COMMENT
RESPONSE
DOCUMENT
 
HAZARDOUS
WASTE
MANAGEMENT
SYSTEM;
STANDARDIZED
PERMIT;
CORRECTIVE
ACTION;
AND
FINANCIAL
RESPONSIBILITY
FOR
RCRA
HAZARDOUS
WASTE
MANAGEMENT
FACILITIES
(
RCRA­
2001­
0029)

­­­­­­­­­­­­­­­­­

Office
of
Solid
Waste
U.
S.
Environmental
Protection
Agency
April
2005
2
Table
of
Contents
1.
General
Comments
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6
2.
Overview
and
Background
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I)
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37
3.
What
would
be
the
Advantages
of
a
Standardized
Permit?
(
I.
C.
3)
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38
4.
Who
would
be
Eligible
for
a
Standardized
Permit?
(
I.
C.
4)
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46
5.
What
are
the
Proposed
Steps
for
Obtaining
a
Standardized
Permit?
(
I.
D.
2)
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47
6.
Eligibility
of
facilities
that
manage
through
on­
site
storage
and
treatment
units
as
well
as
through
other
types
of
waste
management
units
(
I.
E.
3.
a)
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48
7.
Should
the
standardized
permit
be
applicable
to
facilities
that
treat
or
store
waste
generated
off­
site?
(
I.
E.
3.
b)
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52
9.
Additional
ways
to
reduce
burden
and
cost
of
permitting
while
maintaining
effectiveness?
(
I.
E.
3.
d)
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67
10.
How
would
the
RCRA
Expanded
Public
Participation
Requirements
Change?
(
II.
B)
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11.
Submit
a
Notice
of
Intent
to
operate
under
the
standardized
permit
along
with
appropriate
supporting
documents
(
III.
A.
2)
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72
12.
How
would
I
Switch
from
an
Individual
Permit
to
a
Standardized
Permit?
(
III.
B)
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74
13.
Issuing
a
Standardized
Permit
(
IV)
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76
14.
Drafting
terms
and
conditions
for
the
supplemental
portion
(
IV.
A.
1)
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76
15.
Denying
coverage
under
the
standardized
permit
(
IV.
A.
2)
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78
16.
Preparing
your
draft
permit
decision
in
120
days
(
IV.
A.
3)
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81
17.
How
Would
the
Regulatory
Agency
Prepare
a
Final
Standardized
Permit?
(
IV.
B)
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90
18.
In
What
Situations
Could
Facility
Owners
or
Operators
be
Required
to
Apply
for
an
Individual
Permit?
(
IV.
C)
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91
19.
What
are
the
Proposed
Opportunities
for
Public
Comments
and
Hearings?
(
V.
B)
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94
3
20.
How
could
People
Appeal
a
Final
Standardized
Permit
Decision
under
the
Proposal?
(
V.
D)
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95
21.
Maintaining
a
Standardized
Permit
(
VI)
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96
22.
What
Types
of
Changes
could
Owners
or
Operators
Make?
(
VI.
A)
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96
23.
What
are
the
Proposed
Definitions
of
Routine
and
Significant
Changes?
(
VI.
B)
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98
24.
What
are
the
Proposed
Standardized
Permit
Procedures
for
Making
Routine
Changes?
(
VI.
C)
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104
25.
What
are
the
Proposed
Standardized
Permit
Procedures
for
Making
Significant
Changes?
(
VI.
D)
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105
26.
Proposed
Part
267
Standards
for
Owners
and
Operators
of
Hazardous
Waste
Facilities
Operating
Under
A
Standardized
Permit
(
VII)
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107
27.
Overview
(
VII.
A)
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107
28.
What
are
the
proposed
security
requirements?
(
VII.
C.
5)
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108
29.
What
are
the
proposed
standards
for
selecting
the
location
of
my
facility?
(
VII.
C.
9)
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111
30.
How
would
I
ensure
access
for
personnel
and
equipment
during
emergencies?
(
VII.
D.
5)
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114
31.
When
would
I
need
to
manifest
my
waste?
(
VII.
F.
1)
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115
32.
What
information
would
I
need
to
keep?
(
VII.
F.
2)
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115
33.
Why
would
the
proposed
corrective
action
requirements
be
included
in
the
supplemental
portion
of
the
standardized
permit?
(
VII.
G.
4)
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116
34.
Subpart
G
 
Closure
(
VII.
H)
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121
35.
What
general
standards
would
I
need
to
meet
when
I
stop
operating
the
unit?
(
VII.
H.
1)
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131
36.
What
procedures
would
I
need
to
follow?
(
VII.
H.
2)
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136
37.
After
I
stop
operating,
how
long
would
I
have
until
I
close
the
unit?
(
VII.
H.
3)
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136
4
38.
Subpart
H
 
Financial
Requirements
(
VII.
I)
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140
39.
Closure
cost
estimates
(
VII.
I.
3)
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145
40.
Option
4:
Standard
forms
for
estimating
closure
costs
(
VII.
I.
6)
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148
41.
Option
5:
Default
estimates
for
estimating
closure
costs
(
VII.
I.
7)
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150
42.
Option
6:
Waiving
the
cost
estimate
for
facilities
using
the
financial
test
or
corporate
guarantee
(
VII.
I.
8)
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151
43.
Financial
assurance
for
closure
(
VII.
I.
10)
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153
44.
Liability
requirements
(
VII.
I.
12)
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166
45.
Other
provisions
of
the
financial
requirements
(
VII.
I.
13)
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166
46.
Subpart
I
 
Use
and
management
of
containers
(
VII.
J)
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167
47.
Would
this
subpart
apply
to
me?
(
VII.
J.
1)
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169
48.
What
would
I
need
to
do
when
I
want
to
stop
using
the
containers?
(
VII.
J.
7)
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170
49.
Subpart
J
 
Tank
Systems
(
VII.
K)
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170
50.
What
are
the
proposed
required
design
and
construction
standards
for
new
tank
systems
or
components?
(
VII.
K.
2)
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173
51.
What
are
the
proposed
preventative
requirements
for
containing
a
release?
(
VII.
K.
6)
.
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174
52.
Specific
Changes
to
Part
270:
Permit
reapplication
(
VIII.
B.
4)
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174
53.
Specific
Changes
to
Part
270:
Continuation
of
expiring
permits
(
VIII.
B.
7)
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176
54.
What
Information
would
I
Need
to
Submit
to
the
Permitting
Agency
to
Support
my
Standardized
Permit
Application?:
RCRA
Part
A
application
information
(
IX.
B.
1)
.
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177
55.
What
are
the
Proposed
Certification
Requirements?
Certification
of
compliance
(
IX.
C.
1)
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178
56.
What
are
the
Proposed
Certification
Requirements?
Certification
of
availability
of
information
(
IX.
C.
2)
.
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185
5
57.
What
happens
if
my
facility
is
not
in
compliance
with
proposed
part
267
requirements
at
the
time
I
submit
my
Notice
of
Intent?
(
IX.
C.
3)
.
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188
58.
What
Information
would
be
Required
to
be
Kept
at
my
Facility?
(
IX.
D)
.
.
.
.
.
.
.
.
.
.
.
.
.
190
59.
What
Information
would
be
Required
to
be
Kept
at
my
Facility?
Air
emission
control
information
(
IX.
D.
5)
.
.
.
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.
190
60.
Public
Comments
on
Corrective
Action
and
Financial
Assurance
Issues
(
X)
.
.
.
.
.
.
.
.
.
.
191
61.
Public
Comment
on
Corrective
Action
and
Financial
Assurance
Issues:
Corrective
Action
(
X.
A)
.
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.
193
62.
Could
I
satisfy
the
RCRA
corrective
action
requirements
for
my
site
by
conducting
cleanup
under
an
alternate
State
program?
(
X.
A.
1)
.
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.
202
63.
How
would
EPA
and
the
authorized
States
address
the
alternate
authority
cleanup
provisions
in
the
RCRA
permit?
(
X.
A.
2)
.
.
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.
218
64.
How
would
EPA
or
the
authorized
State
determine
that
cleanups
conducted
under
an
alternate
cleanup
program
would
satisfy
the
requirements
of
section
264.101?
(
X.
A.
3)
.
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.
222
65.
Financial
Assurance
(
X.
B)
.
.
.
.
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.
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.
229
66.
Executive
Order
12866:
Description
of
potential
benefits
of
this
rule
(
XII.
A.
1.
b)
.
.
.
.
.
.
258
6
COMMENT
RESPONSE
DOCUMENT
 
HAZARDOUS
WASTE
MANAGEMENT
SYSTEM;
STANDARDIZED
PERMIT;
CORRECTIVE
ACTION;
AND
FINANCIAL
RESPONSIBILITY
FOR
RCRA
HAZARDOUS
WASTE
MANAGEMENT
FACILITIES
(
RCRA­
2001­
0029)

1.
General
Comments
Comment:
Allowing
facilities
to
switch
from
a
newly
issued
regular
permit
to
a
standardized
permit
adds
an
additional
burden
to
states
and
regions.
Existing
permits
should
not
be
revoked
before
their
term
has
ended.
(
Donald
Webster,
RCRA­
2001­
0029­
0029)

Response:
The
agency
recognizes
that,
although
there
may
be
additional
initial
burden
associated
with
switching
to
a
standardized
permit,
we
should
not
deny
eligibility
for
a
standardized
permit
simply
because
a
facility
currently
has
a
"
regular
permit."

Comment:
Generally
we
agree
with
the
intent
of
this
proposal.
Any
"
managerial"
simplification
without
sacrificing
environmental
integrity
is
good.
Facilities
that
do
not
dispose
or
incinerate
hazardous
waste
are
not
necessarily
more
inherently
`
dangerous'
{
either
operationally
or
environmentally}
then
many
non­
hazardous
waste
operations
such
as
chemical
warehousing,
bulking,
or
blending
facilities.
Drum
storage
of
a
waste
solvent
is
functionally
not
any
different
then
drum
storage
of
raw
solvent
materials.
The
public's
right
to
know
and
`
governmental'
oversight
should
not
be
much
different
for
hazardous
waste
facilities
then
it
is
for
facilities
that
use
&
generate
the
waste
in
the
first
place.

We
believe
the
proposal
as
written
would
set
up
a
double
standard
between
regular
and
standard
permits
regarding
oversight
and
application
requirements
for
the
exactly
the
same
activities.
The
net
result
of
this
proposal
would
be
a
disjointed
compliance/
enforcement
structure.
Specifically
regarding
submittal
of
waste
analysis
plans,
inclusion
of
off­
site
waste
handlers
and
permit
revisions.
(
James
Butler,
Regulatory
Compliance
Officer,
Cycle
Chem,
Inc.,
RCRA­
2001­
0029­
0031)

Response:
The
storage
of
waste
solvent
may
not
be
functionally
much
different
than
product
storage.
However,
the
hazardous
waste
regulations
of
40
CFR
260­
270
impose
requirements
on
hazardous
waste
management,
rather
than
on
product
management.

The
standardized
permit
rule
is
designed
for
the
relatively
straightforward
management
activities
conducted
in
tanks,
containers,
and/
or
containment
buildings
that
normally
require
a
permit.
The
rule
envisioned
that
waste
management
in
these
units
warranted
a
less
structured
permitting
approach
than
would
be
applied
to
other
waste
management
units,
particularly
when
that
waste
is
7
either
generated
and
managed
on­
site,
or
managed
at
a
site
that
receives
wastes
from
an
off­
site
generator
under
the
same
ownership
as
the
receiving
facility.
In
these
cases,
the
person
treating
the
waste
should
have
adequate
knowledge
of
the
wastes
being
treated,
whether
generated
on­
site,
or
received
from
off­
site.

Comment:
Limited
Direct
Value
for
SOCMA
Members.
Despite
the
obvious
benefits
of
a
standardized
permit,
SOCMA
believes
that
the
clean
closure
requirements
and
strict
insurance
requirements
are
sufficiently
burdensome
so
as
to
preclude
many
SOCMA
members
from
obtaining
standardized
permits
for
their
own
facilities.
Currently,
most
SOCMA
members
do
not
have
Part
B
permits
for
the
specific
reasons
that
the
multi­
year
lead
time,
costs,
and
related
burdens
associated
with
the
Part
B
permit
process
make
it
too
cumbersome
and
inflexible
to
be
a
feasible
option.
The
market­
driven
nature
of
batch
manufacturing
creates
an
inability
to
accurately
predict
in
advance
which
products
and
hence
which
wastes
will
be
produced.
This
effectively
precludes
a
batch
manufacturer
from
being
able
to
obtain
a
Part
B
permit
which
has
sufficient
flexibility
to
cover
the
varying
waste
streams
which
may
be
produced.

If
there
were
a
more
tailored
hazardous
waste
storage
option
available
to
SOCMA
members
that
did
not
include
the
burdensome
requirements
of
the
Part
B
permit,
many
SOCMA
members
could
benefit
from
the
increased
flexibility
that
longer
storage
time
might
afford.
Similarly,
greater
flexibility
in
storage
options
could
increase
the
ability
of
SOCMA
members
to
pursue
recycling
opportunities
which
presently
are
not
feasible
due
to
the
lack
of
a
Part
B
permit.

Thus,
while
SOCMA
commends
EPA
for
pursuing
the
standardized
permit
proposal,
SOCMA
urges
EPA
to
consider
additional
steps
for
providing
greater
flexibility
with
respect
to
on­
site
storage
practices
for
generating
facilities
that
are
not
Part
B
permitted
facilities.
(
Jeff
Gunnulfsen,
Manager,
Government
Relations,
the
Synthetic
Organic
Chemical
Manufacturers
Association
("
SOCMA"),
RCRA­
2001­
0029­
0038)

Response:
The
standardized
permit
rule
was
intended
to
provide
a
more
streamlined
permitting
approach
for
those
activities
for
which
a
permit
is
already
required.
Providing
greater
flexibility
for
on­
site
management
without
a
permit
is
beyond
the
scope
of
this
rulemaking.

Comment:

1.
The
U.
S.
Department
of
Energy
(
DOE)
generally
supports
EPA's
efforts
to
streamline
the
Resource
Conservation
and
Recovery
Act
(
RCRA)
permitting
process.
The
standardized
permit
would
be
available
to
generators
that
non­
thermally
treat
or
store
hazardous
waste
in
on­
site
containers,
tanks
or
containment
buildings.
DOE
agrees
that
the
standardized
permit
should
help
to
streamline
the
administrative
permitting
process
for
these
generators
and
shorten
the
time
required
to
obtain
the
RCRA
permit,
without
lessening
the
environmental
protection
provided
by
the
permit.
The
standardized
permit
should
also
8
reduce
the
amount
of
time
and
resources
required
to
maintain
the
RCRA
permit
through
the
operating
life
of
the
facility,
by
providing
streamlined
permit
modification
and
renewal
processes.

2.
DOE
is
concerned
about
possible
implications
of
the
proposed
standardized
permit
regulations
with
respect
to
EPA's
long­
standing
policy
that
exempts
from
RCRA
permitting
requirements
the
storage
and
treatment
of
a
limited
amount
of
hazardous
waste
in
tanks
or
containers
by
the
generator
at
or
near
the
site
of
generation.
This
policy
is
based
on
the
provisions
of
40
CFR
262.34(
c),
and
is
supported
by
several
EPA
policy
statements,
the
most
recent
of
which
appeared
in
a
letter
dated
July
18,
2000
(
E.
Cotsworth,
EPA
to
L.
Moothart,
Belshire
Environmental
Services).
While
the
standardized
permit
notice
of
proposed
rulemaking
(
NPRM)
does
not
suggest
any
change
to
the
generator
exemption
for
storage
and
treatment
in
tanks
or
containers,
DOE
urges
EPA
to
clarify
in
the
final
rule
that
there
is
none.
In
addition,
DOE
suggests
that
EPA
consider
promulgating,
as
part
of
the
standardized
permit
rule,
clarifying
changes
to
40
CFR
262.34(
c).
DOE
has
observed
that
EPA
continues
to
receive
inquiries
from
the
regulated
community
about
whether
the
generator
exemption
for
storage
in
tanks
or
containers
also
allows
treatment.
This
is
evidenced
by
repeated
policy
statements
addressing
this
subject
dating
back
to
1985.
DOE
believes
the
reason
this
subject
receives
so
many
inquiries
is
because
the
treatment
exemption
is
not
clearly
stated
in
the
regulations.
Therefore,
DOE
believes
that
clarifying
changes
are
warranted
and
that
EPA
could
logically
make
them
as
part
of
the
final
standardized
permit
rule.

3.
In
the
preamble
to
the
standardized
permit
NPRM,
EPA
indicates
that,
due
to
the
complexity
of
thermal
treatment
and
land
disposal
activities,
individual
permits
continue
to
be
warranted
for
these
types
of
hazardous
waste
management
activities
(
p.
52196,
col.
1).
DOE
agrees
that
these
types
of
hazardous
waste
management
activities
are
more
complex
than
storage
and
non­
thermal
treatment.
Also
more
complex
are
post­
closure
units
undergoing
remediation.
Nevertheless,
DOE
encourages
EPA
to
look
for
opportunities
to
reduce
the
permitting
burden,
even
for
such
complex
waste
management
practices.
Regarding
post­
closure
units
undergoing
remediation,
there
seems
to
be
a
particular
need
to
reduce
administrative
paperwork
and
expedite
regulator
reviews
in
order
to
accelerate
cleanups.
One
DOE
facility
reports
that
obtaining
regulator
approval
of
a
permit
modification
to
simply
add
or
move
one
extraction
well
at
a
RCRA­
regulated
post­
closure
unit
has
taken
up
to
11
months.

4.
DOE
requests
that,
in
the
final
standardized
permit
rule,
EPA
confirm
that
mixed
waste
not
managed
under
the
mixed
waste
treatment
and
storage
conditional
exemption
(
40
CFR
part
266,
subpart
N)
would
be
eligible
for
a
standardized
permit,
if
the
generator
treats
or
stores
it
in
tanks,
containers,
or
containment
buildings
in
compliance
with
the
requirements
of
40
CFR
part
267.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)
9
Response:
The
Standardized
Permit
Rulemaking,
as
DOE
points
out,
is
not
intended
to
change
policy
related
to
the
40
CFR
262.34
generator
accumulation
provisions,
which
allow
wastes
generated
on­
site
to
be
stored
without
a
permit
under
certain
conditions.
This
rulemaking
does
not
modify
the
provisions
applicable
to
generators
managing
wastes
within
the
time
limits
and
conditions
of
§
262.34.
It
applies
only
to
activities
of
RCRA
TSDs
that
are
otherwise
subject
to
permitting
(
and
who
generate
and
then
store
or
treat
waste
on­
site
in
containers,
tanks,
or
containment
buildings,
or
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility,
and
then
store
or
non­
thermally
treat
the
hazardous
waste
in
containers,
tanks,
or
containment
buildings.

With
respect
to
mixed
waste
not
being
managed
under
the
mixed
waste
treatment
and
storage
conditional
exemption,
the
storage
of
such
waste
in
tanks,
containers,
or
in
containment
buildings
would
be
eligible
for
a
standardized
permit,
presuming
the
other
regulatory
conditions
were
met.

Comment:
USWAG
Commends
EPA
For
Proposing
Regulations
That
Could
Provide
Significant
Regulatory
Relief
to
Members
of
the
Regulated
Community.
USWAG
applauds
EPA
for
proposing
a
RCRA
standardized
permit
rulemaking
that
will
provide
regulatory
relief
from
current
RCRA
hazardous
waste
permitting
requirements
to
many
members
of
the
regulated
community
 
we
have
long
supported
such
streamlining
efforts.
We
specifically
support
the
Agency's
proposal
to
streamline
RCRA
hazardous
waste
permitting
procedures
as
they
apply
to
hazardous
waste
storage
in
tanks,
containers,
and
containment
buildings,
and
we
agree
that
such
streamlined
procedures
will
continue
to
protect
human
health
and
the
environment
while
providing
procedural
relief
to
many
members
of
the
regulated
community.

USWAG
agrees
with
the
fundamental
premise
underlying
the
standardized
permit
proposal:

These
units
[
i.
e.,
tanks,
containers,
and
containment
buildings]
are
relatively
simple
to
design
and
properly
construct.
The
engineering
and
construction
knowledge
and
skills
necessary
to
design
and
construct
these
units
are
relatively
basic.
These
units
are
in
common
usage
in
many
applications
and
are
frequently
bought
"
off­
the­
shelf"
or
built
from
"
off­
the­
shelf"
designs.
Industry
associations
and
standards
organizations
have
developed
standards
for
these
units
that
are
in
widespread
use.
66
Fed.
Reg.
at
52196.

We
also
agree
that
"[
i]
t
is
easier
to
control
risks
at
these
simpler
storage
and
treatment
units.
We
believe
that
the
streamlined
standardized
permit,
as
proposed,
would
allow
adequate
interaction
and
oversight
by
the
regulating
agency
and
would
provide
sufficient
technical
controls
to
protect
human
health
and
the
environment."
Id.
10
Additionally,
USWAG
commends
the
Agency
for
investigating
the
important
issue
of
coordinating
RCRA
corrective
action
requirements
between
authorized
RCRA
programs
and
alternate
State
programs.
Id.
at
52232­
36.
It
is
essential
to
address
this
issue
explicitly
within
the
context
of
the
standardized
permit
proposal
to
"
balance
[
EPA's]
desire
for
a
streamlined
permitting
process
against
the
need
for
flexibility
in
the
corrective
action
program."
Id.
at
52213.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
We
appreciate
your
comments.
In
the
final
rule,
we
are
not
adding
any
additional
corrective
action
provisions
beyond
what
already
exists
in
the
regulations.
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities.
However,
the
Agency
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.
The
Agency
may
in
the
future
develop
guidance
on
issues
related
to
use
of
alternate
authorities,
and
will
consider
comments
submitted
on
this
rulemaking
at
that
time.

Comment:
If
a
new
HSWA
waste
was
created
by
EPA,
and
if
the
State
of
Missouri
had
adopted
the
Standardized
Permit
Rule
at
that
time,
it
would
be
necessary
and
appropriate
for
EPA
to
regulate
and
permit
the
management
of
that
new
waste
under
the
provisions
of
the
Missouri
Standardized
Permit
conditions
appropriate
for
that
waste.
At
the
time
that
Missouri
has
adopted
the
HSWA
regulations
that
define
the
newly­
created
hazardous
waste
and
received
authorization
from
EPA
to
administer
the
regulations
that
govern
it,
the
State
will
become
the
primary
regulator.

Missouri
law
requires
that
permit
applications
must
contain
"
plans,
specifications,
and
such
other
data
as
may
be
necessary
to
demonstrate
to
the
satisfactions
of
the
department
that
such
facility
does
or
will
provide
adequate
protection
of
the
health
of
humans
and
the
environment..."
and
applications
must
"
include
plans,
designs,
engineering
reports
and
relevant
data
for
construction,
alteration
or
operation
of
a
hazardous
waste
facility,
to
be
submitted
to
the
department
by
a
registered
professional
engineer
licensed
by
[
Missouri]."
The
proposed
rule
provides
for
applications
which
do
not
provide
information
required
by
our
law.
Furthermore
"
The
State
Geologist
and
the
departmental
engineers
shall
review
the
geologic
and
engineering
plans,
respectively,
and
attest
to
their
adequacy."
We
feel
that
we
could
not
attest
to
plans
which
are
not
submitted
and
have
not
been
reviewed.
Therefore
we
would
have
to
modify
the
rule
before
we
could
adopt
it.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
Under
RCRA,
authorized
state's
regulations
often
may
be
more
stringent
than
the
federal
program.
If
Missouri
state
law
requires
additional
information
for
permit
11
applications,
then
modification
of
the
rule
before
adoption
may
be
an
appropriate
course
of
action.

Comment:
Terminology
Confusion.
Since
1993,
California
has
had
statutes
for
Standardized
Permits
for
hazardous
waste
management
facilities.
Final
Standardized
Permit
regulations
have
been
in
place
since
July
31,
1996.
California
Standardized
Permits
are
available
to
most
onsite
or
offsite
facilities
that
conduct
non­
RCRA­
regulated
treatment
or
storage
activities.
Thirty
two
(
32)
California
Standardized
Permits
are
currently
in
effect;
several
more
are
in
process.
If
federal
regulations
now
provide
a
"
Standardized
Permit"
for
RCRA­
regulated
onsite
treatment
or
storage,
it
will
result
in
major
confusion
for
industries
in
California.
The
proposed
regulations
would
apply
to
a
different
universe
of
wastes
and
activities.
California's
statutory
and
regulatory
definitions
and
references
for
Standardized
Permits
would
no
longer
be
functional,
as
they
would
be
referring
to
two
different
regulatory
programs.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
Although
we
appreciate
California's
concern,
we
plan
to
continue
to
use
the
term
"
standardized
permit"
for
this
streamlined
approach
to
RCRA
hazardous
waste
permitting.
We
hope
our
use
of
the
term
with
respect
to
the
RCRA
program
does
not
result
in
unintended
difficulties
for
California.

