federal register vol. no. monday, july 15, 1985 rules and ...corrosion and structural failure and is...

Federal Register / Vol. 50, No. 135 / Monday, July 15, 1985 / Rules and Regulations

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 260, 261, 262, 264, 265,

266, 270, 271, and 280

[SWH-FRL 2724-6]

Hazardous Waste ManagementSystem; Final Codification Rule

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: On November 8, 1984, thePresident signed into law the Hazardousand Solid Waste Amendments of 1984(HSWA). This new statute makes manychanges to EPA's existing hazardouswaste management program. Thepurpose of this rule is to amend EPA'sexisting hazardous waste regulations toreflect those statutory provisions thathave immediate or short-term effects onthe regulated community. This rule alsoadds Part 280 to the EPA regulations toincorporate the interim prohibition ofnew section 9003(g), added by the 1984Amendments. This section prohibits theinstallation of any new undergroundstorage tank for regulated substancesunless the tank is protected againstcorrosion and structural failure and iscompatible with the substance to bestored.EFFECTIVE DATE: These rules becomeeffective July 15, 1985.ADDRESSES: The official record for thisrulemaking is located in Room S-212A,U.S. Environmental Protection Agency,401 M Street, SW., Washington, D.C.20460, and is available for viewing from9:00 a.m. to 4:00 p.m, Monday throughFriday, excluding Holidays.FOR FURTHER INFORMATION CONTACT:For technical information, contact JimO'Leary, Office of Solid Waste (WH-562B], U.S. Environmental ProtectionAgency, 401 M Street, SW., Washington,D.C. 20460. Toll free: RCRA Hotline(800-424-9346). In Washington, D.C.:(202-382-3000).SUPPLEMENTARY INFORMATION:

Preamble Outline1. AuthorityI1. BackgroundIII. Purpose of Today's RuleIV. Other Elements of EPA's Strategy for

Implementing AmendmentsV. Section by Section Analysis of Regulatory

ChangesA. Land Disposal Amendments

1. Liquids in landfills2. Minimum technological requirements3. Corrective action4. Gr6und-water monitoring variances5. Salt dome formations, salt bedformations, underground mines, andcaves

6. Dust suppression7. Underground injection

B. Small Quantity GeneratorsC. Permits and Interim Status

1. Preconstruction ban/TSCA Exception2. Permit life3. Authority to add conditions4. Expansion of interim status for newlyregulated units5. Loss of interim status for failure tosubmit Part B

D. Burning and Blending of HazardousWaste1. Ban on hazardous waste in certaincement kilns2. Labeling of hazardous waste fuels3. Exception to labeling requirement4. Household waste5. Minimum technological requirementsfor incinerators

E. Exposure Information and HealthAssessments

F. Delisting ProceduresG. Research. Development, and

Demonstration PermitsH. State Authorization

1. Applicability of today's rule inauthorized States2. Public availability of information3. Extension of Interim Authorizationexpiration date4. Authorization under the HSWA:application and revision requirements

1. Hazardous Waste ExportsI. Waste MinimizationK. Financial ResponsibilityL. Underground Storage Tanks

VI. Regulatory AnalysisA. Executive Order 12291: Regulatory

Impact AnalysisB. Regulatory Flexibility ActC. Paperwork Reduction ActD. Estimated Cost of the Final Rule

I. Authority

These regulations are issued underauthority of sections 2002(a), 3001, 3002,3004, 3005, 3006, 3010, 3015, 3017, 3019,9001, and 9003 of the Solid WasteDisposal Act, as amended by theResource Conservation and RecoveryAct, as amended, 42 U.S.C. 6912(a), 6921,6922. 6924, 6925, 6926, 6930, 6935, 6937,6939, 6991, and 6993.

II. Background

On November 8, 1984, the Presidentsigned into law the Hazardous and SolidWaste Amendments of 1984 (HSWA), amajor new statute that will requireprofound changes in the way that thiscountry manages hazardous wastes. Abrief summary of the new law's majorprovisions indicates the magnitude ofthe changes:

1. A new program for banning wastesfrom land disposal.

2. Prohibitions against certain landdisposal practices (e.g., placement ofliquids in landfills; placement of wastein salt bed formations, mines, and caves;use of hazardous waste as a dust

suppressant; and certain types ofunderground injection).

3. Minimum technological measuresfor landfills, surface impoundments, andincinerators.

4. Expanded requirements for ground-water monitoring and cleanup atpermitted facilities.

5. Requirements for retrofitting certainexisting surface impoundments withliners.

6. Authority to expedite permits fornew and innovative treatmenttechnologies to foster research and'development.

7. Authority to require permitconditions beyond the scope of EPA'sexisting regulations.

8. Tighter controls on small quantitygenerators of hazardous waste.

9. Requirements to identify additionalhazardous wastes.

10. A full assessment of the hazardsposed by a waste before EPA may delistit.

11. Requirements for thoroughinspections of State and Federalfacilities.

12. Enhanced Federal enforcementauthorities (including the ability to issue"corrective action orders" to interimstatus facilities).

13. Specific controls on the burningand blending of hazardous wastes asfuels.

14. Specific requirements for theregulation of used oil.

15. Tighter controls on the export ofhazardous wastes.

16. A new program for identifying thehealth risks presented by surfaceimpoundment and landfill facilities.

17. An expanded program for theregulation of solid waste managementfacilities.

18. Greater citizen involvement in"imminent and substantial hazard"cases under section 7003.

19. A major new program forregulating underground storage tanks.

20. The establishment of a NationalGround Water Commission.

These comprehensive amendmentsare all the more significant because ofthe ambitious schedules the Congresshas established for the imposition ofthese requirements. Many of theprovisions are already in effect; othersgo into effect within very.short timeframes. Other sections of the statuteestablish "hammer" provisions (i.e.,requirements that go into effect bystatute if EPA fails to issue regulationsby certain dates).

These new amendments presentserious new challenges to EPA, theregulated community, and the public atlarge. The first of these challenges is the

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task of developing a workingunderstanding of the new statute'sprovisions. To fully appreciate thechanges to EPA's hazardous wasteprogram that have been made by thisstatute, one must not only become •familiar with the specifics of individualprovisions but also must understand theinterrelationships that exist among thevarious sections of the law.

As will be described in more detail inthe next section, today's rule is EPA'seffort to facilitate such an understandingof the new amendments to RCRA. InEPA's view, an early, clear articulationof the regulated community's newresponsibilities is an essential step inany strategy for the effectiveimplementation of the Congress' will.

III. Purpose of Today's Rule

The purpose of today's rule is toincorporate into the existing Subtitle Cregulations a set of requirements fromthe new RCRA amendments thatbecome effective as a matter of statutein the short term. EPA is making thesemodifications to the existing rulesthrough a final rule that will beimmediately effective. In addition, EPAis adding a new interim prohibition onthe installation of certain newunderground storage tanks. In light ofthe fact that this rule is being issuedbefore there has been an opportunity forpublic comment, EPA has, for the mostpart, simply codified into the regulationsthe statutory language associated witheach provision.

Specifically, today's rule addressesthe following provisions of the RCRAamendments:

1. The ban on placement of bulk liquidhazardous waste and nonhazardousliquids in landfills.

2. The permitting and interim statusrequirements for double liners andleachate collection systems at surfaceimpoundments and landfills.

3. The redefinition of "regulated unit"for purposes of the ground-watermonitoring and response program.

4. The obligation to institutecorrective action for solid wastemanagement units at permittedfacilities.

5. The elimination of the double linervariance from the ground-watermonitoring and response programallowed for landfills, surfaceimpoundments, and waste piles.

6. The variance from ground-watermonitoring allowed for certainengineered structures.

7. The ban on disposal in certain saltdome formations, caves, andunderground mines.

8. The ban on use of materials mixedwith dioxins or other hazardous wastefor dust suppression.

9. The interim measures (i.e., manifestand destination requirements) for smallquantity generators producing between100 and 1000 kilograms of waste permonth.

10. The preconstruction ban with thevariance for PCB facilities having EPAapprovals under TSCA.

11. The restrictions on a facility'spermit life.

12. The authority to add conditions toa permit beyond those provided for inregulations.

13. Thi extension of interim status tofacilities that become subject topermitting requirements because of newregulatory requirements.

14. The loss of interim status forfacilities failing to submit Part Bapplications within specific deadlinesand for failure to self-certify compliancewith ground-water monitoring andfinancial responsibility requirements.

15. The ban on the burning ofhazardous wastes in certain cementkilns.

16. The requirement to labelhazardous waste fuels.

17. The exclusion for certain wastesburned at resource recovery facilities.

18. The additional criteria (i.e., otherconstituents or factors) that must heevaluated before a waste can bedelisted.

19. The authority to foster innovativeresearch and development by theissuance of special treatment permits.

20. Extending the life of interimauthorization for State programs by oneyear.

21. The requirement that Stateprograms assure the public availabilityof information.

22. The identification of the newrequirements that will go into effect inauthorized States prior to Stateauthorization.

23. The requirements concerningrecordkeeping for hazardous wasteexports.

24. The requirements for generatorsand owners or operators of treatment,storage, and disposal facilities to certifythat they have instituted a wasteminimization program.

25. The interim prohibition on- theinstallation of any new undergroundstorage tank for regulated substancesunless the tank is protected againstcorrosion and structural failure and iscompatible with the substance to bestored.

EPA recognizes that many of theseprovisions raise interpretive questions.For the most part, EPA has avoidedadding regulatory language to resolve

interpretive questions. This is in keepingwith EPA's view that the principalpurpose of today's rule is to codify thenew statutory requirements. EPA hasarticulated in the preamble, however, itsview of what Congress intended thesenew requirements to be. Suchstatements of statutory interpretationare derived from the legislative historyand EPA's view of Congressionalpurposes for the new requirements.

In addition, EPA intends to prepare acompanion proposed rule to today'sfinal rule that proposes modifications tothe existing regulations to assist inimplementing the new statutoryprovisions. This proposal will deal withissues that are logical outgrowths of thenew provisions rather than mattersaddressed directly by the statutorylanguage.

While it recognizes the importance ofpublic comment in its rulemakingactivity, EPA believes that thecircumstances presented by the newRCRA amendments create a need forswift administrative action before publiccomment can be obtained. TheAdministrative Procedures Act, 5 U.S.C.551, et seq., specifically recognizes thatthere will be situations where anadministrative agency need not gothrough a round of public commentbefore issuing a substantive rule. Under5 U.S.C. § 553(b)(3)(B), a rule is exemptfrom notice and public commentrequirements "when the agency for goodcause finds (and inc'orporates thefinding and a brief statement of reasonstherefore in the rules issued) that noticeand public procedures thereon areimpractical, unnecessary, or contrary tothe public interest"

The Administrative Conference of theUnited States has recently summarizedthe case law that has developed on theuse of the "good cause" exemption byoffering the following guidance toadministrative agencies:

Examples of the types of situationsrequiring use of the exemption are .those inwhich (1) advance notice of rulemaking willdefeat the regulatory objective, (2) immediateaction is necessary to reduce or avoid healthhazards of imminent harm to persons orproperty, (3) immediate action is required toprevent serious dislocation in themarketplace, and (4) delay in promulgationwill cause an injurious inconsistencybetween an agency rule and a newly enactedstatute or judicial decision. ACUS Recc. 83-2:The "Good Cause" Exemption from APARulemaking Requirements, 1 CFR Part305.83-2 (1984).

An examination of the circumstancespresented by the new amendments andthe limited objectives of this ruleindicates that EPA may properly invoke

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the good c-usa exemption from thenotice and comment requirements of theAPA. First of all, the Congress hasspecifically indicated that it expectsEPA to make use of the good causeexemption in the early stages of itsimplementation program. TheConference Report on the statute [H.R.Report No. 1133, 98th Cong., 2d Sess.,112 (1984)] states:

For those provisions of this Act which areimmediately effcctive, it would be contrary tothe public interest and impractical for EPA toengage in the time-consuming rulemakingprocedures required by Section A of the APA,5 U.S.C. Section 553, to carry out swiftly itsstatutory mandate. Therefore, for suchimmediately effective provisions, EPAappropriately may invoke the "good cause"exemption of 5 U.S.C. Section 553(b)(BI and(d)(3), in issuing final substantive orinterpretative rules to implement thoseprovisions. This will enable the Agency toput into place swiftly the enactedrequirements.

Second, immediate action servesimportant public policy objectives. TheCongress has clearly indicated in thenew statute that many of its provisionsare to go into effect immediately orwithin a very short period of time. If thatobjective is to be met, it is vital that theregulated community become aware ofthe new requirements and fullyunderstand how their operations mustchange. EPA's regulations provide themost effective vehicle for officiallycommunicating the will of Congress. Theregulated community has been workingwith EPA's regulations for several yearsnow. Those regulations have become thetouchstone for the hazardous wasteprogram, defining the basicrequirements that must be met. Manypermits that have been issued to ownersand operators of treatment, storage, anddisposal facilities reference specificsections of the regulations. Many Stateregulatory programs are modeled afterEPA's regulations; some States evenincorporate EPA's regulations byreference.

Thus, by modifying the current EPAregulations to reflect the new statutoryamendments, EPA is translating thoserequirements into the regulatoryparlance with which the interestedpublic is most familiar. This step shouldhelp to eliminate much of the confusionthat would result if individual membersof the regulated community had tostruggle on their own to understand theeffect of the new amendments on theirresponsibilities. They certainly wouldhave difficulty understanding whichparts of the existing regulations hadbeen superseded by new requirementsand which had not.

This effort to bring EPA's regulationsinto line with the new statutoryprovisions also has important benefitsfor the Agency's enforcement efforts. Animportant aspect of any effectiveenforcement program is an effort to putregulated parties on notice of what thelaw says so that they cannot claim thatthey were confused about theirresponsibilities.

By reducing confusion about theprogram and clarifying responsibilitiesfor enforcemelit purposes, EPA isultimately serving the basic purposes ofthe statute-the protection of humanhealth and the environment. Anatmosphere of confusion about thecontent of a new environmental law canonly paralyze efforts by responsiblesegments of the regulated community tomove ahead to meet theirresponsibilities and can only provideanother excuse for those segments of theregulated community that are notinclined to comply with the law. Neitherresult advances the Congress' objectiveof promptly reducing the threats tohuman health and the environmentposed by hazardous waste management.Thus, EPA's efforts to codify the newamendments into its regulations shouldprovide important immediate benefitsfor protecting human health and theenvironment.

A third consideration is that EPA hastried to minimize the need for publiccomment on the final rule by codifyingthe exact etatutory language for most ofthe provisions. Given this approach, theneed for public comment on the finalrule is much reduced.

For the reasons described above, EPAhas concluded that there is good causeto issue today's rule prior to receivingpablic conment because, under thecircumstances, notice and commentprocedures would be impracticable,unnecessary, and contrary to the publicinterest under 5 U.S.C. 553(b)(B). For thesame reasons, EPA believes that it hasgood cause to make today's ruleimmediately effective, instead ofeffective within 30 days, as provided forin 5 U.S.C. 553(d)(3). EPA also believes ithav a sound basis for su3pending thestatutory six-month effective date forregulations under RCRA provided bysection 3010(b). The Hazardous andSolid Waste Amendments of 1984amended section 50!0(b) to provide thatEPA may shorten or provJe for animmediate effective date where (1) theregalated community does not need sixmonths to come into compliance, (2) theregulation responds to an emergencysituation, or-(3) there is other goodcause. For the reasons described above,EPA believes there is a good cause tomake today's rule immediately effective.

IV. Other Elements of EPA's Strategy forImplementing Amendments

EPA's effort to communicate with thepublic about these new requirementshas not and will not be limited to thepromulgation of today's rule. A varietyof activities have already taken place orare planned to ensure that EPA receivesthe feedback from Regions and Statesand from other interested partiesnecessary for inteligent implementationof the new RCRA program. Theseactivities include:

1. A working conference held onOctober 24 and 25, 1984, to discuss withthe Regions and States options forimplementing the early enactmentprovisions.

2. A December 11, 1984,teleconference held on the newamendments with all ten Regions, andanyone else with a satellite hook-up.

3. A series of informal meetings withState interests and with industrial andenvironmental groups to further exploremajor implementation decisions.

4. Mailing of draft guidance to theRegions, States, and outside interests forreview prior to publication.

5. A series of regional and publicmeetings (scheduled for April 1985) todescribe implementation plans.

6. Date of Enactment Alert (RSI #1)mailed November 9, 1984, to the Regionsand States to inform them of theimmediate impact of new provisions onpermitting.

7. A series of pamphlets, brochures,and papers to further describe newprovisions to affected interests.

8. Direct mailing to treatment, storage,and disposal facilities informing them ofthe new requirements for which theywill be responsible.

9. Direct maiJing to small quantitygenerators informing them of the mannerin which they will be affected by newprovisions of law.

V. Section by Section Analysis ofRegulatory Changes

In this section, EPA discusses in moredetail the specific changes being madeto the existing regulations by today'srule.

A. Land Disposal Amendments

1. Liquids in Landfills

a. Ban on bulk or non-containerizedliquid hazardous waste. The Hazardousand Solid Waste Amendments of 1984(HSWA) amend section 3004 of RCRAby adding paragraph (c) dealing with theplacement of liquids in landfills. Section3004(c)(1) calls for an absolute ban onthe placement of bulk or non-containerized liquid hazardous waste or

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hazardous waste containing free liquidsin any landfill after May 8, 1985.' Thestatute makes it clear that the banencompasses hazardous wastecontaining free liquids even ifabsorbents have been added to suchwaste. Until this ban takes effect onMay 8, 1985, the requirements set forthin EPA's existing regulations, aspromulgated on July 26, 1982, remainapplicable.

The rule promulgated today amendsEPA's existing regulations for permittedand interim status landfills to implementthis new statutory provision. Section264.314(a) (setting forth standards forpermitted landfills) and § 265.314(a)(setting forth standards for interimstatus landfills] have been changed toreflect the fact that the standardscontained therein remain applicableonly until May 8, 1985, at which pointthe absolute ban on the placement inlandfills of bulk or non-containerizedliquid hazardous waste or hazardouswaste containing free liquids takeseffect. This absolute ban is now codifiedin a new paragraph (b) which has beenadded both to § 264.314 and to § 265.314.

The Agency interprets the ban on"placement" to include, but not belimited to: (1) Placing bulk liquids into alandfill cell where the liquids aresolidified and then transferred toanother landfill cell, and (2) placingtreated bulk liquids still in liquid forminto a landfill cell prior to solidification.The term "placement" is sufficientlybroad to encompass treatment, storage,or disposal. The legislative history of arelated provision, section 3004(b)(banning the placement of liquidhazardous waste in salt domes,underground mines, or caves) confirmsthat Congress intended the ban on"placement" to be construed broadly toprohibit even storage of material whileawaiting further treatment or disposal,and to preclude use of such locations astreatment chambers. See 129 Cong. Rec.H8141 (daily ed. Oct. 6, 1983). Thus, it isevident that the ban is effectiveregardless of the purpose of placing theliquids into a landfill.

b. Ban on non-hazardous liquids.HSWA also adds new section 3004(c)(3),which imposes a ban on the placementof non-hazardous liquids in permitted orinterim status landfills after November8, 1985. This provision provides anexemption from the prohibition,however, if the owner or operator ofsuch a landfill demonstrates to EPA's

I"Free liquids" are liquids which readily separatefrom the solid portion of a waste under ambienttemperature and pressure. 40 CFR 260.10.

satisfaction2 that: (1) The onlyreasonably available alternative forthese non-hazardous liquids is a landfillor unlined surface impoundment(including units not operating pursuantto a permit or interim status) whichalready contains, or may reasonably beanticipated to contain, hazardous waste,and (2) the disposal of the non-hazardous liquids in the owner oroperator's landfill will not present a riskof contamination to any undergroundsource of drinking water. This exceptionis designed to prevent the shifting ofnon-hazardous liquid waste fromSubtitle C landfills to muncipal landfillsand unlined surface impoundments thatcontain or might contain hazardouswastes due to prior disposal practices.129 Cong. Rec. H8138 (daily ed. Oct. 6,1983). As used in this provision, the term"unlined" surface impoundment meansa surface impoundment that does notmeet the requirements of 40 CFR Part264, Subpart K, as promulgated on July26, 1982. 129 Cong. Rec. H8141 (daily ed.Oct. 6, 1983). Section 3004(c)(3) specifiesthat the term "underground source ofdrinking water" has the same meaningas provided in regulations promulgatedunder the Safe Drinking Water Act (see40 CFR 144.3).

To implement this provision,paragraph (e) has been added to§ § 264.314 and 265.314 (f) banning theplacement of a liquid which is not ahazardous waste in permitted or interimstatus landfills after November 8, 1985.These paragraphs essentially repeat theprohibition and exemption found insection 3004(c)(3). In addition, the permitapplication requirement pertaining tolandfills receiving bulk or non-containerized liquid waste (§-270.21(h))is amended to reflect the fact that suchwaste may continue to be received atlandfills only until May 8, 1985.

2. Minimum Technological Requirements

HSWA amends section 3004 of RCRAby adding a new paragraph (o) imposingminimum technological requirements onthe owners or operators of certainlandfills and surface impoundmentsseeking permits. HSWA also adds a newsection 3015 to RCRA imposing similarrequirements on certain interim statuswaste piles, landfills, and surfaceimpoundments.

Specifically, section 3004(o)(1)(A]provides that a permit for a new landfillor surface impoundment, a new landfill

2The language of section (c](3) requires adetermination by the "Administrator." In codifyingthis and other statutory provisions which use theterm "Administrator," EPA has substituted the term"Regional Administrator" where this usage would beconsistent with EPA's current regulations.

or surface impoundment unit at anexisting facility, or a replacement orlateral expansion of an existing landfillor surface impoundment unit, must.require the installation of two or moreliners, a leachate collection systemabove (in the case of a landfill) andbetween the liners, and ground-watermonitoring. Section 3004(o)(5)(B) allowsthe use of a particular type of linerdesign pending the issuance of EPAregulations or guidance implementingthe double-liner requirement in section3004(o)(1). In today's rule, th's provisionappears in § 264.221(c) (for surfaceimpoundments) and § 264.301(c) (forlandfills).

Section 3004(o)(2), codified in today'srule at § § 264.221(d) and 264.301(d),provides an exemption from the section3004(o)(1)(A) standards for liners andleachate collection systems ifalternative design and operatingpractices, together with locationcharacteristics, will prevent themigration of hazardous constituents intothe ground water or surface water atleast as effectively as the liners andleachate collection systems. Section3004(o)(3) exempts certain monofillsfrom the double liner requirements. Themonofill exemption is added in§§ 264.221(e) and 264.301(e).

Section 3015(b)(1) establishesstandards for interim status surfaceimpoundments and landfills. Any newunit, or replacement or lateral expansionof an existing unit, is subject to therequirements of section 3004(o) (relatingto minimum technological requirements),with respect to wdste receivedbeginning May 8, 1985. According tosection 3015(b)(2), the owner or operatorof any unit subject to section 3015(b)must notify EPA as least sixty days priorto receiving waste and must file a Part Bapplication within six months of thereceipt of the notice. Today's rule addsnew § 265.221 to codify the requirementsfor interim status surfaceimpoundments. New § 265.301 containsthe requirements for interim statuslandfills.

Section 3015(b)(3) provides that theowner or operator of a surfaceimpoundment or landfill who installsliners and a leachate collection systemin good faith compliance with EPAregulations and guidance documents,may not be required to install a differentliner or leachate collection system at thetime that the facility receives its firstpermit. Notwithstanding this provision,the Administrator may require Iinstallation of a new liner at permittingif the Administrator has reason tobelieve that the liner installed duringinterim status is leaking. The language

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of this provision appears in §§ 265.221(e)and 265.301(e).

Section 3015(a) sets out standards forinterim status waste piles. Any newwaste pile unit, or replacement or lateralexpansion of an existing unit, mustcomply with rc jurements for liners andlevchate collection provided in currentregulations or in revised regulationsunder secti,-n 3034(o). The newstandards are applicable to any newwaste pile unit, or replacement or lateralexpansion of an existing unit, withrespect to waste receive] beginningMay 8, 198. Today's rule has addedthese requirmments in new § 265.254.

The following discussion explains inmore detail tlie intended applicabilityand content of the minimumtechnological requirements.

a. Who is affected by the statutoryamendmerts. Section 3004(o)(1)(A)specifies which facilities, units, andlateral expansions will have to complywith the new minimum technologicalrequirements at the time of permitting.Section 3015 specifies which units andlateral expansions are subject to thenew standards during interim status.This -section *of the preamble comparesthe scope of the two provisions andexplains who must comply with the newrequirements.

Under section 3004(o)(1)(A), a permitissued after November 8, 1984 mustrequire liners, leachate collection, andground-water monitoring for each newlandfill or surface impoundment, eachnew landfill or surface impoundmentunit at an existing facility, and eachreplacement or lateral expansion of anexisting landfill or surface impoundmentunit. The requirements apply withrespect to waste received after theissuance of the permit.

Section 3015, which subjects theowner or operator of a waste pile,landill, or surface impoundmentoperating under interim status tominimum technological requirements,uses language similar to that used insection 3004: units subject to section3015 include any new unit, anyreplacement of an existing unit, and anylateral expansion of an existing unit.The provision applies with respect towaste received beginning May 8, 1985.

Currently, EPA defines "unit" in thepreamble to the July 26, 1982, regulationsas a continguous area of land on or inwhich waste is placed, or the largestarea in which there is a significantlikelihood of mixing waste constituentsin the same area. See 47 FR 32289. Thisdefinition envisions a unit as a definedor bounded area designed to containwaste, with either natural or artificialboundaries. The legislative history toHSWA confirms that Congress intended

"unit" to be defined as in the preambleto the EPA regulation published on July26, 1982, and as further defined by EPA.See H.R. Rep. No. 198, 98th Cong., 1stSess. part 1, at 60 (1983).

Consistent with this definition, EPAconsiders that the available physicalevidence (e.g., berms, excavation, orother construction) offers the bestindication of where the boundaries of aunit are located. Other objectiveinformation, such as operating recordsor the Pait A permit application, alsomay be used to identify the boundariesof a unit.

Surface impoundments will generallybe ether excavated or bounded bydikes. Similarly, most landfill trenchesor cells are excavated and theboundaries of the unit will be readilyrecognizable. For certain areafills andwaste piles, where no definedboundaries exist and no construction orexcavation is necessary or planned(because waste is placed on theunprepared land surface), theboundaries of the unit will bedeterminedebased on various objectivefactors, such as evidence in the facilityoperating record or the Part A permitapplication, which would indicatewhether a particular area was intendedto be an individual unit (i.e., a boundedarea where waste will be placed).

Neither the statutory language nor thelegislative history specifically providesan interpretation of the term "lateralexpansion." A lateral expansion wouldbe defined as an expansion of theboundaries of the existing unit. Hence, ifan existing interim status surfaceimpoundment or landfill unit expandsafter November 8, 1984 to cover newland area, the expanded area mustcomply wili the double liner andleachate col~ection requirements if thatarea is still receiving waste on May 8,1985. Expansion is usually accomplishedin a surface impoundment by movingdikes to create additional capacity, or ina landfill by excavating additional areasto enlarge an existing trench.

For interim status purposes, section3015 specifies that the new requirementsapply to a lateral expansion of anexisting unit that is within the "wastemanagement area" identified in the PartA permit application.3 In codifying the

3The language of section 3015 refers to a lateralexpansion of an existing unit that is "within thewaste management area identified in the permitapplication submitted under Section 3005." EPA hasinterpreted the phrase "permit applicationsubmitted under section 3005" to mean the Part Apermit application. See S. Rep. No. 284, 98th Cong.,1st Sess., 24 (1983).

new interim status requirements in§§ 265.221(a), 265.254, and 265.301(a),EPA has used the term "area," ratherthan the term "waste management area"used in the statute. EPA believesCongress intended the term "wastemanagement area" to refer to the areaidentified in the original or amendedPart A. The term "waste managementarea" as used in EPA regulations has aprecise meaning: it designates the areaon which waste will be placed duringthe active life of a regulated unit. See 40CFR 264.95(b). Because "regulated unit"is a term of art under the ground-watermonitoring and response program, theuse of the term "waste managementarea" will not always be appropriate inthe context of the provision dealing withdouble-liner requirements. It isreasonable to assume that Congress, inusing the term, intended to refer to thearea designated in the Part A permitapplication, not "waste managementarea" as the term is used in § 264.95(b).

A "replacement" waste pile or surfaceimpoundment unit is a unit that is takenout of service and emptied by removingall or substantially all waste from it. Theunit must be brought into compliancewith the minimum technologicalrequirements before it can be reused.See S. Rep. No. 284, 98th Cong., 1st Sess.24 (1983).

In codifying sections 3004(o)(1)(A) and3015, EPA had to determine what theterms "new" and "existing" shouldmean in this context. The statutoryscheme, the legislative history, and theexisting regulatory system support theconclusion that the terms "new" and"existing" must have different meaningsfor the purposes of interim status(section 3015) and of permitting (section3004(o)(1)).1

The language of section 3015, and therelationship of this provision to section3004(o), dictate that the applicability ofthe minimum technological requirementsto interim status units be determinedwith reference to the date of enactmentof HSWA, November 8, 1984. For

'The definitions of "new facility" and "existingfacility" set out in EPA's current regulations at 40CFR § 260.10 (October 21, 1976 for "new" facilities,and November 19, 1980 for "existing" facilities),cannot be used for the new regulations, because theapplicable dates do not relate to the purposes of theliner amendments in HSWA.

New section 3004(o)(4) (requiring EPA topromulgate standards on leak detection systemswithin thirty months) does provide a definition of"new unit" as a unit on which constructioncommences after the promulgation of regulationsunder section 3004(o)(4). However, the statuteexpressly restricts the use of that definition to thepurposes of section 3004(o)(4). Such a definitionwould not be appropriate for section 3004(o)(1),which goes into effect on the date of enactment ofHSWA,

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purposes of section 3015, a new unit,replacement of an existing unit, orlateral expansion of an existing unit isdefined as a unit, replacement, or lateralexpansion that first receives waste afterNovember 8, 1984. Such a unit orexpansion must comply with theminimum technological requirementswith respect to waste receivedbeginning May 8, 19 85 .5

This interpretation of section 3015tracks the unambiguous legislativehistory to this provision. The legislativehistory defines new units, replacements,and lateral expansions for the purposesof section 3015 as those units or lateralexpansions that first receive waste afterthe date of enactment of HSWA(November 8, 1984). The legislativehistory specifies that any such unit orexpansion must comply with theminimum technological requirements ifit continues to receive hazardous wastesix months after enactment (May 8,1985). See S. Rep. No. 284, 98th Cong.,1st Sess. 24 (1983).

Thus, any new unit, replacement, orlateral expansion of an existing unit thatfirst receives waste after November 8,1984 is subject to the new requirements.If such a unit is still receiving waste onMay 8, 1985, the minimum technologicalrequirements must be in place on thatdate. In effect, the statute allows such aunit or lateral expansion a six-monthperiod from the date of enactment ofHSWA to come into compliance withthe new standards.

Moreover, the entire unit or lateralexpansion is subject to the newstandards if the unit continues to receivewaste after May 8, 1985. This means thatif waste has been placed in a new unitor lateral expansion prior to May 8,1985, the owner or operator must stillbring the entire unit into compliancewith the new liner and leachatecollection standards in order to continueusing the unit after May 8, 1985. Thelanguage and legislative history ofsection 3015 both require that "newunits" have the required liners andleachate collection systems in order toreceive waste after May 8, 1985. See S.

6The applicability provisions for interim statusfacilities are the same for waste piles, landfills, andsurface impoundments. Although section 3015 dealsseparately with waste piles (section 3015(a)) andwith surface impoundments and landfills (section3015(b)), the two sections use identical language:both 3015(a) and 3015(b) refer to new units,replacements and lateral expansions of existingunits.

Section 3015(a differs from section 3015(b) in thatthe technical requirements imposed on waste piles(a single-liner system) are not the same as thetechnical requirements imposed on landfills andsurface impoundments (a double liner system).These technical requirements are further explainedin Sections b. and d. below.

Rep. No. 284, 98th Cong., 1st Sess. 24(1983). The provision acts to give ownersand operators the option of eitherclosing new units or bringing the unitsinto compliance with the double linerand leachate collection requirements.

Under section 3015, then, severaloptions are available for a new unit orlateral expansion:

(1) If the unit continues to operate onMay 8, 1985, an owner or operator whowishes to continue using the whole unitmust lint: the entire unit in accordancewith the new requirements. If the unithas received waste between November8, 1984, and May 8, 1985, the owner oroperator will have to retrofit.

(2) An owner or operator may be ableto restructure a unit that has receivedwaste between November 8, 1984, andMay 8, 1985, by creating'a barrierbetween the area that contains wasteand any empty area (e.g., a berm withina landfill trench). The empty area wouldthen constitute a new unit which canreceive waste after May 8, 1985, if itcomplies with the new statutoryrequirements. To avoid retrofitting inthis situation, the owner or operatorwould have to cease placing waste intothe portion of the old unit that hadreceived waste between November 8,1984, and May 8, 1985.

(3) If a new unit or a replacement orlateral expansion of an existing unitoperating under interim status stopsreceiving hazardous waste before May8, 1985, the unit need not comply withthe minimum technologicalrequirements. In other words, section3015 does not impose any newrequirements on an interim status unit orlateral expansion that first receiveswaste after November 8, 1984, butceases receiving waste before May 8,1985.

The above analysis suggests that if aunit had received waste prior to the dateof enactment of HSWA, it wouldautomatically be exempt from theminimum technological requirements.However, the legislative historyaccompanying section 3015 indicatesthat in addition to having alreadyreceived waste by the date ofenactment, a unit must also be"operational" by that date in order to beexempt from the new requirements. SeeS. Rep. No. 284, 98th Cong., 1st Sess. 24(1983). EPA believes that in order to be"operational" as of November 8, 1984, aunit must have been constructed tocomply with all Federal, State and localrequirements, including licenses andpermits, in effect prior to the enactmentof HSWA, so that as of November 8there was no legal impediment to theoperation of the unit. EPA believes that

Congress would not have viewed a unitas being operational unless it wasauthorized to receive waste and had thelegal right to operate.

If, for some reason, the entire unit wasnot operational on November 8 (forexample, a liner or leachate collectionsystem required by a State permit wasnot in place), only the part of the unitwhich was ready to receive waste inaccordance with existing requirementsin effect on November 8, 1984, will beexempt from the new requirements. EPAbelieves that this is the only area that*can qualify as an "existing unit" undersection 3004(o) given this legislativehistory. An owner or operator who hasinstalled liners or leachate collectionsystems which exceed the applicableFederal, State or local requirements ineffect on November 8, 1984, need nothave completed such installation byNovember 8 in order for the unit to beexempt from the new double liner

.provisions (as long as the applicablelegal requirements have already beencomplied with). It should be emphasizedthat in order to be exempted from thenew minimum technology requirements,the unit must satisfy both criteriaenumerated in the legislative history ofthe bill from which this provision wasdrawn: the unit must already havebegun receiving waste by the date ofenactment of HSWA, and it must havebeen fully operational by that date.

Section 3015 does not expresslyidentify the type of waste a unit mustcontain in order to qualify as an existingunit. Based on the purposes of HSWAand on current regulatory practice, aunit should qualify as an existing unit ifit has received hazardous wastes orsolid wastes (as defined in 40 CFR 261.2)or both before November 8, 1984. Thischaracterization is appropriate for thepurposes of HSWA because it exemptsfrom the new requirements those unitsfor which retrofitting would most likelybe impracticable or dangerous.Retrofitting may be burdensome notonly for wastes identified or listed ashazardous, but also for many non-hazardous solid wastes as well. Thisrationale is also consistent with theprovision in-current regulationsexempting from the single linerrequirements those units for whichretrofitting would be impracticable orburdensome. See 47 FR 32290, 32315.

As noted above, while section 3015defines the applicability of the minimumtechnological requirements to interimstatus units, section 3004(o)(1)(A)applies the requirements to permitted

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landfills and surface impoundments. 6 Inthe context of the permit program, newfacilities, new units, and replacementsor lateral expansions of existing unitsrefer to those units or lateral expansionsthat first receive waste after the date ofpermit issuance. Such facilities, units,replacements, or lateral expansionsmust comply with the minimumtechnological requirements undersection 3004(o)(1)(A).

Today's regulations interpret section3004(o)(1)(A) to apply to all facilitiesthat receive a permit after the date ofenactment of HSWA. The language ofsection 3004(o)(1)(A) could be read toimpose the minimum technologicalrequirements only on those facilities forwhich a Part B application is receivedafter the date of enactment.7 Such alimitation, however, would beinconsistent with the new standardsestablished in section 3015, requiringinterim status units'that first receivewaste after the enactment of HSWA tocomply with the minimum technologicalrequirements of section 3004(o). Ifapplied literally, the statutory languagecould be read to require that a facilitycomply with minimum technologicalrequirements during interim status butbe relieved from these samerequirements after permitting if thepermit application was received prior toNovember 8, 1984.

For example, an interim status landfillfor which a Part B application wassubmitted prior to November 8, 1984,would still be subject to new section3015 during interim status. (The timingof the submission of the Part Bapplication does not affect theapplicability of the minimumtechnological requirements duringinterim status, because section 3015applies to all new interim status unitsand expansions.) If several trencheswere planned at the landfill, any newinterim status trench that beganreceiving waste after November 8, 1984and continued to receive waste afterMay 8, 1985, would have to comply withthe new double liner requirements. Afterthe facility received its permit, it would'be subject to the requirements of section3004(o). Applied literally, the languageof section 3004(o) could exempt from the

6Section 3004(ol(i)(A) applies only to permitted

landfills and surface impoundments and does notimpose any new requirements on permitted wastepiles. All permitted waste piles will continue to besubject to the current regulation, § 264.251(a)(1),which requires the portions of units not coveredwith waste at permit issuance to have a single linerand leachate collection system.

7Section 3004(ol(1)(A) refers to facilities "forwhich an application for a final determinationregarding issuance of a permit under section3004(c)" is received. Today's rule interprets thisphrase to mean a Part B application.

double liner requirements any trencheswhich first received waste after permitissuance, if the facility's Part Bapplication was submitted beforeNovember 8, 1984. In consequence, theminimum technological requirementswould apply to new units at such afacility only until the facility received itspermit, at which time any new units atthe same facility would be exemptedfrom the requirements.

Such a result cannot be reconciledwith the structure of the treatment,storage, and disposal standards thatEPA has pursued since the inception ofthe hazardous waste program. EPA hasoperated on the assumption that shiftinga facility from interim status topermitting results in stricter controls, orat least no less stringent requirements,on the facility. The original theorybehind the interim status standards wasthat they constituted a subset of thestandards EPA planned to imposeduring permitting. See 45 FR 33159. EPAdoes not believe that Congress intendedto reverse that basic principle of theRCRA program with this amendment.No such intent can be drawn from thestatutory language or legislative history.Certainly it cannot be concluded thatCongress intended to have EPAdowngrade environmental controlswhen it issued a permit.

Therefore, today's rule interpretssection 3004(o)(1)(A) to apply to allfacilities receiving a permit afterNovember 8, 1984, regardless of whenthe Part B was submitted. However,neither the statutory language nor thelegislative history mandates theminimum technological requirements ofsection 3004(o)(1)(A) for facilities thatreceived permits on or before November8, 1984. Accordingly, today's regulationdoes not impose the requirements onfacilities that received permits by thatdate.

