000 to $14,000. Over the next ten years, EPA estimates
that between 300 to 450 facilities will incur these costs. The
resulting total national annual cost, assuming a discount rate of 7% is
estimated to be between $180,000 to $500,000 per year.
Summary of Benefits. The RCRA permitting program was developed to
protect human health and the environment from the risks posed by the
treatment, storage, and disposal of hazardous waste. By improving and
clarifying the permitting process, today's rule produces environmental
benefits that result from a more efficient permitting process. The
following is an explanation of how each of the provisions of today's
rule provides benefits.
The main benefit of the expanded public participation requirements
of today's rule is to provide earlier opportunities for public
involvement and expand public access to information throughout the
permitting process and the operational lives of facilities. EPA
believes that these requirements will give applicants and permitting
agencies a better opportunity to address public concerns in making
decisions about the facility and in subsequent permitting activities.
Providing the public with an expanded role in the permit process,
by promoting community participation and
[[Page 63430]]
input throughout the permitting process, will also help foster
continued community involvement after facilities become permitted.
In addition, expanding public involvement opportunities could, in
some cases, streamline the permitting process, since the public will
raise issues, and the applicant can address the issues, at an earlier
stage in the process. Currently, the public is not formally involved in
the permitting process until the draft permit stage, which occurs after
the permitting agency and the permit applicant have discussed crucial
parts of the part B permit application. The Agency anticipates that the
earlier participation provided in this rule will address the public
concern that major permit decisions may be made before the public has
the opportunity to get involved in the process. This earlier
involvement may well reduce costs associated with delays, litigation,
and other products of disputes.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 requires federal
agencies to consider ``small entities'' throughout the regulatory
process. Section 603 of the RFA requires agencies to perform an initial
screening analysis to determine whether small entities will be
adversely affected by the regulation. If the analysis identifies
affected small entities, then the agency must consider regulatory
alternatives to mitigate the potential impacts. Small entities as
described in the Act are only those ``businesses, organizations and
governmental jurisdictions subject to regulation.''
In developing today's rule for expanding public involvement in the
RCRA permitting process, EPA was sensitive to the needs and concerns of
small businesses. The provisions set forth the minimum requirements
necessary to fulfill the public involvement objectives in this rule.
Additional examples of activities that facilities may choose to conduct
are provided in the preamble for the proposed rule (59 FR 28680) and
will be included in a future guidance document, rather than in this
rule. EPA's intent is to provide flexibility for a facility to
determine, in view of the facility-specific circumstances, the
appropriate level of public involvement activities. In addition, EPA
recognizes that, in some situations, an information repository could
become resource-intensive for a facility or for the local community.
EPA has addressed this concern by clarifying, in the final rule, that
the information repository is not mandatory for all facilities. The
rule makes clear our intent that the Director reserve the use of the
information repository option only for the limited number of facilities
that raise high levels of public interest or whose communities have a
special need for more access to information.
EPA conducted a small entity impact screening analysis for the
proposed rule and determined that there were no small entities
significantly impacted (see 59 FR 28680-28711, Section VI.C.). Because
the public participation requirements have not increased since the
proposal, EPA has determined that the final rule also does not
significantly impact small entities.
C. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2050-0149.
This collection of information is estimated to have a public
reporting burden averaging 89.60 hours per response, and to require
34.60 hours per recordkeeper annually. This total includes time for
reviewing instructions, searching existing data sources, gathering and
maintaining the necessary data, and completing and reviewing the
collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch (2136), U.S. Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460; and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503, marked ``Attention: Desk Officer for
EPA.''
Display of OMB Control Numbers. EPA is also amending the table of
currently approved information collection request (ICR) control numbers
issued by OMB for various regulations. This amendment updates the table
to accurately display those information requirements contained in this
final rule. This display of the OMB control number and its subsequent
codification in the Code of Federal Regulations satisfies the
requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
and OMB's implementing regulations at 5 CFR 1320.
The ICR was previously subject to public notice and comment prior
to OMB approval. As a result, EPA finds that there is ``good cause''
under section 553(b)(B) of the Administrative Procedure Act (5 U.S.C.
553(b)(B)) to amend this table without prior notice and comment. Due to
the technical nature of the table, further notice and comment would be
unnecessary.
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995 (the
UMRA), P.L. 104-4, EPA generally must prepare a written statement,
including a cost-benefit analysis, for rules with ``Federal mandates''
that may result in expenditures to State, local, and tribal governments
in the aggregate, or to the private sector, of $100 million or more in
any one year. When such a statement is required for EPA rules, under
section 205 of the UMRA, EPA must identify and consider alternatives,
including the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. EPA must select
that alternative, unless the Administrator explains in the final rule
why it was not selected or it is inconsistent with law. Before EPA
establishes regulatory requirements that may significantly or uniquely
affect small governments, including Tribal governments, it must
develop, under section 203 of the UMRA, a small government agency plan.