Comment:
Adequate
Oversight.
The
proposed
RCRA
Standardized
Permit
efficacies
are
based
on
the
same
concept
as
California's
Standardized
Permit
program:
specified
portions
of
the
Part
B
are
certified,
not
reviewed.
The
proposed
RCRA
Standardized
Permit
application
certifications,
however,
cover
a
far
broader
scope
than
California's
application.
For
California's
Standardized
Permit
program,
only
nine
specified
portions
of
the
Part
B
information
(
personnel
training,
reporting,
inspection
plan,
security
plan,
facility
siting
information,
facility
management
practices,
manifesting
compliance,
contingency
and
emergency
preparedness,
and
land
ban
compliance)
were
allowed
to
be
certified,
and
detailed
guidance
and
forms
were
provided,
to
assure
that
an
applicant
could
be
held
responsible
as
being
aware
to
what
he
was
certifying.
The
proposed
RCRA
Standardized
Permit
application
appears
to
have
no
such
structure.
Similarly,
California
has
a
Permit­
by­
Rule
level
of
authorization
for
specified
onsite
waste
streams
and
treatment
activities.
The
allowable
parameters
are
detailed
in
regulations
and
guidance,
and
an
increased
level
of
inspections
is
provided
by
the
local
environmental
health
agency.
Would
there
be
any
provisions
made
for
providing
forms,
guidance
and/
or
an
increased
level
of
inspections
to
assure
compliance
with
the
appropriate
regulatory
standards?
Without
this
type
of
assistance,
we
believe
that
applicants
may
have
a
difficult
time
interpreting
the
applicable
regulations
accurately
enough
to
be
in
compliance,
regardless
of
their
best
efforts.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
We
have
developed
some
materials
to
assist
permit
applicants
and
regulators
involved
in
the
standardized
permit
process.
These
materials
include
checklists
for
materials
required
to
be
kept
on­
site
(
rather
than
be
submitted),
compliance
checklists
for
regulatory
provisions
that
must
be
met
as
part
of
the
compliance
12
audit,
and
a
model
standardized
permit.
We
are
also
in
the
process
of
developing
electronic
permitting
approaches
that
should
work
for
standardized
permits.

Comment:
Reactive
wastes.
While
military
munitions
are
excluded
from
management
under
a
RCRA
Standardized
Permit,
other
reactive
wastes
are
not.
Management
of
reactive
wastes
may
pose
significant
hazards
if
not
properly
managed.
In
addition,
reactive
wastes
frequently
require
different
handling
than
do
other
hazardous
wastes.
If
the
RCRA
Standardized
Permit
is
seen
as
usually
including
only
the
uniform
portion
of
the
permit,
any
requirements
unique
to
reactive
wastes
would
not
be
addressed.
Please
see
the
comments
regarding
guidance
and
inspections
under
Adequate
Oversight,
above.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
Management
of
reactive
wastes
may
pose
hazards
if
those
wastes
are
not
handled
properly.
Part
267
of
the
final
rule
includes
special
requirements
for
the
proper
management
of
ignitable
or
reactive
wastes.
Additionally,
the
standardized
permit
would,
at
the
discretion
of
EPA
or
the
director,
include
a
supplemental
portion
designed
to
address
site­
specific
issues.

Comment:
We
agree
with
EPA's
position
that
the
storage
of
hazardous
waste
military
munitions
should
continue
under
the
individual
permitting
program.
This
type
of
activity
should
not
be
viewed
as
routine
and
standardization
does
not
seem
practical.

The
Standardized
Permit
proposed
rule
does
not
take
into
account
for
environmental
justice
issues
and
any
state
specific
siting
requirements.
In
addition,
EPA
may
need
to
administer
the
program
before
states
have
the
authorization
to
do
so
under
the
states'
regulations.
The
Standardized
Permit
may
complicate
these
issues.
(
William
C.
Gidley,
Waste
Management
Section
Supervisor,
Nebraska
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0046)

Response:
The
standardized
permit
was
intended
for
waste
management
activities
in
tanks,
containers,
and
containment
buildings.
Facilities
conducting
activities
that
cannot
be
safely
performed
in
those
devices
should
consider
individual
permitting
as
an
alternative
to
a
standardized
permit.

Environmental
justice
issues
could
be
addressed
through
site
specific
conditions,
as
is
done
under
the
current
individual
permit
process.
This
is
a
Non­
HSWA
rule
so
EPA
would
not
administer
it
in
states
authorized
for
base
RCRA
permitting.

Comment:
ACS
thanks
the
Agency
for
its
efforts
to
make
hazardous
waste
regulations
issued
under
the
Resource
Conservation
and
Recovery
Act
more
efficient.
ACS
believes
that
regulatory
flexibility
can
maintain
or
improve
environmental
performance
while
reducing
compliance
costs.
To
that
end,
ACS
believes
that
the
proposed
"
standardized
permit"
would
streamline
the
13
administrative
permitting
process
and
reduce
paperwork,
especially
for
permitting
agencies.
However,
the
proposal
does
not
address
the
long­
standing
concerns
of
educational
and
research
laboratories
about
burdensome
with
RCRA
waste
treatment
regulations.
Congress
directed
EPA
to
address
those
concerns
in
PL
103­
327
in
1995.
In
this
sense,
the
proposed
rule
does
not
go
far
enough
to
address
the
concerns
of
the
regulated
community.

ACS
has
consistently
encouraged
EPA
to
develop
regulations
allowing
educational
and
research
laboratories
to
perform
some
on­
site
treatment
of
limited
quantities
of
RCRA
hazardous
waste.
EPA
should
provide
a
de
minimis
exemption
for
treatment
of
very
small
quantities
of
laboratory
waste
or
issue
a
permit­
by­
rule
to
allow
on­
site
treatment
in
laboratories.
EPA's
Permits
Improvement
Team
has
explored
and
recommended
both
options.
Such
an
allowance
would
allow
more
laboratories
to
treat
wastes
on­
site
and
reduce
the
costs
and
public
health
risks
of
transporting
and
disposing
of
wastes
at
commercial
facilities.
(
Attila
E.
Pavlath,
American
Chemical
Society,
RCRA­
2001­
0029­
0047)

Response:
While
certain
on­
site
management
without
a
permit
is
already
allowed
under
40
CFR
262.34,
the
more
general
concerns
you
raised
concerning
educational
and
research
labs
are
beyond
the
scope
of
this
rulemaking.

Comment:
Positive
Aspects
of
Proposal.
We
agree
with
many
of
the
ideas
for
streamlining
the
RCRA
permitting
program.
In
particular
we
agree
that
revisions
to
Part
270
concerning
permit
modifications
are
needed
to
reduce
the
extraneous
administrative
burden
on
the
permittee
and
agencies
caused
by
inconsequential
and
routine
changes
at
permitted
facilities.
There
is
very
little
benefit
to
human
health
and
the
environment
from
the
morass
of
Class
1
and
Class
2
permit
modifications
in
the
current
rule.
We
encourage
EPA
to
propose
a
common
sense
revision
to
the
permit
modification
rule
that
would
result
in
a
reduced
administrative
burden.
We
would
welcome
the
opportunity
to
work
with
EPA
to
help
work
on
this
to
replace
the
existing
permit
modification
scheme.

Areas
of
Concern
with
the
Proposal.
We
question
the
usefulness
of
the
standardized
permit
since
Georgia
has
only
received
two
new
storage
applications
since
1988.
All
storage
permits
were
statutorily
required
to
be
issued
by
November
8,
1992.
Due
to
the
corrective
action
obligations
and
financial
assurance
obligation
not
many
facilities
are
seeking
new
RCRA
permits.
As
mentioned
above
we
believe
that
it
would
be
more
helpful
to
permit
holders
and
regulatory
agencies
to
focus
on
a
streamlining
the
permit
modification
process
and
other
extraneous
reporting
requirements.
Our
specific
comments
on
the
proposed
rule
are
detailed
below.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
As
discussed
in
the
proposal,
the
rule
will
also
have
benefits
during
the
renewal
of
expiring
individual
permits,
and
through
the
streamlined
modification
(
permit
change)
process.
The
permit
change
processes
we
are
finalizing
should
help
improve
the
permit
maintenance
process
with
respect
to
standardized
permits.
We
are
finalizing
the
rule
with
three
categories
for
permit
changes:
routine,
routine
14
with
prior
agency
approval
(
includes
class
1
modifications
requiring
prior
approval,
and
all
class
2
modifications),
and
significant.
We
included
this
additional
category,
from
what
was
proposed,
because
certain
class
1
and
class
2
modifications
require
prior
approval,
and
we
wanted
to
account
for
that
need.
Streamlining
the
overall
permit
modification
process
for
individual
permitting
is
beyond
the
scope
of
this
rulemaking.

Comment:
Dominion
is
a
member
of
the
Utility
Solid
Waste
Activities
Group
(
USWAG)
and
agrees
with
the
separate
comments
filed
by
USWAG
on
this
Resource
Conservation
and
Recovery
Act
(
RCRA)
issue.

Dominion
strongly
agrees
with
the
Agency's
proposal
to
standardize
the
RCRA
permit,
which
will
streamline
the
permitting
process
as
well
as
the
permit
modification
process.
We
strongly
agree
with
the
Agency's
intent
to
shorten
the
permit
process
time
by
using
the
"
fill
in
the
blank"
permit
application
method.
Additionally,
Dominion
agrees
with
the
proposal
to
allow
owners
or
operators
to
prepare
and
make
available
upon
request
documents
that
we
currently
submit
to
the
Agency
for
approval
during
the
permitting
process.
Both
of
these
proposals
support
the
Agency's
intent
to
streamline
the
process
and
make
the
process
less
burdensome
to
the
owner
or
operator.

However,
Dominion
urges
the
Agency
to
ensure
that
the
RCRA
permit
process
will
not
create
additional
burdens
for
the
generator.
For
example,
we
do
not
support
the
requirement
to
conduct
audits
nor
would
we
want
this
proposal
to
apply
to
conditionally
exempt
or
small
quantity
generators.
(
Pamela
F.
Faggert,
Dominion,
RCRA­
2001­
0029­
0049)

Response:
As
discussed
in
the
proposal,
the
rule
will
also
have
benefits
during
the
renewal
of
expiring
individual
permits,
and
through
the
streamlined
modification
(
permit
change)
process.
The
permit
change
processes
we
are
finalizing
should
help
improve
the
permit
maintenance
process
with
respect
to
standardized
permits.
We
are
finalizing
the
rule
with
three
categories
for
permit
changes:
routine,
routine
with
prior
agency
approval
(
includes
class
1
modifications
requiring
prior
approval,
and
all
class
2
modifications),
and
significant.
We
included
this
additional
category,
from
what
was
proposed,
because
certain
class
1
and
class
2
modifications
require
prior
approval,
and
we
wanted
to
account
for
that
need.
Streamlining
the
overall
permit
modification
process
for
individual
permitting
is
beyond
the
scope
of
this
rulemaking.

We
are
exploring
how
we
can
best
use
a
fill­
in­
the­
blank
type
form
to
assist
in
the
permit
application
process,
and
are
currently
developing
an
e­
permitting
tool
to
assist
permit
applicants
and
permit
writers..
15
We
believe
that
audits
are
necessary,
and
integral
to
a
permitting
process
based
on
self
certification.
The
audits
help
confirm
that
the
facility
is/
will
be
in
compliance
with
the
applicable
provisions
of
the
regulations.

Currently,
generators
are
not
required
to
obtain
a
RCRA
permit
unless
storage
is
conducted
for
longer
than
the
time
periods
detailed
in
section
262.34,
or
treatment
is
conducted
that
is
not
permissible
under
those
provisions
(
e.
g.,
thermal
treatment).
The
RCRA
Standardized
Permit
Rule
is
not
intended
to
create
any
additional
burden
for
generators,
and
does
not
impose
any
requirements
on
generators
already
exempt
from
permitting
under
40
CFR
§
262.34.
If
a
generator
is
required
to
obtain
a
permit
because
of
longer
storage
times,
or
another
reason,
then
the
Standardized
Permit
Rule
may
benefit
that
generator.

Comment:
API
encourages
EPA
to
include
regulatory
language
reflecting
its
intention
that
the
effect
of
the
proposed
rule
is
to
streamline
requirements
for
facilities
already
required
to
obtain
permits
rather
than
impose
new
requirements
on
hazardous
waste
generators
not
currently
required
to
obtain
permits.
Though
EPA
states
in
the
preamble
"
Today's
action,
if
finalized,
could
potentially
affect
an
estimated
866
RCRA­
permitted
private
sector
facilities..."
and,
later,
"
Because
the
rule
proposes
to
streamline
existing
RCRA
regulation,
rather
than
add
new
RCRA
regulation..."
(
at
66
Fed.
Reg.
52194
and
52238
respectively),
the
regulatory
language
could
be
read
to
potentially
apply
to
hazardous
waste
generators
currently
operating
without
RCRA
permits.
The
language
that
could
be
misread
to
apply
to
facilities
not
currently
subject
to
RCRA
permits
is
found
at
proposed
section
267.10:
"
Does
this
subpart
apply
to
me?
This
subpart
applies
to
you
if
you
own
or
operate
a
facility
that
treats
or
stores
hazardous
waste
An
equal
opportunity
employer
under
a
40
CFR,
subpart
I
standardized
permit.
...,"
and
again
at
proposed
270.1,
where
the
proposal
states
that
"
you
may
be
eligible
for
a
standardized
permit
if
you
generate
hazardous
waste
and
then
non­
thermally
treat
or
store
the
hazardous
waste
in
tanks,
containers,
or
containment
buildings..."
It
is
critical
that
EPA
clarify
that
it
is
not
revoking
the
long
standing
policy
that
hazardous
waste
generators
may
store
and
non­
thermally
treat
hazardous
wastes
at
the
site
of
generation
for
up
to
90
days
(
for
a
large
quantity
generator)
without
a
permit
so
long
as
it
remains
in
with
applicable
regulatory
standards.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Response:
The
standardized
permit
rule
only
applies
to
those
facilities
already
required
to
obtain
a
RCRA
permit.
It
is
not
intended
to
apply
facilities
not
currently
required
to
obtain
a
permit,
e.
g.,
generator
accumulation,
already
exempt
from
permitting
under
§
262.34.
We
clarify
this
in
the
final
rule
preamble.

Comment:
We
would
first
like
to
set
the
context
of
our
comments.
Standardized
permits.
EPA
should
undertake
a
proactive
approach
to
streamlining
and
reform
that
reduce
paperwork,
rather
than
a
reactive
approach
that
results
in
the
EPA,
public
and
regulated
entities
using
outdated
16
methods
of
data
collection.
For
example,
rather
than
consolidating
forms,
reducing
the
information
that
regulated
entities
have
to
provide
to
demonstrate
that
they
are
operating
safely,
and
reducing
the
public's
access
to
high­
quality
data,
EPA
should
attempt
to
reduce
paperwork
by
using
"
smart
reporting
software",
electronic
reporting,
cross­
program
databasing
(
that
integrates
all
relevant
environmental
information
from
all
programs
and
agencies),
one­
stop
reporting
and
data
retrieval,
and
a
unified
national
facility
identification
system.
The
Paperwork
Reduction
Act
and
Government
Performance
and
Results
Act
demand
this
type
of
proactive
reform,
and
look
disfavorably
on
a
continuation
of
outdated
information
collection
systems.

Correction
Action.
U.
S.
PIRG
vigorously
objects
to
EPA's
proposal
to
allow
state
voluntary
clean
up
programs
to
remediate
The
Resource
Conservation
and
Recovery
Act's
(
RCRA)
Corrective
Action
(
CA)
provisions
are
playing
an
increasingly
important
role
in
remediating
the
nation's
toxic
waste
sites.
EPA,
as
the
lead
agency
at
CA
sites
and
toxic
waste
sites
remediated
under
pursuant
to
the
Comprehensive
Environmental
Response
Compensation
Liability
Act,
has
decades
of
experience
cleaning
up
some
of
the
nation's
most
contaminated
sites.
EPA
also
has
the
ability
to
utilize
significant
federal
resources
to
address
the
threats
posed
by
toxic
waste
sites.
By
contrast,
state
voluntary
clean
up
programs
have
limited
or
uncertain
financial
resources,
varying
levels
of
public
participation,
disparate
levels
of
technical
expertise
in
remediating
sites,
and
a
host
of
other
problems.
Therefore,
EPA
 
not
the
states
 
is
best
suited
to
take
the
lead
in
cleaning
up
RCRA
CA
sites.

Financial
Responsibility.
In
this
time
of
widespread
economic
downturn,
it
is
more
vital
than
ever
before
to
ensure
that
facilities
that
manage
hazardous
waste
have
the
financial
capacity
to
respond
to
any
accidental
releases
and
to
conduct
clean
up
operations
and
long­
term
operation
and
maintenance
activities
at
their
facilities
after
closure.
This
is
particularly
true
given
the
nation's
long
period
of
economic
growth,
which
may
have
caused
facilities
to
increase
the
amount
of
waste
that
they
handle,
without
a
concomitant
increase
in
the
financial
resources
that
they
devoted
to
assurance.
Unfortunately,
many
states
also
face
budget
deficits,
and
therefore
are
not
well
situated
to
fund
clean
up
activities
if
facilities
fail
to
maintain
adequate
finances
resources.
Therefore,
it
is
critical
that
facilities
purchase
their
assurance
from
insurers
with
the
highest
credit
rating
that
provides
long­
term
protection
for
public
health
and
environmental
quality.
(
Grant
Cope,
Staff
Attorney,
U.
S.
Public
Interest
Research
Group,
RCRA­
2001­
0029­
0051)

Response:
We
are
exploring
the
use
of
electronic
forms
through
the
Agency's
e­
permitting
initiative
(
see:
http://
www.
epa.
gov/
epaoswer/
hazwaste/
permit/
epmt/
epermit.
htm).

The
corrective
action
provisions
will
be
finalized
as
proposed
with
no
additional
guidance
provided
under
this
rulemaking.

This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities.
However,
the
17
Agency
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.
The
Agency
may
in
the
future
develop
guidance
on
issues
related
to
use
of
alternate
authorities,
and
will
consider
comments
submitted
on
this
rulemaking
at
that
time.
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
The
National
Automobile
Dealers
Association
(
NADA)
represents
20,000
franchised
automobile
and
truck
dealers
who
sell
new
and
used
motor
vehicles
and
engage
in
service,
repair
and
parts
sales.
Together
they
employ
in
excess
of
1,000,000
people
nationwide,
yet
more
than
60%
are
small
businesses
as
defined
by
the
Small
Business
Administration.

Earlier
this
Fall,
EPA
proposed
a
standardized
hazardous
waste
facility
permit
program
and
discussed
several
corrective
action
and
financial
assurance
issues.
66
Fed.
Reg.
52192,
et
seq.
(
October
12,
2001).
In
response,
NADA
makes
the
following
comments
and
suggestions.

Virtually
all
automobile
dealerships
generate
hazardous
wastes
(
e.
g.,
parts
cleaning
solvents,
paint
wastes,
batteries)
and
other
RCRA­
regulated
wastes
(
e.
g.,
used
oil,
antifreeze).
NADA
estimates
that
no
more
than
50%
of
these
dealerships
are
small
quantity
generators,
with
the
remainder
qualifying
for
conditionally
exempt
status.
NADA
is
unaware
of
even
one
dealership
that
treats,
stores,
or
disposes
of
hazardous
waste
in
a
manner
that
requires
a
Federal
permit.
Thus,
while
generally
supportive
of
attempts
to
ease
unnecessary
regulatory
burdens,
NADA
offers
no
specific
comment
on
the
standardized
facility
permit
proposal.
(
Douglas
I.
Greenhaus,
Director,
Environment
Health
and
Safety,
National
Automobile
Dealers
Association,
RCRA­
2001­
0029­
0052)

Response:
We
appreciate
NADA's
comments
to
the
proposed
rule.

Comment:
General
Permits
for
RCRA
Hazardous
Waste
Container
and
Tank
Management
Objective
of
Proposal:
The
hazardous
waste
permitting
process
is
notoriously
lengthy.
Simple
waste
management
techniques
must
(
by
regulatory
requirement)
go
through
the
same
process
as
complicated
management
techniques.
General
permits
for
container
and
tank
management
will
shorten
the
permitting
process
for
these
straightforward
and
simpler
hazardous
waste
18
management
activities.
EPA
and
States
have
"
talked"
about
this
option
before
but
little
progress
has
been
made
to
actually
implement
the
actions
needed
to
make
it
happen.

Expected
Benefits:
General
permits
for
RCRA
hazardous
waste
containers
and
tanks
can
expedite
and
simplify
the
permitting
process
without
diminishing
the
level
of
environmental
and
health
protection
afforded
by
conventional
permitting
approaches.
Faster,
simpler
permitting
for
these
basic
hazardous
waste
management
techniques
will
result
in
more
efficient
use
of
resources.
Facilities
requiring
permits
will
save
money
as
a
result
of
the
more
efficient
process
and
receive
permits
faster.
Faster
permitting
will
allow
businesses
greater
flexibility
in
planning
future
expansions.
Some
businesses
who
may
employ
improper
waste
management
practices
rather
than
submit
to
conventional
and
costly
permitting
procedures
may
be
more
likely
to
operate
in
of
general
permits.

Regulatory
Change:
Implementing
this
option
will
necessitate
federal
rulemaking
to
establish
the
protocol
for
hazardous
waste
general
permits
and
(
more
significantly)
deal
with
the
statutory
requirement
for
site­
wide
corrective
action
at
hazardous
waste
management
facilities.
In
order
for
general
permits
to
be
viable
for
RCRA
hazardous
waste
management
units
(
tanks
and
containers)
some
degree
of
relaxation
of
HSWA
corrective
action
requirements
would
be
necessary.
Currently,
any
new
RCRA
hazardous
waste
management
permit
must
include
facility­
wide
corrective
action
requirements.
Under
this
proposal
general
permits
for
hazardous
waste
tanks
and
containers
would
still
include
this
requirement.
However,
rather
than
including
detailed
facility
specific
corrective
action
requirements,
the
general
permit
would
include
basic
requirements
which
would
lead
to
the
development
of
facility
specific
corrective
action
requirements
as
a
function
conducted
under
the
permit
after
it
has
been
issued.

Principles
in
Agreement:
This
proposal
relates
to
the
principles
of
the
Agreement
as
follows:

Experimentation:
Regulators
will
have
less
facility
specific
information
when
permitting
containers
and
tanks
using
this
approach.
Instead,
regulatory
standards
mirroring
"
interim
status"
type
operating
parameters
would
be
used
to
control
the
design
and
operating
conditions
and
limits
for
these
units.
Likewise,
similar
general
facility
standards
would
also
be
used
to
direct
site
security,
record­
keeping,
manifesting,
etc.
This
approach
moves
in
the
direction
of
setting
standard
performance
standards
for
units
rather
than
customization
for
specific
unit
designs.

Environmental
Performance:
No
adverse
impact
to
the
environment
would
be
anticipated.
Operating
requirements
and
facility
standards
for
operators
utilizing
general
permits
would
be
no
less
protective
than
those
currently
in
place
for
facilities
operating
under
"
interim
status"
or
generator
accumulation
requirements.
Public
access
to
information
and
public
participation
in
the
permit
process
can
be
accommodated
within
the
scope
of
this
permit
strategy.
19
Smarter
Approaches:
This
approach
is
geared
to
matching
the
level
of
complexity
and
risk
associated
with
hazardous
waste
management
activities
with
an
appropriate
level
of
regulator
input
and
oversight
into
the
permitting
process.
Scaling
permit
oversight
efforts
to
the
appropriate
level
to
insure
safe
management
of
hazardous
waste
management
processes
rather
than
applying
a
"
one­
size­
fits­
all"
method
is
a
more
efficient
utilization
of
limited
resources.
This
approach
will
not
only
result
in
more
for
less
but
will
also
achieve
"
better"
results
because
some
permits
can
be
issued
much
faster
Stakeholder
Involvement:
The
stakeholders
in
this
proposal
are
federal,
state,
and
local
regulators
who
have
permit
authority
for
hazardous
waste
management
activities,
the
public
who
may
be
impacted
by
permitting
decisions
and
hazardous
waste
management
practices,
legislators
who
make
the
laws
governing
these
practices,
the
operators
who
undertake
hazardous
waste
management
activities
by
choice
or
necessity,
and
businesses
that
send
and
receive
hazardous
waste
from
facilities
subject
to
permits.
A
coalition
of
EPA,
States,
local
government,
elected
officials,
and
citizen
and
business
organization
representatives
could
be
called
upon
to
develop
the
concept
of
general
permits
for
containers
and
tanks
to
a
working
model
on
which
EPA
could
develop
an
advance
notice
of
proposed
rule­
making.
Further
input
could
be
the
basis
for
proposed
and
final
rules
implementing
this
approach
into
the
base
RCRA
programs.

Measuring
and
Verifying
Results:
Measurement
and
verification
would
be
accomplished
by
monitoring
reduction
of
average
permit
issuance
time
frames
compared
to
conventional
permitting
approaches.
at
facilities
operating
units
under
general
permits
should
also
be
monitored
and
compared
to
for
facilities
operating
tanks
and
contains
under
conventional
permits.
These
rates
should
be
similar
in
order
to
determine
the
success
of
the
innovation.
EPA
currently
keeps
statistical
information
which
could
be
utilized
for
monitoring
these
items.
No
additional
effort
would
be
required.

