[Federal Register Volume 63, Number 204 (Thursday, October 22, 1998)]
[Rules and Regulations]
[Pages 56710-56735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28221]
[[Page 56709]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 264, 265, 270, and 271
Standards Applicable to Owners and Operators of Closed and Closing
Hazardous Waste Management Facilities: Post-Closure Permit Requirement
and Closure Process; Final Rule
Federal Register / Vol. 63, No. 204 / Thursday, October 22, 1998 /
Rules and Regulations
[[Page 56710]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 264, 265, 270, and 271
[FRL-6178-7]
RIN 2050-AD55
Standards Applicable to Owners and Operators of Closed and
Closing Hazardous Waste Management Facilities; Post-Closure Permit
Requirement; Closure Process
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is amending the
regulations under the Resource Conservation and Recovery Act (RCRA) in
two areas. First, the Agency is modifying the requirement for a post-
closure permit, to allow EPA and the authorized States to use a variety
of authorities to impose requirements on non-permitted land disposal
units requiring post-closure care. As a result of this rule, regulators
have the flexibility to use alternate mechanisms under a variety of
authorities to address these requirements, based on the particular
needs at the facility.
Second, for all facilities, the Agency is amending the regulations
governing closure of land-based units that have released hazardous
constituents, to allow certain units to be addressed through the
corrective action program. As a result of this rule, EPA and the
authorized States will have discretion to use corrective action
requirements, rather than closure requirements, to address the
regulated units. This flexibility will reduce the potential for
confusion and inefficiency created by the application of two different
regulatory requirements.
Finally, the Agency is specifying the Part B information submission
requirements for facilities that receive post-closure permits.
DATES: This rule is effective October 22, 1998.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at Crystal Gateway I, First Floor,
1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification
Number is F-98-PCPF-FFFFF. The RIC is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding Federal holidays. To review docket
materials, it is recommended that the public 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 $0.15/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 (800) 424-9346 or TDD (800) 553-7672 (hearing
impaired). In the Washington, DC metropolitan area, call (703) 412-9810
or TDD (703) 412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Barbara Foster, Office of Solid Waste, Mail Code
5303W, U.S. Environmental Protection Agency, 401 M St. SW, Washington
DC 20460, (703-308-7057), [email protected]
SUPPLEMENTARY INFORMATION: The index and the following supporting
materials are available on the Internet: Economic Assessment. Follow
these instructions to access the information electronically:
WWW: http://www.epa.gov/epaoswer/osw/hazwaste.htm#closure
FTP: ftp.epa.gov
Login: anonymous
Password: [email protected]
Files are located in /pub/epaoswer
Preamble Outline
I. Authority
II. Background Information
A. Overview of RCRA Permit Authorities
1. Closure and Post-Closure Care
2. Subpart F
B. Overview of HSWA Corrective Action Authorities
C. Overview of Proposed Rule
1. Elements of the Proposal that are Promulgated in this Final
Rule
a. Post-Closure Care Under Alternatives to Permits
b. Remediation Requirements for Land-Based Units with Releases
to the Environment
c. Post-Closure Permit Information Submission Requirements
2. Elements of the Proposal that are not Promulgated in this
Final Rule
a. State Equivalent--Corrective Action Enforcement Authority for
Interim Status Facilities
b. Timeframes for Closure
III. Section-by-Section Analysis and Response to Comment
A. Overview of Final Rule
1. Post-Closure Care Under Alternatives to Permits
2. Remediation Requirements for Land-Based Units with Releases
to the Environment
3. Post-Closure Permit Part B Information Submission
Requirements
B. Post-Closure Care Under Alternatives to Permits
1. Use of Alternative Mechanisms to Address Post-Closure Care
(Sec. 270.1(c))
a. Detailed Discussion of Final Rule
b. Response to Comment
2. Requirements for Alterative Mechanisms
a. Part B Information Submission Requirements
(Sec. 265.121(a)(1))
b. Subpart F Groundwater Monitoring and Corrective Action
Program (Secs. 265.121(c)(3) and 264.901--264.100)
c. Facility-wide Corrective Action (Sec. 265.121(a)(2))
3. Public Involvement (Secs. 265.121(b))
a. Overview
b. Response to Comment
4. Enforceable Documents Issued Prior to the Effective Date of
this Rule (Sec. 265.121(b)(3)
a. Overview
b. Response to Comment
C. Remediation Requirements for Land-Based Units with Releases
to the Environment
1. Overview
2. Response to Comment
D. Post-Closure Permit Part B Information Submission
Requirements (Sec. 270.28)
1. Overview
2. Response to Comment
IV. State Authorization
A. Authorization of State Programs
B. Enforcement Authorities
C. Effect of this Rule on State Authorizations
D. Review of State Program Applications
1. Post-Closure Care Under Alternatives to Permits
2. Remediation Requirements for Land-Based Units With Releases
to the Environment
3. Post-Closure Permit Part B Information Submission
Requirements
V. Effective Date
VI. Regulatory Assessments
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
F. National Technology Transfer and Advancement Act
G. Executive Order 12898: Environmental Justice
H. Executive Order 12875: Enhancing Intergovernmental
Partnerships
I. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
J. Submission to Congress and the General Accounting Office
VII. Brownfields
I. Authority
These regulations are promulgated under the authority of sections
2002(a), 3004, 3005, and 3006 of the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6912(a), 6924, 6925, and 6926.
II. Background Information
A. Overview of RCRA Permit Authorities
Section 3004 of the Resource Conservation Recovery Act (RCRA)
requires the Administrator of EPA to
[[Page 56711]]
develop regulations applicable to owners and operators of hazardous
waste treatment, storage, or disposal facilities, as necessary to
protect human health and the environment. Section 3005 requires the EPA
Administrator to promulgate regulations requiring each person owning or
operating a treatment, storage, or disposal facility to have a permit,
and to establish requirements for permit applications. Recognizing that
the Agency would require a period of time to issue permits to all
facilities, Congress provided, under section 3005(e) of RCRA, that
qualifying owners and operators could obtain ``interim status'' and be
treated as having been issued permits until EPA takes final
administrative action on their permit applications. The privilege of
continuing hazardous waste management operations during interim status
carries with it the responsibility of complying with appropriate
portions of the section 3004 standards.
EPA has issued numerous regulations to implement RCRA requirements
for hazardous waste management facilities. These include the standards
of 40 CFR Part 264 (which apply to hazardous waste management units at
facilities that have been issued RCRA permits), Part 265 (which apply
to hazardous waste management units at interim status facilities), and
Part 270 (which provide standards for permit issuance).
1. Closure and Post-Closure Care
The closure regulations at 40 CFR Parts 264 and 265 Subpart G
require owners and operators of hazardous waste management units to
close these units in a manner that is protective of human health and
the environment and that minimizes the post-closure releases to the
environment. These regulations also establish procedures for closure:
they require owners and operators to submit closure plans to the Agency
for their hazardous waste management units, and they require Agency
approval of those closure plans.
In addition, Parts 264 and 265 establish specific requirements for
closure of different types of units. Under Parts 264 and 265 Subpart N,
owners and operators of landfills are required to cover the unit with
an impermeable cap designed to minimize infiltration of liquid into the
unit; then owners or operators must conduct post-closure care
(including maintenance of the cap and groundwater monitoring). Under
Subparts K and L of Parts 264 and 265, owners and operators of surface
impoundments and waste piles must either remove or decontaminate all
hazardous waste and constituents from the unit, or leave waste in
place, install a final cover over the unit, and conduct post-closure
care. Closure of land treatment facilities must be conducted in
accordance with closure and post-closure care procedures of
Secs. 264.280 and 265.280. As part of the closure plan approval
process, the Agency has the authority to require owners and operators
to remove some or all of the waste from any type of unit at the time of
closure, if doing so is necessary for the closure to meet the
performance standard of Sec. 264.111 or Sec. 265.111.
Under Subparts I and J of Parts 264 and 265, owners and operators
of non-land based units (e.g., tanks and containers) are required to
remove or decontaminate all soils, structures, and equipment at
closure. Owners and operators of tanks who are unable to do so must
close the unit as a landfill and conduct post-closure care (see, for
example, Sec. 265.197(b)).
Where post-closure care is required, owners and operators must
comply with the requirements of Secs. 264.117-120 or Secs. 265.117-120.
These provisions establish a post-closure plan approval process,
similar to the closure plan approval process, and requirements for
maintenance of the RCRA cap during the post-closure care period.
Facilities also must comply with the groundwater requirements of Part
264 or Part 265 Subpart F during the same period.
2. Subpart F
The requirements of Parts 264 and 265, Subpart F apply to
``regulated units,'' defined in Sec. 264.90(a)(2) as any landfill,
surface impoundment, waste pile, or land treatment unit that received
hazardous waste after July 26, 1982 or that certified closure after
July 26, 1983. While the standards of Parts 264 and 265, Subparts G
(closure and post-closure care) and H (financial assurance) are
equivalent for permitted and interim status facilities, Part 265
groundwater monitoring requirements for interim status land disposal
units are less comprehensive than those established under the Part 264,
Subpart F standards for permitted facilities. Whereas Part 265 sets
minimum standards for the installation of detection monitoring wells
(e.g., one upgradient and three downgradient wells), Part 264
establishes broader standards for establishing a more comprehensive
monitoring system to ensure early detection of any releases of
hazardous constituents. The specific details of the system are worked
out through the permitting process. Consequently, compliance with Part
264 standards usually results in a more extensive network of monitoring
wells. Similarly, Part 265 specifies a limited set of indicator
parameters that must be monitored, while Part 264 establishes a more
comprehensive approach under which the owner or operator is required to
design a monitoring program around site-specific indicator parameters.
As a result, monitoring systems designed in accordance with Part 264
standards are specifically tailored to the constituents of concern at
each individual site. Additionally, Part 264 compliance monitoring
standards are more comprehensive than Part 265 standards both in terms
of monitoring frequency and the range of constituents that must be
monitored. Finally, the Part 264, Subpart F regulations provide for
corrective action for releases to groundwater whereas the Part 265,
Subpart F regulations do not.
B. Overview of HSWA Corrective Action Authorities
In the 1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA,
Congress expanded EPA's authority to address releases from all solid
waste management units (SWMUs) at hazardous waste management
facilities. Section 3004(u) of HSWA required that any permit issued
under section 3005(c) of RCRA to a treatment, storage, or disposal
facility after November 8, 1984, address corrective action for releases
of hazardous wastes or hazardous constituents from any SWMU at the
facility. Section 3004(v) authorized EPA to require corrective action
beyond the facility boundary where appropriate. Section 3008(h)
provided EPA with authority to issue administrative orders or bring
court action to require corrective action or other measures, as
appropriate, when there is or has been a release of hazardous waste or,
(under EPA's interpretation) of hazardous constituents from a facility
authorized to operate under section 3005(e).
In a December 16, 1985 memorandum entitled Interpretation of
Section 3008(h) of the Solid Waste Disposal Act, EPA interpreted
section 3008(h) to apply not only to facilities that met the
requirement for obtaining interim status, but also to facilities that
were subject to but did not fully comply with the requirements for
interim status, as well as to facilities that lost interim status
pursuant to 40 CFR Part 124 or sections 3005(c) or 3005(e)(2) of RCRA.
Later, in an August 10, 1989 memorandum entitled Coordination of
Corrective Action Through Permits and Orders (OSWER Directive
9502.1989(04)), EPA clarified that interpretation by stating that a
section 3008(h) order cannot be issued to a facility after final
disposition of the permit application.
[[Page 56712]]
In practice, the corrective action process is highly site-specific,
and involves direct oversight by the reviewing Agency. Unlike the
closure process, which provides two options (closure with waste in
place and closure by complete removal and decontamination), the
corrective action process provides considerable flexibility to the
Agency to decide on remedies that reflect the conditions and the
complexities of each facility. For example, depending on the site-
specific circumstances, remedies may attain media cleanup standards
through various combinations of removal, treatment, engineering, and
institutional controls.
EPA has codified corrective action requirements at Secs. 264.101,
264.552, and 264.553, and currently implements these requirements
through the permitting process. EPA also implements corrective action
by issuing corrective action orders under section 3008(h) of RCRA. In
addition, to facilitate the corrective action process, EPA proposed
more extensive corrective action regulations on July 27, 1990, under a
new Part 264 Subpart S (see 55 FR 30798). The July 27, 1990 Subpart S
proposal set forth EPA's interpretation of the statutory requirements
at that time. Later, EPA promulgated several sections of that proposal
related to temporary units, corrective action management units, and the
definition of ``facility'' (see 58 FR 8658, February 16, 1993).
On May 1, 1996, the Agency issued a Federal Register notice (61 FR
19432) defining the goals of the corrective action program, and
providing guidance on its implementation. The notice also announced the
Agency's Corrective Action Initiative and soliciting comment on issues
related to the corrective action program. This initiative is a
reevaluation effort to identify and implement improvements to the
corrective action program, and to focus that program more clearly on
environmental results. The notice specified five goals of the
Corrective Action Initiative: (1) to create a consistent, holistic
approach to cleanup at RCRA facilities; (2) to establish protective,
practical cleanup expectations; (3) to shift more of the
responsibilities for achieving cleanup goals to the regulated
community; (4) to focus on opportunities to streamline and reduce
costs; and (5) to enhance opportunities for timely, meaningful public
participation.
C. Overview of Proposed Rule
1. Elements of the Proposal That Are Promulgated in This Final Rule
a. Post-closure care under alternatives to permits. The regulations
promulgated in this rule were proposed by the Agency on November 8,
1994 (see Standards Applicable to Owners and Operators of Closed and
Closing Hazardous Waste Management Facilities; Post-Closure Permit
Requirement; Closure Process; State Corrective Action Authority (59 FR
55778)). That proposal was designed to give EPA and the authorized
States greater flexibility in remediating RCRA facilities by modifying
the regulations in several areas.
First, EPA proposed to allow EPA and authorized States to use a
variety of legal authorities when addressing facilities that require
post-closure care. Under the proposal, the Agency would continue to
impose the same substantive groundwater, post-closure care, and
corrective action requirements as it would under a permit, and would
provide for adequate public participation.
The Agency proposed this change to provide regulators the necessary
flexibility to use the best regulatory approach in addressing these
sites. Prior to today's rule, section 270.1 required owners and
operators of landfills, waste piles, surface impoundments, or land
treatment units that received waste after July 26, 1982, or that ceased
the receipt of wastes prior to July 26, 1982, but did not certify
closure until after January 26, 1983, to obtain post-closure permits
(unless they demonstrated that they met the Sec. 270.1 requirements for
closure by removal).
In the case of operating land disposal facilities, the RCRA permit,
when first issued, incorporates the closure plan and applicable post-
closure provisions. These post-closure conditions become effective
after the facility ceases to manage hazardous waste and the closure
plan has been implemented. The permit, when issued, also requires
compliance with Part 264 Subpart F groundwater monitoring standards.
Permits issued after November, 1984 also would impose the facility-wide
corrective action requirements of RCRA section 3004(u), if necessary.
For interim status facilities that close without obtaining an
operating permit, the requirement for a post-closure permit (typically
issued after completion of closure) performed an important regulatory
function. First, to secure a permit, the facility had to meet the
permit application requirements of Part 270, which require extensive
information on the hydrogeologic characteristics of the site and extent
of any groundwater contamination. Second, once the post-closure permit
was issued, the facility became subject to the standards of Part 264
rather than Part 265, most significantly to the site-specific
groundwater monitoring requirements of Part 264 Subpart F. Third, the
post-closure permit imposed facility-wide corrective action to satisfy
the requirements of section 3004(u). Finally, the public involvement
procedures of the permitting process assure that the public is informed
of and has an opportunity to comment on permit conditions.
The requirement for post-closure permits was promulgated in 1982.
At the time, the Agency believed that permits would be the most
effective means to develop site-specific groundwater monitoring
programs tailored to individual waste management facilities (see 47 FR
32366, July 26, 1982). Since that time, the Agency and the authorized
States have issued hundreds of permits to closed and closing interim
status facilities. In the course of issuing these permits, EPA and the
States have encountered many facilities where post-closure permit
issuance proved difficult or, in some cases, impossible. Generally, the
Regions and States have encountered two major difficulties when issuing
post-closure permits. First, some facilities chose to close, or are
forced to close, because they cannot comply with Part 265 standards--
particularly, groundwater monitoring and financial assurance. If a
facility cannot meet these requirements, EPA cannot issue a permit to
it because section 3005(c) of RCRA requires facilities to be in
compliance with applicable requirements at the time of permit issuance.
Second, owners or operators often have little incentive to seek a post-
closure permit. Without a strong incentive on the part of the facility
owner or operator to provide a complete application, the permitting
process can be significantly protracted.
To address environmental risk at facilities such as those described
above, Regions and States have frequently utilized legal authorities
other than permits. Use of enforcement actions enables the Agency to
place these facilities on a schedule of compliance for meeting
financial assurance and/or groundwater monitoring requirements over a
period of time. And, even where enforcement actions cannot bring about
full regulatory compliance (e.g., where the owner or operator cannot
secure financial assurance), they enable the
[[Page 56713]]
Agency to prescribe actions to address the most significant
environmental risks at the facility. For example, EPA has often issued
corrective action orders under the authority of section 3008(h) to
address releases from regulated units and/or other SWMUs at these
facilities. In other cases, Federal or State Superfund authorities have
been used to address cleanup at sites. However, prior to this rule, EPA
or the State was still required to issue a post-closure permit even
where the environmental risks associated with the facility were
addressed through other authorities.