The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them about compliance
with the regulatory requirements.
For the reasons explained in Section VI.A. above, EPA has
determined that this rule does not contain a federal mandate that may
result in expenditures of $100 million or more for State, local, and
Tribal governments, in the aggregate, or the private sector in any one
year. Rather, EPA projects the total annual costs imposed by today's
rule to be less than $500,000. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
In addition, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. As stated above, the total costs of the rule are
very low. These minimal costs will be incurred by owners and operators
of hazardous waste treatment, storage and disposal facilities, which
are principally private entities, and federal government agencies.
Accordingly, this rule does not impose any requirements that might
significantly or uniquely affect small governments.
[[Page 63431]]
E. Enhancing the Intergovernmental Partnership
Executive Order 12875. Executive Order 12875 on enhancing the
intergovernmental partnership charges federal agencies with
establishing meaningful consultation and collaboration with State and
local governments on matters that affect them. In most cases, State
governments are the level of government that regulates hazardous waste.
EPA has consulted with State officials to develop today's rule. EPA
invited several States, representing various parts of the country, to
participate in this rulemaking process. These States reviewed and
provided feedback on the draft proposal over a period of eight months,
and the draft final rule over a period of five months. In addition,
these States participated in monthly workgroup meetings via conference
call. Their participation and immediate feedback in the workgroup
process added considerable value to the rulemaking effort.
EPA contacted additional States in an effort to receive their
specific feedback on general permitting and public involvement
techniques. EPA solicited State input during a session of the 3rd
Annual RCRA Public Involvement National Conference, in which sixteen
State representatives participated. The State participants provided
numerous helpful suggestions and ideas. In addition, the Agency
utilized existing State groups, such as the Association of State and
Territorial Solid Waste Management Officials (ASTSWMO), to solicit
input on the proposed rule at various stages in the development
process. State personnel at the Commissioner level provided input to
EPA at bi-monthly meetings of the EPA-State Task Force on Hazardous
Waste Management. Through early involvement in the process, State
representatives made valuable contributions to the development of
today's rule. EPA also received comments from several States following
publication of the proposed rule. Many of the States' concerns are
addressed by the final rule.
The Relationship of Today's Rule with Indian Policy. Currently, EPA
has the responsibility for ensuring the implementation and enforcement
of the Subtitle C hazardous waste regulatory program on Indian lands.
This responsibility includes the issuance of hazardous waste permits.
However, consistent with EPA's Indian Policy of 1984, the Agency will
look directly to, and work with, Tribal governments in determining the
best way to implement the public involvement requirements in Indian
country. This Indian policy recognizes the sovereignty of federally-
recognized Tribes and commits EPA to a government-to-government
relationship with the Tribes.
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 124
Administrative practice and procedure, Hazardous Waste, Reporting
and recordkeeping requirements.
40 CFR Part 270
Administrative practice and procedure, Hazardous waste, Reporting
and recordkeeping requirements, Permit application requirements, Waste
treatment and disposal.
Dated: October 18, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations, is amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344, 1345
(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp.
p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2,
300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4,
300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657,
11023, 11048.
2. Section 9.1 is amended by adding the new entries to the table to
read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB Control
40 CFR Citation No.
------------------------------------------------------------------------
* * * * *
PART 124--PROCEDURES FOR DECISIONMAKING
124.31.................................................. 2050-0149
124.32.................................................. 2050-0149
124.33.................................................. 2050-0149
PART 270--EPA-ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE PERMIT
PROGRAM
270.62.................................................. 2050-0149
270.66.................................................. 2050-0149
* * * * *
------------------------------------------------------------------------
PART 124--PROCEDURES FOR DECISIONMAKING
1. The authority citation for part 124 continues to read as
follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.; and Clean Air Act, 42
U.S.C. 1857 et seq.
2. Subpart B is amended by adding text to read as follows:
Subpart B--Specific Procedures Applicable to RCRA Permits
Sec.
124.31 Pre-application public notice and meeting.
124.32 Public notice requirements at the application stage.
124.33 Information repository.
Subpart B--Specific Procedure Applicable to RCRA Permits
Sec. 124.31 Pre-application public meeting and notice.
(a) Applicability. The requirements of this section shall apply to
all RCRA part B applications seeking initial permits for hazardous
waste management units over which EPA has permit issuance authority.