Accountability/
Enforcement:
Since
it
is
proposed
that
this
innovation
be
absorbed
into
the
current
regulatory
framework,
current
systems
of
accountability
and
mechanisms
of
enforcement
will
be
applicable.

State­
EPA
Partnership:
EPA
should
lead
the
development
of
draft
guidance/
regulation
for
general
permits.
States
and
other
stakeholders
should
be
allowed
extensive
review
and
comment
opportunities.

Side­
By­
Side
Comparison
of
Traditional
RCRA
Hazardous
Waste
Permits
and
Proposed
General
RCRA
Hazardous
Waste
Permits
for
Tanks
and
Containers
Traditional
RCRA
Permits
General
RCRA
Permits
Lengthy
two
part
permit
application
process
Streamlined
one
part
application
process
20
Long
permit
review
period
Short
permit
review
period
Facility
specific
requirements
General
requirements
Facility
specific
corrective
action
requirements
upon
issuance
of
permit
General
corrective
action
requirements
upon
issuance
of
permit
with
facility
specific
requirements
developed
after
permit
issuance
Public
participation
for
each
permit
Public
participation
for
initial
issuance
of
general
permit
and
each
additional
permittee
(
Mike
Bates,
Chief,
Hazardous
Waste
Division,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Response:
We
appreciate
ADEQ's
comments
and
the
efforts
they
have
taken
in
a
similar
action
within
their
State.
We
are
exploring
the
use
of
electronic
forms
through
the
Agency's
e­
permitting
initiative
(
see:
http://
www.
epa.
gov/
epaoswer/
hazwaste/
permit/
epmt/
epermit.
htm),
to
assist
permit
applicants
and
regulators
involved
in
the
standardized
permit
process.

Comment:
In
concept,
Ecology
supports
development
of
rules
to
allow
for
standardized
permits.
This
proposed
rule,
however,
does
not
provide
the
clarity
and
protection
of
human
health
and
the
environment
needed
for
such
a
permit
process.
Ecology
would
not
adopt
this
rule
into
the
state
Dangerous
Waste
Rules
if
the
US
Environmental
Protection
Agency
(
EPA)
adopts
them
substantially
as
proposed.

Ecology
estimates
that
about
3
existing
facilities
in
the
State
of
Washington
would
meet
the
applicability
requirements.
It
is
possible
that
a
few
large
quantity
generators
would
apply
for
a
standardized
permit
should
the
rules
be
adopted.
However,
it
is
doubtful
that
Ecology
would
adopt
another
set
of
complex
regulations
for
a
handful
of
facilities.

Our
general
comments
are
that
the
proposed
rule:

1.
Needlessly
adds
another
layer
of
regulations
that
applicants,
permit
writers,
inspectors,
and
the
public
must
learn.
It
would
be
more
effective
to
keep
the
40
CFR
Part
264
standards
rather
than
rewriting
the
standards
as
Part
267.

2.
Omits
important
standards,
such
as
the
current
requirement
for
a
closure
plan
to
be
in
place
during
operation
of
the
facility.
This
makes
the
rules
less
stringent
than
the
current
final
facility
permit
standards.
21
3.
Fails
to
provide
clear
criteria
and/
or
sufficient
information
for
implementing
portions
of
the
rule,
such
as
denying
a
standardized
permit
or
modifying
a
standardized
permit.

4.
Sets
a
deadline
for
the
permit
decision
that
fails
to
take
into
account
requirements
adopted
by
authorized
states
that
must
be
satisfied
before
an
application
can
be
reviewed
and
a
permit
decision
made.

In
summary,
Ecology
believes
the
rules
as
proposed
are
less
stringent
than
current
facility
standards
and
are
too
vague
to
be
successfully
implemented.

In
the
federal
register,
EPA
asks
whether
the
rule
should
be
expanded
to
apply
also
to
facilities
that
take
hazardous
waste
from
off­
site.
Ecology
believes
that
as
proposed
the
standardized
permit
rules
must
not
be
extended
to
off­
site
treatment
and
storage
facilities.
These
facilities
accept
a
wide
variety
of
often
incompatible
wastes.
They
have
no
control
over
the
generation,
designation,
and
labeling
of
the
waste
containers.
Ecology
would
support
expanding
the
applicability
requirements
only
if
the
rule
is
changed
so
that
the
permitting
agency
has
the
authority
to
review
certain
of
the
facility's
operating
plans,
and
that
the
facility
must
provide
certification
by
a
professional
engineer
that
design
and
engineering
of
the
hazardous
waste
management
units
meet
the
regulatory
standards.
The
operating
plans
that
Ecology
believes
the
facility
would
need
to
provide
for
review
are
the
waste
analysis
plan,
the
contingency
plan,
the
training
plan
and
the
inspection
plan.
Failure
to
demonstrate
compliance
with
the
regulatory
standards
would
be
a
reason
to
deny
such
a
standardized
permit.
Also,
the
permitting
agency's
discovery
that
the
professional
engineer's
certification
that
the
design
and
engineering
meet
regulatory
standards
is
incorrect
would
be
the
basis
for
the
need
for
the
facility
to
modify
the
facility
structures
to
meet
the
standards
or
for
the
permitting
agency
to
deny
or
revoke
the
permit.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
also
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

We
believe
that
both
types
of
facilities
eligible
for
a
standardized
permit
should
have
adequate
knowledge
of
the
wastes
they
manage.
Generators
who
manage
their
wastes
on­
site
should
have
knowledge
of
their
own
wastes,
and
facilities
managing
wastes
generated
off­
site
by
facilities
under
the
same
ownership
should
also
have
familiarity
with
the
wastes
involved.
22
The
documents
a
facility
must
submit
with
their
Notice
of
Intent
are
described
in
the
preamble
to
the
rule
and
listed
in
the
regulations.
We
did
not
require
all
eligible
facilities
to
submit
a
waste
analysis
plan,
only
those
receiving
wastes
from
off­
site.
Other
documentation,
such
as
the
certification
of
design
and
engineering
of
waste
management
units
are
to
be
kept
on
site,
as
are
contingency,
training,
and
inspection
plans.
Requiring
all
this
documentation
with
the
Notice
of
Intent
begins
to
approach
the
process
for
individual
permitting
and
detracts
from
the
intent
of
this
rulemaking
to
streamline
the
permitting
process.

Although
this
rule
may
seem
like
just
"
another
layer
of
regulations"
that
must
be
learned,
we
believed
it
was
important
to
consolidate
the
requirements
for
standardized
permits
in
one
area.
Some
of
the
requirements
of
Part
264
are
not
applicable,
and
as
such,
we
believed
it
would
be
confusing
to
have
a
section
in
part
264
for
standardized
permits.
Therefore,
we
developed
a
separate
section,
Part
267,
for
standardized
permits.

All
applicants
will
be
required
to
submit
a
closure
plan
with
their
notice
of
intent.
We
only
provide
general
discussion
in
the
preamble
regarding
reasons
for
denying
a
standardized
permit,
because
it
would
be
difficult
to
provide
specific
examples
that
sufficiently
cover
the
range
of
possibilities.
Denying
a
standardized
permit
is
best
left
to
the
judgement
of
the
State
in
light
of
the
general
guidelines
provided
by
the
preamble.

Regarding
your
concerns
over
time
lines
for
review
an
application
and
a
permit
decision,
the
Agency
believes
that
120
days
for
draft
permit
issuance
is
adequate,
subject
to
a
one
time
30­
day
extension
for
cause.
We
have
not
placed
a
time
limit
on
preparing
the
final
permit.
We
did
not
want
to
unnecessarily
limit
the
Agency,
nor
the
states
in
how
they
issue
permits.
States
are
free
modify
the
procedures
and
time­
lines
to
best
fit
their
situations.
We
are
establishing
federal
standards
only,
with
this
rulemaking.

We
believe
that
this
rule
is
no
more
or
less
stringent
than
the
current
individual
permitting
program.

Comment:
The
writing
style
and
format
of
the
rule
causes
confusion
and
in
places
makes
implementation
difficult
if
not
impossible.
The
rule
fails
to
identify
who
is
responsible
for
certain
actions
in
the
body
of
the
rule
(
only
in
the
title
to
the
section).
It
simply
refers
to
"
you":
"
you
must
...."
Some
sections
describe
what
the
facility
must
do;
others
describe
what
the
agency
does.
In
some
cases,
the
"
you"
refers
to
both
the
facility
and
the
agency
within
the
same
section.
This
is
very
confusing.
It
does
not
satisfy
EPA's
stated
purpose
of
making
the
rule
easier
to
understand.
It
does
not
take
that
many
more
words
to
say
"
the
Director
must"
or
"
the
facility
must"
or
"
the
applicant
must"
rather
than
"
You
must".
23
EPA
should
revise
the
regulation
to
clearly
identify
who
must
comply
with
the
rule.
Instead
of
"
you"
use
"
The
Director",
"
the
facility",
or
"
the
applicant".
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
We
have
made
revisions
to
the
language
in
the
rule
which
should
make
it
easier
to
understand.

Comment:
The
use
of
the
pronoun
"
You"
within
Part
124
may
lead
to
confusion
if
not
read
very
carefully.
Within
sections
124.201­
203
and
124.210­
213,
"
you"
refers
to
the
permittee
or
person
requesting
the
permit.
In
sections
124.204­
209
"
you"
refers
to
the
Director
or
agency
issuing
the
permit.
In
an
attempt
to
simplify
the
writing
of
the
regulation,
EPA
has
added
unnecessary
confusion.
DoD
suggests
that
EPA
use
the
term,
"
the
Director"
or
"
Agency"
in
the
appropriate
sections
in
order
to
avoid
confusion
to
the
reader.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Response:
We
have
attempted
to
improve
the
clarity
of
the
final
rule.

Comment:
Request
a
180
day
extension
for
commenting
on
the
proposed
hazardous
waste
permitting
rules.
The
60
day
period
given
did
not
allow
adequate
time
to
evaluate
the
potential
effects
on
human
health
and
the
environment
due
to
the
number
and
significance
of
the
changes
and
also
the
formatting
change
of
the
new
rules.
The
proposed
rules
significantly
alter
the
way
regulatory
agencies
approach
hazardous
waste
activities.
(
Jamie
Burroughs
of
the
TSD
Section
and
O.
J.
Wingfield
of
Financial
Responsibility,
Division
of
Solid
Waste
Management,
Tennessee
Department
of
Environmental
and
Conservation,
RCRA­
2001­
0029­
0057)

Response:
We
did
not
extend
the
comment
period
for
the
proposed
rule;
we
believe
we
provided
adequate
time
for
submission
of
comments.

Comment:
Safety­
Kleen
Corp.
is
a
North
American
environmental
service
company
with
an
integrated
network
of
over
250
facilities
designed
to
collect,
process,
recycle
and
dispose
of
hazardous
materials
and
hazardous
waste
from
over
400,000
customers.
Safety­
Kleen
maintains
approximately
159
RCRA
permitted
facilities
under
43
authorized
state
programs
and
is
directly
affected
by
EPA's
proposed
revisions
to
standardize
permitting,
corrective
action
and
financial
assurance.

In
general,
Safety­
Kleen
agrees
with
EPA
that
a
standardized
permit
should
streamline
the
permit
process
by
allowing
facilities
to
obtain
and
modify
permits
more
easily
while
maintaining
the
protectiveness
currently
existing
in
the
individual
RCRA
permit
process.
Safety­
Kleen
does
not
agree
that
this
process
should
be
limited
to
only
non­
commercial
facilities
that
manage
their
own
waste.
As
a
leader
in
the
waste
management
industry,
we
feel
strongly
that
this
opportunity
be
24
made
available
to
all
qualified
facilities
regardless
of
whether
they
receive
off­
site
waste
or
not.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
also
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

We
considered
extending
eligibility
to
all
off­
site
facilities,
but
considering
commentors
concerns
with
this
option,
we
decided
at
this
time
to
limit
the
rule
to
on­
site
facilities
only.

The
Agency
remains
open
to
considering
relief
to
off­
sites
in
future
rulemaking,
(
e.
g.,
Performance
Track),
where
facilities
meeting
certain
performance
criteria
could
enjoy
streamlined
approaches
to
permitting.

Comment:
In
conclusion,
Safety­
Kleen
strongly
supports
the
proposed
standardized
permit
as
an
option
to
individual
permits
for
all
qualified
facilities
including
commercial
hazardous
waste
facilities.
We
feel
that
this
is
the
only
way
for
the
Agency
to
truly
meet
the
objectives
of
the
proposal.
Safety­
Kleen
appreciates
the
opportunity
to
provide
comments
to
this
rule.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
also
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

The
Agency
remains
open
to
considering
providing
relief
to
off­
sites
in
future
rulemaking,
(
e.
g.,
Performance
Track),
where
facilities
meeting
certain
performance
criteria
could
enjoy
streamlined
approaches
to
permitting.

Comment:
The
Coalition
for
Responsible
Waste
Incineration
(
CRWI)
is
pleased
to
submit
comments
on
the
Hazardous
Waste
Management
System;
Standardized
Permit;
Corrective
Action;
and
Financial
Responsibility
for
RCRA
Hazardous
Waste
Management
Facilities
(
66
FR
25
52192,
October
12,
2001).
CRWI
represents
eleven
companies
that
operate
hazardous
waste
combustion
units
and
fourteen
other
companies
with
interests
in
hazardous
waste
combustion.
These
companies
account
for
a
significant
portion
of
the
U.
S.
capacity
for
hazardous
waste
combustion.
In
addition,
CRWI
is
advised
by
a
number
of
academic
members
with
research
interests
in
hazardous
waste
combustion.
Since
its
inception,
CRWI
has
encouraged
its
members
to
reduce
the
generation
of
hazardous
waste.
However,
for
certain
hazardous
waste
streams,
CRWI
believes
that
combustion
is
a
safe
and
effective
method
of
treatment,
reducing
both
the
volume
and
toxicity
of
the
waste
treated.
CRWI
seeks
to
help
its
member
companies
both
to
improve
their
operations
and
to
provide
lawmakers
and
regulators
helpful
data
and
comments.

As
noted
in
the
preamble
to
the
standardized
permit
rule,
this
proposal
is
preceded
by
more
than
fifteen
years
of
experience
in
reconciling
the
goals
of
operational
flexibility,
public
participation,
and
regulatory
oversight.
CRWI
believes
these
goals
are
complementary,
not
competing,
and
praises
EPA
for
this
important
initiative.

CRWI's
primary
comment
addresses
the
eligibility
of
its
member
facilities
for
the
benefits
of
the
standardized
permit
rule.
Also,
CRWI
submits
comments
on
other
discrete
issues
such
as
the
organization
of
the
new
rule,
the
permit
modification
process,
and
certification
for
new
facilities.
(
Melvin
E.
Keener,
Executive
Director,
Coalition
for
Responsible
Waste
Incineration,
RCRA­
2001­
0029­
0063)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
also
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

The
Agency
remains
open
to
considering
providing
relief
to
off­
sites
in
future
rulemaking,
(
e.
g.,
Performance
Track),
where
facilities
meeting
certain
performance
criteria
could
enjoy
streamlined
approaches
to
permitting.

Comment:
Organization
of
the
standardized
permit
rule.
As
proposed,
the
standardized
permit
rule
places
many
of
its
substantive
provisions
in
a
new
Subpart
G
to
Part
124.
This
placement
is
several
volumes
removed
in
40
CFR
from
the
RCRA
Subtitle
C
series
of
regulations
beginning
at
Part
260.
CRWI
respectfully
suggests
that
the
provisions
currently
proposed
as
Subpart
G
to
Part
124
would
be
better
compiled
in
the
newly
promulgated
Subpart
I
of
Part
270.
This
would
place
these
new
RCRA
regulations,
both
in
regulatory
context
and
hard­
copy
proximity,
closer
to
the
cross­
references
that
users
must
consult
in
order
to
understand
all
of
the
implications
of
this
rule.
(
Melvin
E.
Keener,
Executive
Director,
Coalition
for
Responsible
Waste
Incineration,
RCRA­
2001­
0029­
0063)
26
Response:
EPA
has
decided
to
keep
the
permit
application
process
procedures
in
Part
124,
which
is
where
the
general
permitting
procedures
are
currently
found
for
RCRA
facilities.
However,
EPA
has
chosen
to
place
the
actual
technical
requirements
that
facilities
must
follow
in
a
single
location,
at
Part
267
to
make
it
simpler
for
users.

Comment:
EPA's
efforts
at
presenting
the
proposed
rule
in
"
plain
language"
is
commendable;
however,
the
use
of
the
"
active"
voice
in
the
preamble
and
proposed
rules
is
somewhat
confusing
at
times.
Sometimes
it
is
not
clear
at
all
as
to
who
"
you"
and
"
I"
and
"
we"
are
supposed
to
represent,
especially
as
it
relates
to
authorized
States.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Response:
We
have
attempted
to
clarify
the
language
in
the
final
rule.

Comment:
Missouri
regulators
in
general
feel
that
the
proposed
standardized
permit
rule
may
reduce
time
frames
associated
with
obtaining
a
permit.
This
benefit
could
be
greatly
advantageous
to
recycling
facilities
and
universal
waste
destination
facilities
if
the
rule
were
expanded
to
include
those
facilities.
However,
we
have
some
concerns
with
rule
as
discussed
in
our
comments
listed
below.
Chief
among
those
concerns
is
the
feeling
that
the
rule
as
proposed
will
merely
result
in
a
shift
of
review
responsibilities
from
permit
writers
to
inspection
and
enforcement
personnel.
There
is
also
the
risk
that
allowing
facilities
to
self
certify
with
all
regulations
could
lead
to
more
relaxed
waste
management
practices.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
We
agree
that
the
rule
shifts
responsibility
to
enforcement
and
compliance.
The
final
rule,
we
believe,
provides
adequate
emphasis
to
the
importance
of
audits
and
compliance
inspections,
by
requiring
a
compliance
audit
and
submission
of
an
audit
report
with
the
application
materials.
We
believe
these
types
of
unit
operations
(
i.
e.,
tanks,
containers,
containment
buildings)
lend
themselves
to
a
selfcertification
process.

The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
also
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

Comment:
27
5.
The
proposed
rule
is
not
clear
as
to
what
time
frames
a
facility
that
cannot
clean
close
is
supposed
to
submit
an
individual
post­
closure
permit
application.
If
the
standardized
permit
regulations
go
into
effect,
requirements
regarding
how
a
facility
should
notify
the
director
that
it
cannot
clean
close
and
the
procedures/
time
frames
to
submit
an
individual
permit
shall
be
outlined.

6.
The
uniform
portion
of
the
standardized
permit
language
should
have
been
published
as
part
of
this
rulemaking.
It
is
discussed
throughout
the
preamble
that
the
uniform
portion
of
the
permit
would
not
be
appealable
or
commentable.
Therefore,
this
language
should
be
proposed
for
public
review
prior
to
use.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
Facilities
that
cannot
clean
close
must
pursue
post­
closure
options.
(
See
preamble
Section
IV.
H.
1,
and
also
§
267.111.)
This
rule
does
not
specify
time
frames
for
when
a
post
closure
permit
application
must
be
submitted.

The
rule
did
not
publish
standardized
permit
language.
The
rule
established
a
streamlined
process,
and
provided
the
regulations
that
permit
conditions
would
be
written
to
meet
(
e.
g.,
Part
267).
The
draft
permit,
when
public
noticed,
is
subject
to
comment,
as
with
other
publicly
noticed
draft
permits.
We
will
provide
a
model
permit
to
be
used
as
a
resource
by
regulators
and
permit
applicants.
This
will
soon
be
available
on
the
OSW
web
site.

Comment:
The
American
Iron
and
Steel
Institute
("
AISI"),
whose
member
companies
account
for
approximately
55
percent
of
this
country's
basic
iron
and
steel
production,
is
pleased
to
submit
these
brief
comments
to
the
U.
S.
Environmental
Protection
Agency
("
EPA"
or
"
the
Agency")
on
EPA's
October
12,
2001
proposed
revisions
to
the
hazardous
waste
permitting
program
under
the
Resource
Conservation
and
Recovery
Act
("
RCRA")
to
allow
for
a
standardized
RCRA
permit.
See
66
Fed.
Reg.
52192
(
Oct.
12,
2001)
(
hereinafter
referred
to
as
the
"
Proposed
Rule").
AISI
generally
supports
EPA's
efforts
to
establish
standardized
permit
provisions
that
will
streamline
the
permit
process
and
make
it
easier
for
facilities
to
obtain
and
modify
RCRA
permits
while
maintaining
the
protectiveness
in
the
current
individual
RCRA
permit
process.
AISI's
comments
here,
however,
are
focused
on
the
preamble
discussion
in
the
Proposed
Rule
in
which
the
Agency
explores
a
policy
and
process
for
promoting
use
of
state
cleanup
programs
in
lieu
of
the
federal
or
state­
authorized
RCRA
programs
to
satisfy
corrective
action
obligations
at
individual
facilities.
See
66
Fed.
Reg.
at
52232­
36.

AISI
member
companies
own
and
operate
numerous
facilities
that
are
subject
to
RCRA
permit
requirements
and,
therefore,
the
statute's
corrective
action
provisions.
Consequently,
AISI
has
been
an
active
participant
in
EPA's
development
of
the
RCRA
corrective
action
program,
meeting
with
the
Agency
on
several
occasions
and
providing
substantive
comments
on
EPA's
implementing
guidance
and
regulatory
actions
and
reforms.
We
appreciate
this
opportunity
to
28
provide
input
on
yet
another
important
Agency
initiative
designed
to
facilitate
more
expeditious
­
yet
protective
­
cleanups
at
RCRA
corrective
action
sites.
(
American
Iron
and
Steel
Institute,
RCRA­
2001­
0029­
0066)

Response:
We
appreciate
AISI's
comments.

Comment:
The
American
Chemistry
Council
represents
the
leading
companies
engaged
in
the
business
of
chemistry.
Council
members
apply
the
science
of
chemistry
to
make
innovative
products
and
services
that
make
people's
lives
better,
healthier
and
safer.
The
Council
is
committed
to
improved
environmental,
health
and
safety
performance
through
Responsible
Care,
common
sense
advocacy
designed
to
address
major
public
policy
issues,
and
health
and
environmental
research
and
product
testing.
The
business
of
chemistry
is
a
$
462
billion
enterprise
and
a
key
element
of
the
nation's
economy.
It
is
the
nation's
largest
exporter,
and
chemistry
companies
invest
more
in
research
and
development
than
any
other
business
sector.

Brief
comments
are
provided
concerning
the
standardized
permit
component
of
the
proposed
rule,
more
extensive
comments
are
provided
concerning
the
use
of
alternate
state
cleanup
programs
in
lieu
of
the
RCRA
Corrective
Action
program.
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)

Response:
We
appreciate
ACC's
comments.

Comment:
The
ETC
is
a
national
trade
association
that
represents
the
commercial
hazardous
waste
management
industry.
ETC
members
include
companies
that
provide
technologies
and
services
for
source
reduction,
fuel
blending,
recycling,
treatment,
and
secure
disposal
of
industrial
and
hazardous
wastes.
The
ETC
companies
own
and
operate
commercial
facilities
such
as
Subtitle
C
permitted
landfills,
chemical
treatment
plants,
incinerators,
light­
weight
aggregate
kilns,
industrial
furnaces,
fuel
blending
facilities,
and
other
types
of
facilities
for
the
safe
and
proper
management
of
hazardous
wastes.
As
a
result,
the
ETC
and
its
member
companies
will
be
directly
regulated
and
significantly
affected
by
the
proposed
rule.

The
ETC
does
not
support
the
limited
scope
of
the
proposed
rule,
and
particularly
the
preferred
status
and
special
relief
given
to
on­
site
generator
facilities.
EPA
should
streamline
the
administrative
process
and
shorten
the
time
required
to
obtain
all
RCRA
permits,
not
just
reduce
requirements
for
one
relatively
small
subgroup
of
routine
storage
units
at
generator
facilities.
There
is
no
question
that
the
RCRA
permit
process
is
too
complex,
time­
consuming
and
burdensome,
but
EPA
has
proposed
a
Band­
Aid
for
a
gaping
wound.

Many
commercial
facilities
must
wait,
not
months,
but
years
for
simple
permits
and
permit
modifications.
The
ETC
can
document
interminable
delays
in
many
states
for
such
routine
actions
as
eliminating
waste
codes
from
the
permit,
adding
drum
storage
capacity,
or
reducing
landfill
cell
29
size.
To
some
extent
the
RCRA
permit
process
is
hampered
by
resource
constraints,
but
EPA
could
do
a
lot
more
in
the
Federal
program
to
standardize
the
process
and
expedite
permit
review
and
decision­
making.
In
addition,
EPA
must
use
RCRA
grant
funds
and
state
program
oversight
more
effectively
to
encourage
states
to
process
and
make
prompt
decisions
on
permits
and
modifications.
We
view
the
proposed
rule
on
standardized
permits,
particularly
if
it
remains
limited
to
on­
site
facilities,
not
as
a
small
step
in
the
right
direction,
but
as
a
potentially
wasteful
expenditure
of
time
and
resources
solving
a
very
small
problem
that
diverts
attention
from
the
fundamental
flaws
in
the
RCRA
permit
process.