EPA is promulgating, with minor revisions, those provisions of the
November 8, 1994 proposal that remove the requirement to issue post-
closure permits at each facility, and allow post-closure care
requirements to be imposed using either permits or approved alternate
authorities. Those provisions are promulgated in this rule in
Secs. 265.121, 270.1(c), and 271.16, and are discussed in sections
III.A. and III.B. below.
b. Remediation requirements for land-based units with releases to
the environment. The November 8, 1994 proposal also solicited comment
on several issues related to the regulatory distinction between
regulated units and SWMUs.
In 1982, when the regulatory structure for closure was established,
the Agency had little experience with closure of RCRA regulated units.
Since 1982, the Agency and authorized States have approved hundreds of
closure plans, and overseen the closure activities taking place under
those plans. It has become evident that closure of these units is
frequently more complex than EPA envisioned in 1982. In many cases,
particularly with unlined land-based units, the unit has released
hazardous waste and constituents into the surrounding soils and
groundwater. In some cases, the unit may be located near SWMUs or areas
of concern that also have released hazardous constituents to the
environment. As a result, the cleanup of similar releases may be
subject to two different sets of standards and two different sets of
procedures. EPA is concerned that this dual regulatory structure may
unnecessarily impede cleanups.
In the November 8, 1994 proposal, the Agency addressed this issue
by requesting comment on giving discretion to the Agency or the
authorized State to impose requirements developed for corrective action
in lieu of the requirements of Subparts F (groundwater), G (closure and
post-closure), and H (financial assurance) at certain regulated units.
After reviewing the comments, which largely supported the concept, EPA
has decided to promulgate provisions providing that discretion for
certain regulated units, both permitted and interim status, that appear
to have released to the environment, if SWMUs also appear to have
contributed to the same release. Those provisions are promulgated in
this rule in Secs. 264.90(f), 264.110(c), 264.140(d), 265.90(f),
265.110(d), and 265.140(d), and are discussed in sections III.A. and
III.C. below.
c. Post-closure permit information submission requirements. In the
November 8, 1994 rule, EPA proposed to add a new Sec. 270.27 to
identify that subset of the Part B application information that must be
submitted for post-closure permits. Under that provision, an owner or
operator seeking a post-closure permit would have to submit only that
information specifically required for post-closure permits under that
section, unless otherwise directed by the Regional Administrator. Under
the proposal, the information required under Sec. 270.27 would be
submitted upon request by the Regional Administrator.
Proposed Sec. 270.27 is promulgated in Sec. 270.28 of this final
rule.
2. Elements of the Proposal That Are not Promulgated in This Final Rule
a. State equivalent--corrective action enforcement authority for
interim status facilities. The November 8, 1994 proposal also would
have required States to adopt enforcement authority equivalent to
section 3008(h) corrective action authority as part of their authorized
program. Though many commenters supported this portion of the proposal,
many State commenters strongly objected to it for several reasons.
Although EPA has the authority to require authorized States to have
adequate enforcement programs, the Agency, after considering public
comment, has decided not to proceed at this time with the requirement
that States adopt section 3008(h)-equivalent authority as part of their
authorized enforcement program. EPA believes the States raised
significant issues that would need to be resolved prior to
promulgation. This is not a final decision on this issue--the Agency
may determine at a future date to adopt such a requirement.
EPA notes that States seeking authorization to issue enforceable
documents in lieu of post-closure permits will need to submit their
alternative legal authorities to EPA for review. As part of that
review, EPA will determine whether the State authorities are broad
enough to impose facility-wide corrective action at interim status
facilities. Submission of these alternative authorities will be
required only for States seeking authorization for this rule. It will
not be required of all States.
b. Timeframes for closure. The November 8, 1994 proposal requested
comment on whether the Agency should make modifications to the closure
process, in particular, to the timeframes for closure. The Agency
recognized that the current timeframes may, in some cases, not be
adequate where the closure is really a cleanup activity, rather than
the more straightforward capping or waste removal activities
contemplated in 1982.
Though public comment generally agreed that the closure timeframes
are not adequate, the Agency is not promulgating this provision of the
November 8, 1994 proposal at this time. EPA, however, is promulgating a
rule that will allow overseeing agencies to replace closure
requirements--including closure timeframes--with requirements developed
under corrective action, at some facilities. EPA expects that these
revisions will allow site-specific flexibility for timeframes for some
of the complex closures, thereby providing, in part, the relief
intended by the proposal.
III. Section-by-Section Analysis and Response to Comment
A. Overview of Final Rule
1. Post-Closure Care Under Alternatives to Permits
This final rule creates an optional, new procedural mechanism for
imposing requirements on units or facilities that closed without
obtaining a permit. It ensures that these units have to meet the same
substantive requirements that apply to units receiving post-closure
permits.
The post-closure requirements for permitted facilities in Part 264
are more extensive than the analogous Part 265 interim status
requirements in three areas: (1) the requirements for submission of
information under Part 270; (2) Part 264 Subpart F requirements for
groundwater management and corrective action for releases to
groundwater; and (3) facility-wide corrective action requirements for
releases from SWMUs under Sec. 264.101. To impose equivalent
requirements at interim status facilities, EPA or an authorized State
must issue an enforceable document that performs many of the functions
of a permit. Thus, the enforceable document must impose: (1) the
requirements of new
[[Page 56714]]
Sec. 265.121(a)(1), which imposes information requirements that are
relevant to closed facilities needing permits only for post-closure
care; (2) the requirements of new Sec. 265.121(a)(3), which applies
Part 264 groundwater standards to the regulated unit; and (3) the
requirements of new Sec. 265.121(a)(2), which imposes facility-wide
corrective action consistent with Sec. 264.101.
The remaining requirements that apply during the post-closure care
period relate to the maintenance of the closed unit and financial
responsibility. The permitting and interim status standards for these
requirements are virtually identical. Consequently, these requirements
need not be addressed in the enforceable alternative to the permit--
rather, the relevant portions of Part 265 Subparts G and H will
continue to apply. Post-closure care requirements will normally
continue to be set out in the facility's approved closure plan.
Financial responsibility requirements are self-implementing. (Of
course, EPA or an authorized State may chose to incorporate the Part
265 requirements for post-closure care and financial responsibility
into an enforceable document, if they wish.)
The new, non-permit mechanisms provide opportunities for public
participation, which differ somewhat from those set out in the permit
issuance and modification procedures of Parts 124 and 270. EPA's new
requirements reflect the Agency's efforts to provide as much public
participation as possible, but also reflect the Agency's awareness that
most of the alternate mechanisms used to address corrective action will
be enforcement orders.
The current procedures for issuing post-closure permits first
provide an opportunity for public comment at the time the permit is
issued. This typically means that the public is able to comment on the
plan for investigating suspected releases at the facility. Permit
modification procedures then provide opportunities to comment at the
time the permit authority selects a remedy for the facility. They also
provide an opportunity to comment when the permit authority concludes
that corrective action is complete. Under the Federal rules used by
EPA, opportunities to file administrative appeals are available after
each of these steps. (EPA, however, does not require States to provide
for administrative appeals of permits).
The new public participation requirements for enforceable documents
are codified at Sec. 265.121(b). They require the overseeing agency to
provide public notice and an opportunity to comment: (1) when the
Agency becomes involved in a remediation at the facility as a
regulatory or enforcement matter; (2) on the proposed remedy and the
assumptions upon which the remedy is based; and (3) prior to making the
final decision that remedial action is complete at the facility. They
do not require either EPA or the States to provide opportunities for
administrative appeals. EPA recognizes that, at least at the Federal
level, this changes the opportunities for public involvement in the
requirements that will govern closed hazardous waste facilities. EPA
believes these requirements equal, and in some respect exceed, the
current permitting requirements for public participation. On the other
hand, the new requirements do not require an opportunity for
administrative appeal. While this approach to a certain extent lessens
the public's opportunity to challenge a decision, EPA believes that
rights to administrative appeals (which can be exercised by a regulated
facility as well as the public) are inappropriate in an enforcement
context.
The final rule defines ``enforceable document'' at
Sec. 270.1(c)(7). Generally, Federal orders under section 3008(h) of
RCRA and section 106 of CERCLA will fall within this definition and be
eligible, as well as State orders issued under authorities reviewed and
approved by EPA. Fund-financed actions under section 104 of CERCLA also
will be eligible. Closure and post-closure plans, and State enforcement
authorities analogous to RCRA section 3008(a) enforcement authority
also will be appropriate mechanisms.
Table 1 summarizes these requirements.
Table 1.--Enforceable Documents in Lieu of Post-Closure Permits
----------------------------------------------------------------------------------------------------------------
Regulations for enforceable
Subject Regulations for permits documents
----------------------------------------------------------------------------------------------------------------
Facility Information................ Sec. 270.28........................ Sec. 270.28 (see Sec. 265.121)
Groundwater Protection.............. Part 264, Subpart F *............... Part 264, Subpart F (see Sec.
265.121) *
Corrective Action................... Sec. 264.101....................... Sec. 264.101 (see Sec. 265.121)
Public Participation................ Parts 124 and 270................... Sec. 265.121
Financial Responsibility............ Part 264, Subpart H *............... Part 265, Subpart H *
Post-Closure Care of Regulated Unit. Part 264, Subpart G *............... Part 265, Subpart G *
----------------------------------------------------------------------------------------------------------------
* For certain land-based units suspected of contributing to releases to the environment, these requirements may
be replaced by site-specific requirements developed under corrective action. See new Secs. 264.90(f),
264,110(c), 264.140(d), 265.90(f), 265.110(d), and 265.140(d) of this final rule.
2. Remediation Requirements for Land-Based Units With Releases to the
Environment
The second portion of this final rule provides flexibility to
regulators in another area of the RCRA regulations. As described above,
two different sets of RCRA requirements arguably apply to a single
release if both regulated units and SWMUs have contributed to the
release. This rule provides flexibility to harmonize the two sets of
requirements by substituting corrective action requirements for
requirements for regulated units set out in Part 264 (for permitted
facilities) or Part 265 (for interim status facilities). These
optional, new provisions are available to regulators at a broad range
of RCRA facilities, including, but not limited to, those covered by the
change to post-closure permitting described above.
This portion of the rule provides EPA and authorized States with
discretion to prescribe alternative groundwater monitoring, closure and
post-closure, and financial responsibility standards at both operating
and closed facilities, where EPA (or a State) finds that a release of
hazardous waste or hazardous constituents has occurred, and both a
regulated unit and one or more SWMUs
[[Page 56715]]
(or areas of concern \1\) are likely to have contributed to the
release.
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\1\ Area of concern means any area of a facility under the
control or ownership of an owner or operator where a release to the
environment of hazardous wastes or hazardous constituents has
occurred, is suspected to have occurred, or may occur, regardless of
the frequency or duration (see final RCRA section 3008(h) Model
Consent Order, December 15, 1993).
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For permitted facilities, the alternative standards will be issued
in the permit (or issued in an enforceable document (as defined in
Sec. 270.1(c)(7))), which is referenced in the permit). EPA and
authorized States may develop the cleanup requirements for the
regulated unit and SWMUs under non-permit authorities, such as CERCLA
or a State superfund statute, but they must incorporate them into the
permit, or incorporate them into an enforceable document, which is
referenced in the permit.
For interim status facilities, EPA or States authorized to
implement this portion of this final rule must impose alternative
closure, groundwater monitoring, and/or financial responsibility
standards for interim status facilities in an enforceable document.
``Enforceable documents'' for this rule include RCRA section 3008(h)
orders, actions under sections 104 or 106 of CERCLA, or State actions
under authorities reviewed and approved by EPA as described below. If
EPA or an authorized State issues alternative closure standards, the
facility's closure plan and/or post-closure plan must be amended to set
forth the alternative provisions, or to reference the enforceable
document that sets forth those provision.
3. Post-Closure Part B Permit Information Submission Requirements
To ensure substantive equivalency of authorities used in lieu of
post-closure permits, this final rule requires owners and operators to
submit the same information specifically required for post-closure
permits, upon request by the Agency, when an alternative authority is
used in lieu of a post-closure permit. Section 265.121(a)(1) requires
owners and operators obtaining enforceable documents in lieu of post-
closure permits to submit the information required in Sec. 270.28.
Section 270.28,\2\ which is promulgated in this final rule,
establishes information submission requirements for post-closure
permits. As is discussed in detail in section III.D. of this preamble,
Sec. 270.28 specifies information that the Regional Administrator will
request to issue a post-closure permit, and requires owners and
operators to submit that information. It includes information the
Agency believes will be important for all post-closure permits, that
is, groundwater characterization and monitoring data, information
related to long-term care of the regulated unit and monitoring systems,
and information on SWMUs and possible releases. In addition,
recognizing that additional information may be needed on a site-
specific basis, Sec. 270.28 also allows the Regional Administrator to
require any of the Part B information specified in Secs. 270.17,
270.18, 270.20, and 270.21. Section 265.121(a)(1) adopts this approach
for alternative mechanisms as well.
---------------------------------------------------------------------------
\2\ This provision was promulgated as Sec. 270.72.
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B. Post-Closure Care Under Alternatives to Permits
1. Use of Alternative Mechanisms To Address Post-Closure Care
(Sec. 270.1(c))
a. Detailed discussion of final rule. Section 270.1(c), amended by
this rule, requires owners and operators closing unpermitted regulated
units with waste in place either to: (1) obtain a post-closure permit,
or (2) comply with the alternative post-closure requirements of
Sec. 270.1(c)(7). Prior to this rule, owners and operators of regulated
units requiring post-closure care had to obtain permits for the post-
closure period. This rule, by allowing another alternative to post-
closure permitting, provides regulators with flexibility to address the
post-closure period at RCRA facilities using a variety of legal
authorities, including enforcement mechanisms.
Facilities that close with waste in place, without obtaining a
permit, and then use non-permit mechanisms in lieu of a permit to
address post-closure responsibilities, will have to meet three
important requirements that apply to facilities that receive permits:
(1) the more extensive groundwater monitoring required under Part 264,
as they apply to regulated units; (2) certain requirements for
information about the facility found in Part 270 that enable the
overseeing agency to implement the Part 264 monitoring requirements;
and (3) facility-wide corrective action for SWMUs as required under
Sec. 264.101. These requirements are set out in new Sec. 265.121, which
applies to interim status facilities requiring post-closure care.
EPA and States authorized for this rule must impose these
requirements in enforceable documents, as defined in Sec. 270.1(c)(7)
of this rule, if they are being issued in lieu of permits. Federal
enforcement orders issued under sections 3008(a) and 3008(h) qualify as
enforceable documents. Post-closure plans issued by EPA under
Sec. 265.118, which are enforceable under section 3008(a), also will
qualify. Orders issued under section 106 of CERCLA will also be
eligible, as will decision documents describing response actions under
CERCLA section 104. Although response actions under section 104 are
often carried out by EPA using monies from the Superfund, rather than
by responsible parties under orders, it is reasonable to rely on them
because EPA is responsible for carrying out the cleanup work. EPA does
not intend this rule to revise the existing policy to defer from
listing on Superfund's National Priorities List (NPL) those facilities
that are subject to RCRA corrective action. However, since the policy
permits the listing of some RCRA facilities on the NPL (such as
bankrupt or recalcitrant facilities), some of the facilities subject to
this rule may also be eligible for cleanup under CERCLA section 104,
and EPA (or an authorized State) may wish to rely on the CERCLA action
to discharge the facility's cleanup responsibilities.
States obtaining authorization for this rule will be able to use
enforceable cleanup orders similar to EPA's section 3008(h) orders, as
well as State superfund authorities. EPA has not yet formally reviewed
these State cleanup authorities, so it will require States that wish to
use them to submit them for review as part of the State authorization
process. EPA will determine whether they provide: (1) the substantive
requirement of adequate authority to compel cleanup of all releases
from SWMUs within a facility's boundary, as needed to protect human
health and the environment (see new Sec. 265.121(a)(2)), and (2)
procedural requirements to ensure compliance (i.e., adequate penalty
and injunctive authority to address failures to comply)(see new
Sec. 271.16(e)). EPA does not anticipate that plans for truly
``voluntary'' cleanups will meet the enforceability requirement,
although it is willing to look at mechanisms called ``voluntary'' plans
or agreements to determine whether the State has adequate authority to
compel compliance. (EPA emphasizes that this rule does not preclude the
use of State ``voluntary'' authorities to address cleanup at RCRA
facilities and, indeed, EPA encourages their use under the appropriate
circumstances. Nor does it affect the ability of EPA Regions to enter
into memoranda of agreement or other mechanisms promoting the use of
State voluntary programs at RCRA facilities, where appropriate. This
rule only
[[Page 56716]]
addresses the question of whether the State uses these authorities to
satisfy the post-closure permit obligation.)
EPA expects that, in some cases, the overseeing agency or agencies
will choose to use more than one mechanism to ensure that the
substantive post-closure requirements in new Sec. 265.121 are imposed.