The requirements of this section shall also apply to RCRA part B
applications seeking renewal of permits for such units, where the
renewal application is proposing a significant change in facility
operations. For the purposes of this section, a ``significant change''
is any change that would qualify as a class 3 permit modification under
40 CFR 270.42. For the purposes of this section only, ``hazardous waste
management units over which EPA has permit issuance authority'' refers
to hazardous waste management units for which the State where the units
are located has not been authorized to issue RCRA permits pursuant to
40 CFR part 271. The requirements of this section do not apply to
permit modifications under 40 CFR 270.42 or to applications that are
submitted for the sole purpose of conducting post-closure activities or
post-closure activities and corrective action at a facility.
(b) Prior to the submission of a part B RCRA permit application for
a facility, the applicant must hold at least one meeting with the
public in order to solicit questions from the community and inform the
community of proposed hazardous waste management activities. The
applicant shall post a sign-in sheet or otherwise provide a voluntary
[[Page 63432]]
opportunity for attendees to provide their names and addresses.
(c) The applicant shall submit a summary of the meeting, along with
the list of attendees and their addresses developed under paragraph (b)
of this section, and copies of any written comments or materials
submitted at the meeting, to the permitting agency as a part of the
part B application, in accordance with 40 CFR 270.14(b).
(d) The applicant must provide public notice of the pre-application
meeting at least 30 days prior to the meeting. The applicant must
maintain, and provide to the permitting agency upon request,
documentation of the notice.
(1) The applicant shall provide public notice in all of the
following forms:
(i) A newspaper advertisement. The applicant shall publish a
notice, fulfilling the requirements in paragraph (d)(2) of this
section, in a newspaper of general circulation in the county or
equivalent jurisdiction that hosts the proposed location of the
facility. In addition, the Director shall instruct the applicant to
publish the notice in newspapers of general circulation in adjacent
counties or equivalent jurisdictions, where the Director determines
that such publication is necessary to inform the affected public. The
notice must be published as a display advertisement.
(ii) A visible and accessible sign. The applicant shall post a
notice on a clearly marked sign at or near the facility, fulfilling the
requirements in paragraph (d)(2) of this section. If the applicant
places the sign on the facility property, then the sign must be large
enough to be readable from the nearest point where the public would
pass by the site.
(iii) A broadcast media announcement. The applicant shall broadcast
a notice, fulfilling the requirements in paragraph (d)(2) of this
section, at least once on at least one local radio station or
television station. The applicant may employ another medium with prior
approval of the Director.
(iv) A notice to the permitting agency. The applicant shall send a
copy of the newspaper notice to the permitting agency and to the
appropriate units of State and local government, in accordance with
Sec. 124.10(c)(1)(x).
(2) The notices required under paragraph (d)(1) of this section
must include:
(i) The date, time, and location of the meeting;
(ii) A brief description of the purpose of the meeting;
(iii) A brief description of the facility and proposed operations,
including the address or a map (e.g., a sketched or copied street map)
of the facility location;
(iv) A statement encouraging people to contact the facility at
least 72 hours before the meeting if they need special access to
participate in the meeting; and
(v) The name, address, and telephone number of a contact person for
the applicant.
Sec. 124.32 Public notice requirements at the application stage.
(a) Applicability. The requirements of this section shall apply to
all RCRA part B applications seeking initial permits for hazardous
waste management units over which EPA has permit issuance authority.
The requirements of this section shall also apply to RCRA part B
applications seeking renewal of permits for such units under 40 CFR
270.51. For the purposes of this section only, ``hazardous waste
management units over which EPA has permit issuance authority'' refers
to hazardous waste management units for which the State where the units
are located has not been authorized to issue RCRA permits pursuant to
40 CFR part 271. The requirements of this section do not apply to
permit modifications under 40 CFR 270.42 or permit applications
submitted for the sole purpose of conducting post-closure activities or
post-closure activities and corrective action at a facility.
(b) Notification at application submittal.
(1) The Director shall provide public notice as set forth in
Sec. 124.10(c)(1)(ix), and notice to appropriate units of State and
local government as set forth in Sec. 124.10(c)(1)(x), that a part B
permit application has been submitted to the Agency and is available
for review.
(2) The notice shall be published within a reasonable period of
time after the application is received by the Director. The notice must
include:
(i) The name and telephone number of the applicant's contact
person;
(ii) The name and telephone number of the permitting agency's
contact office, and a mailing address to which information, opinions,
and inquiries may be directed throughout the permit review process;
(iii) An address to which people can write in order to be put on
the facility mailing list;
(iv) The location where copies of the permit application and any
supporting documents can be viewed and copied;
(v) A brief description of the facility and proposed operations,
including the address or a map (e.g., a sketched or copied street map)
of the facility location on the front page of the notice; and
(vi) The date that the application was submitted.