The
most
pressing
need
is
for
EPA
to
reform
RCRA
permitting
for
commercial
facilities,
not
storage
units
at
on­
site
facilities.
Commercial
facilities
provide
the
infrastructure
for
proper
hazardous
waste
management
for
all
the
productive
industries
in
this
nation.
As
long
as
commercial
TSD
facilities
are
delayed,
deterred,
and
defeated
from
obtaining
timely
RCRA
permits
and,
perhaps
more
importantly,
permit
modifications
for
the
routine
facility
upgrades
and
changes
that
are
essential
to
conducting
a
cost­
efficient
business,
EPA
has
failed
in
its
responsibilities.

The
ETC
urges
in
the
strongest
possible
terms
that
EPA
reconsider
the
scope
and
direction
of
its
permit
reform
proposal.
Many
of
the
approaches
for
reducing
unnecessary
burdens
and
streamlining
the
process,
such
as
deadlines
for
agency
reviews
and
decisions,
would
apply
equally
to
individual
RCRA
permits.
We
are
very
distressed
to
comment
on
a
rulemaking
that,
at
least
as
proposed,
has
no
application
to
the
commercial
industry
and
provides
very
little
benefits
to
the
nation
as
a
whole.
Nonetheless,
if
EPA
decides
to
go
forward
with
this
limited
proposal
for
truly
routine
units
only,
the
following
comments
are
provided.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
also
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

The
Agency
remains
open
to
considering
providing
relief
to
off­
sites
in
future
rulemaking,
(
e.
g.,
Performance
Track),
where
facilities
meeting
certain
performance
criteria
could
enjoy
streamlined
approaches
to
permitting.

Streamlining
the
entire
RCRA
permitting
process
is
beyond
the
scope
of
this
rulemaking.
30
Comment:
The
Division
of
Solid
and
Hazardous
Waste
feels
that
there
are
certain
important
disadvantages
with
the
general
approach
to
this
rulemaking.
Since
most
of
our
standardized
permit
applicants
would
already
be
operating
at
the
time
of
application
(
under
interim
status
or
an
existing
individual
RCRA
permit),
we
feel
that
the
standardized
permit
process
as
proposed
will
result
in
little
benefit
to
our
universe
of
regulated
facilities.

Furthermore,
most
of
the
delays
in
the
issuance
of
RCRA
permits
that
we
have
experienced
in
New
Jersey
have
been
caused
not
by
a
lack
of
agency
resources
or
backlogs
of
application
reviews
by
the
permitting
agency,
but
by
chronic
incomplete
or
deficient
application
submissions,
causing
too
much
"
back
and
forth"
between
the
agency
and
the
applicants
and
resulting
in
long
time
frames
for
issuance.
We
have
experienced
these
inadequate
submissions
in
spite
of
our
efforts
to
provide
detailed
technical
guidance
and
assistance
to
the
applicants.
Obviously,
this
situation
causes
us
difficulty
in
embracing
a
proposal
for
a
permitting
process
which
eliminates
the
submission
and
agency
review
of
technical
application
information.

In
addition,
we
are
concerned
that
the
level
of
public
participation
for
standardized
permits
will
be
lower
than
for
individual
permits,
since
we
will
not
be
circulating
technical
application
information
to
other
state
and
local
agencies
for
their
review
and
comment.
We
also
wonder
how
capable
we
will
be
to
respond
to
public
comments,
since
we
will
not
be
performing
a
technical
review
of
the
application
information.

It
is
for
these
reasons
that
we
would
like
to
offer
two
alternative
approaches
for
consideration:

First,
we
suggest
that
a
conditional
permit­
by­
rule
for
the
generation
and
on­
site
storage
or
non­
thermal
treatment
of
hazardous
wastes
in
containers,
tanks,
and
containment
buildings
be
considered.
These
activities
would
be
listed
at
40
CFR
270.60
with
compliance
conditions
that
include
all
of
the
current
40
CFR
262.34
standards
plus
some
additional
relevant
technical
standards
appropriate
for
each
type
of
unit
(
e.
g.
secondary
containment
and
a
storage
time
limit
for
containers,
in­
place
secondary
containment
for
all
units,
waste
analysis
requirements
for
treatment
activities,
etc.).
We
see
little
difference
in
the
potential
environmental
threat
between
less
than
90­
day
and
greater
than
90­
day
waste
management
activities
in
these
simple
units,
and
we
feel
that
this
type
of
permit­
by­
rule
for
greater
than
90­
day
storage
or
treatment
would
not
compromise
protection
of
the
environment
and
would
result
in
a
much
lesser
compliance
burden
on
the
owners
or
operators
of
these
units.

Second,
we
suggest
that
consideration
be
given
to
the
"
paring
down"
of
Part
B
permit
application
submission
requirements
for
the
generation
and
on­
site
storage
or
non­
thermal
treatment
of
hazardous
wastes
in
containers,
tanks,
and
containment
buildings.
We
believe
that
some
of
the
submission
requirements
in
40
CFR
270.14
were
developed
with
the
more
complicated
units
(
e.
g.
landfills,
incinerators,
etc.)
in
mind
and
may
not
be
necessary
for
containers,
tanks,
or
containment
buildings.
The
permitting
process
would
remain
unchanged,
but
the
applicant
would
enjoy
a
reduced
burden
when
preparing
application
information.
Some
suggested
items
for
reduction
or
elimination
are
fewer
topographic
map
requirements,
deletion
of
the
traffic
pattern
submission
31
requirement,
reduced
personnel
training
standards,
and
less
detailed
or
simplified
closure
cost
estimates.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
onsite
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
also
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

The
Agency
remains
open
to
considering
providing
relief
to
off­
sites
in
future
rulemaking,
(
e.
g.,
Performance
Track),
where
facilities
meeting
certain
performance
criteria
could
enjoy
streamlined
approaches
to
permitting.
The
specific
alternatives
the
commenter
has
suggested
may
be
appropriate
as
part
of
that
rulemaking
or
some
future
rulemaking.

Regarding
delays
in
permitting
caused
by
incomplete
applications,
the
compliance
audit
requirement
should
help
improve
that
situation.
The
compliance
audit
accompanied
by
the
certification
of
compliance
puts
the
onus
on
the
facility
owner/
operator
to
provide
accurate
information.

Regarding
public
participation,
we
believe
that
a
couple
of
events
will
address
this
issue.
First,
the
public
meeting
prior
to
the
submission
of
the
notice
of
intent
should
alert
the
public
to
what
the
company
intends
to
accomplish.
And
then,
the
draft
permit,
which
would
include
the
closure
plan,
would
be
made
available
for
comment.
If
public
comments
require
your
to
review
facility
information,
then
you
might
work
with
the
facility
to
review
the
information
at
an
on­
site
location.

In
conclusion,
the
standardized
permit
is
intended
to
address
routine
storagerelated
activities
in
devices
that
are
rather
straightforward
in
their
design
and
operation.
Operations
involving
more
complex
units
that
require
more
intensive
review
may
be
more
suited
to
individual
permitting.
Because
of
the
standard
engineering
practices
for
design
and
construction
of
the
eligible
units,
we
feel
review
by
the
regulators
can
be
eliminated
without
compromising
human
health
and
the
environment.

Comment:
On
December
11,
2001,
the
Environmental
Technology
Council
(
ETC)
submitted
comments
on
the
proposed
rule
entitled
"
Hazardous
Waste
Management
System;
Standardized
Permit;
Corrective
Action;
and
Financial
Responsibility
for
RCRA
Hazardous
Waste
Management
Facilities."
66
Fed.
Reg.
52,192
(
Oct.
12,
2001).
32
One
of
our
principal
comments
was
that
the
proposed
rule
is
too
limited
in
scope
and
will
have
negligible
benefits
compared
to
the
time
and
resources
consumed
by
this
rulemaking.
The
ETC
urged
EPA
to
reconsider
the
scope
and
direction
of
its
permit
reform
proposal
and
to
address
the
complexity,
burden,
and
delay
of
the
RCRA
permit
process
for
commercial
TSD
facilities.
The
ETC
has
now
completed
its
review
of
the
Economics
Background
Document
for
the
proposed
rule,
which
strongly
reenforces
our
concerns,
and
we
therefore
submit
these
supplemental
comments.
(
David
R.
Case,
Executive
Director,
Environmental
Technology
Council,
RCRA­
2001­
0029­
0071)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
also
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

The
Agency
remains
open
to
considering
providing
relief
to
off­
sites
in
future
rulemaking,
(
e.
g.,
Performance
Track),
where
facilities
meeting
certain
performance
criteria
could
enjoy
streamlined
approaches
to
permitting.

Comment:
Suggestions:

1.
Provide
Large
Quantity
Generators
More
Time
for
Hazardous
Waste
Accumulation
2.
Specify
Conditions
Under
Which
Generator
Facilities
May
Accept
Off­
Site
Wastes
from
Regional
Facilities
Under
the
Same
Corporate
Management
Beyond
simplifying
permitting
procedures,
EPA
could
reduce
the
need
for
storage­
only
permits
by
allowing
large
quantity
generators
to
accumulate
limited
amounts
of
waste
on­
site
for
longer
than
90
days.
If
in
addition,
regulations
can
be
crafted
that
would
allow
generators
to
accept
and
consolidate
off­
site
wastes
generated
at
other
regional
facilities
under
the
same
corporate
management,
then
very
few
facilities
would
ever
require
a
"
storage­
only"
TSDF
permit.

Generally,
a
storage­
only
permit
provides
the
time
flexibility
that
generators
may
need
to
consolidate
small
volumes
of
unique
or
infrequently
generated
waste
types,
or
to
handle
unanticipated
problems.
Additionally,
a
RCRA
permit
is
currently
needed
for
receipt
of
off­
site
wastes.

The
most
"
radical"
part
of
this
proposal
is
the
idea
of
acceptance
(
by
a
generator)
of
off­
site
wastes
for
continued
accumulation
and
consolidation.
While
the
idea
is
not
inherently
evil
or
unworkable,
it
would
require
a
bit
of
a
conceptual
change
in
the
way
we
have
thought
about
33
transporting
and
manifesting
wastes.
Clearly
a
manifest
and
registered
hauler
would
be
used
whenever
wastes
are
transported
via
public
roads,
and
manifest
copies
would
be
routed
to
the
usual
recipients,
except
that
the
receiving
generator
would
be
identified
instead
of
the
TSD
and
would
be
responsible
for
returning
the
manifest
copies.
Accumulation
time
would
continue
to
be
tracked
from
the
initial
labeling
of
the
container.

EPA
already
allows
a
longer
accumulation
time
of
180
days
for
small
quantity
generators,
subject
to
limits
on
the
total
quantity
of
waste
on
site,
which
may
not
exceed
6000
kilograms
(
40
CFR
262.34(
d)(
1)).
For
large
quantity
generators,
why
not
provide
for
accumulation
up
to
180
days
subject
to
a
similar
limit
(
e.
g.,
6000
kilograms,
or
a
specified
percentage
of
the
waste
generation
rate)
on
the
total
amount
of
waste
that
may
be
accumulated
on
site
at
any
one
time.

Additionally,
EPA
could
probably
identify
some
types
of
waste
that
could
be
safely
accumulated
beyond
90
days
(
without
quantity
limits)
under
certain
conditions.
TCLP
leaching
wastes,
for
example,
should
not
pose
any
particular
threat
provided
that
they
are
protected
from
exposure
to
the
elements.

Finally,
regarding
accumulation
time,
EPA
has
limited
to
30
days
the
period
of
extension
that
a
Regional
Administrator
or
authorized
state
may
grant
in
response
to
a
request
from
the
generator
(
40
CFR
262.34(
f)).
Relaxing
this
provision
would
reduce
the
perceived
need
for
storage­
only
RCRA
permits,
while
retaining
full
regulatory
control.

We
hope
these
suggestions
are
helpful
in
EPA's
attempt
to
reduce
the
burden
of
RCRA
permitting.
(
Andy
Maree
and
Associates,
RCRA­
2001­
0029­
0074)

Response:
We
appreciate
Andy
Maree
and
Associates'
comments.
Extending
the
accumulation
time
for
generators
is
outside
the
scope
of
the
standardized
permit
rulemaking.

The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site,
as
proposed.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

We
considered
the
comments
on
this
issue,
most
of
which
came
from
either
States
or
industry
groups.
While
industry
believed
the
rule
should
extend
to
off­
site
facilities,
and
further
believed
that
many
off­
site
facilities
could
adequately
manage
off­
site
generated
wastes
under
a
streamlined
permit
approach,
States
expressed
great
concerns
about
such
facilities
complying
with
the
permitting
requirements,
especially
in
cases
where
a
facility
manages
complex
waste
streams.
States
34
expressed
concern
about
both
commercial
disposal/
treatment
and
recycling
operations
occurring
off­
site.
Of
the
off­
site
facilities,
States
felt
that
captive
facilities
might
be
best
suited
for
the
standardized
permit,
because
of
their
familiarity
with
the
wastes
managed.

Thus,
we
are
extending
the
rule
to
include
generators
managing
wastes
generated
off­
site,
as
long
as
the
off­
site
generator
is
under
the
same
ownership
as
the
receiving
facility.
Generators
receiving
wastes
generated
off­
site,
would
need
to
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
and
also
include
documentation
showing
that
both
the
off­
site
generator
and
the
receiving
facility
are
under
the
same
ownership.

It
should
also
be
noted
that
the
Agency
is
exploring
whether
to
extend
eligibility
for
the
standardized
permit
to
other
off­
site
facilities
that
have
demonstrated
superior
environmental
performance;
the
National
Performance
Track
Program
provides
an
example
of
the
kind
of
criteria/
facilities
that
EPA
is
considering
in
this
context.
We
believe
it
may
be
appropriate
to
offer
this
option
to
such
facilities
to
further
encourage
superior
environmental
results.
In
fact,
the
Agency
believes
it
important
to
reward
companies
that
are
top
environmental
performers
and
therefore,
believe
that
such
a
change
may
be
appropriate.
The
Agency
anticipates
issuing
a
proposed
rulemaking
involving
Performance
Track
facilities
in
the
near
future.

Regarding
changes
to
the
accumulation
provisions
of
§
262.34
is
beyond
the
scope
of
this
rulemaking.

Comment:
Ohio
EPA
has
reviewed
the
proposed
rule
for
standardized
permits
issued
by
your
Agency
on
October
12,
2001
(
Federal
Register,
Vol.
66,
No.
198),
and
is
in
the
process
of
developing
specific
comments.
The
purpose
of
this
letter
is
to
request
an
extension
to
the
comment
period
for
this
proposed
rule
which
is
set
to
close
on
December
11,
2001.
Ohio
EPA
is
requesting
an
additional
45
days
to
comment
on
the
proposed
rule
for
the
following
reasons:

3.
The
proposed
40
CFR
Part
267
(
Standards
for
Owners
and
Operators
of
Hazardous
Waste
Operating
under
a
Standardized
Permit)
adds
approximately
80
new
rules
to
the
hazardous
waste
permitting
program.
Although
the
Federal
Register
indicates
that
these
new
rules
are
analogous
to
the
existing
standards
set
forth
under
Part
264,
they
have
been
rewritten
in
a
"
plain
language"
format
and
as
such,
must
be
evaluated
carefully
and
individually
to
determine
if
this
reformatting
has
changed
their
meaning
in
any
way.
Ohio
EPA
is
seeking
additional
time
to
conduct
this
evaluation.

4.
The
proposed
rule
sets
up
an
entirely
separate
hazardous
waste
permitting
option
with
the
addition
of
the
standardized
permit
program.
As
detailed
in
the
Federal
Register,
there
are
35
a
number
of
important
factors
to
consider
with
the
proposed
addition
of
such
a
program:
adequacy
of
public
participation
procedures,
consistency
with
existing
permitting
program,
overall
potential
benefit,
to
name
a
few.
Ohio
EPA
has
some
general
comments
on
the
rule
with
respect
to
these
factors
that
are
expressed
later
in
this
letter,
but
is
seeking
additional
time
to
fully
develop
specific
comments.

5.
Ohio
EPA
is
also
seeking
additional
time
to
evaluate
the
proposed
standardized
permit
rule
and
it's
potential
applicability
under
Ohio's
current
hazardous
waste
permitting
statutory
requirements.

6.
Lastly,
the
proposed
rule's
approach
to
financial
assurance
and
options
for
developing
cost
estimates
for
closure
will
require
more
time
to
fully
evaluate.
(
Christopher
Jones,
Director,
Ohio
EPA,
RCRA­
2001­
0029­
0075)

Response:
The
comment
period
was
not
extended.

Comment:
The
proposed
standardized
permit
program
administrative
procedures
are
less
cumbersome
than
the
procedures
for
an
individual,
or
traditional
RCRA
permit.
This
was
listed
as
one
of
the
driving
forces
that
led
to
the
proposal
of
the
rule.
However,
even
with
the
elimination
of
some
administrative
procedures,
it
is
difficult
for
Ohio
EPA
to
envision
many
facilities
taking
advantage
of
the
standardized
permit
option.
Existing
facilities
have
already
invested
the
major
component
of
work
involved
with
obtaining
a
traditional
RCRA
permit:
preparation
and
submission
of
a
Part
B
application.
Additionally,
it
is
hard
to
envision
generators
of
hazardous
waste,
who
currently
are
not
subject
to
permitting
requirements,
deciding
to
change
their
waste
management
practices
so
they
become
subject
to
permitting
requirements
only
because
a
standardized
permit
by
now
be
available.
The
financial
assurance,
closure
and
corrective
action
requirements
provide
a
disincentive
for
any
facility
to
seek
a
permit
if
it
can
be
avoided.
(
Christopher
Jones,
Director,
Ohio
EPA,
RCRA­
2001­
0029­
0075)

Response:
We
agree
that
generators
that
are
currently
not
managing
hazardous
waste
under
a
permit
will
not
now
start.
The
rule
was
not
intended
to
bring
new
generators
into
permitting
through
the
standardized
permit.
While
not
many
facilities
may
have
taken
advantage
of
the
rule,
as
proposed,
the
final
rule
will
extend
eligibility
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
Receiving
facility
must
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.
This
may
increase
the
number
of
facilities
that
may
seek
a
standardized
permit
in
Ohio.
36
Comment:
General
Motors
commends
EPA
for
its
efforts
to
streamline
the
RCRA
permitting
process
for
certain
regulated
facilities.
Specifically,
we
support
EPA's
proposal
to
reduce
the
voluminous
amount
of
information
currently
required
in
the
draft
permit
application
process,
and
the
proposal
to
require
a
draft
permit
decision
from
the
agency
within
120
days.
The
proposed
revisions
for
these
two
issues
alone
should
result
in
a
vast
improvement
over
the
current
permit
approval
process.

However,
we
are
concerned
about
the
lack
of
the
ability
to
negotiate
any
of
the
standardized
permit
conditions.
For
this
reason,
we
foresee
instances
where
a
facility
will
opt
for
an
individual
permit
even
though
the
facility,
in
concept,
would
be
a
better
candidate
for
a
standard
permit.
(
Lenora
Strohm,
CHMM,
General
Motors,
RCRA­
2001­
0029­
0076)

Response:
We
appreciate
GM's
comments.
It's
unclear
whether
many
facilities
will,
because
of
negotiation
issues,
"
opt
for
an
individual
permit"
when
they
can
get
a
standardized
permit.
The
standardized
permit
rule
is
designed
to
streamline
the
permitting
process
for
rather
straightforward
operations
involving
tanks,
containers,
and
containment
buildings.
Situations
where
there
is
a
likelihood,
or
need,
for
"
negotiation"
on
permit
conditions
may
indicate
that
an
individual
permit
is
a
better
option
for
a
particular
facility.

Comment:
If
finalized,
the
"
Standardized
Permit"
proposal
would
streamline
the
administrative
permitting
process
 
resulting
in
reduced
paperwork
especially
for
permitting
agencies.
However,
as
stated
in
the
proposal,
the
standardized
permitting
process
does
not
result
in
a
reduced
compliance
burden.
The
proposed
standardized
permit
would
not
amend
RCRA
regulations
in
a
way
that
addresses
the
concerns
of
educational
and
research
laboratories
as
EPA
was
directed
to
do
by
Congress
in
the
House
Appropriations
Committee
Report
VA,
HUD
and
Independent
Agencies
FY
1995
Appropriations
Act.

Some
laboratory
organizations
treat
small
quantities
of
RCRA
wastes
on
site
in
accumulation
tanks
and
containers.
Such
treatment
is
typically
carried
out
without
a
RCRA
TSDF
permit
as
provided
for
by
EPA
in
its
preamble
to
the
Small
Quantity
Generator
Rule
(
March
24,
1986:
51
FR
10168)
as
well
as
in
subsequent
FR
notices
and
interpretive
memos.
For
laboratories,
treatment
is
more
likely
to
occur
in
a
container
than
in
a
tank.
Examples
of
treatment
in
accumulation
containers
that
might
be
carried
out
in
a
laboratory
include
precipitating
heavy
metals
from
solutions,
and
oxidation/
reduction
reactions.
However,
since
the
provision
for
treatment
in
accumulation
containers
without
a
permit
is
not
codified,
it
is
difficult
to
rely
on
with
confidence
and
it
is
not
adopted
by
some
states.
I
was
hoping
that
EPA's
response
to
the
Permits
Improvement
Team's
(
PIT's)
recommendation
would
have
a
more
substantial
impact
on
laboratories
than
the
"
Standardized
Permit"
proposal.
For
example,
the
PIT
considered
a
permit­
by­
rule
approach
or
conditional
exclusion
from
permitting
for
treating
small
quantities
of
waste.
Is
EPA
considering
these
options
still?
37
If
EPA
is
not
considering
other
permitting
schemes
for
RCRA
waste
treatment
in
laboratories,
then
at
least
some
nagging
questions
regarding
treatment
in
accumulation
containers
should
be
answered.
Several
of
theses
questions
follow:

°
Can
the
accumulation
container
be
opened
to
allow
for
treatment
in
the
container?
The
requirement
in
265.173
(
as
referred
to
by
262(
a)(
1))
requires
that
waste
containers
"
always
be
closed
during
storage,
except
when
it
is
necessary
to
add
or
remove
waste."
Does
the
requirement
to
keep
waste
containers
closed
apply
during
"
storage"
but
not
treatment?
Obviously,
closed
containers
would
severely
limit
treatment
options
since,
for
example,
one
could
not
add
treatment
reagents
or
allow
for
pressure
release
during
reactions.

°
Could
an
"
accumulation
container"
include
typical
laboratory
glassware
(
e.
g.,
flasks,
beakers)?

°
Can
such
treatment
be
carried
out
in
both
the
satellite
accumulation
area
and
the
90­
day
accumulation
area?

Allowing
laboratories
to
treat
limited
quantities
of
hazardous
waste
on
site
would
reduce
the
costs
and
public
health
risks
of
transporting
and
disposing
of
wastes
at
commercial
facilities.
And,
at
laboratories,
there
are
individuals
uniquely
qualified
to
treat
wastes
in
order
to
minimize
the
volume
or
toxicity
of
the
waste
(
a
RCRA
mandate).
The
"
Standardized
Permit"
proposal
would
not
help
laboratories.
EPA
was
directed
by
Congress
to
amend
RCRA
regulations
in
a
way
that
addresses
the
concerns
of
laboratories.
What
is
being
done
about
this?
(
Cynthia
Salisbury,
Vice
President,
Regulatory
Affairs,
Polytek,
RCRA­
2001­
0029­
0077)

Response:
We
appreciate
Polytek's
comments.
However,
the
comments
regarding
laboratory
wastes
and
the
accumulation
provisions
of
§
262.34
are
outside
the
scope
of
this
rulemaking.

2.
Overview
and
Background
(
I)

Comment:
This
section
proposes
changes
to
40
CFR
Parts
124,
260,
and
270,
and
creates
Part
267
for
issuing
"
standardized
permits"
for
facilities
that
treat/
store
hazardous
wastes
in
tanks,
containers,
and
containment
buildings
(
no
land
based
units).
A
standard
permit
would
have
a
uniform
standard
portion
and
a
site
specific
supplemental
portion.
We
feel
that
this
mechanism
will
streamline
the
permit
process
for
facilities
which
qualify
under
the
standardized
permit
criteria.

Part
267
Subpart
F
­
Releases
from
solid
waste
management
units
­
is
essentially
identical
to
existing
corrective
action
(
CA)
requirements
in
264.101
(
except
written
in
plain
language).
CA
requirements
would
be
in
the
supplemental
portion
of
the
standard
permit.
EPA's
proposal
would
38
exempt
facilities
that
require
a
hazardous
waste
permit
for
remediation
waste
only
from
the
facility
wide
CA
requirements
of
267.101.
This
is
a
significant
departure
from
the
current
requirement
of
facility­
wide
CA
at
RCRA
facilities.
However,
its
application
may
be
limited
because
there
may
not
be
many
facilities
without
land­
based
units
which
require
a
permit
for
remediation
purposes
only.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Response:
This
final
rule
provides
that
corrective
action
conditions,
which
were
developed
specifically
for
that
facility,
be
included
in
the
supplemental
portion
of
the
standardized
permit.
The
Agency
believes
this
is
the
best
approach
because
it
balances
the
Agency's
desire
to
streamline
the
permitting
process
against
the
need
for
flexibility
to
fashion
remedies
that
are
protective
of
human
health
and
the
environment
and
that
reflect
the
conditions
and
complexities
of
each
facility
requiring
corrective
action.