For example, if EPA were addressing a facility with releases at SWMUs
and a regulated unit with no release, it could issue a section 3008(h)
order to address the releases from the SWMUs. EPA, however, might
decide that such an order would not be the most effective means of
imposing long-term groundwater monitoring requirements for the non-
leaking regulated unit. The new requirements could be imposed on the
regulated unit in a revised interim status post-closure plan.
Alternatively, EPA could issue a section 3008(a) order to enforce the
new requirements (codified in this rule at Sec. 265.121). Sometimes,
multiple agencies may be involved. For example, a State that does not
have a cleanup order authority could revise an interim status post-
closure plan (or issue a State enforcement order analogous to section
3008(a)) to address a regulated unit, and rely on an EPA section
3008(h) order to address any releases from SWMUs.
Facilities subject to the new Sec. 265.121 will remain subject to
all other applicable interim status requirements, including
requirements for financial assurance. These remaining interim status
requirements are virtually identical to permit requirements, so there
is no need to address them in the new alternatives to post-closure
permits. These interim status requirements will continue to be
enforceable under section 3008(a) and analogous State authorities.
Facilities subject to the new Sec. 265.121 also will remain subject
to section 3008(h) authority unless or until EPA or the authorized
State issues a final disposition of a permit application under
Sec. 270.73, thereby terminating interim status at the facility. It
should be noted that in a Federal Register notice dated May 1, 1996 (61
FR 19432, at 19453-4) EPA erroneously stated that facilities at which
the regulated units clean closed under interim status no longer have
interim status. EPA corrects that statement in this rule and restates
the Agency's longstanding position that interim status is terminated
only by a final disposition of a permit application, or by the methods
outlined in Sec. 270.73, which do not include clean closure. The May 1,
1996, Federal Register notice correctly stated that section 3008(h)
continues to apply at clean closed facilities where there has been no
final disposition of a permit application. Similarly, section 3008(h)
continues to apply at facilities addressed through an approved
alternate authority until final disposition of a permit application
under Sec. 270.73. Issuance of an alternate mechanism does not
terminate interim status authorities.
b. Response to comment. Commenters on the proposed rule largely
supported the provisions that would remove the permit requirement. Many
commenters agreed with the Agency that the rule allows flexibility to
regulators, yet maintains protection of human health and the
environment.
Some commenters objected that the Agency should have the authority
to issue an order or a permit, but should not be able to issue an
order, and later to issue a permit to the facility. EPA disagrees. The
Agency currently has the authority to issue a permit after the facility
is addressed through an alternate authority, such as an enforcement
order. This rule does not modify the Agency's authority to issue
permits in this situation. Rather, it takes away the permitting
obligation in cases where the facility is addressed through an
alternate mechanism, by making the permit one of several options to
address the facility. EPA believes this approach makes sense, and
allows EPA to chose the best available mechanism, while retaining
authority to use whatever authority is necessary to protect human
health and the environment. EPA notes, however, that it is not likely
to issue a permit to impose requirements that a facility has already
satisfied under an alternate, enforceable document. Rather, it would
limit a permit to requirements that, for some reason, had not been
fully satisfied.
Several commenters expressed concern over discussion in the
preamble of the November 8, 1994 proposal related to uncooperative
facilities. The preamble explained that where the owner or operator is
financially incapable of meeting the threshold requirements for permit
issuance, such as compliance with the financial assurance requirements,
or where the owner or operator may be uncooperative and an enforcement
action is necessary, the post-closure permit is likely not the best
mechanism to use. The preamble further explained that a post-closure
permit will generally be the preferable mechanism for cooperative
facilities capable of meeting financial assurance requirements.
Several commenters interpreted this discussion to limit the use of
alternate mechanisms to uncooperative facilities not in compliance with
applicable financial assurance and groundwater requirements. Commenters
objected that facilities should not be rewarded for non-compliance, and
that the proposal was making the post-closure care process more
burdensome for compliant facilities. Other commenters thought the
Agency was proposing to exempt non-compliant facilities from certain
requirements.
The Agency did not intend to limit the use of alternate authorities
to facilities not in compliance with applicable RCRA requirements. EPA
only identified these facilities as examples of where an enforcement
mechanism was more appropriate than a permit. Furthermore, EPA does not
consider the imposition of alternative enforcement authorities to be a
``reward,'' since such authorities might often include stipulated
penalties and, in any case, would impose the same substantive standards
as a permit. EPA will retain section 3008(a) authority to enforce
against closed interim status facilities that have failed to meet Part
265 financial assurance requirements. As to groundwater monitoring,
this rule will substitute the stricter Part 264 requirements for the
original Part 265 requirements. EPA will retain authority to use
section 3008(a) to enforce past violations of the Part 265 monitoring
requirements and to assure that the facility complies with Part 264
requirements once they are put in place by a revised interim status
post-closure plan (or other enforceable mechanism). The rule will also
require facility-wide corrective action as required under permits. More
important, EPA notes that the new authority to use alternatives to
post-closure permits is not limited to facilities that are out of
compliance with Part 265 requirements. All facilities that have closed
(or that, in the future, will close) with waste in place without
obtaining a permit are eligible.
Many commenters objected that this preamble discussion appeared to
remove the interim status groundwater and financial assurance
requirements at facilities not in compliance with the regulations.
However, the Agency did not eliminate interim status financial
assurance requirements. Facilities addressed through alternate
mechanisms remain subject to the financial assurance requirements of
Part 265 Subpart H. They become subject to the more prescriptive
groundwater requirements of Part 264 Subpart F. Rather than waive
requirements at non-compliant facilities, as commenters believe, this
rule continues to require compliance with upgraded requirements.
Some commenters believed that the choice of mechanism should be
left to the facility, or that the options should
[[Page 56717]]
be discussed at length to achieve consensus. These commenters believed
that an otherwise reluctant owner or operator is more likely to commit
resources to meet agency goals if regulatory alternatives and
consequences are clearly discussed and understood up-front.
Other commenters believed that the regulations should specify when
an alternative authority would be used in lieu of a permit, and remove
some of the Agency's discretion.
EPA did not take either approach suggested by these commenters. EPA
agrees with commenters that the owner or operator generally should be
involved in discussions related to the selection of mechanisms. This is
particularly true of cooperative facilities in compliance with
applicable requirements and eligible for post-closure permits. EPA
intends to take into consideration the preference of facility owners
and operators in deciding how to address these facilities, and it
encourages authorized States to do so as well. However, EPA believes
that it is important to provide the Agency and authorized States
flexibility to consider all factors when deciding what authority to use
to address a site. These factors will include conditions at the site,
the availability of alternate State authorities, availability of
resources, preference of the owner or operator and the local public,
and the compliance status of the owner or operator. The Agency believes
that by attempting to establish criteria in this rule, it would
unnecessarily limit the flexibility to make the decision that best
ensures protection of human health and the environment at each site.
Some commenters believed the owner or operator should have
opportunity to challenge the Agency's or authorized State's choice of
mechanism. EPA disagrees, and believes that the choice of mechanism to
use to address a facility is an inherently governmental decision that
should not be subject to challenge. EPA believes this approach is
consistent with longstanding policy on enforcement discretion, and is
vital to an effective enforcement program.
This rule limits the use of alternate mechanisms to facilities that
have not received permits. Some commenters believed that the Agency
should modify the rule to allow permits to be converted to orders and
allow owners or operators of permitted facilities to address the post-
closure period through another mechanism.
EPA has not adopted the commenter's suggestion, as this rulemaking
deals only with alternative mechanisms for closed facilities that have
not yet received post-closure permits. It should be noted that existing
Secs. 264.117(a)(2)(i) and 265.117(a)(2)(i) address commenters' concern
to some extent by allowing the Agency to shorten the post-closure
period upon a determination that the shortened period is protective of
human health and the environment.
Another commenter suggested that EPA should be allowed to use
alternative authorities at closed facilities, needing post-closure
permits, that have submitted a Part B permit application. The Agency
agrees that it should not be precluded from using alternative
mechanisms at these facilities so long as it has not issued a Part B
permit.
Some commenters objected to the provisions of the rule that would
remove the requirement that EPA use the post-closure permit as the
vehicle to impose Part 264 requirements for post-closure care. One
commenter believed that the Agency should use enforcement orders to
overcome the obstacles to permitting it described (such as non-
compliance with financial assurance requirements). This commenter
believed that post-closure permitting is protracted because EPA has not
used its enforcement authority to move facilities through the
permitting process, and has not made issuing post-closure permits a
priority.
EPA disagrees with this commenter. There are many facilities in the
RCRA universe that are not able to meet the financial assurance
requirements of Subpart H. While EPA can take enforcement actions
against these facilities to bring them into compliance to the extent
possible, there are some facilities that never will be able to meet
those requirements, despite an enforcement order. As was explained
above, EPA will not be able to issue permits to such facilities.
Further, the Agency believes that the flexibility provided by this rule
is important, not only to address non-compliant facilities, but to
allow regulators to use the most appropriate authority available to
them at all facilities. This choice may be based on many factors,
including the specific conditions at the facility, availability of
approved alternate State cleanup authorities, and recalcitrance of the
facility. Thus, while the Agency agrees with the commenter that it is
important to take enforcement actions against facilities to bring them
into compliance whenever possible, and that enforcement authorities
should be used to expedite the permitting process, it does not agree
that post-closure permits should or can be issued to all facilities.
Further, EPA is more interested in obtaining environmental results than
in the choice of mechanism used, and in eliminating redundant
processes.
Other commenters believed that the Agency remains subject to the
permit deadline for land disposal facilities in RCRA section
3005(c)(2)(A)(i). Those commenters believed that revisions to the rules
that reduce the existence of or scope of this mandatory duty to issue
post-closure permits in a timely manner violate section 3005(c) of
RCRA, and that Congress enacted the permit deadlines based upon the
rules then in effect.
EPA agrees that section 3005(c) of RCRA required the Administrator
to issue or deny a final permit for each applicant for a land disposal
permit by November, 1988. EPA also agrees that, so long as its
regulations require it to issue post-closure permits to land disposal
facilities, those post-closure permits are subject to the statutory
deadline. EPA, however, does not agree that section 3005(c) deprives it
of authority to determine whether post-closure permits are necessary or
desirable means of imposing post-closure care requirements. Section
3005(c) imposes a deadline for permitting, but does not define the
scope of the permitting requirement.
In 1982, when EPA promulgated the post-closure permit requirement,
it had discretion under the statute to choose a procedural mechanism
for imposing post-closure care requirements on facilities that closed
while in interim status. It selected permits rather than interim status
closure plans or other alternatives. The fact that Congress enacted a
deadline for issuing permits to land disposal facilities in 1984 did
not change that discretion. Nothing in the statute or the legislative
history of the section 3005(c) indicates that Congress was aware of or
concerned about EPA's use of permits to impose post-closure care
requirements at facilities closing under interim status. The
legislative history of other portions of the 1984 amendments suggests
that Congress was concerned that EPA's 1984 regulations for land
disposal facilities imposed more stringent requirements for ground-
water monitoring and closure on permitted facilities than on interim
status facilities. EPA, however, has eliminated this discrepancy,
amending the rules for closure on March 19, 1987 (see 52 FR 8704), and
the rules for groundwater monitoring today.
Essentially, this commenter argues that Congress ``ratified'' EPA's
1982 post-closure permit rule, making it part of the statute so that
EPA could no longer revisit it. EPA does not agree with this
interpretation of section 3005(c). Nothing in the statute or the
[[Page 56718]]
legislative history suggests that Congress wanted to prohibit EPA from
revising this part--or, indeed, any part--of the rules defining the
scope of the permit requirement. The same is true for the requirement
for public participation in permitting set out in section 7004(b)(1) of
RCRA. There is no evidence that Congress intended the public
participation requirements to create a statutory duty to issue post-
closure permits.
EPA acknowledges that it could deny post-closure permits for all of
the land disposal facilities that obtain enforceable documents in lieu
of post-closure permits. Permit denials would satisfy the requirement
of section 3005(c) to issue or deny final permits. EPA, however, does
not believe that Congress intended it to impose a deadline on the
denial of permits for facilities no longer obligated to have them. The
Agency believes it is simply not reasonable to interpret the statute to
require EPA to spend scarce resources on actions with so little
environmental significance.
Other commenters questioned whether issuance of an alternate
mechanism would terminate interim status. This rule does not modify the
requirements to terminate interim status, which are outlined in
Sec. 270.73. Thus, facilities that have units that closed with waste in
place under interim status, and do not receive a post-closure permit as
a result of this rule, will remain in interim status until there is
final disposition of a permit application (in the case of these closed
facilities, a permit denial) under Sec. 270.73(a). EPA recognizes that
owners and operators may want to terminate interim status when all RCRA
activities are complete at a facility to bring finality to those
activities, and that this is an important issue not only to facilities
subject to post-closure requirements, but to all facilities that closed
without obtaining a RCRA permit. EPA plans to issue guidance related to
denial of permit applications for purposes of terminating interim
status at closed facilities that have completed all RCRA activities,
including facility-wide corrective action.
The Agency agrees that some integration of the closure and
facility-wide corrective action requirements is warranted. The Agency
has taken steps in this final rule to address the situation where two
units are involved in the same remedy and there is potential for the
two sets of requirements to conflict.
Other commenters raised concerns that the rule would affect EPA's
current policy of using only one authority--CERCLA or RCRA--at a site.
Another commenter conditioned support for the proposal on EPA
clarifying that it does not intend to modify its current Superfund
policy that defers remediation activities to RCRA corrective action
authority. On June 10, 1986, EPA published a final policy that allowed
the Agency to defer listing RCRA-related sites on Superfund's National
Priorities List (see 51 FR 21054). This commenter is concerned that if
the Agency adopts the rule as proposed, which would allow use of
Superfund orders as an alternative mechanism for RCRA post-closure
permits, then the Agency would begin to deviate from that policy. The
commenter believes that the reasons for deferral to RCRA authority
cited in the deferral policy are still valid.
This rule does not modify the Agency's current policies related to
the applicability of CERCLA and RCRA at hazardous waste sites. For
example, the rule does not affect CERCLA listing policy. The Agency
expects that RCRA facilities will, generally, continue to be handled
under RCRA, rather than CERCLA. Rather, the result of this rule is that
once the Agency decides to address a site under CERCLA authority, EPA
is no longer required to issue a post-closure permit at the site, as
long as the CERCLA cleanup has the same scope as a corrective action
cleanup would have.
2. Requirements for Alternative Mechanisms
Under the provisions of this rule that remove the requirement for
post-closure permits, regulated units that do not obtain a post-closure
permit generally will remain subject to the requirements for interim
status units throughout the post-closure care period. However, because
the interim status post-closure care requirements are in some respects
less stringent than post-closure permit requirements, the Agency is
promulgating Sec. 265.121. This section recognizes the difference in
substantive requirements applicable to permitted and interim status
post-closure units, and assures that this rule will not result in less
stringent requirements at units addressed through alternate mechanisms.
Specifically, Sec. 265.121 requires owners and operators of
regulated units addressed through an alternate mechanism to comply with
the groundwater requirements of Part 264 Subpart F (with respect to
that unit), to submit information required under Part 270, and to
address facility-wide corrective action. EPA will review State order
authorities to ensure that they are capable of imposing these
requirements before authorizing States to use them.
a. Part B Information Submission Requirements (Sec. 265.121(a)(1)).
i. Overview. To ensure substantive equivalency of authorities used in
lieu of post-closure permits, this rule requires owners and operators
to submit the Part 270 information specifically required for post-
closure permits, upon request by the Agency, when an enforceable
document is issued in lieu of a post-closure permit. The information
submission requirements for post-closure permits are promulgated in
this final rule in Sec. 270.28, and are discussed in detail in section
III.D. of this preamble. Section 270.28 specifies information the
Agency believes will be important for all post-closure permits, and, in
turn, for all enforceable documents issued in lieu of post-closure
permits, that is, groundwater characterization and monitoring data,
information related to long-term care of the regulated unit and
monitoring systems, and information on SWMUs and possible releases.
In addition, recognizing that additional information may be needed
on a site-specific basis, Sec. 270.28 also allows the Regional
Administrator to require any of the Part B information specified in
Secs. 270.17, 270.18, 270.20, and 270.21. Section 265.121(a)(1) adopts
this approach for enforceable documents issued in lieu of post-closure
permits as well.
ii. Response to Comment. One commenter asked EPA to state
explicitly in the rule that facilities pursuing the alternative
approach would not be required to submit the information required in
Sec. 265.121(a)(1) any earlier than they would otherwise be required to
submit a Part B application. EPA agrees with the commenter that the
information would not be required earlier in the case of an alternate
authority than it would be in the case of a permit. In the case of
post-closure permits, the Agency typically calls in Part B information
when it is ready to begin working on the permit application. This has
become the Agency's practice because the Agency recognizes that, if
information is submitted earlier, it can become outdated and have to be
replaced when it is time to work on the permit. The Agency is extending
this practice to instances where a non-permit mechanism is used to
address post-closure care. As in the case of the post-closure permit,
the information required by Sec. 265.121(a)(1) for non-permitted
facilities need not be submitted to the Agency until the Agency
requests it.