(c) Concurrent with the notice required under Sec. 124.32(b) of
this subpart, the Director must place the permit application and any
supporting documents in a location accessible to the public in the
vicinity of the facility or at the permitting agency's office.
Sec. 124.33 Information repository.
(a) Applicability. The requirements of this section apply to all
applications seeking RCRA permits for hazardous waste management units
over which EPA has permit issuance authority. For the purposes of this
section only, ``hazardous waste management units over which EPA has
permit issuance authority'' refers to hazardous waste management units
for which the State where the units are located has not been authorized
to issue RCRA permits pursuant to 40 CFR part 271.
(b) The Director may assess the need, on a case-by-case basis, for
an information repository. When assessing the need for an information
repository, the Director shall consider a variety of factors,
including: the level of public interest; the type of facility; the
presence of an existing repository; and the proximity to the nearest
copy of the administrative record. If the Director determines, at any
time after submittal of a permit application, that there is a need for
a repository, then the Director shall notify the facility that it must
establish and maintain an information repository. (See 40 CFR 270.30(m)
for similar provisions relating to the information repository during
the life of a permit).
(c) The information repository shall contain all documents,
reports, data, and information deemed necessary by the Director to
fulfill the purposes for which the repository is established. The
Director shall have the discretion to limit the contents of the
repository.
(d) The information repository shall be located and maintained at a
site chosen by the facility. If the Director finds the site unsuitable
for the purposes and persons for which it was established, due to
problems with the location, hours of availability, access, or other
relevant considerations, then the Director shall specify a more
appropriate site.
(e) The Director shall specify requirements for informing the
public about the information repository. At a minimum, the Director
shall require the facility to provide a written notice about the
information repository to all individuals on the facility mailing list.
(f) The facility owner/operator shall be responsible for
maintaining and
[[Page 63433]]
updating the repository with appropriate information throughout a time
period specified by the Director. The Director may close the repository
at his or her discretion, based on the factors in paragraph (b) 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 270.2 is amended by revising the definition for
``Facility mailing list'' to read as follows:
Sec. 270.2 Definitions.
* * * * *
Facility mailing list means the mailing list for a facility
maintained by EPA in accordance with 40 CFR 124.10(c)(1)(ix).
* * * * *
3. Section 270.14 is amended by adding paragraph (b)(22) to read as
follows:
Sec. 270.14 Contents of part B: General requirements.
* * * * *
(b) * * *
(22) A summary of the pre-application meeting, along with a list of
attendees and their addresses, and copies of any written comments or
materials submitted at the meeting, as required under Sec. 124.31(c).
4. Section 270.30 is amended by adding paragraph (m) to read as
follows:
Sec. 270.30 Conditions applicable to all permits.
* * * * *
(m) Information repository. The Director may require the permittee
to establish and maintain an information repository at any time, based
on the factors set forth in 40 CFR 124.33(b). The information
repository will be governed by the provisions in 40 CFR 124.33(c)
through (f).
5. Section 270.61(b)(5) introductory text is amended by removing
the reference Sec. 124.11(b) and adding in its place Sec. 124.10(b).
* * * * *
6. In Sec. 270.62, paragraphs (b)(6) through (10) are redesignated
as paragraphs (b)(7) through (11), and new paragraph (b)(6) is added as
follows:
Sec. 270.62 Hazardous waste incinerator permits.
* * * * *
(b) * * *
(6) The Director must send a notice to all persons on the facility
mailing list as set forth in 40 CFR 124.10(c)(1)(ix) and to the
appropriate units of State and local government as set forth in 40 CFR
124.10(c)(1)(x) announcing the scheduled commencement and completion
dates for the trial burn. The applicant may not commence the trial burn
until after the Director has issued such notice.
(i) This notice must be mailed within a reasonable time period
before the scheduled trial burn. An additional notice is not required
if the trial burn is delayed due to circumstances beyond the control of
the facility or the permitting agency.
(ii) This notice must contain:
(A) The name and telephone number of the applicant's contact
person;
(B) The name and telephone number of the permitting agency's
contact office;
(C) The location where the approved trial burn plan and any
supporting documents can be reviewed and copied; and
(D) An expected time period for commencement and completion of the
trial burn.
* * * * *
7. Paragraph (d) of Sec. 270.62 is revised as follows:
Sec. 270.62 Hazardous waste incinerator permits.