An additional provision, paragraph(b)(3) of section 3015, outlines EPA'sauthority during the permitting processto require the retrofitting of liners andleachate collection systems installed ininterim status landfills and surfaceimpoundments. (This provision does notapply to waste piles.) Section 3015(b)(3)provides that if the interim status linersand leachate collection systems havebeen installed in good faith, EPA maynot require the unit to retrofit at the timethe facility receives its first permit.

Section 3015(b)(3) also provides anexception to the good faith provision.The Administrator is authorized torequire installation of a new liner whenthe Administrator has reason to believethat the liner installed during interim -status is leaking.

EPA has construed its authority torequire retrofitting under section3015(b)(3) as being limited to the time ofpermitting. Neither the statutorylanguage nor the legislative historysuggests that Congress intended to giveEPA a broader authority under section3015(b)(3) to require interim status unitsto retrofit prior to issuance of a permit."(For a discussion of the technicalrequirements associated with the goodfaith provision, see Section c. below.)

Existing units, as noted above, are notaffected by the new law. A landfill orsurface impoundment unit that alreadycontained waste and was operational onNovember 8, 1984, qualifies as anexisting unit under the new law: it is anexisting unit under section 3015 (interimstatus) because it received waste andwas operational before the date ofenactment of HSWA, and it is also anexisting unit under section 3004(o)(1)(permitting) because it received wastebefore permit issuance. Therefore, theentire unit is exempt from the newminimum technological requirements.However, EPA's current regulations dorequire the lining of partial units at thetime of permit issuance: Section264.221(a) (for surface impoundments)and § 264.301(a) (for landfills) requirethe portions of units not covered withwaste at permit issuance to install asingle liner (with a leachate collectionsystem above the liner, in the case of alandfill). This means that even if a unitis exempt from the new double linerstandards, it is still subject to EPA'scurrent single liner standards atpermitting. Nothing in HSWA suggeststhat Congress intended entirely toinvalidate these regulations; rather, theregulations are superseded in part bythe standards in new sections 3015 and3004(o)(1)(A). Today's rule amendsexisting § § 284.221(a) and 264.301(a) tolimit the applicability of thoseprovisions to units which are exemptfrom the new double liner standards.

In summary, the combined effect ofsections 3004(o)(1)(A) and 3015 is torequire any unit, replacement, or lateralexpansion that first receives waste afterNovember 8, 1984 to comply with theminimum technological requirements onMay 8, 1985 (if such unit, replacement, orlateral expansion is still receiving wasteon that date), or at permitting,whichever occurs first. Landfill andsurface impoundment units that install

'This is not the only authority, however, underwhich a retrofit requirement might be imposed. Asdiscussed in Section V.A.3. of this preamble, EPAhas authority under setion 3008(h) to issue ordersrequiring corrective action at interim statusfacilities, which may include source controlmeasures such as retrofitting of liners.

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double liners and leachate collectionssystems in good faith during interimstatus cannot be required to retrofit atth e time of first permitting unless theliner is leaking. Any landfill or surfaceimpoundment unit that received wasteand was operational before November 8,1984, is exempt from the statutoryminimum technological requirements butmust comply with the Agency's currentsingle liner regulations at permitting.

b. Technical requirements: Liners andleachate collection systems. Newsection 3004(o)(1)(A)(i) adds a provisionrequiring new units and lateralexpansions and replacements of existinglandfills and surface impoundments thatreceive permits after November 8, 1984,to have two or more liners. Surfaceimpoundments must have a leachatecollection system between the liners,while landfills must have a leachatecollection system above and betweenthe liners. These new requirements arecodified in §§ 264.221(c) (setting outdesign and operating requirements forpermitted surface impoundments) and264.301(c) (setting out design andoperating requirements for permittedlandfills). Every landfill or surfaceimpoundment subject to the new lawmust meet the statutorily mandatedminimum technological requirements fortwo or more liners and a leachatecollection system above and betweenthe liners (for landfills) and two or moreliners with a leachate collection systembetween the liners (for surfaceimpoundments), unless the conditionsfor a statutory variance are met. (SeeSection e. below for a discussion ofvariances.)

The Agency interprets section300(o)(1)(A)(i) to require that the linerand the leachate collection systembetween the liners extend to any area ofthe unit that is in contact with thewaste. This interpretation of thestatutory requirement is consistent withthe Agency's current regulatory practiceregarding the design of liners andleav4 ate collection systems. Congressintended that the Agency's existingdesign standards provide the basis forinterpreting the new minimum -technological requirements. See S. Rep.No. 284, 98th Cong., 1st Sess. 27 (1983);H.R. Rep. No. 198, 98th Cong., 1st Sess.part 1, at 63 (1983). In addition, thelegislative history suggests that theleachate collection system should actboth as a leachate collection andremoval system and a leak detectionsystem. These purposes can be achievedonly if the liners and the leachatecollection system between the linerscover all surfaces of the unit that are incontact with the wastes. See S. Rep. No.

284, 98th Cong., 1st Sess. 26 (1983); H.R.Rep. No. 198, 98th Cong., 1st Sess. part 1,at 62, 63 (1983).

Sections 264.221(c) and 264.301(c)provide a broad narrative standard forthe new liner requirement: thestatutorily mandated double liners andleachate collection systems shall"protect human health and theenvironment." This broad standard isdrawn directly from the statutorylanguage in section 3004(a). Whilesection 3004(o)(1) does not specificallyset forth a standard, that section isultimately designed to implement themandate of section 3005(a). 9 It must beassumed that Congress wanted EPA toissue double liner standards "asnecessary to protect human health andthe environment" when enacting section3004(o).

Under section 3015(b)(1), landfills andsurface impoundments operating underinterim status must comply with theminimum technological requirements setout in section 3004(o). To implement thisstatutory requirement, today's rulerequires interim status landfill andsurface impoundment units to complywith the liner and leachate collectionrequirements set out in the new Part 264regulations described above.Specifically, new § 265.221(a) requiresinterim status surface impoundments toinstall liners and leachate collectionsystems in compliance with § 264.221(c).Similarly, new § 265.301(a) requiresinterim status landfills to install linersand leachate collection systems incompliance with § 264.301(c).

Section 3004(o)(5)(A] requires EPA topromulgate regulations or issueguidance documents implementing therequirements of section 3004(o)(1) withintwo years after the enactment ofHSWA. Until the effective date of suchregulations or guidance documents,section 3004(o](5)(B) provides that therequirement for the installation of twoor more liners may be satisfied by theinstallation of a top liner designed,operated, and constructed of materialsto prevent the migration of anyconstituent into such liner during theperiod the facility remains in operation(including any post-closure monitoringperiod) and a lower liner designed,operated and constructed to prevent themigration of any constituent through thelower liner during such period. Thestatute further provides that a lowerliner shall be deemed to satisfy thisrequirement if it is constructed of atleast a three-foot thick layer ofrecompacted clay or other natural

9 Section 3004(o) begins with the phrase "Theregulations under subsection (a) of this sectionshall * . ."

material with a permeability of no morethan I X10-7 centimeter per second. Thisinterim liner standard is codified in§ § 264.221(c) and 264.301(c). The statutemakes it clear that the standard set outin section 3004(o)(5)(B) will besuperseded by EPA regulations orguidance documents implementing thestatutory requirement contained insection 3004(o)(1). The Congress viewedthis interim design as a measureintended to fill the gap before EPAacted. See 130 Cong. Rec. S9182 (dailyed. July 25, 1984).

The statute does not mandate the useof the liner standard set out in section3004(o)(5)(B) during the period prior tothe issuance of implementing regulationsor guidance; rather, the statute providesthat the requirement for two or moreliners "may" be satisfied by followingsection 3004(o)(5)(B). The Agencybelieves that, during this interim period,an owner or operator who wishes toinstall a liner system other than the onedescribed in section 3004(o)(5)(B) mustmeet the broad narrative standard ofprotection of human health and theenvironment.

c. Requirements under the good faithprovision. As noted in Section a. above,section 3015(b)(3) provides that if theowner or operator has installed linersand a leachate collection systempursuant to the requirements of section3015 and in good faith compliance withregulations and guidance documentsgoverning liners and leachate collectionsystems, the Administrator shall notrequire the owner or operator to install adifferent liner or leachate collectionsystem for the unit when issuing the firstpermit, except that a new liner may berequired if the Administrator has reasonto believe that a liner installed duringinterim status is leaking.

The intent of this provision was toprovide that anyone who followed EPAguidance documents would be presumedto have acted in good faith. Retrofittingwould be required in cases involvingfraud or gross noncompliance, includingfailure to install a liner or leachatecollection system, installation of a lineror leachate collection system not incompliance with EPA guidancedocuments, or inadequatedocumentation of any major designfeature or construction activity. Inaddition, failure to submit the requirednotice prior to receipt of waste (seeSection g. below) would result in theelimination of the "good faith"protections of this provision. See S. Rep.No. 284, 98th Cong4, 1st Sess. 24-25(1983).

In order to determine whether a linersystem has been installed in good faith,

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the Agency will need to haveinformation showing that all appropriateunits have been lined in accordancewith EPA regulations and guidancedocuments. The owner or operatorshould provide the Agency withsufficient information to allow theAgency to determine what areas at anyinterim status facility are new units, orreplacements or lateral expansions ofexisting units, as of November 8, 1984.EPA intends to issue guidancedocuments on the installation of linersand leachate collection systems and onrecordkeeping. EPA anticipates that theowner or operator will be keepinginformation showing that he compliedwith EPA guidance in the facilityoperating records described in § 265.73.The Agency's upcoming liner guidancewill also discuss a construction qualityassurance (CQA) plan. Such a planwould document the liner design,materials, and installation procedures.The Agency will review the operatingrecords and other documents atpermitting to assist in its determinationof good faith.

d. Waste piles. As discussed inSection a. above, section 3004(o), whichestablishes new double linerrequirements for permitted landfills andsurface impoundments, does not applyto waste piles. The existingrequirements for a single liner andleachate collection system, as set out in§ 264.251, remain in effect for permittedwaste piles.

HSWA does impose newrequirements on interim status wastepiles. Section 3015(a) subjects the owneror operator of a waste pile operatingunder interim status to the requirementsfor liners and leachate collectionsystems or equivalent protection, as setout in EPA regulations or as revisedunder section 3004(o) (relating tbminimum technological requirements).Essentially, the language in section3015(a) provides that interim statuswaste piles must comply either withstandards established under section3004(o), or with standards in currentregulations. See S. Rep. No. 284, 98thCong., 1st Sees. 24 (1983). EPA has notissued new standards for waste pilesunder the authority of section 3004(o).Therefore, section 3015(a) requiresinterim status waste piles to complywith requirements for a single liner andleachate collection system, ds set out inexisting § 264.251(a) (dealing withpermitting standards for waste piles).Today's rule adds new § 265.254 tocodify that provision.

The reference in section 3015(a) to"equivalent protection" is intended toauthorize waste piles to use the

variances to the liner and leachatecollection system requirements incurrent regulations. See S. Rep. No. 284,98th Cong., 1st Sess. 25 (1983). EPAconstrues this provision to mean thatowners and operators of interim statuswaste piles are eligible for theexemptions from the single linerrequirement set out in § 264.250(c)(exempting from regulation under§ 264.251 any waste pile that is inside orunder a structure) and § 264.251(b)(providing a variance if the owner oroperator demonstrates that alternatedesign and operating practices, togetherwith location characteristics, willprevent the migration of any hazardousconstitutents into the ground water orsurface water at any future time).

e. Variances. Section 3004(o)(2),codified in §§ 264.221(d) and 264.301(d),allows the owner or operator of alandfill or surface impoundment toobtain an exemption from therequirements for liners and leachatecollections systems set out in section3004(o)(1)(A). The owner or operatormust demonstrate that alternativedesign and operating practices, togetherwith location characteristics, willprevent the migration of any hazardousconstituents into the ground water orsurface water at least as effectively asthe liners and leachate collectionsystems.

Section 3004(o)(3), codified in§ § 264.221(e) and 264.301(e), authorizesan exemption from the requirements ofsection 3004(o)(1)(A) for a monofillcontaining only hazardous wastes fromfoundry furnace emission controls ormetal casting molding sand, as long asthe wastes do not contain constituents.which would render them hazardous forreasons other than the ExtractionProcedure (EP) toxicity characteristicsset out in EPA regulations. 10 The EPtoxicity characteristics are set out in 40CFR 261.24.

To obtain the exemption, the monofillmust also meet one of two additionalrequirements set out in new sections3005(j)(2) and 3005(j)(4). (Sections3005(j)(2) and 3005(j)(4., which deal withexisting surface impoundments, havenot been codified elsewhere in today'srule because these two sections do notgo into effect immediately.)

To comply with paragraph (j)(2), themonofill must meet three conditions.First, it must have at least one linerwhich is not leaking. Section3005(j)(12)(A) defines "liner" for the

"0 Section 3004(o)(3) refers to a variance from the"double-liner requirements set forth in section3004(o)(1)(A]." EPA construes this language to meana variance from the liner and leachate collectionrequirements in 3004(o)(1)(A).

purposes of section 3005(j)(2) as either asynthetic liner or a clay liner, as long asat closure the clay liner, wastematerials, and contaminated soils areremoved or decontaminated to theextent practicable. Today's regulationsincorporate this definition of "liner" intothe monofill variance for surfaceimpoundments. EPA believes that it isappropriate to incorporate thisdefinition into the monofill variance forsurface impoundments because section3005(j) itself deals with requirements forsurface impoundments and becausegiving a removal option to surfaceimpoundments is consistent with EPA'scurrent regulations. The definition of"liner" in section 3005(j)(12)(A) has notbeen included in the variance forlandfills because existing EPAregulations do not allow such a removaloption for landfills. See 40 CFR 264.310,265.310.11 Nothing in the language orlegislative history of section 3004(o)(3)suggests that Congress, in establishingthe exemption for monofills, intended toalter the closure requirements of theexisting regulations by giving landfills aclosure option which the regulationscurrently prohibit.

Second, the statute requires that themonofill be in compliance with generallyapplicable ground-water monitoringrequirements for facilities with RCRApermits. The requirements for facilitieswith RCRA permits may be found inSubpart F of Part 264. Finally, themonofill must be more than one-fourthmile from an underground source ofdrinking water, as defined in the SafeDrinking Water Act regulations.

Alternatively, the monofill may meetthe requirements of section 3004(j)(4),which requires the owner or operator todemonstrate that the monofill is located,designed, and operated to assure nomigration of any hazardous constituentinto ground water or surface water atany future time.

Under section 3004(o)(6), which iscodified in new § 264.301(k), any permitfor a landfill located within the State ofAlabama must require the installation oftwo or more liners and a leachatecollection system above and betweenthe liners, notwithstanding any otherprovision of RCRA. The intent of section3004(o)(6) is to provide that Alabama

I ICurrent regulations allow the owner or operatorof a surface impoundment (see 40 CFR 264.228,265.228) or waste pile (see 40 CFR 264.258, 265.258)to remove or decontaminate all waste residues andother contaminated materials at closure. Theregulations establish specific closure and post-closure requirements for facilities which removethese materials at closure. In contrast, the landfillregulations establish closure requirements only forfacilities that close with wastes ir place.

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landfills are not eligible for thevariances set out in section 3004(o). SeeH.R. Rep. No. 1133, 98th Cong., 2d Sess.90 (1984); 129 Cong. Rec. S12819 (dailyed. Oct. 5, 1983) (statement of Sen.Chafee).

Section 3015 subjects interim statusfacilities to the minimum technologicalrequirements of section 3004(o) but doesnot make clear whether interim statusfacilities are eligibile for the variancesfrom the liners and leachate collectionsystem in sections 3004(o)(2) and (o)(3).The Agency has interpreted section 3015to allow interim status units to apply forthese variances. For interim statussurface impoundments, § 265.221 allowsthe owner or operator to obtain thevariances provided in § 264.221(b) (foralternate designs) and § 264.221(e) (formonofills). Similarily, § 265.301 makesthe variances in § 264.301(b) (foralternate designs) and § 264.301(h) (formonofills) available to the owner oroperator of a landfill operating underinterim status.

The Agency has construed the statutein this way because a contrary approachcould subject interim status facilities totechnological requirements which arepotentially more stringent than thoseapplicable to permitted facilities. Asdiscussed earlier,.such a result isinconsistent with the general structureof the Subtitle C regulations.

f. Ground-water monitoring. Section3004(o)(1)(A)(ii) requires new permittedlandfills and surface impoundments,new units, and replacements and lateralexpansions of existing units to haveground-water monitoring. The Agencyhas construed this provision to refer tothe ground-water monitoringrequirements of Subpart F of Part 264 ofthe regulations.

Section 3015 requires interim statusunits to comply with the minimumtechnological requirements for permittedunits as set out in section 3004(o). Thisreference to section 3004(o) includes theground-water monitoring requirement.

Section 3015 is ambiguous, however,because it does not specify whichground-water monitoring requirementsapply to interim status units. On the onehand, the reference in section 3015 to theground-water monitoring requirementsset out in section 3004(o) could beconstrued to require interim status unitsto comply with the same ground-watermonitoring requirements which apply topermitted units.

On this reading, interim status unitswould be subject to the requirements ofSubpart F of Part 264 of the regulations.Alternatively, the provision could beconstrued merely to require ground-water monitoring for all interim status

units as specified in existing Part 265regulations.

EPA has interpreted the ground-watermonitoring requirement for interimstatus units to refer to existing Part 265requirements. Congress' intent inrequiring ground-water monitoring insection 3004(o) was to eliminate theprovision in current regulations allowingdouble liners and ground-watermonitoring to be alternatives. See S.Rep. No. 264, 98th Cong., 1st Sess. 26(1983); H. R. Rep. No. 198, 98th Cong., 1stSess. part 1, at 63 (1983). There is noindication that Congress sought tochange the existing ground-watermonitoring requirements for interimstatus facilities with this provision.Therefore, interim status surfaceimpoundment and landfill units,replacements, and expansions willcontinue to be subject to the ground-water monitoring requirements ofSubpart F of Part 265.

g. Notification. Section 3015(b)(2),codified in today's rule at § § 265.221(e)and 265.301(e), calls for the owner oroperator of an interim status landfill orsurface impoundment unit subject to theminimum technological requirements ofsection 3015(b)(1) to notify theAdministrator at least sixty days priorto receiving waste at that unit. Section3015(b)(1) applies to units that firstreceive waste after November 8, 1964.Owners or operators of these units mustcomply with the notice requirement ifsuch units are still receiving waste onMay 8, 1985.

Section 3015(b)(2) also provides thatwithin six months of receipt of notice,EPA (or an authorized State) shallrequire the owner or operator to file aPart B application. 12 EPA does not readthis provision to require a formalrequest for a Part B permit applicationby EPA or the State as now provided forin EPA's permitting regulations. It isclear that the Congress wanted the dutyto send in an application to becomeautomatic once the sixty-daynotification has been given. Therefore,EPA is simply incorporating the duty tosubmit an application directly into theregulations.

13

12The statute uses the phrase "application for afinal determination regarding issuance of a permit,"which EPA has construed to mean a Part Bapplication and applicable post-closure permitapplication.

13 Section 3005(e) provides that interim status forowners and operators of land disposal facilities willterminate on November 8,1985, unless the owner oroperator submits a Part B application before thatdate. (See Section C.5. of this preamble.) Thus, mostfacilities will have submtted a Part B by November8, 1985, if not before that time. EPA thus construessection 3015(b)(2) to require an owner or operator tosubmit a Part B six months after the receipt ofnotice if the Part B has not previously beensubmitted.

3. Corrective Action

a. Redefinition of RegulatedUnit. TheAct introduces a new subsection (i) tosection 3005 which provides that theground-water monitoring, unsaturatedzone monitoring and corrective actionrequirements applicable to new landdisposal units (i.e., those requirementsset forth in Part 264) are applicable tolandfills, surface impoundments, wastepiles or land treatment units thatreceived hazardous waste after July 26,1982. The legislative histories of theHouse and Senate bills from which thisprovision has been drawn reveal thatthe intent of the provision is to overridethe existing EPA regulations whichsubject such units to ground-watermonitoring and corrective actionrequirements at the time of permittingonly if they receive hazardous wasteafter January 26, 1983. S. Rep. No. 284,98th Cong., 1st Sess. 25-26 (1983); H.R.Rep. No. 198, 98th Cong., 1st Sess., Part1, 44-5 (1983); 130 Cong. Rec. S13818(daily ed. Oct. 5, 1984).

Accordingly, today's rule amends§ 264.90(a) to provide that the generalground-water monitoring and correctiveaction requirements of Subpart F of Part264 apply to landfills, surfaceimpoundments, waste piles and landtreatment units that receive hazardouswaste after July 26, 1982. Since theunsaturated zone monitoring

requirements of § 264.278 were neversubject to the January 26, 1983 cut-off,this section has not been amended.Active land treatment units continue tobe subject to unsaturated zonemonitoring requirements regardless ofthe date on which hazardous wasteswere received at such units.

b. Cleanup of Continuing Releases.Section 3004 of RCRA is amended byadding paragraph (u) governing releasesat facilities seeking a permit underSubtitle C. This new subsection providesthat any permit issued after November8, 1984, must require corrective actionfor all releases of hazardous waste orconstituents from any solid wastemanagement unit regardless of whenwaste was placed at such unit. It furtherrequires financial assurance for thecompletion of such corrective action.The provision applies to any solid wastemanagement unit, including inactiveunits, at any treatment, storage, ordisposal facility seeking a permit undersection 3005(c) of RCRA. 130 Cong. Rec.H11129 (daily ed. October 3, 1984).

The Agency's jurisdiction under thisnew provision is defined by a number ofkey terms. First, as noted above, thisnew corrective action authority appliesto facilities seeking a permit under

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Subtitle C. Congress is silent as towhether the permits referred to in thissection include post-closure permits aswell as operating permits. EPA sees nolegal basis for departing from a literalreading of the statute, which appears toencompass any Section 3005(c) permitwithin its mandate. Accordingly, anysolid waste management unit located ata facility required to obtain a post-closure permit (i.e., units that close afterJanuary 26, 1983 (§ 270.1(c)) or anoperating permit will be subject tocorrective action for continuing releases.

Section 3004(u) does not appear tocontemplate that its terms apply to solidwaste management units located atfacilities that are not required byregulation to obtain a Subtitle C permit.Accordingly, solid waste managementunits located at interim status facilitiesthat closed before January 26, 1983, willnot be subject to section 3004(u) sincethese facilities are not required to obtainpermits under the existing regulations.Similarly, regulated units (now definedas any waste pile, landfill, surfaceimpoundment, or land treatment unitthat received waste after July 26, 1982)located at facilities which closed beforeJanuary 26, 1983, are not required toobtain post-closure permits. 4 Releasesfrom such units may be addressed bythe interim status corrective actionorders authorized by section 3008(h) ofthe new law. (See section f, infra.)

EPA must assume that in using theterm "facility," Congress intended, inthe absence of contrary statutorylanguage or legislative history, to adoptthe definition of this term traditionallyemployed by the Agency. The preambleto the July 26, 1982, regulation elaborateson the definition of this term.Specifically, the preamble notes that"[w]hen using the term 'facility', EPA isreferring to the broadest extent of EPA'sarea jurisdiction under Section 3004 ofRCRA. . . [meaning] the entire site thatis under the control of the owner oroperator engaged in hazardous wastemanagement." 47 FR 32288-9 (July 26,1982). The legislative history of theconference bill makes it clear thatCongress was aware of the Agency'sdefinition. In discussing new section3004(v) (see subsection e, infra), theCongress noted EPA's position limitingthe scope of its remedial authorities tothe property of the polluting facility. 130

" It should be noted that "closure" in this contextdoes not mean simply ceasing to place waste in aunit. Closure, as a regulatory concept under theserules, is a proceeding during which EPA determines,after public review, that the facility has an adequateclosure plan aid that the facility implements thatplan. Thus, clOsur is not complete under thehazardous waste regulations until a certification ofClosure hus been given under 40 CPR 205.115.

Cong. Rec. H11129 (daily ed. Oct. 3,1984). Accordingly, for purposes ofsection 3004(a), the term "facility" is notlimited to those portions of the owner'sproperty at which units for themanagement of solid or hazardouswaste are located, but rather extends toall contiguous property under the owneror operator's control.

The extant to which the aboveinterpretation applies to Federalfacilities raises legal and policy issuesthat the ag;ency has not yet resolved. Toaddress these issues, it is necessary toexamine the objectives of Section3004(u), the purposes of HSWA, and therelationship of RCRA to other Federallaws. Permit applications for Federalfacilities will continue to be processed,but recognizing that final Federal facilitypermits may not be issued where theseunresolved issues exist, EPA will makeits best efforts to reach a resolution inthe next 60 days.

The Agency's cleanup authority undersection 3004(u) extends to all "solidwaste management units" at a facilityseeking a permit under section 3005(c).The term "solid waste managementunit" includes any unit at the facility"from which hazardous constituentsmight migrate, irrespective of whetherthe units were intended for themanagement of solid and/or hazardouswastes." H.R. Rep. No. 198, 98th Cong.,1st Se'ss., Part 1, 60 (1983). It is generallynot intended to encompass areas wherewastes were not placed in such units.The legislative history notes that "itiheterm 'unit' is intended to be defined asin the preamble Isic] to EPA regulationspublished on July 26, 1982 and as furtherdefined by EPA in the future." Id.Consistent with that concept, EPAbelieves that the term "unit" at leastencompasses the units identified in thatpreamble, which refers to "containers,tanks, su, face impoundments, wastepiles, land treatment units, landfills,incinarators, and underground injectionwells." 47 FR 32281 (July 26, 1982).

In understanding the scope of the termsolid waste management unit, severalpoints need to be made. First, unitsfalling into the above categories aresubject to section 3004(u) regardless oftheir purposes. EPA has in the pastconsidered developing special standardsfor certain t pes o1 units arid hastemporarily exempted classes of unitsfrom the substantive standardsapplicab!e generally to hozardous wastemanagement units. For example, thereare such exemptions for recycling units(§ 261.6) and for tanks qualifying as"wastewater treatment units"(§ 264.1(g)(6) and § 265.1(c)(10)). Suchunits are solid waste management units

under RCRA and thus are subject toSection 3004(u).

EPA expects that implementation ofcorrective action requirements forwastewater treatment tanks would belimited to submission of descriptiveinformation with the permit applicationand a preliminary assessment by EPAthat did not include sampling andanalysis. EPA will impose additionalrequirements where this first phaseturns up evidence of releases ofhazardous waste or constituents fromthe tanks. EPA estimates that the costsper facility for the initial phase wouldresult in an annualized cost of less than$3,000. In addition, it may make sense,based on the same considerations thatmotivated EPA's earlier examination ofspecial standards for these units, todevelop remedial investigationrequirements implementing section3004(u) for these units that differ fromrequirements applicable to other solidwaste management units.

Second, in considering injection wellsas units, it should be recognized that fora "Class I injection well" (as that term isused in the Underground InjectionControl (UIC) regulations under the SafeDrinking Water Act), the injection zoneinto which the well discharges isessentially part of the wastemanagement unit. Thus theemplacement of liquids into an injectionzone through a Class I well does notconstitute a release from a solid wastemanagement unit but rather constitutesmigration within the solid wastemanagement unit.

Third, the legislative history indicatesthat the term "solid waste managementunit" is intended to limit EPA'sjurisdiction under section 3004(u) todiscernible units. One of the questionsraised by this definition is whether anarea on which a spill occurs is intendedto be viewed as a solid wastemanagement unit. Clearly, a spill ofhazardous waste or hazardousconstituents from a discernible unitwould constitute a "release" from asolid waste management unit u' der thedefinition of this term adopted by theAgency (see below). Simil'trly, anysubsequent contamination resultingfrom this spill (e.g. subsequent releasesto air, ground water or surface water)would also be considered a release fromthe original solid waste managementunit and would thus be subject to EPA'sjurisdiction.

EPA does not, however, believe thatsection 3004(u) applies to spills thatcannot be linked to solid wastemanagement units. For example, a spillfrom a truck traveling through a facilitywould not constitute a release from a

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solid waste management unit. It shouldbe recognized, however, that such aspill, if it occurs after November 19,1980, is nonetheless actionable becauseit constitutes illegal disposal (i.e.,disposal that does not occur in anauthorized unit).

The Agency's authority under section3004(u) encompasses "all releases ofhazardous waste or constituents" fromany solid waste management unit.Section 3004(u) contemplates that EPAwill issue standards addressingcorrective action for such releases. OnceEPA establishes such standards theywill guide the Agency's decisions aboutappropriate corrective action. Section3004(u) also indicates, however, thatpermits issued after November 8, 1984,must implement the corrective actionrequirement. Therefore, until EPAestablishes specific standards undersection 3004(u) it is reasonable for EPAto make case-by-case decisions on theapprcpriate corrective action, guided bythe general regulation being codifiedtoday.

EPA believes that this languagecontemplates coverage of any release ofhazardous constituents from a solidwaste management unit. The term"hazardous constituent" as used in thissection is intended to mean thoseconstituents listed in Appendix VIII to40 CFR Part 261 [H.R. Rep. No. 198, 98thCong., 1st Sess., part 1, 60--61 (1983)] andincludes hazardous constituentsreleased from solid waste andhazardous constituents that are reactionbyproducts. S. Rep. No. 98-284, 98thCong., 1st Sess. 32 (1983).

While the statute does not explicitlydefine the term "release," EPA believesthat the purposes behind the provisionindicate that the term should be at leastas broad a3 the definition of releaseunder CERCLA. See CERCLA § 101 (22),42 U.S.C. 9601. The legislative history ofSection 3004(u) clearly indicates thatone of its purposes was to preventRCRA sites from becoming futureburdens on the Superfund program. H.R.Rep. No. 198, 98th Cong., 1st Sess., part1, 61 (1983). The Congress has, however,placed constraints on the scope ofSection 3004(u) (i.e., "solid wastemanagement unit", "hazardousconstituents" discussed above) that mayresult in cleanups at RCRA facilitiesthat do not have the same breadth asCERCLA cleanups. Within theseconstraints, it is nonetheless logical touse a definition of release that is at leastas broad as the definition underCERCLA. Moreover, such an integrationwith the CERCLA definition of release isconsistent with the spirit of section 1006of RCRA, which calls for integration of

RCRA provisions with those of otherstatutes administered by EPA.

Section 1006 also provides, however,that EPA's integration of RCRA withother statutes should be accomplished"only to the extent that it can be done ina manner consistent with the goals andpolicies expressed in [RCRA] and in theother acts." Thus certain elements of theCERCLA definition are not;, in EPA'sview, part of the RCRA definition ofrelease. Certain CERCLA exemptionsare simply inapplicable, such as thosefor emissions from certain engineexhausts and for fertilizer applications.Other exemptions are inappropriate.The CERCLA exemption for releasessubject to the Atomic Energy Act andthe Uranium Mill Tailings RadiationControl Act (UMTRCA) are not neededbecause RCRA includes a specificstatutory scheme for how overlapsbetween those statutes and RCRA are tobe addressed. See section 1004(27),section 1006 of RCRA. (Section 703 ofHSWA also specifically indicates thatnothing in the new amendments,including section 3004(u), should beconstrued to modify or amendUMTRCA.) EPA also does not seeanything in the legislative history ofRCRA indicating an intent to ignorereleases to the workplace at the facility.

Accordingly, EPA believes that theterm "release" under section 3004(u)means any spilling, leaking, pumping,pouring, emitting, emptying, discharging,injecting, escaping, leaching, dumping ordisposing into the environment. TheCongress is currently consideringamendments to CERCLA that could alterthe scope of that program. If the scope ofCERCLA is altered, EPA will, consistentwith Section 1006 of RCRA, decidewhether modifications are needed in thescope of the releases covered by Section3004(u).It is clear that Congress intended the

term "release" to encompass at leastreleases to ground water. The Senatelegislative history notes that in order"[to] assure corrective action is taken inresponse to releases ...theAdministrator will need to revisegroundwater [sic] monitoringrequirements ...(emphasis added) S.Rep. No. 284, 98th Cong., 1st Sess. 32(1983).

Similarly, the House legislativehistory notes that the corrective actionrequired for a release "must beaccomplished in the manner currentlyprescribed in [§ 264.1001." H.R. Rep. No.98th Cong., 1st Sess. Part 1, 60 (1983).The requirements of § 264.100 pertainonly to cleanup of ground water.Accordingly, corrective action Institutedunder the regulations promulgated today

must, at a minimum, address any releaseto ground water from a solid wastemanagement unit.

However, there is nothing in the Actor legislative history to suggest thatCongress explicitly intended to limit thisprovision to releases to ground water.As discussed previously, section 3004(u)requires corrective action for allreleases of hazardous wastes orconstituents. EPA believes use of theterm "all releases" indicates Congres'intent that section 3004(u) governsreleases to all media, including groundwater.

The HSWA provides other evidenceof such an intent as well. As will bediscussed in more detail later, newsection 3008(h) authorizes EPA to issueadministrative orders requiringcorrective action at interim statusfacilities as necessary to protect humanhealth and the environment. Thatauthority can clearly reach media otherthan ground water.15 See H.R. Rep. No.1133, 112 (1984). It is reasonable toassume that Congress intended EPA'spowers to require cleanup at the time ofpermitting to be at least as broad as itspower to do so under interim statps.Accordingly EPA believes that it isauthorized to address releases to air,surface water, ground water, and soilsunder section 3004(u).

Although the scope of section3004(u)'s jurisdiction appears broad-given the definition of release and itsmultimedia jurisdiction, the Agency haslimited the application of this provisionby mandating corrective action onlywhere necessary to protect humanhealth and the environment. Thisinterpretation is consistent wi*'h thelegislative history of section 3004(u)which provides that the "newsubsection [is] intended to assure thatappropriate corrective action is taken toprotect human health and theenviro nment from any past, present orfuture release of hazardous waste froma permitted hazardous waste facility." S.Rep. No. 284, 98th Cong. 1st Sess., 31(1983).

Under this legal interpretation, theAgency .would not mandate correctiveaction for all releases into theenvironment. For example, with respect,to ground-water releases-to theuppermost aquifer only, the Agencywould only apply corrective action tothose releases which exceeded the 40CFR Part 264 Subpart F Ground-WaterProtection Standards. The ground-water

15 By way of analogy it is also worth noting thatthe term "environment" when defined in Federalenvironmental statutes has generally included allmedia. See CERCLA 101(81 and FIFRA 2(j).



protection standard is defined by theSubpart F regulations to be either thebackground concentration of theconstituent at issue or the maximumcontaminant level for that constituentestablished by the National InterimPrimary Drinking Water Regulations,unless the owner or operatordemonstrates that an alternateconcentration limit is warranted.

It should be noted that, consistentwith Section 1006 of RCRA, EPA willimplement Section 3004(u) in a mannerconsistent with other EPA programs. Forexample, where a release from a solidwaste management unit is otherwisesubject to regulation under Section 402of the Clean Water Act, EPA will usethe NPDES program to address such adischarge.

Section 3004(u) requires correctiveaction for all releases of hazardouswaste or constituents from any solidwaste management unit at a facilityseeking a RCRA permit regardless of thetime at which such waste was placed insuch unit. This clear statutory directiveprecludes a reading of the statute whichwould limit an owner's or operator'sresponsibilities to waste placed in unitsduring his or her tenure. Accordingly,the owner or operator of a solid wastemanagement unit containing only wasteplaced there by a previous owner wouldbe fully responsible for corrective actionfor any release from such unit. Thisinterpretation would not, of course,preclude such owner or operator frombringing any action otherwise allowedby law against the previous ownerseeking remuneration for the costs ofcorrective action.

New section 3004(u) further providesthat permits issued to facilitiescontaining solid waste managementunits shall include schedules ofcompliance and financial assurance forcompleting any necessary correctiveaction. The legislative history explainsthat where insufficient informationexists at the time of permitting to specifyin the schedule of compliance thecorrective action required (if any) andthe financial assurance needed toensure its completion, the schedule ofcompliance included in the permit mayestablish a time frame by which theinformation necessary to determine theextent and cost of corrective action willbe obtained and financial assurancedemonstrated. 130 Cong. Rec. H11129(daily ed. Oct. 3, 1984). Once thenecessary information has beenacquired, the permit is amended[through the major modification process,40 CFR 270.41(a)(2)], to incorporatefinancial assurance and to institute theappropriate corrective action.

Today's rule adds a new section toSubpart F, § 264.101, to codify these newstandards for permitted facilitiescontaining solid waste managementunits. New section 264.101(a) providesthat all section 3005(c) permits issuedafter November 8, 1984, shall require theowner or operator of a treatment,storage or disposal facility to institutecorrective action where necessary toprotect human health and theenvironment whenever EPA determinesthat there has been a release ofhazardous waste or constituents fromany solid waste management unit,regardless of the time at which wastewas placed in such unit.

Paragraph (b) of § 264.101 codifies thestatutory requirement that all permitsissued after November 8, 1984, tofacilities containing solid wastemanagement units incorporate either aschedule of compliance for completingany necessary corrective action (for allsolid waste management units, andexcept as discussed further in section c,infra, regulated units with releases toground water in the uppermost aquifer)or a schedule for gathering informationto determine the extent of correctiveaction required (if any] and assurancesof financial responsibility for completingsuch corrective action. Any permitissued with a schedule of compliancedirecting the owner or operator to gatherinformation necessary to determine theextent and cost of corrective actionneeded (if any) must include eitherfinancial assurances for completing anycorrective action decreed necessary(where this can be determined at thetime of permit issuance) or a schedule ofcompliance for obtaining theinformation necessary to determine thecost of corrective action anddemonstrating financial assurances.

In order to implement the provision ofnew section 3904(u), the owner oroperator of any facility seeking a 3005(c)permit to be issued after November 8,1984, most submit with the permitapplication sufficient information toenable EPA to assess the applicability ofsection 3004(u) to the owner's oroperator's facility. EPA is not authorizedto issue a permit absent a determinationthat the facility is in compliance withthe requirements of section 3004 [see3005(c), 42 U.S.C. § 6925(c).]

c. Relationship between sections3004(u) and 3005(i). As noted earlier,new subsection (i) of section 3005provides that the ground-watermonitoring, unsaturated zonemonitoring, and corrective actionstandards applicable under section 3004to new units will apply to units receiving.waste after July 26, 1982. The purpose of

this amendment, as explained in thepertinent legislative history, is to reviseEPA's existing Part 264 standards sothat a regulated unit is defined as alandfill, surface impoundment, wastepile, or land treatment unit that receiveshazardous waste after July 26, 1982(rather than after January 26, 1983, as isprovided in EPA's existing regulations).New subsection (u) of section 3004, onthe other hand, deals with a broaderclass of units: that is, all solid wastemanagement units that have receivedsolid waste (including hazardous waste)at any time. Thus, regulated units, asdefined by 3005(i), are clearly a subsetof solid waste management units. Inassessing the effect of the Hazardousand Solid Waste Amendments of 1984,one of the major legal questions hasbeen how Congress intended toreconcile these provisions. Thelegislative history sheds some light uponthe intended relationship between theseprovisions.

As noted above, the legislative historyof section 3005(i) suggests that the majorpurpose of this provision is to ensurethat landfills, waste piles, surfaceimpoundments and land treatment unitsthat receive waste after July 26, 1982, aresubject to the ground-water monitoringand corrective action r6quirementscontained in existing Subpart F of Part264. Subpart F deals exclusively withreleases to ground water it theuppermost aquifer. It provides explicitmeasures to be followed in detecting arelease to ground water and institutingcorrective action for any such release.Section 3004(u), on the other hand, doesnot limit corrective action to ground-water releases. Moreover, it does notprescribe specific measures to be takenin detecting and correcting a release.