[[Page 56719]]
b. Subpart F Groundwater Monitoring and Corrective Action Program
(Secs. 265.121(c)(3) and 264.90--264.100). i. Overview. This rule
requires owners and operators of facilities with regulated units
addressed through a non-permit mechanism under Sec. 270.1(c)(7) to meet
the requirements of Part 264, Subpart F. Section 265.118(c)(4) requires
that the post-closure plan include provisions that implement the Part
264 Subpart F requirements.\3\ This approach is designed to ensure
equivalent protection of human health and the environment at all
facilities, regardless of which legal authority used to address post-
closure care. Commenters generally supported this approach, and the
Agency is promulgating this provision as proposed.
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\3\ Note that Secs. 264.90(f) and 265.90(f) of this rule amend
the requirements of Subpart F to allow the Regional Administrator to
replace Subpart F requirements at regulated units with requirements
developed through a corrective action process, in some cases (see
section III.B. of this preamble).
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ii. Response to Comment. Though many commenters supported the
proposed provision, others argued that it was an illegal expansion of
the Agency's statutory authority. EPA disagrees. The statute does not
limit EPA's ability to impose more stringent groundwater monitoring
requirements on interim status facilities. EPA developed the current
regulations based on the premise that facilities would remain in
interim status only temporarily and ultimately would receive permits
and become subject to the requirements of Part 264 for groundwater. As
a result of this rule, however, some facilities that closed while still
under interim status standards will not receive a permit. EPA believes
it is within the Agency's statutory authority to modify the regulations
and assure that those facilities ultimately comply with the more
stringent requirements of Part 264, whether a permit is issued or an
alternate authority is used to address post-closure care.
One commenter conditioned support for the proposal on EPA removing
Part 264 groundwater requirements for regulated units, and requiring
instead that they have a groundwater monitoring and response program
that is necessary to protect human health and the environment.
In the second part of this rule, EPA is providing discretion to
waive Part 264 groundwater monitoring only in cases where corrective
action will provide opportunities for oversight by the implementing
Agency. In other cases, the Agency continues to believe that it needs
the detailed requirements of Part 264, with interaction with the
overseeing agency, to ensure protection of human health and the
environment. In proposing to modify the requirement for post-closure
permits, the Agency did not intend to remove or modify the groundwater
requirements applicable to regulated units under post-closure permits--
only to allow regulators to use a variety of mechanisms to impose those
requirements. Thus, EPA believes that commenter's request extends to
issues that are outside the scope of this rulemaking.
c. Facility-Wide Corrective Action (Sec. 265.121(a)(2)). i.
Overview. This rule requires that authorities used at post-closure
facilities as alternatives to post-closure permits impose corrective
action requirements consistent with the statute and Sec. 264.101 of the
regulations. The rule does not specify the authorities that EPA or a
State could use to impose corrective action as an alternative to a
post-closure permit--only that the authority must be consistent with
RCRA corrective action requirements. Certainly, RCRA section 3008(h)
orders are appropriate, but EPA has not limited alternative authorities
to this section. State enforcement authorities analogous to section
3008(h) or State cleanup or superfund authorities also would be
appropriate, if they were used consistently with the requirements of
Sec. 265.121 (see requirements for State authorization in section
IV.D.1. of this preamble).
In requiring facility-wide corrective action consistent with RCRA
section 3004(u) and (v) provisions, EPA does not intend to require that
cleanup programs relying on alternative authorities use the procedures
of EPA's Subpart S proposal (which the Agency significantly revised in
its May, 1996 ANPR) or permit requirements. Rather, the authorities
must be broad enough to meet the performance standards of Sec. 264.101.
For example, compliance with the National Contingency Plan (NCP)
procedures for remedy selection would satisfy these proposed
requirements. EPA wishes to emphasize, however, that an alternative
approach to corrective action at a facility, used in lieu of a permit,
must include a facility-wide assessment, must address releases of
hazardous wastes or constituents to all media from all SWMUs within the
facility boundary (as well as off-site releases to the extent required
under section 3004(v)--as necessary to protect human health and the
environment), and must be protective of human health and the
environment. Anything less than that, in EPA's view, would not meet the
basic requirements of RCRA sections 3004(u) and (v) or Sec. 264.101.
EPA believes that this proposed approach is appropriate because it
provides reasonable flexibility for regulatory agencies using available
authorities to address environmental problems at RCRA sites.
ii. Response to Comment. Commenters generally supported this
provision, and many commenters agreed that the Agency should not
require corrective action procedures identical to those in EPA's
Subpart S proposal.
Some commenters objected to the principle that corrective action be
consistent with the Subpart S proposal. These commenters believe that
because the Subpart S requirements and procedures are not final, it is
legally indefensible to base a rule on them. Another commenter believed
that until Subpart S regulations are codified and adopted, corrective
action clean-up standards should meet the RCRA closure performance
standard.
EPA agrees that alternative authorities used to address corrective
action should be consistent with promulgated standards and with the
statute. EPA did not intend this rule to require compliance with
portions of the Subpart S proposal that have not yet been made final.
Rather, this rule requires that the authorities must be consistent with
promulgated Sec. 264.101. It should be noted that authorities
consistent with Sec. 264.101 include provisions originally proposed
under Subpart S, that is, provisions allowing designation and use of
corrective action management units (Sec. 264.552) and temporary units
(Sec. 264.553).
3. Public Involvement (Sec. 265.121(b))
a. Overview. The public involvement provisions proposed in the
November 8, 1994 rule are modified in this final rule. In the November
8, 1994 rule, the Agency proposed to require a minimum level of
mandatory public participation for all facilities where alternate
authorities were used in lieu of post-closure permits. Proposed
Sec. 262.121(b) would have established the following requirements at
the point of remedy selection: (1) public notification of the proposed
remedy through a local newspaper; (2) opportunity for public comment
(at least 30 days); (3) availability of a transcript of the public
meeting; (4) availability of a written summary of significant comments
and information submitted, and the EPA or State response; and, (5) if
the remedy is significantly revised during the public participation
process, a written summary of significant changes or opportunity to
comment on a revised remedy selection. The Agency proposed an exception
to these requirements in
[[Page 56720]]
Sec. 265.121(b)(2), whereby if a delay in the implementation of the
remedy would adversely affect human health or the environment, EPA
could delay the implementation of the public involvement requirements.
This final rule requires the Regional Administrator to assure that
a meaningful opportunity for public involvement occurs, which includes,
at a minimum, public notice and opportunity for comment, at three key
stages--when EPA or the authorized State agency first becomes involved
in the cleanup process as a regulatory or enforcement matter, when EPA
or the authorized State Agency is ready to approve a remedy for the
site (this opportunity must include a chance to comment on the
assumptions on which the remedy is based), and when EPA or the
authorized State is ready to decide that remedial action is complete at
a facility. The rule does not limit public involvement to these stages
of cleanup; rather, it encourages early, open, and continuous
involvement of the public when alternate authorities are used at a
facility in lieu of post-closure permits, similar to the public
involvement provided by the permitting process. In addition to
notifying the public at these three key stages, EPA believes meaningful
public involvement includes regular updating of the community on the
progress made cleaning up the facility.
Additionally, it is the Agency's expectation that owners and
operators conducting cleanups prior to the Agency's or authorized
State's involvement will involve the public in decisions throughout the
remediation process. Owners and operators should provide notice and
opportunity to comment prior to selecting a remedy if they wish to
later rely on that remedy as part of an enforceable document issued in
lieu of a post-closure permit. The Agency took this approach based on
several considerations.
First, it is EPA's policy to encourage public involvement early and
often in the permitting process, in its remediation programs, as well
as in other Agency actions. EPA wanted this rule to be consistent with
that policy.
Second, EPA recognized that the post-closure permit process assures
opportunity for public involvement at the time of permit issuance, and
through the permit modification procedures. EPA wanted this rule to
provide similar opportunities when an alternate authority is used to
address a facility.
Third, EPA recognized that existing State and Federal authorities
provide for public involvement through widely varying processes. EPA
wanted to provide sufficient procedural flexibility to minimize the
likelihood that States would have to modify the public involvement
provisions of their existing cleanup programs to qualify for
authorization, yet EPA wanted to assure, at the same time, that those
programs provided for meaningful public participation at key stages of
the remediation process.
Fourth, EPA recognizes that many cleanup activities have taken
place prior to promulgation of this rule and others will take place
prior to the adoption of the State's program for this rule through
Federal, State, and facility-initiated actions, and EPA recognizes that
those cleanups may or may not have involved the public in the way
specified in the final rule. In cases where the cleanup began prior to
the effective date of the rule, EPA did not want to require post-
closure permits to be issued simply because the early stages of public
involvement procedures of this rule were not met.
Finally, EPA recognized that in some cases, where delay in a
cleanup might have an impact on human health and the environment,
public involvement may not be possible prior to implementation of the
remedy. EPA did not want to delay cleanup in those cases, but wanted to
assure that the public was involved in the process as promptly as
possible after the emergency was addressed. EPA wanted this rule to
allow cleanups to take place immediately in these cases, but assure
that public involvement would follow at the earliest opportunity. As
explained below, the final rule authorizes EPA or the authorized State
to modify public involvement requirements in those circumstances.
This rule encourages early public involvement by requiring public
involvement (which at a minimum includes public notice and opportunity
for comment) as soon as the authorized regulatory agency becomes
involved in the cleanup process as a regulatory or enforcement matter
(unless this might lead to a delay in the cleanup that would adversely
affect human health and the environment). In most cases, the Agency
anticipates, this will be very early in the process, prior to remedy
selection--certainly before any Agency-prescribed remedies occur
(except in cases of emergency). For example, the affected community
should be notified and given an opportunity to comment prior to the
initiation of any activity to assess contamination or prior to the
implementation of any interim measure. By requiring early public notice
of activities at a site, the Agency intends this rule to encourage
involvement of the public throughout the cleanup process.
EPA proposed to require public involvement during the remedy
selection process. EPA is retaining this requirement in the final rule.
EPA has, however, made the requirement more specific by requiring
public notice and comment on both the proposed remedy and the
assumptions upon which it is based, including site characterization and
land use.
The Agency understands ``remedy selection'' as a term of art in the
RCRA corrective action or in the Superfund process, where the
regulatory agency either selects or approves a remedy proposed by the
owner or operator. In some cases an owner or operator may implement an
action that could be considered a ``remedy'' prior to the Agency or
State's involvement or oversight. The owner or operator should provide
notice and opportunity to comment on the prospective remedy and its
underlying assumptions, otherwise, any enforceable document developed
later may not be eligible to substitute for a post-closure permit. In
those cases, the owner or operator may have to follow the permit
process to obtain a post-closure permit or to obtain a permit denial
(if no further action is necessary).
This rule also requires public involvement to assure that notice
and opportunity to comment take place prior to the Agency or authorized
State deciding that remedial action is complete at a facility. When
additional corrective action is no longer needed, the Agency could
terminate an enforcement order or terminate interim status at the
facility through the permit denial process in Part 124. Either process
would ensure full opportunity for public participation, including
permit appeal provisions. The rule, however, would allow alternative
mechanisms, as long as the Agency or the authorized State provided
public notice of its actions, and opportunity to comment prior to
making the final decision that remedial action is complete at the
facility.
This rule also requires that all public involvement be meaningful.
Meaningful public participation is achieved when all impacted and
affected parties have ample time to participate in the facility cleanup
decisions. In many cases meaningful public involvement will require
careful planning and more than notice and opportunity for comment. In
some cases, meaningful public notice may require bilingual
notifications or publication of legal notices in city or community
newspapers (or other media, such as radio, church organizations and
[[Page 56721]]
community newsletters). EPA recommends that parties responsible for
involving the public provide information at all key milestones in the
remediation process, and site fact sheets. Existing forums of community
communication such as regular community meetings and electronic
bulletin boards can be used to provide regular progress reports on the
facility cleanup. Additionally, EPA recommends that parties responsible
for involving the public update the community regularly on the progress
made cleaning up the facility.
Often, the level of public involvement will depend on the
significance of the action--for example, the Agency may simply notify
the public of a decision to remove a small quantity of waste, but
higher levels of involvement would be called for at remedy selection in
a major remedial action, or when a decision is made that may impose
significant restrictions on land use. For these reasons, EPA believes
that public involvement should be tailored to the needs at the site,
and has provided flexibility in this rule.
EPA has long recognized that the level of public involvement should
be determined by the significance of the action taking place. For
example, in a final rule dated May 24, 1993 (see 58 FR 29886), EPA
promulgated regulations to govern modification of permits. Those
regulations established different levels of public involvement
depending on the significance of the permit modification. Class 1
modifications require minimal public involvement--the permittee must
send a notice of the permit modification to all persons on the facility
mailing list, and to the appropriate units of State and local
government. Persons may request review of the permit modifications.
Class 3 modifications, on the other hand, require far more extensive
involvement of the public--publication in a local newspaper, a public
meeting, and a public comment period. To assist owners and operators in
implementing the rule, in Appendix 1 to Sec. 270.42, EPA classified
different activities as class 1, 2, or 3 modifications, based on the
significance of the action.
EPA also issued guidance on public involvement which complements
the approach in this rule (see the RCRA Public Participation Manual,
September, 1996, EPA 530-R-96-007). This manual provides guidance on
addressing public participation in the permit process, including
permitting and enforcement remedial action activities. It emphasizes
the importance of cooperation and communication, and highlights the
public's role in providing valuable input. It stresses the importance
of early and meaningful involvement of the public in Agency activities,
and of open access to information. In addition to the manual, EPA fully
endorses The Model Plan for Public Participation, developed by the
Public Participation and Accountability Subcommittee of the National
Environmental Justice Advisory Council (a Federal Advisory Council to
the U.S. Environmental Protection Agency). The Model Plan encourages
public participation in all aspects of environmental decisionmaking. It
emphasizes that communities, including all types of stakeholders, and
regulatory agencies should be seen as equal partners in any dialogue on
environmental justice issues. The model also recognizes the importance
of maintaining honesty and integrity in the process by clearly
articulating goals, expectations and limitations. EPA encourages
regulators and owners and operators implementing the provisions of this
final rule to refer to these guidances.
It should be noted that the Agency proposed in Sec. 265.121(b)(2)
to allow the Regional Administrator to delay or waive the public
participation requirements upon a determination that even a short delay
in the implementation of the remedy would adversely affect human health
or the environment. EPA believes this flexibility is important to
assure protection of human health and the environment, and has
promulgated that provision, with minor revisions, in this final rule.
It also should be noted that the Agency proposed a
Sec. 265.121(b)(3), which would have allowed EPA to address a facility
using an approved alternate authority where cleanup activities were
conducted prior to the effective date of this rule, but the public
involvement procedures of this rule were not met. That provision would
have required the Agency to conduct public involvement before
considering the facility fully addressed under Sec. 270.1(c)(7)(ii).
The Agency has retained this provision.
b. Response to Comment. EPA received a variety of comments on the
public involvement provisions of this rule. Some commenters believed
the Agency had not gone far enough to assure public participation when
alternate authorities are used in lieu of permits; others agreed with
the Agency's approach; and others believed the public participation
provisions of the proposal were too stringent. EPA considered those
comments in developing the public involvement provisions of this final
rule. Those comments are discussed below.
i. The proposed rule did not preserve public involvement procedures
when an alternate mechanism is used. Many commenters believed that,
despite statements in the preamble to the contrary, the Agency had not
gone far enough in the proposed rule to preserve the public involvement
procedures when alternate authorities are used in lieu of post-closure
permits. These commenters believed that if the Agency allows alternate
authorities to replace post-closure permits, it should assure that the
public involvement procedures of the alternate authority are equivalent
to that of a permit. These commenters believed that the proposal failed
to do so in several respects.
First, these commenters noted that public participation was
required by the proposal only at the time of remedy selection.
Commenters pointed out that remedy selection occurs at a later stage of
the remedial action process, following the development of schedules of
compliance, and the preparation and evaluation of plans, reports, and
remedial investigations. They pointed out that many decisions have
already been made by the point of remedy selection, and that earlier
public involvement allows more meaningful opportunity to affect those
decisions. Commenters noted that when remedial action is implemented
through a permit, these steps are subject to public participation
requirements, through either permit issuance or permit modification
procedures.
EPA agrees with the concerns raised by these commenters and that
the public should be included in the decisionmaking process as early as
possible. EPA agrees that early public participation provides the
community a more meaningful role in the process.
To address these concerns, this rule requires public involvement to
begin when the authorized agency first becomes involved in the cleanup
process as a regulatory or enforcement matter. The Agency anticipates
that, in most cases, this will be very early in the cleanup process,
prior to proposed remedy selection.
Second, several commenters objected that no rights of appeal are
provided or guaranteed when an alternative mechanism is used in lieu of
a permit, even though such rights are provided in the permitting
process. These commenters believed that these appeal rights must be
preserved as part of the final rule for alternative mechanisms to be as
protective as the post-closure permit. These commenters pointed out
that under existing procedures, a hearing is available under Part 124
procedures to challenge a permit, while
[[Page 56722]]
EPA hearing procedures established for the respondent only under
section 3008(h), Part 24 are less formal and comprehensive. Also, no
pre-enforcement review is available for CERCLA 106 orders. These
commenters believe that an alternate authority used in lieu of a post-
closure permit should be reviewable under Part 124.