* * * * *
(d) For the purpose of determining feasibility of compliance with
the performance standards of Sec. 264.343 of this chapter and of
determining adequate operating conditions under Sec. 264.345 of this
chapter, the applicant for a permit for an existing hazardous waste
incinerator must prepare and submit a trial burn plan and perform a
trial burn in accordance with Sec. 270.19(b) and paragraphs (b)(2)
through (b)(5) and (b)(7) through (b)(10) of this section or, instead,
submit other information as specified in Sec. 270.19(c). The Director
must announce his or her intention to approve the trial burn plan in
accordance with the timing and distribution requirements of paragraph
(b)(6) of this section. The contents of the notice must include: the
name and telephone number of a contact person at the facility; the name
and telephone number of a contact office at the permitting agency; the
location where the trial burn plan and any supporting documents can be
reviewed and copied; and a schedule of the activities that are required
prior to permit issuance, including the anticipated time schedule for
agency approval of the plan and the time period during which the trial
burn would be conducted. Applicants submitting information under
Sec. 270.19(a) are exempt from compliance with 40 CFR 264.343 and
264.345 and, therefore, are exempt from the requirement to conduct a
trial burn. Applicants who submit trial burn plans and receive approval
before submission of a permit application must complete the trial burn
and submit the results, specified in paragraph (b)(7) of this section,
with part B of the permit application. If completion of this process
conflicts with the date set for submission of the part B application,
the applicant must contact the Director to establish a later date for
submission of the part B application or the trial burn results. Trial
burn results must be submitted prior to issuance of the permit. When
the applicant submits a trial burn plan with part B of the permit
application, the Director will specify a time period prior to permit
issuance in which the trial burn must be conducted and the results
submitted.
8. In Sec. 270.66, paragraphs (d) (3) through (5) are redesignated
as paragraphs (d) (4) through (6), and new paragraph (d)(3) is added to
read as follows:
Sec. 270.66 Permits for boilers and industrial furnaces burning
hazardous waste.
* * * * *
(d) * * *
(3) The Director must send a notice to all persons on the facility
mailing list as set forth in 40 CFR 124.10(c)(1)(ix) and to the
appropriate units of State and local government as set forth in 40 CFR
124.10(c)(1)(x) announcing the scheduled commencement and completion
dates for the trial burn. The applicant may not commence the trial burn
until after the Director has issued such notice.
(i) This notice must be mailed within a reasonable time period
before the trial burn. An additional notice is not required if the
trial burn is delayed due to circumstances beyond the control of the
facility or the permitting agency.
(ii) This notice must contain:
(A) The name and telephone number of applicant's contact person;
(B) The name and telephone number of the permitting agency contact
office;
(C) The location where the approved trial burn plan and any
supporting documents can be reviewed and copied; and
(D) An expected time period for commencement and completion of the
trial burn.
* * * * *
9. Paragraph (g) of Sec. 270.66 is revised as follows:
[[Page 63434]]
Sec. 270.66 Permits for boilers and industrial furnaces burning
hazardous waste.
* * * * *
(g) Interim status boilers and industrial furnaces. For the purpose
of determining feasibility of compliance with the performance standards
of Sec. 266.104 through 266.107 of this chapter and of determining
adequate operating conditions under Sec. 266.103 of this chapter,
applicants owning or operating existing boilers or industrial furnaces
operated under the interim status standards of Sec. 266.103 of this
chapter must either prepare and submit a trial burn plan and perform a
trial burn in accordance with the requirements of this section or
submit other information as specified in Sec. 270.22(a)(6). The
Director must announce his or her intention to approve of the trial
burn plan in accordance with the timing and distribution requirements
of paragraph (d)(3) of this section. The contents of the notice must
include: the name and telephone number of a contact person at the
facility; the name and telephone number of a contact office at the
permitting agency; the location where the trial burn plan and any
supporting documents can be reviewed and copied; and a schedule of the
activities that are required prior to permit issuance, including the
anticipated time schedule for agency approval of the plan and the time
periods during which the trial burn would be conducted. Applicants who
submit a trial burn plan and receive approval before submission of the
part B permit application must complete the trial burn and submit the
results specified in paragraph (f) of this section with the part B
permit application. If completion of this process conflicts with the
date set for submission of the part B application, the applicant must
contact the Director to establish a later date for submission of the
part B application or the trial burn results. If the applicant submits
a trial burn plan with part B of the permit application, the trial burn
must be conducted and the results submitted within a time period prior
to permit issuance to be specified by the Director.
[FR Doc. 95-29896 Filed 12-8-95; 8:45 am]
BILLING CODE 6560-50-P