To the extent that section 3004(u)could be read to impose on solid wastemanagement units different standardsfor detection and correction of ground-water releases than would be requiredfor regulated units under existingSubpart F, it would appear to beconsistent with Congressional intent tolet the more explicit provision of section3005(i) govern. On the other hand, to theextent that section 3004(u) imposesobligations that are not addressed bysection 3005(i) (such as the requirementsto correct releases to media other thanground water and to demonstratefinancial assurance for correctiveaction) there would appear to be littlebasis for excluding a regulated unit fromsuch obligations.

Accordingly, the Agency hasinterpreted these sections to providethat regulated units, as newly defined bysection 3005(i), shall be subject to

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existing standards under Subpart F ofPart 264 in detecting and correcting anyrelease to ground water in theuppermost aquifer. For all otherreleases, regulated units shall be subjectto the detection and corrective actionstandards implemented under section3004(u). Similarly, the existingexemptions from Subpart Frequirements for ground waterprotection apply only to regulated unitswith releases to ground water in theuppermost aquifer, not to all solid wastemanagement units.

By that same logic, regulated units aretreated somewhat differently forpurposes of the special financialassurance and schedule of complianceprovisions in this section. Section3004(u) authorizes EPA to incorporateinto a permit issued after November 8,1984, to the owner or operator of a solidwaste management unit, a schedule ofcompliance allowing the owner oroperator to gather information toestablish the extent of any necessarycorrective action. Subpart F of Part 264already establishes specificrequirements for gathering such -information for releases to ground waterin the uppermost aquifet at regulatedunits. Since those units, defined as"regulated units", generally are requiredto gather sufficient ground-water dataduring interim status to determinewhether a release has occurred, it wouldnot be appropriate to afford such unitsan additional opportunity to gather suchinformation at the time of permitissuance.1

6

Since the "information collection"type of schedule of compliance is notavailable to regulated units withreleases to the uppermost aquifer, thefinancial assurance requirements insection 3004(u) cannot be deferredthrough a schedule of compliance forsuch releases. Once the owner oroperator of a regulated unit hasidentified the releases to the uppermostaquifer, pursuant to existing Subpart Fregulations, and developed a costestimate of the necessary correctiveaction, he becomes responsible forestablishing financial assurance forcompletion of the corrective action.

iIt may be argued that this rationale does notapply to certain waste piles. Waste p les are notsubject to ground-water monitoring during interimstatus. Accordingly, some may aqsert that the owneror opera tor of a waste pile will not have determinedwhether a release has occurred by the time ofpermit issuance. However, since waste piles havealways been subject to ground-water monitoringrequirements under Part 264 and the attendant Part270 application standards, the Agency believes thatmany owners or operators of waste piles havedetermined at the time of permit issuance whethercorrective action is required.

The foregoing distinctions arereflected in today's amendments.Section 264.90(a)(1) provides that solidwaste management units are subject tothe new detection, corrective action,financial assurance, and schedule ofcompliance authorities contained in§ 264.101. Section 264.90(a)(2) alsomakes it clear that the requirementsimposed by new § 264.101 do not applyto regulated units for purposes ofdetecting, characterizing and respondingto releases into the uppermost aquifer.The financial responsibilityrequirements of § 264.101 apply toregulated units.

d. Corrective Action for ProgramsCovered Under RCRA Permits by Rule.Certain facilities specifically includedunder the RCRA permittingrequirements by regulation(§ 270.1(c)(1)) are currently deemed tohave a RCRA permit if they havepermits under other programs andcomply with the special requirements.under the permit-by-rule provision(§ 270.60). The addition of the newrequirements under section 3004(u) forRCRA-permitted facilities requiresconforming changes to RCRA permits byrule for UIC facilities and for municipalfacilities with National PollutantDischarge Elimination (NPDES) permitsunder the Clean Water Act. Correctiveaction requirements for vessels andbarges permitted by the MarineProtection, Research, and SanctuariesAct (MPRSA) do not require aconforming change for the reasonsexplained below.

(1) Permit by rule for undergroundinjection wells-Section 270.60(b)provides a permit by rule tounderground injection wells if they havea permit issued by EPA or the Stateunder the UIC program and if they meetother specified RCRA requirements.With the addition of the newrequirements for solid wastemanagement units at RCRA permittedfacilities, there is a need to incorporateadditional requirements into the UICpermit by rule to reflect those changes.Accordingly, § 270.60 has been modifiedto provide that all solid wastemanagement units at UIC facilities mustmeet the requirements in § 264.101 inorder for the facility to qualify for apermit by rule.

(2) Permit by rule for municipalNPDES facilities--Section 270.60(c)provides a permit by rule to publiclyowned treatment works (POTWs) thathave an NPDES permit, receivehazardous waste by rail, truck, or by apipe that did not carry sewage, complywith specified RCRA requirements, andmeet all Federal, State, and local

pretreatment requirements under theClean Water Act. The corrective actionrequirement of section 3004(u) of RCRA,however, requires permits issued afterNovember 8 1984 to contain thecorrective action requirements. Theregulations'under § 270.60(c) have beenmodified to add this new permit-by-rulerequirement. The corrective actionrequirement will be implementedthrough the NPDES permitting process.

It should be noted that the overlalZbetween the requirements of section3005(i) and section 3004(u) discussed inpart c above does not exist for POTWs.Section 3005(i) applies to regulated unitsat interim status facilities that receivehazardous waste after July 26, 1982.POTW facilities, however, have a RCRApermit by rule and, therefore, are notcovered by interim status. Thus, section3005(i) does not apply to POTWfacilities with a RCRA permit by rule.Since section 3005(il does not operate tosupersede section 3004(u) for any unitsat POTW facilities, all such units at thefacility are covered by the requirementsof § 264.101. This includes releases fromregulated units to the uppermost aquifer.In fashioning such requirements at amunicipal NPDES facility for solid wastemanagement wastes, including regulatedunits, a compliance schedule may beused. EPA intends to propose arulemaking package which will discusshow the corrective action requirementwill be implemented for POTWs withRCRA permits by rule.

(3) Permit by rule for vessets andbarges permitted under MPRSA-Section 270.60(a) provides a permit byrule for any vessel that obtains a permitfor the disposal of hazardous waste inocean waters under the MarineProtection, Research, and SanctuariesAct (MPRSAJ and complies withspecified RCRA requirements. Anyonshore storage or treatment facilitythat may be associated with the oceandisposal operation, however, mustobtain a RCRA permit. EPA regards thevessels and the onshore operations asseparate facilities rather than unitsbelonging to the same facility. Since thevessel and any onshore operation areseparate facilities, no applicant for apermit for ocean disposal under theMPRSA i required to undertakecorrective action for releases at anyonshore facility. EPA will discuss theissues raised by applying correctiveaction requirements to permitted veiselsin a future proposal.

EPA is not making any conformingchange to the permit-by-rule provisionsfor ocean dumping vessels. Theconforming changes for the UIC andNPDES programs insure that corrective

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action requirements apply to releasesfrom all solid waste management unitsat UIC or NPDES facilities, includingunits not regulated by the UIC or NPDESprograms. MPRSA permits, however,cover all portions of ocean dumpingvessels. Hence, there are no unregulated"units" within an ocean dumping"facility", and no conforming change isnecessary.

e. Cleanup beyond the propertyboundary. New subsection (v) of section3004 requires EPA to amend itsregulations to impose upon owners andoperators of hazardous waste treatment,storage, and disposal facilities theobligation to clean up anycontamination that hae migrated beyondthe facility boundary. Specifically, thisprovision requires that the owner oroperator institute corrective actionbeyond the facility boundary wherenecessary to protect human health andthe environment unless the owner oroperator demonstrates to EPA that,despite the owner's or operator's bestefforts, he is unable to obtain thenecessary permission to undertake suchaction. This provision applies to allpermitted facilities, including facilitiescontaining landfills, surfaceimpoundments and waste piles that areembraced by the new definition of"regulated unit" (i.e., units receivingwaste after July 26, 1982].

In the future, EPA intends to proposeregulations which impose upon ownersand operators of hazardous wastemanagement facilities the obligation toclean up contamination that hasmigrated beyond the facility boundaryas necessary to protect human healthand the environment. Pendingpromulgation of these regulations, EPAintends, as required by the statute, toissue orders to implement section3004(v)'s directives on a case-by-casebasis.

f. Interim status corrective actionauthority. In addition to introducting theforegoing new statutory provisionsdealing with corrective acton, theHSWA vests EPA with authority toissue corrective action orders to interimstatus facilities. The new provision,section 3008(h), authorizes EPA to issuesuch an order whenever it determines,on the basis of any information, thatthere is, or has been, a release ofhazardous waste into the environmentfrom an interim status facility.

The authority conferred upon theAgency by this provision is a broad one.The legislative history makes it clearthat the term "release" as it is used inthis section is not limited to releases toground water. 130 Cong. Rec. H11135(daily ed. October 3, 1984). Indeed,Congress specifically noted that interim

status corrective action orders could beused to control air emissions. Id. Theorder may require corrective action orany other response measure that EPAdetermines is necessary to protecthuman health and the environment.

"The amendment is a supplement toEPA's power to impose corrective actionthrough permits." Id. EPA is authorizedto exercise this order authority to applyto interim status facilities those"environmental standards promulgatedunder section 3004." Id. Since section3004 has been amended to extendcorrective action requirements to allsolid waste management units atfacilities seeking a RCRA permit, theAgency interprets this mandate toauthorize the Issuance of correctiveaction orders to any interim statusfacility containing solid wastemanagement units, including regulatedunits, from which there has been arelease to the environment. Similarly, byvirtue of section 3004(v), the requirementto institute corrective action beyond thefacility boundary becomes an applicablesection 3004 standard and may beenforced through the section 3008(h)order authority at interim statusfacilities.

Congress has made it clear that theInterim status corrective action order ismeant to be a flexible mechanism. Thelegislative history notes, for example,that this provision authorizes EPA toissue an order which, as a first step,requires the owner or operator tocharacterize the extent of ground-watercontamination and to submit to EPA aproposed corrective action plan.Id. TheAgency and the owner could then conferon the corrective action plan andincorporate any modifications to theplan in an amendment to the order.

According to the new statutoryprovision, any order issued pursuant tothis section may include a suspension orrevocation of a facility'p authority tooperate under interim status. If anyonenamed in an interim status correctiveaction order fails to comply with theorder, EPA may assess a civil penalty ofup to $25,000 for each day ofnoncompliance. In additon to theauthority to issue corrective actionorders, this provision confers upon EPAthe authority to commence a civil actionfor appropriate relief, including atemporary or permanent injunction.4. Ground-Water Monitoring Variances

Section 3004(p) of the HWSAintroduces a new provision governingvariances from general ground-watermonitoring requirements. Specifically,paragraph (p) provides that ground-water monitoring requirementsapplicable to surface impoundments,

waste piles, landfills and land treatmentunits shall apply whether or not suchunits are located above the seasonalhigh water table, have two liners and aleachate collection system, or haveliners that are periodically inspected.The effect of this provision is to renderinvalid several of the ground-watermonitoring waivers incorporated inEPA's existing standards.

Sections 264.222, 264.252 and 264.302of the existing regulations allow surfaceimpoundments, waste piles and landfillsto waive Subpart F ground-watermonitoring requirements if such unitsare fitted with a double liner, leakdetection system, leachate collectionsystem (in the case of landfills andwaste piles), and are located entirelyabove the seasonal high water table. Inlight of the above provision calling forground-water monitoringnotwithstanding the presence of doubleliners or location above the seasonalhigh water table, these variances cannotstand. Accordingly, today's final ruledeletes § § 264.222, 264.252 and 264.302.

Today's rule also deletes § 264.253.This section exempts any lined wastepile from ground-water monitoringrequirements if such a pile is locatedentirely above the seasonal high watertable and the waste is removedperiodically so that the liner can beexamined. Again, the plain language ofsection 3004(p) would subject such a pileto ground-water monitoringrequirements notwithstanding itslocation above the seasonal high watertable and the periodic liner inspection.Accordingly, the regulations have beenamended to reflect this change.

Section 3004(p) also introduces a newvariance from ground-water monitoringrequirements for engineered structuresthat meet certain requirements.Specifically, this variance is applicableon a case-by-case basis, only to anengineered structure that (1) does notreceive or contain liquid waste (orwaste containing free liquids), (2) isdesigned and operated to exclude liquidfrom precipitation or other runoff, (3)has multiple leak detection systemswithin the outer layer of containmentwhich are operated and maintainedthroughout the life of the unit, includingthe closure and post-closure careperiods, and (4) prevents the migrationof hazardous constituents beyond theouter layer of containment prior to theend of the post-closure care period.Section 264.90(b) of the existingregulations has been amended toincorporate this new ground-watermonitoring waiver.

The regulatory requirements set forthin § 264.90(b)(2) repeat the statutory

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language with one exception. Thestatute provides that in order to beeligible for this new exemption anengineered structure must utilize"multiple leak detection systems withinthe outer layer of containment." EPAhas interpreted this reference to an"outer" layer of containment to implythat there must be at least one "inner"layer as well. This interpretation issupported by the legislative historywhich provides that "[a] qualifyingstructure would also have to beengineered to have inner and outerlayers of containment enclosing thewaste." 130 Cong. Rec. S9179 (daily ed.July 25, 1984). Accordingly,§ 264.90(b)(2)(iv) calls for both inner and,outer layers of containment. EPA hasalso interpreted the reference to"multiple leak detection systems withinthe outer layer" to mean that a leakdetection system must be built into eachlayer of containment. Again, thisinterpretation is expressly sanctionedby the legislative history, whichprovides that a leak detection systemmust "be built into the structure at eachinternal containment layer." Id. Today'srule codifies this requirement at§ 264.90(b)(2)(v).

Section 30 04 (p) expressly states thatits provisions shall not be construed toaffect other regulatory exemptions orwaivers from ground-water monitoringrequirements to the extent that suchexemptions are consistent with the newprovisions. EPA interprets this provisionto mean that section 3004(p) does notaffect the ground-water monitoringwaiver contained in § 264.90(b(4) whichexempts units at which "there is nopotential for migration" of liquid to theuppermost aquifer during the operating,closure and post-closure periods. Thisinterpretation finds support in thelegislative history which expresslyprovides that the § 264.90[b)(4) waiver isnot nullified by § 3004(p). S. Rep. No.284, 98th Cong., 1st Sess. 64 [1983). TheAgency also believes that the ground-water waiver set forth in § 264.280(e),which exempts land treatment unitsfrom ground-water monitoring if it isdemonstrated that hazardousconstituents have not migrated beyondthe treatment zone during the active lifeof the land treatment unit, is unaffectedby the new statutory provision.7

One of the questions emerging from areview of the new statute is therelationship between section 3004(o)

"7

This interpretation is in accordance with thelegislative history which notes that apart from theexemptions specified in §§ 264.222, 264.252, 264.302and 264.253, this amendment does not affect otherexemptions from the ground-water monitoringstandards. Id.

and (p). Section 3004(o) provides thatcertain landfills and surfaceimpoundments must be double lined(with appropriate leachate collectionsystems) and must comply with ground-water monitoring. The Agency hasinterpreted this reference to ground-water monitoring to mean that the unitsgoverned by section 3004(o) mustcomply with applicable ground-watermonitoring requirements unlessexempted from such requirements inaccordance with paragraph (p). Asnoted previously, paragraph (p) allowsfor an exemption from ground-watermonitoring only if a unit meets the newengineered structure exemption, orcomplies with § 264.90(b)(4) or, in thecase of land treatment units,§ 264.280(e).

5. Salt Dome Formations, Salt BedFormations, Underground Mines andCaves.

Under new section 3004(b), theCongress has placed strict controls,effective on the date of enactment, onthe placement of hazardous wastes insalt dome formations, salt bedformations, underground mines andcaves. The applicable requirements willdepend on whether a hazardous wastefalls into one of thetwo categories.

For all noncontainerized (or bulk)liquid hazardous waste, the placementof waste in the four settings identifiedabove is prohibited until:

(1) EPA has determined, after noticeand opportunity for hearings on therecord in the affected areas, that suchplacement is protective of human healthand the environment;

(2] EPA has promulgated performanceand permitting standards for suchfacilities under Subtitle C; and

(3] a permit has been issued for thefacility.

For containerized liquid hazardouswaste and all other non-liquidhazardous waste, the placement of suchwaste in the four enumerated settings isprohibited until a permit has beenissued for the facility.

The new provision also provides thatEPA's decisions on banning landdisposal of certain hazardous wastesunder section 3004 (d), (e) and (g) cannotnegate the prohibitions explicitly statedin this provision. In other words, EPAmust take action under section 3004(b)in order to lift the prohibitions statedtherein. In addition, the Congress makesit clear that the prohibitions provided insection 3004(b) do not apply to theDepartment of Energy Waste IsolationPilot Project in New Mexico.

In integrating this provision into thecurrent regulations, EPA believes that

this provision is best viewed as alocation standard that applies to alltreatment, storage, and disposalfacilities. The statutory language refersto any "placement" of hazardous wastesin the four types of settings. Thislanguage would appear to includetreatment, storage, and disposalactivities because each involvesplacement of waste in the enumeratedsettings.

Accordingly, EPA has included thisprovision as a location standard in§ 264.18 and § 265.18. In Part 265, theban applies absolutely to all hazardouswastes because no wastes may beplaced in the enumerated settings untilan individual permit has been issuedunder Part 264.

In Part 264, the ban only applies tononcontainerized or bulk liquidhazardous waste. For other hazardouswaste the issuance of a permit relievesan owner or operator from the ban. Thestatute appears to contemplate,however, that EPA must take additionalsteps beyond issuing a Part 264 permitfor noncontainerized hazardous wastebefore EPA may relieve an owner oroperator from the ban. For example, thestatute states that EPA must conductsome kind of hearing in an "affectedarea" before a ban may be lifted. It isunclear what this requirementnecessarily entails and how that processmight be integrated with EPA's existingpermit program. Since EPA is notprepared at this time to define whatsteps must be taken to lift the ban on-placement of noncontainerized liquidhazardous waste in the enumeratedsettings, it has simply incorporated theban into the Part 264 provisions. Basedon further review, EPA may clarifywhen the ban on noncontainerizcdliquid hazardous waste can be lifted.EPA intends in the future to proposereoulations which would specificallysolicit comments on this issue.

The ban in new section 3004(b)applies to underground mines. EPAbelieves that by using that tern theCongr.,ss did not intend to apply 1e banto strip mines. Operations at strip minesinvolve removal of mineral depositslocated near the surface of the groundby excavation of large surface areas.This is in contrast to operations at shaftmines. Strip mines will typically create alarge depression in the ground thatwould be regulated as a surfaceimpoundment or a landfill under RCRAif it was used to manage hazardouswastes. EPA does not believe that theCongress meant, in section 3004(b), tomodify how EPA generally regulatessurface impoundments and landfills.Accordingly EPA believes that only

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underground mines rather than stripmines were meant to be covered bysection 3004(b).

6. Dust Suppression

New section 3004(1) prohibits use ofhazardous waste (except hazardouswastes exhibiting the characteristic ofignitability and not hazardous for anyother reason) mixed with waste oil, usedoil, or other material for dustsuppression or for road treatment. Theprovision is codified in a new Subpart Cto Part 266, a subpart reserved forregulation of hazardous waste usesconstituting disposal.

The statutory language raises anumber of issues. The first pertains tothe reference of dioxin: "[t]he use ofwaste oil or used oil or other materialwhich is contaminated with dioxin orany other hazardous waste. * * *" Theissue is whether dioxin must be presentas a result of being added as hazardouswaste, or if the language refers to dioxincontamination from any source. TheAgency believes that the ban appliesonly when the dioxin is present as aresult of being added as a constituent ina hazardous waste. This is indicated bythe fact that Congress placed theprovision in section 3004-whereregulatory jurisdiction is generallylimited to hazardous wastes identifiedor listed in section 3001-and also bythe explanation in the legislative historythat the ban is for "hazardous wastecontaminated materials * * " S. Rep.No. 284, 98th Cong., 1st. Sess. 23.

A second issue is the reference to"waste oil or used oil." Waste oil isvirgin oil that has been discarded beforeuse. The Agency believes the term wasused purposely (since the phrase isotherwise redundant), so that if virginoil is mixed with hazardous waste, itcannot be used legally as a dustsuppressant or for treatment.

The prohibition applies on its face tohazardous wastes that are mixed withother materials, but does not explicitlyban the use of unmixed hazardouswastes (i.e., hazardous wastes applieddirectly as dust suppressants). TheAgency believes the provision should beread as banning this type of directapplication. This appears to be the onlysensible reading because an unmixedwaste is likely to be more hazardousthan a mixed, diluted one. Moreover, theConference Report states that theprovision "bans the use of * * * any* * * hazardous waste as a dustsuppressant." H.R. Rep. No. 1133, 98thCong., 2nd Sess. 88 (1984).

A final issue is the question of what'isused oil and what is hazardous waste.The bill's prohibition applies on its faceonly to used oil that is contaminated

with hazardous waste, not to used oilapplied directly, even if the used oil iscontaminated through use. At this time,determining whether used oil iscontaminated by use or throughadulteration with a hazardous waste is aquestion of fact to be decided on a case-by-case basis. EPA plans to address thisissue in future rulemakings, includingthose dealing with hazardous wastefuels and with standards for recycledoil.

7. Underground Injection

The HSWA introduces a new sectionto RCRA governing the undergroundinjection of hazardous waste.Is Section7010 bans the injection of hazardouswaste into or above any undergroundformation which contains, within one-quarter mile of the injection well, anunderground source of drinking water.This statutory ban on so-called "ClassIV" wells is effective automatically, sixmonths from the date of enactment, inany State which does not have identicalor more stringent prohibitions in effectunder an "applicable undergoundinjection control program" ("UIC"program) (defined at 42 U.S.C. 300h-1(d)) which has been approved orprescribed by EPA under the SafeDrinking Water Act ("SDWA"). 42U.S.C. 300f et seq. In any State in whichthe "applicable underground injectioncontrol program" does include anidentical or more stringent prohibition,no new notice to the public or six-monthphase-in period is necessary, and theban may be enforced immediately.

In May 1984, EPA adopted aregulatory ban upon all hazardous andradioactive waste injection into orabove a USDW, effective six monthsafter the date the applicableunderground injection control programbecomes effective. See 49 FR 20138,20181 (May 11, 1984) (codified at 40 CFR144.13 (1984). Because this regulatoryban was adopted pursuant to both theSDWA and Subtitle C of RCRA, see 49FR 20138, at 20138 (May 11, 1984); 40CFR 144.1(a) (1984), the regulatory banmay be enforced pursuant to bothSDWA 1423, 42 U.S.C. 300h-2, andRCRA 3008, 42 U.S.C. 6928. Furthermore,as provided in HSWA 7010(c), thestatutory prohibition on hazardouswaste injection into such wells may be

18 In 40 CFR 144.13, as amended on May 11, 1984at 49 FR 20138 et seq., EPA promulgated a ban onhazardous and radioactive waste injection into orabove "underground sources of drinking water."(This phrase, often referred to as "USDW," isbroadly defined in 40 CFR 144.3.) Congress ratifiedthat definition in § 7010(d). The ban includes anexception, similar to that in the statute, forreinjection of treated, contaminated ground waterduring an EPA-approved cleanup action underRCRA or CERCLA.

enforced pursuant to RCRA sections7002 (citizen suits) and 7003 (imminentand substantial endangerment) as wellas the SDWA, in States in which theapplicable UIC program includes thesame ban or a ban which is morestringent. Finally, in States in which noidentical or more stringent prohibitionexists under the applicable UICprogram, and in which theAdministrator has not prescribed a UICprogram, the statutory ban imposed by§ 7010(a) may be enforced immediatelyunder sections 7002 or 70"03 of RCRA,and may later be enforced under theSDWA when the applicableunderground injection control programincludes the ban.

Although EPA may invoke RCRA 3008compliance order authority to enforcethe regulatory ban on these "Class IV"wells in States where EPA implementsthe UIC program, it appears that suchcompliance order authority is notavailable to the Agency to enforce thestatutory ban in States which have UICprimary enforcement responsibility andwhich have not yet adopted the fullClass IV ban now required by 40 CFR144.13. This is because section 3008(a)orders may be used only to enforce theprovisions of subtitle C of RCRA,whereas Congress included section 7010in subtitle G of the Act. EPA does notbelieve that by referencing theenforcement authority contained insections 7002 and 7003, Congress hasprecluded the Agency from enforcing theregulatory ban on Class IV wells underRCRA § 3008, or from initiating anaction in equity to enjoin a violation ofthe prohibition contained in section7010(a).

Section 7010(b) provides an exceptionto the ban provision. The ban does notapply to the injection of contaminatedground water into the aquifer fromwhich it was withdrawn if

(1) The injection is part of a federally-supervised cleanup action under RCRA(e.g., corrective action requirements of§ 264.100, 101), or section 104 or 106 ofCERCLA;

(2) Contaminated ground water istreated to substantially reducehazardous constituents prior toinjection; and

(3) Such cleanup, when completed,will be sufficient to protect humanhealth and the environment. Thelegislative history elaborates on theintent of this exception, noting that since"[tihe pumping, treatment andreinjection of already contaminatedground water may be the preferredremoval or remedial technique" at somesite, such injections are not to be

r ......

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banned. 130 Cong. Rec. S9179 (daily ed.July 25, 1984).

A question of interpretation ariseswith respect to section 7010(b)(3), whichrequires that any response action or.corrective action involving reinjection ofcontaminated ground water be sufficientto protect.human health and theenvironment. Section 300.68(j) of theCERCLA regulations provides that aremedial action must effectively mitigateand minimize damage to and provideadequate protection of public health,welfare, and the environment. Similarly,§ § 264.100 and 264.101 of the RCRAregulations provide that any correctiveaction program must protect humanhealth and the environment by meetingthe standards specified therein. Finally,the EPA regulations at 40 CFR 144.13(c)provide that EPA must specificallyapprove of any such reinjection. EPAbelieves that any response or correctiveaction carried out in conformance withthese provisions should be deemed tosatisfy the standard set forth in section7010(b)(3).B. Small Quantity Generators

The HSWA adds a new subsection (d)to section 3001 of RCRA designed tomodify EPA's current regulatoryexemption (40 CFR 261.5) of wastesgenerated by small quantity generatorsfrom full Subtitle C regulation. 19 Theprincipal focus of section 3001(d) is acomprehensive set of standardsspecifically tailored to wastes producedby small quantity generators of between100 kilograms and 1000 kilograms percalendar month which EPA mustpromulgate by March 31, 1986 pursuantto sections 3001(d)(1), 3001(d)(2), and3001(d)(6). If EPA fails to promulgatethese small quantity generatorstandards by March 31, 1986, therequirements set forth in section3001(d)(8) automatically go into eTfect.

Section 3001(d) makes certainminimum requirements applicable tosmall quantity generators of between100 kilograms and 1000 kilograms percalendar month effective before March31, 1986. Effective immediately, section3001(d)(5) provides that all hazardous

"9 Enactment of section 3001(d) eliminates theissue, initially raised with respect to EPA'sregulatory exemption of small quantity generatorsin 1980, as to whether EPA has legal authority toconditionally exempt small quantity generatorsfrom full Subtitle C regulation. Section 3001(d)(11directs EPA to promulgate standards applicable towastes generated by generators of between 100kilograms and 1000 kilograms per calendar month,which may, pursuant to section 3001(d)(2), differfrom existing subtitle C regulations applicable towastes from larger quantity generators. Section3001(d)(4) further provides that EPA may establishstandards for generators of less than 100 kilogramsper month if such standards are required to protecthuman health end the environment.

waste from generators producing greaterthan 100 kilograms but less than 1000kilograms of hazardous waste percalendar month must be either treated,stored, or disposed of at a facilityhaving a permit under section 3005 ofRCRA or disposed of at a facilityauthorized by a State to managemunicipal or industrial solid waste.Section 3001(d)(3) provides that, no laterthan 270 days after enactment,hazardous waste shipped off-site by agenerator producing greater than 100kilograms but less than 1000 kilogramsduring one calendar month must beaccompanied by a copy of the EPAUniform Hazardous Waste Manifestform signed by the generator andcontaining certain specified information.

EPA is publishing today regulatoryamendments necessary to codifyrequirements dictated by the statutoryamendments effective until March 31,1986. These regulatory amendments willremain in effect until standards arepromulgated pursuant to section3001(d)(1) or until March 31, 1986,whichever occurs first. The Agency hasalready initiated a study of smallquantity generators and will continuethis study consistent with the mandatesof Section 221(c). On the basis of thisstudy, EPA intends to propose andpromulgate a comprehensive set of smallquantity generator standards inaccordance with sections 3001(d)(1),3001(d)(2), and 3001(d)(6) of RCRA. Inthe event the Agency finds it is unableto promulgate these standards by March31, 1986, it may publish furtherregulatory amendments to codifyadditional requirements of section3001(d)(8) that are applicable to smallquantity generators on March 31, 1986.

The statutory provisions codifiedtoday affect only those generatorsgenerating' between 100 kilograms and1000 kilograms of non-acutely hazardouswaste per calendar month. Section3001(d)(7) of RCRA expressly providesthat existing EPA regulations pertainingto acutely hazardous waste are notaffected by the statutory amendments.Thus, these amendments, together withexisting regulations, distinguish threeclasses of small quantity generators forregulatory purposes:

(1) Those generating between 100kilograms and 1000 kilograms of non-acutely hazardous waste per calendarmonth;

(2) Those generating up to 100kilograms of non-acutely hazardouswaste per calendar month; and

(3) Those generating acutelyhazardous waste in those quantitiescurrently set forth in paragraphs (e)(1)and (e)(2) of - 261.5.

EPA is amending § 261.5 to reorganizeexisting provisions and to codify newstatutory requirements to provide aseparate paragraph for each class ofsmall quantity generators listed above.Today's regulatory amendments addthree new paragraphs to § 261.5designated as paragraphs (f), (g), and(h); existing paragraphs (f) and (g) arestricken; and existing paragraphs (h)and (j) are redesignated as ii) and (k),respectively.

New paragraph (f) of § 261.5recodifies all existing requirementsapplicable to small quantity generatorsof acutely hazardous waste in quantitiesset forth in paragraph (e). It providesthat the generator must comply with§ 262.11 to determine whether his wasteis hazardous (recodified from existingparagraph (g)(1) of this section);conditionally allows for on-siteaccumulation (recodified from existingparagraph (f) of this section); and setsout treatment, storage, and disposalrequirements (recodified from existingparagraph (g)(3) of this section).

New paragraph (g) of § 261.5recodifies existing requirementsapplicable to small quantity generatorsgenerating less than 100 kilograms ofnon-acutely hazardous waste in onecalendar month.20 it requires thatgenerators comply with § 262.11(recodified from existing paragraph(g)(1) of this section); conditionallyallows for on-site accumulation(recodified from existing paragraph (f) ofthis section); and provides for treatment,storage, and disposal practices(recodified from existing paragraph(g){3) of this section).

New paragraph (h) recodifies oneexisting requirement and incorporatesnew requirements pursuant to Sections3001(d)(3) and 3001(d)(5) of RCRA,applicable to generators generatingbetween 100 kilograms and 1000kilograms of non-acutely hazardouswaste during one calendar month. Theexisting provision requiring thegenerator to comply with § 262.11 isrecodified from existing paragraph (g)(1)of this section and is now found atparagraph (h)(1).

New paragraph (h)(3) codifies section3001(d)(3) of RCRA requiring, effectiveAugust 5, 1985, any hazardous wasteshipped off-site by a generator of

"0 Section 3001(d)(4) of RCRA provides that EPAmay establish standards applicable to smallquantity generators of less than 100 kilogramshazardous waste per calendar month, if theAdministrator finds such standards necessary toprotect human health and the environment. EPA isnot publishing, at this time. any requirementsapplicable to these generators beyond thosecurrently required by existing § 261.5.

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between 100 kilograms and 1000kilograms per month to be accompaniedby a copy of EPA's Uniform HazardousWaste Manifest form signed by thegenerator. This form must contain thefollowing information:

(1) The name and address of thegenerator;

(2) The U.S. Department ofTransportation description of the wasteincluding the proper shipping name,hazard class, and identificationnumber; 21

(3) The number and type ofcontainers;

[4) The quantity of waste beingtransported; and

(5) The name and address of thedesignated facility.

This information corresponds to Items3, 9, 11, 12, 13, 14, and 16 of EPA'sUniform Hazardous Waste Manifest,form 8700-22 and accompanyinginstructions, promulgated by EPA onMarch 20, 1984 (40 CFR Part 262,Appendix; 49 FR 10490). Although use ofthe form is mandatory after August 5,1985, small quantity generators are notrequired by Federal law to complete theentire form or to comply with the fullmanifest system established by 40 CFRPart 262 applicable to generators ofgreater than 1000 kilograms ofhazardous waste per month. However,States operating approved hazardouswaste programs in lieu of the Federalprogram pursuant to section 3006 ofRCRA may have additional manifestrequirements applicable to smallquantity generators. Generators inStates having their own hazardouswaste program are strongly advised tocontact the appropriate State agencywhen completing this form to ensurecompliance with State law.

New paragraph (h)(4) of § 261.5 setsforth requirements for the treatment,storage, or disposal of wastes producedby generators of between 100 kilograms

21 Section 3001(d)(3) provides that if the

Department of Transportation ("DOT") descriptionis "not applicable" the manifest form shall containthe EPA identification number, or a genericdescription of the waste, or a description of thewaste by hazardous waste charcteristic. Today'srule does not include a provision allowing use ofthese descriptions in lieu of DOTs descriptionbecause DOT's description will always beapplicable. DOT's regulations implementing theHazardous Materials Transportation Act require allshipments of hazardous materials (a universe whichincludes all RCRA hazardous wastes) to beaccompanied by a shipping paper including DOT'sdescriptive information. For shipments of hazardouswaste, the completed manifest serves the dualpurpose of satisfying both DOT's shipping paperrequirements and EPA's manifest requirements.Thus, in order to conform with DOT's shippingpaper requirements, the manifest must contain DOTdescriptive information including the propershipping name, hazard class, and identificationnumber (UN/NA}.

and 1000 kilograms ol nonacutelyhazardous wastes per month. Theserequirements allow a generator to eithertreat or dispose of his hazardous wasteon-site or ensure delivery to an off-sitestorage, treatment, or disposal facilityproviding that the on-site or off-sitefacility is either:

(1) Permitted by EPA pursuant tosection 3005 or by a State having anauthorized permit program pursuant toPart 271 of this chapter;

(2] In interim status under Parts 270and 265 of this chapter;

(3) Permitted, licensed, or registeredby a State to manage municipal orindustrial solid waste; or

(4) A facility which beneficially usesor reuses, or legitimately recycles orreclaims its waste; or .treats its wasteprior to reuse, recycling or reclamation.

These are the same requirementscurrently applicable to small quantitygenerators, recodified from § 261.5(g)(3).In retaining these requirements, EPA isrelying on the only reading of section3001(d)(5) that is consistent withCongress' overall scheme of smallquantity generator waste regulation andthe legislative history.

Section 3001(d)(5) governs thedestination of hazardous waste fromgenerators of between 100 kilogramsand 1000 kilograms from the date ofenactment until promulgation of the fullset of small quantity generatorstandards or until March 31, 1986 (whenthe alternative provisions of section3001(d)(8) become effective). It providesthat:

... any hazardous waste ... which is nottreated, stored, or disposed of at a hazardouswaste treatment, storage, or disosal facilitywith a permit under section 3005, shall bedisposed of only in a facility which ispermitted, licensed, or registered by a Stateto manage municipal or industrial solidwaste. -

Section 3001(d)(5) explicitly allows fortreatment, storage, or disposal at afacility with a permit under section 3005.In addition, since a permit issued by aState having an approved hazardouswaste permit program pursuant tosection 3006 generally has the sameforce and effect as a permit issued byEPA under section 3005, section3001(d)(5) also allows for small quantitygenerator waste management at ahazardous waste facility permitted by aState. (See section 3006(d) of RCRAJ. Toimplement this provision, today's rulerecodifies existing regulations(§ § 261.5(g)(3) (i) and (iii)) to allow smallquantity generators of between 100kilograms and 1000 kilograms ofhazardous waste to continue to treat,store, or dispose of such waste at a

facility having either an EPA- or State-issued hazardous waste permit.

The plain language of section3001(d)(5) does not expressly provide fortreatment, storage, or disposal of smallquantity generator waste at a facility ininterim status. Section 3001(d)(5) refersonly to a facility "having a permit underSection 3005." EPA has consistentlyinterpreted this language as meaningonly a facility actually having obtaineda permit pursuant to Parts 270 and 264 ofthis chapter (see, Hempstead Countyand Nevada County Project, et o. v. U.S.EPA, 700 F. 2d 459 (8th Cir. 1983)). Sincesection 3001(d)(5) does not expresslyprovide for treatment, storage, ordisposal of small quantity generatorwaste at a facility in interim status, astrict reading of this section, apart fromother statutory provisions governingsmall quantity generator waste, wouldeffectively rule out treatment, storage, ordisposal at a facility in interim status.As discussed below, EPA is rejectingsuch a restrictive reading of section3001(d)(5) because it does not fit withinthe statutory scheme chosen byCongress for small quantity generatorwaste and is not consistent with thelegislative history accompanying thissection.

EPA believes that implementation ofsection 3001(d)(5) must be consistentwith the nature and structure of section3001(d) governing small quantitygenerator waste as a whole. The overallstatutory scheme chosen by Congress insection 3001(d) provides that, from thedate of enactment, progressively morestringent requirements are to be appliedto small quantity generator waste. Thisphase-in of regulatory requirementsbegins with the partial manifestrequirement of section 3001(d)(3)applicable to only generators ofbetween 100 kilograms and 1000kilograms of hazardous waste per monthwhich remains in effect only until EPApromulgates the full set of smallquantity generator standards. If EPAfails to promulgate a full set ofstandards by March 31, 1986, additionalrequirements will be applied togenerators of between 100 kilogramsand 1000 kilograms of hazardous wasteper month pursuant to section 3001(d)(8).Both the minimum requirements ofsection 3001(d)(6) for the full set ofstandards and the alternative provisionsof section 3001(d)(8) allow treatment,storage, or disposal of small quantitygenerator waste at a facility in interimstatus. Implementation of section3001(d)(5) based on a strictinterpretation would prohibit treatment,storage, or disposal of small quantitygenerator waste at a facility in interim

2 8 7

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status and thus would produce theanomalous and inconsistent result ofmaking interim requirements morestringent than the full set of smallquantity generator standards oralternative requirements of section3001(d)(8), since either set ofrequirements allows management ofsmall quantity generator waste at aninterim status facility. EPA does notbelieve that such a result can bereconciled with the Congressionalobjective of imposing progressivelymore stringent regulatory requirementson small quantity generator waste.