EPA recognizes that this rule does not guarantee pre-enforcement
review of remedies implemented through alternate authorities. However,
neither RCRA nor the Administrative Procedure Act require EPA to
provide opportunities for the public to obtain judicial review of
enforcement orders. For example, no such review is required under
section 3008(h). Further, EPA believes that the ability to require
prompt cleanup is important to assuring protection of human health and
the environment. The new rule will make it easier to require cleanup at
facilities where permit issuance would have been difficult or
impossible. Thus, on balance, the rule promotes environmental
protection. Finally, issuance of these alternatives orders does not
terminate interim status. To terminate interim status, the Agency must
make a final permit determination under the procedures of Part 124, and
that decision, like a decision to issue a permit, is reviewable.
Members of the public who believe that additional cleanup is required
to meet the requirements of Sec. 264.101 can raise that issue at that
time.
One commenter objected that the proposal is at odds with Executive
Order 12898, which instructs EPA to ensure greater public participation
by minority and low-income populations at hazardous waste sites. This
commenter expressed concern that the rule as proposed would further
isolate vulnerable populations from the decisionmaking process.
EPA disagrees with commenter that the effect of this rule will be
to isolate minority and low-income populations from the decisionmaking
process. EPA has promulgated requirements in this final rule that
assure meaningful involvement of the public in cleanups at post-closure
facilities regardless of the mechanism used. These requirements will
apply to all post-closure facilities, and will benefit all populations,
including minority and low-income. In addition, EPA emphasizes that it
will implement the rule in full compliance with Executive Order 12898.
Other commenters pointed out that Part 124 requires a 45-day public
comment period, while the proposal required only 30 days. Some
commenters believed that the procedures associated with alternative
post-closure mechanisms should follow the public participation
procedures associated with permit issuance to make sure coverage is
adequate and consistent. One commenter suggested that the rule specify
a minimum comment period, and allow a longer period, at the Regional
Administrator's discretion. Another commenter believed that since EPA
has not demonstrated that public involvement procedures are hindering
cleanups, there is no justification for lesser procedures.
EPA disagrees with the commenters that minimum comment period times
or specific procedures are necessary, and did not establish detailed
procedural requirements for public involvement in this final rule.
However, EPA does expect the public to be given an opportunity to get
involved early in the process and ample time to participate in the
facility cleanup decisions. EPA took this approach because it
recognizes that many different approaches to public participation have
proved successful, and it did not wish to restrict existing State or
Federal programs unnecessarily. The approach in this rule allows States
to implement their own established procedures--as long as they provide
for public notice and comment at the key stages in the process required
by this rule.
ii. The public involvement procedures of the proposed rule were
adequate. Other commenters believed that the level of public
participation proposed by the Agency was adequate, and would provide an
effective mechanism for adequately informing the public with regard to
proposed remedies, and allowing public comment and public involvement
in the remedy selection process.
Other commenters who generally agreed with the Agency's approach,
requested some modifications in the final rule. One such commenter
supported the requirement for public participation during the remedy
selection process, but believed that the rule should also include a
requirement for a brief description of the scope of the contamination
to be remediated, if any, and a requirement for the placement of
supporting documents in a local information repository. Another
commenter believed that the rule must explicitly require that public
access to information submitted for alternative mechanisms should be
provided as if the information were contained in the Part B permit
application.
EPA agrees that this type of information should be made available
to the public, and anticipates that it will, where appropriate.
However, as discussed above, the Agency is not prescribing detailed
procedural requirements for public involvement in this final rule. The
Agency intends this rule to provide meaningful public involvement
while, at the same time, provide maximum flexibility to States to
implement their cleanup programs. The Agency recognizes that, clearly,
public involvement cannot be meaningful if there is not adequate access
to information and, therefore, the Agency encourages regulators and
owners or operators to make information regarding the site available to
the public. At the same time, the Agency does not want to prescribe in
detail in this final rule when and how the regulatory agency should
provide information to the public. By requiring meaningful involvement
of the public, the Agency believes that this final rule addresses
commenter's concerns by requiring meaningful public involvement, which
includes adequate access to information, and that detailed regulations
prescribing access to specific information are not necessary.
One commenter agreed with the provision of the proposal that would
allow EPA to waive public involvement procedures where immediate action
is necessary to protect human health or the environment, but believed
that public involvement should not be waived for long-term actions. EPA
agrees with this commenter and the rule reflects this approach. In
proposing the waiver provision of Sec. 265.121(b), EPA intended to
allow regulatory agencies to delay public involvement and get cleanup
underway immediately, where necessary to protect human health and the
environment, but not to remove the requirement for public
participation. In response to this comment, EPA has modified the
regulatory language of Sec. 265.121(b) in this final rule to clarify
the Agency's intent.
iii. The public involvement procedures of the proposed rule were
too stringent. A third group of commenters believed that the public
involvement requirements of the proposal were too stringent, and did
not provide enough flexibility to the States. For example, one
commenter stated that the proposed public participation requirements
for alternative mechanisms were excessive, unnecessary, and
inconsistent with existing public participation requirements. Another
stated that there is no need for public participation for remedial
action orders and closure plan approval to be equivalent to the
requirements of Part 124 and Part 270, and that alternate, less
stringent procedures would suffice.
[[Page 56723]]
EPA believes that public involvement is important in all agency
actions, including enforcement orders. Consequently, EPA is requiring
public participation at three key stages.
Some commenters believed that EPA should defer to State programs
for public involvement as long as they provide basic due process and
reasonable public input. These commenters believed that States should
have reasonable flexibility to make site-specific determinations
regarding the level of public participation that is appropriate at a
site, and to adopt public involvement procedures that meet the needs of
their own State. They believed that the benefits of public comment are
preserved by requiring the States to provide public notice, and that
specific differences in process are of differences of degree, and not
substance.
EPA agrees that many States have developed cleanup programs with
appropriate public involvement, and has tried to balance the need to
ensure adequate public participation against requirements that
constrain States. EPA believes the approach in the final rule strikes
an appropriate balance. EPA, for example, allows States to decide how
much notice must be given, and how long comment periods must last.
Some commenters believed that the proposal would expand the current
requirements for public involvement. According to these commenters,
when post-closure permits are modified to incorporate a proposed
remedy, the current requirements for permit modification require
publication in a newspaper for seven days, a public hearing, and a 60-
day public comment period, regardless of how the action is changed
based on public comment. The proposal would require much more at remedy
selection, thus would be more expansive than the existing regulations.
To maintain consistency, commenters believed the rule should mirror the
public involvement procedures of Sec. 270.41.
EPA acknowledges the commenter's concern, and believes that it has
addressed them by leaving the details of the notification process and
the length of the comment period to the discretion of the overseeing
agency.
Some commenters did not agree that public involvement procedures
should apply to actions taken under section 3008(h), because public
comment on an enforcement proceeding would be inappropriate and would
unnecessarily complicate and confuse the process, while increasing
costs and delaying the process. One commenter pointed out that the
public currently has no assurance it will have opportunity to
participate in the remedial action process when remedial action is
implemented through an enforcement order, as the Agency's enforcement
programs have discretion to limit public participation, yet there is no
evidence that the lack of public participation in enforcement orders
has been detrimental to the process.
EPA disagrees with this commenter that public involvement
unnecessarily complicates and confuses the cleanup process--in fact,
the Agency believes that the public is an important contributor to the
cleanup process. It helps ensure that remediation does, in fact,
protect human health and the environment, and that remedies are based
upon reasonable assumptions, including assumptions of future land use.
EPA is committed to public involvement in its oversight of cleanup
decisions, and the Agency's policy is to provide for meaningful public
notice and comment with every section 3008(h) order. The requirements
promulgated in this final rule are consistent with current EPA guidance
on section 3008(h) orders.
Another commenter believed that EPA should recognize the wide array
of actions that may occur, from small to significant, and the
increasing tendency to accomplish remedial action through a series of
interim measures, rather than a single major action. This commenter
believed that the Agency should tailor public participation measures to
ensure participation during significant actions without slowing the
conduct of the program by requiring extensive administrative procedures
for each and every small action that may be taken. The commenter
believed that the public participation measures should be flexible
enough to ensure adequate public involvement and avoid serving as yet
another brake on the system.
EPA believes that the approach to public involvement in this final
rule addresses this commenter's concern. The rule requires public
involvement when the Agency becomes involved in a remediation at the
facility as a regulatory or enforcement matter; on the proposed
preferred remedy and the assumptions upon which the remedy is based, in
particular those related to land use and site characterization; and
prior to making the final decision that remedial action is complete at
the facility. EPA expects that these requirements will be applied
flexibly, and it does not expect ``extensive administrative procedures
for each and every action.'' For example, in some cases, public comment
might be provided on a general strategy, which included interim
measures as well as specific final cleanup standards. In other cases,
the public might prefer monthly or quarterly updates to activity-by-
activity notice. The point is that the public must have early
involvement and must have an opportunity to comment before the
regulatory agency commits itself to a final remedy or decides final
remedial action is complete at the facility. Within this framework, EPA
believes the regulatory agency has opportunity to structure a
reasonable approach based on the needs at the site. At the same time,
the public is put on notice early in the process that activities are
taking place.
4. Enforceable Documents Issued Prior to the Effective Date of This
Rule (Sec. 265.121(b)(3))
a. Overview. It is likely that, prior to final promulgation of this
rule EPA and authorized States will have required site assessments or
cleanup under a variety of authorities, other than post-closure
permits, at facilities currently subject to post-closure permit
requirements. Most of these actions, if taken after promulgation, would
have satisfied the requirements of this rule. EPA proposed and is
taking final action to provide a means to give credit to such prior
cleanup actions by soliciting public comment on the activities
conducted before the effective date of the rule.
Under Sec. 265.121(b)(3), EPA must provide an opportunity for
public comment if the enforceable document imposing those remedies is
intended to be used in lieu of a permit. Depending on public comment,
EPA may impose additional requirements either by amending the existing
order, issuing a new order, modifying the post-closure plan, or
requiring a post-closure permit.
b. Response to Comment. Several commenters objected to this
provision of the rule.
According to one commenter, the proposed approach, if designed to
provide finality to owners or operators, was a good idea in that it
could provide them with early assurance that they would not have to
repeat closure, post-closure, cleanup or investigations at a later
date. However, this commenter strongly opposed this provision to the
extent that it contemplates any such post hoc adequacy determinations
would be the impetus to reinvestigate and/or require additional
remedial actions with respect to prior closure/post-closure activities.
In addition, the commenter believed that when an owner or operator
receives an adequacy determination under proposed Sec. 265.121(c) for
prior closure/post-closure activities under an alternative legal
authority, these activities should
[[Page 56724]]
be expressly recognized as adequate in any subsequently-issued permit
to assure the finality of any prior closure/post-closure
determinations.
Another commenter opposed any effort to retroactively apply new,
more restrictive standards (for public involvement or selection of
remedies) to past remedial actions, and to approved closures. According
to the commenter, actions undertaken in good faith by the owner or
operator with Agency approval should be done with reasonable assurance
that they will be considered completed. The commenter believed that
uncertainty would discourage remedial actions.
Another commenter believed that this provision is beyond EPA's
statutory authority. This commenter believed that EPA cannot
conveniently ignore agreements entered into by it or States that were
presumably within their authority. This issuance of a new regulation
does not allow EPA to void binding agreements. Owners that have
encouraged the Agency to use an order or consent agreement to oversee
remedial action could be required to implement different remedial
actions simply because EPA promulgates a new regulation. The commenter
believed that this provision would impose more onerous requirements for
responsible owners and operators of facilities that are currently
implementing remedial action.
Another commenter suggested that before reopening an action, EPA
should be required to demonstrate that the cleanup was not protective
of human health and the environment. Another commenter expressed
concern that any action undertaken in the past would be unlikely to
meet current regulatory requirements, yet was likely taken by a
cooperative facility aggressive in fulfilling its regulatory
obligations at the time. According to the commenter, to reevaluate
these facilities without any indication of potential environmental harm
would create a costly administrative burden to both the Agency and the
owner or operator, without any benefit to human health and the
environment.
EPA agrees with the commenters that expressed concern about any
uncertainty that might arise for owners and operators due to this
provision. However, EPA disagrees that this is the effect of this
provision. This provision does not impose new requirements on owners
and operators retroactively, since owners and operators were subject to
RCRA permit requirements (including section 3004(u)) prior to this
rule. Instead, Sec. 265.121(e) would extend the benefits of this rule
to post-closure activities or cleanups conducted under enforceable
documents issued before the rule was in effect even where these
documents had not included public involvement. (Where the public had
already had an opportunity to comment on the mechanism, there would be
no need to invoke this provision.) EPA does not intend this provision
to result in duplicative regulatory action, or to allow reopening of
decisions that had already been made. Instead, it would simply ensure
the public's opportunity to comment on a mechanism being used in lieu
of a permit, if the public had not had an opportunity up to that point.
EPA can understand the commenter's concerns about re-opening past
cleanups. EPA and authorized States certainly do not expect to re-open
acceptable remedies where they are already underway. EPA believes that,
in most situations, the public would have been involved in the remedy
selection. In cases where the public was involved, the Agency does not
intend this provision to provide an opportunity to revisit issues that
already were raised and addressed. Rather, the provision is designed to
make this final rule available to facilities that may have begun
cleanup prior to the effective date, while, at the same time, assuring
that the public has had opportunity to raise issues prior to the
Agency's final decision that corrective action is not needed or is no
longer need at the site. Even under the current corrective action
process, remedies undertaken before the permit is issued are typically
incorporated into the permit through the permit procedures. Owners and
operators of closed interim status facilities or non-RCRA State
programs currently may conduct cleanups outside the post-closure permit
process. When EPA or a State issues a post-closure permit, it must
determine that any prior cleanup meets the requirements of RCRA section
3004(u). If it does not--that is, if the cleanup is not protective of
human health and the environment, or there are significant areas it
does not address--EPA or the State may impose permit requirements
requiring additional remediation work. Citizens may also raise the same
issues in comment periods on draft post-closure permits and in
challenges to permits that are issued. Thus, facilities face these
issues regardless of whether or not EPA allows older cleanups to be
recognized under this new alternative to post-closure permits.
In any case, EPA expects owners and operators conducting cleanups
without involving EPA to involve the public at an early stage. EPA
strongly discourages owners and operators from waiting until the end of
the process to involve the public. If concerns are raised by the public
regarding the actions taken under the alternative mechanism, EPA may
require additional action through an order or permit. Therefore, EPA is
promulgating Sec. 265.121(b)(3).
C. Remediation Requirements for Land-Based Units With Releases to the
Environment
1. Overview
In the 1994 notice, EPA requested comment on the possibility of
allowing the Regional Administrator to establish groundwater
monitoring, closure and post-closure, and financial assurance
requirements on a site-specific basis at regulated units addressed
through the corrective action process (see 59 FR 55778 at 55787-88).
EPA specifically requested comment on this prospect for regulated units
clustered with non-regulated units, all of which were releasing
hazardous constituents to the environment, because of the concern that
two different regulatory regimes would apply--for example, the
regulated units could be subject to the detailed requirements of Part
264 (which were developed as a preventive requirement), while the non-
regulated units could be subject to the more flexible remedial
requirements for corrective action under Sec. 264.101 and associated
guidance.
EPA is promulgating in this notice final rules that will provide
flexibility where a regulated unit is situated among SWMUs (or areas of
concern), a release has occurred, and both the regulated unit and one
or more SWMUs (or areas of concern) are suspected of contributing to
the release. The final rule described in this section allows EPA and
the authorized States to replace the regulatory requirements of
Subparts F, G, and H at certain regulated units with alternative
requirements developed under a remediation authority. This portion of
the rule is designed to eliminate some of the problems Regions and
States have encountered where two sets of requirements apply at a
cleanup site--requirements for closure at the regulated unit, and
corrective action requirements at the SWMUs. It applies to both
permitted and interim status units. It also applies to both operating
and closed facilities. Further, it can be used at closed facilities
using alternative authorities in lieu of post-closure permits.
The closure process in Parts 264 and 265 was promulgated in 1982,
before the Agency had much experience with closure of RCRA units. Since
that time,
[[Page 56725]]
EPA has learned that, when a unit has released hazardous waste or
constituents into surrounding soils and groundwater, closure is not
simply a matter of capping the unit, or removing the waste, but instead
may require a significant undertaking to clean up contaminated soil and
groundwater. The procedures established in the closure regulations were
not designed to address the complexity and variety of issues involved
in remediation. Most remediation processes, on the other hand, were
designed to allow site-specific remedy selection, because of the
complexity of and variation among sites.
Similarly, the groundwater monitoring requirements designed for
regulated units do not provide sufficient flexibility for complex
cleanups. The requirement to place wells at the downgradient edge of a
regulated unit often would not make sense if there are SWMUs further
downgradient. Also, the Part 264 regulations contain specific
requirements for the selection of cleanup levels for hazardous
constituents released to groundwater, and do not provide for
considerations of technical practicability, which are critical in a
remediation context. Corrective action and other remediation
authorities provide more flexible (yet protective) regimes for
selecting cleanup levels.
Financial responsibility for closure or post-closure care may also
work at cross purposes with financial responsibility for corrective
action. It makes sense to allow a facility with funds set aside for
closure of a regulated unit to spend those funds on a broader
corrective action, when the regulated unit is being addressed in that
corrective action.