This
rule
does
not
have
the
effect
the
commenter
believes.
The
rule
makes
no
changes
to
the
requirements
for
facility
wide
corrective
action.

3.
What
would
be
the
Advantages
of
a
Standardized
Permit?
(
I.
C.
3)

Comment:
The
Standardized
permit
is
unnecessary.
Facilities
submitting
a
Hazardous
Waste
Storage
and
Treatment
Part
B
Permit
Application
are
granted
Interim
Status
and
can
operate
within
the
law
until
permitted.
Even
a
`
simple'
Hazardous
Waste
Storage
and
Treatment
Part
B
Permit
Application
can
be
several
hundred
pages
in
length.
To
issue
permits
to
facilities
without
a
proper
review
process,
an
RFA,
no
Part
B
application,
and
no
correction
of
deficiencies
in
the
application
is
not
protective
of
human
health
and
the
environment
and
assumes
a
greater
level
of
understanding
and
compliance
with
the
regulations
than
most
facilities
have
shown
in
the
past
twenty
years.
(
Donald
Webster,
RCRA­
2001­
0029­
0029).

Response:
We
believe
that,
for
the
units
involved
(
tanks,
containers,
containment
buildings),
the
necessary
safeguards
are
in
place
(
compliance
audits,
public
participation,
closure
plan
submissions,
etc.)
that
the
standardized
permit
rule
is
in
fact
protective
of
human
health
and
the
environment.
Furthermore,
RCRA
permitting
authorities
can
require
a
facility
to
go
through
the
individual
permit
process
if
there
are
site
specific
concerns.

Comment:
I
applaud
the
EPA
proposal
to
streamline
the
permitting
process
for
RCRA
permittees
that
generate
hazardous
waste
and
then
manage
them
in
units
such
as
tanks,
containers,
and
containment
buildings.
There
has
long
been
a
need
to
address
regulatory
compliance
under
RCRA
and
one
of
the
most
pressing
needs
has
been
to
create
a
permitting
process
that
allows
flexibility
for
expansions
without
lengthy
permitting
requirements.
Technology
and
business
39
move
at
a
fast
pace
in
the
21st
Century
and
it
is
increasingly
critical
that
regulatory
schemes
create
a
fair
and
competitive
environment
for
businesses
operating
in
a
global
economy.
While
I
applaud
this
needed
standardized
permitting
process,
my
15
years
as
an
environmental
professional
tells
me
that
without
specific
safeguards
there
is
the
potential
for
much
backsliding.
There
is
also
the
potential
for
the
EPA
to
lose
connection
and
control
of
the
quantity
and
quality
of
hazardous
waste
generated
and
disposed
of
in
the
United
States.

RCRA
as
a
Proactive
Regulation
The
mission
of
RCRA
as
mandated
in
its
enabling
legislation
is
for
the
proactive
recovery
and
disposal
of
hazardous
materials
before
they
can
be
carelessly
disposed
of
to
the
air,
ground,
or
waterways.
One
of
industries'
biggest
problems
with
RCRA
compliance
has
been
how
individual
facilities
fit
within
the
elaborate
regulatory
scheme
created
by
RCRA.
A
standardized
permit
would
go
a
long
way
in
helping
facilities
understand
where
each
type
of
hazardous
waste
generator
fits
into
the
scheme
and
the
regulatory
requirements
that
position
entails.
I
have
two
concerns,
however,
that
I
believe
should
be
taken
into
consideration
for
the
final
proposal
of
this
change
in
the
permitting
scheme.
One,
that
this
new
permit
system
will
cause
industry
and
the
EPA
to
treat
large
categories
of
hazardous
wastes
the
same.
Two,
that
the
scheme
will
bring
about
an
increase
use
of
hazardous
chemicals
that
the
prior
permitting
and
compliance
scheme
made
too
expensive
to
implement.

Treating
Large
Categories
of
Hazardous
Waste
the
Same
The
standardized
permit
should
not
make
broad
assumptions
about
the
management
of
hazardous
waste.
It
is
easy
to
assume
that
waste
generated
on­
site
and
kept
in
containers
and
tanks
in
which
the
inputs
and
outputs
can
be
monitored
and
controlled
can
be
managed
under
similar
regulatory
schemes.
RCRA
has
been
such
an
onerous
regulation
both
in
its
implementation
and
enforcement
that
most
industries
have
tended
to
err
on
the
side
of
a
conservative
view
in
regards
to
which
chemicals
to
use
on­
site.
I
am
concerned
that
the
standardized
permit
will
lump
wastes
together
based
on
industry
on­
site
management
choices
(
to
pump
waste
to
containers)
instead
of
their
long­
term
treatment
and
disposal
needs.
This
problem
may
not
be
readily
discernable
when
we
look
at
industry
practices
today
under
the
present
RCRA
regulatory
scheme,
however,
as
new
chemicals
proliferate
there
could
be
a
tendency
to
manage
them
in
a
way
that
allows
for
inclusion
within
the
standardized
permit
system
to
the
detriment
of
pollution
prevention.

Standardize
Permit
Could
Increase
Hazardous
Chemical
Usage
Industries
are
always
looking
for
ways
to
increase
their
efficiency
or
product
quality
by
changing
the
chemicals
used
in
the
process.
In
most
companies
a
profitable
process
idea
that
uses
a
hazardous
chemical
would
not
be
discarded
until
it
reached
the
in­
house
regulatory
compliance
team
and
then
only
after
a
fight.
Industries
know
which
chemicals
will
signal
red
flags
during
the
present
RCRA
permitting
process
and
opted
out
of
their
use
to
expedite
the
permitting
process.
One
of
the
most
successful
means
of
limiting
the
use
of
hazardous
chemicals
and
ushering
in
the
age
of
pollution
prevention
in
the
first
place
has
been
that
onerous
permitting
and
guidance
scheme
called
RCRA.
We
can
replace
it
with
something
less
onerous;
however,
we
must
also
deal
with
the
incentive
that
such
a
change
will
create.
By
creating
a
standardized
permit,
40
industries
would
be
able
to
make
decisions
upon
which
chemicals
to
use
in
their
processes
without
consideration
of
the
regulatory
effects
of
the
decision.
Without
regulatory
permit
requirement
that
make
the
company
closely
evaluate
proposed
chemical
processes,
there
is
a
tendency
for
industry
to
make
decisions
based
upon
the
economic
impacts.
If
the
EPA
intents
upon
relying
on
the
part
of
the
permit
that
would
not
be
standardized
to
eliminate
these
incentives,
then
it
would
seem
that
the
non­
standardized
part
of
the
permit
would
just
be
a
duplication
of
the
old
RCRA
permit.

Conclusion
RCRA
was
legislated
to
be
a
proactive
regulation
for
the
recovery
and
disposal
of
hazardous
waste.
While
its
regulatory
scheme
is
onerous
and
needs
work,
standardized
permits
have
their
own
set
of
incentives
that
need
to
be
addressed.
It
is
easy
to
assume
that
industry
has
learned
its
lesson
and
has
bought
into
environmental
regulatory
requirements
and
efforts;
however,
when
pitted
against
the
bottom
line
environmental
concerns
normally
are
put
on
the
back
burner.
Regulatory
schemes
like
RCRA
have
proliferated
company
pollution
prevention
programs
and
environmental
awareness
programs
that
are
the
basis
for
U.
S.
environmental
recovery.
If
implemented,
this
new
permit
standardization
plan
will
have
to
find
a
way
to
replace
the
age­
old
RCRA
incentives
with
new
ones.
(
Horace
Lee,
EMBA,
CHMM,
RCRA­
2001­
0029­
0030)

Response:
Waste
minimization
is
still
a
goal
of
the
RCRA
program
­
because
of
the
financial
responsibility
requirements
and
corrective
action
standards
we
do
not
believe
that
facilities
will
enter
into
hazardous
waste
management
without
careful
consideration
of
alternatives.

We
feel
adequate
controls
are
in
place
to
prevent
us
from
losing
control
on
the
quantity
and
quality
of
hazardous
waste
generation.
The
biennial
reporting
provisions
still
apply
to
these
facilities.

Regarding
the
concern
that
facilities
will
treat
large
categories
of
hazardous
waste
the
same,
we
do
not
agree.
Wastes
that
are
stored
in
containers,
containment
buildings,
and
tanks
will
still
need
to
be
sent
to
appropriate
treatment
and
disposal
units
within
one
year.

Comment:
USWAG
agrees
that
the
proposed
standardized
permit
application
and
modification
procedures
are
less
cumbersome
than
individual
permit
procedures
(
e.
g.,
the
permittee
would
no
longer
need
to
submit
the
amount
of
information
needed
to
support
an
individual
permit
application,
but
would
instead
keep
the
required
information
at
its
facility;
the
permitting
agency
would
no
longer
be
involved
with
detailed
review
of
permit
application
materials
associated
with
waste
management
unit
design
and
operation;
the
time
required
to
obtain
a
RCRA
permit
would
be
shortened).
Id.
at
52196.
USWAG
understands
that
EPA
is
proposing
that
permittees
must
continue
to
comply
with
waste
management
practices,
day­
to­
day
housekeeping,
and
judicious
maintenance
programs
found
in
the
"
individual"
RCRA
permit
programs,
and
that
failure
to
maintain
waste
management
practices
that
protect
human
health
and
the
environment
could
result
41
in
revocation
of
the
standardized
permit
by
the
permitting
agency,
as
well
as
civil
and/
or
criminal
penalties.
Id.

As
USWAG
has
historically
emphasized,
however,
we
believe
that
EPA
should
only
revoke
a
standardized
permit
or
assess
penalties
where
failure
to
meet
a
standardized
permit
condition
endangers
human
health
or
the
environment.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
Revoking
a
standardized
permit
should
only
be
done
after
careful
consideration
by
the
regulatory
authority,
as
to
whether
actions
by
the
facility
warrant
revocation.
No
new
revocation
conditions
were
proposed
or
included
in
the
final
rule.

Comment:
One
advantage
cited
for
the
standardized
permit
is
the
prospect
of
not
being
required
to
submit
certain
documents
to
the
regulatory
agency.
These
documents
(
waste
analysis
plan,
contingency
plan,
closure
plan
etc.)
would
instead
be
maintained
at
the
facility.
We
are
concerned
that
this
arrangement,
though
perhaps
saving
the
facility
time
on
the
front
end
of
the
permit
process,
will
result
in
significantly
longer
inspections
and
increased
enforcement
due
to
plan
inadequacies
and
subsequent
compliance
issues
and
enforcement.
In
short,
this
approach
could
backfire.

We
are
also
concerned
that
this
arrangement
will
not
facilitate
public
participation.
The
public
may
be
uncomfortable
asking
to
review
documents
maintained
exclusively
at
the
facility.
And
we
are
aware
of
certain
situations
in
which
relations
between
the
community
and
the
regulated
facility
have
become
confrontational.
It
seems
unrealistic
that
the
public
could
get
information
in
this
way
if
there
was
a
dispute
with
the
permit
applicant.

Finally
we
believe
this
arrangement
does
not
facilitate
direct
dialogue
on
these
documents
between
the
community
and
the
agencies,
since
we
will
not
normally
have
the
documents
in
our
possession.
We
believe
that
it
would
be
worthwhile
to
require
facilities
to
submit
the
information
to
the
regulatory
agency
that
they
will
maintain
at
their
facility
to
demonstrate
compliance
but
not
require
agency
approval
of
these
documents.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
The
final
rule
will
require
two
of
the
documents
mentioned
to
be
submitted
with
the
Notice
of
Intent
to
the
regulatory
agency.
The
final
rule
requires
the
submission
of
a
closure
plan,
and,
for
eligible
facilities
receiving
wastes
generated
off­
site,
a
waste
analysis
plan.
The
closure
plan
will
help
assure
the
regulatory
authority
that
the
owner
or
operator
has
planned
for
closure
of
the
facility,
and
the
waste
analysis
plan
will
provide
information
when
wastes
are
coming
from
off­
site.
Some
commenters
expressed
concern
about
wastes
being
managed
that
were
generated
off­
site,
and
the
need
for
adequate
characterization
of
those
wastes.
Submitting
the
waste
analysis
plan
should
minimize
those
concerns.
42
EPA
has
clarified
in
the
preamble
that
the
Director
has
the
discretion
to
establish
an
information
repository
that
contains
the
permit
information
at
a
location
off­
site
from
the
facility,
if
such
a
location
will
better
foster
public
participation.
This
can
be
at
the
facility
or
at
a
public
location
with
acceptable
access.
The
final
rule
will
also
require
that
closure
plans
be
submitted
with
the
notice
of
intent.

Comment:
Onyx,
a
company
specializing
in
the
commercial
treatment
and
storage
of
hazardous
waste,
would
not
be
eligible
for
the
proposed
standardized
RCRA
permit.
However,
Onyx
is
supportive
of
EPA's
proposal
to
provide
a
streamlined
permitting
process
for
generators
of
hazardous
waste
who
require
treatment
and/
or
storage
permits.
Onyx
believes
that
the
proposal
will
benefit
generators
not
only
in
the
initial
process
of
obtaining
permits
but
also
in
the
permit
modification
process.
The
primary
advantages
of
the
standardized
permits
from
Onyx's
perspective
are
the
accelerated
time
frame
for
the
review
and
issuance
of
permits,
the
uniformity
of
the
permit
language,
and
the
reduced
paperwork
burden
associated
with
the
application
process.
The
primary
disadvantage
of
the
standardized
permits
as
proposed
is
that
it
is
not
applicable
to
commercial
treatment
and
storage
facilities.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site,
as
proposed.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

We
considered
the
comments
on
this
issue,
most
of
which
came
from
either
States
or
industry
groups.
While
industry
believed
the
rule
should
extend
to
off­
site
facilities,
and
further
believed
that
many
off­
site
facilities
could
adequately
manage
off­
site
generated
wastes
under
a
streamlined
permit
approach,
States
expressed
great
concerns
about
such
facilities
complying
with
the
permitting
requirements,
especially
in
cases
where
a
facility
manages
complex
waste
streams.
States
expressed
concern
about
both
commercial
disposal/
treatment
and
recycling
operations
occurring
off­
site.
Of
the
off­
site
facilities,
States
felt
that
captive
facilities
might
be
best
suited
for
the
standardized
permit,
because
of
their
familiarity
with
the
wastes
managed.

Thus,
we
are
extending
the
rule
to
include
generators
managing
wastes
generated
off­
site,
as
long
as
the
off­
site
generator
is
under
the
same
ownership
as
the
receiving
facility.
(
Generators
receiving
wastes
generated
off­
site,
would
need
to
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
and
also
include
1The
National
Environmental
Performance
Track
program
recognizes
and
encourages
top
environmental
performance
among
private
and
public
facilities
in
the
United
States.
Performance
Track
members
go
beyond
compliance
with
regulatory
requirements
to
achieve
environmental
excellence.
Currently
the
program
has
approximately
300
members.

43
documentation
showing
that
both
the
off­
site
generator
and
the
receiving
facility
are
under
the
same
ownership.)

It
should
also
be
noted
that
the
Agency
is
exploring
whether
to
extend
eligibility
for
the
standardized
permit
to
other
off­
site
facilities
that
have
demonstrated
superior
environmental
performance;
the
National
Performance
Track
Program
provides
an
example
of
the
kind
of
criteria/
facilities
that
EPA
is
considering
in
this
context.
1
We
believe
it
may
be
appropriate
to
offer
this
option
to
such
facilities
to
further
encourage
superior
environmental
results.
In
fact,
the
Agency
believes
it
important
to
reward
companies
that
are
top
environmental
performers
and
therefore,
believe
that
such
a
change
may
be
appropriate.
The
Agency
anticipates
issuing
a
proposed
rulemaking
involving
Performance
Track
facilities
in
the
near
future.

Comment:
Advantages:
Standardized
permits
can
be
an
alternate
mechanism
and
appropriate
way
for
states
to
minimize
their
oversight
of
lower­
risk
facilities
and
re­
focus
their
efforts
towards
permitting
higher
priority
facilities
towards
cleanup
goals.
The
standardized
permit
rule
should
be
applicable
only
to
facilities
that
generate
waste
and
routinely
manage
the
waste
on­
site
in
above
ground
tanks,
containers,
and
containment
buildings.
The
standardized
permit
specifically
should
not
apply
to
interim
status
facilities,
research
and
development
activities,
or
construction
permits.
Standardized
permits
are
especially
appropriate
for
renewal
permits.

Permit
applicants
with
a
history
of
compliance
with
the
environmental
laws
should
be
eligible
for
longer
permits,
short­
form
permit
renewals
and
other
incentives
to
reward
and
encourage
such
applicants,
including
the
proposed
standardized
RCRA
permit
for
on­
site
storage
of
hazardous
waste
in
tanks,
containers
and
containment
storage
buildings.

Disadvantages:
Experience
has
shown
that
facilities
sometimes
represent
that
they
will
carry
out
endeavors
according
to
a
written
plan
that
meets
regulatory
requirements,
but
subsequent
reviews
and
inspections
reveal
that
plans
and/
or
regulations
were
not
in
fact
appropriately
followed.
The
Department
believes
that
reliance
on
post­
installation
inspections
may
not
be
adequate
to
ensure
compliance
with
regulatory
requirements,
especially
after
construction
is
complete
without
prior
review
of
plans,
drawings,
specifications
or
reports.
At
a
minimum
construction
design
and
proposed
operation
procedures
must
be
approved
by
the
regulatory
agency
prior
to
installation
44
and
operation.
In
addition,
professional
certifications
that
the
construction
design
was
followed
should
be
submitted
following
completion
of
construction.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Response:
While
we
understand
that
not
all
companies
operate
the
way
they
have
portended
in
their
written
plans,
the
same
might
be
said
of
any
permittee.
We
believe
the
standardized
permit
rule
provides
enough
safeguards
(
e.
g.,
binding
self
certifications,
compliance
audits)
to
help
assure
the
permitting
authority
that
the
regulations
are
being/
will
be
followed.

The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site,
as
proposed.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

We
considered
the
comments
on
this
issue,
most
of
which
came
from
either
States
or
industry
groups.
While
industry
believed
the
rule
should
extend
to
off­
site
facilities,
and
further
believed
that
many
off­
site
facilities
could
adequately
manage
off­
site
generated
wastes
under
a
streamlined
permit
approach,
States
expressed
great
concerns
about
such
facilities
complying
with
the
permitting
requirements,
especially
in
cases
where
a
facility
manages
complex
waste
streams.
States
expressed
concern
about
both
commercial
disposal/
treatment
and
recycling
operations
occurring
off­
site.
Of
the
off­
site
facilities,
States
felt
that
captive
facilities
might
be
best
suited
for
the
standardized
permit,
because
of
their
familiarity
with
the
wastes
managed.

Thus,
we
are
extending
the
rule
to
include
generators
managing
wastes
generated
off­
site,
as
long
as
the
off­
site
generator
is
under
the
same
ownership
as
the
receiving
facility.
(
Generators
receiving
wastes
generated
off­
site,
would
need
to
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
and
also
include
documentation
showing
that
both
the
off­
site
generator
and
the
receiving
facility
are
under
the
same
ownership.)

It
should
also
be
noted
that
the
Agency
is
exploring
whether
to
extend
eligibility
for
the
standardized
permit
to
other
off­
site
facilities
that
have
demonstrated
superior
environmental
performance;
the
National
Performance
Track
Program
provides
an
example
of
the
kind
of
criteria/
facilities
that
EPA
is
considering
in
this
context.
We
believe
it
may
be
appropriate
to
offer
this
option
to
such
facilities
to
further
encourage
superior
environmental
results.
In
fact,
the
Agency
believes
it
important
to
reward
companies
that
are
top
environmental
performers
and
45
therefore,
believe
that
such
a
change
may
be
appropriate.
The
Agency
anticipates
issuing
a
proposed
rulemaking
involving
Performance
Track
facilities
in
the
near
future.

Comment:
The
advantages
are
a
streamlined
permitting
process
for
generators
of
hazardous
waste
storing
in
tanks
and
containers
for
greater
than
90
days.
One
disadvantage
would
be
the
ability
of
the
permitting
agency
to
determine
compliance
of
the
facility
with
the
waste
analysis
plan
and
closure
plan
requirements
prior
to
permit
issuance.
These
plans
are
not
proposed
to
be
included
in
an
application
for
a
standardized
permit,
and
there
is
a
120­
day
limit
to
determine
applicability
of
the
standardized
permit.
This
would
necessitate
getting
a
copy
of
the
waste
analysis
and
closure
plans
from
the
facility
for
review
because
permits
cannot
be
issued
to
facilities
that
are
not
in
compliance
with
the
basic
waste
analysis
and
closure
provisions.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site,
as
proposed.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

We
considered
the
comments
on
this
issue,
most
of
which
came
from
either
States
or
industry
groups.
While
industry
believed
the
rule
should
extend
to
off­
site
facilities,
and
further
believed
that
many
off­
site
facilities
could
adequately
manage
off­
site
generated
wastes
under
a
streamlined
permit
approach,
States
expressed
great
concerns
about
such
facilities
complying
with
the
permitting
requirements,
especially
in
cases
where
a
facility
manages
complex
waste
streams.
States
expressed
concern
about
both
commercial
disposal/
treatment
and
recycling
operations
occurring
off­
site.
Of
the
off­
site
facilities,
States
felt
that
captive
facilities
might
be
best
suited
for
the
standardized
permit,
because
of
their
familiarity
with
the
wastes
managed.

Thus,
we
are
extending
the
rule
to
include
generators
managing
wastes
generated
off­
site,
as
long
as
the
off­
site
generator
is
under
the
same
ownership
as
the
receiving
facility.
(
Generators
receiving
wastes
generated
off­
site,
would
need
to
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
and
also
include
documentation
showing
that
both
the
off­
site
generator
and
the
receiving
facility
are
under
the
same
ownership.)
46
Comment:
One
of
the
main
disadvantages
to
this
rule
is
the
increased
potential
for
casual
waste
management
practices.
By
eliminating
the
majority
of
the
permit
review
process,
regulatory
interpretation
is
left
up
to
the
facility.
This
may
result
in
more
lax
interpretations
and
thus
relaxed
management
practices.
Without
the
benefit
of
prior
review
from
the
regulating
agency,
misinterpretation
of
the
regulations
on
the
part
of
the
facility
could
lead
to
increased
violations.
In
addition
to
that,
the
burden
to
inspectors
is
due
to
increase
greatly
since
they
will
essentially
have
to
conduct
a
permit
application
review
when
they
do
their
inspection.

Although
the
time
frames
for
issuing
a
permit
are
reduced,
almost
all
of
the
information
that
would
be
required
by
a
traditional
permit
would
still
need
to
be
generated
and
kept
at
the
facility.
Sometimes
generating
this
information
can
be
as
time
consuming
as
the
regulatory
review
process.
Therefore
the
time
required
to
receive
a
permit
may
not
be
reduced
as
much
as
anticipated.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
We
disagree
that
the
standardized
permit
rule
will
result
in
more
lax
waste
management
practices.
We
have
confidence
that
the
certification
and
audit
requirements
imposed
on
the
facility
will
result
in
protective
waste
management
practices.
Regarding
time
frames,
we
believe
most
time
savings
will
occur
during
the
review
of
the
application
by
the
regulatory
authority,
and
not
during
the
phase
of
information
gathering
performed
by
the
permit
applicant.

Comment:
Many
Council
members
own
and
operate
the
types
of
hazardous
waste
management
units
identified
in
the
proposed
standardized
permit
rule.
The
Council
has
reviewed,
supports,
and
adopts
by
reference
the
comments
separately
submitted
by
the
Synthetic
Organic
Chemical
Manufacturers
Association
(
SOCMA).
The
proposed
standardized
permit
option
will
accelerate
the
permit
application
process
for
the
specified
waste
management
units,
and
reduce
the
administrative
burden
for
the
permit
on
the
part
of
the
permittee.
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)

Response:
We
appreciate
ACC's
comments.

4.
Who
would
be
Eligible
for
a
Standardized
Permit?
(
I.
C.
4)

Comment:
p.
52197,
col.
1
 
The
preamble
states
that
once
a
standardized
permit
rule
is
promulgated,
a
facility
owner
or
operator
is
not
required
to
apply
for
a
standardized
permit,
even
though
the
facility
is
eligible
for
one.

DOE
supports
allowing
a
facility,
at
its
own
discretion,
to
seek
an
individual
permit
or
a
standardized
permit
for
eligible
on­
site
storage
and
treatment
activities.
The
Department
believes
that
facilities
should
be
given
as
much
flexibility
as
possible
in
structuring
how
their
activities
are
47
permitted.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
agree
that
a
facility
should
be
given
flexibility
as
to
whether
or
not
they
wish
to
apply
for
a
standardized
permit.
The
final
rule
will
allow
for
facilities
to
have
eligible
units
permitted
under
a
standardized
permit,
while
at
the
same
time
have
other
units
under
an
individual
permit.