This conclusion is bolstered by thelegislative history accompanying section3001(d)(5). Both the conference report forHSWA and the Senate reportaccompanying the Solid Waste DisposalAct Amendments of 1983,S. 757 (from which this provision wastaken) indicate that Congress intendedsection 3001(d)(5) to allow treatment,storage, or disposal of small quantitygenerator waste at facilities havinginterim status. The conference reportexplains that section 3001(d)(5) requiresthat small quantity generator waste,"shall go to Subtitle C facilities orfacilities licensed by a State to managemunicipal or industrial wastes." H.R.Rep. No. 1133, 98th Cong., 2nd Sess. 103(1984). Subtitle C of RCRA authorizesmanagement of hazardous waste ateither a facility with a permit undersections 3004 and 3005 or at a facilityhaving interim status pursuant to section3005. Accordingly, reference to "SubtitleC facilities" includes facilities in interimstatus. The Senate report on section3001(d) (originally reported as section3002(b)) explains that the language"having a permit under section 3005"includes "both facilities that have aSubtitle C permit issued by either EPAor an authorized State or facilities withinterim status, since interim statusfacilities are deemed to have a permitunder the language of section 3005."[Emphasis added.] S. Rep. No. 284, 98thCong., 1st Sess. 12 (1983). Thesediscussions relative to section 3001(d)(5)clearly evidence Congress' intent toallow management of small quantitygenerator waste at interim statusfacilities.

Similarly, EPA has retained theexisting provision allowing treatment orstorage as well as disposal of smallquantity generator waste at facilitiespermitted, licensed, or registered by aState to manage municipal or industrialsolid waste. Although section 3001(d)(5)refers only to disposal of small quantitygenerator waste at a State-approvedmunicipal or industrial solid wastefacility, the legislative history indicates

that Congress did not intend to restrictuse of State-authorized municipal orindustrial solid waste facilities todisposal only. The conference reportstates that small quantity generatorwaste "shall go" to municipal orindustrial waste facilities, not limitingsuch destination to disposal. H. Rep. No.1133, 98th Cong., 2nd Sess. 103 (1984).The Senate report on S. 757 from whichsection 3001(d)(5) was taken, explainsthat this section was meant to codifyexisting small quantity generatorregulatory requirements relative toState-approved solid waste facilities.S. Rep. No. 284, 98th Cong., 1st Sess. 9(1983). Inasmuch as existingrequirements allow treatment andstorage of small quantity generatorwaste at a State-approved solid wastefacility, Congress thus intended tocontinue these requirements. Moreover,allowing treatment and storage as wellas disposal of small quantity generatorwaste in a State-approved solid wastefacility is consistent with the generalobjective in section 300i(d) of ensuringsound management of small quantitygenerator waste; arguably, treatment orstorage of hazardous waste at a State-approved solid waste facility is lessenvironmentally threatening thandisposal of waste at such a facility.

Thus, State-approved industrial ormunicipal solid waste facilities thatchoose toaccept hazardous wastes fromsmall quantity generators during theinterim before the effective date of thestandards or March 31, 1986, whichevercomes first, do not have to have eitherinterim status or a permit. However, ifthese facilities intend to continueaccepting hazardous wastes after theeffective date of the standards or March31, 1986, they must have either interimstatus or a permit since both the full setof standards and the alternateprovisions effective March 31, 1986restrict treatment, storage, and disposalof small quantity generator waste toSubtitle C facilities. 22

New paragraph (h)(2) recodifies theexisting requirement (§ 261.5(f)]allowing small quantity generators toaccumulate on-site up to 1000 kilogramsof hazardous waste, provided that if theaccumulation limit of 1000 kilograms isexceeded, all of the accumulated wastesare subject to full Subtitle C regulation.

22 Section 3005(e)(1)(A)(ii) provides that facilitiesin existence on the effective date of statutory orregulatory changes that render the facility subject topermit requirements may qualify for interim status.Since State-approved industrial and municipal solidwaste facilities choosing to accept hazardous wasteafter promulgation of the full set of standards orMarch 31, 1986 will be subject to permittingrequirements, they will be eligible for interim statuspursuant to section 3005(eJ(1l[A)(ii).

The HSWA does not explicitly addresson-site storage of small quantitygenerator hazardous waste during theperiod between enactment and theeffective date of the full set of smallquantity generator standards. If the fullset of standards is not promulgated byMarch 31, 1986, the alternativerequirements of section 3001(d)(8) apply.As discussed earlier, EPA does notbelieve that Congress intended to placemore stringent requirements on smallquantity generator waste during theinterim before promulgation of the set ofsmall quantity generator standards, butrather intended to maintain the statusquo with respect to the destination ofsmall quantity generator wastes.Accordingly, EPA has retained theexisting regulatory scheme for on-siteaccumulation for up to 1000 kilograms ofhazardous waste.

C. Permits/Interim Status

1. Preconstruction Ban/TSCA Exception

On May 19, 1980 EPA promulgatedregulations prohibiting the constructionof new hazardous waste managementfacilities without a finally effectiveRCRA permit (40 CFR 270.10(f)(1)). Inthe HSWA, Congress adopted theseregulations by amending section 3005(a)of RCRA to clarify the Administrator'sauthority to require a RCRA permit toconstruct a hazardous waste treatment,storage, or disposal facility. Thepreconstruction ban in section 3005(a) is,however, qualified. The statute exemptsfacilities constructed pursuant to anapproval issued by the Administratorunder section 6(e) of the ToxicSubstances Control Act (TSCA), for theincineration of polychlorinatedbiphenyls (PCBs), from the requirementto have a RCRA permit prior toconstruction. Any person owning oroperating such a facility may file anapplication for a RCRA permit toincinerate hazardous wastes at any timeafter construction or operation of such afacility.

The purpose of the TSCA exemptionfrom the preconstruction ban is toremove an inconsistency between theRCRA and TSCA regulations affectingincinerators. As discussed previously,under current RCRA regulations noconstruction may occur prior to receiptof a final permit. However, under TSCA,construction may occur prior to finalapproval (the analogue of a RCRApermit).

The Congressional intent underlyingthe TSCA exemption is as follows:

[wihere an incinerator has been constructedand approved pursuant to TSCA for theburning of PCBs, the owner or operator shall

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not be precluded from applying for a RCRApermit solely because a RCRA permit wasnot obtained prior to construction. The EPAregulation being codified by this amendmentwas designed to assure that when it has beenunable to influence the location, design, andconstruction chosen by the applicant, thepermitting agency would not face a choicebetween approving an incinerator or "forcingthe abandonment or devaluation of thepremature investment." Here, however, if acompany proceeded with construction,obtained TSCA approval, and then sought aRCRA permit, the company would not haveto abandon or suffer a devaluation of itsinvestment if it was ultimately denied aRCRA permit for the incinerator. Thecompany would still have a PCB incinerator.130 Cong. Rec. S.9175, (daily ed. July 25, 1984).

In order to codify the TSCAexemption, the Agency is todayamending § 270.10[f)(3). That provisioncurrently allows a person to beginphysical construction of a newhazardous waste management facilitysubsequent to November 19, 1980, butprior to the effective date of the unit-specific Part 264 standards (i.e., SubpartI et seq.) in limited circumstances. TheAgency believes that thisprovision islegally inconsistent with the generalpreconstruction ban and is, accordingly,deleting that provision in today's rule.The Agency is instead codifying thesection 3005(a) TSCA exemption in§ 270.10(f)(3).

Congress did not specifically addresswhether the TSCA exemption from thepreconstruction ban is applicable tounits that store PCBs prior toincineration at a TSCA-approvedincineration facility. Under the TSCAregulation, any PCB articles or PCBcontainers may be stored for disposalfor up to one year (40 CFR 761.65). Thefacility need not obtain a permit forconstruction of the storage unit but mustensure that the unit meets the critcriaspecified in § 761.65. The Agencybelieves that, as a legal matter, theTSCA exemption to the preconstructionban for facilities constructed pursuant toapproval under TSCA is applicable tostorage units at these facilities incompliance with § 761.65. To holdotherwise would eviscerate thestatutory exemption since it is commonpractice for f-cilities to store PCBs priorto incineration.

2. Permit Life

On May 19, 1980, EPA promulgated aregulation providing that RCRA permitsshall be effective for a fixed term not toexceed 10 years. 40 CFR 122.9(a) (nowcodified as 40 CFR 270.50(a)). OnFebruary 6, 1983, EPA proposed toamend that regulation to issue permitsfor the life of the facility (48 FR 5872). Inresponse to that proposal, Congress, in

HSWA, amended section 3005(c) toprovide that any permit for a treatment,storage, or disposal facility shall be for afixed term, not to exceed 10 years.

In enacting this provision, Congressstated that "with the advancing state oftechnology and the long projected usefullife of many of these facilities, it ispreferable to limit permit life to theminimum period consistent with the costand administrative burden of issuing apermit. * * * Limited permit durationwill assure that facilities areperiodically reviewed and requirementsfor them upgraded to reflect the currentstate of the art." S. Rep. No. 284, 98thCong., 1st Sess. 30 (1983).

The Agency believes that § 270.50(a)-(c), as currently drafted, is consistentwith the statutory amendment to section3005(c). Therefore, the Agency is notamending those regulations today.

The HSWA also amends section3005(c) to provide that each permit for aland disposal facility shall be reviewed5 years after the date of issuance orreissuance and shall be modified asnecessary to assure that the facilitycomplies with the currently applicablerequirements in sections 3004 and 3005.Since section 3065 provides that theAgency has the authority to issuepermits encompassing conditionsnecessary to protect human health andthe environment, the Agency maymodify land disposal permits to includethese conditions.

In, order to codify the amendment tosection 3005(c), the Agency is todayamending § 270.50 by adding a newsubsection, § 270.50(d). That subsectionrequires the Director lo review thepermit for a land disposal facility 5years after the date of permit issuanceor reissuance and to modify the permitin accordance with § 270.41.

The Agency is also amending§ 270.41(a) in order to implement theamendment to setion 3035(c). Section270.41(a)(3) as currently drafted,provides that permits may be modifiedbecause of regulatory amendments onlyif the permittee requests such amodification. That provision conflictswith the statutory requirement that theAgency modify land disposal permits toassure continued compliance withapplicable regulations. Accordingly, theAgency is to ay amending § 270.41(a) byadding a new cause for modification,§ 270.41(a)(6). Section 270.41(a)(6)provides that notwithstanding any otherprovision in § 270.41(a), when a permitfor a land disposal facility is reviewedunder § 270.50(d), the Director shallmodify the peimit to assure that thefacility continues to comply with thecurrently applicable requirements inParts 264, 266, and 270. Since, as

discussed below, EPA has the authorityunder Part 270 to issue permit conditionsbeyond those specified in theregulations, the Agency may, whereappropriate, modify land disposalpermits to reflect conditions beyondthose specifically set forth in theregulations under the authority of Part270.

Pursuant to today's rule, the Agencymay modify permits to incorporate newregulatory requirements without therequest of the permittee in the context ofland disposal permit reviews. Suchpermit modifications would constitutemajor modifications and would,accordingly, be subject to the proceduralrights of notice and comment under 40CFR Part 124 accorded permitteesundergoing major permit modifications.

3. Authority To Add Conditions

In enacting HSWA, Congressamended § 3005(c) to provide that eachRCRA permit issued shall contain suchtrrns as the Administrator (or the State).determines necessary to protect humanhealth and the environment. Theaccompanying legislative historyindicates a Congressional intent toauthorize the Administrator to addpermit conditions beyond thosespecified in the regulations. S. Rep. No.284, 98th Cong., 1st Sess. 31 (1983]. TheAgency is today implementing thisamendment by adding a new subsectionto the RCRA regulations, concerning theestablishment of permit conditions,§ 270.32(b)(2).

Since the Administrator has theauthority to review land disposal facilitypermits every five years to assure thatthe facility operates in a manner whichprotects human health and theenvironment, the Administrator has theauthority to add permit conditionswhere necessary to protect humanhealth and the environment whenconducting such reviews of landdisposal facility permits under§ 270,50(d). The Administrator also hasthe authority to add conditionsnecessary to protect human health andthe environment when reviewing anapplication for permit renewal. Such aninterpretation is in accordance with theamendment to section 3005(c) whichspecifically requires the permittingauthority, in any permit renewal, toconsider among other thingsimprovements in the state of control andmeasurement technology as well aschanges in applicable regulations. Suchimprovements and changes must beincorporated in the renewed permit. S.Rep. No. 284, 98th Cong., 1st Sess. 30-31(1983). Improvements and changes incontrol and measurement technology are



factors that Congress intended theAdministrator to take into account whenadding permit terms and conditions asnecessary to protect human health andthe environment. Id. Accordingly, theAdministrator has the authority undersection 3005 to add conditions necessaryto protect human health and theenvironment when reviewing anapplication for permit renewal. Inaddition, the Administrator shallconsider any changes that may haveoccurred in operation of the facilitysince the permit was issued, and otherinformation concerning the impact of thefacility on human health and theenvironment.

Section 3005(c) provides that eachRCRA permit issued under section 3005shall contain such terms as theAdministrator deems necessary toprotect human health and theenvironment (emphasis added). TheCongressional intent underlying thisamendment is to authorize the Agencyto impose permit conditions beyondthose mandated by the regulations, suchas new or better technologies or othernew requirements. S. Rep. No. 284, 98thCong., 1st Sess. 31 (1983). The purpose ofthis amendment is to upgrade facilityrequirements in order to protect humanhealth and the environment. The Agencybelieves that the authority to issuepermits containing conditions deemednecessary to protect human health andthe environment must encompass theauthority to deny permits where •necessary to afford such protection. Tohold otherwise would deprive thisstatutory amendment of its intendedeffect.

4. Expansion of Interim Status for NewlyRegulated Units

Section 3005(e) of RCRA previouslyrestricted interim status to owners oroperators of "existing HWM facilities"or facilities in operation or for whichconstruction commenced on or beforeNo, ember 19, 1980. In HSWA, Congressamended section 3005(e) by providingthat facilities in existence on theeffective date of statutory or regulatorychanges under the Act that render thefacility subject to the requirement tohave a permit, qualify for interim statusif they make an application for a permitand comply with the section 3010notification requirements. Facilitiesvwhich have been previously denied aRCRA permit or for which authority tooperate the facility under RCRA hasbeen previously terminated may not,however, qualify for interim statuspursuant to the amendment to section3005(e).

In the legislative historyaccompanying this provision, Congress

indicated that the amendment to section3005(e) would apply to facilities inexistence which treat, store, or disposeof newly listed hazardous wastes. Thelegislative history also noted thatfacilities which were previouslyexempted from certain RCRArequirements but subsequently becamesubject to those requirements [e.g., smallquantity generators) would also beeligible for interim status as a result ofthis amendment. 130 Cong. Rec. S9170(daily ed. July 25, 1984).

If a unit at a facility has beenpreviously denied a RCRA permit or hadits interim status terminated, the owneror operator of the facility may notqualify for interim status for any unit atthe facility in existence on the effectivedate of statutory or regulatory changesthat render the facility subject to therequirement to have a permit. Thisinterpretation is in accordance with thelegislative history which notes thatfacilities for which RCRA permits havebeen previously denied or for whichinterim status has been previouslyterminated would be unable to qualifyfor interim status pursuant to thisamendment under any circumstances.Id.

As discussed previously, facilitiesmust submit a permit application inorder to qualify for interim status. Inorder to implement the statutoryamendment to section 3005je), theAgency is today amending 40 CFR270.70(a). Section 270.70(a), as amended,provides that owners and operators offacilities in existence on the effectivedate of changes under the Act thatrequire the facility to have a permit,qualify for interim status if they complywith the requirements of 40 CFR 270.10governing submission of Part A permitapplications. Since § 270.10 does notcurrently provide Part A applicationrequirements for owners and operatorsof these facilities, the Agency is todayamending the application requirementsin § 270.10(e) to reflect the new§ 270.70(a). Today's rule provides thatowners and operators of HWM facilitiesin existence on the effective date ofstatutory or regulatory amendmentsunder RCRA that render the facilitysubject to permit requirements mustsubmit Part A of their permit applicationby the dates specified in § 270.10(e)(1) inorder to qualify for interim status. TheAgency is also adding a new provision,§ 270.70(c), in order to implement theamendment to section 3005(e). Section270.70(c) provides that a person shallnot qualify for interim status if he ownsor operates a facility which has beenpreviously denied a RCRA permit or if

authority to operate the facility has beenpreviously terminated.

5. Loss of Interim Status for Failure ToSubmit Part B

The HSWA amends section 3005(e) byproviding that interim status for ownersand operators of land disposal facilitiesterminates within a 12-month periodunless the owner or operator submits aPart B prior to that date and certifiescompliance with the applicable ground-water monitoring and financialresponsibility requirements. Congressalso amended section 3005(c) to providethat interim status for owners andoperators of incinerators terminates byNovember 8, 1989 unless a Part Bapplication is submitted by November 8,1986. For all other facilities, interimstatus terminates by November 8, 1992,unless an application is submitted byNovember 8, 1988. The Agency is todayamending the regulation concerningtermination of interim status, 40 CFR270.73, to reflect these grounds fortermination of interim status.

In addition to amending § 270.73, theAgency is also amending 40 CFR270.10(e)(4) which specifies theapplication requirements for HWMfacilities. Section 270.10(e)(4) nowprovides that an owner or operator shallsubmit his Part B voluntarily or inresponse to a'request from the State orEPA. Section 270.10(e)(4), as amendedtoday, provides that owners or operatorsof HWM facilities must submit their PartB application in accordance with thedates specified in § 270.73. Thisregulatory amendment conforms withthe statutory requirement that theowner's or operator's duty to submit aPart B application is mandatory. TheAgency or the State need not firstrequest the Part B application. t is theAgency's intention, however, tocontinue, as a matter of policy, torequest Part B applications from ownersand operators of hazardous wastemanagement facilities, consistent withthe deadlines now specified in § 270.73.It should also be noted that submissionof a UIC permit application would meetthe requirement to submit the Part Bapplication for facilities covered by theUIC permit by rule (See § 270.60(b)).

If at the expiration of the specifiedstatutory time periods, the owner oroperator of the facility fails to submit hisPart B application or applicablecertifications of compliance, interimstatus will terminate immediately undersection 3005. EPA need not take anyspecific action to terminate the facility'sinterim status. Requiring specificAgency action prior to termination ofinterim status would delay the

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termination of interim status whichwould, in turn, conflict with thestatutory requirement that interim statusterminates on the expiration of thestatutory time period.

As discussed previously, the applicantmust certify compliance with applicableground-water monitoring and financialresponsibility requirements. The statuteis silent as to whether the applicablerequirements are found in Part 264 orPart 265. However, the legislativehistory indicates that the applicableground-water monitoring requirementsare found in Part 265. In discussing theamendment, Congress asserted thatsince EPA's ground-water monitoringrequirements have been in effect sinceNovember 1981, there is no excuse fornoncompliance at this late date. 129Cong. Rec. H8142 (October 6, 1983). Theground-water monitoring requirementsin effect since November 1981 are thosefound in Part 265, Subpart F. See§ 265.90. Accordingly, certification withthe Part 265 ground-water monitoringstandards or the State analogue to thePart 265 requirements will satisfysection 3005(e)(3). In order to beinternally consistent with respect tocertifications of compliance undersection 3005(e)(3), the owner or operatormust certify compliance with thefinancial responsibility requirementsfound in Part 265 or the State analogueto the Part 265 requirements rather thanPart 264.

If the owner or operator of a facilityfails to submit the application or theapplicable certifications of compliancefor such facility, the statute providesthat interim status shall terminate forsuch facility. The Agency believes thatthe termination of interim status onlyaffects the unit or units at the hazardouswaste management facility for which therequired information is not submitted.For example, if a hazardous wastemanagement facility had both anincinerator and a land disposal unit, andthe owner or operator of the facilitysubmitted the Part B for the incineratorby the specified date but not for the landdisposal unit, interim status wouldterminate for the land disposal unit andnot for the incinerator.

EPA believes this interpretation isreasonable for several reasons. First,EPA sees no evidence in the legislativehistory to suggest that Congress meantto stop all operations at a large,multiple-unit facility simply because oneunit has not properly submitted its PartB application or applicablecertifications. Terminating wastemanagement at these units that are notcovered by the owner's or operator'sapplication or certification would seem

an adequate sanction to achieve theCongressional purpose. Moreover,allowing loss of interim status for asubset of units at a facility is consistentwith EPA's regulatory authority todivide its consideration of units forpermitting purposes. See § 270.1(c)(4).Under its current regulations EPA maygrant or deny a permit to a set of units ata facility without disturbing the facility'sinterim status for other units at thefacility.

D. Burning and Blending of HazardousWaste

1. Ban on Hazardous Waste in CertainCement Kilns

Section 204 of the Hazardous andSolid Waste Amendments of 1984amends section 3004 of RCRA toprohibit cement kilns located inincorporated cities with populationsgreater than 500,000 from burninghazardous waste, or any fuel containinga hazardous waste, unless they complywith the regulations applicable tohazardous waste incinerators. Thisprohibition, contained in section3004(8)(2)(C), remains in effect until theAgency develops substantive standardsfor cement kilns burning hazardouswaste. As discussed more fully below,the prohibition would not apply tocement kilns burning petroleum cokecontaining hazardous waste indigenousto petroleum refining, unless thepetroleum coke exhibited acharacteristic of hazardous waste. SeeRCRA amenided sections 3004(q)(2)(C)(i]and 3004(q](2)(A), respectively.

The "hazardous wastes" covered bythis prohibition are any hazardouswastes identified or listed in regulationsimplementing section 3001, andexplicitly include commercial chemicalproducts that are burned in lieu of theiroriginal intended use. See RCRAamended section 3004(g)(1). 3 Thestatute supersedes the exemption for theactual act of recycling (in this case,burning in a cement kiln) found inexisting § 261.6(b), and also in EPA'srecently published amendment, found inamended § 266.30, 50 FR at 667.

We have codified the statutorylanguage in a new Subpart D to Part 266

23For this prohibition to apply, a commercialchemical product must be burned in lieu of itsnormal use, or added to a fuel in lieu of its rormaluse. A fuel merely containing a chemical on the§ 261.33 list is not automatically a hazardous waste.For the fuel to be a waste, the chemical must havebeen a commercial product (or off-specificationvariant or spill residue thereof) when it was added,and the commercial chemical must not be a fuelitself. See H.R. Rep. No. 570, 97th Cong., 2d Seas. 18-19 (1982). EPA has recently amended § 261.33 in amanner virtually identical to the statute. See 50 FRat C65 (January 4, 1985).

of the regulations. This Subpart isreserved for rules dealing with burninghazardous wastes in thermalcombustion devices other thanincinerators, namely boilers andindustrial furnaces. We also have madeconforming changes to § § 261.6(a) and261.33.

The statutory prohibition applies to"fuels" containing hazardous wastes.The provision thus does not appear toapply to cement kilns burning hazardouswastes for material recovery. This isconsistent with legislative historydistinguishing between cement kilnsburning for energy and materialrecovery. See H.R. Rep. No. 198, 98thCong., 1st Sess. 40 (1983). An issue notspecifically addressed is the status of acement ki!n burning hazardous wastefor the dual purposes of energy andmaterial recovery. In light of theremedial purpose of the provision, andthe broad reach of section 204 ingeneral, the Agency believes thatcement kilns burning for a dual purposeare covered by the prohibition. See also50 FR at 630-31 (January 4, 1985).

2. Labeling of Hazardous Waste Fuels

The new statutory amendments alsorequire that any person who produces,distributes, or markets a fuel containinga hazardous waste, or a hazardouswaste burned directly as a fuel, mustinclude a warning label in the invoice orbill of sale for the fuel. The warninglabel must state that the fuel containshazardous wastes, and must list thehazardous wastes contained therein.See RCRA Section 3004(r)(1). Thelegislative history indicates that thislatter requirement is satisfied byidentifying wastes by generic classes(such as "chlorinated solvent") ratherthan by precise chemical name. H.R.Rep. No. 198, 98th Cong., 1st Sess. 42(1983). The warning label must belocated conspicuously, and be printed inconspicuous, legible, and contrastingtype. This requirement took effect onFebruary 6, 1985. The warning labelrequirement applies to fuels containingany hazardous waste (with threeexceptions described below), and sosupersedes provisions in § § 261.6(a) and26133 of EPA's existing regulations Laswell as provisions in EPA's recentJanuary 4 amendment to § 261.6(a)].

An issue arises as to precisely who isto prepare a warning label, particularlywith reference to intra-companyshipments of hazardous waste fuels. Thelabeling requirement applies to anyperson required to notify underparagraphs (1) and (3) of section 204,namely persons who produce, market, ordistribute hazardous waste fuel. The

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legislative history indicates that thepurpose of the provision is to put usersand transporters on notice that they arehandling a fuel potentially moredangerous than a virgin fuel. H.R. Rep.No. 198 at 42; S. Rep. No. 284 at 40. TheAgency thus is of the view that thisrequirement should apply whenever ahazardous waste fuel is sent off-site,even if the ultimate user is the samecompany that produced the fuel.

We note that the labeling requirementmay be superseded by EPA regulations.RCRA section 3004(r)(1). EPA believesthat a hazardous waste manifest servesthe same function as the warning label,and is far more efficient to administer.EPA thus proposed requiring a manifestrather than a warning label. 50 FR at1704 (January 11, 1985).

3. Exception to Labeling Requirement

The statute contains three exceptionsto the labeling requirement: forhazardous waste-derived petroleumcoke, and for two types of hazardouswaste-derived fuels from petroleumrefining operations. These are discussedbelow in turn.

The exception for petroleum cokeapplies to petroleum coke whichcontains as ingredients oil-bearinghazardous wastes from petroleumrefining operations, for those wastesthat are indigenous to the refiningoperations. Thus, if a refinery addedspent solvents to the coke, the cokewould not be exempt. See S. Rep. No.284 at 39. Hazardous waste-derivedpetroleum coke exhibiting acharacteristic of hazardous waste is notexempt. In addition, the legislativehistory is clear that only the petroleumcoke is exempt: "the exemption forhazardous waste to be converted tocoke begins only with the introductionto the conversion process." Id. Thehazardous refinery wastes are subject toregulation up until that point.

The second statutory exemption fromthe labeling requirement is forhazardous waste-derived fuels frompetroleum refining operations (definedas refining operations within SIC Code2911). There are three conditionsprecedent to this exemption: the wastesmust contain oil, they must be generatedand reinserted on-site into the refiningprocess at a point where contaminantsare removed, and they must beconverted into product along withnormal process streams. As With theprevious exemption, this exemptionapplies only to fuel containing wastesthat are indigenous to the petroleumrefining process. H.R. Rep. No. 196 at 43.

The legislation does not stateprecisely what is meant by therequirement that "contaminants (be)

removed" by reinsertion into theprocess. The Agency does not read thisas a requirement that all contaminantsbe removed. This is shown by thelegislative history, which states that thisstandard was adopted by analogy to thedefinition of rerefined oil in section104(39) of RCRA. S. Rep. No. 284 at 41.Rerefining is a process that removes$ome but not all contaminants.

The Agency believes that therequirement that wastes be inserted intoa part of the refining process wherecontaminants are removed means thatwastes must be inserted at or before apoint in the process designed to removetoxic metal and organic contaminants inthe normal operation of the refiningprocess. The requirement does notmean, however, that all contaminants inthe waste be removed. Examples ofparts of the refining process designed toremove contaminants are atmosphericdistillation towers, vacuum distillationtowers, fluid cokers, and catalyticcracking operations.

Fuels resulting from refiningoperations where hazardous wastes areadded at or before these points wouldnot be automatically subject to thewarning label requirement. Conversely,certain downstream refining operations(e.g., product finishing, blending, andpackaging operations) are not designedto remove contaminants in the senserequired by the bill. These operationsare designed primarily to improveproduct saleability; removal of toxicmetals and organics is incidental to thispurpose. Fuels containing hazardouswastes added at these points in theprocess would have to have a warninglabel.

The final exemption from labelling isfor oily wastes from petroleum refiningand transportation practices that areinserted into the petroleum refiningprocess as in the previous exemption.RCRA section 3004(r)(3). This exemptionis to a large degree coextensive with theprevious one, but it differs in threerespects: it applies to "oily materials" aswell as to petroleum refining wastes; itapplies to wastes generated frompetroleum transportation practices (aswell as production and refiningpractices), and the wastes need not begenerated and inserted on-site.

The Agency reads section 3004(r)(3) asapplying only to wastes not alreadycovered by section 3004(r)(2). Any otherreading would render section 3004(r)(2)surplusage, violating standard tencts ofstatutory construction. The legislativehistory in fact indicates that paragraph(r)(3) was intended to apply to used oilthat is hazardous. See S. Rep. No. 284 at40.

4. Household Waste

New section 3001(g) adds aclarification to the household wasteexclusion contained in § 261.4(b)(1).That regulation states that hoaseholdwastes are not hazardous wastes. Thepreamble accompanying that regulationstates that residues remaining aftertreating household wastes also are nothazardous wastes. 45 FR 33099 (May 19,1980).

The legislative clarification is that aresource recovery facility recoveringenergy from burning municipal waste isnot considered to be managinghazardous waste, provided the facilitymeets two conditions:

(a) the facility receives and burns onlyhousehold waste, and solid waste fromother sources that contains nohazardous wastes; and

(b) the facility cannot accepthazardous wastes from any non-household sources, and must adoptprecautionary measures-such ascontractual arrangements of othernotification procedures-to assure thathazardous wastes are not received orburned.

EPA has codified this provision in§ 261.4(b), repeating the statutorylanguage. The statutory provisionappears to raise two principal issues:

(1) The status of facilities that, in spiteof good faith efforts, receive and burnhazardous wastes; and

(2) The status of residues from burninghousehold waste and non-hazardoussolid waste if the residue exhibits acharacteristic of hazardous waste.

As to the first issue, the statutorylanguage contains no exception forfacilities that, in spite of their bestefforts, receive hazardous wastes. Thelegislative histcry indicates, however,that if good faith precautionarymeasures are in p!ace and a resourcerecovery facility still receives and burnsa hazardous waste, that the "facility* * should not be penalized for theoccasional, inadvertent receipt ofhazardous waste * * " S. Rep. No. 284at 61. Thus EPA believes that resourcerecovery facilities do not becomeSubtitle C facilities when theyinadvertently burn hazardous waste ifthey have taken good faith measures toavoid burning such waste.

The statute is silent as to whetherhazardous residues from burningcombined household and non-household, non-hazardous waste arehazardous waste. These residues wouldbe hazardous wastes under present EPAregulations if they exhibited acharacteristic. The legislative historydoes not directly address this question,

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although the Senate report can be readas enunicating a general policy of non-regulation of these resource recoveryfacilities if they carefully scrutinize theirincoming wastes. On the other hand,residues from burning could, in theory,exhibit a characteristic of hazardouswaste even if no hazardous wastes areburned, for example, if toxic metalsbecome concentrated in the ash. Thus,the requirement of scrutiny of incomingwastes would not assure non-hazardousness of the residue. EPAbelieves that the principal purpose ofsection 3001(g) was to prevent resourcerecovery facilities that mayinadvertently burn hazardous waste,despite good faith efforts to avoid such aresult, from becoming subject to theSubtitle C regulations. EPA does not seein this provision an intent to exempt theregulation of incinerator ash from theburning of non-hazardous waste inresource recovery facilities if the ashroutinely exhibits a characteristic ofhazardous waste. However, EPA has noevidence to indicate that these ashresidues are hazardous under existingrules. EPA does not believe the HSWAimpose new regulatory burdens onresource recovery facilities that burnhousehold and other non-hazardouswaste, and the Agency has no plans toimpose additional responsibilities onthese facilities. Given the highlybeneficial nature of resource recoveryfacilities, any future additionalregulation of their residues would haveto await consideration of the importanttechnical and policy issues that wouldbe posed in the event serious questionsarise about the residues.

5. Minimum Technological Requirementsfor Incinerators

Section 202(a) of the Amendmentsadds a section 3004(o)(1)(B) to RCRAwhich states that incinerators whichreceive permits after enactment of theAmendments must meet the minimumdestruction and removal requirementscontained in § 264.343(a) of EPA'sregulations. That regulatory provisionstates that principal organic hazardousconstitutents (POHC's) in the waste feedmust be destroyed and removed to aminimum efficiency of 99.99%

It is unnecessary to include any newprovisions in EPA's regulations becausethe statute simply codifies the existingrules. We also note that the provisiondoes not preclude the Agency fromadopting a more stringent destructionand removal requirement (the statuterefers to "attainment of a minimumdestruction and removal efficiency").Nor does it prohibit changes (eithermore or less stringent) in otherperformance standards for incinerators,

including those for control of hydrogenchloride emissions or total particulates.

Finally, the requirement applies onlyto incinerators, and so does not mandateminimum technological requirements forother combustion units burninghazardous waste, such as boilers andindustrial furnaces. See H.R. Rep. No.198 at 42. (Boilers and'industrialfurnaces are subject to the sameultimate standard as incinerators, butneed not meet the same technologicalrequirements.)E. Exposure Information and IlealthAssessments

In enacting the HSWA, Congressamended Subtitle C of RCRA by addinga new section concerning exposureinformation and health assessments,section 3019. Under section 3019, RCRApermit applications for landfills andsurface impoundments must beaccompanied by information on thepotential for the public to be exposed tohazardous wastes through releasesrelated to the unit. The Administratorwill then make that informationavailable to the Agency for ToxicSubstances and Disease Registry(ATSDR) established under theComprehensive EnvironmentalResponse, Compensation and LiabilityAct (CERCLA). Whenever theAdministrator or a State judges that therelease poses a substantial potential riskto human health, the Administrator mayrequest the ATSDR to perform a healthassessment and take appropriate actionunder CERCLA.

In order to codify section 3019, theAgency is today adding a newregulatory provision, 40 CFR 270.10(j).Section 270.10(j)(1) provides that Part Bapplications for landfills or surfaceimpoundments submitted after August 8,1985, must be accompanied by certainexposure information. Section270.10(j)[2) provides that by August 8,1985, owners and operators of a landfillor surface impoundment who havealready submitted their Part Bapplication are also required to submitexposure information.

40 CFR 270.10(j) is applicable to bothoperating permits and post-closurepermits because in both types of permitsthe owner or operator is required tosubmit a Part B application. Thesubmittal of the Part B triggers the dutyto submit the exposure information.Owners or operators of closed units oractive solid waste units for which apost-closure permit is not requiredwould not be required to submit a PartB. Therefore, owners and operators ofsuch units would not have to submitexposure information.

At a minimum, the exposureinformation must address reasonablyforeseeable potential releases fromnormal operations and accidents, thepotential pathways of human exposureto hazardous wastes or constituents'resulting from the releases, and thepotential magnitude and nature of thehuman exposure resulting from thereleases.

Section 3019 provides that exposureinformation must accompany the permitapplication; the information is not partof the permit application. In enactingthis provision, Congress intended thatthe exposure information should notdelay the permitting process.Submission of exposure information isnot a condition for permit issuance. 130Cong. Rec. S9187 (daily ed. July 25,1984). Accordingly, the Agency is todayamending 40 CFR 270.10(c) to providethat an application which is notaccompanied by exposure informationwill not be deemed incomplete forpurposes of permitting a facility. Thisinterpretation is in accordance with thelegislative history which notes thatnoncompliance with section 3019 is aseparate violation of RCRA and shouldnot be considered when determining thecompleteness or adequacy of Part Bpermit applications. 130 Cong. Rec.S13822 (daily ed. October 5, 1984).

Neither the statutory amendments northe legislative history defines the term"release." The statute does, however,provide that in conducting healthassessments, the potential pathways ofhuman exposure must be evaluated.These pathways include ground orsurface water contamination, airemissions, and food chaincontamination. Given the multi-medianature of the health assessmentpathways, and for the reasonspreviously discussed in connection withsection 3004(u), it is appropriate tomodel the definition of release aftersection 101(22) of CERCLA. Pursuant tosection 101 of CERCLA, "release" meansany spilling, leaking, pumping, pouring,emitting, emptying, discharging,injecting, escaping, leaching, dumping,or disposing into the environment, withcertain exclusions. Since the CERCLAexclusions are not generally appropriatefor this section, the Agency will notadopt these exclusions when defining a"release".

Section 3*019(a) provides that ownersand operators who submitted Part Bapplications prior to the date of "enactment of the HSWA must submitexposure information by August 8, 1985.Section 3019(a) also provides that afterAuigust 8, 1985 each Part B applicationshall be accompanied by exposure

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information. The Agency intends thatowners and operators who submittedPart B applications subsequent to thedate of enactment but prior to August 8,1985 must also submit exposureinformation because section 3019(a)requires that beginning on August 8,1985, each Part B application shall beaccompanied by exposure information.A contrary interpretation would create agap in the implementation of section3019 by not requiring exposureinformation from owners and operatorswho submitted Part B's between thedate of enactment and August 8, 1985.Such an interpretation would not bejustifiable in light of the fact that allowners and operators who submittedPart B's prior to the date of enactmentmust submit exposure information byAugust 8, 1985.

F. Delisting Procedures

The new amendments add aparagraph (f) to section 3001,establishing specific criteria andprocedures for delisting petitions. Thissubsection requires EPA to consideradditional factors, such as constituentsother than those for which the wastewas listed, if the Administrator has areasonable basis to believe that suchadditional factors could cause the wasteto be a hazardous waste.

This provision is intended to eliminatewhat both Houses of Congressperceived as a defect in the standardsused by EPA to evaluate delistingpetitions. The Senate noted that, "[t]heAgency's practice has been to consideronly the constituents given as theoriginal justification for the Agency'sdecision to list a waste." S. Rep. No. 284,98th Cong., 1st Sess. 33 (1983). Thispractice, however, does not ensure thatwastes which are delisted are nothazardous. EPA often could have listedwastes for other constituents than thoseused as the basis for the listing and citedin Appendix VII of Part 261. Apetitioner's waste could be non-hazardous with respect to the listedconstituents, and exempted fromregulation under recent EPA practices,yet still be hazardous due toconstituents not considered. Id. (To thesame effect, see H.R. Rep. No. 198, 98thCong., 1st Sess. 57-58 (1983).) Theamendments also require theAdministrator to provide notice and anopportunity for comment on theadditional factors considered beforegranting or denying a petition.

The statute forbids the granting of anynew temporary exclusions withoutnotice and comment as is currentlypermitted by § 260.22(m) of EPA'sregulations, since the statute calls fornotice and comments on all petitions

evaluated after enactment of theamendmbnts. 24 A provision in an earlierversion of the House bill permitting the

.continued issuance to temporaryexclusions, if notice and comment wasprovided, was eliminated from the finallegislation. See H.R. Rep. No. 198, at 13,58.

The amendments further set deadlinesfor Agency action on all future petitionsreceived. To the maximum extentpracticable, the Agency must propose adecision within twelve months ofreceiving a complete application 25 andgrant or deny a petition within twenty-four months. Unlike the self-executingelimination of previously grantedtemporary exclusions noted below, thisprovision does not mean that thepetitions are granted by operation of thestatute if the Agency has not actedwithin the time limits specified.

The statute also places a time limit onthe effectiveness of any temporaryexclusions granted before its enactment.Beginning 24 months after enactment,wastes covered by a petition grantedsuch a temporary exclusion no longerwill be exempted from RCRAregulations, unless a final decisiongranting or denying the petition, afternotice and comment, has been issued.This provision reflects the desire ofCongress to eliminate the possibilitythat a delisting petition will betemporarily granted, without notice oran opportunity for comment, and thennot reviewed for a final determinationwithin a reasonable time. See, e.g., S.Rep., supra, at 33.

The new delisting standard and theneed for notice and comment require anumber of regulatory changes. TheAgency has changed the substantivestandard on which delisting petitionsare reviewed to conform to the statutorymandate. In addition, today's regulationeliminates the temporary exclusionprovision in the Agency's regulations.

- The Agency believes that the statute prohibitstemporary exclusions as previously granted by EPA(i.e., exclusions, without notice and comment, basedon a substantial likelihood that a petition eventuallywould be granted). Exclusions still may be granted,however, without notice and comment if therequirements of the good cause exception, 5 U.S.C.§ 553(b)(3)(B). are met.

