[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]]


-----------------------------------------------------------------------


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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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