Comment:
ELIGIBILITY
FOR
A
RCRA
STANDARDIZED
PERMIT.
The
regulatory
agency
would
not
make
a
determination
whether
or
not
a
facility
is
eligible
for
a
RCRA
Standardized
Permit
until
after
the
permit
application
was
received.
"
We
will
inform
you
of
your
eligibility
when
we
make
a
decision
on
your
permit".
California
law
requires
pre­
application
meetings
with
a
permit
applicant.
During
these
meetings,
basic
information
is
exchanged,
a
project
description
is
submitted,
and
many
issues
are
resolved.
By
the
time
an
application
is
formally
developed,
the
applicant
is
knowledgeable
about
the
permit
process
and
information
needs.
The
application
DTSC
receives
is
thereby
of
higher
quality,
saving
DTSC
and
the
applicant
time
and
money.
An
individual
application
may
be
denied
if
it
is
significantly
inadequate,
and
questions
cannot
be
resolved,
or
the
applicant
has
a
history
of
significant
compliance
problems,
but
that
is
different
from
a
basic
eligibility
for
the
permit
tier.
In
addition,
California
law
requires
either
a
non­
refundable
activity
fee
or
a
cost
reimbursement
contract
be
in
place
before
any
permit
application
review
begins.
It
does
not
appear
appropriate
to
allow
an
applicant
to
submit
an
application,
incurring
major
expenses,
and
then
deny
eligibility
for
that
permit
tier.
In
addition,
the
regulatory
agency
will
have
spent
valuable
staff
time
reviewing
the
application.
It
would
be
far
more
helpful
to
lay
out
RCRA
Standardized
Permit
eligibility
criteria
in
more
detail,
so
that
a
prospective
proponent
can
clearly
determine
eligibility
for
the
type
of
permit.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
We
decided
that
making
a
decision
on
eligibility
earlier
in
the
process
is
not
necessary
and
may
complicate
the
permitting
process.
Of
course
states
can
have
different
permit
review
and
issuance
processes.
While
we
recognize
that
preapplication
meetings
are
helpful
in
the
permitting
process,
we
did
not
mandate
that
in
the
rule.

5.
What
are
the
Proposed
Steps
for
Obtaining
a
Standardized
Permit?
(
I.
D.
2)

Comment:
The
rule
uses
the
terms
"
draft
permit
decision"
and
"
draft
permit"
inconsistently
and
is
very
confusing.
For
example,
Section
I.
D.
2.
states
that
"
Within
120
days
of
receiving
the
Notice
of
Intent
and
accompanying
information,
the...
regulatory
agency
would
need
to
make
a
preliminary
decision
to
either
grant
or
deny...
coverage
under
the
standardized
permit."
The
text
goes
on
to
say
that
"
If
the
Director
anticipates
granting
coverage,
he
or
she
would
prepare
a
draft
standardized
permit."
In
addition,
Table
2,
Permitting
Process
Comparison,
indicates
that
for
a
48
proposed
standardized
permit,
a
"
draft
permit
decision"
must
be
made
within
120
days
of
submission
of
the
Notice
of
Intent,
etc.,
and
that
the
preparation
of
the
draft
permit
will
take
place
following
the
declaration
of
the
"
draft
permit
decision".
Section
IV.
A.
3.,
Preparing
Your
Draft
Permit
Decision
in
120
Days,
also
clearly
states
"...
you...
would
need
to
make
a
draft
permit
decision
within
120
days
of
receiving
a
Notice
of
Intent...
from
the
facility
owner
or
operator."
However,
the
next
sentence
states
that
"
The
proposed
120­
day
time
frame
for
issuing
the
draft
permit
is
a
new
concept...".
This
is
very
confusing
and
inconsistent
with
what
has
been
previously
presented.
It
is
unclear
exactly
what
EPA
is
proposing.
Should
EPA
be
proposing
that
a
draft
RCRA
permit
will
be
issued
within
120
days
from
receipt
of
the
Notice
of
Intent,
then
the
proposal
is
unreasonable
because
120
days
may
not
be
a
sufficient
amount
of
time
to
review
information,
determine
eligibility,
and
establish
any
necessary
supplemental
provisions.
It
is
also
unclear
what
is
meant
by
"
issuance"
of
the
permit.
In
addition,
an
extension
period
should
be
allowed
to
address
any
minor
concerns
the
agency
might
have
with
the
application.
Instead
of
a
flat
90­
days,
perhaps
up
to
120
days
could
be
granted,
depending
on
the
gravity
of
the
concerns,
etc.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Response:
The
final
rule
requires
issuance
of
a
draft
permit
within
120
days
of
the
submission
of
the
Notice
of
Intent,
with
an
available
30­
day
extension.
The
final
rule
does
not
place
any
time
constraints
on
how
long
it
takes
to
issue
the
final
permit.
The
Agency
believes
that,
in
general,
120
days
provides
sufficient
time
to
issue
a
draft
permit,
but
is
also
allowing
for
a
30­
day
extension
for
case­
by­
case
situations.

6.
Eligibility
of
facilities
that
manage
through
on­
site
storage
and
treatment
units
as
well
as
through
other
types
of
waste
management
units
(
I.
E.
3.
a)

Comment:
p.
52198,
col.
3
 
EPA
requests
comment
on
whether
a
facility
that
manages
some
of
its
hazardous
waste
in
on­
site
storage
and
treatment
units
and
some
of
its
hazardous
waste
in
other
types
of
waste
management
units
should
be
eligible
for
a
standardized
permit
for
the
on­
site
storage
and
treatment
activities.

DOE
supports
allowing
a
facility,
at
its
own
discretion,
to
seek
an
individual
permit
for
some
activities
while
seeking
a
separate
standardized
permit
for
eligible
on­
site
storage
and
treatment
activities.
The
Department
agrees
that,
in
certain
circumstances,
it
may
be
advantageous
for
a
facility
to
separate
the
permitting
of
storage
and
treatment
activities
eligible
for
a
standardized
permit
from
the
permitting
of
other
activities
that
require
an
individual
permit.
In
addition,
DOE
believes
facilities
should
be
given
as
much
flexibility
as
possible
in
structuring
how
their
activities
are
permitted.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
ADEQ
generally
agrees
with
the
base
concept
of
issuing
standardized
permits
for
certain
hazardous
waste
facility
owner/
operators
managing
hazardous
waste
in
containers,
tanks,
49
and
containment
buildings.
We
support
the
approach
which
allows
standardized
permits
for
some
units
and
individual
permits
for
others.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Comment:
EPA
requests
comment
on
whether
a
facility
that
manages
some
of
its
hazardous
waste
in
qualified
on­
site
storage
and
treatment
units
(
e.
g.,
a
tank
or
container)
and
some
of
its
hazardous
waste
in
other
types
of
waste
management
units
(
e.
g.,
a
thermal
unit)
should
be
eligible
for
a
standardized
permit
for
the
qualified
on­
site
storage
and
treatment
activities.
Id.
at
52198.
Such
a
"
split"
facility
should
be
eligible
for
a
standardized
permit
for
its
qualified
units
so
that
it
might
be
able
to
minimize
its
RCRA
permitting
requirements.

As
EPA
explains,
"[
I]
t
may
be
resource­
intensive
for
a
facility
with
multiple
types
of
units
to
choose
to
go
through
the
RCRA
permitting
process
several
times,"
and
therefore,
facilities
may
see
an
advantage
in
obtaining
a
standardized
permit
for
only
a
portion
of
their
operations.
Id.
USWAG
agrees
that
a
facility
that
manages
some
of
its
hazardous
waste
in
qualified
storage
and
treatment
units
should
be
eligible
for
a
standardized
permit
for
those
units.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Comment:
The
goal
of
the
standardized
permit
is
to
expedite
and
simplify
the
permit
process.
If
there
are
units
which
can
benefit
from
the
advantages
offered
by
a
standardized
permit,
they
should
be
allowed
to
use
it
regardless
of
whether
or
not
they
also
need
an
individual
permit
for
other
types
of
management
activities
that
do
not
qualify
for
a
standardized
permit.
The
proposed
regulations
enable
the
regulator
to
make
a
site
specific
determination
as
to
whether
to
require
an
individual
permit
even
if
the
facility
meets
the
eligibility
criteria
for
a
standardized
permit.
This
should
be
adequate
to
ensure
that
the
standardized
permit
will
only
be
used
when
appropriate.

Recommendation.
Do
not
restrict
use
of
the
standardized
permit
option
based
on
whether
or
not
a
facility
needs
an
individual
permit
for
other
activities.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Comment:
Onyx
supports
the
proposal
in
that
a
facility
is
able
to
obtain
both
an
individual
permit
in
addition
to
a
standardized
permit.
Although
thermal
treatment
and
land
disposal
operations
are
not
eligible
for
a
standardized
permit,
the
facility
should
be
allowed
to
obtain
a
standardized
permit
for
the
other
waste
management
operations
occurring
on­
site.
Facilities
may
find
it
initially
burdensome
to
apply
for
and
obtain
a
standardized
permit
for
those
existing
waste
management
activities
that
are
currently
covered
by
an
individual
permit.
However,
Onyx
believes
that
the
overall
benefits
of
the
standardized
permit
will
be
sufficient
reason
for
a
facility
to
pursue
the
permitting
change.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Comment:
Safety­
Kleen
agrees
with
EPA
that
a
facility
should
be
eligible
for
a
standardized
permit
for
certain
units
even
if
other
units
on­
site
do
not
qualify.
If
a
facility
manages
a
drum
50
storage
area
and
a
separate
disposal
unit,
the
storage
facility
should
be
eligible
under
the
standardized
permit
proposal.
This
would
allow
both
the
permitting
agency
and
the
facility
to
take
advantage
of
the
reduced
administrative
requirements
for
a
portion
of
the
facility.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Comment:
We
feel
that
although
in
some
cases
it
may
not
benefit
a
facility
to
obtain
both
an
independent
permit
and
a
standardized
permit,
it
should
be
an
option
available
for
qualifying
hazardous
waste
management
units.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
We
agree
with
commenters
that
facility
should
be
given
flexibility
as
to
whether
or
not
they
wish
to
apply
for
a
standardized
permit.
The
final
rule
will
allow
for
facilities
to
have
eligible
units
permitted
under
a
standardized
permit,
while
at
the
same
time
have
other
TSD
units
under
an
individual
permit.

In
addition,
while
having
two
permits
at
one
facility
may
seem
somewhat
burdensome,
we
did
not
want
to
exclude
facilities
having
both
eligible
ineligible
units.
The
discretion
for
whether
or
not
a
facility
is
eligible
for
the
standardized
permit
lies
with
the
Director.
If
a
facility
is
too
complex,
the
facility
may
be
a
better
candidate
for
an
individual
permit
for
their
storage
and
treatment
operations.

Comment:
Applicability
to
facilities
with
a
disposal
or
thermal
treatment
unit.
The
rule
should
be
changed
so
that
it
does
not
apply
to
facilities
that
have
a
disposal
or
thermal
treatment
unit
in
addition
to
storage
or
non­
thermal
treatment
in
containers,
tanks,
and
containment
buildings.
The
preamble,
on
page
52199,
indicates
that
a
facility
could
have
both
a
full
Part
B
permit
for
the
disposal/
thermal
treatment
unit
and
a
standardized
permit
for
the
storage
and/
or
non­
thermal
treatment.
Having
two
permits
for
a
specific
site
would
cause
an
implementation
and
compliance
enforcement
nightmare.
Two
separate
permits
would
cover
many
of
the
facility's
plans,
procedures
and
structures.
Alternatively,
the
facility
would
have
to
have
two
waste
analysis
plans,
two
inspection
plans,
two
contingency
plans,
etc.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Comment:
No,
the
standardized
permit
should
be
applicable
only
to
facilities
that
do
not
have
ineligible
units.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
No.
The
utility
of
the
standardized
permit
would
be
to
reduce
the
burden
of
the
permitting
process
on
all
parties;
the
states,
EPA,
the
facility,
and
the
public.
Issuance
of
an
additional
Individual
permit
or
permit­
by­
rule
would
increase
the
complexity
of
the
administrative
process
to
make
it
more
complex
and
difficult
for
the
agency
to
administer.
For
example,
the
Waste
Analysis
Plan
(
WAP)
would
have
to
be
updated
and
submitted
for
an
individual
permit,
51
where
(
as
currently
proposed)
it
would
not
have
to
be
reviewed
as
part
of
the
standardized
permitting
process.
This
is
likely
to
create
inconsistencies
in
the
WAP
maintained
at
the
facility
versus
the
one
submitted
in
the
permit
application.
Also,
having
two
plans
(
one
for
units
under
the
SP
and
one
for
units
under
the
Individual
Permit
(
IP))
could
be
confusing
during
inspections.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
We
disagree
with
those
who
believe
a
standardized
permit
should
not
be
available
to
facilities
who
also
have
units
not
eligible
for
a
standardized
permit.
A
facility
should
be
given
flexibility
as
to
whether
or
not
they
wish
to
apply
for
a
standardized
permit.
The
final
rule
will
allow
for
facilities
to
have
eligible
units
permitted
under
a
standardized
permit,
while
at
the
same
time
have
other
TSD
units
under
an
individual
permit.
This
would
extend
to
thermal
treatment
operations
with
associated
non­
thermal
storage
activities.
In
such
a
scenario,
for
example,
a
facility
could
have
an
incinerator
permit
and
also
a
standardized
permit
for
the
storage
of
hazardous
wastes
destined
for
incineration.

While
having
two
permits
at
one
facility
may
seem
somewhat
burdensome,
we
did
not
want
to
exclude
facilities
having
both
eligible
and
ineligible
units.
The
discretion
for
whether
or
not
a
facility
is
eligible
for
the
standardized
permit
lies
with
the
Director.
If
a
facility
is
too
complex,
the
facility
may
be
a
better
candidate
for
an
individual
permit
for
their
storage
and
treatment
operations.

Comment:
The
standardized
permit
should
apply
to
storage
units,
but
not
to
all
types
of
treatment
units.
66
FR
52195
col
1.
Units
used
for
physical
treatment,
such
as
filtration,
and
certain
routine
chemical
treatment,
such
as
precipitation,
are
appropriate
for
a
standardized
permit.
However,
units
used
for
other
chemical
treatment
processes
may
pose
significant
risks
that
cannot
be
adequately
addressed
in
a
standardized
permit,
such
as
exothermic
reactions
that
produce
heat,
chemical
reactions
that
pose
explosive
and
reactive
hazards,
and
treatment
that
creates
gaseous
releases.
These
units
are
not
appropriate
for
coverage
by
standardized
permits.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0071)

Response:
We
appreciate
your
comments.
While
there
may
be
treatment
activities
conducted
in
tanks
and
containers
that
may
be
more
suited
for
individual
permitting,
we
believe
many
treatment
and
storage
activities
conducted
in
these
units
are
suitable
for
the
standardized
permit.
This
would
be
similar
to
what
treatment
activities
can
be
safely
conducted
under
the
generator
accumulation
provisions
of
40
CFR
262.34,
where
our
policy
generally
allows
non­
thermal
treatment
to
be
conducted
without
a
permit
in
accumulation
units.

7.
Should
the
standardized
permit
be
applicable
to
facilities
that
treat
or
store
waste
generated
off­
site?
(
I.
E.
3.
b)
2
U.
S.
Department
of
Energy,
Record
of
Decision
for
the
Department
of
Energy's
Waste
Management
Program:
Treatment
and
Disposal
of
Low­
Level
Waste
and
Mixed
Low­
Level
Waste;
Amendment
of
the
Record
of
Decision
for
the
Nevada
Test
Site
(
February
18,
2000),
http://
www.
em.
doe.
gov/
em30/
llwrod.
html
52
Comment:
No,
we
do
not
believe
that
facilities
holding
a
`
standard'
permit
should
be
allowed
to
accept
off­
site
waste.
As
the
number
of
waste
streams
increases
so
does
the
complexity
of
identification
and
handling.
As
a
commercial
TSD
a
large
portion
of
our
infrastructure
is
devoted
to
waste
identification,
verification
analysis
to
ensure
proper
disposal.
This
follows
detailed
procedures.
The
`
physical'
aspects
such
as
handling,
storage
or
treatment
are
minor
compared
to
the
identification,
tracking
and
documentation
aspects
of
waste
handling.
It
is
difficult
to
conceive
how
the
EPA
could
allow
this
kind
of
activity
to
be
conducted
without
prior
review
of
appropriate
procedures.
Additionally,
we
fail
to
see
how
a
brief
on­
site
compliance
inspection
can
be
anywhere
near
sufficient
when
handling
off­
site
waste.

Because
of
the
identification
and
testing
requirements
commercial
TSDs
functionally
serve
as
a
check
on
generator
waste
identification.
If
the
procedures
employed
by
a
standard
permit
holder
are
inadequate
this
verification
would
be
lacking
increasing
the
possibility
of
mishandled
material.

As
a
permitted
TSD
we
are
subject
to
bi­
monthly
inspections.
There
appears
to
be
no
set
inspection
frequency
for
`
standard'
permit
compliance
inspections.
If
`
standard'
permit
holders
are
allowed
to
receive
off­
site
waste
then
inspections
need
to
be
uniform
&
consistent
or
`
standard'
permit
holders
would
be
conducting
exactly
the
same
operations
and
treatments
with
significantly
less
oversight.
(
James
Butler
Regulatory
Compliance
Officer,
Cycle
Chem,
Inc.,
RCRA­
2001­
0029­
0031)

Comment:
p.
52199,
col.
1
 
The
preamble
requests
comment
on
whether
the
applicability
of
the
RCRA
standardized
permit
should
be
expanded
to
include
facilities
that
treat
or
store
waste
generated
off­
site?

(
a)
Traditionally,
facilities
within
the
DOE
complex
have
managed
only
mixed
wastes
generated
on­
site.
However,
DOE
has
completed
a
Record
of
Decision
regarding
management
of
low­
level
mixed
wastes,
which
anticipates
consolidation
of
low­
level
mixed
wastes
from
multiple
facilities
within
the
DOE
complex
at
regional
facilities
for
treatment
and/
or
disposal.
2
Benefits
would
accrue
in
cost
savings
to
taxpayers,
if
facilities
where
mixed
wastes
were
consolidated
could
be
regulated
under
a
standardized
permit
when
such
facilities
meet
the
requisite
qualifications.
Therefore,
DOE
encourages
EPA
to
expand
the
applicability
of
the
RCRA
standardized
permit
to
include
centralized
facilities.
DOE
notes,
however,
that
a
key
aspect
of
the
acceptability
of
this
approach
would
be
the
proper
design
and
implementation
of
waste
analysis
requirements
to
ensure
the
compatibility
of
wastes
from
multiple
off­
site
sources
that
are
stored
and
treated
together.
For
example,
at
least
one
DOE
site
that
receives
waste
from
off­
site
believes
it
has
as
much
knowledge
and
confidence
in
the
compatibility
of
the
off­
site
wastes
as
it
has
for
waste
generated
on­
site,
because
of
its
approach
to
waste
analysis.
The
practice
at
this
site
53
is
to
go
to
the
generator
facility,
collect
samples
of
the
waste
to
be
transferred,
lock
the
containers
to
prohibit
tampering,
place
a
unique
ID
number
on
each
container,
and
analyze
the
samples
using
its
own
contract
laboratory.
Thus,
the
waste
is
characterized
using
the
same
methods
as
are
used
to
characterize
the
facility's
on­
site
wastes
and
administrative
controls
are
applied
to
ensure
that
the
wastes
remain
unchanged
between
sampling
and
receipt.
To
verify
that
acceptable
waste
analysis
requirements
are
in
place
at
a
facility
managing
waste
from
off­
site,
DOE
suggests
that
EPA
require
the
facility
to
submit
a
waste
analysis
plan
with
the
Notice
of
Intent
to
operate
under
a
standardized
permit.
Also,
considering
the
sensitivity
of
receiving
wastes
from
out
of
state,
DOE
suggests
that
a
special
state
approval
process
could
be
established
to
allow
the
receiving
state
to
deny
shipments
for
specified
reasons.

(
b)
DOE
requests
that
EPA
clarify
in
the
final
rule
that
a
facility
would
be
eligible
for
a
standardized
RCRA
permit,
even
though
in
the
past
it
received
off­
site
waste
and
currently
stores
such
waste,
if
the
facility
does
not
plan
to
receive
more
off­
site
waste
in
the
future.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
The
Agency
seeks
comment
on
whether
EPA
should
expand
applicability
of
the
RCRA
standardized
permit
to
include
facilities
that
treat
or
store
waste
generated
off­
site
(
e.
g.,
facilities
that
take
off­
site
waste
from
any
source
as
well
as
the
more
limited
scenario
where
companies
have
multiple
off­
site
generator
locations
and
would
like
to
centralize
management
of
company­
generated
waste).
Id.
at
52199.
As
EPA
notes,
off­
site
waste
generation
does
not
necessarily
equate
to
commercial
management
 
an
individual
company
may
have
a
centralized
waste
collection
facility
for
hazardous
wastes
generated
at
various
off­
site
company
locations.

USWAG
strongly
encourages
EPA
to
expand
applicability
of
this
rulemaking
to
company­
managed
centralized
collection
facilities
("
CCFs")
used
to
consolidate
wastes
from
off­
site
company
locations.
As
EPA
explains,
managing
wastes
at
these
facilities
should
not
be
more
complicated
or
require
greater
attention
than
managing
wastes
generated
on­
site
because
" 
a
company
managing
only
its
own
waste
generated
at
several
locations 
should
know
what
specific
wastes
are
generated
by
the
company
and
be
able
to
manage
them
properly
at
a
centralized
location."
Id.

USWAG
has
long
advocated
the
need
for
regulatory
relief
through
EPA's
hazardous
waste
manifest
initiative,
especially
as
applied
to
electric
utility
operations
where
intra­
company
wastes
are
often
generated
in
the
field
during
the
maintenance
and
repair
of
electric
utility
transmissions
and
distribution
operations.
In
particular,
USWAG
has
urged
EPA
to
allow
for
the
intra­
company
consolidation
of
electric
and
gas
utility
wastes
from
remote
locations
at
company­
owned
CCFs
without
triggering
the
RCRA
permitting
program.
Similar
operations
are
authorized
under
New
York
State's
Project
XL
Rule
for
electric
utilities.
64
Fed.
Reg.
37624
(
July
12,
1999).
54
A
legal
challenge
to
the
New
York
XL
Rule
(
Atlantic
States
Legal
Foundation
et
al.
v.
EPA,
No.
99­
1409
(
D.
C.
Cir.))
has,
we
understand,
delayed
EPA's
expansion
of
this
concept
to
the
national
RCRA
program.
While
USWAG
still
strongly
urges
EPA
to
pursue
such
an
approach
at
the
national
level,
the
RCRA
permit
streamlining
and
standardization
proposal
would
provide
at
least
some
regulatory
relief
to
utility­
owned
CCFs,
pending
development
of
broader
relief
as
explained
above.
Therefore,
we
strongly
urge
EPA
to
extend
this
rulemaking
to
include
CCFs
that
manage
wastes
from
off­
site
company
locations.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Comment:
Boeing
supports
EPA's
efforts
to
streamline
the
RCRA
hazardous
waste
permitting
process
by
establishing
"
standardized
permits"
that
would
allow
facilities
to
obtain,
modify
and
renew
permits
more
easily
without
lessening
the
environmental
protection
provided
by
the
permit.
In
that
regard,
EPA
has
asked
whether
the
applicability
of
the
RCRA
standardized
permit
should
be
expanded
to
include
facilities
that
treat
or
store
waste
generated
off­
site
(
66
Fed.
Reg.
52199).

Boeing
urges
EPA
to
allow
the
use
of
a
standardized
permit
at
a
facility
which
only
accepts
offsite
waste
that
is
generated
by
its
own
manufacturing
operations.
This
would
allow
a
company
like
Boeing
with
multiple
manufacturing
locations
to
centralize
its
management
of
hazardous
waste
at
a
single
location
without
being
denied
the
tangible
benefits
of
streamlined
permitting
proposed
in
the
Standardized
Permitting
Rule.
Since
the
company
would
only
be
managing
its
own
waste
generated
from
its
own
operations,
the
company
could
reasonably
be
expected
to
know
the
chemical
make­
up
and
compatibility
of
the
different
incoming
waste
streams.
Moreover,
Boeing
has
procedures
in
place
to
assure
that
offsite
waste
streams
are
properly
stored
and/
or
treated
at
centralized
locations.

For
example,
at
one
Boeing
facility
in
Puget
Sound,
the
permitted
storage
unit
receives
waste
from
other
Boeing
manufacturing
plants.
These
off­
site
waste
streams
are
limited
to
containerized
waste
from
other
Boeing
facilities.
These
waste
streams
are
similar
to
wastes
generated
at
the
receiving
facility.
Similar
process
and
material
specifications
for
the
manufacturing
processes
are
used.
MSDS
information
for
all
products
used
within
Boeing
are
also
available
throughout
the
company.