2A complete application includes both theoriginal dubmission by the petitioner and anysubsequent information requested by EPA in orderto determine whether the waste contains anyadditional constituents which could cause it to be ahazardous waste. Congress required the Agency toconsider, under certain circumstances, factors otherthan those for which the waste was listed. EPA doesnot believe that Congress would have expected theAgency to make this determination withoutadequate information. EPA therefore concludes thatthe time limits incorporated in the amendment beginto run only after the Agency has received allinformation necessary to determine whether thewaste is hazardous.

1. The New Substantive Standard

The primary change in 40 CFR 260.22made in this regulation is to modify thesubstantive standard on which delistingpetitions are evaluated, #h accordancewith the statute. The current regulationrequires that the petitioner demonstrateto the satisfaction of the Administratorthat the waste produced does not meetany of the criteria under which thewaste was listed and notes that a wasteso excluded still may be a hazardouswaste if it fails any of the characteristicsin Subpart C of Part 261 (40 CFR260.22(a)). Today's regulation retainsthese provisions, but requires inaddition that, before a waste may beexcluded, the Administrator determinethat the waste does not satisfy anyfactors other than those for which thewaste was listed or that there is noreasonable basis to believe that suchadditional factors could cause the wasteto be hazardous. This provision codifiesthe two-prong test mandated by theamendments, i.e., the Agency mustconsider both the factors for which thewaste was listed (in all cases) and thefactors and constituents other thanthose for which the waste was listed (incases where the Administrator has areasonable basis to believe that theseadditional factors could cause the wasteto be hazardous).

2. No New Temporary Exclusions

The regulation eliminates theprovision authorizing temporaryexclusions, which were issued withoutprior notice and comment when theAdministrator found that there was asubstantial likelihood that an exclusionwould be granted. 40 CFR 260.22(m).Dissatisfaction with the lack of noticeand comment was a major impetus forthe revision of the delisting procedures.See, e.q., S. Rep., supra, at 33.

Today's regulation require notice andan opportunity for comment before adelisting may be granted. 26 The statutemandates notice and an opportunity forcomment on the additional factors(including additional constituents)which the Agency now must consider,before granting or denying a petition.EPA regulations already require noticeand comment for petitions, other thantemporary exclusions. See 40 CFR260.20. These provisions applied topetitions which addressed only the

"5The Agency believes that the statute does notprohibit use of the APA provision permitting finalagency action without notice and comment if thereis good cause. See 5 U.S.C. 553(b)[3)(B). There is nosuggestion in the language of the amendment or thelegislative history that Congress meant to overrulethe APA. These regulations also permit the Agencyto use the good cause exception.

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constituents for which the waste waslisted. Congress wanted to ensure thatnotice and comment would continue tobe required for the expanded petitions,addressing not only the listedconstituents, but any additionalconstituents as well. The Agencyconcludes that the Act mandates noticeand comment for all petitions, and forthe entire petition, and the regulation soprovides.

G. Research, Development, andDemonstration Permits

The HSWA adds section 3005(g)which provides EPA with authority toissue permits for research, development,and demonstration treatment activities.The amendment grants EPA authority toissue permits independent of existingregulations relating to hazardous wastetreatment processes. EPA is directed toinclude certain provisions in each permitas well as any other requirementsdeemed necessary to protect humanhealth and the environment. Withseveral exceptions, the amendment alsoallows waiver or modification of thepermit application and permit issuancerequirements of the general permitregulations.

EPA has codified this new authority in§ 270.65 of its regulations. Thisregulation has four basic provisions.

Paragraph (a) of the regulationauthorizes the Administrator to issueRD&D permits for innovative andexperimental treatment technologies orprocesses for which permit standardshave not been established under Part264 or 266. The regulation authorizes theAdministrator to establish permit termsand conditions for the RD&D activitiesas necessary to protect human healthand the environment. The statutoryamendment allows the Administrator toselect the appropriate technicalstandards for each RD&D activity to bepermitted. EPA is required to addressconstruction (if appropriate], limitoperation for not longer than one year,and place limitations on the waste thatmay be received to those types andquantities of wastes deemed necessaryto conduct the RD&D activities. Thepermit must include the financialresponsibility requirements currently inEPA's regulations and other suchrequirements as necessary to protecthealth and environment. Other possiblerequirements include, but are not limitedto, provisions regarding monitoring,operation, closure, remedial action, andtesting and providing information. EPAmay decide not to permit an RD&Dproject if it determines that the project,even with restrictive permit terms andconditions, may threaten human healthand environment.

Paragraph (b) provides that theAgency will generally follow thepermitting procedures of Parts 124 and270. As authorized, EPA reserves theright to waive or modify theseprocedures to expedite permitting aslong as human health and theenvironment are protected. However,EPA will not waive the publicparticipation procedures of Part 124established under § 7004(b)(2) of RCRA,nor will EPA waive the financialresponsibility requirements currently inEPA regulations.

Paragraph (c) implements thestatutory provision that authorizes theAdministrator to order an immediatecessation of any operations at thefacility if necessary to protect humanhealth or the environment.

Under paragraph (a) and the statutoryamendment, permits are initially to beissued for a maximum period of oneyear of operation. The legislative historyprovides that the permit is to be issuedfor a maximum of 360 days of operation.The 360-day time period does not referto calendar days, to periods ofconstruction, or to operation usingmaterials other than hazardous waste.(See 129 Cong. Rec. H8150 (daily ed.October 6, 1983.) The permit may berenewed up to three times for periods ofnot more than one year of operatingdays as provided in paragraph (d). EPAhas also amended § 270.10(a) to providethat procedures for issuing andadministering RD&D permits aregoverned exclusively by § 270.65.

Congress made clear that RD&Dpermits could cover a variety ofexperimental activities, but suggestedseveral limitations on EPA authority.The legislative history provides threeexamples of the types of RD&Dactivities which may be covered by thissection. [See 129 Cong. Rec. H88160(daily ed. October 6, 1983)]. First, acommon experiment involves anindividual or company who hasdesigned on paper or in the laboratoryan innovative treatment system forhazardous waste. In order to determinewhether this new technology istechnically feasible, a small pilot-scaleunit may be constructed and operatedfor purposes of evaluation. If this issuccessful, a larger but still pilot-scale,experimental unit may be constructed todemonstrate the reliability, economicfeasibility, and environmental impactsof the process.

A second type of hazardous wastemanagement experiment involves anequipment vendor and a waste-generating or processing customer.Vendors often custom prepare storageand processing equipment, that is, tanks,

incinerators, etc., based on a customer'sindividual needs, and this may requireone or more tests with a pilot facilityusing samples of the customer's waste.And third, a manufacturer or user of aparticular commercial treatment processmay want to improve its efficiency oreffectiveness or reduce environmentalimpacts. This may involve theconstruction of a pilot-scale treatmentunit that will be operated in anexperimental mode to test new wastesor alternate operating conditions. Thislist of examples is not an exclusive listof the activities that may be permitted.

Congress also explained how itexpected EPA to operate in issuingRD&D permits. Under this section, EPAmay permit (1) treatment technologies,processes, methods, or devices that areinnovative and experimental (2) for thesole purpose of gathering information toevaluate their technical or economicfeasibility. These factors are discussedbelow.

First, innovative and experimentaltreatment technologies or processesintended to be covered by this section ata minimum include experimentation anddemonstration with technologies thathave never been utilized in commercialapplication, as well as furtherrefinement and development orperformance testing of technologies that,in some form, have been operated in acommercial capacity.

Second, under a permit, EPA mayallow the experimental treatmentactivitlEs and associated storage. Suchpermits will not authorize disposal ofhazardous waste. The disposal ofhazardous waste must occur at a facilitywhich has received a RCRA permitunder Part 264 or which has interimstatus. RD&D permits may only beissued for the purpose of demonstrationor evaluation of the economic ortechnical feasibility of a particulartreatment technology, process, method,or device and associated storage. If thewaste management activity related tothe technology, unit, process, or deviceis used at any time to store or treatwaste for any reasons other than theconduct of a treatment experiment, itmust be permitted and operated inaccordance with all applicable sectionsof 40 CFR Parts 264 and 266. Id.

H. State Authorization

HSWA made several significantchanges regarding the authorization andimplementation of State hazardouswaste programs. Part 1 of this sectiondiscusses the new, dual State-Federalregulatory program in authorized Statesand some conforming changes to theState authorization regulations in Part

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271 necessitated by the HSWA. Part 2discusses section 3006(f), a newprovision requiring authorized States tomake information about hazardouswaste facilities available to the public tothe same extent that EPA would makethe same information publicly available.Part 3 discusses the extension of theexpiration date for interim authorizationunder the 1976 RCRA. Prior to theHSWA, responsibility for the RCRAprogram in a State with interimauthorization would have reverted toEPA on or before January 26, 1985 if theState had not yet obtained finalauthorization. Part 4 discusses the neWtype of interim authorization under theHSWA and the requirements Statesmust meet to obtain and retain finalauthorization ("moving target" andprogram revisions).

The preamble to the proposed rule tobe published as a companion to this ruleaddresses additional issues pertainingto State authorization under the HSWA.Both preambles should be read together.

1. Applicability of Today's Rule inAuthorized States

New section 3006(g) of RCRAprovides that any requirement orprohibition which is applicable to thegeneration, transportation, treatment,storage, or disposal of hazardous wasteand which is imposed under the 1984Amendments shall take effect in eachauthorized State on the same date assuch requirement or prohibition takeseffect in non-authorized States. TheAdministrator is directed to carry outsuch requirements or prohibitionsdirectly in an authorized State until theState is granted authorization to do so.This includes the authority to issue ordeny permits or portions of permitswhere the State is not yet authorized toimplement the requirements andprohibitions established by theamendments. (Section 227.)

These amendments dramatically alterthe existing Federal-State relationshipunder section 3006 of RCRA. Before theamendments, pursuant to sections3006(b) or 3006(c), States with finalauthorization or all phases of interimauthorization administered theirhazardous waste program entirely inlieu of EPA. Changes to the FederalSubtitle C program did not take effectautomatically in such States; Statesneeded to revise their programs toinclude those changes and receive EPA'sapproval. Further, EPA could not issuepermits for any facilities covered by theState permitting program which EPAhad approved. See 40 CFR 264.1(0,271.1(0, 271.121(n.

In contrast, the new amendmentscreate a dual regulatory system in

authorized States. Because of newsection 3006(g), the requirements andprohibitions stemming from theamendments take effect immediately inall States, regardless of any lessstringent State statute, regulation, orpermit. For example, even though afacility may now hold a State RCRApermit allowing it to dispose of bulkliquid waste in a lined landfill, RCRAprohibits it from doing so after May 8.1985. (See section V.A.1. of preamble.)And, even though authorized Stateshave previously promulgated theirpermit application requirements,facilities in all States will have tocomply with new Federal permitapplication requirements in Part 270.

EPA reviewed today's rule todetermine which provisions in it are"requirements or prohibitions" that areapplicable to the generation,transportation, treatment, storage, ordisposal of hazardous waste. EPAconcluded that all of the provisions inthe 'rule are requirements orprohibitions. They therefore take effectin authorized States and are Federallyenforceable.

The Agency started its analysis withthe Conference Report which specifiedthat certain requirements andprohibitions should take effectimmediately in all States. (130 Cong.Rec. H11134 (daily ed. Oct. 3, 1984).)With the exception of the "liquids inlandfills" provision, these provisionswere in the Senate version.of the HSWAand appear in 3001(d)(3), (5), 3004(c), (1),(o), (r), (u), 3005(c)(3), 3007(e)(1), 3015,and 7010, as enacted. In addition, EPAconcluded that the household wasteexclusion in section 3001(i), the delistingprocedures in section 3001(f), therequirements concerning correctiveaction and ground-water monitoring insections 3004(p), (v), 3005(i), theprohibition concerning salt domes insection 3004(b), the ban on hazardouswaste in cement kilns in section3004(q)(2)(C), the requirement for healthassessments in section 3019, thepreconstruction ban in section 3005(a),the termination of interim status andextension of interim status requirementsin section 3005(e), and the wasteminimization requirements in section3002(a)(6), (b) and 3005(h) arerequirements and prohibitions. EPA alsoconcluded that the requirementsconcerning hazardous waste exports insection 3017(g) were requirementsconcerning the generation andtransportation of hazardous waste.

Finally, the Agency analyzed thestatute to determine whether EPA'sauthority to issue research anddevelopment permits under section3005(g) is a requirement concerning the

treatment of hazardous waste. In doingso, EPA considered whether section3005(g) is the type of provision thatCongress would have wanted EPA to beable to implement directly in authorizedStates pursuant to section 3006(g). .EPAconcluded that section 3005(g) wasintended to be implemented by EPA inthe case of an authorized State whichdoes not have State legal authority toissue permits to these types of facilities.While the language in section 3005(g) isdiscretionary ("The Administrator mayissue a research, development, anddemonstration permit * * -.), EPA doesnot believe that Congress, in amendingthe statute to encourage new andinnovative technologies and to allowpermitting before section 3004 standardsare developed, intended to preclude theissuance of permits to research anddevelopment facilities in authorizedStates.

Thus, pursuant to 3005(g) and 3006(g),EPA is able to issue a research anddevelopment permit, in consultationwith the State, to encouragedevelopment of the innovativetechnology. However, as discussed next,an EPA permit could not override morestringent State requirements governingthe facility or precluding its constructionor operation without a State permit.

Some of these new requirements andprohibitions provide for variances andexclusions. For example, exemptionsfrom liner and ground-water monitoringrequirements are available under certainconditions. See, e.g., § 264.90(b)(2),§ 264.221(d). In addition, facilitiesconstructed to incinerate PCBs pursuantto EPA's approval under section 6(e) ofthe Toxic Substances Control Act areexempted from the preconstruction banin new 40 CFR 270.10(f)(1). See section3005(a) of RCRA, as amended.

The Agency considered whether avariance or exclusion from such arequirement was itself a "requirement"or "prohibition" of the Act. EPAconcluded that the entire provision on asubject matter-such as minimumtechnological requirements-should betreated as the "requirement" or"prohibition" since all the subparts arerelated. However, section 3009 of RCRAand existing 40 CFR 271.1(i) and 271.121provide that nothing in RCRA prohibitsStates, political subdivisions, orlocalities from imposing more stringentrequirements than those in EPA's RCRAregulations. Thus, any State or localrequirement that is more stringent thana requirement or prohibition in today'srule remains in effect under State orlocal law.

As a practical matter, this means thatfacilities in authorized States may not

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28730 Federal Register / Vol. 50, No. 135 / Monday, July 15, 1985 / Rules and Regulations

be able to benefit from the Federalexclusions and variances as wouldfacilities in non-authorized States unlessand until the authorized State amendsits more stringent regulations orenabling authority. That result iscompelled by the Act; nothing in theamendments or legislative historysuggests any Congressional intent tooverride section 3009 or preemptmorestringent State requirements. Thus, theuniverse of the more stringentprovisions in the authorized Stateprogram and today's rule defines theapplicable requirements, Each memberof the regulated community mustfamiliarize himself with both the Stateand Federal regulations to be assuredthat he is in compliance with allapplicable requirements. EPA mayenforce any violation of the authorizedState program, the HSWA, or today'srule; a State may, of course, enforceviolations of its requirements regardlessof authorization status.

The Agency also wishes to emphasizethat future regulations implementing therequirements and prohibitions in theHSWA will take effect in authorizedStates at the same tine that they takeeffect in non-authorized States. Forexample, EPA may publish additionalregulations further defining the doubleliner requirement in today's rule. Eventhough a State may receiveauthorization for today's double linerrequirements, any new EPA regulationon double liners will be applicable inthat State until the State receivesauthorization for the newly-amendeddouble liner requirement. Thus, a State'sauthorization status may change inresponse to further implementation ofthe HSWA. The Federal Register noticespromulgating new requirements willexplain their applicability in authorizedStates.

EPA has made various changes to Part271 to reflect EPA's new authoiity inauthorized States. In § 271.1(a), areference to section 3t06(f] of RCRA hasbeen added since a new Slateauthorization requirein-nt appears insection 3006(o. Sections 271.1(1), 271.19,271.121(, and 271.134 have beenamended to reflect the Administrator'snew authority under sections 3006(c)and (g) to issue permits in authorizedStates. Without these changes theregulations would continue to prohibitEPA from permitting facilities inauthorized States.

A new section, 271.1(j), has beenadded to identify the Federal programrequirements and prohibitions that arcpromulgated or take effect pursuant tottSWA. The Agency determined that itwas extremely important to clearly

specify which EPA regulationsimplement HSWA since theserequirements are immediately effectivein authorized States. These HWSAprovisions also impact whether interimor final authorization is available toStates as discussed in detail in followingsections of this preamble. Therefore, theAgency is creating a table in § 271.1(j)that lists the HSWA regulationspromulgated to date (specifically, theJanuary 1985 dioxin waste listing andtoday's final codification rule). Futureregulations promulgated under theauthority of the HSWA will be added tothe table in § 271.1(j).

Sections 271.3(a) and 271.121(c)(3)have been amended to reflect section3006, as amended by the HSWA, andsection 3009. They now describe therespective Federal and State roles inadministering Subtitle C and indicatethat all of the HSWA requirementsidentified in § 271.1(j) take immediateeffect in authorized States. In addition,§ 271.24 and § 271.138 have been added,and § 271.21(e)(1)(i) and § 271.121(a)amended, to rufer to the availability ofinterim authorization under the HSWA.

EPA also amended § § 264.1(.) and205.1(c)(4) to clarify that the regulatorymodifications to Parts 264 and 265 madeby today's rule apply to the regulatedcommunity in authorized States until aState receives authorization to carry outthe new requirements. This change isneceosary to reflect seciion 3C06, asamended, and is consistent with theother ameadinents to Part 271.

2. Public Availability cf Informatioa

Section 3006(o) provides thatinformation cbtained by authorizedStates regarding facilities and sites forthe treatment, storage, and disposal ofhaz,.rdous waste must be madeavailable to the public in substantiallythe same manner, and to the samedegree, as would be the case if EPAwere ca.-rying out the RCRA program inthe State. Previous to the HSWA, theonly EPA requirement in this area wasthat the name and address of a permitapplicant could not be withheld from thepublic. So 40 CFR 270.12(b); 271.14(1.

Initially, EPA has interpreted "insubstantially the same manner" insection 3006(f) to refer to the proceduresEPA employs in deciding how and whento release information under theFreedom of Information Act (FOIA), 5U.S.C. 552. EPA has interpreted "to thesame degree" to refer to the type andquantity of information that is releasedunder EPA's FOIA regulations. Further,the Agency has concluded thatinformation regarding facilities and siteswould at least cover informationrelating to permitting, compliance, and

enforcement, and include informationgathered under section 3007 of RCRA (ora State analogue]. Section 271.17(c) hasbeen amended to address section3006[f).

EPA's procedural and substantiveregulations implementing FOIA andgoverning the treatment of confidentialbusiness information are set forth in 40CFR Part 2. Any State requirementswhich are equivalent to thoseregulations will satisfy section 3006(f).While the use of "substantially the samemanner" in section 3006(f) seems to offerthe opportunity for greater flexibilitythan an equivalent standard, EPA hasnot had the opportunity to identifywhether different standards are feasible.Thus, today's final rule does not gobeyond the statutory language, therebyallowing case-by-case judgments aboutwhether a State has satisfied section3006(f).

Another issue concerns the effectivedate of the section 3006(f) requirements.The HSWA does not clearly indicatewhether a State may receive finalauthorization after the date ofenactment if its application does notdemonstrate equivalence to section3006(f). Section 3006(o could be read asrequiring any State which did notreceive final authorization by the date ofenactment to demonstrate compliancewith the new requirement in order to beauthorized. EPA rejects that readingbecause the Agency believes it isinconsistent with the statute as a wholeani the legislative intent.

Secticn 225 of the amendmentsspecifically amended section 3006(b) toallow the Administrator to authorize aState program that is not fullyequivalent to the Federal program. Thatamendment was intended to assure thatlast minute changes to the Federalprogram which the State did not havetime to adopt would not prevent anotherwisc qualified State from obtainingfinal authorization. Further, theConference Report, while ambiguous,does stress the need to allow Statessufficient time to amend their programsto implement section 3006(f). 130 Cong.Rec. H11134 (daily ed. Oct. 3, 1984). TheReport, in fact, specifically refers toEPA's regulations in 40 CFR 271.21(e)concerning the phase-in of new Federalrequirements.

Accordingly, EPA concludes thatStates now applying for finalauthorization are not legally required tohave an analogue to section 3006(f(1).Such States, and States which havealready received final authorizationwithout demonstrating compliance withsection 3006(f), are required to revisetheir programs to demonstrate



compliance pursuant to the timeschedules in § 271.21(e). [See part 4 ofthis preamble which summarizes§ 271.21(e). The Agency intends topropose a rule which describes§ 271.21(e) in depth.]

EPA notes that interim authorization,as described in sections 227 and 228 ofthe 1984 amendments, is not availablefor this new requirement. Congressmade section 3006(f) an independentrequirement that is subject to thestandard in that provision, and not to atest of "equivalency" or "substantialequivalency." Thus, any State with finalauthorization or applying for finalauthorization to carry out the RCRAprogram must demonstrate fullcompliance with section 3006(,) withinthe timeframes specified in § 271.21(e).States applying for interim authorizationneed not address this provision.

3. Extension of Interim AuthorizationExpiration Date

Section 3006(c) of RCRA, as enactedin 1976, allowed EPA to grant "interimauthorization" to a State program thatEPA determined was "substantiallyequivalent" to the Federal program. EPAestablished a phased approach tointerim authorization: Phase 1, coveringthe EPA regulations in 40 CFR Parts 260-263 and 265 (universe of hazardouswastes, generator standards, transporterstandards, and standards for interimstatus facilities) and Phase II, coveringthe EPA regulations in 40'CFR Parts 124,264, and 270 (procedures and standardsfor permitting hazardous wastemanagement facilities).

Phase II, in turn, has threecomponents. Phase IIA covered generalpermitting procedures and technicalstandards for containers, tanks, surfaceimpoundments, and waste piles. PhaseIIB covered incinerator facilities, andPhase IIC addressed landfills and landtreatment facilities. Some States wereauthorized only for Phase I; othersreceived interim authorization for allPhase I and II components.

By statute Phase I and II interimauthorization were to expire after thetwenty-four month period beginning onthe date six months after the date ofpromulgation of regulations undersection 3002 through 3005. (Thatexpiration date was January 26, 1985.)However, Congress amended section3006(c) to provide that interimauthorization under the 1976 Act ends"no later than January 31, 1986."

FPA has amended § 271.122(b)(1) toreflect the new statutory date. TheRegional Administrator's existingauthority in § 271.137(a) to extend thedeadlines in section 271.137(a) toJanuary 31, 1986 may be used if the

"good cause" finding in that provisioncan be made.

Under § 271.137(a), State programswhich rcceived interim authorization foronly part of the RCRA program weresupposed to revert to EPA by a certaindate if the State failed to apply forinterim authorization for all componentsof the interim authorization program orfor final authorization. However, theRegional Administrator was allowed toextend this deadline for "good cause,"thereby avoiding reversion.

When EPA promulgated § 271.137(a),the Agency did not anticipate that thisdeadline could extend to January 31,1986. However, EPA believes it isappropriate for the RegionalAdministrator to use § 271.137(a) forthat purpose if "good dause" exists.Otherwise, States which are diligentlyproceeding toward final authorizationwould lose their interim authorizationbecause of their inability to obtain finalauthorization before the January 1986statutory deadline.

4. Authorzation Under the HSWA:Application and Revision Requirements

Congress provided in section3006(g)(2) that any State which has beengranted interim or final authorizationbefore the enactment of the HSWA mayapply for interim authorization to carryout any requirement of the HSWAwhich takes effect in authorized States(i.e,, today's rule and subsequent rulesimplementing the HSWA). If theAdministrator finds that the Staterequirement is substantially equivalentto the Federal requirement, he isdirected to grant the State interimauthorization to carry out therequirement in lieu of EPA. Thus, as inthe 1976 RCRA, States have anopportunity for a developmental periodof interim authorization before they arerequired to be equivalent to and no lessstringent than the HSWA program.Several significant issues have arisenconcerning implementation of section3006(g) and its relationship to thedeadlines States must meet to obtainand maintain final authorization. Someof these issues are discussed here andothers are discussed in the preamble tothe proposed rule to be published in thenear future.

To minimize confusion, EPA has used"1976 interim authorization" to refer toPhase I and Phase II interimauthorization under RCRA as enacted in1976, and "1984 interim authorization" torefer to the new type of interimauthorization under the HSWA.Occasionally, "HSWA interimauthorization" is substituted for 1984interim authorization. "

a. Impact of HSWA on ExistingAuthorized State Programs. One issueconcerns the impact of the amendmentson authorized States which haverequirements that are more stringent orbroader in scope than those required byPart 271 before the HSWA. At the timesome States received 1976 interimauthorization or final authorization, theState program may have includedprovisions the State believes arestibstantially equivalent (or equivalent)to some of the requirements in today'srule. The question has arisen aboutwhether such States automatically have1984 interim authorization for thoserequirements. EPA does not believe thestatute allows this result.

Section 3006(g)(2) specifically allowsan authorized State to submit anapplication demonstrating that its"existing program contains (or has beenamended to inclule)" substantiallyequivalent requirements. If States werealready authorized with respect to thoserequirements, there would have been noneed for the reference to existingprograms in the above provision. Thus,the statute contemplates that any Stateseeking authority to administer the 1984amendments in lieu of EPA must submitan application for EPA's approval. Untilthe application is approved, EPA wouldenforce the Federal requirement.

It could be argued that this aspect ofthe amendments imposes anunnecessary burden on the States. Infact, submission of a new applicationserves several important functions.When the State submitted its originalapplication for 1976 interimauthorization or final authorization, theState's Attorney General would nothave been able to certify substantialequivalence (or equivalence) to the newamendments since the amendments hadnot yet been passed. For the samereason, EPA could not have determinedwhether the State's regulations properlyimplemented the amendments. Finally,the public would not have had theopportunity to comment on whether theState's requirements were substantiallyequivalent (or equivalent).

In sum, major elements of theauthorization process have not beensatisfied for those States. Accordingly,they must still submit an application toreceive 1984 interim authorization.However, the application need not belengthy or complicated. While anAttorney General's statement willalways be required, little explanationwill be required where the State'sauthority is clear. Further, all revisionswill not require addenda to the programdescription or a memorandum of

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agreement. EPA will issue furtherguidance in this area.

b. Applications and programrevisions: deadlines and requirements.The relationship of 1984 intermauthorization to final authorizationraises several issues relating to§ 271.21(e). Section 271.21(e) (asamended, 49 FR 21678, May 22, 1984) .specifies which regulations a State mustadopt to receive final authorization("moving target") and containsdeadlines by which States with finalauthorization must modify theirprograms to adopt new 'Federalrequirements.

In summary, any State applying forfinal authorization for the pre-HSWARCRA program after November 8, 1985must have authority for those HSWAstatutory provisions taking effect onNovember 8, 1984, and any Stateapplying for final authorization afterJuly 15, 1986 must also have authority forthe final rule appearing today. However,a State program applying for finalauthorization before those dates neednot have the authority described above.

Any State with final authorization,regardless of the date it received or willreceive final authorization, must modifyits program by November 8, 1985, toreflect the HSWA provisions takingeffect on November 8, 1984 if onlyregulatory changes are necessary tochange the State program, or byNovember 8, 1986 if statutory changesare needed. Similarly, such States mustmodify their programs to reflect today'sfinal rule by July 15, 1986 or July 15, 1987depending on whether regulatory orstatutory changes are necessary.Extensions of up to six months for thesedeadlines are available in certaincircumstances.

The above interpretation reflectsEPA's legal construction of § 271.21(e)as revised today to reflect HSWA. Inaddition, the Agency is proposing somemajor changes to § 271.21(e) which willbe discussed at length in the preambleto the proposed rule to be published inthe near future. If adopted, many of thedeadlines presented here will change.

b.1. States Applying for FinalAuthorization. Section 3006(b) of RCRAwas amended by HSWA to providemore specificity with regard to therequirements that apply to a Statesubmitting an application for finalauthorization. It allows EPA to grantfinal authorization to a State programwhich is not equivalent to the Federalprogram in effect at the time ofauthorization, provided that the Stateprogram is equivalent to the Federalprogram in effect one year prior tosubmission of the State's application forfinal authorization.

Section 271.21(e) currently requires aState application to be reviewed basedon the Federal program existing 12months prior to application submissionunless the State has made a good faitheffort to meet the 12 month deadline andapplies for an extension. Because theopportunity for an extension in current§ 271.21(e)(1)(ii) would allow the Stateprogram more time than provided inSection 3006(b) to adopt changes to theFederal program we are deleting thatprovision.

EPA is today adding a new § 271.24 tomake clear that States which apply forauthorization after November 8, 1984,may apply for interim authorization forthe HSWA provisions. Section 3006(b)(1)of RCRA, like existing § 271.21(e)(1),uses equivalence as the legal standardfor final authorization, suggesting that aState applying for final authorizationafter November 8, 1984, would have toapply for final authorization for both thepre-HSWA RCRA program and post-HSWA requirements. However, section3006(q) offers States the opportunity toapply first for interim authorization forthe new amendments. The 1984 interimauthorization, like 1976 interimauthorization, allows a State todemonstrate that its program is'substantially equivalent" to EPA's,rather than "equivalent to and no lessstringent than" EPA's.

EPA reads the two statutoryprovisions together to offer Statesapplying for final authorization for thepre-HSWA program the opportunity toqualify for either 1984 interimauthorization or final authorization tocarry out the new amendments. Acontrary reading requiring States to beequivalent to the new amendmentswould effectively deny them anyopportunity to receive 1984 interimauthorization-a result EPA has noreason to believe Congress intended.

A State which does choose to meetthe "moving target" deadline by seeking1984 interim authorization for portionsof its program will have to obtain finalauthorization for those portions at alater date. That date has not beendetermined yet because, under thestatute, it will be the same date thatHSWA interim authorization expires.That is, if HSWA interim authorizationwere to expire, for example, on February1, 1990, States with HSWA interimauthorization would have to obtain finalauthorization by that date. In theproposed rule that will appear in theFederal Register, EPA discusses variousoptions for the expiration date of interimauthorization under HSWA.

Section 271.21(e) is not expected toaffect the application process for Stateswhich do not yet have final

authorization for the pre-HSWA RCRAprogram. In order for States to receivefinal authorization before the expirationof interim authorization under the 1976RCRA, they will have to submit theirapplications to EPA by this summer-several months before the time theywould be required to adoptrequirements based on the HSWAprovisions that took effect uponenactment of today's rule. Thus, theHSWA should not delay theauthorization of any State whichplanned to receive final authorization byJanuary 31, 1986.

States applying for final authorizationare not, however, relieved of theobligation to adopt regulations based ontoday's rule. To the contrary, thoseStates must also proceed to adopt Stateanalogues to the HSWA provisions thattook effect on November 8, 1984 andtoday's rule. States must read § 271.21(e)carefully; because of the deadlinesdiscussed there, it is possible that aState will be required to have completedits program revisions by about the sametime it expects to receive finalauthorization. It should be noted,however, that EPA will propose majorchanges to § 271.21(e) that would changeor suspend many of the deadlinesdiscusged above. The preamble of theproposed rule will describe the proposedamendments in detail.

b. 2. States with Final Authorization.An analogous change has been made to§ 271.21(e)(2) that provides for interimauthorization for States that have finalauthorization for the pre-HSWA RCRAprogram. As previously written, theseprovisions would have required Stateswhich already have final authorization,or which will receive final authorizationbefore expiration of the § 271.21(e)(1)deadline for making changes, to modifytheir programs within one or two yearsof this rule to become equivalent to theFederal program. Since Congress hasnow provided the opportunity forinterim authorization for newrequirements under the HSWA, theAgency has concluded it is alsonecessary to allow States the option ofcomplying with those deadlines bymodifying their programs to becomesubstantially equivalent to the FederalHSWA program (the test for interimauthorization). Retaining the formerprovisions would have diminished theutility of 1984 interim authorization tosuch an extent that the statutorypurpose would not have been achieved.As explained before, however, Stateswhich obtain 1984 interim authorizationwill be required to obtain finalauthorization subsequently.

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b. 3. All States. Whether a State isapplying for final authorization or isalready authorized, it is, of course,allowed to submit program revisionsprior to the applicable § 271.21(e)deadline. A State need not seekauthorization for all provisions at once.Indeed, States should apply now forinterim or final authorization for anymajor portions of today's rule for whichthey already have legal authority.However, for those areas in which aState needs to amend its regulations orstatute, EPA strongly encourages theState to submit one program revisionapplication and not several piece-mealapplications. This consolidation of Stateprogram revisions would minimizerepetitive State and EPA involvement inthe approval process.

States should note that they may notapply for final authorization toimplement requirements of the HSWA ifthey have only interim authorization forthe pre-HSWA RCRA program. Stateswith interim authorization for allcomponents of pre-HSWA program mayapply for and be granted interimauthorization for the new requirements.However, § 271.138(b) specifies that ifthe State fails to receive finalauthorization for the pre-HSWAprogram by January 31, 1986, its program(both pre-HSWA and HSWA) will revertto EPA on that date.

Finally, States should be aware thatthe deadlines for obtaining finalauthorization in § 271.21(e) have notchanged regarding regulatoryamendments unrelated toimplementation of HSWA. For example,States must adopt regulations equivalentto the recently promulgated redefinitionof solid waste (50 FR 614, January 4,1985) within the one- or two-yeardeadline specified in § 271.21(e); interim _authorization is not available. WhenEPA promulgates new RCRAregulations, the Agency will distinguishbetween those that implement HSWArequirements and those that do not.

I. Hazardous Waste Exports

1. Today's Amendments

As part of the HSWA, Congressenacted section 3017 governing theexport of hazardous waste. Generally,section 3017 prohibits the export ofhazardous waste unless the personexporting such waste: (1) Providesnotification to the Administrator; (2) thegovernment of the receiving country hasconsented to accept the waste; (3) acopy of the receiving country's writtenconsent is attached to the manifestwhich accompanies the shipment; and(4) the shipment conforms to the termsof the consent.

In lieu of meeting the aboverequirements, a person may exporthazardous waste if the United Statesand the government of the receivingcountry have entered into an agreementand the shipment conforms to the termsof the agreement. Section 3017(a).Subsections (d) and (e) establishprocedures involving the Administratorand the Secretary of State for obtainingthe consent of the receiving country,while subsection (f) discussesprocedures for international agreements.Subsection (c) requires any personintending to export hazardous waste tonotify the Administrator before theshipment leaves the United States andspecifies the information to be includedin such notification. Pursuant tosubsection (b), the Administrator isrequired to promulgate regulationsnecessary to implement this section byNovember 8, 1985. Finally, Congressamended section 3008 of RCRA toprovide criminal penalties for knowinglyexporting hazardous waste without theconsent of the receiving country or inviolation of an existing internationalagreement between the United Statesand the receiving country.

Section 3017 of the HSWA containsone additional requirement with whichexporters must comply immediately:section 3017(g) requires any personexporting hazardous waste to submitannually a report containing informationrelative to the wastes exported duringthat previous calendar year. EPA hastoday codified this requirement in theregulations by the addition of a newparagraph (d) to § 262.50 which providesthat any person who exports hazardouswaste must file with the Administrator,no later than March 1 of each year, areport summarizing the types, quantities,frequency, and ultimate destination ofall hazardous waste exported during theprevious year.

EPA is not publishing, at this time,amendments to codify the newnotification requirement of section3017(c) because it is a key element of thefull section 3017 exportation schemeand, in the context of that scheme,presents several interpretive issues bestresolved as part of the full set ofregulations required by section 3017(b)to implement the entire section. Section3017(c) requires notification "beforesuch waste is scheduled to leave thecountry" without specifying whether ornot separate notification is required foreach shipment of hazardous waste, andwithout specifying the timing of suchnotification. Since the notification is acritical part of the section 3017(d)scheme for obtaining the consent of thereceiving country, these issues should be

addressed in the full set of regulationsafter opportunity for notice andcomment. Accordingly, until November8, 1985, or until EPA promulgates newrequirements, persons exportinghazardous waste should comply withexisting notification requirements of 40CFR 262.50(b).

. Waste Minimization

As part of the HSWA, Congressamended section 3002 of RCRA to add anew subsection (b) requiring that,effective September 1, 1985, the manifestrequired by subsection (a)(5) mustcontain a certification by the generatorregarding efforts taken by him tominimize the amount and toxicity ofwastes generated. Section 3002(b)provides that a generator must certifythat he has a program in place to reducethe volume or quantity and toxicity ofwaste generated, to the degreedetermined by him to be economicallypracticable, and that the proposedmethod of treatment, storage, ordisposal is that practicable methodcurrently available to the generatorwhich minimizes the present and futurethreat to human health and theenvironment.

EPA is today publishing a revisedUniform Hazardous Waste ManifestForm (EPA Form 8700-221, the Appendixto Part 262, that includes a supplementalstatement in Item 16 containing thecertification required by the statutoryamendment. This revised form,containing the supplemental statement,must be used after September 1, 1985. Inaddition, EPA is amending theinstructions to the Appendix to Part 262to include instructions for the wasteminimization certification, Item 16. Theinstructions explain that any generatorgenerating greater than 1000 kilogramsof hazardous waste in any calendarmonth must sign (by hand] thecertification. The instructions also makeit clear that.certain small quantitygenerators of less than 1000 kilograms ofhazardous waste per month are exemptfrom the waste minimization manifestcertification requirement. Specifically,generators of acutely hazardous wastein quantities below those specified in§ 261.5(c) and generators of non-acutelyhazardous waste in quantities below1000 kg per month are exempt from thecertification requirement, except that ifthey accumulate on-site more than theabove threshold amounts they becomesubject to the full Subtitle C program(including the waste minimizationrequirements) for the incriement of wastethat exceeds these. See recodified§ 261.5(f)(2), § 261.5(g)(2), and "§ 261.5(h)(2). Small quantity generators

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are exempt from this requirement sincesection 3002(b) refers to "the manifestrequired by [section 30021 subsection(a)(5)" and the special manifestprovisions for small quantity generatorsare imposed by section 3001(d), notsection 3002(a)(5). See S. Rep. No. 284,98th Cong., 1st Sess. 67 (1983).

The legislative history to section3002(b) makes clear that Congress'objective in enacting this section was toencourage generators of hazardouswaste to voluntarily reduce the quantityand toxicity of waste generated. S. Rep.No. 284, 98th Cong., 1st Sess. 66 (1983).The amendment does not authorize EPAto interfere with or to intrude into theproduction process by requiringstandards for waste minimization;rather it specifically provides that thesubstantive determinations of-"economically practicable" and"practicable method currentlyavailable" are to be made by thegenerator in light of his own particularcircumstances. Thus, from anenforcement perspective, the Agencywill be concerned primarily withcompliance with the certificationsignatory requirement. Each generatorsubject to the waste minimizationrequirement should make a good faitheffort to minimize the amount andtoxicity of waste generated and to selecta means of treatment, storage, ordisposal most likely to minimize thepresent and future threat to humanhealth and the environment.

Section 3002 was further amended toinclude a new requirement thatgenerators submit, at least once everytwo years, a report describing theirefforts to minimize waste generation.EPA is thus amending § 262.41, whichcurrently requires submission of abiennial report, to add two additionalwaste minimization information itemsrequired by the recently enacted section3002(a)(6).