This portion of this rule revises the requirements of Parts 264 and
265 Subparts F, G, and H, by adding new Secs. 264.90(f), 264.110(c),
264.140(d), 265.90(f), 265.110(d), and 265.140(d). Those provisions
allow EPA to address environmental needs at certain closing regulated
units with more flexible, but protective, site-specific requirements
developed through a remediation process. EPA is providing flexibility
where a Regional Administrator (or State Director) finds that a
regulated unit is situated among SWMUs (or areas of concern), a release
has occurred, and the regulated unit and one or more of the SWMUs (or
areas of concern) are likely to have contributed to the release.
To provide greater flexibility for the cleanup of regulated units
in this situation, EPA is giving the Regional Administrator (or State
Director) discretion to replace the requirements for closure,
groundwater monitoring, and financial responsibility set out in Parts
264 and 265 with standards tailored specifically for the cleanup. For
closure, the new ``generalized'' standard is protecting human health
and the environment by meeting the closure performance standard in
either Sec. 264.111(a) and (b) or Sec. 265.111(a) and (b). For
groundwater monitoring and financial responsibility, the new standard
is protection of human health and the environment. The Regional
Administrator can use these new standards to integrate the cleanup
requirements for the regulated unit into the requirements for the SWMUs
developed under remediation authorities. In addition, to reduce
duplicative administrative processes, EPA is not requiring that the
alternative requirements be incorporated into the permit, closure plan,
and/or post-closure plan in all cases. In the case of permitted
facilities, alternative requirements for a regulated unit might be
included in the permit where related SWMUs were being addressed under
RCRA section 3004(u), the permitting corrective action authority. EPA,
however, wants the Regional Administrator to be able to use other
authorities to develop the requirements for regulated units and related
SWMUs, such as RCRA section 3008(h), CERCLA, and approved State
remediation authorities. This rule, therefore, allows the Regional
Administrator (or an authorized State) to determine that there is no
need to impose the unit-specific requirements of Part 264 or Part 265
because alternative requirements developed under an approved
remediation authority will protect human health and the environment.
The requirements for the regulated unit and the SWMUs developed under
that authority can be set out in the permit or in an approved closure
plan and/or post-closure plan, or can be set out in another enforceable
document (as defined in Sec. 270.1(c)(7)), and referenced in the permit
or approved closure plan and/or post-closure plan.
For permitted facilities, EPA is modifying the requirements for
content of the closure plan and closure plan modification by adding new
Sec. 264.112(b)(8) and (c)(2)(iv), and post-closure plan content and
post-closure plan modification at Sec. 264.118(b)(4) and (d)(2)(iv) to
require owners and operators to incorporate the alternative
requirements into the closure plan and/or post-closure plan, or to
incorporate into those plans a reference to the enforceable document
(or permit section) that sets forth those requirements. To do so, the
owner or operator would use the existing procedures for closure plan
and post-closure plan approval and modification in Part 264, and for
permit modifications in Part 270. EPA expects that any such decision
would be a ``class 3'' modification.
For interim status facilities, EPA is similarly adding new
Secs. 265.112(b)(8) and (c)(2)(iv) and 265.118 (c)(5) and (d)(1)(iv)to
require owners and operators to incorporate alternative requirements
into the closure plan and/or post-closure plan, or to incorporate into
those plans a reference to the enforceable document that sets forth
those requirements. To do so, the owner or operator would use the
existing procedures for closure plan and post-closure plan approval and
modification in Part 265.
Members of the public may also utilize current procedures to
challenge either the specifics of how EPA is addressing a regulated
unit as part of corrective action (for example, if the corrective
action is imposed through a RCRA permit), or the decision by EPA or the
State to address the regulated unit under alternative requirements set
out in an enforceable document. Under EPA's federal rules, members of
the public may file administrative appeals for permits; they may
challenge closure or post-closure plans in court.
The Regional Administrator (or State Director) may use existing
procedures for modifying permits or closure plans to revisit corrective
action requirements for regulated units set out in permits or to
revisit cleanups under alternative enforceable documents. EPA's rules
allow permits, closure plans, and post-closure plans to be modified
when significant new information arises after the issuance of the plan
or permit. Some developments during remediation may justify use of this
authority. For example, if a non-RCRA agency in charge of an alternate
authority selected a very different remedy which, in the RCRA
authority's judgement, would not adequately protect human health and
the environment, the RCRA authority might consider this to be new
information warranting reconsideration of the decision to defer
existing RCRA requirements for regulated units.
Because the concept of deferring closure, groundwater monitoring,
and financial responsibility requirements is new, EPA is limiting the
range of authorities that can be used to craft alternate requirements.
First, a Regional Administrator (or State Director) may defer regulated
unit requirements in favor of requirements crafted under corrective
action for permits under RCRA section 3004(u) and corrective
[[Page 56726]]
action orders for interim status facilities under RCRA section 3008(h).
The Regional Administrator (or State Director) may also defer to
requirements established in actions under CERCLA section 104 and 106.
EPA is familiar with the scope of these legal authorities and the
enforcement mechanisms that accompany them. Any Regional Administrator
(or State Director) wishing to defer to regulated unit requirements
developed under these authorities need only consider whether the
requirements will, in fact, protect human health and the environment.
EPA also wants State Directors to be able to defer to State
remedial authorities outside of RCRA. EPA, however, is less familiar
with these authorities and their enforcement mechanisms. EPA,
therefore, is requiring any State that wishes to use a non-RCRA
authority to craft alternative regulatory requirements to submit that
authority to EPA for review in the State authorization process. EPA
will review the scope of the legal authority. It will determine for
example, whether the authority can provide for cleanup of releases from
a regulated unit to all media, as required under Secs. 264.111(b) and
265.111(b). EPA will also review the State's mechanisms for enforcing
the alternative requirements. Where a State will not be incorporating
the new regulated unit requirements directly into a permit or closure
plan enforceable under RCRA, EPA needs to have some assurance that it
will be able to enforce them, if necessary. EPA is, in this notice,
amending the existing requirements for enforcement of State programs in
Sec. 271.16 to add a new requirement regarding the enforceability of
these new, alternative regulated unit requirements. Recognizing that
effective enforcement mechanisms may vary greatly from State to State,
EPA is promulgating a general standard, rather than a list of specific
enforcement requirements.
This rule also allows the Agency to transfer the financial
assurance requirements of Part 264 or Part 265 Subpart H to the
corrective action process, when the regulated unit is addressed through
corrective action. This provision does not allow the Agency to waive
the requirements for financial assurance at a regulated unit. Owners
and operators of regulated units remain subject to the requirement to
provide financial assurance to address cleanup at the unit--however,
this rule allows EPA or the authorized States to develop site-specific
financial assurance requirements for corrective action at the unit, and
transfer funds set aside under Subpart H for closure, post-closure, and
third-party liability requirements to address corrective action. This
provision may be invoked by EPA or by a State authorized for this rule
only in cases where the alternative cleanup authority requires
financial assurance for the corrective action.
In addition to the financial assurance requirements for closure and
post-closure care, Parts 264 and 265 Subpart H require owners and
operators to provide assurances that they can pay claims for damages to
third-parties arising from accidental occurrences at the facility. The
Agency, however, typically has not required third-party liability
coverage as part of financial assurance for corrective action. (The
general third-party funds required by Parts 264 and 265 would, of
course, apply to accidents involving hazardous waste management
occurring during corrective action.) This rule allows the Regional
Administrators and authorized States to release funded third-party
liability assurances, or to relieve owners and operators from the
obligation to provide third-party liability assurance, where all
regulated units at the facility are being addressed under
Secs. 264.90(f), 264.110(c), 264.140(d), 265.90(f), 265.110(d) or
265.140(d). EPA expects this action would be warranted under limited
circumstances--for example, it might be warranted where all regulated
units at the facility are being addressed through corrective action,
and the Regional Administrator finds that it is necessary to use the
third-party liability funds to pay for the cleanup. It should be noted
that where a facility is subject to third-party liability requirements
because of regulated units other than those being addressed under
Secs. 264.90(f), 264.110(c), 264.140(d), 265.90(f), 265.110(d) or
265.140(d), the facility remains subject to the requirement for third-
party liability coverage.
2. Response to Comment
In the preamble of the proposed rule (see 59 FR 55778 at 55787 and
55688), EPA requested comment on the need for provisions allowing
regulated units to be addressed through a remediation process. The
Agency described a situation where a collection of adjacent SWMUs and a
regulated unit are releasing hazardous constituents to the environment.
Prior to this rule, EPA would have been required to impose the
requirements of Part 264 or Part 265 for financial assurance, closure,
and groundwater monitoring and remediation of the regulated unit, and
to select remedies for the SWMUs through the RCRA corrective action
process. This situation was inconsistent with a major objective of
EPA's Subpart S initiative discussed above, that is, to create a
consistent, holistic approach to cleanup at RCRA facilities.
Many commenters supported the approach described by EPA in the
preamble to the proposal. Commenters on the proposed rule agreed with
EPA that regulated units and non-regulated SWMUs are often
indistinguishable in terms of risk, and most supported integration of
the closure and corrective action programs.
Many commenters had encountered situations similar to those
described by the Agency, and believed that the closure process
prevented the best remedy at those sites. Several commenters agreed
that it is often difficult to identify the source of contamination,
particularly when many SWMUs are located near each other. Commenters
cited situations where the boundaries of regulated units and non-
regulated units overlap, or where contaminant plumes have commingled as
situations where the regulatory distinction between regulated and non-
regulated SWMUs is particularly troublesome.
Some commenters believed that the corrective action process, which
was specifically designed to address remediation, rather than the
closure process, which has preventative goals, should be used to
address all units at a facility.
EPA does not believe that the closure process is inappropriate for
all regulated units with releases. However, it does believe that it
does not make sense to have two separate remedial processes working to
clean up a single release, so it is providing relief where a regulated
unit and one or more SWMUs appear to have contributed to the same
release. EPA believes the Regional Administrator should be able to
choose, on a case-by-case basis, whether to apply the current Part 264
and 265 requirements to the SWMUs or the more flexible remediation
requirements to the regulated unit. This final rule provides the
Regional Administrator with the discretion needed to make this choice.
Several commenters mentioned that having two regulatory programs
for RCRA units is complicated by State authorization issues--some
States are authorized for the base RCRA program, thus are responsible
for closure, but are not authorized for corrective action. In these
States, two agencies are responsible for reviewing plans, and making
decisions. Another commenter's regulatory agency has taken the position
that any detectable levels of organics left in soil or groundwater
during closure will require capping and post-closure
[[Page 56727]]
monitoring of the unit, whereas the corrective action program uses
risk-based cleanup standards. Thus, there is potential for different
areas of a facility to be cleaned up to different sets of standards,
even if the areas are adjacent to each other, and exposure patterns are
identical. Commenters believed that a single, uniform set of cleanup
standards should be established for all units regardless of the time
the waste or contaminant was placed in the unit, and regardless of the
regulatory program that has jurisdiction.
EPA cannot eliminate all of the complexities caused by the State
authorization requirements. However, States that are authorized for the
base program will be able to request authorization for this rule. They
may request authority to address regulated units as part of corrective
action. EPA also notes that there is no Federal requirement that
facilities cap any detectable levels of organics left in soil or
groundwater during closure.
Other commenters raised concerns about EPA's proposal that closure
and cleanup standards be integrated. Some commenters expressed concern
that the Agency's proposal might be an attempt to extend the closure
requirements to non-regulated units, rather than to address all SWMUs
through the corrective action process. Some commenters said that they
have had to close non-regulated units as regulated units because they
could not identify the source of contamination at a site. These
commenters believe that the corrective action process, not closure
requirements, should be the applicable requirements at SWMUs requiring
remediation.
The Agency agrees that regulated unit standards were not designed
for SWMUs subject to corrective action. The Agency intends this rule to
provide Regional Administrators and State Directors with discretion to
choose whether to apply current Part 264 and 265 standards to regulated
units closed as part of a broader corrective action, or to address them
through cleanup requirements. This rule is not intended as a way to
bring SWMUs under Part 264 or Part 265 unit-specific standards.
A few commenters supported retaining the distinction between
regulated units and other SWMUs. One commenter believed the Agency
should retain the closure process at all regulated units because the
regulatory timeframes of that process result in a quicker remedy
selection than the open-ended corrective action process. This commenter
feared that removing closure requirements at regulated units would
delay cleanups. Another commenter objected that site-specific
determinations delay any process because they are an open door to
extended negotiations, disputes, and litigation, and allow inconsistent
decisions. This commenter believed that the closure regulations provide
consistent requirements.
The Agency agrees with the commenter that the closure requirements,
including the timeframes incorporated in the closure process, are
generally appropriate where a release has not occurred. EPA, however,
does not agree that these procedures are well-suited to remediation of
environmental releases. EPA believes that, where a regulated unit is
located among SWMUs (or areas of concern), and releases have or are
likely to have occurred, applying two sets of regulatory requirements
can slow, rather than hasten the cleanup. Thus, in this final rule, EPA
is allowing regulators discretion to apply alternate requirements to
the closing regulated unit developed under a remediation authority.
Another commenter suggested retaining the closure requirements if
the regulated unit is a landfill, because, according to commenter,
landfills typically are large and isolated. The commenter also
suggested the closure requirements be retained in situations where
routine monitoring is necessary, or in situations where waste in the
regulated unit is very hazardous. This commenter suggested that the
closure standards be retained where the units contain similar wastes,
but were used at different times, and where there are multiple adjacent
sources of contamination with overlapping parameters of concern.
This rule retains the closure requirements for isolated units. This
final rule allows the Regional Administrator to replace the
requirements of Subparts F, G, and H with alternative requirements
developed for corrective action only where a regulated unit is situated
among SWMUs (or areas of concern), a release has occurred, and both the
regulated unit and one or more SWMUs (or areas of concern) are likely
to have contributed to the release.
EPA disagrees that the type of waste involved or the need for
monitoring should determine which set of regulatory requirements must
be used to address the unit, or that routine monitoring can be imposed
only through the closure process. EPA believes that remediation
processes can be used to provide protective cleanups for all types of
wastes, and can be used to impose sufficient groundwater monitoring
requirements.
Another commenter suggested that the timeframes for initiating
corrective action (Sec. 264.99(h)(2)) and other administrative and
reporting requirements of Part 264 Subpart F be retained in all cases.
However, EPA disagrees with this commenter and has chosen to allow
greater flexibility provided by alternate remedial authorities for
regulated units surrounded by SWMUs that are both suspected to have
released to the environment.
One commenter conditioned its approval of this change on due
process rights of owner or operator being maintained. EPA believes the
existing rights available to an owner or operator in federal
enforcement actions appropriately address due process rights and this
rule does not modify these rights.
Some commenters asked for clarification of how integration of
closure and corrective action would work administratively. EPA has
provided this information in the preamble discussion above.
Another commenter stated that the proposal contradicted itself by
first claiming that protections imposed through alternative mechanisms
would be equivalent to those of a post-closure permit, and then
proposing that closure standards be developed on a site-specific basis
under the corrective action process. The commenter requested EPA to
clarify its intention in this regard, and to ensure that the regulatory
requirements were truly the same for closure and post-closure
activities conducted with or without a permit.
In response to this comment, EPA clarifies that it intends for the
closure of regulated units to be subject to consistent substantive
standards, regardless of whether that closure is addressed under a
permit or under an alternate authority. EPA believes the requirements
of Sec. 265.121 make this point clearly. The commenter's concern
derives from EPA's proposal (and decision in this final rule) to amend
the closure standards to allow the integration of closure and
corrective action at certain specified closed or closing units. These
new standards apply equally to all eligible regulated units, regardless
of whether they are subject to permits or interim status. Thus, while
EPA has amended the closure standards as they apply to certain
regulated units, it has retained a consistent approach to closure under
the permit process and under alternate authorities. To the extent that
the commenter is objecting to EPA's decision to allow use of
alternative, site-
[[Page 56728]]
specific requirements in lieu of the generic requirements of Subparts
F, G, and H, EPA, as explained above, believes that the need to
coordinate the cleanup of ``mingled'' releases outweighs any perceived
benefits of the more specific requirements for regulated units.
In the preamble of the proposed rule, the Agency described a second
remedial situation where the closure standards might not be
appropriate--where waste has been removed from a unit but contaminated
soils remain, and the remedy that might best prevent future releases
from the unit would be precluded by the requirement for a RCRA cap.
Many commenters agreed with the Agency that the requirement for a
RCRA cap may impede remedies. Several commenters agreed that the
closure regulations do not consider remediation as an alternative to
capping the unit, yet many currently available remedial technologies
are more protective to human health and the environment in the long
term than is capping, and that the Agency should provide flexibility to
pursue such options in the closure of regulated units. Many commenters
also agreed that required RCRA caps are very expensive and often
provide little additional environmental protection where most waste has
been removed from the unit.
However, the Agency is not proceeding with revisions to the closure
requirements that would modify the requirement for a RCRA cap (or other
closure, groundwater, or financial assurance requirements) beyond the
situations outlined in Secs. 264.90(f), 264.110(c), 264.140(d),
265.90(f), 265.110(d), and 265.140(d). Thus, the unit described by
commenters could be addressed under corrective action procedures only
if it was situated among SWMUs or areas of concern, and was part of a
broader corrective action. EPA was not prepared, at the time this rule
was made final, to make a final decision on this issue. EPA will
consider additional action in this area if, in implementing this final
rule, the Agency identifies further opportunities for integrating
closure and corrective action.