In
addition,
these
offsite
shipments
are
subject
to
considerable
federal
requirements,
e.
g.,
40
CFR
262
Subpart
B,
49
CFR,
and
40
CFR
264
Subpart
F,
which
assure
their
proper
handling.
These
requirements
include:
°
A
manifest
must
accompany
the
shipment
being
received
that
identifies
the
quantity
and
type
of
each
waste
in
the
load;
°
The
manifest
must
be
completely
filled
out
and
signed
by
both
the
generator
and
transporter;
°
The
number
of
containers
of
each
waste
stream
(
i.
e.,
profile)
as
well
as
the
total
number
of
containers
(
piece
count)
in
the
load
must
correspond
to
the
information
on
the
manifest;
°
The
labels
must
correspond
to
the
information
on
the
manifest;
55
°
The
contents
of
the
waste
in
the
containers
must
correspond
to
the
information
on
the
manifest;
°
Each
waste
stream
in
the
load
must
be
properly
identified;
°
The
necessary
land
disposal
restrictions
(
LDR)
notification(
s)
and/
or
certification(
s)
must
also
accompany
the
shipment;
°
The
receiving
site
must
verify
that
each
of
the
waste
streams
in
the
shipment
can
be
properly
managed
in
the
centralized
storage
unit;
and
°
The
containers
must
be
closed
and
free
of
all
cracks
or
gaps.

Given
a
manufacturing
facility's
familiarity
and
experience
with
the
waste
streams
generated
at
its
own
additional
manufacturing
sites,
there
is
no
reason
to
believe
that
the
expansion
of
standardized
permits
to
facilities
that
store
or
treat
their
own
offsite
wastes
would
compromise
protection
of
human
health
or
the
environment.
Any
risks
posed
to
the
receiving
facility
will
be
readily
apparent
and
can
be
properly
managed.
(
Matthew
C.
Frank,
Boeing
Company,
RCRA­
2001­
0029­
0042)

Comment:
API
supports
extending
the
standardized
permit
option
to
facilities
receiving
wastes
from
off­
site,
whether
they
are
captive
or
commercial
facilities,
for
those
units
and
processes
eligible
for
a
standardized
permit
for
on­
site
management.
We
also
support
extending
eligibility
for
the
standardized
permit
and
proposed
permit
modification
procedures
to
off­
site
recycling
facilities
under
the
same
circumstances.
We
question
what
environmental
gain
would
be
made
by
denying
the
use
of
standardized
permits
under
these
circumstances.
The
proposed
rule
would
allow
facilities
that
have
both
the
simpler
types
of
operations
proposed
for
a
standardized
permit
and
the
more
complex
operations
that
would
remain
subject
to
a
full
permit
to
operate
with
both.
In
light
of
that
proposal,
there
is
simply
no
environmental
benefit,
but
a
potentially
substantial
cost
associated
with
failing
to
allow
these
operations
to
take
advantage
of
the
proposed
standardized
permit.
If
thousands
of
generators
do
not
require
permits
for
such
operations,
but
simply
comply
with
standards
published
in
the
Code
of
Federal
Regulations
(
CFR),
it
should
be
sufficient
for
any
facility
managing
wastes
in
these
ways
to
comply
with
standards
incorporated
into
a
site­
specific
standardized
permit.
In
addition
to
the
financial
savings
and
reduced
uncertainty
to
the
regulated
community
made
possible
by
the
proposed
rule,
EPA
'
s
own
interaction
costs
would
be
cut
significantly.
Further,
the
statutory
objective
of
encouraging
recycling
would
be
promoted.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Comment:
No.
ADEQ
believes
the
applicability
of
standardized
permit
should
not
be
expanded
to
include
facilities
which
manage
waste
generated
off­
site,
including
recycling
facilities.
Off­
site
facilities
do
not
have
first­
hand
knowledge
of
the
waste
they
manage
and
this
increases
the
need
for
greater
management
controls.
Generators,
on
the
other
hand,
usually
have
very
specific
knowledge
of
the
waste
they
manage.
Moreover,
ADEQ
believes
EPA
should
explicitly
state
that
facilities
that
receive
hazardous
waste
from
off­
site
and
treat
that
waste
in
units
permitted
under
an
individual
permit
such
that
new
wastes
are
generated
in
the
form
of
treatment
residues
or
recyclable
materials,
are
not
eligible
to
receive
standardized
permits
for
units
managing
the
new
56
waste.
For
example,
a
facility
holding
an
individual
permit
and
blending
hazardous
waste
received
from
multiple
off­
site
sources
to
produce
a
hazardous
waste
derived
fuel
should
not
be
eligible
to
receive
a
standardized
permit
for
tanks
and
containers
used
to
store
or
further
treat
the
blended
waste
product.
Even
though
such
hazardous
waste
derived
fuel
could
be
considered
a
newly
generated
waste
since
it
may
exhibit
very
different
characteristics
than
any
of
the
source
wastes
of
which
it
is
derived.
In
another
example,
ash
which
results
from
the
incineration
of
hazardous
waste
can
be
considered
a
newly
generated
hazardous
waste.
These
treatment
residues,
likewise,
should
not
be
eligible
for
management
pursuant
to
a
standardized
permit.
ADEQ
believes
these
new
wastes
are
a
derivative
of
waste
generated
off­
site
and
are
not
within
the
scope
of
this
proposed
rule­
making.
While
we
believe
our
view
on
this
issue
is
consistent
with
EPA's
intent
expressed
in
the
proposed
rule­
making,
we
think
it
should
be
made
explicitly
clear
that
standardized
permits
may
not
be
issued
to
hazardous
waste
facility
owner/
operator
for
units
which
manage
hazardous
waste
generated
offsite
or
which
manage
newly
generated
hazardous
waste
derived
from
the
treatment
of
hazardous
waste
generated
offsite.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Comment:
DoD
supports
expanding
application
of
the
standardized
permit
to
allow
waste
to
be
accepted
from
offsite.

Discussion.
EPA
proposes
to
define
a
standardized
permit
as
a
general
permit
for
facilities
that
generate
waste
and
routinely
manage
the
waste
on­
site
in
tanks,
containers,
and
containment
buildings.
However,
on
page
52199,
EPA
asks
for
comment
on
whether
the
applicability
of
the
RCRA
standardized
permit
should
be
expanded
to
facilities
that
treat
or
store
waste
generated
off­
site.
Two
scenarios
are
raised.
In
one,
waste
could
be
accepted
from
any
offsite
source.
In
the
other,
waste
could
only
be
accepted
from
offsite
sources
from
the
same
"
company".
EPA
states
that
concern
over
whether
a
facility
accepting
waste
will
have
"
complete
knowledge"
of
the
waste
is
less
likely
to
be
a
problem
if
a
company
is
only
allowed
to
manage
their
own
offsite
generated
waste
as
opposed
to
wastes
from
other
entities.

DoD
believes
that
facilities
with
standardized
permits
should
be
allowed
to
treat
or
store
waste
from
any
source.
Regardless
of
the
origin
of
the
waste,
sufficient
knowledge
of
the
waste
must
be
provided
by
the
generator
prior
to
acceptance.
Facilities
are
also
required
to
have
waste
analysis
plans
to
ensure
wastes
are
properly
characterized.
There
does
not
appear
to
be
an
advantage
to
requiring
an
individual
permit
just
because
the
source
of
generation
is
offsite
or
because
it
was
not
generated
by
the
same
"
company".

The
standardized
permit,
as
opposed
to
the
individual
permit,
will
take
much
less
time
and
effort
to
acquire
and
is
expected
to
cost
significantly
less.
This
provides
a
strong
financial
incentive
for
facilities
to
remain
in
compliance
so
they
will
not
jeopardize
their
standardized
permit.
We
do
not
believe
that
facilities
will
consciously
risk
losing
their
standardized
permit
by
accepting
waste
which
is
not
adequately
characterized
or
for
which
they
are
not
permitted
to
manage.
Therefore
we
believe
facilities
with
standardized
permits
should
be
allowed
to
accept
waste
from
offsite.
57
Examples
of
types
of
waste
DoD
would
like
to
accept
for
storage
under
a
standardized
permit
include
the
following:
waste
generated
at
other
DoD
facilities,
such
as
nearby
DoD
installations
or
regional
Army
reserve
facilities,
that
are
often
brought
to
a
larger
facility
for
centralized
storage;
waste
generated
during
RCRA
corrective
action
investigations
beyond
the
facility
boundary
but
returned
to
the
facility
for
storage
while
awaiting
lab
analysis;
and
wastes
generated
from
transportation
related
accidents.

Recommendation.
Allow
standardized
permits
for
treatment
or
storage
of
waste
regardless
of
whether
it
is
generated
on
or
offsite,
and
do
not
restrict
acceptance
based
on
whether
it
was
generated
by
the
same
"
company".
The
fact
that
a
DoD
installation
accepts
waste
from
regional
DoD
facilities
should
not
preclude
that
installation
from
the
advantages
of
the
standardized
permit.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Comment:
Do
not
expand
the
proposed
standard
permitting
process
to
facilities
that
treat
or
store
waste
generated
off­
site.
Such
facilities
bringing
in
wastes
that
can
vary
greatly
by
batch
face
more
unknowns
and
potential
handling
problems
that
could
greatly
effect
human
health
and
the
environment.
(
Jamie
Burroughs
of
the
TSD
Section
and
O.
J.
Wingfield
of
Financial
Responsibility,
Division
of
Solid
Waste
Management,
Tennessee
Department
of
Environmental
and
Conservation,
RCRA­
2001­
0029­
0057)

Comment:
Onyx
does
not
believe
that
the
EPA
is
justified
in
limiting
the
eligibility
of
a
standardized
permit
to
only
those
facilities
that
manage
waste
originating
from
on­
site
sources
(
i.
e.
non­
commercial
facility).
Based
on
our
experience,
the
source
of
the
wastes,
from
either
on­
site
or
from
off­
site,
is
not
the
critical
factor
in
whether
a
facility
has
adequate
"
knowledge"
of
the
wastes
being
managed
so
that
the
facility
can
operate
in
compliance
with
the
applicable
regulations.
Instead,
Onyx
believes
the
waste
analysis
plan
is
the
critical
element
to
assure
that
a
facility
is
managing
waste
in
safe
and
compliant
manner.
For
example,
a
commercial
facility
accepting
and
managing
wastes
from
numerous
off­
site
sources
that
has
a
well
designed
and
implemented
waste
analysis
plan
could
actually
have
better
"
knowledge"
of
the
wastes
they
are
managing
than
a
non­
commercial
facility
with
a
poorly
designed
and
implemented
waste
analysis
plan
that
accepts
wastes
from
only
on­
site
generating
locations.

In
addition,
aside
from
the
source
of
the
wastes,
all
of
the
other
waste
management
activities
at
a
commercial
facility
are
identical
to
that
of
the
non­
commercial
facility.
There
are
no
additional
risks
inherent
to
the
management
of
wastes
at
a
commercial
facility
in
comparison
to
a
non­
commercial
facility.
Onyx
believes
that
the
agency
should
manage
the
permitting
processes
for
both
of
these
types
of
facilities
in
the
same
manner.

Onyx
recommends
that
commercial
facilities
should
be
able
to
obtain
a
standardized
permit.
The
application
process
should
include
a
review
of
the
facility's
waste
analysis
plan
so
that
specific
permit
conditions
related
to
the
waste
acceptance
process
can
be
developed
to
be
included
in
the
"
site
specific"
portion
of
the
standardized
permit.
As
an
alternative
a
"
generic"
waste
analysis
58
plan
that
is
uniform
for
all
facilities
could
be
included
in
the
uniform
portion
of
the
standardized
permit.
Any
unique
waste
acceptance
issues
(
i.
e.
management
of
reactive
wastes)
that
apply
to
a
particular
facility
could
then
be
included
in
the
site
specific
portion
of
the
permit.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Comment:
No.
An
SP
should
be
proposed
as
more
of
a
guideline
to
these
facilities
because
the
issues
are
typically
more
complex
for
waste
analysis
and
site­
specific
operating
conditions.
Since
waste
characterization
is
likely
not
to
occur
until
the
waste
reaches
the
facility,
the
waste
may
create
compatibility
issues
when
a
generator
or
marketer
has
failed
to
properly
characterize
the
waste.
On­
site
generators
are
better
suited
to
an
SP
because
they
already
have
intimate
knowledge
of
what
constituents
are
in
their
waste
streams.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Comment:
Safety­
Kleen
agrees
with
EPA's
decision
to
limit
the
permit
application
to
management
of
waste
in
tanks,
containers
and
containment
buildings.
Safety­
Kleen
believes
that
a
standardized
permit
for
these
types
of
management
units
takes
into
account
the
relative
risks
posed
by
the
storage
and
non­
thermal
treatment
of
hazardous
waste
in
tanks,
containers
and
containment
buildings
and
agrees
with
EPA
that
these
units
are
relatively
simple
to
design
and
properly
construct.
We
also
agree
that
the
streamlined
standardized
permit,
as
proposed,
would
allow
adequate
interaction
and
oversight
by
the
regulating
agency
and
streamline
some
of
the
administrative
permitting
process.

Safety­
Kleen
does
not
agree
that
this
proposal
should
be
limited
to
generators
of
on­
site
waste
only.
All
of
the
reasons
stated
above
can
be
achieved
with
both
commercial
and
non
commercial
facilities
and
in
the
case
of
streamlining
the
administrative
permitting
process,
this
would
be
greatly
increased
if
the
commercial
facilities
are
included.
Safety­
Kleen
alone
has
permitted
facilities
in
43
different
states.
In
many
states
including
Massachusetts,
Connecticut,
Rhode
Island,
Missouri,
Nebraska
and
Oklahoma
to
name
a
few,
commercial
facilities
hold
the
majority
of
the
RCRA
permits.
For
example,
in
Massachusetts
only
2
out
of
16
statewide
Part
B
RCRA
permits
are
held
by
non­
commercial
facilities.

We
do
not
agree
with
EPA's
comment
that
commercial
facilities
do
not
have
"
complete
knowledge"
of
waste
streams
and
therefore
pose
a
greater
risk
to
human
health
and
environment
as
the
proposal
has
eluded.
This
would
seem
to
indicate
that
EPA
and
the
state
agencies
do
not
have
adequate
regulatory
controls
in
place
to
assess
the
hazards
of
wastes
at
commercial
facilities.
Safety­
Kleen
does
not
believe
that
this
is
true.
EPA
has
incorporated
stringent
waste
analysis
requirements
and
requirements
for
ignitable,
reactive
and
incompatible
wastes
in
the
current
RCRA
permitting
process
for
treatment,
storage
and
disposal
facilities
(
see
40
CFR
§
264.13
and
264.17).
In
the
standardized
permit
proposal,
EPA
is
not
proposing
any
substantial
changes
to
these
two
sections,
which
indicates
that
they
are
currently
protective
of
human
health
and
the
environment.
If
the
regulatory
basis
is
the
same,
it
should
not
matter
whether
the
waste
is
59
generated
on
or
off
site.
Safety­
Kleen
requests
that
EPA
add
the
following
off­
site
facilities
section
back
into
the
regulations;
§
§
264.13(
a)(
3)(
ii);
(
a)(
4);
(
b)(
5);
(
c)(
1);
and
(
c)(
2).

We
believe
that
the
standardized
permit
proposal
is
well
suited
for
the
hazardous
waste
management
industry.
Safety­
Kleen
has
over
25
years
of
day
to
day
waste
management
experience,
and
believe
that
commercial
facilities
are
more
familiar
with
the
RCRA
permit
process
through
extensive
experience
and
daily
interaction
with
the
regulations
and
the
regulatory
agencies.
Commercial
facilities
have
spent
years
fine
tuning
the
Part
B
permit
required
documents
with
the
assistance
of
the
permitting
agencies
and
understand
the
complexity
and
level
of
detail
required
in
plans
such
as
the
contingency
plan,
waste
analysis
plan
and
the
training
plan.
Experienced
commercial
facilities
would
be
able
to
maintain
these
documents
on
site
under
the
purview
of
the
RCRA
regulations
in
a
manner
that
is
protective
of
human
health
and
the
environment
as
intended
in
the
proposal.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Comment:
In
general,
facilities
that
treat
or
store
waste
generated
off­
site
should
not
be
allowed
to
get
a
standardized
permit.
Most
of
the
facilities
which
accept
off­
site
wastes
are
commercial
facilities
that
accept
many
of
the
waste
codes
listed
in
40
CFR
261.
This
creates
the
need
for
a
fairly
in­
depth
waste
analysis
plan
which
would
be
hard
to
review
within
the
120­
day
limit.
However,
some
non­
commercial
facilities
accept
waste
from
off­
site
locations
of
the
same
company
for
centralized
management
of
their
wastes.
These
types
of
facilities
could
be
granted
a
standardized
permit
on
a
case­
by­
case
basis,
depending
on
complexity
of
their
processes
and
waste
streams.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
We
feel
that
the
majority
of
facilities
that
receive
hazardous
waste
from
off­
site
are
dealing
with
large
quantities
of
hazardous
waste.
The
increased
risk
associated
with
managing
larger
volumes
of
waste
along
with
the
additional
complexity
of
waste
analysis
plans
mentioned
in
the
preamble
merit
a
traditional
permit
review
process.
Therefore
we
would
not
support
expansion
of
the
rule
to
include
these
facilities.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
Without
any
doubt,
EPA
must
expand
the
applicability
of
the
standardized
permit
to
include
commercial
facilities
that
store
hazardous
waste
generated
off­
site.
The
preamble
describes
a
concern
that
TSD
facility
operators
may
not
have
complete
knowledge
of
the
compatibility
of
different
waste
streams
shipped
to
their
facilities.
66
FR
52199
col
1.
This
concern
is
misplaced.
If
anything,
commercial
facilities
have
better
knowledge
of
the
wastes
they
manage
for
customers
than
the
generators
themselves.
Commercial
facilities
are
required
to
have
Waste
Analysis
Plans
(
WAPs)
that
ensure
proper
characterization
of
their
customers'
wastes,
and
to
comply
with
specific
standards
on
ignitable,
reactive,
and
incompatible
wastes.
Before
the
waste
is
ever
shipped,
the
customer
must
complete
a
waste
profile
sheet,
based
on
analytical
test
60
results
and
generator
knowledge,
that
accurately
describes
the
waste.
When
the
waste
is
shipped
and
arrives
at
the
TSD
facility,
the
operator
must
conduct
additional
fingerprint
tests
to
verify
that
the
waste
is
the
same
waste
described
in
the
profile
sheet.
Following
treatment,
the
commercial
facility
must
conduct
analytical
tests
to
demonstrate
compliance
with
the
treatment
standards
of
the
LDR
program
for
a
full
suite
of
hazardous
constituents.

If
EPA
desires
"
supporting
data"
on
this
point,
all
the
agency
needs
to
do
is
review
the
WAPS
,
waste
profile
sheets,
and
reams
of
analytical
test
results
for
managed
waste
streams
at
any
ETC
member
company.
Certainly,
commercial
facility
operators
have
sufficient
knowledge
of
the
compatibility
of
the
different
waste
streams
to
provide
for
safe
storage.

Moreover,
commercial
facilities
are
in
the
business
of
waste
management,
and
therefore
are
better
prepared
and
equipped
to
properly
manage
their
storage
facilities.
Generators
are
in
the
business
of
manufacturing
or
services,
and
waste
management
is
an
additional
and
ancillary
activity.
Commercial
facilities
have
an
advanced
level
of
employee
training,
safety
measures,
and
standard
operating
procedures
for
safe
management
of
storage
facilities.
A
facility
operator
that
can
manage
a
large
commercial
incinerator,
landfill,
or
other
type
of
treatment/
disposal
facility
can
certainly
operate
a
container
storage
unit
pursuant
to
a
standardized
permit.
There
is
no
reason
to
deny
commercial
facilities
the
benefits,
albeit
limited,
of
the
standardized
permit.

In
addition,
commercial
facilities
are
a
substantial
population
for
permit
writers.
Allowing
such
facilities
to
use
standardized
permits
for
the
storage
units
at
their
facilities
will
allow
permit
writers
to
focus
on
the
more
significant
treatment
and
disposal
units.
This
could
have
a
positive
impact
on
streamlining
the
overall
RCRA
permit
process.

Likewise,
the
standardized
permit
should
be
extended
to
off­
site
RCRA­
permitted
recycling
facilities.
In
addition
to
the
reasons
given
above
for
all
commercial
TSD
facilities,
recycling
facilities
that
can
utilize
the
standardized
permit
will
benefit
from
reduced
regulatory
burdens
that
may
help
encourage
recycling.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0071)

Comment:
Section
I.
C.
2.,
of
the
proposed
rule,
Why
Are
We
Proposing
a
RCRA
Standardized
Permit,
states
that
it
is
the
intent
that
the
regulations
will
be
revised
to
"...
streamline
the
administrative
permitting
process
and
shorten
the
time
required
to
obtain
a
RCRA
permit,
without
lessening
the
environmental
protection
provided
by
the
permit..."
as
well
as
"...
reduce
the
amount
of
time
and
administrative
resources
required
to
maintain
a
RCRA
permit..."
for
the
"...
on­
site
storage
and
non­
thermal
treatment
of
hazardous
waste
in
tanks,
containers,
and
containment
buildings."
Because,
in
general,
the
design,
construction
and
operational
parameters
for
container
storage
areas,
tanks,
and
containment
buildings
are
relatively
simple,
we
concur
that
streamlining
the
permitting
process
for
the
storage
and/
or
non­
thermal
treatment
of
waste
generated
on­
site
can
be
accomplished
without
diminishing
protection
of
the
environment.
However,
commercial
facilities
that
store/
treat
waste
from
off­
site
sources
normally
handle
a
large
number
and
variety
of
waste
streams
which,
in
light
of
the
prospect
of
incompatibility
between
the
wastes
managed,
would
require
a
thorough
review
of
not
only
the
waste
analysis
plan
but
also
the
methods
of
61
operation,
etc.
Also,
such
a
review
would
be
difficult
in
the
120
day
time
frame
proposed.
Therefore,
commercial
facilities
should
be
excluded
from
the
standardized
permit
authorization.
Multiple
sources
of
waste
generated
by
the
same
company
and
managed
in
a
consolidated
fashion
at
a
treatment/
storage
(
T/
S)
facility
owned
and
operated
by
that
company
(
a
captive
facility
as
opposed
to
a
commercial
one)
should
still
be
eligible
for
the
standardized
permit.
Captive
facilities
have
greater
control
over
the
waste
generation
process
and
therefore
the
characteristics
of
the
waste
to
be
managed
at
the
T/
S
facility.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Comment:
Eligible
Facilities.
SOCMA
considers
it
essential
that
EPA
include
in
its
definition
of
facilities
eligible
for
standardized
permits
not
only
generating
facilities,
but
also
facilities
that
accept
wastes
from
off­
site
as
well.
The
location
where
the
waste
is
generated
should
not
be
a
factor
in
determining
eligibility.
The
key
concerns,
which
SOCMA
considers
to
be
well­
addressed,
are
the
substantive
standards
and
procedures
for
permit
applications
and
the
substantive
compliance
standards
that
subsequently
govern
the
storage
activity.
So
long
as
these
concerns
are
addressed,
the
issue
of
whether
the
waste
being
managed
was
originally
generated
on­
site
or
off­
site
is
irrelevant.

From
the
perspective
of
SOCMA
members
and
other
similar
industry
sectors
that
rely
on
the
ability
to
ship
wastes
to
off­
site
facilities,
the
value
of
the
standardized
permit
portion
of
the
Proposed
Rule
is,
in
fact,
heavily
contingent
on
facilities'
ability
to
use
it
to
accept
waste
from
off­
site.
The
primary
purposes
of
this
reform
will
be
significantly
thwarted
if
it
is
limited
to
generating
facilities
only.
SOCMA
members
generate
fluctuating
volumes
and
types
of
hazardous
wastes
and
foresee
significant
potential
benefits
to
off­
site
facilities
being
able
to
respond
more
rapidly
to
the
needs
of
its
members.

EPA
has
also
sought
comment
on
whether
the
RCRA
standardized
permit
proposal
should
be
expanded
to
include
facilities
that
treat
or
store
waste
generated
off
site
as
well
as
facilities
that
recycle
hazardous
waste
off­
site.
In
requesting
comment,
EPA
differentiates
between
TSD
and
recycling
facilities
that
accept
off­
site
waste
generated
by
the
same
company
from
accepting
waste
generated
off­
site
from
different
companies.
The
Agency
cites
varying
concerns
over
whether
the
TSD
or
recycling
facilities
would
have
knowledge
of
compatibility
of
different
waste
streams.
As
noted
above,
SOCMA
does
not
understand
the
basis
for
the
Agency's
raising
this
concern
in
this
context.
The
procedures
by
which
a
permit
are
granted
do
not
alter
the
regulatory
regime
which
governs
waste
evaluation,
classification,
labeling
and
shipping.
The
same
requirements
will
need
to
met
regardless
of
whether
the
shipment
is
between
intercompany
facilities
or
between
unrelated
third
party
facilities.