Congress also amended section 3005of RCRA to provide that, effectiveSeptember 1, 1985, RCRA permits for thetreatment, storage, or disposal ofhazardous waste on the premises wherethe waste was generated must contain acertification by the permittee regardingefforts taken to minimize the amountand toxicity of the generated wastes. Inorder to implement this amendment,EPA is today adding a new provision§ 264.73(b)(9) which provides that thepermittee record the waste minimizationcertification in the written operatingrecord kept at the facility. The Agency isalso amending § 264.70 to provide that§ 264.73(b)(9) is only applicable topermittees who treat, store, or disposeof hazardous waste on the site where

such waste was generated. In order tomake it clear that this certification isapplicable to permits, the Agency istoday amending § 270.30(j)(2) to providethat the requirement to retain theoperating record is a RCRA permitcondition.

K. Financial ResponsibilitySection 205 of the HSWA modifies

section 3004 of RCRA by addingsubsection (t) with respect to financialresponsibility requirements. EPA doesnot believe that any new regulations arerequired to implement section 3004(t).

Section 3004(t)(1) affirms the actionalready taken by EPA in establishingfinancial responsibility requirements in40 CFR Parts 264 and 265, Subparts H.While the trust fund and State-requiredmechanisms are not mentioned in thestatute as a means of providing financialassurance for closure and post-closurecare or corrective action, there is noevidence that Congress intended toeliminate either approach as apermissible mechanism; EPA believesthat the trust fund is a viable instrumentfor the assurance of closure and post-closure care or corrective action andthat the trust fund is particularly well-suited for small firms. The Agency usesstandby trust funds to collect moneyfrom surety bonds and letters of credit.Without the standby trust funds, allmonies collected from the instrumentswould revert to the U.S. Treasury andthe Agency would not be able to drawon those funds directly for closure andpost-closure activities. Accordingly, theAgency will continue to allow the trustfund to be used for financial assuranceunder Subpart H.

Section 3004(t)(2) provides for theassertion of a claim directly against theguarantor providing evidence offinancial responsibility in cases wherethe owner or operator is in bankruptcy,reorganization or arrangement pursuant-to the Federal Bankruptcy Code, orwhere judicial jurisdiction cannot beobtained over an owner or operatorlikely to be solvent at the time ofjudgment.

EPA interprets this provision to allowfor "direct action" against personsproviding insurance to owners oroperators under 40 CFR §§ 264.147 and265.147. While the working of the statuteallows direct action against"guarantors," defined in section3004(t)(4) to include persons whoprovide evidence of financialresponsibility under that section, theremarks of Senator Moynihan, whointroduced the direct action amendment,indicate only an intention to allowinjured parties to assert claims directlyagainst insurers where action against

the owner or operator would befruitless. 130 Cong. Rec. S9176 (daily ed.July 25, 1984).

The liability insurance requirementsin §§ 264.147 and 265.147 are designed toprovide assurance for injuries caused topersons and property by hazardouswaste disposal facilities. However, thereis no "injured party" perse when anowner or operator fails to comply withapplicable closure and post-closurerequirements. Only EPA can require thatsuch obligations be performed.Moreover, the mechanisms allowed byEPA to provide closure and post-closureassurance were crafted to ensure thatEPA could direct that the moniesassured by the mechanisms be appliedto closure and post-closure costs,whether or not the owner or operatorwas available or solvent. For thesereasons, the Agency does not believethat the direct action amendment hasany applicability to the mechanismsrequired for financial assurance ofclosure or post-closure care.

L. Underground Storage Tanks

The HSWA adds Subtitle I to RCRAto govern the regulation of undergroundstorage tanks that are not subject toregulation under Subtitle C. Section 9001of Subtitle I defines "undergroundstorage tanks" as any one orcombination of tanks (including anyconnected underground piping) whichhas ten percent or more of its volumebeneath the surface of the ground(including the volume of connectedpipes) and which is used to store"regulated substances." Regulatedsubstances include (1) any substancesdefined as "hazardous substances" insection 101(14) of the ComprehensiveEnvironmental Response, Compensationand Liability Act of 1980 (CERCLA) thatare not regulated as "hazardous wastes"under Subtitle C, and (2) petroleum,including crude oil or any fractionthereof. Expressly excluded from thedefinition of underground storage tanksare:

(1) Farm or residential tanks with acapacity of 1,100 gallons or less used tostore motor fuels for noncommercial use.

(2) Tanks used for storing heating oilfor consumptive use on the premiseswhere stored.

(3) Septic tanks.(4) Pipelines regulated under other

acts.(5) Surface impoundments, pits,

ponds, or lagoons.(6) Storm water and waste water

collection systems.(7) Flow-through process tanks.

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(8) Liquid traps or associatedgathering lines related to oil or gasproduction and gathering operations.

(9) Storage tanks located in anunderground area (such as a basement,cellar, mineworking, drift, shaft, ortunnel) if the tank is situated upon orabove the surface of the floor.

Subtitle I establishes a comprehensivescheme for the regulation ofunderground storage tanks. Some of itsprovisions require EPA to promulgaterequirements. Others go into effectwithout action on the part of EPA. Themajor provisions of Subtitle I include:

(1) A notification provision requiringthat all owners of currently-used tanksand non-operational tanks taken out ofservice after January 1, 1974, notifydesignated State and local agencies ofthe existence of their tanks (section9002).

(2) A requirement that EPApromulgate regulations governingpetroleum tanks within 27 months,regulations governing fnew tankscontaining hazardous substances within33 months, and regulations governingexisting tanks containing hazardoussubstances within 45 months (section9003).

(3) A prohibition against theinstallation of new tanks that do notsatisfy enumerated statutoryrequirements (section 9003(g)].

(4) A provision for the approval ofState underground storage tankprograms that are no less stringent thanFederal regulations promulgated undersection 9003 (section 9004).

(5) A provision providing EPAauthority to inspect facilities, conductmonitoring and testing at facilities, or torequire tank owners to conductmonitoring and testing and to provideinformation pertaining to their tanks toEPA (section 9005).

(6) A provision providing EPAauthority to enforce the requirements ofSubtitle I through the use ofadministrative orders, injunctions, orcivil penalties (section 9006).

(7) A provision making tanks withinthe control of Federal governmentsubject to Subtitle I requirements(section 9007).

(8) A requirement that EPA conductthe following studies: (i) a studyconcerning petroleum tanks within 12months; (ii) a study concerning tankscontaining hazardous substances within36 months; and (iii) a study concerningexempted farm and heating oil tankswithin 36 months (section 9009).

Of the requirements established bySubtitle I, the interim prohibition ofsection 9003(g) will go into effectautomatically on May 7, 1985, withoutprior EPA rulemaking proceedings. That

section prohibits the installation of anynew underground storage tank for thepurpose of storing regulated substancesunless (A) the tank will prevent releasesdue to corrosion or structural failure forthe operational life of the tank; (B) thetank is cathodically protected againstcorrosion, constructed of noncorrosivematerial, or designed in a manner toprevent the release or threatenedrelease of any stored substance; and (c)the material used in the construction orlining of the tank is compatible with thesubstance to be stored. Notwithstandingthe above requirements, section9003(g)(2) permits the installation oftanks without corrosion protection insoil with a resistivity of 12,000 ohm-cmor more. Today EPA is adding Part 280to its regulations to incorporate theinterim prohibition of section 9003(g).New

VI. Regulatory Analysis

A. Executive Order 12291: RegulatoryImpact Analysis

Executive Order 12291 requires eachFederal agency to determine if aregulation is a "major" rule as definedby the Order and "to the extentpermitted by law," to prepare andconsider a Regulatory Impact Analysis(RIA) in connection with every majorrule. OMB has indicated that theregulation promulgated today is a majorrule; however, OMB has also concludedthat this rule is exempt from the RIArequirement. The exemption is based onSection 8 of the Executive Order,Exemptions, which states thatprocedures prescribed by this order shall notapply to: * * * (2) Any regulation for whichconsideration or reconsideration under theterms of the order would conflict withdeadlines imposed by statute or by judicialorder.

EPA has prepared preliminaryestimates for the range of costs whichthe final rule may impose on hazardousand solid waste management units ofvarious kinds and sizes, and for the totalcosts of the regulations. EPA estimatedlower bound, upper bound, and mostlikely estimates for each of theprovisions in the final rule that imposecosts. The costs of the individualprovisions were then aggregated todevelop total cost estimates. EPA'sgeneral approach for estimating thecosts, as well as the detailedassumptions underlying the estimatesfor each of the provisions, are describedin Section D. In addition, EPA has begunanalyzing the impacts of the costs ofthese requirements on particular waste-generating industries and expects tocomplete its analysis later this year.

This regulation was submitted toOMB for review under E.O. 12291.

B. Regulatory Flexibility ActThe Regulatory Flexibility Act (5

U.S.C. 601 et seq.) requires each Federalagency to prepare a RegulatoryFlexibility Analysis (RFA) when itpromulgates a final rule. (5 U.S.C. 604).The purpose of the RFA is to describethe effects the regulations will have onsmall entities and examine alternativesthat may reduce these effects. Anagency head may delay completing theanalysis for up to 180 days afterpublishing the rule in the FederalRegister, if he publishes a finding thatthe final rule is being promulgated inresponse to an emergency that makestimely compliance impracticable. (5U.S.C. 608).

EPA intends to examine the impact oftoday's regulations on waste-generatingindustries and will report results forthose industries where the regulationshave a substantial impact on asignificant number of small entities.

Regulatory Flexibility AnalysisAs indicted earlier in the preamble,

the purpose of this rule is to promptlyand effectively notify the regulatedcommunity of their responsibility underthis new law. EPA believes this is avalid argument for evoking theregulatory flexibility emergencyprovisions.

C. Paperwork Reduction ActThe information collection

requirements contained in this rule havebeen approved by the Office ofManagement and Budget (OMB) underthe provisions of the PaperworkReduction Act of 1980, 44 U.S.C. 3501 etseq. and have been assigned OMBcontrol numbers: Notification 2050-0028;Manifest 2050-0039; Generators 2050-0035; Permittees 2050-0037; BiennialReport 2050-0024; Blending and BurningFuels 2050-0047; and ExposureAssessments and Loss of Interim Status2050-0007.

D. Estimated Cost of the Final Rule

1. General Approach

EPA estimated costs for eachprovision of the final rule which hascompliance activities associated withthe provision. EPA developed estimatesof the affected population, the unit costsof compliance, and the aggregate costsof compliance for each provision. EPAdeveloped likely lower- and upper-bound estimates of costs as well as amost likely estimate. In some cases,differences in assumptions about theaffected population determine the lower

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and upper bounds; in others, the rangereflects differences in assumptionsabout the unit costs of compliance withthe provision. Moreover, the uppeil- andlower-bound estimates do not representthe worst or lowest case costs, but,rather, EPA's estimate of the mostreasonable upper and lower bounds.The most likely estimate representseither EPA's best estimate, or, in somecases, the midpoint of the upper andlower bounds. Estimates are presentedas the aggregate costs for the provisionfor all affected facilities.

EPA developed its estimates ofaffected populations largely on the basisof EPA's "National Survey of HazardousWaste Generators and Treatment,Storage and Disposal Facilities.Regulated Under RCRA in 1981"(hereafter referred to as the "1981 RCRASurvey").

EPA developed two different types ofunit costs and applied these costs to theaffected population to estimateprovision-specific costs: (1) Costs thatvary significantly with the size and typeof unit; and (2) costs that are the same,regardless of the size or type of units atthe facility. Costs that vary with the sizeand type of unit were used to estimatethe costs of the minimum technologicalrequirements. Other requirements of thisfinal rule impose unit costs that are thesame, regardless of the size or type ofunits at the facility. For example, thecost to complete an exposureassessment depends on the level ofdetail required in the assessment ratherthan the size or type of unit.

The costs are presented in two ways:First-year costs and annualized-present-value (APV) costs, and whereappropriate, are presented as low, mostlikely, and upper bound estimates foreach. First-year costs represent theinitial capital/startup costs plus first-year operating costs (if applicable) thatthe provision imposes. If the first-yearcosts are the same as those insucceeding years, the first-year cost willequal the annualized present value.

Because the stream of costs over timemay be uneven, EPA converted thisstream to its equivalent annual cost overthe life of the facility using discountedcash flow analysis. First, EPA calculatedthe total present value (TPV) which isthe sum of costs incurred in each yeardivided by a discount factor, as follows:

n (V costs],,PV'= V(0$-~

nl=O

where the real rate of return (r) equals 3percent and n is the number of periods

in which costs are incurred. The cashflows do not include inflation, taxes, ordepreciation. As such, the resultingpresent value cost reports the full socialcost in real terms.

In order to spread the costs evenlyover the life of the facility, EPAannualized the total present value bymultiplying it by a capital recoveryfactor (CRF):

r*{1 +r)°LCRF=

(r+l)OL-1

where OL is the operating life. Unlessotherwise specified, EPA assumed a 20year operating life. The 3 percent realrate of return and the 20-year operatinglife assumptions lead to a CRF of .0672.The annualized present value representsthe annual revenue required to cover thecosts imposed by the provision. Thisvalue provides a consistent basis forpresenting and comparing costs ofdifferent provisions. However, itimplicitly assumes that facilities canpredict future costs and can recoverthem at a steady rate over the life of thefacility.

2. Ban on Hazardous Liquids In LandfillsProvision

Effective May 8, 1985, this provision ofthe final rule bans the placement of bulkor noncontainerized liquid hazardouswaste in landfills. Under current Part264 regulations, liquids are permitted inlined landfills or in any landfill if theliquids have been treated or stabilized.

Affected Population-Based on the1981 RCRA Survey, EPA identifiedseven landfills which accept hazardousliquids; five of these, accounting forapproximately 57,000 metric tons (MT)per year, solidify the liquids in thelandfill, while the other two, accountingfor 11,000 MT per year, place liquidsdirectly in their landfills. These sevenfacilities represent the lower boundestimate of the affected population.

To calculate an upper bound on thenumber of affected landfills, EPAassumed that the seven landfillsrepresented only one-half of firmsactually disposing of bulk liquids.Further, EPA assumes that the sevenadditional landfills, for which there is noinformation on the quantity managed,handle the same amount as thosesurveyed.

Unit Costs-In order to treat theliquids so that their placement inlandfills is acceptable, EPA assumesthat the wastes must be solidifiedoutside of the unit and then placed inthe landfill. In order to solidify wastesso that liquids are permanently fixed,

EPA assumes that the liquids will bemixed with cement. The unit costs arebased on engineering cost estimatesdeveloped for four model sizes ofsolidification plants. Plant sizes arebased on MT per year of waste input.These plants would be built on site andwould be replaced once over the 20-yearexpected lifetime of the facility. Overthe relevant range, the larger thesolidification plant, the smaller the per-ton cost of solidifying the liquids. Thesize of the solidification plant at each ofthe affected landfills was adjusted tomatch the needs of the facility. 21 Thecost per ton solidified ranged from $235for the smallest to $68 for the largestfacility.

Total Costs-The total cost of theprovision was determined bymultiplying the quantity of bulk liquidshandled at each landfill by theappropriate unit cost of constructing asolidification plant with sufficientcapacity to meet current needs. Thelower-bound first-year costs areestimated to be $7.4 million. Theannualized present value is $5.1 million.The upper bound first-year costs are$14.8 million; annualized costs are $10.2million. The most likely costs representthe average of the lower and upperbound estimates: $11.1 million in thefirst year, with an annualized cost of$7.7 million.

3. Minimum Technological Requirements

Provisions-The final rulerequirements apply to each new landfillor surface impoundment and toreplacements or lateral expansions ofexisting landfills or surfaceimpoundments. The rule requires thatthese units must have two or more linersand a leachate collection system; theleachate collection system must bebetween the top and bottom liners forsurface impoundments and above thetop liner and between the top andbottom liners for,landfills. The 1984HSWA does not require existing surfaceimpoundments to immediately installnew liner and leachate collectionsystems.

Affected Population: Landfills-Basedon the 1981 RCRA Survey, EPAestimates that there are 199 activelandfills that handle hazardous waste.EPA assumes that these landfillsoperate for 20 years, with a new cellopening and closing each year. As eachlandfill opens a new cell, the rule will

"Unit costs were defined using ordinary leastsquares regression of the cost for the model plants.The cost functions were of the form C= aQb whereC is the cost, Q is quantity in metric tons, a is aconstant and b is the "scale" coefficient.



require that the cell be lined inaccordance with the double linerstandard. Therefore, all 199 landfills willbe affected annually by the final rulebecause, as they open a new cell, theywill incur the additional cost imposedby the double liner requirement.

Because the engineering costs for theaffected population are specific to unitsize, EPA could generate engineeringcosts for virtually any unit size. To limitthe number of unit cost estimates and tosimplify the analysis, EPA developedsize categories based on the actual sizedistribution of landfill units from the1981 RCRA Survey. Each landfill isplaced into one of eight size classesranging from 500 MT per year to 123,000MT per year.

Affected Population: SurfaceImpoundments-EPA estimates thatthere are 758 hazardous waste facilitieswith surface impoundments and that, onaverage, each facility has 2.3 surfaceimpoundments, for a potentially affectedtotal population of 1,743 impoundments.As detailed below, approximately 33percent of these existing surfaceimpoundments are expected to incurcosts associated with this regulationwithin the next four years, when otherprovisions of the amendments willrequire the remaining surfaceimpoundments to retrofit.

In the near term this provision willaffect only that portion of surfaceimpoundments which are laterallyexpanded or replaced. Since lateralexpansion is an unlikely engineeringoption for surface impoundments, EPAestimated only the number ofimpoundments that are likely to bereplaced in the next four years. EPAdefines replacement as "a unit taken outof service and emptied by removing allor substantially all waste from it."Therefore, EPA regards dredging of asurface impoundment as constitutingreplacement. Dredging is a normarpartof the operation of a surfaceimpoundment and EPA assumed thatimpoundments are normally dredgedwhen the depth of settled sludge is equalto one-half of the operating depth. Thetime to dredging varies from 7 to over 13years, depending on the size of theimpoundment. Therefore the potentiallyaffected population of 1,743 surfaceimpoundments has been reduced toreflect the normal dredging schedulesfor units of six different model sizes.Accordingly, EPA estimates that 194surface impoundments would normallybe dredged in each of the next fouryears. Finally, EPA assumes that thefacilities that would normally havedredged in each of the next four yearswill postpone dredging one year (see

Unit Costs: Surface Impoundmentsbelow).

Unit Costs: Landfills-Because EPAassumes that landfills are filled one cellat a time and that one cell is filled eachyear, the cost of the final rule isestimated as the incremental cost ofopening and closing a new cell using thedesign specified in the final rule. Underthe final rule, the new cell must complywith a double liner and leachatecollection system requirement and mustbe closed with an equivalent cap.Instead of placing a single liner underthe new cell (as required under currentPart 264 regulations), the owner oroperator must use a double liner. EPAhas defined an interim statutory,.synthetic/clay liner to conform with thedouble liner requirement for the purposeof meeting the final rule requirements.

The cost attributable to the final ruleis the incremantal cost of opening andclosing new cells with as synthetic/clayliner and two leachate collectionsystems instead of the single liner andsingle leachate collection systemcurrently required. The cost estimateassume that the clay for the liner isavailable on-site. If this were not thecase, the costs would be larger, rangingfrom 12 to 53 percent more than thosecalculated, depending on facility size.EPA assumed that it is unlikely thatfacilities would need to bring clay fromoff-site.

The first-year costs range from $8,200for the smallest landfills to $285,000 forthe largest. On a per-ton basis, theincremental first-year cost is $12/MT forthe smallest landfills and under $2/MTfor the largest landfills.

Total Costs: Landfills-The initialcapital cost for all 199 landfills is $9.68million; the estimate is the same for thelower and upper bounds. Theannualized costs are $10.2 million.

Unit Costs: Surface Impoundments-Surface impoundment unit costs rely ontwo major assumptions aboutcompliance with the final rule. The firstis that, rather than retrofit existingimpoundments in accordance with theregulation, operators will instead choose.the less costly option of closing theexisting unit as a land disposal facilityand constructing a new surfaceimpoundment. The second assumption isthat due to the high cost of managinghazardous waste in surfaceimpoundments there will be additionalincentive for operators to minimize thequantity of hazardous waste they placein them, such that operators willseparate hazardous from non-hazardouswaste sources to decrease the volume ofhazardous waste that must be managed.

In order to model this expectedbehavior on the part of operators, EPAassumes first, that operators will extendthe time until dredging by one yearbecause of the reduced flow ofhazardous waste into the impoundment.The estimated 194 surfaceimpoundments that would normallydredge in 1985 will delay their dredginguntil 1986, and so on. Moreover, once theunit is ready for dredging (i.e. closureand replacement), EPA further assumesthat the replacement impoundment willbe only approximately half as large asthe original impoundment. In terms ofthe model sizes used to calculate costs,the new unit will be one model sizesmaller than the impoundment itreplaces. The full cost to surfaceimpoundment facilities includes the costof both the new surface impoundmentand the cost of a new surfaceimpoundment to handle the non-hazardous liquids. The cost of the. latterimpoundment is not included in theseestimates of the cost of the minimumtechnological requirements for landdisposal facilities.

Given these assumptions, the new unitcosts of complying with the final ruleinclude the incremental costs of:

(1) Closing the old surfaceimpoundment as a land disposal facilityin the next few years instead of 20 yearsfrom now;

(2) Constructirg a new, smallerimpoundment within the next few yearswith the interim statutory double linerand leachate collection system insteadof the current Part 264 single liner andleachate collection system; and

(3) Closing the new surfaceimpoundment with a cap equivalent tothe interim statutory liner, rather thanthe cap specified in the existing Part 264regulations.

The unit costs are dominated byclosure costs for all model sizes: Movingclosure costs approximately 20 yearsforward means that the present valuepractically doubles (an outlay of $100today has a value of $181 in 20 yearsassuming a 3 percent discount rate). Theinitial year costs for closure of the oldunit accounts for between 46 and 79percent of total initial year costs; thebalance is attributable to the cost ofland and constructing the new unit.

The annualized costs of compliancewith this rule vary from $55,000 perfacility for the smallest newimpoundments, to over $1.5 million forthe largest. The annualized cost per tonmanaged in the newly constructed unitsranges from approximately $18 for thesmallest impoundments down to lessthan $1 per metric ton for the largestimpoundments.

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Total Costs: Surface Impoundments-The total annualized cost of the surfaceimpoundment provision in the final ruleis $53.2 million and is the same for thelower and upper bounds.

Total Costs: Minimum TechnologicalRequirements-The first year costs areall from landfill compliance with thefinal rule and equal $9.68 milrion in boththe lower and upper bound estimates.The total annualized cost of theprovision is $63.5 million.

4. Corrective Action

Provisions-The final rule requiresthat any Subtitle C permit issued to aRCRA facility after the date ofenactment must require correctiveaction for all releases of hazardouswastes or constituents from solid wastemanagement units as well as hazardouswaste management units at the facility.The final rule grants EPA the authorityto issue corrective action orders tointerim status facilities to clean upreleases from both solid and hazardouswaste management units on a site-specific basis. This analysis onlyaddresses releases to ground water. Itdoes not estimate the costs of correctiveaction for releases to other media.

Owners or operators of hazardouswaste management facilities must alsoassure EPA that they can meet afinancial responsibility test for therequired expenditures. The costs of thisprovision are treated later in thissection.

EPA developed estimates of correctiveaction costs for releases from solidwaste management units (SWMU) atRCRA facilities. Corrective action forreleases fron active land disposal unitsis already required under existing Part264, Subpart F regulafiori3. Thisprovision of the final rule imposes noincremental costs on these units. Thecosts for SWMUs are based oncorrective action for releases only up tothe facility boundary; the costs includethe cost of counterpumping and treatingcontaminated ground water and, insome cases, the cost of controlling thesource of contamination.

Affected Population: Solid WasteManagement Units-The final rulerequires ownerii or operators to takecorrective action for releases from solidwaste managment units (SWMUs) atfacilities seeking Subtitle C (RCRA)permits. The 1981 RCRA Surveyestimated that there are 1,049 hazardouswaste land disposal facilities and 3,769hazardous waste treatment and storagefacilities. Many of these facilities alsohave solid waste management units. Thesize of the affected population,therefore, depends on the number ofthese facilities with SWMUs and the

number of leaking SWMUs at each ofthese facilities. To account for thisuncertainty, EPA developed low, highand most likely population estimates.

The lower bound estimate assumesthat there are no leaking SWMUs at the1,049 hazardous waste land disposalfacilities, and that one-fourth (942) of the3,769 treatment and storage facilitieshave one leaking SWMU on-site. EPAfurther assumed no releases fromfacilities in arid climates and that thosefacilities granted ACLs under § 264.94are exempt from the requirements. EPAassumes that 10 percent of the facilitiesare in arid climates and 10 percent willreceive ACLs. Thus, the lower boundestimate assumes that corrective actionbegins immediately for these 754SWMUs.

The upper bound assumes that 25percent of all land disposal facilitieshave a SWMU on site that is leaking. Inaddition, each of the 3,769 treatment andstorage facilities has one leakingSWMU. Thus the upper bound estimateassumes that corrective action beginsimmediately for all 4,031 facilities.

EPA's most likely estimate assumesthat 12.5 percent of facilities with landdisposal units, the midpoint of the upperand lower bound, also have a SWMU.Also, one-fourth of the remainingtreatment and storage focilities have asingle leaking solid waste managementunit on site. Thus the best estimateassumes that corrective action beginsimmediately for 1,073 facilities.

Unit Costs: Corrective Action forSolid Waste Management Units-Theunit costs of corrective action atSWMUs indlude the cost of containingor courtevpumping the part of the plumethat extends to the facility boundaryand then treating the contaminatedground water. EPA used its StochasticModel of Corrective Action Costs toestimate the costs of counterpumpingand treatment. The model estimatesthese costs based on various inputsabout the hydrogeology of sites, plumecharacteristics, and treatment options.Costs were adjusted to account forreplacement of capital over the term ofthe corrective action. The mean lengthof time for completing the correctiveaction is 48 years. EPA assumes that themean distance from the disposal unit tothe facility boundary is 500 feet and thatthe cost model can be used toextrapolate costs for clean-up of plumesof this length.28 The first year cost for

"5EPA reviewed model sensitivity analysis ofplume length and assumed that the cost functionsdisplay constant elasticity with respect to plumelength (C=a(lensth)"}.

cleaning up a 500 foot plume is $622.000per unit if the clean-up beginsimmediately. The annualized presentvalue is $249,000.

Total Costs: Corrective Action forSolid Waste Management Units-Theestimates for first year corrective actioncosts at facilities with SWMUs rangefrom $469 million to $2.5 billion. Theannualized costs range from $188 millionto $1.0 billion.

Unit Costs: Source Control for SolidWaste Management Units-In order toprotect human health and theenvironment, it may be necessary to domore than contain or remove and treatthe contaminated ground water. Oneadditional component of the cost ofcorrective action would be the cost toremove or isolate the source of theplume from ground water. EPA assumedthat source control requirements wouldonly apply to SWMUs that havereleases requiring corrective action(because active land disposal units atRCRA facilities are already subject tothese requirements under the currentregulations).

As noted above in the generalapproach, EPA generated upper andlower bound cost estimates whichshould not be regarded strictly as upperand lower limits on total costs. Thispoint is important in light of thesensitivity of source control costestimates to the assumptions about theaffected population. The firstassumption is that half of the facilitieswith SWMUs are required to performcorrective action involving sourcecontrol. The second assumption involvesthe distribution of three alternativesource control methods across affectedfacilities. The three methods are:controlling the source by removing it,building slurry walls, and capping theunit.

* Source removal option: Sourceremoval, which requires both sourceremoval and solidification, is the mostexpensive source control option. Thelowest excavation and solidificationcosts per unit are $450,000 in the firstyear for a 4 acre surface impoundment.The annualized cost is $30,000. Thehighest unit costs are for a 123,000 MTper year landfill. The first year cost is$63 million, 87 percent of which is thecost of solidification. The annualizedcost is $4,2 million.

* Slurry wall option: A less expensivesolution is to supplement thecounterpumping with a slurry wall,constructed around the unit, down to thetop of the saturated zone. The wall willdivert upgradient flow around the unitand contain leakage from the unit itself.First year costs for slurry walls range

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fro-n $10,000 for the 1/4 acreimpoundment to $513,000 for the 123,000MT per year landfill; annualized costsrange from $672 to $34,000.

* Capping the unit: The third option isto solidify the waste in the unit andplace an impermeable cap on the unit.Because the waste must be solidified inorder to support the cover, this optioncan be nearly as expensive as sourceremoval, especially for large units. Firstyear costs per facility range from$142,900 for A acre impoundments($9,600 annualized) to $62 million for the123,000 MT per year landfill ($4.2 millionannualized).

The choice of specific source controlmeasures can have a significant effecton the costs. The most expensive optionmay be as little as 11 times moreexpensive than the least cost option fora given unit size, or as much as 120times more expensive. As a result, EPAmade several assumptions about thesource control option applicable to thepopulation.

For the lower bound, EPA assumed auniform distribution among the threeoptions: One-third of the affectedfacilities capped the unit, one-thirdexcavated and solidified the waste, andone-third constructed slurry walls.

For the upper bound and bestestimate, EPA selected the sourcecontrol option on the basis of depth tothe ground water at each site. If theground water is within 10 feet of thebottom of the unit, source removal isnecessary. (Based on information fromthe 1981 RCRA Survey, 67 percent of thelandfills and 63 percent of the surfaceimpoundments met this criterion.)Where the ground water is between 10and 50 feet from the bottom of the unit,the operator would construct a slurrywall. (Twenty percent of the landfillsand the rest of the surfaceimpoundments (37 percent) included inthe 1981 RCRA Survey met thiscriterion.) Finally, all other SWMUs (i.e.,those situated more than 50 feet above

the ground water) solidify the waste inthe unit and then cap it.

Total Costs: Source Control for SolidWaste Management Units-The lowerbound estimates for first year costs ofsource control at SWMUs is $1.4 billionor $92 million annualized. The upperbound costs are $11.7 billion for the firstyear or $784 million annualized. Themost likely first year costs are $3.1billion. The most likely estimate ofannualized costs is $208 million.

Total Costs: Solid WasteManagement Units (Corrective Actionand Source ControlJ-Table VI-1describes the individual components ofthe costs of corrective action and sourcecontrol at solid waste managementunits. Source control costs dominate thefirst year costs because all of the sourcecontrol options require a one-timeinvestment. On an annualized basis,counterpumping costs that continue formany years are more important.

TABLE VI-1.-SUMMARY OF FINAL RULE CORRECTIVE ACTION COSTS AT FACILITIES WITH SOLID WASTE MANAGEMENT UNITS

Lower bound Upper bound Most likely

First year costs Annualized PV First year costs Annualized PV First year costs Annualized PV

Solid waste management units:Counterpumping ................................................................................................. $468,864,000 $187,931,.600 $2,507,438,000 $1,005,039.000 $667,640,000 $267,605,000Source control:

Land disposal facilities .......................... 0 0 721,439,375 48,480,726 360,719,688 24.240,363Treatment and storage facilities .................................................................. 1,362,727,141 91,575,264 10,950,519,248 735,874,893 2,737,629,812 163,968,723Source control total ........................ . 1,362,727,141 91,575.264 11,671,958,623 784.355,619 3,098,349,500 208.209,086

Total ............................................................................................................ 1,831,591,141 279,506,264 14,179.396,623 1.789,394,619 3,765,989,500 475.814,086

Total Costs of the Provision-Thetotal costs of the provision include thecost to clean up plumes from SWMUs tothe property boundary and the cost toremove the source of contamination atthese units. When corrective action andsource control are considered, the lowerhound cost of the corrective actionprovision is $280 million annually and$1.8 billion the first year. The upperbound annualized cost is $1.8 billion or$14 billion the first year. The most likelyannualized costs are $476 million with afirst year cost of $3.8 billion.

The cost estimates for the provisionare very sensitive to the assumption thatRCRA treatment, storage, and disposalfacilities have only one SWMU. Iffacilities have more than one SWMU,the costs could increase dramatically.

5. Dust Suppression

Provision-The final rule prohibits theuse of used oil, mixed with hazardouswaste, as a dust suppressant.

Affected Population-The provisionaffects two distinct groups: first, firmsthat generate the used oil and second,

firms that buy the oil for re-use andrecycling. The highest value use of theoil is as a dust suppressant applied toroads. EPA estimates thatapproximately 68.5 million gallons ofthis type of used oil are applied to roadseach year. Under the final rule,generators will no longer be able to sellthe oil for use as a dust suppressant.Firms that apply oil to roads will have tofind an alternative to used oil and paythe additional cost of the alternative.

Unit Costs-The cost to generatorsdepends on the number and type ofalternate uses for the oil. For the lowerbound, EPA estimates that generatorscan simply sell the oil to other users atno loss of revenue. The upper bound isthat the oil has no resale value and thegenerators lose the revenue they earnedon the sale of the oil to road oilers. Themost likely estimate reflects the fact thatthe oil has some value, at least for itsBTU content, but no higher value than ithad as a dust suppressant (or thegenerators would have sought out thehigher value use).

For road oilers, the lower bound costassumes that they will switch to calciumchloride. This means a higher cost pergallon and a higher application rate. Theupper bound cost includes the sameassumptions plus a 50 percent higherapplication frequency.

Total Costs-The lower bound cost is$16 million and is the same each year.The upper bound is $35 million and themost likely cost is the average of thetwo, approximately $26 million.

6. Small Quantity Generators

Provision-The final rule imposesinterim requirements for small quantitygenerators {SQGs) of hazardous waste.The final rule only requires SQGs to fillout portions of the Uniform HazardousWaste Manifest for shipments of theirwaste.

Affected Population-EPA estimatesthat between 100,000 and 175,000generators produce between 100 and1,000 kg. of hazardous waste per month.Based on changes in the amount of timethat generators maV store waste on-sitewithout a storage permit, EPA estimates

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that, on average, these generators willsend between 1.33 and 2 shipments off-site per year. If the generator storeswaste for 270 days (the most allowedunder the new rules), he would send 1.33shipments off-site each year. If thegenerator does not qualify for the 270day storage period, he can store wastesfor 180 days and would therefore ship 2loads off-site each year on average.

Even if the generator stores for 270days, the most waste he couldaccumulate is 9,000 kg. (9 MT), far lessthan a full load for either tank trucks orflatbeds (assumed to be roughly 23 MTand 18 MT respectively). The effect ofthis is that in the lower bound, 100,000generators will each have 1.33shipments per year, while in the upperbound, 175,000 generators will eachhave 2 shipments per year. The bestestimate assumes 100,000 generators,each with 1.67 shipment per year.

Unit Costs-The generators are onlyrequired to fill out a small part of theUniform National Manifest. Based onEPA estimates of the time required, thecost per manifest varies between $2.50and $4.00 per manifest.

Total Costs-The lower bound cost is$332,500 per year; the upper bound is$1,400,000 and the most likely estimateis $542,750.

7. Burning and BlendingProvision-The final rule includes a

provision banning the.burning ofhazardous waste in cement kilns whichare located in cities with populationsgreater than 500,000.

Affected Population-EPA hasinformation on several cement kilns thatmay currently burn or are consideringburning hazardous waste, but it isdifficult to estimate the actualpopulation affected by this provision.For a lower bound estimate, EPAassumes that the provision is merelyprecautionary, and is designed topreclude this activity until EPA developsstandards for these kilns. The upperbound and most likely estimate is thatone kiln currently burns hazardouswaste.

Generators of the solvents burned inthe kiln will also be affected by the ban.They will lose the revenue they wouldnow earn on the sale of the waste to thekiln operator and they may have to payto dispose of the waste.

Unit Costs-In the upper bound andmost likely scenarios, the owner of thekiln will lose the cost advantage heenjoyed by burning cheaper solvents inplace of some other fuel. One facilityreported savings of $.29 per gallon onthe solvents burned; this is thedifference between burning hazardouswaste and number 6 fuel oil.

For the upper bound, EPA assumesthat generators of the solvents will losethe revenue from the sale of the solventto the kiln operator and will now haveto pay to dispose of the solvents. Themost likely estimate assumes that theywill pay only a moderate fee to disposeof the solvents because of their BTUcontent.

Total Costs-The lower bound costsare zero. The upper bound cost is$167,000 per year and the most likelyestimate is $108,000.

8. Exposure Assessments

Provision-The final rule requires allowners and operators of landfills andsurface impoundments to supplementtheir RCRA permit applications withinformation on the potential for publicexposure to releases from the unit. Thisshould include information on potentialreleases, pathways of exposure, and themagnitude of possible exposures. Ingeneral, owners and operators are notexpected to collect additional data; theycan submit existing information.

Affected Population-The number ofapplicants is expected to match thecurrent estimates for facilities 'Withlandfills (199) and surfaceimpoundments (758) from the 1981RCRA Survey. EPA also assumes thatthere will be approximately 20 newapplicants each year.

Unit Costs-The costs of the final ruleare based on estimates of the paperworkburden required of applicants toassemble and transmit the requiredinformation to EPA. Based on anestimate of 120 hours per respondentand an average cost of $16 per hour, thecost per facility is estimated at $1,920.

Total Costs-Most of the costs areincurred in the first year. After that, onlynew facilities need to submit theinformation. The upper and lower boundfirst year costs are $1.9 million;annualized costs are $176,000.

9. Delisting

Provision-The final rule requires thatgenerators petitioning to exclude awaste generated at their facility fromregulation must submit informationbeyond what is currently required. EPAis required to consider factors other thanthose for which the waste was originallylisted if those factors might cause EPAto continue to regard the substance as ahazardous waste, i.e., to not delist.

Affected Population-To date, EPAhas processed 369 petitions under theexisting delisting provision. Thesepetitions will be reexamined in light ofthis new regulation. In addition, basedon the past number of petitions per year,EPA estimates that new petitions will

arrive at the rate of approximately 136per year.

Unit Costs-EPA assumes that anadditional constituent analysis of thewaste in question will be required inorder to comply with the final rule. Theexpected cost for these analyses plusother petition costs is $3,000 per petition.

Total Costs-Most of the costs occurin the first year because of the need toreexamine old petitions. The first yearupper and lower bound costs areestimated at $1.5 million and theannualized cost is $480,000.

10. Hazardous Waste Exports

Provision-The final rule requiresexporters of hazardous waste to submitan annual report on their export activity.The report may be submitted as part ofthe biennial report or separately.

Affected Population-EPA assumesthat between 150 and 200 generatorsexport hazardous waste each year. Thelower bound estimate is 150, 200 is theupper bound and 175 is the most likely.

Unit Costs-When the information ispart of a biennial report, the cost ofsupplying additional informationregarding exports is slight. EPA assumesthat the additional cost ranges from alower bound of $10 to an upper bound of$20. If the export report is not part of abiennial report, the costs will be higher.EPA assumes the costs range from $20 to$100.

Total Costs-EPA estimates first yearand annualized costs of $2,250 for thelower bound, $12,000 for the upperbound, and $6,600 for the most likely.

11. Waste Minimization

Provision-The final rule requires thatgenerators filling out hazardous wastemanifests and TSDFs managing wastegenerated on-site must certify that theyhave taken economically practicablesteps to minimize wastes generated. Allgenerators must report on these effortsin their biennial reports.

Affected Population-Generatorsshipping waste off-site must sign acompliance statement on the manifest;the incremental cost is negligible. Thenumber of TSDFs that must certifycompliance is based on the total numberof TSDFs reported by the RIA Survey,4,818. The affected population is 90percent of the TSDF population basedon EPA assumptions that 90 percent ofall TSDFs generate waste on-site.