D. Post-Closure Permit Part B Information Submission Requirements
(Sec. 270.28)
1. Overview
EPA is promulgating Sec. 270.28, which establishes information
submission requirements for post-closure permits. Prior to this rule,
the information submission requirements of Part 270 did not distinguish
between operating permits and post-closure permits, and facilities
seeking post-closure permits were generally expected to provide EPA, as
part of their Part B permit applications, the facility-level
information specified in Sec. 270.14 as well as relevant unit-specific
information required in Secs. 270.16, 270.17, 270.18, 270.20, and
270.21.
However, EPA recognized that certain of the Part 270 information
requirements are important to ensuring proper post-closure care, while
others are generally less relevant to post-closure. The Agency believes
the most important information for setting long-term post-closure
conditions are groundwater characterization and monitoring data, long-
term care of the regulated unit and monitoring systems (e.g.,
inspections and systems maintenance), and information on SWMUs and
possible releases. Therefore, EPA is adding a new Sec. 270.28 to
identify that subset of the Part B application information that must be
submitted for post-closure permits.
As a result of this provision, an owner or operator seeking a post-
closure permit must submit only that information specifically required
for such permits under newly added Sec. 270.28, unless otherwise
specified by the Regional Administrator. The specific items required in
post-closure permit applications are:
--A general description of the facility;
--A description of security procedures and equipment;
--A copy of the general inspection schedule;
--Justification for any request for waiver of preparedness and
prevention requirements;
--Facility location information;
--A copy of the post-closure plan;
--Documentation that required post-closure notices have been filed;
--The post-closure cost estimate for the facility;
--Proof of financial assurance;
--A topographic map; and
--Information regarding protection of groundwater (e.g., monitoring
data, groundwater monitoring system design, site characterization
information)
--Information regarding SWMUs at the facility.
In many cases, this information will be sufficient for the
permitting agency to develop a draft permit. However, since RCRA
permits are site-specific, EPA believes it is important that the
Regional Administrator have the ability to specify additional
information needs on a case-by-case basis. Accordingly, to ensure
availability of any information needed to address post-closure care at
surface impoundments (Sec. 270.17), waste piles (Sec. 270.18), land
treatment facilities (Sec. 270.20) and landfills (Sec. 270.21),
Sec. 270.28 of this rule authorizes the Regional Administrator to
require any of the Part B information specified in these sections in
addition to that already required for post-closure permits at these
types of units. This approach enables the Regional Administrator to
require additional information as needed, but does not otherwise compel
the owner or operator to submit information that is irrelevant to post-
closure care determinations.
2. Response to Comment
Commenters generally supported the provisions of the proposed rule
related to information submission requirements, and EPA is promulgating
the provisions as proposed. Some commenters suggested that additional
information be required by Sec. 270.28 (e.g., one commenter suggested
the Agency require the chemical and physical analysis of
Sec. 270.14(b)(2), and the training plan information required by
Sec. 270.14(b)(12)). However, after considering these comments, EPA is
promulgating the proposed requirements because the Agency believes they
will provide the Agency with the information it needs to address post-
closure care in most instances. The information suggested by commenter
is not, in the Agency's experience, routinely needed for post-closure
permits. For example, Sec. 270.14(b)(2), suggested by commenter,
requires a chemical and physical analysis of waste to be handled at the
facility--but, in the case of post-closure permits, the regulated unit
is closed, and will not be handling wastes. Similarly,
Sec. 270.14(b)(12) requires the owner or operator to train persons who
will be operating the facility--but, in the case of a post-closure
permit, the facility will not be operating.
If for some reason this information is needed by the Agency, this
rule does not preclude the Agency from requiring it. As was discussed
above, this rule provides the Agency authority to obtain additional
information on a case-by-case basis, as needed, but, for most
situations, requires only the minimum information necessary for all
post-closure situations. This approach, the Agency believes, provides
sufficient information to the overseeing agency to ensure adequate
post-closure care, while minimizing the information submission
requirements for all owners and operators. However, as a result of this
final rule, EPA will request information
[[Page 56729]]
for post-closure permit applications beyond the information specified
in Sec. 270.28 only when necessary on a case-by-case basis.
IV. State Authorization
A. Authorization of State Programs
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State (See 40 CFR
Part 271 for the standards and requirements for state authorization).
Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a
State with final authorization administered its hazardous waste program
entirely in lieu of the Federal program. The Federal requirements no
longer applied in the authorized State, and EPA could not issue permits
for any facilities in a State where the State was authorized to permit.
When new, more stringent Federal requirements were promulgated or
enacted, the State was obligated to enact equivalent authority within
specified timeframes. New Federal requirements did not take effect in
an authorized State until the State adopted the requirements as State
law.
In contrast, under section 3006(g) of RCRA, the new requirements
and prohibitions of HSWA take effect in authorized States at the same
time they take effect in unauthorized States. EPA is directed to carry
out those requirements and prohibitions in authorized States, including
issuance of permits, until the State is granted authorization to do so.
While States must still adopt more stringent HSWA-related provisions as
State law to retain final authorization, the HSWA requirements apply in
authorized States in the interim. In general, Sec. 271.21(e)(2)
requires States that have final authorization to modify their programs
to reflect Federal program changes and to subsequently submit the
modifications to EPA for approval. It should be noted, however, that
authorized States are only required to modify their programs when EPA
promulgates Federal standards that are more stringent or broader in
scope than the existing Federal standards. For those Federal program
changes that are not more stringent or reduce the scope of the Federal
program, States are not required to modify their programs (see
Sec. 271.1(i)). Section 3009 of RCRA allows States to impose standards
more stringent than those in the Federal program.
B. Enforcement Authorities
Since 1980, certification of adequate enforcement authority has
been a condition of State authorization. EPA's authority to use its own
enforcement authorities, however, does not terminate when it authorizes
a State's enforcement program. Following authorization, EPA retains the
enforcement authorities of sections 3008, 7003, and 3013 of RCRA,
although authorized States have primary enforcement responsibility.
C. Effect of this Rule on State Authorizations
This rule promulgates revisions to the post-closure requirements
under HSWA and non-HSWA authorities. The requirements in
Secs. 264.90(e), 265.110(c), 265.118(c)(4), 265.121 (except for
paragraph 265.121(a)(2)), 270.1, 270.14(a), and 270.28, which remove
the post-closure permit requirement and allow the use of alternate
mechanisms, are promulgated under non-HSWA authority. Thus, those
requirements are immediately effective only in States that do not have
final authorization for the base RCRA program, and are not applicable
in authorized States unless and until the State revises its program to
adopt equivalent requirements. These new standards are not more
stringent than current requirements and, therefore, States are not
required to adopt them.
Sections 264.90(f), 264.110(c), 264.140(d), 265.90(f), 265.110(d),
265.140(d), and 271.16(e), which allow the Agency to address closing
regulated units through the corrective action program, are promulgated
under HSWA authority. Except for Sec. 271.16(e) these provisions
provide additional options to regulators, and, therefore, are not more
stringent than the current base RCRA program requiring closure of all
regulated units. Authorized States are required to modify their
programs only if the new Federal provisions are more stringent.
Further, because these HSWA provisions in this rule are not more
stringent, they are immediately effective only in those States not
authorized for the base RCRA program. In States authorized for the RCRA
base program, these HSWA provisions cannot be enforced until and unless
the State adopts them. Once a State adopts these provisions, they can
be implemented by EPA before the State is authorized for the regulation
change because they are promulgated pursuant to HSWA authority, and are
thus immediately effective in the State.
D. Review of State Program Applications
1. Post-Closure Care Under Alternatives to Permits
Sections 264.90(e), 265.110(c), 265.118(c)(4), 265.121, and 270.1
of this final rule remove the requirement for post-closure permits, and
allow EPA and the authorized States to address facilities needing post-
closure care using alternate authorities. All States seeking
authorization for the above provisions of this rule must submit an
application that includes regulations at least as stringent as these
provisions, as well as the information required under Sec. 271.21. In
all States, this information will include copies of State statutes and
regulations demonstrating that the State program includes the
provisions promulgated in this rule in the sections listed above. EPA
will review this information to determine that the State has adopted
provisions to assure that authorities used in lieu of post-closure
permits are as stringent as the Federal program.
In addition, States must submit an application that includes copies
of the statutes and regulations the State plans to use in lieu of the
section 3004(u) provisions of a post-closure permit to address
corrective action at interim status facilities. For example, many
States authorized for corrective action have cleanup authorities, which
they apply at interim status facilities. EPA will review those statutes
and regulations to determine whether the alternate authority is
sufficient to impose requirements consistent with Sec. 264.101. At a
minimum, that authority must be sufficiently broad to allow the
authorized authority to: (1) require facility-wide assessments; (2)
address all releases of hazardous wastes or constituents to all media
from all SWMUs within the facility boundary as well as off-site
releases to the extent required under section 3004(v) (to the extent
that releases pose a threat to human health and the environment); and
(3) impose remedies that are protective of human health and the
environment. This review by EPA will assure that actions taken at
closed facilities under an alternate authority are as protective as
those that would be taken under a post-closure permit. In addition, EPA
is promulgating in this final rule a revision to Sec. 271.16 to ensure
that these alternate authorities are adequately enforceable. EPA will
review the State's authority to determine whether it includes the
authority to sue in court, and to assess penalties.
[[Page 56730]]
2. Remediation Requirements for Land-Based Units With Releases to the
Environment
Sections 264.90(f), 264.110(c), 264.140(d), 265.90(f), 265.110(d),
and 265.140(d) of this rule allow EPA or the authorized State to
replace requirements of Part 264 or 265 Subpart F and G with analogous
requirements developed through the corrective action process. When
regulated units are addressed through the corrective action process,
these provisions allow the Agency to transfer financial assurance
requirements to corrective action as well. Sections 264.112(b) and (c),
264.118(b) and (d), 265.112(b) and (c), and 265.118(c) and (d) contain
procedures for owners and operators to implement this flexibility.
To obtain authorization for Secs. 264.90(f), 264.110(c), and
264.140(d), which apply at permitted facilities, States must be
authorized for section 3004(u) or submit an application that includes
copies of the statutes and regulations the State plans to use to
develop a remedy at regulated units. To obtain authorization for
Secs. 265.90(f), 265.110(d), and 265.140(d), which apply at interim
status facilities, States must submit an application that includes
copies of the statutes and regulations the State plans to use to
develop a remedy at regulated units. As in the case of alternate
authorities submitted for approval to be used in lieu of post-closure
permits, authorities to be used to implement Secs. 265.90(f),
265.110(d), and 265.140(d) must impose corrective action consistent
with Sec. 264.101, and must be sufficiently broad to impose minimum
requirements. They must allow the regulatory authority to: (1) include
facility-wide assessments; (2) address all releases of hazardous wastes
or constituents to all media from all SWMUs within the facility
boundary as well as off-site releases to the extent required under
section 3004(v) (to the extent necessary to protect human health and
the environment); and (3) be protective of human health and the
environment. Further, they must include authority to sue in court, and
to assess penalties, consistent with Sec. 271.16. For Sec. 265.90(f),
the authority must allow the State to require financial assurance.
3. Post-Closure Permit Part B Information Submission Requirements
Section 270.28, which specifies information that must be submitted
for post-closure permits, is promulgated under non-HSWA authority and
is not more stringent than the current RCRA program. Therefore,
Sec. 270.28 does not become effective in an authorized State until and
unless the State obtains authorization for that provision. Further,
authorized States are not required to modify their programs to adopt
Sec. 270.28.
V. Effective Date
This final rule is effective immediately. Section 3010(b)(1) of
RCRA allows EPA to promulgate an immediately effective rule where the
Administrator finds that the regulated community does not need
additional time to come into compliance with the rule. Similarly, the
Administrative Procedures Act (APA) provides for an immediate effective
date for rules that relieve a restriction (see 5 U.S.C. 553(d)(1)).
This rule does not impose any requirements on the regulated
community; rather, the rule provides flexibility in the regulations
with which the regulated community is required to comply. The Agency
finds that the regulated community does not need six months to come
into compliance.
VI. Regulatory Assessments
A. Executive Order 12866
Under Executive Order 12866, which was published in the Federal
Register on October 4, 1993 (see 58 FR 51735), the Agency must
determine whether a regulatory action is ``significant'' and,
therefore, subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Under the terms of Executive Order 12866, OMB has notified EPA that
it considers this a ``significant regulatory action'' on the basis of
(4) within the meaning of the Executive Order. EPA has submitted this
action to OMB for review. Changes made in response to OMB suggestions
or recommendations are documented in the public record for this
rulemaking (see Docket # F-94-PCPP-FFFFF).
This final rule establishes two main changes to the procedures
required for closure and post-closure care. First, it allows EPA and
the authorized States the option of either issuing post-closure permits
or using alternative mechanisms for ensuring the proper management and
care of facilities after their closure. Second, it amends the
regulations governing closure of regulated units to allow, under
certain circumstances, the regulatory agency to address regulated units
through Federal or State cleanup programs, instead of applying Part 264
and 265 standards for closure.
The first provision benefits the regulated community by providing a
potential avoidance of the permit process for post-closure, as well as
eliminating duplication of effort in cases, where EPA and the States
have already issued enforcement orders to ensure expeditious action by
facility operators. The cost savings for this change are estimated to
be a total of $507,000, and are discussed in further detail in the
Economic Impact Analysis background document, which has been placed in
the docket. The second gives EPA and States discretion to replace
regulatory requirements applying to closed regulated units with site-
specific requirements developed through cleanup authorities. It does
not affect any authority EPA and authorized States have to impose the
closure requirements. Further, the requirements for corrective action
are not more stringent than those required for closure under Parts 264
and 265. Consequently, no cost assessment was prepared for the second
main provision of the rule.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), at the time the Agency publishes a proposed or final
rule, it must prepare and make available for public comment a
Regulatory Flexibility Analysis that describes the effect of the rule
on small entities. However, no regulatory flexibility analysis is
required if the Administrator certifies that the rule will not have
significant adverse impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
EPA's determination.
[[Page 56731]]
The first portion of this final rule would provide regulatory
relief by expanding the options available to address post-closure care
so that a permit would not be required in every case. No new
requirements would be imposed on owners and operators in addition to
those already in effect. The Agency estimates a cost savings of
$500,000 as a result of this portion of the rule. Additional details
related to this cost savings are included in the Economic Impact
Analysis, which can be found in the docket. The second part of the
final rule makes available more flexible standards regarding closure,
groundwater monitoring, and financial assurance for some facilities. It
also imposes no new requirements. Therefore, pursuant to 5 U.S.C. 601b,
I certify that this regulation will not have significant economic
impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments, and on the private sector. Under section 202 of the UMRA,
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by local, and tribal
governments, in the aggregate, or by private sector, of $100 million or
more in any one year. Before promulgating an EPA rule for which a
written statement is needed, section 205 of the UMRA generally requires
EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective, or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
EPA has determined that this rule does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or the
private sector in any one year. Neither portion of this rule is more
stringent than the current Federal program, therefore, States are not
required to adopt them (see section V of this preamble). In addition,
this rule imposes no new requirements on owners and operators, but,
rather, allows flexibility to regulators to implement requirements
already in place. As stated above, EPA estimates a cost savings of
$500,000 for the provisions of the final rule. EPA also has concluded
that this rule will not significantly or uniquely affect small
governments. Small governments will not be responsible for implementing
the rule. Although they may be owners or operators of facilities
regulated by the rule, the rule does not impose any new requirements.
D. 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 2050-0009 (EPA ICR Number 1573.05).
EPA believes the changes to the information collection do not
constitute a substantive or material modification. The recordkeeping
and reporting requirements of this rule would replace or reduce similar
requirements already promulgated and covered under the existing
Information Collection Request (ICR). There is no net increase in
recordkeeping and reporting requirements. As a result, the reporting,
notification, or recordkeeping (information) provisions of this rule
will not need to be submitted for approval to the Office of Management
and Budget (OMB) under section 3504(b) of the Paperwork Reduction Act,
44 U.S.C. 3501 et. seq..
The current ICR expires on December 31, 1999. During the ICR
renewal process, EPA will prepare an ICR document with an estimate of
the burden reduction resulting from the decreased reporting provisions
of this rule, and will publish in the Federal Register a Notice
announcing the availability of that ICR and soliciting public comments.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (see 62 FR 19885, April
23, 1997) applies to any rule that EPA determines: (1) is
``economically significant'' as defined under Executive Order 12866,
and (2) the environmental health or safety risk addressed by the rule
has a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because this is not an
``economically significant'' regulatory action as defined by E.O.
12866. In addition, the rule does not involve decisions based on
environmental health or safety risks.
F. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, the Agency is directed to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications,
[[Page 56732]]
test methods, sampling procedures, business practices, etc.) that are
developed or adopted by voluntary consensus standard bodies. Where
available and potentially applicable voluntary consensus standards are
not used by EPA, the Act requires the Agency to provide Congress,
through the Office of Management and Budget, an explanation of the
reasons for not using such standards.
EPA is not promulgating technical standards as part of today's
final rule. Thus, the Agency has not considered the use of voluntary
consensus standards in developing this rule.
G. Executive Order 12898: Environmental Justice
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' as well as through EPA's April 1995, ``Environmental
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda
Report,'' and National Environmental Justice Advisory Council, EPA has
undertaken to incorporate environmental justice into its policies and
programs. EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States. The Agency's goals are to ensure that no segment of the
population, regardless of race, color, national origin, or income,
bears disproportionately high and adverse human health and
environmental effects as a result of EPA's policies, programs, and
activities, and all people live in clean and sustainable communities.
To address this goal, EPA considered the impacts of this final rule on
low-income populations and minority populations and concluded that this
final rule will potentially advance environmental justice causes. The
process for public involvement set forth in this final rule encourages
all potentially affected segments of the population to participate in
public hearings and/or to provide comment on health and environmental
concerns that may arise pursuant to a proposed Agency action under the
rule. EPA believes that public involvement should include regular
updating of the community on the progress made cleaning up the
facility. Public participation should provide all impacted and affected
parties ample time to participate in the facility cleanup decisions. In
many cases, public involvement should include bilingual notifications
or publication of legal notices in community newspapers.
H. Executive Order 12875: Enhancing Intergovernmental Partnerships
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, Executive Order 12875
requires EPA to provide to the Office of Management and Budget a
description of the extent of EPA's prior consultation with
representatives of affected State, local and tribal governments, the
nature of their concerns, copies of any written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
This rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. It provides more flexibility for States and tribes to
implement already-existing requirements. Accordingly, the requirements
of section 1(a) of Executive Order 12875 do not apply to this rule.
I. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
This rule does not significantly or uniquely affect the communities
of Indian tribal governments. In addition, this rule imposes no new
requirements on owners and operators, but, rather, allows flexibility
to regulators to implement requirements already in place. Accordingly,
the requirements of section 3(b) of Executive Order 13084 do not apply
to this rule.
J. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801(a)(1)(A), as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the General
Accounting Office prior to publication of the rule in this Federal
Register. A major rule cannot take effect until 60 days after it is
published in the Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C 804(2).
VII. Brownfields
In February 1995, EPA announced its Brownfields Action Agenda,
launching the first Federal effort of its kind designed to empower
States, Tribes, communities, and other parties to safely cleanup,
reuse, and return brownfields to productive use. To broaden the mandate
of the original agenda, in 1997 EPA initiated the Brownfields National
Partnership Agenda, involving nearly twenty other Federal agencies in
brownfields cleanup and reuse. Since the 1995 announcement, EPA has
funded brownfields pilots, reduced barriers to cleanup and
redevelopment by clarifying environmental liability issues, developed
partnerships with interested stakeholders, and stressed the importance
of environmental workforce training. In implementing the Agenda, EPA,
to date, has focused primarily on issues associated with CERCLA.
Representatives from cities, industries, and other stakeholders,
however, have recently begun emphasizing the importance of looking
beyond CERCLA and addressing issues at brownfield sites in a more
comprehensive manner.
This final rule furthers the Administration's brownfields work by
[[Page 56733]]
removing barriers posed by RCRA regulations. Modifying the post-closure
permit requirement and allowing the use of an alternative authority to
clean up regulated and solid waste management units, expedites the
clean up of RCRA facilities and makes such property available for
reuse.
List of Subjects
40 CFR Part 264
Environmental protection, Hazardous waste, Closure, Corrective
action, Post-closure, Permitting.
40 CFR Part 265
Hazardous waste, Closure, Corrective action, Post-closure,
Permitting.
40 CFR Part 270
Hazardous waste, Post-closure, Permitting.
40 CFR Part 271
State authorization, Enforcement authority.
Dated: October 15, 1998.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, Chapter 1 Title 40 of the
Code of Federal Regulations is amended as follows:
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
2. Section 264.90 is amended by adding new paragraphs (e) and (f)
to read as follows:
Sec. 264.90 Applicability.
* * * * *
(e) The regulations of this subpart apply to all owners and
operators subject to the requirements of 40 CFR 270.1(c)(7), when the
Agency issues either a post-closure permit or an enforceable document
(as defined in 40 CFR 270.1(c)(7)) at the facility. When the Agency
issues an enforceable document, references in this subpart to ``in the
permit'' mean ``in the enforceable document.''
(f) The Regional Administrator may replace all or part of the
requirements of Secs. 264.91 through 264.100 applying to a regulated
unit with alternative requirements for groundwater monitoring and
corrective action for releases to groundwater set out in the permit (or
in an enforceable document) (as defined in 40 CFR 270.1(c)(7)) where
the Regional Administrator determines that:
(1) The regulated unit is situated among solid waste management
units (or areas of concern), a release has occurred, and both the
regulated unit and one or more solid waste management unit(s) (or areas
of concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the groundwater monitoring and
corrective action requirements of Secs. 264.91 through 264.100 because
alternative requirements will protect human health and the environment.
3. Section 264.110 is amended by adding a new paragraph (c) to read
as follows:
Sec. 264.110 Applicability.
* * * * *
(c) The Regional Administrator may replace all or part of the
requirements of this subpart (and the unit-specific standards
referenced in Sec. 264.111(c) applying to a regulated unit), with
alternative requirements set out in a permit or in an enforceable
document (as defined in 40 CFR 270.1(c)(7)), where the Regional
Administrator determines that:
(1) The regulated unit is situated among solid waste management
units (or areas of concern), a release has occurred, and both the
regulated unit and one or more solid waste management unit(s) (or areas
of concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the closure requirements of this
subpart (and those referenced herein) because the alternative
requirements will protect human health and the environment and will
satisfy the closure performance standard of Sec. 264.111 (a) and (b).
4. Section 264.112 is amended by adding new paragraphs (b)(8) and
(c)(2)(iv) to read as follows:
Sec. 264.112 Closure plan; amendment of plan.
* * * * *
(b) * * *
(8) For facilities where the Regional Administrator has applied
alternative requirements at a regulated unit under Secs. 264.90(f),
264.110(d), and/or Sec. 264.140(d), either the alternative requirements
applying to the regulated unit, or a reference to the enforceable
document containing those alternative requirements.
(c) * * *
(2) * * *
(iv) the owner or operator requests the Regional Administrator to
apply alternative requirements to a regulated unit under
Secs. 264.90(f), 264.110(c), and/or Sec. 264.140(d).
* * * * *
5. Section 264.118 is amended by adding new paragraphs (b)(4) and
(d)(2)(iv) to read as follows:
* * * * *
Sec. 264.118 Post-closure plan; amendment of plan.
(b) * * *
(4) For facilities where the Regional Administrator has applied
alternative requirements at a regulated unit under Secs. 264.90(f),
264.110(c), and/or Secs. 264.140(d), either the alternative
requirements that apply to the regulated unit, or a reference to the
enforceable document containing those requirements.
* * * * *
(d) * * *
(2) * * *
(iv) The owner or operator requests the Regional Administrator to
apply alternative requirements to a regulated unit under
Secs. 264.90(f), 264.110(c), and/or Sec. 264.140(d).
* * * * *
6. Section 264.140 is amended by adding a new paragraph (d) to read
as follows:
Sec. 264.140 Applicability.
* * * * *
(d) The Regional Administrator may replace all or part of the
requirements of this subpart applying to a regulated unit with
alternative requirements for financial assurance set out in the permit
or in an enforceable document (as defined in 40 CFR 270.1(c)(7)), where
the Regional Administrator:
(1) Prescribes alternative requirements for the regulated unit
under Sec. 264.90(f) and/or Sec. 264.110(d); and
(2) Determines that it is not necessary to apply the requirements
of this subpart because the alternative financial assurance
requirements will protect human health and the environment.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937.
2. Section 265.90 is amended by adding new paragraph (f) to read as
follows:
[[Page 56734]]
Sec. 265.90 Applicability.
* * * * *
(f) The Regional Administrator may replace all or part of the
requirements of this subpart applying to a regulated unit (as defined
in 40 CFR 264.90), with alternative requirements developed for
groundwater monitoring set out in an approved closure or post-closure
plan or in an enforceable document (as defined in 40 CFR 270.1(c)(7)),
where the Regional Administrator determines that:
(1) A regulated unit is situated among solid waste management units
(or areas of concern), a release has occurred, and both the regulated
unit and one or more solid waste management unit(s) (or areas of
concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the requirements of this subpart
because the alternative requirements will protect human health and the
environment. The alternative standards for the regulated unit must meet
the requirements of 40 CFR 264.101(a).
3. Section 265.110 is amended by adding new paragraphs (c) and (d)
to read as follows:
Sec. 265.110 Applicability.
* * * * *
(c) Section 265.121 applies to owners and operators of units that
are subject to the requirements of 40 CFR 270.1(c)(7) and are regulated
under an enforceable document (as defined in 40 CFR 270.1(c)(7)).
(d) The Regional Administrator may replace all or part of the
requirements of this subpart (and the unit-specific standards in
Sec. 265.111(c)) applying to a regulated unit (as defined in 40 CFR
264.90), with alternative requirements for closure set out in an
approved closure or post-closure plan, or in an enforceable document
(as defined in 40 CFR 270.1(c)(7)), where the Regional Administrator
determines that:
(1) A regulated unit is situated among solid waste management units
(or areas of concern), a release has occurred, and both the regulated
unit and one or more solid waste management unit(s) (or areas of
concern) are likely to have contributed to the release, and
(2) It is not necessary to apply the closure requirements of this
subpart (and/or those referenced herein) because the alternative
requirements will protect human health and the environment, and will
satisfy the closure performance standard of Sec. 265.111 (a) and (b).
4. Section 265.112 is amended by adding new paragraphs (b)(8) and
(c)(1)(iv) to read as follows:
Sec. 265.112 Closure plan; amendment of plan.
* * * * *
(b) * * *
(8) For facilities where the Regional Administrator has applied
alternative requirements at a regulated unit under Secs. 265.90(f),
265.110(d), and/or 265.140(d), either the alternative requirements
applying to the regulated unit, or a reference to the enforceable
document containing those alternative requirements.
(c) * * *
(1) * * *
(iv) The owner or operator requests the Regional Administrator to
apply alternative requirements to a regulated unit under
Secs. 265.90(f), 265.110(d), and/or 265.140(d).
* * * * *
5. Sec. 265.118 is amended by adding new paragraphs (c) (4) and
(5), and (d)(1)(iii) to read as follows:
Sec. 265.118 Post-closure plan; amendment of plan.
* * * * *
(c) * * *
(4) For facilities subject to Sec. 265.121, provisions that satisfy
the requirements of Sec. 265.121(a)(1) and (3).
(5) For facilities where the Regional Administrator has applied
alternative requirements at a regulated unit under Secs. 265.90(f),
265.110(d), and/or 265.140(d), either the alternative requirements that
apply to the regulated unit, or a reference to the enforceable document
containing those requirements.
(d) * * *
(1) * * *
(iii) The owner or operator requests the Regional Administrator to
apply alternative requirements to a regulated unit under
Secs. 265.90(f), 265.110(d), and/or 265.140(d).
* * * * *
5. A new Sec. 265.121 is added to Subpart G to read as follows:
Sec. 265.121 Post-closure requirements for facilities that obtain
enforceable documents in lieu of post-closure permits.
(a) Owners and operators who are subject to the requirement to
obtain a post-closure permit under 40 CFR 270.1(c), but who obtain
enforceable documents in lieu of post-closure permits, as provided
under 40 CFR 270.1(c)(7), must comply with the following requirements:
(1) The requirements to submit information about the facility in 40
CFR 270.28;
(2) The requirements for facility-wide corrective action in
Sec. 264.101 of this chapter;
(3) The requirements of 40 CFR 264.91 through 264.100.
(b)(1) The Regional Administrator, in issuing enforceable documents
under Sec. 265.121 in lieu of permits, will assure a meaningful
opportunity for public involvement which, at a minimum, includes public
notice and opportunity for public comment:
(i) When the Agency becomes involved in a remediation at the
facility as a regulatory or enforcement matter;
(ii) On the proposed preferred remedy and the assumptions upon
which the remedy is based, in particular those related to land use and
site characterization; and
(iii) At the time of a proposed decision that remedial action is
complete at the facility. These requirements must be met before the
Regional Administrator may consider that the facility has met the
requirements of 40 CFR 270.1(c)(7), unless the facility qualifies for a
modification to these public involvement procedures under paragraph
(b)(2) or (3) of this section.
(2) If the Regional Administrator determines that even a short
delay in the implementation of a remedy would adversely affect human
health or the environment, the Regional Administrator may delay
compliance with the requirements of paragraph (b)(1) of this section
and implement the remedy immediately. However, the Regional
Administrator must assure involvement of the public at the earliest
opportunity, and, in all cases, upon making the decision that
additional remedial action is not needed at the facility.
(3) The Regional Administrator may allow a remediation initiated
prior to October 22, 1998 to substitute for corrective action required
under a post-closure permit even if the public involvement requirements
of paragraph (b)(1) of this section have not been met so long as the
Regional Administrator assures that notice and comment on the decision
that no further remediation is necessary to protect human health and
the environment takes place at the earliest reasonable opportunity
after October 22, 1998.
6. Section 265.140 is amended by adding a new paragraph (d) to read
as follows:
Sec. 265.140 Applicability.
* * * * *
(d) The Regional Administrator may replace all or part of the
requirements of this subpart applying to a regulated unit with
alternative requirements for financial assurance set out in the permit
or in an enforceable document (as
[[Page 56735]]
defined in 40 CFR 270.1(c)(7)), where the Regional Administrator:
(1) Prescribes alternative requirements for the regulated unit
under Sec. 265.90(f) and/or 265.110(d), and
(2) Determines that it is not necessary to apply the requirements
of this subpart because the alternative financial assurance
requirements will protect human health and the environment.
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.l is amended by revising paragraph (c) introductory
text and adding a new paragraph (c)(7) to read as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(c) Scope of the RCRA permit requirement. RCRA requires a permit
for the ``treatment,'' ``storage,'' and ``disposal'' of any ``hazardous
waste'' as identified or listed in 40 CFR part 261. The terms
``treatment,'' ``storage,'' ``disposal,'' and ``hazardous waste'' are
defined in Sec. 270.2. Owners and operators of hazardous waste
management units must have permits during the active life (including
the closure period) of the unit. Owners and operators of surface
impoundments, landfills, land treatment units, and waste pile units
that received waste after July 26, 1982, or that certified closure
(according to Sec. 265.115 of this chapter) after January 26, 1983,
must have post-closure permits, unless they demonstrate closure by
removal or decontamination as provided under Sec. 270.1(c)(5) and (6),
or obtain an enforceable document in lieu of a post-closure permit, as
provided under paragraph (c)(7) of this section. If a post-closure
permit is required, the permit must address applicable 40 CFR part 264
groundwater monitoring, unsaturated zone monitoring, corrective action,
and post-closure care requirements of this chapter. The denial of a
permit for the active life of a hazardous waste management facility or
unit does not affect the requirement to obtain a post-closure permit
under this section.
* * * * *
(7) Enforceable documents for post-closure care. At the discretion
of the Regional Administrator, an owner or operator may obtain, in lieu
of a post-closure permit, an enforceable document imposing the
requirements of 40 CFR 265.121. ``Enforceable document'' means an
order, a plan, or other document issued by EPA or by an authorized
State under an authority that meets the requirements of 40 CFR
271.16(e) including, but not limited to, a corrective action order
issued by EPA under section 3008(h), a CERCLA remedial action, or a
closure or post-closure plan.
3. Section 270.14 is amended by adding a sentence to the end of
paragraph (a) to read as follows:
Sec. 270.14 Contents of part B: General requirements.
(a) * * * For post-closure permits, only the information specified
in Sec. 270.28 is required in Part B of the permit application.
* * * * *
4. A new Sec. 270.28 is added to Subpart B to read as follows:
Sec. 270.28 Part B information requirements for post-closure permits.
For post-closure permits, the owner or operator is required to
submit only the information specified in Secs. 270.14(b)(1), (4), (5),
(6), (11), (13), (14), (16), (18) and (19), (c), and (d), unless the
Regional Administrator determines that additional information from
Secs. 270.14, 270.16, 270.17, 270.18, 270.20, or 270.21 is necessary.
The owner or operator is required to submit the same information when
an alternative authority is used in lieu of a post-closure permit as
provided in Sec. 270.1(c)(7).
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
1. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a) and 6926.
2. Section 271.16 is amended by adding a new paragraph (e) to read
as follows:
Sec. 271.16 Requirements for enforcement authority.
* * * * *
(e) Any State authority used to issue an enforceable document
either in lieu of a post-closure permit as provided in 40 CFR
270.1(c)(7), or as a source of alternative requirements for regulated
units, as provided under 40 CFR 264.90(f), 264.110(c), 264.140(d),
265.90(d), 265.110(d), and 265.140(d), shall have available the
following remedies:
(1) Authority to sue in courts of competent jurisdiction to enjoin
any threatened or continuing violation of the requirements of such
documents, as well as authority to compel compliance with requirements
for corrective action or other emergency response measures deemed
necessary to protect human health and the environment; and
(2) Authority to access or sue to recover in court civil penalties,
including fines, for violations of requirements in such documents.
[FR Doc. 98-28221 Filed 10-19-98; 10:16 am]
BILLING CODE 6560-50-P