All generators must submit a report onwaste minimization in their biennial.report. The number of generators is14,098 according to the 1981 RCRASurvey; this is both the lower bound andthe most likely. The upper bpund is thatall generators who notified must submit

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these reports. EPA estimates that 48,791biennial reports would be required if allnotifiers were active.

Unit Costs-The certification costs forgenerators are negligible and areexcluded here. For TSDFs, the costs areestimated at less than $10. The cost of abiennial report will increase between$10 and $50. According to EPApaperwork burden estimates, thepreparation of a biennial report will take10 percent more time. This yields a mostlikely estimated cost of $13 per facility.

Total Costs-Lower bound first yearand annualized costs are $141,000. EPAestimates the upper bound costs at $2.5million with a most likely estimate of$205,000.

12. Financial ResponsibilityProvision-The final rule requires

facilities to perform corrective action asspecified under §§ 206 and 207 of theamendments. In addition, facilities mustprovide financial assurance for thatcorrective action.

Affected Population-The samepopulation estimates derived for thecorrective action provision apply here.In summary, the lower bound populationconsists of 25 percent of the 3,769treatment and storage facilities withleaking solid waste management units;10 percent of these are assumed to belocated in arid climates and another 10percent are granted ACLs forconstituents found in the ground waternear the site, reducing the affectedpopulation to 754 facilities.

The upper bound population estimateassumes that 25 percent of the 1,049 landdisposal facilities have one leakingSWMU. Each remaining treatment andstorage facility (3,769) has one leakingSWMU.

The most likely population estimate isan average of the upper and lowerbound for land disposal facilities. Fortreatment and storage facilities, 25percent are assumed to have one leakingSWMU.

The final assumption about thepopulation involves the differencebetween the number of facilities and thenumber of firms that own them. Onlyfirms are responsible for showirgfinancial responsibility, not individualfacilities. EPA estimates that theaverage number of facilities per firm isthree.

Unit Costs-EPA assumes fourpossible mechanisms for firms todemonstrate financial responsibility forcorrective action. The least expensivemechanism is the financial test orguarantee. This may be provided to afirm based on certain information aboutits financial condition for $400.

The other options all depend in someway on the expected cost of thecorrective action that will be required. Aletter of credit involves a $420 fee plus .7percent of the undiscounted cost of thecorrective action; a surety bond coststhe same fixed fee plus 1 percent of theundiscounted costs; and a trust fundincludes a $400 fee plus .9 percent of theundiscounted cost.

The undiscounted cost of thecorrective action is simply the sum ofthe costs incurred cleaning up a plumeas far as the facility boundary over theaverage length of time that pumping isrequired (48 years). The cost estimatereflects the cost of cleaning up a 500 footplume. The undiscounted total cost for a500 foot plume is $6.6 million.

The lower bound cost estimateassumes that all affected firms cansatisfy the financial responsibilityrequirement with a financial test orguarantee. That means that the cost toeach firm will be $400.

For the upper bound, EPA assumesthat each firm must establish a trustfund to prove it can meet the correctiveaction costs. The cost of a trust fund tomeet these corrective action costs is$59,930 per facility or $179,000 per firm.

The most likely estimate assumes that83 percent of the firms use a financialtest or guarantee,.9 percent use a letterof credit, 4 percent use surety bonds,and 4 percent a trust fund. This is basedon the current distribution of allowabledemonstrations for closure and post-closure care. Letters of credit will costfirms $139,000 for corrective action tothe facility boundary. The correspondingcost for firms using surety bonds is$199,000.

Total Costs-The lower boundestimate is $100,400 for both the firstyear and the annualized costs. Theupper bound is $241 million and themost likely is $9.8 million.

13. Underground Storage Tanks

Provision-The final rule bans theplacement of new, unprotected steeltanks in "corrosive" soils. The ban iseffective until EPA promulgates newregulations in 2 years.

Affected Population-EPA assumesthat 100,000 tanks are replaced eachyear. Approximately 60,000 are for farmand home use and are not subject tothese requirements. The remaining40,000 tanks are for commercial/industrial use. Approximately 28,000 ofthese are metal tanks of which roughly13,000 are unprotected carbon steel andare subject to these requirements. Mostof those tanks (75 percent) are probablyplaced in noncorrosive soils, defined assoils with resistivity higher than 12,000ohm-cms.

The owners or operators of all thesetanks will need to perform a soilresistivity test. EPA assumes that two-thirds will install cathodically protectedtanks instead of bare steel, and the restwill install externally coated tanks.

Unit Costs-The costs represent theincrement required by the final rule andinclude the cost of a soil resistivity test($36), and installing a protected tankthat is either cathodically protected (anincremental cost above bare steelranging from $2,367 to $4,340 per tankdepending on the size of the tank), orexternally coated (incremental cost from$632 to $1,774, depending on size).

The lower bound unit cost includesthese incremental costs in the first year,and replacement costs in year 14. EPAassumes that unprotected steel tanksthat would have been placed incorrosive soil without the regulation,would fail in an average of 14 years. Atthis time, the tank would have to bereplaced. The regulation forces theowner to install a tank with a longerexpected lifetime (20 years), so theowner pays more the first year, butsaves money over the 20 year horizonbecause the tank lasts longer. Thisconclusion is dependent on theassumption that an owner would put anunprotected steel tank in corrosive soil,as well as an assumed life of 14 yearsfor an unprotected tank, -and the 3percent discount rate.

The upper bound unit costs includesthe same incremental cost, but assumesthat even a bare steel tank would lastthe full 20 year period, so there is noreplacement cost in year 14.

The most likely estimate of the unitcost is zero. EPA believes that ownersoperate to maximize net present value(and therefore minimize the presentvalue of costs) and would therefore notinstall a tank that was expected to Tailso quickly. Given EPA's assumptions, anowner would pursue the course of actionthat minimized the present value ofcosts. He would compare theincremental cost of protecting the tanknow, to the discounted cost of replacinga failed tank in 14 years. If protectingthe bare tank were cheaper in presentvalue terms (which it is under theseassumptions) the owner would opt toinvest in a protected tank now. In short,the owner already optimizes, so there isno need to "force" him to comply withregulations.

. Total Costs-Under the lower boundassumptions, the first year cost of theregulation is $6.2 million, but theannualized "cost" is a net savings peryear of $870,000, because the owner willnot have to replace a failed tank. Theupper bound only includes the costs of

28741I



installing protected tanks for two years, 14. Total Cost of the Final Rule first year costs, which range betweenat which time the ban is replaced by $1.9 billion and $14.5 billion. Correctivenew regulations. The first year cost is The sum of all the annualized costs action costs dominate both first year$6.2 million and the annualized present ranges from a lower bound of $365 and annualized costs in each scenario.value over 20 years is $1.1 million. The million to $2.1 billion. Table VI-2 shows The Agency is soliciting comments onmost likely estimate is zero. these annualized costs as well as the these cost estimates.

TABLE VI-2.-COSTS OF FINAL RULE

Lower bound Upper bound Most likelyProvisions

First year costs Annualized FY First year costs Annualized FY First year costs Annualized FY

Liquids in landfills ...................................................................................................... $7.419.100 $5,106,663 $14,838,200 $10.213.326 $11.128,650 $7,659,995Minimum technological requirements ..................................................................... 9.675,600 63,473,700 9.675.600 63,473,700 9,675.600 63,473,700Corrective action I ................................................................................................... 1,83t,591,141 279,506.264 14,179,396,623 1.789,394,619 3,765.989.500 475,814,086Dust suppression ....................................................................................................... 16,440.000 16,440,000 34,930.000 34.930.000 25.685.000 25,685,000Small quantity generators ........................................................................................ 332.500 332,500 1,400.000 1,400,000 542.750 542,750Burning and blending ................................................................................................ 0 0 166,920 166.920 107.640 107.640Exposure assessments ............................................................................................ 1.906,560 176.213 1,906.560 176.213 1.906.560 176.213Delisting procedures ................................................................................................ 1.515,000 482,295 1,515,000 482,295 1,515,000 482,295Hazardous waste exports ......................................................................................... 2,250 2.250 12,000 12,000 6,563 6.563W aste minimization .................................................................................................. 140,980 140,980 2.482,910 2.482,910 204,954 204.954Financial responsibility ............................................................................................. 100.400 100,400 240,560,947 240,560,947 9,803,280 9.803.280Underground storage tanks ..................................................................................... .6,215.000 (871.076) 8.215,000 1,113,446 0 0

Grand total ................................................................................................................. 1.875,338.531 364,890,189 14,493,099,760 2,144.406,376 3,826.565,497 583,956,476

Cost of corrective action includes the cost of source control for certain facilities,

List of Subjects

40 CFR Part 260

Administrative practice andprocedure, Confidential businessinformation, Hazardous waste, Liquidsin landfills.

40 CFR Part 261

Hazardous waste, Small quantitygenerators, Recycling, Delisting.

40 CFR Part 262

Hazardous materials.transportation,Hazardous waste, Imports, Labeling,Packaging and containers, Reportingand recordkeeping requirements, Wasteminimization.

40 CFR Part 264

Hazardous waste, Insurance,Packaging and containers, Reportingand recordkeeping requirements,Exposure assessments, Correctiveaction, Security measures, Surety bonds,Liner requirements.

40 CFR Part 265

Hazardous waste, Insurance,Packaging and containers, Correctiveaction, Reporting and recordkeepingrequirements, Security measures, Suretybonds, Water supply.

40 CFR Part 266

Burning and blending.

40 CFR Part 270

Administrative practice andprocedure, Confidential businessinformation, Hazardous materialstransportation, Hazardous waste,Reporting and recordkeepingrequirements, Water pollution control,

Water supply, Permit applicationrequirements.

40 CFR Part 271

Administrative practice andprocedure, Confidential businessinformation, Hazardous materialstransportation, Hazardous waste,Indians lands, Intergovernmentalrelations, Penalties, Reporting andrecordkeeping requirements, Waterpollution control, Water supply.

40 CFR Part 280

Underground storage tanks.

Dated: July 8, 1985.Lee M. Thomas,Administrator.

For the reasons set out in thePreamble, Title 40 of the Code of FederalRegulations is amended as follows:

PART 260-HAZARDOUS WASTEMANAGEMENT SYSTEM: GENERAL

1. The authority citation for Part 260 isrevised as follows:

Authority: Secs. 1006, 2002(a), 3001 through3007, 3010, 3014, 3015, 3017, 3018, 3019, and7004, Solid Waste Disposal Act, as amendedby the Resource Conservation and RecoveryAct of 1976, as amended (42 U.S.C. 6905,6912(a), 6921 through 6927, 6930, 6934, 6935,6937, 6938, 6939 and 6974).

2. 40 CFR Part 260 is amended byrevising § 260.22(a), (c)-(e) to read asfollows:

§ 260.22 Petition to amend Part 261 toexclude a waste produced at a particularfaclilty.

(a] Any person seeking to exclude awaste at a particular generating facilityfrom the lists in Subpart D of Part 261

may petition for a regulatoryamendment under this section and§ 260.20. To be successful:

(1) The petitioner must demonstrate tothe satisfaction of the Administratorthat the waste produced by a particulargenerating facility does not meet any ofthe criteria under which the waste waslisted as a hazardous or an actutelyhazardous waste; and

(2) Based on a complete application,the Administrator must determine,where he has a reasonable basis tobelieve that factors (including additionalconstituents) other than those for whichthe waste was listed could cause thewaste to be a hazardous waste, thatsuch factors do not warrant retainingthe waste as a hazardous waste. A'waste which is so excluded, however,still may be a hazardous waste byoperatio of Subpart C of Part 261.

(c) If the waste is listed with codes'I", "C", "R", or "E", in Subpart D,

(1) The petitioner must show that thewaste does not exhibit the relevantcharacteristic for which the waste waslisted as defined in § 261.21, § 261.22,§ 261.23, or § 261.24 using any applicablemethods prescribed therein. Thepetitioner also must show that the wastedoes not exhibit any of the othercharacteristics defined in § 261.21,§ 261.22, § 261.23, or § 261.24 using anyapplicable methods prescribed therein;

(2) Based on a complete application,the Administrator must determine,where he has a reasonable basis tobelieve that factors (including additionalconstituents) other than those for whichthe waste was listed could cause thewaste to be hazardous waste, that such

28742



factors do not warrant retaining thewaste as a hazardous waste. A wastewhich is so excluded, however, still maybe a hazardous waste by operation ofSubpart C of Part 261.

(d) If the waste is listed with code "T"in Subpart D,

(1) The petitioner must demonstratethat the waste:

fi) Does not contain the constituent orconstituents (as defined in Appendix VIIof Part 261) that caused theAdministrator to list the waste, using theappropriate test methods prescribed inAppendix III; or

(ii) Although containing one or moreof the hazrdous constituents (as definedin Appendix VII of Part 261) that causedthe Administrator to list the waste, doesnot meet the criterion of § 261.11(a)(3)when considering the factors used bythe Administrator in § 261.11(a)(3) (i)through (xi) under which the waste waslisted as hazardous; and

(2) Based on a complete application,the Administrator must determine,where he has a reasonable basis tobelieve that factors (including additionalconstituents) other than those for whichthe waste was listed could cause thewaste to be a hazardous waste, thatsuch factors do not warrant retainingthe waste as a hazardous waste; and

(3) The petitioner must demonstratethat the waste does not exhibit any ofthe characteristics defined in § 261.21,§ 261.22, § 261.23, and § 261.24 using anyapplicable methods prescribed therein;

(4) A waste which is so excluded,however, still may be a hazardouswaste by operation of Subpart C of Part261.

(e) If the waste is listed with the code"H" in Subpart D,

(1) The petitioner must demonstratethat the waste does not meet thecriterion of § 261.11(a)(2); and

(2) Based on a complete application,the Administrator must determine,where he has a reasonable basis tobelieve that additional factors (includingadditional constituents] other than thosefor which the waste was listed couldcause the waste to be a hazardouswaste, that such factors do not warrantretaining the waste as a hazardouswaste; and

(3) The petitioner must demonstratethat the waste does not exhibit any ofthe characteristics defined in § 261.21,§ 261.22, § 261.23, and § 261.24 using anyapplicable methods prescribed therein;

(4) A waste which is so excluded,however, still may be a hazardouswaste by operation of Subpart C of Part261.* * * * *

§ 260.22 [Amended]3. Section 260.22(m) is hereby

removed.

PART 261-IDENTIFICATION ANDLISTING OF HAZARDOUS WASTE

4. The authority citation for Part.261continues to read as follows:

Authority: Sections 1006, 2002(a), 3001, and3002, of the Solid Waste Disposal Act, asamended by the Resource Conservation andRecovery Act of 1976, as amended [42 U.S.C.6905, 6912(a), 6921, and 6922].

5. Section 261.4(b)(1) is revised to readas follows:§ 261.4 Exclusions.* * * * *

(b) * * *(1) Household waste, including

household waste that has beencollected, transported, stored, treated,disposed, recovered (e.g., refuse-derivedfuel) or reused. "Household waste"means any material (including garbage,trash and sanitary wastes in septictanks) derived from households(including single and multipleresidences, hotels and motels,bunkhouses, ranger stations, crewquarters, campgrounds, picnic groundsand day-use recreation areas). Aresource recovery facility managingmunicipal solid waste shall not bedeemed to be treating, storing, disposingof, or otherwise managing hazardouswastes for the purposes of regulationunder this subtitle, if such facility-

(i) Receives and burns only(A) Household waste (from single and

multiple dwellings, hotels, motels, andother residential sources) and

(B) Solid waste from commercial orindustrial sources that does not containhazardous waste; and

(ii) Such facility does not accepthazardous wastes and the owner oroperator of such facility has establishedcontractual requirements or otherappropriate notification or inspectionprocedures to assure that hazardouswastes are not received at or burned insuch facility.* * * * *

§ 261.5 [Amended]

6. Section 261:5 is amended byredesignating paragraphs (h) and (i) as(i) and (j) respectively.

7. 40 CFR Part 261 is amended byrevising § 261.5(b), (f) and (g)'and adding(h) to read as follows:§ 261.5 Special requirements forhazardous waste generated by smallquantity generators.

(b) Except for those wastes identifiedin paragraphs (e), (f), (g), and (h) of thissection, a small quantitygenerator's

hazardous wastes are not subject toregulation under Parts 262 through 265and Parts 270 and 124 of this chapter,and the notification requirements ofsection 3010 of RCRA, provided thegenerator complies with therequirements of paragraphs (f), (g) and(h) of this section.

9* * * * S

(f) In order for hazardous wastesgenerated by a smill quantity generatorof acutely hazardous wastes inquantities equal to or less than those setforth in paragraph (e)(1) or (e)(2) of thissection to be excluded from fullregulation under this section, thegenerator must comply with thefollowing requirements:

(1) Section 261.11 of this chapter;(2) The small quantity generator may

accumulate acutely hazardous waste on-site. If he accumulates at any timeacutely hazardous wastes in quantitiesgreater than'those set forth in paragraph(e)(1) or (e)(2) of this section, all thoseaccumulated wastes for which theaccumulation limit was exceeded aresubject to regulation under Parts 262through 265 and Parts 270 and 124 of thischapter, and the applicable notificationrequirements of section 3010 of RCRA.The time period of § 262.34 foraccumulation of wastes on-site beginswhen the accumulated wastes exceedthe applicable exclusion limit;

(3] A small quantity generator mayeither treat or dispose of his hazardouswaste in an on-site facility, or ensuredelivery to an off-site storage, treatmentor disposal facility, either of which is:

(i) Permitted under Part 270 of thischapter;

(ii) In interim status under Parts 270and 265 of this chapter;

(iii) Authorized to manage hazardouswaste by a State with a hazardouswaste management program approvedunder Part 271 of this chapter;

(iv) Permitted, licensed, or registeredby a State to manage municipal orindustrial solid waste; or

(v) A facility which:(A) Beneficially uses or reuses, or

legitimately recycles or reclaims itswaste; or

(B) Treats its waste prior to beneficialuse or reuse, or legitimate recycling orreclamation.

(g) In order for hazardous wastegenerated by a small quantity generatorin quantities of less than 100 kilogramshazardous waste during a calendarmonth to be excluded from fullregulation under this section, thegenerator must comply with thefollowing requirements:

(1) Section 261.11 of this chapter;

2874328743



(2) The small quantity generator mayaccumulate hazardous waste on-site. Ifhe accumulates at any time more than atotal of 1000 kilograms of this hazardouswaste, all of those accumulated wastesfor which the accumulation limit wasexceeded are subject to regulation underParts 262 through 265 and Parts 270 and124 of this chapter, and the applicablenotification requirements of section 3010of RCRA. The time period of § 262.34 foraccumulation of wastes on-site beginsfor a small quantity generator when theaccumulated wastes exceed 1000kilograms;

(3) A small quantity generator mayeither treat or dispose of his hazardouswaste in an on-site facility, or ensuredelivery to an off-site storage, treatment,or disposal facility, either of which is:








(h) In order for hazardous wastegenerated by a small quantity generatorin a quantity greater than 100 kilogramsbut less than 1000 kilograms during acalendar month to be excluded from fullregulation under this section, thegenerator must comply with thefollowing requirements:

(1) Section 262.11 of this chapter;(2) A small quantity generator may

accumulate hazardous waste on-site. Ifhe accumulates at any time more than atotal of 1000 kilograms of his hazardous

waste, all those accumulated wastes forwhich the accumulation limit wasexceeded are subject to regulation underParts 262 through 265 and Parts 270 and124 of this chapter, and the applicablenotification requirements of section 3010of RCRA. The time period of § 262.34 foraccumulation of hazardous waste on-site begins for a small quantitygenerator when the accumulated wastesexceed 1000 kilograms;

(3) Beginning August 5, 1985, for anyhazardous waste shipped off-site, thegenerator must ensure that such waste isaccompanied by a copy of the manifest(EPA form 8700-22) signed by him andcontaining the following information:

(i) The name and address of thegenerator of the waste;

(ii) The United States Department ofTransportation description of the waste,including the proper shipping name,hazard class, and identification number(UN/NA);

(iii) The number and type ofcontainers;

(iv) The quantity of waste beingtransported; and

(v) The name and address of thefacility designated to receive the waste.

(4) A small quantity generator mayeither treat or dispose of his hazardouswaste in an on-site facility, or ensuredelivery to an off-site storage, treatmentor disposal facility, either of which is:








8. 40 CFR Part 261 is amended byrevising the introductory text andadding an OMB control number to theend of the section of § 261.33 to read asfollows:

§ 261.33 Discarded commercial chemicalproducts, off-specification species,container residues and spill residuesthereof.

The following materials or items arehazardous wastes if and when they arediscarded or intended to be discarded,when they are mixed with waste oil orused oil or other material and applied tothe land for dust suppression or roadtreatment, or when, in lieu of theiroriginal intended use, they are producedfor use as (or as a component of) a fuel,distributed for use as a fuel, or burnedas a fuel.

(The reporting and recordkeepingrequirements contained in this section wereapproved by OMB under control number2050-0047.)

PART 262-STANDARDS APPLICABLETO GENERATORS OF HAZARDOUSWASTE

9. The authority citation for Part 262 isrevised as follows:

Authority: Sqcs. 1006, 2002, 3002, 3003, 3004,3005, and 3017, of the Solid Waste DisposalAct, as amended by the ResourceConservation and Recovery Act of 1976, asamended (42 U.S.C. 6906, 6912, 6922, 6923,6924, 6925, and 6937).

Appendix-[Amended]

10. The Uniform Hazardous WasteManifest form in the Appendix to Part262 is revised as follows:

BILUNG CODE 6560-50-M

III"

28744



APPENDIX

Please print or type. (Form designed for use on elite (12-pitch) typewriter.) Form Approved. OMB No. 2000-0404. Expires 7-31-86

UNIFORM HAZARDOUS 1. Generators US EPA ID No. Manifest. 2. Page I Information in the shaded areasWA TEM NIES ocjment J,. 2. Pae ai not required by FederalWASTE MANIFEST oc ImentII II. , of law.'

. (enerator s Name and Mailing Address A State Meltes Documn: Number

A. State Generstos NuID mbe

4. Generator's Phone5. Transporter 1 Company Name 6. US EPA 10 Number C State Transporter's 10

I I II I I II I I DTran .Ier' Phe7. Transporter 2 Company Name 8. US EPA ID Number E State Transporter b ID

9.11 111111 F. Trnsortera Phone

9. Vesihased 1aciity Name and Site Address 10. US EPA ID Number G State Facility's I0

H Facility's Phone

I I I I ________ _________

12. Containers 13. 14.11. US DOT Description (including Proper Shipping Name. Hazard Class, and ID Number) Total Unit

No. Type Quantity Wt/Vo Waste NoG a.

EN

A

T

0

* C.

d.

J. Additional Descrptin 's for Materiai, Listed Aove K. Hendinq Codes o, Wastes Listed Above

15. Special Handling Instructions and Additional Information

16. GENERATOR'S CERTIFICATION: I hereby declare that the contents of this consignment are fully and accurately described above byproper shipping name and are classified, packed, marked, and labeled, and are in all respects in proper condition for transport by highwayaccording to applicable international and national government regulations.

Unless I am a small quantity generator who has been exempted by statute or regulation from the duty to make a waste minimization certificationunder Section 3002(b) of RCRA, I also certify that I have a program in place to reduce the volume and toxicity of waste generated to the degree Ihave determined to be economically practicable and I have selected the method of treatment. storage. or disposal currently available to me whichminimizes the present and future threat to human health and the environment.Printed/Typed Name Signature Month. Day Year

T 17.Transporter 1 Acknowledgement of Receipt of MaterialsRA Printed/Typed Name Signature Month Day YearN50 18Transporter 2 Acknowledgement of Receipt of MaterialsRT Printed/Typed Name Signature Month Day YearE

I

19.Discrepancy Indication Space

FAC

T 20.Facility Owner or Operator: Certification of receipt of hazardous materials covered by this manifest except as noted in Item 19.Printed/Typed Name . Signature Month Day Year

EPA Form 8700-22 (Rev. 4-85) Previous edition is obsolete.

BILLING CODE 6560-50-C

28745



11. The Appendix to Part 262 is furtheramended by adding the followingsentence to Item 16 of the instructionstwo spaces below the last sentence, andpreceeding the Note.* * * . ,

Item 16. Generator's Certification* * * * *

In signing the waste minimizationcertification statement, those generators whohave not been exempted by statute orregulation from the duty to make a wasteminimization certification under section3002(b) of RCRA are also certifying that theyhave complied with the waste minimizationrequirements.* * * * *

12. Section 262.41(a) is amended byrevising (a)(6) and adding (a) (7) and (8]to read as follows:

§ 262.41 Biennial report.(a) * * *(6) A description of the efforts

undertaken during the year to reduce thevolume and toxicity of waste generated.

(7) A description of the changes involume and toxicity of waste actuallyachieved during the year in comparisonto previous years to the extent suchinformation is available for years priorto 1984.

(8] The certification signed by thegenerator or authorized representative.* * a.• , *

§ 262.50 [Amended]13. In Section 262.50, existing

paragraphs (d) and (e) are redesignatedas paragraphs (el and (f).

14. Section 262.50 is amended byadding a new paragraph (d) and theOMB control number to the end of thesection to read as follows:

§ 262.50 International shipment3.* * * * *

(d) Any persen exporting hazardouswaste identified or listed r:.dcr thischapter shall fi with the Administratorno later than March 1 of each year, areport summai lz ng the !t pes, quantities,frequency, and ultimate destination ofall such hazardous waste exportedduring the previous calendar year.* * * a *

(The reporting and recordkeepingrequirements contained in this section wereapproved by 0MB under control number2050-0024.)

PART 264-STANDARDS FOROWNERS AND OPERATORS OFHAZARDOUS WASTE TREATMENT,STORAGE, AND DISPOSALFACILITIES

15. The authority citation for Part 264continues to read as follows:

Authority: Secs. 1006, 2002(a), 3004, 3005, ofthe Solid Waste Disposal Act, as amended bythe Resource Conservation and Recovery Actof 1976, as amended (42 U.S.C. 6905, 6912(a),6924, and 6925).

16. 40 CFR Part 264 is amended byadding a new paragraph § 264.1(f)(3) toread as follows:

§ 264.1 Purpose, scope, and applicability.* a * a *

(f) a(3) To a person who treats, stores, or

disposes of hazardous waste in a Statewhich is authorized under Subpart A orB of Part 271 of this. chapter if the Statehas not been authorized to carry out therequirements and prohibitionsapplicable to the treatment, storage, ordisposal of hazardous waste at hisfacility which are imposed pursuant tothe Hazardous and Solid WasteAmendments of 1984. The requirementsand prohibitions that are applicableuntil a State receives authorization tocarry them out include all Federalprogram requirements identified in§ 271.1(j).

1Y. In § 264.18, new paragraph (c) isadded io read as follows:

§ 264.18 Loca.ori standards.* * a a a

(c) S.2lt dome formations, salt bedformations, underground mines andcaves. The placement of anynoncontainerized or bulk liquidhazardous waste in any salt domeformation, selt bed formation,underground mine or cave is prohibited,except for the Department of EnergyWaste Isolation Pilot Project in NewMexico.

13, 40 CFR Part 264 is amended byreviskig § 2!?3.70 as follows:

§ 264.70 Applicability.The regulations in this subpart apply

to owners and operators of both on-siteand off-site facili "es, except as § 264.1provides otherwise. Sections 264.71,264.72, and 264.76 do not apply toowners and operators of on-sitefacilities that do not receive anyhazardous waste from off-site sources.Section 264.73(b) only applies topermittees who treat, store, or disposeof hazardous wastes on-site where suchwastes were generated.

19. In § 264.73, new paragraph (b)(9)and an OMB control number are addedto read as follows:

§ 264.73 Operating record.* * * a *

(b)aaa(9) A certification by the permittee no

less often than annually, that the

permittee has a program in place toreduce the volume and toxicity ofhazardous waste that he generates tothe degree determined by the permitteeto be economically practicable; and theproposed method of treatment, storageor disposal is that practicable methodcurrently available to the permitteewhich minimizes the present and futurethreat to human health and theenvironment.(The reporting and recordkeepingrequirements contained in paragraph (b)(9)were approved by 0MB under controlnumber 2050-0037.)

20. In 40 CFR Part 264, the hending forSubpart F is revised to read as ifl'ows:

Subpart F-Releases From SolidWaste Management Units

21. In 40 CFR Part 264, § 254.90 isamended by revising paragraphs (a) and(b) to read as follows:

§ 264.90 Applicability.(a)(1) Except as provided in paragraph

(b) of this section, the regulations in thissubpart apply to owners or operators offacilities that treat, store or dispose ofhazardous waste. The owner or operatormust satisfy the requirements identifiedin paragraph (a)(2) of this section for allwastes (or constituents thereof)contained in solid waste managementunits at the facility, regardless of thetime at which waste was placed in suchunits.

(2) All solid waste management unitsmust comply with the requirements in§ 264.101. A surface impoundment,waste pile, and land treatment unit orlandfill that receives hazardous wasteafter July 26, 1982 (hereinafter referredto as a "regulated unit") must complywith the requirements of § § 264.91-264.100 in lieu of § 264.101 for purpoqesof detecting, characterizing andresponding to releases to the uppermostaquifer. The finanical responsibilityrequirements of § 264.101 apply toregulated units.

(b) The owner or operator's regulatedunit or units are not subject to regulationfor releases into the uppermost aquiferunder this subpart if:

(1) The owner or operator is exemptedunder § 264.1; or

(2) He operates a unit which theRegional Administrator finds:

fi) Is an engineered structure,(ii) Does not receive or contain liquid

waste or waste containing free liquids,(iii) Is designed and operated to

exclude liquid, precipitation, and otherrun-on and run-off,

(iv) Has both inner and outer layers ofcontainment enclosing the waste,

.... I i

28746



(v) Has a leak detection system builtinto each containment layer,

(vi) The owner or operator willprovide continuing operation andmaintenance of these leak detectionsystems during the active life of the unitand the closure and post-closure careperiods, and

(vii) To a reasonable degree ofcertainty, will not allow hazardousconstituents to migrate beyond the outercontainment layer prior to the end of thethe pog-closure care period.

(3) The Regional Administrator finds,pursuant to § 264.280(d), that thetreatment zone of a land treatment unitthat qualifies as a regulated unit doesnot contain levels of hazardousconstituents that are above backgroundlevels of those constituents by anamount that is statistically significant,and if an unsaturated zone monitoringprogram meeting the requirements of§ 264.278 has not shown a statisticallysignificant increase in hazardousconstituents below the treatment zoneduring the operating life of the unit. Anexemption under this paragraph canonly relieve an owner or operator ofresponsibility to meet the requirementsof this subpart during the post-closurecare period; or

(4) The Regional Administrator findsthat there is no potential for migration ofliquid from a regulated unit to theuppermost aquifer during the active lifeof the regulated unit (including theclosure period) and the port-closure careperiod specified under § 264.117. Thisdemonstration must be certified by aqualified geologist or geotechnicalengineer. In order to provide anadequate margin of safety in theprediction of potential migration ofliquid, the owner or operator must baseany predictions made under thisparagraph on assumptions thatmaximize the rate of liquid migration.

(5) He designs and operates a pile incompliance with § 264.250(c).

22. A new § 264.101 is added to Part264, Subpart F to read as follows:

§ 264.101 Corrective action for solidwaste management units.

(a) The owner or operator of a facilityseeking a permit for the treatment,storage or disposal of hazardous wastemust institute corrective action asnecessary to protect human health andthe environment for all releases ofhazardous waste or constituents fromany solid waste management unit at thefacility, regardless of the time at whichwaste was placed in such unit.

(b) Corrective action will be specifiedin the permit. The permit will containschedules of compliance for such

corrective action (where such correctiveaction cannot be completed prior toissuance of the permit) and assurancesof financial. responsibility for completingsuch corrective action.

§ 264.221 [Amended]23. In § 264.221, paragraphs (c), (d),

and (e) are redesignated as paragraphs(f), (g), and (h), respectively.

24. In § 264.221, the introductory textof paragraph (a) is revised to read asfollows:

§ 264.221 Design and operatingrequirements.

(a) Any surface impoundment that isnot covered by paragraph (c) of thissection or § 265.221 of this chapter musthave a liner for all portions of theimpoundment (except for existingportions of such impoundments]. Theliner must be designed, constructed, andinstalled to prevent any migration ofwastes out of the impoundment to theadjacent subsurface soil or groundwater or surface water at any timeduring the active life (including theclosure period) of the impoundment. Theliner may be constructed of materialsthat may allow wastes to migrate intothe liner (but not into the adjacentsubsurface soil or ground water orsurface water) during the active life ofthe facility, provided that theimpoundment is closed in accordancewith § 24.228(a)(1). For impoundmentsthat will be closed in accordance with§ 264.228(a)(2), the liner must beconstructed of materials that canprevent wastes from migrating into theliner during the active life of the facility.The liner must be: * * *

25. Section 264.221 is amended byadding paragraphs (c), (d], and (e) toread as follows:


(c) The owner or operator of each newsurface impoundment, each new surfaceimpoundment unit at an existing facility,each replacement of an existing surfaceimpoundment unit, and each lateralexpansion of an existing surfaceimpoundment unit, must install two ormore liners and a leachate collectionsystem between such liners. The linersand leachate collection system mustprotect human health and theenvironment. The requirements of thisparagraph shall apply with respect to allwaste received after the issuance of thepermit. The requirement for theinstallation of two or more liners in thisparagraph may be satisfied by theinstallation of a top liner designed,

operated and constructed of materials toprevent the migration of any constituentinto such liner during the period suchfacility remains in operation (includingany post-closure monitoring period], anda lower liner designed, operated, andconstructed to prevent the migration ofany constituent through such linerduring such period. For the purpose ofthe preceding sentence, a lower linershall be deemed to satisfy suchrequirement if it is constructed of atleast a 3-foot thick layer of recompactedclay or other natural material with apermeability of no more than 1 X10 - 7

centimeter per second.(d) Paragraph (c) of this section will

not apply if the owner or operatordemonstrates to the RegionalAdministrator, and the RegionalAdministrator finds for such surfaceimpoundment, that alternative designand operating practices, together withlocation characteristics, will prevent themigration of any hazardous constituentinto the ground water or surface waterat least as effectively as such liners andleachate collection systems.

(e) The double liner requirement setforth in paragraph (c) of this section maybe waived by the RegionalAdministrator for any monofill, if:

(1) The monofill contains onlyhazardous wastes from foundry furnaceemission controls or metal castingmolding sand, and such wastes do notcontain constituents which wouldrender the wastes hazardous for reasonsother than the EP toxicity characteristicsin § 261.24 of this chapter; and

(2)(i)(A) The monofill has at least oneliner for which there is no evidence thatsuch liner is leaking. For the purposes ofthis paragraph, the term "liner" means aliner designed, constructed, installed,and operated to prevent hazardouswaste from passing into the liner at anytime during the active life of the facility,or a liner designed, constructed,installed, and operated to preventhazardous waste from migrating beyondthe liner to adjacent subsurface soil,ground water, or surface water at anytime during the active life of the facility.In the case of any surface impoundmentwhich has been exempted from therequirements of paragraph (c) of thissection on the basis of a liner designed,constructed, installed, and operated toprevent hazardous waste from passingbeyond the liner, at the closure of suchimpoundment, the owner or operatormust remove or decontaminate all wasteresidues, all contaminated linermaterial, and contaminated soil to theextent practicable. If all contaminatedsoil is not removed.or decontaminated,the owner or operator of such

28747



impoundment will comply withappropriate post-closure requirements,including but not limited to ground-water monitoring and corrective action;

(B) The monofill is located more thanone-quarter mile from an undergroundsource of drinking water (as that term isdefined in § 144.3 of this chapter); and

(C) The monofill is in compliance withgenerally applicable ground-watermonitoring requrements for facilitieswith permits under RCRA § 3005(c); or

(ii) The owner or operatordemonstrates that the monofill islocated, designed and operated so as toassure that there will be no migration ofany hazardous constituent into groundwater or surface water at any futuretime.

§ 264.222 [Removed]26. Section 264.222 is removed.

§ 264.226 [Amended]27. Section 264.226(b)(3) is removed,

and paragraph (b)(4) is redesignated as(b)(3).

§ 264.227 (Amended]28. Section 24.227(d)(2)(i) is amended

by removing the phrase "or§ 264.228(b)(2)."

§ 264.228 [Amended]29. Section 264.228(b)(2) is removed

and paragraphs (b)(3) and (b)(4) areredesignated as (b)(2) and (b)(3),respectively.

30. Section 264.228(d) is removed.




and paragraphs (b)(3) and (b)(4) areredesignated as (b)(2) and {b)(3),respectively.

§ 264.301 [Amended]34. Section 264.301 is amended by

redesignating paragraphs (c), (d), (e), (f),and (g) as paragraphs (i, (g), (h), (I), and(j), respectively.

35. Section 264.301 is amended byrevising the introductory text ofparagraph (a) to read as follows:


(a) Any landfill that is not covered byparagraph (c) of this section or§ 265.301(a) of this chapter must have aliner system for all portions of thelandfill (except for existing portions ofsuch landfill). The liner system musthave: * •

*

36. Section 264.301 is amended byadding new paragraphs (c), (d), (e), and(k), to read as follows:


(c) The owner or operator of each newlandfill, each new landfill unit at anexisting facility, each replacement of anexisting landfill unit, and each lateralexpansion of an existing landfill unit,must install two or more liners and aleachate collection system above andbetween the liners. The liners andleachate collection systems must protecthuman health and the environment. Therequirement for the installation of twoor more liners in this paragraph may besatisfied by the installation of a top linerdesigned, operated and constructed ofmaterials to prevent the migration ofany constituent into such liner duringthe period such facility remains inoperation (including any post-closuremonitoring period), and a lower linerdesigned, operated, and constructed toprevent the migration of any constituentthrough such liner during such period.For the purpose of the precedingsentence, a lower liner shall be deemedto satisfy such requirement if it isconstructed of at least a 3-foot thicklayer of recompacted clay or othernatural material with a permeability ofno more than 1x 10-7 centimeter persecond.

(d) Paragraph (c) of this section willnot apply if the owner or operatordemonstrates to the RegionalAdministrator, and the RegionalAdministrator finds for such landfill,that alternative design and operatingpractices, together with locationcharacteristics, will prevent themigration of any hazardous constituentinto the ground water or surface waterat least as effectively as such liners andleachate collection systems.

(e) The double liner requirement setforth in paragraph (c) of this section maybe waived by the RegionalAdministrator for any monofill, if:


(2(i)(A) The monofill has at least oneliner for which there is no evidence thatsuch liner is leaking;


(C) The monofill is in compliance withgenerally applicable ground-watermonitoring requirements for facilitieswith permits under RCRA 3005(c); or

(ii) The owner or operatordemonstrates that the monofill islocated, designed and operated so as toassure that there will be no migration ofany hazardous constituent into groundwater or surface water at any futuretime.• * * • *

(k) Any permit under RCRA 3005(c)which is issued for a landfill locatedwithin the State of Alabama shallrequire the installation of two or moreliners and a leachate collection systemabove and between such liners,notwithstanding any other provision ofRCRA.

§ 264.302 (Removed]37. Section 264.302 is removed.


and paragraphs (b)(3), and (b)(4) areredesignated (b)(2) and (b)(3),respectively.


and paragraphs (b)(3) and (b)(4), (b)(5)and (b)(6) are redesignated (b)(2), and(b)(3), (b)(4) and (b)(5), respectively.

40. Section 264.310(c) is removed.41. Section 264.314 is amended by

revising the introductory text ofparagraph (a) to read as follows:

§ 264.314 Special requirements for bulkand containerized waste.

(a) Bulk or non-containerized liquidwaste or waste containing free liquidsmay be placed in a landfill prior to May8, 1985 only if:

42. Paragraph (b) of § 264.314 isredesignated paragraph (d), and a newparagraph (b) is added to read asfollows:


(b) Effective May 8, 1985, theplacement of bulk or non-containerizedliquid hazardous waste or hazardouswaste containing free liquids (whetheror not absorbents have been added) inany landfill is prohibited.

43. Section 264.314 is amended byadding paragraph (e) and an OMBcontrol number to read as follows:

§ 264.314 Special requirements for bulkand containerized waste.• * • • •

28748



(e) Effective November 8, 1985, theplacement of any liquid which is not ahazardous waste in a landfill isprohibited unless the owner or operatorof such landfill demonstrates to theRegional Administrator, or the RegionalAdministrator determines, that:

(1) The only reasonably availablealternative to the placement in suchlandfill is placement in a landfill orunlined surface impoundment, whetheror not permitted or operating underinterim status, which contains, or mayreasonably be anticipated to contain,hazardous waste; and

(2) Placement in such owner oroperator's landfill will not present a riskof contamination of any undergroundsource of drinking water (as that term isdefined in § 144.3 of this chapter.](The reporting and recordkeepingrequirements contained in this section wereapproved by OMB under control number2050-0037.)

PART 265-INTERIM STATUSSTANDARDS FOR OWNERS ANDOPERATORS OF HAZARDOUS WASTETREATMENT, STORAGE ANDDISPOSAL FACILITIES

44. The authority citation for Part 265is revised to read as follows:

Authority: Secs. 1006, 2002(a) , 3004, 3005and 3015, Solid Waste Disposal Act, asamended by the Resource Conservation andRecovery Act, as amended (42 U.S.C. 6905,6912(a), 6924, 6925, and 6935].

45. Section 265.1 is amended byrevising paragraph (c)(4) to read asfollows:

§ 265.1 [Amended]

(c) * * *(4) A person who treats, stores, or

disposes of hazardous waste in a Statewith a RCRA hazardous waste programauthorized under Subparts A or B of Part271 of this chapter, except that therequirements of this .part will continue toapply:

(i) As stated in paragraph (c)(2) of thissection, if the authorized State RCRAprogram does not cover disposal ofhazardous waste by means ofunderground injection; or

(ii) To a person who treats, stores, ordisposes of hazardous waste in a Stateauthorized under Subpart A or B of Part271 of this chapter if the State has notbeen authorized to carry out therequirements and prohibitionsapplicable to the treatment, storage, ordisposal of hazardous waste at hisfacility which are imposed pursuant tothe Hazardous and Solid Waste ActAmendments of 1984. The requirementsand prohibitions that are applicable

until a State receives authorization tocarry them out include all Federalprogram requirements identified in§ 271.1(j).a * * * *

46. In Part 265, Subpart B, a new§ 265.18 is added to read as follows:

§ 265.18 Location standards.The placement of any hazardous

waste in a salt dome, salt bed formation,underground mine or cave is prohibited,except for the Department of EnergyWaste Isolation Pilot Project in NewMexico.

47. Part 265, Subpart B, is amended byadding a new § 265.221 to read asfollows:

§ 265.221 Design requirements.(a) The owner or operator of a surface

impoundment must install two or moreliners and leachate collection system inaccordance with § 264.221(c) of thischapter, with respect to each new unit,replacement of an existing unit, orlateral expansion of an existing unit thatis within the area identified in the PartA permit application, and with respectto waste received beginning May 8,1985.

(b) The owner or operator of each unitreferred to in paragraph (a) of thissection must notify the RegionalAdministrator at least sixty days priorto receiving waste. The owner oroperator of each facility submittingnotice must file a Part B applicationwithin six months of the receipt of suchnotice.

(c) Paragraph (a) of this section willnot apply if the owner or operatordemonstrates to the RegionalAdministrator, and the RegionalAdministrator finds for such surfaceimpoundment, that alternative designand operating practices, together withlocation characteristics, will prevent themigration of any hazardous constituentinto the ground water or surface waterat least as effectively as such liners andleachate collection systems.

(d) The double liner requirement setforth in paragraph (a) of this sectionmay be waived by the RegionalAdministrator for any monofill, if:


(2)(i)(A) The monofill has at least oneliner for which there is no evidence thatsuch liner in leaking. For the purposes ofthis paragraph the term "liner" means aliner designed, constructed, installed,

and operated to prevent hazardouswaste from passing into the liner at anytime during the active life of the facility,or a liner designed, constructed,installed, and operated to preventhazardous waste from migrating beyondthe liner to adjacent subsurface soil,ground water, or surface water at anytime during the active life of the facility.In the case of any surface impoundmentwhich has been exempted from therequirements of paragraph (a) of thissection on the basis of a liner designed,constructed, installed, and operated toprevent hazardous waste from passingbeyond the liner, at the closure of suchimpoundment the owner or operatormust remove or decontaminate all wasteresidues, all contaminated linermaterial, and contaminated soil to theextent practicable. If all contaminatedsoil it is not removed ordecontaminated, the owner of operatorof such impoundment must comply withappropriate post-closure requirements,including but not limited to ground-water monitoring and corrective action;

(B) The monofill is located more thanone-quarter mile from an undergroundsource of drinking vWater (as that term isdefined in § 144.3 of this chapter); and

(C) The monofill is in compliance withgenerally applicable ground-watermonitoring requirements for facilitieswith permits under RCRA § 3005(c); or

(ii) The owner or operatordemonstrates that the monofill islocated, designed and operated so as toassure that there will be no migration ofany hazardous constituent into groundwater or surface water at any futuretime.

(e) In the case of any unit in which theliner and leachate collection system hasbeen installed pursuant to therequirements of paragraph (a) of thissection and in good faith compliancewith paragraph (a) of this section andwith guidance documents governingliners and leachate collection *systemsunder paragraph (a) of this section, noliner or leachate collection systemwhich is different from that which wasso installed pursuant to paragraph (a) ofthis section will be required for suchunit by the Regional Administratorwhen issuing the first permit to suchfacility, except that the RegionalAdministrator will not be precludedfrom requiring installation of a new linerwhen the Regional Administrator hasreason to believe that any liner installedpursuant to the requirements ofparagraph (a) of this section is leaking.

48. Part 265 is amended by adding anew § 265.254 to read as follows:

28749



§ 265.254 Design requirements.The owner or operator of a waste pile

is subject to the requirements for linersand leachate collection systems orequivalent protection provided in§ 264.251 of this chapter, with respect toeach new unit, replacement of anexisting unit, or lateral expansion of anexisting unit that is within the areaindentified in the Part A permitapplication, and with respect to wastereceived beginning May 8, 1985.


§ 265.301 Design requirements.(a) The owner or operator of a landfill

must install two or more liners andleachate collection systems above andbetween such liners in accordance with§ 264.301(c) of this chapter, with respectto each new unit, replacement of anexisting unit, or lateral expansion of anexisting unit that is within the areaidentified in the Part A permitapplication, and with respect to wastereceived beginning May 8, 1985.

(b) The owner or operator of each unitreferred to in paragraph (a) of thissection must notify the RegionalAdministrator at least sixty days priorto receiving waste. The owner oroperator of each facility submittingnotice must file a Part B applicationwithin six months of the receipt of suchnotice.

(c) Paragraph (a) of this section willnot apply if the owner or operatordemonstrates to the RegionalAdministrator, and the RegionalAdministrator finds for such landfill,that alternative design and operatingpractices, together with locationcharacteristics, will prevent themigration of any hazardous constituentinto the ground water or surface waterat least as effectively as such liners andleachate collection systems.

(d) The double liner requirement setforth in paragraph (a) of this sectionmay be waived by the RegionalAdministrator for any monofill, if:


(2)(i) (A) The monofill has at least oneliner for which there is no evidence thatsuch liner is leaking;


(C) The monofill is in compliance withgenerally applicable ground-water

monitoring requirements for facilitieswith permits under RCRA § 3005(c); or

(ii) The owner or operatordemonstrates that the monofill islocated, designed and operated so as to-assure that there will be no migration ofany hazardous constituent into groundwater or surface water at any futuretime.

(e) In the case of any unit in which theliner and leachate collection system hasbeen installed pursuant to therequirements of paragraph (a) of thissection and in good faith compliancewith paragraph (a) of this section andwith guidance documents governingliners and leachate collection systemsunder paragraph (a) of this section, noliner or leachate collection systemwhich is different from that which wasso installed pursuant to paragraph (a) ofthis section will be required for suchunit by the Regional Administratorwhen issuing the first permit to suchfacility, except that the RegionalAdministrator will not be precludedfrom requiring installation of a new linerwhen the Regional Administrator hasreason to believe that any liner installedpursuant to the requirements ofparagraph (a) of this section is leaking.

§ 265.314 [Amended]50. Paragraphs (b) and (c) of § 265.314

are redesignated as paragraphs (c) and(e), respectively, and paragraph (d) isreserved.

51. Section 265.314 is amended byrevising the introductory text ofparagraph [a), and by adding newparagraph (b) to read as follows:

§ 265.314 Special requirements for liquidbulk and containerized waste.

(a) Bulk or non-containerized liquidwaste or waste containing free liquidsmay be placed in a landfill prior to May8, 1985 only if:* * * * *

(b) Effective May 8, 1985, theplacement of bulk or non-containerizedliquid hazardous waste or hazardouswaste containing free liquids (whetheror not absorbents have been added) inany landfill is prohibited.* * * * *

52. Section 265.314 is amended byrevising newly designated paragraph (e),adding a new paragraph (f), and addingan OMB control number to the end ofthe section to read as follows:


(e) The date for compliance withparagraph (a) of this section isNovember 19, 1981. The date for

compliance with paragraph (c) of thissection is March 22, 1982.

(f) Effective November 8, 1985, theplacement of any liquid which is not ahazardous waste in a landfill isprohibited unless the owner or operatorof such landfill demonstrates to theRegional Administrator, or the RegionalAdministrator determines, that:

(1) The only reasonably availablealternative to the placement in suchlandfill is placement in a landfill orunlined surface impoundment, whetheror not permitted or operating underinterim status, which contains, or mayreasonably be anticipated to contain,hazardous waste; and

(2) Placement in such owner oroperator's landfill will not present a riskof contamination of any undergroundsource of drinking water (as that term isdefined in § 144.3 of this chapter).

(The reporting and recordkeepingrequirements contained in this section wereapproved by OMB under control number2050--0037)

PART 266-STANDARDS FOR THEMANAGEMENT OF SPECIFICHAZARDOUS WASTES AND SPECIFICTYPES OF HAZARDOUS WASTEMANAGEMENT FACILITIES


Authority: Secs. 1006, 2002(a), and 3004, ofthe Solid Waste Disposal Act, as amended bythe Resource Conservation and Recovery Actof 1976, as amended (42 U.S.C. 6905, 6912(a),and 6924).

54. In Part 266, Subpart C, the text of266.23 is redesignated as paragraph (a)and a new paragraph (b) is added toread as follows:

§ 266.23 Standards applicable to users ofmaterials that are used In a manner thatconstitutes disposal.

(b) The use of waste or used oil orother material, which is contaminatedwith dioxin or any other hazardouswaste (other than a waste identifiedsolely on the basis of ignitability), fordust suppression or road treatment isprohibited.

55. In Part 266, Subpart D is amendedby adding § 266.31 as set forth below.

§ 266.31 Prohibitions.(a) [Reserved](b)(1) Except as provided in paragrapt

(b)(2) of this section, no fuel whichcontains any hazardous waste may beburned in any cement kiln which islocated within the boundaries of anyincorporated municipality with apopulation greater than 500,000 (basedon the most recent census statistics)

28750



unless such kiln fully complies withregulations under this chapter that areapplicable to incinerators.

(2) This requirement does not apply topetroleum refinery hazardous wastescontaining oil which are converted intopetroleum coke at the same facility atwhich such wastes were generated,unless the resulting coke product wouldexceed one or more of thecharacteristics of hazardous waste inPart 261, Subpart C.

56. In Part 266, Subpart D, § 266.34 isamended by adding paragraph (d) andadding an OMB control number to theend of the section.

§ 266.34 [Amended]

(d) Labelling. (1) Except as providedin paragraphs (d)(2)-(4) of this section,after February 6, 1985, it shall beunlawful for any person who produces,distributes, or markets any fuel thatcontains a hazardous waste to distributeor market such fuel if the invoice or thebill of sale f~ils:

(i) To bear the following statement:"WARNING: THIS FUEL CONTAINSHAZARDOUS WASTE", and

(ii) To list the hazardous wastescontained therein. Such statement mustbe located in a conspicuous place onevery such invoice or bill of sale andmust appear in conspicuous and legibletype in contrast by typography, layout,or color with other printed matter on theinvoice or bill of sale.

(2) This requirement does not apply tofuels produced from petroleum refininghazardous waste containing oil if

{i) Such materials are generated andreinserted on-site into the refiningprocess;

(ii) Contaminants are removed; and(iii) Such refining waste containing oil

is converted along with normal processstreams into petroleum-derived fuelproducts at a facility at which crude oilis refined into petroleum products andwhich is classified as a number SIC 2911facility under the Office of Managementand Budget Standard IndustrialClassification Manual.

(3) This requirement does not apply tofuels produced from oily materialsresulting from normal petroleum refiningproduction and transportation practices;if

(i) Contaminants are removed; and(ii] Such oily materials are converted

along with normal process streams intopetroleum-derived fuel products at afacility at which crude oil is refined intopetroleum products and which isclassified as a number SIC 2911 facilityunder the Office of Management andBudget Standard IndustrialClassification Manual.

(4) This requirement does not apply topetroleum refinery hazardous wastescontaining oil which are converted intopetroleum coke at the same facility atwhich such wastes were generated,unless the resulting coke product wouldexceed one or more of thecharacteristics of hazardous waste inPart 261, Subpart C. '(The reporting and recordkeepingrequirements contained in this section wereapproved by OMB under control number2050-0047)

PART 270-EPA ADMINISTEREDPERMIT PROGRAMS: THEHAZARDOUS WASTE PERMITPROGRAM

57. The authority citation for Part 270is revised to read as follows:

Authority: Secs. 1006, 2002, 3005, 3007, 3019and 7004 of the Solid Waste Disposal Act, asamended by the Resource Conservation andRecovery Act of 1976, as amended (42 U.S.C.6905, 6912, 6925, 6927, 6939, and 6974).

58. In Part 270, § 270.10 is amended byrevising paragraphs (a) and (c), theparagraph heading of (e), paragraphs(e)(1), (f)(1), (f)(3), adding (j), amendingparagraph (e)(4) by adding twosentences to the end and by adding anOMB control number to the end of thesection to read as follows:

§ 270.10 General applicationrequirements.

(a) Permit application. Any personwho is required to have a permit(including new applicants andpermittees with expiring permits) shallcomplete, sign, and submit anapplication to the Director as describedin this section and § § 270.70 through270.73. Persons currently authorizedwith interim status shall apply forpermits when required by the Director.Persons covered by RCRA permits byrule (§ 270.60), need not apply.Procedures for applications, issuanceand administration of emergencypermits are.found exclusively in§ 270.61. Procedures for application,issuance and administration of research,development, and demonstrationpermits are found exclusively in§ 270.65.

(c) Completeness. The Director shallnot issue a permit before receiving acomplete application for a permit exceptfor permits by rule, or emergencypermits. An application for a permit iscomplete when the Director receives anapplication form and any supplementalinformation which are completed to hissatisfaction. An application for a permitis complete notwithstanding the failureof the owner or operator to submit the

exposure information described inparagraph (j) of this section.

(e) Existing HWM facilities andinterim status qualifications. (1) Ownersand operators of existing hazardouswaste management facilities or ofhazardous waste management facilitiesin existence on the effective date ofstatutory or regulatory amendmentsunder the act that render the facilitysubject to the requirement to have aRCRA permit must submit Part A oftheir permit application no later than -

(i) Six months after the date ofpublication of regulations which firstrequire them to comply with thestandards set forth in 40 CFR Parts 265or 266, or

(ii) Thirty days after the date they firstbecome subject to the standards setforth in 40 CFR Part 265 or 266,whichever first occurs.

(4) * * * Notwithstanding the above,

any owner or operator of an existingHWM facility must submit a Part Bpermit application in accordance withthe dates specified in § 270.73. Anyowner or operator of a land disposalfacility in existence on the effective dateof statutory or regulatory amendmentsunder this Act that render the facilitysubjectto the requirement to have aRCRA permit must submit a Part Bapplication in accordance with the datesspecified in § 270.73.

(f) New HWM facilities. (1) Except asprovided in paragraph (f)(3) of thissection, no person shall begin physicalconstruction of a new HWM facilitywithout having submitted Part A andPart B of the permit application andhaving received a finally effective RCRApermit.

(3) Notwithstanding paragraph (f)(1)of this section, a person may construct afacility for the incineration ofpolychlorinated biphenyls pursuant toan approval issued by the Administratorunder section (6)(e) of the ToxicSubstances Control Act and any personowning or operating such a facility may,at any time after construction oroperation of such facility has begun, filean application for a RCRA permit toincinerate hazardous waste authorizingsuch facility to incinerate wasteidentified or listed under Subtitle C ofRCRA.

(j) Exposure information. (1) AfterAugust 8, 1985, any Part B permitapplication submitted by an owner oroperator of a facility that stores, treats,

28751



or dispose of hazardous waste in asurface impoundment or a landfill mustbe accompanied by information,reasonably ascertainable by the owneror operator, on the potential for thepublic to be exposed to hazardouswastes or hazardous constituentsthrough releases related to the unit. At aminimum, such information mustaddress:

(i) Reasonably foreseeable potentialreleases from both normal operationsand accidents at the unit, includingreleases associated withtransportationto or from the unit;

(ii) The potential pathways of humanexposure to hazardous wastes orconstituents resulting from the releasesdescribed under paragraph (i]; and

(iii) The potential magnitude andnature of the human exposure resultingfrom such releases.

(2] By August 8, 1985, owners andoperators of a landfill or a surfaceimpoundment who have alreadysubmitted a Part B application mustsubmit the exposure informationrequired in paragraph. (j)(1 of thissection.(Reporting and recordkeeping requirementscontained in this section were approved byOMB under control number 2050-0007.)

§ 270.17 [Amended]59. Section 270.17 is amended by

removing paragraph (c), redesignatingparagraphs (d), (e), (f), (g), (h), (i) and (j)as (c), (d), (e), (f), (g), (h), and (i)respectively.

60. Section 270.18 is amended byrevising paragraph (b) to read asfollows:

§ 270.18 Specific Part B Informationrequirements for waste plies.

(b) If an exemption is sought to§ 264.251 and Subpart F of Part 264 asprovided by § 264.250(c) or § 264.90(2),an explanation of how the standards of§ 264.250(c) will be complied with ordetailed plans and an-engineering reportdescribing how the requirements of§ 264.90(b)(2) will be met.

61. Section 270.18:is amended byremoving paragraph (d], redesignatingparagraphs (e), (f), (g), (h), (i) and (j) as(d), (e), (f), (g), (h) and (i) respectively.

62. Section 270.18 is amended byrevising newly designated paragraph (d)to read as follows:

(d) A description of how each wastepile, including the liner andappurtenances for control of run-on andrun-off, will be inspected in order tomeet the r~quirements of-§ 264.254(a)and (b). This information should be

included in the inspection plansubmitted under § 270.14(b)(5).* * *r * *

63. Section 270.21 is amended byrevising paragraph (h) to read asfollows:

§ 270.21 Specific Part B Informationrequirements for landfills.

(h) If bulk or non-containerized liquidwaste or wastes containing free liquidsis to be landfilled prior to May 8, 1985,an explanation of how the requirementsof § 264.314(a) will be complied with;* * * * *

64. Section 270.30 is amended byrevising the first sentence of paragraph(j)(2) to read as follows:

§ 270.30 Conditions applicable to allpermits.*t * * a *

(j) * * *

(2) The permittee shall retain recordsof all monitoring information, includingall calibration and maintenance recordsand all original strip chart recordings forcontinuous monitoring instrumentation,copies of all reports required by thispermit, the certification required by§ 264.73(b)(9) of this chapter, andrecords of all data used to complete theapplication for this permit, for a periodof at least 3 years from the date of thesample, measurement, report,certification, or application. * * *

65. Section 270.32 is amended byrevising paragraph (b) to read asfollows:

§ 270.32 Establishing permit conditions.

(b) (1) Each RCRA permit shallinclude permit conditions necessary toachieve compliance with the Act andregulations, including each of theapplicable requirements specified in 40CFR Parts 264, 266, and 267. In satisfyingthis provision, the Director mayincorporate applicable requirements of40 CFR Parts 24, 266, and 267 directlyinto the permit or establish other permitconditions that are based on these parts.

(2) Each permit issued under section3005 of this act shall contain terms andconditions as the Administrator or StateDirector determines necessary to protecthuman health and the environment.

66. Section 270.41 is amended byadding a new paragraph (a)(6) to read asfollows:

§ 270.41 Major modification or revocationand relssuance of permits.

(a) a a

(6) Notwithstanding any otherprovision in this section, when a permitfor a land disposal facility is reviewedby the Director under § 270.50(d), theDirector shall modify the permit asnecessary to assure that the facilitycontinues to comply with the currentlyapplicable requirements in Parts 124,260-266, and 270.* * * .* -*

67. Section 270.50 is amended byadding a new paragraph (d) to read asfollows:

§ 270.50 Duration of permits.• * * * *

(d) Each permit fora land disposalfacility shall be reviewed by theDirector five years after the .date ofpermit issuance or reissuance and shallbe modified as necessary, as provided in§ 270.41.

68. Section 270.60 is amended byadding new paragraphs (b)(3) and(c)(3)(vii) to read as follows:

§ 270.60 Permits by rule.

(b) • * *(3) For UIC permits issued after

November 8, 1984, complies with 40 CFR264.101.

(c) * * *

(3] * * *

(vii] for NPDES permits issued afterNovember 8, 1984, 40 CFR 264.101.

69. In Part 270, Subpart F, a new§ 270.65 is added to read as follows:

§ 270.65 Research, development, anddemonstration permits.

(a) The Administrator may issue aresearch, development, anddemonstration permit for any hazardouswaste treatment facility which proposesto utilize an innovative andexperimental hazardous wastetreatment technology or process forwhich permit standards for suchexperimental activity have not beenpromulgated under Part 264 or 266. Anysuch permit shall include such terms andconditions as will assure protection ofhuman health and the environment.Such permits:

(1) Shall provide for the constructionof such facilities as necessary, and foroperation of the facility for not longerthan one year unless renewed asprovided in paragraph (d) of this section,and

(2) Shall provide for the receipt andtreatment by the facility of only thosetypes and quantities of hazardous wastewhich the Administrator deemsnecessary for purposes of determiningthe efficacy and performance

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capabilities of the technology or processand the effects of such technology orprocess on human health and theenvironment, and

(3) Shall include such requirements asthe Administrator deems necessary toprotect human health and theenvironment (including, but not limitedto, requirements regarding monitoring,operation, financial responsibility,closure, and remedial action), and suchrequirements as the Administratordeems necessary regarding testing andproviding of information to theAdministrator with respect to theoperation of the facility.

(b) For the purpose of expeditingreview and issuance of permits underthis section, the Administrator may,consistent with the protection of humanhealth and the environment, modify orwaive permit application and permitissuance requirements in Parts 124 and270 except that there may be nomodification or waiver of regulationsregarding financial responsibility(including insurance) or of proceduresregarding public participation.

(c) The Administrator may order animmediate termination of all operationsat the facility at any time he determinesthat termination is necessary to protecthuman health and the environment.

(d) Any permit issued under thissection may be renewed not more thanthree times. Each such renewal shall befor a period of not more than 1 year.

70. Section 270.70 is amended byrevising the introductory text ofparagraph (a) and by adding paragraph(c) to read as follows:

§ 270.70 Qualifying for Interim status.(a) Any person who owns or operates

an "existing HWM facility" or a facilityin existence on the effective date ofstatutory or regulatory amendmentsunder the Act that render the facilitysubject to the requirement to have anRCRA permit shall have interim statusand shall be treated as having beenissued a permit to the extent he or shehas: * * *• * * * *

(c) Paragraph (a) of this section shallnot apply to any facility which has beenpreviously denied a RCRA permit or ifauthority to operate the facility underRCRA has been previously terminated.

71. Section 270.73 is amended byadding paragraphs (c], (d), (e), and (f)and by adding an OMB control numberto the end of the section to read asfollows:

§ 270.73 Termination of Interim status.

(c) For owners or operators of eachland disposal facility which has been

granted interim status prior toNovember 8, 1984, on November 8, 1985,unless:

(1) The owner or operator submits aPart B application for a permit for suchfacility prior to that date; and

(2) The owner or operator certifiesthat such facility is in compliance withall applicable ground-water monitoringand financial responsibilityrequirements.

(d) For owners or operators of eachland disposal facility which is inexistence on the effective date ofstatutory or regulatory amendmentsunder the Act that render the facilitysubject to the requirement to have aRCRA permit and which is grantedinterim status, twelve months after thedate on which the facility first becomessubject to such permit requirementunless the owner or operator of suchfacility:

(1) Submits a Part B application for aRCRA permit for such facility before thedate 12 months after the date on whichthe facility first becomes subject to suchpermit requirement; and

(2) Certifies that such facility is incompliance with all applicable groundwater monitoring and financialresponsibility requirements.

(e) For owners or operators of eachincinerator facility on November 8, 1989,unless the owner or operator of thefacility submits a Part B application fora RCRA permit for an incineratorfacility by November 8, 1986.

(f) For owners or operators of anyfacility (other than a land disposal or anincinerator facility) on November 8,1992, unless the owner or operator of thefacility submits a Part B application fora RCRA permit for the facility byNovember 8, 1988.(The reporting and recordkeepingrequirements contained in this section wereapproved by OMB under control number2050-0037.)

PART 271-REQUIREMENTS FORAUTHORIZATION OF STATEHAZARDOUS WASTE PROGRAMS


Authority: Secs. 1006, 2002(a), and 3006 ofthe Solid Waste Disposal Act, as amended bythe Resource Conservation and Recovery Actof 1976, as amended (42 U.S.C. 6905, 6912(a),and 6926).

73. Section 271.1 is amended byrevising paragraphs (a) and (f) andadding paragraph (j) to read as follows:

§ 271.1 Purpose and scope.(a) This subpart specifies the

procedures EPA will follow inapproving, revising, and withdrawing

approval of State programs and therequirements State programs must meetto be approved by the Administratorunder Sections 3006 (b) and (0 of RCRA.

(f) Except as provided in § 271.3(a)(3),upon approval of a State permittingprogram, the Administrator shallsuspend the issuance of Federal permitsfor those activities subject to theapproved State program.* * * * *

(j) Requirements and prohibitionswhich are applicable to the generation,transportation, treatment, storage, ordisposal of hazardous waste and whichare imposed pursuant to the Hazardousand Solid Waste Amendments of 1984(HSWA) include:

(1) Any requirement or prohibitionwhich has taken effect under HSWA,and

(2) All regulations specified in Table1.

Note.-See §§ 264.1(f)(3), 265.1(c)(4)(ii),271.3(a), 271.21(e), and 271.121(c)(3) forapplicability.

TABLE 1.-REGULATIONS IMPLEMENTING THEHAZARDOUS AND SOLID WASTE AMEND-MENTS OF 1984

Federal RegisterDate Title of regulation reference

1-14-85 .................... Dioxin-Containing 50 FR 1978-2006.Wastes,

July 15, 1985 ........... Codification Rule. 50 FR (insertFederalRegister, pagenumbers].

74. Section 271.3 is amended byrevising paragraph (a) to read asfollows:

§ 271.3 Availability of final authorization.(a) States approved under this subpart

are authorized to administer and enforcetheir hazardous waste program in lieu ofthe Federal program, except as providedbelow:

(1) Any requirement or prohibitionwhich is applicable to the generation,transportation, treatment, storage, ordisposal of hazardous waste and whichis imposed pursuant to the Hazardousand Solid Waste Amendments of 1984takes effect in each State having afinally authorized State program on thesame date as such requirement takeseffect in other States. Theserequirements and prohibitions areidentified in § 271.1(j).

(2) The requirements and prohibitionsin § 271.1(j) supersede any less stringentprovision of a State program. TheAdministrator is authorized to carry outeach such Federal requirement andprohibition in an authorized State

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except where, pursuant to Sections3006(b) or 3006(g)(2) of RCRA, the Statehas received final ot interimauthorization to carry out the particularrequirement or prohibition. Violations ofFederal requirements and prohibitionseffective in authorized States areenforceable under Sections 3008, 3013and 7003 of RCRA.

(3) Until an authorized State programis revised to reflect the amendmentsmade by the Hazardous and SolidWaste Amendments of 1984 and suchprogram revisions receive final orinterim authorization pursuant tosections 3006(b) or 3006(g)(2) of RCRA,the Administrator shall have theauthority in such'State to issue or denypermits or those portions of permitsaffected by the requirements andprohibitions established by theHazardous and Solid WasteAmendments of 1984.

75. Section 271.17 is amended byadding a new paragraph (c) to read asfollows:

§ 271.17 Sharing of Information.

(c) The State program must providefor the public availability of informationobtained by the State regarding facilitiesand sites for the treatment, storage, anddisposal of hazardous waste. Suchinformation must be made available tothe public in substantially the samemanner, and to the same degree, aswould be the case if the Administratorwas carrying out the provisions ofSubtitle C of RCRA in the State. Interimauthorization under § 271.24 is rotavailable to demonstrate compliancewith this section.

76. Section 271.19 is amended byadding a new paragraph (f) to read asfollows:

§,271.19 EPA review of State permits.

(1) Notwithstanding the aboveprovisions, EPA shall issue permits, orportions of permits, to facilities inauthorized States as necessary toimplement the Hazardous and SolidWaste Amendments of 1984.

77. Section 271.21(e)(i)(ii).is removed,paragraph (e)(1)(iii) is redesignated as(e)(1)(ii), and paragraphs (e)(1)(i) and(e)(2) are revised to read as follows:

§ 271.21 Procedures for revision of Stateprograms.* * * * *

(e)(1](i) Official State applications forfinal authorization shall be reviewed onthe bases of Federal self-implementingstatutory provisions that were in effect12 months prior to the State's

submission of its official application andthe regulations in 40 CFR Parts 124, 260-266, 270 and 271 that were promulgated12 months prior to the State'ssubmission of its official application.Where a State program meets therequirements of section 3006(b) of RCRAand this subpart it may receive finalauthorization for any provision of itsprograx, corresponding to a Federalprovision in effect on the date of theState's authorization. For purposes ofthe Federal requirements identified in§ 271.1(j), a Stute may seek interimauthorization under § 271.21 in lieu offinal authorization.

(2) Any authcrized State programwhich requires revision because of aFederal program change to this Part or40 CFR Parts 124, 260-266, or 270 shallbe modifed within one year (or twoyears if a State statutory amendment isrequired) of the date of promulgation ofthe Federal regulation. AuthorizedStates shall have one year (two years ifa statutory amendment is required) fromthe effective date of self-implementingRCRA statutory amendments to modifytheir programs. For purposes of theFederal requirements idantified in§ 271.1(j), a State may satisfy thisrequirement for modification byapplying for interim authorization under§ 271.24 or by revising its program asprovided in this section.

78. Part 271 is amended by adding anew § 271.24 to Subpart A to read asfollows:

§ 271.24 Interim authorization ur.dersection 3006(g) of RCRA.

Any State which is applying for or hasbeen granted final authorizationpursuant to Section 3006(b) of RCRAmay submit to the Administratorevidence that its program contains forhas been amended to include) anyrequirement which is substantiallyequivalent to a requirement identified§ 271.1(j). Such States may requestinterim authorization under Section3006(g) of RCRA to carry out the Staterequirement in lieu of the Administratorcarrying out the Federal requirement inthe State.

79. Section 271.121 is amended byrevising paragraphs (a), (c)(3) and (f) asfollows:

§ 271.121 Purpose and scope.(a) This subpart specifies

requirements a State program must meetin order to obtain interim authorizationunder Section 3006(c) of RCRA. A Statemust meet all the requirements of thisSubpart in order to qualify for interimauthorization. The requirements a State

program must meet in order to obtainfinal authorization under Section 3006(b)of RCRA are specified in Subpart A. Inaddition, § 271.138 addresses theavailability of interim authorizationunder Section 3006(g)(2) of RCRA forStates with interim authorization underSection 3006(c) of RCRA.

(c) * * *

(3) States meeting the requirements ofthis Subpart will be allowed toadminister a permit program in lieu ofthe corresponding Federal hazardouswaste permit program for eachcomponent for which they have receivedinterim authoTization, except asprovided below:

(i) Any requirement of prohibitionwhich is applicable to the generation,transportation, treatment, storage, ordisposal of hazardous waste and whichis imposed pursuant to the amendmentsmade by the Hazardous and SolidWaste Amendments of 1984 takes effectin each State having an interimauthorized State program on the samedate as such requirement takes effect inother States. These requirements andprohibitions are identified in § 271.1(j).

(ii) The requirements and prohibitionsin § 271.1(j) supersede any less stringentprovision of the State program. TheAdministrator is authorized to carry outeach Federal requirement andprohibition identified in § 271.1(j) in anauthorized State except where the Statehas received interim authorization underSection 3006(g)(2) of RCRA to carry outthe particular requirement orprohibition. Violations of Federalrequirements and prohibitions effectivein authorized States are enforceableunder Sections 3008, 3013, and 7003 ofRCRA.

(iii) Until an authorized State programis revised to reflect the amendmentsmade by the Hazardous and SolidWaste Amendments of 1984 and suchprogram revisions receive interimauthorization under Section 3006(g)(2) ofRCRA, the Administrator shall have theauthority in such State to issue or denypermits or those portions of permitsaffected by the requirements andprohibitions established by theHazardous and Solid WasteAmendments of 1984.

(f) Except as provided in paragraph(c](3) of this section, upon approval of aState program for a component of PhaseII, the Administrator shall suspend theissuance of Federal permits for thoseactivities subject to the approved Stateprogram.* *t * * ,*

I II -- "1 II128754



80. Section 271.122 is amended byrevising paragraph [b)(1) to read asfollows and by removing the note whichfollows (b)(1):

§ 271.122 Schedule.

(b)(1) Interim authorization for Phase Iand Phase II expires on January 31, 1986.

81. Section 271.134 is amended byadding a new paragraph (f) to read asfollows:

§ 271.134 EPA review of State permits.

(f9 Notwithstanding the aboveprovisions, EPA shall issue permits, orportions of permits, to facilities inauthorized States as necessary toimplement the Hazardous and SolidWaste Amendments of 1984.


§ 271.138 Interim authorization undersection 3006(g) of RCRA.

(a) Any State which, before the dateof enactment of the Hazardous andSolid Waste Amendments of 1984, hasan existing hazardous waste programwhich has been granted interimauthorization for all components ofPbase II may submit to the,Administrator evidence that suchexisting program contains (or has beenamended to include) any requirementwhich is substantially equivalent to arequirement referred to in § 271.1(j) ofthis chapter. Such States may requestinterim authorization under section3006(g) of RCRA to carry out suchrequirement in lieu of the Administratorcarrying out the Federal requirement inthe State.

(b) Any such interim authorizationunder section 3006(g) expires on January31, 1986, if a State program with interimauthorization under section 3006(c)reverts to EPA on that date. See§ 271.122(b)(2) of this chapter.

(The reporting and recordkeepingrequirements contained in this section wereapproved by OMB under control number2050-0037.)

83. 40 CFR Part 280 is added asfollows:

PART 280-UNDERGROUNDSTORAGE TANKS

Sec.280.1 Definition and exemptions.280.2 Interim prohibition.

Authority: Secs. 9001 and 9003(g) of theSolid Waste Disposal Act, as revised by theResource Conservation and Recovery Act, asamended [42 U.S.C. 6991 and 6993(g)].

§ 280.1 Definitions and exemptions."Person" has the same meaning as

provided in Section 1004(15) of theResource Conservation and RecoveryAct, as amended, except that such termincludes a consortium, a joint venture, acommercial entity, and the United StatesGovernment.

"Regulated substance" means(a) Any substance defined in Section

101(14) of the CbmprehensiveEnvironmental Response, Compensationand Liability Act of 1980 (but notincluding any substance regulated as ahazardous waste under Subtitle C of theResource Conservation and RecoveryAct, as amended), and

(b) Petroleum, including crude oil orany fraction thereof which is liquid atstandard conditions of temperature andpressure (60 degrees Fahrenheit and 14.7pounds per square inch absolute).

"Release" means any spilling, leaking,emitting, discharging, escaping, leaching,or disposing from an undergroundstbrage tank into ground water, surfacewater, or subsurface soils.

"Underground storage tank" meansany one or combination of tanks(including underground pipes connectedthereto) which is used to contain anaccumulation of regulated substances,and the volume of which (including thevolume of the underground pipesconnected thereto) is 10 per centum ormore beneath the surface of the ground.Such term does not include any

(a) Farm or residential tank of 1,100gallons or less capacity used for storingmotor fuel for noncommercial purposes,

(b) Tank used for storing heating oilfor consumptive use on the premiseswhere stored,

(c) Septic tank,(d) Pipeline facility (including

gathering lines):(e) Regulated under the Natural Gas

Pipeline Safety Act of 1968 (49 U.S.C.App. 1671, et. seq.), or

(f) Regulated under the HazardousLiquid Pipeline Safety Act of 1979 (49U.S.C. App. 2001, et. seq.), or

(g) Which is an intrastate pipelinefacility regulated under State lawscomparable to the provisions of lawreferred to in clause (e) and (f) of thisdefinition,

(h) Surface impoundment, pit, pond, orlagoon,

(i) Storm water or waste watercollection system,

(j) Flow-through process tank,(k) Liquid trap or associated gathering

lines directly related to oil or gasproduction and gathering operations, or

(1) Storage tank situated in anunderground area (such as a basement,cellar, mineworking, drift, shaft, ortunnel) if the storage tank is ituatedupon or above the surface of theundesignated floor.(m) Any pipes connected to any tank

which is described in paragraphs (a)through (1) of this section.

§ 280.2 Interim prohibition.(a) Between May 7, 1985 and the

effective date of the standardspromulgated by the Administrator undersection 9003(e) of the Hazardous andSolid Waste Amendments of 1984, noperson may install an undergroundstorage tank for the purpose of storingregulated substances unless such tank(whether of single or double wallconstruction):

(1) Will prevent releases due tocorrosion or structural failure for theoperational life of the tank;

(2) Is cathodically protected againstcorrosion, constructed of noncorrosivematerial, steel clad with a noncorrosivematerial, or designed in a manner toprevent the release or threatenedrelease of any stored substance; and

(3) The material used in theconstruction or lining of the tank iscompatible with the substance to bestored.

(b) Notwithstanding paragraph (a) ofthis section, if soil tests conducted inaccordance with ASTM Standard G57-78, or another standard approved by theAdministrator, show that soil resistivityin an installation location is 12,000 ohm-cm or more (unless a more stringentstandard is prescribed by theAdministrator by rule), a storage tankwithout corrosion protection may beinstalled in that location during theperiod referred to in paragraph (a) ofthis section.

[FR Doc. 85-13094 Filed 7-12-85; 8:45 am]BILLING CODE 6560-50-M

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