An
off­
site
facility
accepting
waste
from
another
company
will
receive
access
to
the
information
needed
about
the
chemical
make­
up
of
each
waste
stream
to
be
able
to
adequately
determine
compatibility.
Companies
accepting
waste
from
other
unrelated
companies
always
have
the
option
to
decide
which
waste
streams
they
choose
to
accept
and
which
to
refuse,
thus
limiting
the
risks
in
mixing
waste
streams
in
those
situations
as
well.
SOCMA
believes
that
allowing
TSD
and
62
recycling
facilities
to
operate
under
a
standardized
permit
will
give
them
more
flexibility
in
accepting
a
variety
of
waste
streams,
and
SOCMA
member
companies
who
have
varying
waste
streams
would
benefit
from
the
stability
of
being
able
to
use
the
same
TSD
or
recycling
facility
for
multiple
waste
streams.
(
Jeff
Gunnulfsen,
Manager,
Government
Relations,
the
Synthetic
Organic
Chemical
Manufacturers
Association
("
SOCMA"),
RCRA­
2001­
0029­
0038)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated,
and
then
managed,
on­
site,
as
proposed.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
(
Generators
receiving
wastes
generated
off­
site,
would
need
to
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
and
also
include
documentation
showing
that
both
the
off­
site
generator
and
the
receiving
facility
are
under
the
same
ownership.)

Commenters
noted
concerns
with
wastes
generated
off­
site.
While
some
commenters
noted
that
rule
should
extend
to
off­
site
facilities,
and
further
believed
that
many
off­
site
facilities
could
adequately
manage
off­
site
generated
wastes
under
a
streamlined
permit
approach,
States
expressed
great
concerns
about
such
facilities
complying
with
the
permitting
requirements,
especially
in
cases
where
a
facility
manages
complex
waste
streams.
States
expressed
concern
about
both
commercial
disposal/
treatment
and
recycling
operations
occurring
offsite
We
agree
with
one
commenter
who
noted
that
as
the
number
of
off­
site
waste
streams
increases,
so
does
the
complexity
of
identifying
and
handling
them.
One
commenter
noted,
that
of
the
off­
site
facilities,
captive
facilities
might
be
best
suited
for
the
standardized
permit,
because
of
their
familiarity
with
the
wastes
managed.
Another
commenter
argued
that
companies
managing
their
own
waste
generated
from
their
own
operations
could
reasonably
be
expected
to
know
the
chemical
make­
up
and
compatibility
of
the
different
incoming
waste
streams.
In
addition,
the
commenter
noted
that
off­
site
waste
streams
are
similar
to
wastes
generated
at
the
receiving
facility.

We
agree
with
commenters
that
these
facilities
should
be
generally
familiar
with
the
waste
streams
being
managed,
that
either
they
themselves
generate,
or
facilities
owned
by
the
same
company
generate.
Thus,
we
are
extending
the
rule
to
include
generators
managing
wastes
generated
off­
site,
as
long
as
the
off­
site
generator
is
under
the
same
ownership
as
the
receiving
facility.

It
should
also
be
noted
that
the
Agency
is
exploring
whether
to
extend
eligibility
for
the
standardized
permit
to
other
off­
site
facilities
that
have
demonstrated
superior
environmental
performance;
the
National
Performance
Track
Program
provides
an
example
of
the
kind
of
criteria/
facilities
that
EPA
is
considering
in
this
63
context.
We
believe
it
may
be
appropriate
to
offer
this
option
to
such
facilities
to
further
encourage
superior
environmental
results.
In
fact,
the
Agency
believes
it
important
to
reward
companies
that
are
top
environmental
performers
and
therefore,
believe
that
such
a
change
may
be
appropriate.
The
Agency
anticipates
issuing
a
proposed
rulemaking
involving
Performance
Track
facilities
in
the
near
future.

Comment:
Though
DoD
does
not
support
restricting
offsite
waste
acceptance
to
waste
generated
by
the
same
"
company",
we
believe
if
EPA
chooses
to
do
so
that
"
company"
should
be
defined
to
allow
DoD
to
accept
waste
from
any
other
DoD
entity.

Discussion.
EPA
seeks
comment
on
whether
companies
with
more
than
one
manufacturing
location
should
be
allowed
to
centralize
storage
of
their
waste
by
allowing
wastes
to
be
accepted
from
offsite
under
a
standardized
permit.
However,
it
is
not
clear
how
this
would
apply
to
large
corporations
with
multiple
subsidiaries
generating
different
types
of
waste
streams
or
to
an
entity
such
as
the
Department
of
Defense.

DoD
supports
establishing
a
permit
system
which
would
allow
DoD
to
store
waste
from
any
DoD
component
under
a
standardized
permit.
Our
Defense
Reutilization
and
Marketing
Offices
(
DRMOs)
provide
contracts
and
services
for
hazardous
waste
disposal
for
all
DoD
services
(
Army,
Navy,
Air
Force,
etc.).
We
believe
these
facilities
should
be
allowed
to
take
advantage
of
the
standardized
permit
option
to
store
waste
generated
by
any
DoD
entity
if
the
need
arises.

Recommendation.
If
acceptance
of
offsite
waste
is
limited
to
waste
generated
within
the
"
company",
define
company
to
clearly
allow
DoD
to
accept
any
waste
from
any
other
DoD
entity.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Comment:
We
would
oppose
any
effort
to
extending
the
standardized
permit
to
off­
site
facilities.
These
facilities
are
far
more
complicated
and
have
a
far
greater
potential
for
harm
to
be
included
in
the
standardized
permit
scheme.
Our
experience
has
shown
that
most
of
these
facilities
lack
the
financial
strength
and
technical
ability
to
be
entrusted
with
the
responsibility
necessary
with
relaxed
overview.
This
is
a
business
with
a
low
profit
margin
and
an
unpredictable
cash
flow.
Several
in
Georgia
have
ended
up
in
bankruptcy
after
years
of
noncompliance
and
enforcement.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Comment:
The
WMD
does
not
support
this
proposal
for
the
reasons
stated
above
for
off­
site
treatment
and
storage
facilities.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Comment:
We
would
not
be
in
favor
of
expanding
the
eligibility
for
standardized
permits
to
off­
site
commercial
facilities,
whether
or
not
they
are
recycling
facilities,
due
to
the
increased
complexity
of
the
waste
management
activities
and
the
higher
degree
of
uncertainty
of
the
composition
and
compatibility
of
wastes
managed
at
these
facilities.
We
have
found
that
64
commercial
operations
are
significantly
more
prone
to
fires,
explosions
and
releases
and
feel
that
a
careful,
detailed
review
of
permit
application
information
for
these
facilities
is
essential.

However,
we
would
expect
that
fewer
problems
would
result
from
expanding
the
applicability
to
off­
site
facilities
who
manage
only
their
own
wastes
generated
at
different
locations
because
of
the
familiarity
of
the
company
with
the
composition
and
character
of
it's
own
wastes.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated
and
then
managed
on­
site,
as
proposed.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
The
receiving
facility
must
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
along
with
documentation
showing
that
both
the
receiving
facility
and
off­
site
generator
are
under
the
same
ownership.

With
respect
to
facilities
considered
as
being
under
the
same
ownership,
in
the
final
preamble
we
state:
"
With
respect
to
federal
facilities,
this
rule
would
allow
the
transfer
of
waste
between
sites
under
the
jurisdiction,
custody,
or
control
of
the
same
federal
agency.
For
instance,
today's
rule
would,
for
instance,
allow
waste
from
one
Department
of
Defense
installation
to
go
to
another
such
installation
because
the
Department
has
overall
responsibility
for
the
waste."

Thus,
we
are
extending
the
rule
to
include
generators
managing
wastes
generated
off­
site,
as
long
as
the
off­
site
generator
is
under
the
same
ownership
as
the
receiving
facility.
We
are
not
extending
eligibility
to
all
off­
site
facilities.

It
should
also
be
noted
that
the
Agency
is
exploring
whether
to
extend
eligibility
for
the
standardized
permit
to
other
off­
site
facilities
that
have
demonstrated
superior
environmental
performance;
the
National
Performance
Track
Program
provides
an
example
of
the
kind
of
criteria/
facilities
that
EPA
is
considering
in
this
context.
We
believe
it
may
be
appropriate
to
offer
this
option
to
such
facilities
to
further
encourage
superior
environmental
results.
In
fact,
the
Agency
believes
it
important
to
reward
companies
that
are
top
environmental
performers
and
therefore,
believe
that
such
a
change
may
be
appropriate.
The
Agency
anticipates
issuing
a
proposed
rulemaking
involving
Performance
Track
facilities
in
the
near
future.

8.
Allow
standardized
permits
at
off­
site
recycling
facilities?
(
I.
E.
3.
c)

Comment:
We
suggest
that
you
allow
RCRA
standardized
permits
ONLY
at
RCRA
permitted
off­
site
hazardous
waste
recycling
facilities.
Providing
regulatory
relief
for
TSD
facilities
might
65
encourage
additional
firms
to
become
hazardous
waste
TSDs
thus
defeating
a
major
agency
goal
of
waste
minimization.
(
Donald
Webster,
RCRA­
2001­
0029­
0029)

Comment:
EPA
should
allow
RCRA
standardized
permits
for
off­
site
hazardous
waste
recycling
facilities,
in
order
to
remove
disincentives
to
hazardous
waste
recycling.

Discussion.
DoD
supports
regulatory
efforts
that
encourage
recycling
and
concur
with
EPA
that
standardized
permits
should
be
applicable
to
off­
site
hazardous
waste
recycling
facilities.
Particularly
since
the
actual
recycling
units
are
not
currently
regulated,
and
the
permitting
issues
concentrate
on
safe
storage
of
recyclable
hazardous
materials,
the
standardized
permit
approach
is
a
good
fit
with
the
operations
of
hazardous
waste
recycling
facilities.

Recommendation.
Include
hazardous
waste
recycling
facilities
in
the
scope
of
facilities
that
may
use
the
standardized
permit
process.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Comment:
EPA
requests
feedback
on
its
proposal
to
allow
RCRA
standardized
permits
at
RCRA
permitted
off­
site
hazardous
waste
recycling
facilities.
Id.
at
52199.
USWAG
supports
this
proposal
because,
as
the
Agency
explains,
allowing
these
facilities
to
utilize
a
standardized
permit
will
help
provide
regulatory
relief
to
these
facilities
and
"
eliminate
regulatory
disincentives
to
safe
hazardous
waste
recycling."
Id.

Additionally,
recycling
facilities,
much
like
the
CCFs
discussed
above,
are
familiar
with
the
composition
of
the
materials
they
receive,
and
there
is
therefore
limited
risk
in
allowing
these
facilities
to
take
advantage
of
the
standardized
permit
option.
Allowing
RCRA
permitted
recycling
facilities
to
take
advantage
of
RCRA
standardized
permits
should
encourage
additional
owners/
operators
to
enter
the
hazardous
waste
recycling
business,
without
compromising
RCRA's
mission
of
protecting
human
health
and
the
environment.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Comment:
Safety­
Kleen
recommends
that
EPA
allow
recycling
facilities
to
utilize
the
full
standardized
permit
process
for
waste
managed
prior
to
recycling
for
the
reasons
noted
above.
This
would
include
the
modification
process
described
in
Section
VI
of
the
proposal
and
allow
both
the
permitting
agencies
and
the
regulated
facilities
to
take
advantage
of
the
reduced
administrative
burden.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Comment:
We
feel
that
the
development
and
use
of
recycling
technologies
should
be
encouraged
by
regulations.
However,
caution
must
be
used
in
granting
too
much
latitude
to
facilities
handling
large
quantities
of
hazardous
waste.
The
existence
of
"
sham
recycling"
operations
and
quick
money
making
operations
necessitate
some
sort
of
regulatory
review
prior
to
permit
issuance.
We
would
be
supportive
of
some
mechanism
by
which
recycling
facilities
could
qualify
for
a
66
standardized
permit
as
long
as
this
mechanism
includes
a
review
of
the
treatment
process
to
ensure
that
it
indeed
fits
the
definition
of
recycling
and
thus
qualifies
for
the
exemption
under
40
CFR
261.6(
c)(
1).
It
would
be
especially
beneficial
for
universal
waste
destination
facilities
who
store
universal
prior
to
recycling
to
be
able
to
obtain
a
standardized
permit.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit,
but
not
to
recycling
facilities
in
general.
The
final
rule
will
apply
to
facilities
managing
wastes
generated,
and
then
managed,
on­
site,
as
proposed.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
(
Generators
receiving
wastes
generated
off­
site,
would
need
to
submit
a
waste
analysis
plan
with
their
Notice
of
Intent,
and
also
include
documentation
showing
that
both
the
off­
site
generator
and
the
receiving
facility
are
under
the
same
ownership.)

Commenters
noted
concerns
with
wastes
generated
off­
site.
While
some
commenters
noted
that
rule
should
extend
to
off­
site
facilities,
and
further
believed
that
many
off­
site
facilities
could
adequately
manage
off­
site
generated
wastes
under
a
streamlined
permit
approach,
States
expressed
great
concerns
about
such
facilities
complying
with
the
permitting
requirements,
especially
in
cases
where
a
facility
manages
complex
waste
streams.
States
expressed
concern
about
both
commercial
disposal/
treatment
and
recycling
operations
occurring
offsite
We
agree
with
one
commenter
who
noted
that
as
the
number
of
off­
site
waste
streams
increases,
so
does
the
complexity
of
identifying
and
handling
them.

Unless
recycling
facilities
are
receiving
wastes
generated
by
facilities
owned
by
the
same
owner,
they
would
not
be
eligible
for
a
standardized
permit.

It
should
also
be
noted
that
the
Agency
is
exploring
whether
to
extend
eligibility
for
the
standardized
permit
to
other
off­
site
facilities
that
have
demonstrated
superior
environmental
performance;
the
National
Performance
Track
Program
provides
an
example
of
the
kind
of
criteria/
facilities
that
EPA
is
considering
in
this
context.
We
believe
it
may
be
appropriate
to
offer
this
option
to
such
facilities
to
further
encourage
superior
environmental
results.
In
fact,
the
Agency
believes
it
important
to
reward
companies
that
are
top
environmental
performers
and
therefore,
believe
that
such
a
change
may
be
appropriate.
The
Agency
anticipates
issuing
a
proposed
rulemaking
involving
Performance
Track
facilities
in
the
near
future.

9.
Additional
ways
to
reduce
burden
and
cost
of
permitting
while
maintaining
effectiveness?
(
I.
E.
3.
d)
67
Comment:
One
thing
the
agency
could
do
to
streamline
the
permit
application
process
would
be
to
make
available
electronic,
fill­
out­
able,
Part
A
and
Part
B
permit
applications.
This
has
been
suggested
to
EPA
headquarters
for
several
years
with
no
action
forthcoming.
(
Donald
Webster,
RCRA­
2001­
0029­
0029)

Response:
We
agree
with
the
commenter
and
are
continuing
to
explore
ways
to
apply
electronic
permitting
approaches
to
the
standardized
permit.

Comment:
p.
52199,
col.
2
 
The
preamble
requests
comment
on
whether
EPA
should
look
into
the
feasibility
of
developing
a
"
fill­
in­
the­
blank"
type
standard
format
for
Part
B
information
that
must
be
retained
on
site
for
each
type
of
unit
covered
by
a
standardized
permit.

DOE
notes
that
the
proposed
standardized
permitting
process
does
not
require
the
applicant
to
submit
a
Part
B
application
to
the
responsible
regulatory
agency,
as
would
be
required
when
applying
for
a
conventional
RCRA
permit.
Instead,
the
detailed
information
that
would
otherwise
appear
in
the
Part
B
application
would
have
to
be
developed
and
retained
on­
site
for
review
and
inspection
by
the
responsible
regulatory
agency.
The
specific
information
that
would
be
retained
at
each
facility
subject
to
a
standardized
permit
is
based
on
the
general
and
specific
Part
B
permit
application
requirements
found
in
40
CFR
270.14
through
270.27.
Hence,
DOE
concludes
that
while
the
administrative
burden
of
filing
the
RCRA
permit
application
may
be
reduced
by
the
provisions
discussed
in
the
NPRM,
the
burden
associated
with
developing
the
application
will
remain
the
same.
Since
development
of
the
Part
B
permit
application
is
an
appreciable
part
of
the
facility
burden
associated
with
obtaining
an
individual
RCRA
permit,
DOE
would
support
methods
for
reducing
this
burden,
including
development
of
a
"
fill­
in­
the­
blank"
type
standard
format
for
Part
B
information
that
could
be
retained
on­
site
for
each
type
of
unit
covered
by
a
standardized
permit.
Accordingly,
DOE
urges
EPA
to
look
into
the
feasibility
of
developing
such
"
fill­
in­
the­
blank"
type
standard
formats
and
making
them
available
to
facilities
as
guidance.
In
addition,
if
EPA
decides
to
develop
"
fill­
in­
the­
blank"
type
standard
formats,
DOE
encourages
the
Agency
to
consider
the
following
steps
to
further
enhance
efficiency
and
clarity
of
the
standardized
permit
process:

1.
Make
the
"
fill­
in­
the­
blank"
type
forms
available
in
electronic
format
and
establish
an
electronic
submission
process;
and
2.
Include
a
section
at
the
end
of
each
form
that
could
be
used
for
non­
conforming
responses
to
questions
on
the
form.
This
would
allow
explanations
to
be
made
in
special
circumstances.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
agree
with
DOE
and
are
exploring
how
to
make
use
of
electronic
permitting
concepts
in
the
standardized
permit
rule.
68
Comment:
The
Agency
seeks
comment
on
additional
opportunities
within
the
framework
of
the
standardized
permit
to
reduce
the
burden
and
cost
of
the
permitting
process
for
facilities,
while
maintaining
the
protectiveness
afforded
by
the
RCRA
standardized
permit
process.
Id.
at
52199.
For
example,
EPA
seeks
comment
on
whether
the
Agency
should
evaluate
developing
a
"
fill­
in­
the­
blank"
type
standard
format
for
each
type
of
covered
unit
that
could
be
used
to
prepare
"
Part
B"
information
that
would
be
required
to
be
retained
at
the
facility.
Id.

USWAG
supports
such
a
standard
format
and
encourages
the
Agency
to
develop
a
"
fill­
in­
the­
blank"
type
format
for
each
type
of
covered
unit.
We
agree
with
EPA
that
offering
this
format
to
facilities
as
guidance
will
"
further
reduce
the
[
RCRA]
permitting
burden."
Id
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
We
agree
with
USWAG
and
are
exploring
how
to
make
use
of
electronic
permitting
concepts
in
the
standardized
permit
rule.
Some
of
the
tools
we
plan
to
make
available
include
an
electronic
model
permit,
and
permit
applicant
checklists
both
for
information
that
must
be
kept
on­
site,
and
for
conducting
compliance
audits.

Comment:
The
Campus
Safety,
Health
and
Environmental
Management
Association
(
CSHEMA)
comments
on
the
above
rulemaking
on
behalf
of
its
membership
of
over
400
colleges
and
universities
nationwide.
CSHEMA
dedicates
itself
to
fostering
and
promoting
the
management
of
environmental
health
and
safety
programs
at
institutions
of
higher
education.
CSHEMA
believes
that
it
can
achieve
this
goal,
in
part,
by
participating
in
the
development
and
implementation
of
regulations
affecting
colleges
and
universities.
This
organizational
goal
prompts
these
comments:

As
written,
the
proposed
rules
appear
to
largely
parallel
the
current
permit
writing
process.

Many
colleges
and
universities
find
the
current
permit
process
too
onerous
for
an
academic
environment.
While
the
proposed
standard
language
could
increase
the
efficiency
of
the
permitting
process,
the
*
supplemental*
component
of
the
standardized
permit
appears
to
offset
those
advantages,
depending
on
its
administration.
To
truly
standardize
permits,
EPA
should
eliminate
the
supplemental
component
of
the
permitting
process.
(
Campus
Safety,
Health
and
Environmental
Management
Association
(
CSHEMA),
RCRA­
2001­
0029­
0045)

Response:
The
supplemental
portion
of
the
permit
is
designed
to
present
permit
conditions
to
address
unique
situations
that
are
not
addressed
in
the
uniform
portion
of
the
permit.
It
is
possible
that
many
permits
will
be
issued
either
without
a
supplemental
portion,
or
with
only
limited
supplemental
portion
of
the
permit.
If
we
were
to
eliminate
the
supplemental
portion
requirement,
then
we
might
lose
the
ability
to
directly
address
unique,
site
specific
issues
that
impact
environmental
protection
concerns.
69
Comment:
ADEQ
has
proposed
a
similar
process
for
streamlining
the
issuance
of
RCRA
permits
pursuant
to
the
Joint
EPA/
State
Agreement
To
Pursue
Regulatory
Innovations.
A
copy
of
our
latest
proposal,
which
is
in
the
preliminary
acceptance
phase
of
review
by
EPA,
is
attached.
The
proposal
outlines
some
of
our
views
on
reducing
the
burden
and
cost
to
facilities
requiring
RCRA
permits.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Response:
We
appreciate
Arkansas
comments
and
the
process
they
have
proposed
for
streamlining
the
issuance
of
RCRA
permits.

Comment.
Guidance
in
a
simplified
"
fill
in
the
blank"
format
would
be
helpful.

Discussion.
EPA
requests
comment
on
the
idea
of
developing
a
"
fill­
in­
the­
blank"
type
standard
format
for
each
type
of
covered
unit.
DoD
supports
EPA's
efforts
to
develop
a
standardized
RCRA
permit
process
for
routine
types
of
hazardous
waste
storage
or
simple
treatment.
To
this
end,
guidance
(
or
regulation)
that
further
simplifies
and
standardizes
the
format
of
submissions
should
be
helpful
to
both
the
applicant
and
the
regulatory
agency
reviewing
the
application.

Recommendation.
Develop
guidance
that
standardizes
the
form
and
format
of
standardized
permit
applications.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Response:
We
agree
with
DoD
and
are
continuing
to
explore
how
to
make
use
of
electronic
permitting
concepts
with
standardized
permits.

Comment:
The
current
proposal
should
adequately
streamline
the
permitting
process
even
though
it
doesn't
specifically
create
a
"
Part
B
Permit
Application
Form".
Onyx
does
not
believe
that
a
"
fill­
in­
the­
blank"
type
application
form
is
necessary
for
each
type
of
covered
waste
management
unit.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Response:
We
are
exploring
ways
to
incorporate
aspects
of
electronic
permitting
into
the
standardized
permit
process.
We
believe
a
"
fill­
in­
the­
blank"
type
form
may
be
helpful.

Comment:
Safety­
Kleen
agrees
with
EPA
that
the
format
of
the
standardized
permit
should
be
uniform.
This
would
enhance
not
only
the
completion
of
the
application,
but
would
ensure
less
error
and
make
the
permit
easier
to
review
for
the
permitting
agencies.
Safety­
Kleen
suggests
that
EPA
work
with
representatives
from
the
state
agencies
and
the
regulated
community
to
draft
a
70
template
for
review
and
comment.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Response:
We
appreciate
your
comments.
We
are
developing
several
model
documents
to
assist
applicants
and
regulators.
Among
these
will
be
model
permits
and
review
checklists.
We
are
also
looking
into
how
we
can
use
electronic
forms
with
the
standardized
permit
process.

Comment:
We
feel
that
any
additional
cost
or
burden
savings
would
come
at
the
price
of
inadequate
information
being
maintained
at
the
facility.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
We
appreciate
your
comments.
We
believe
the
nature
of
the
standardized
permit
is
designed
for
basic
storage
operations,
as
opposed
to
more
complex
operations
requiring
individual
permits.

10.
How
would
the
RCRA
Expanded
Public
Participation
Requirements
Change?
(
II.
B)

Comment:
p.
52200,
cols.
2
&
3
 
The
preamble
indicates
that
EPA
is
proposing
that
anyone
seeking
standardized
permits
must
certify
that
the
information
being
maintained
on­
site
is
readily
available
to
both
the
regulatory
agency
and
the
public.

(
a)
DOE
requests
that
in
the
preamble
to
the
final
rule,
EPA
clarify
that
facilities
seeking
standardized
permits
are
not
required
to
certify
that
the
public
can
have
on­
site
access
to
information
maintained
at
the
facility
pursuant
to
proposed
§
§
270.290
through
270.315.
In
accordance
with
proposed
§
270.280(
a)(
2),
DOE
believes
that
EPA
intends
to
require
a
facility
to
certify
only
that
it
is
making
available
to
the
public
the
same
information
as
is
maintained
at
the
facility.
DOE
would
object
if
EPA
intends
to
mandate
that
the
public
be
given
on­
site
access
to
information
in
order
for
a
facility
to
be
granted
a
standardized
permit.
As
EPA
is
aware,
recent
world
events
have
caused
Federal
agencies
to
place
new
restrictions
on
public
access
to
the
certain
governmental
facilities.
Therefore,
a
requirement
that
the
public
be
given
on­
site
access
to
information
would
likely
preclude
any
DOE
facility
from
seeking
a
standardized
permit.
DOE
facilities
currently
make
permit­
related
information
available
at
a
public
location,
which
may
be
located
off­
site.

(
b)
DOE
also
requests
that
EPA
clarify
in
the
final
rule
that
confidential
business
information
and
government
classified
information
can
be
excluded
from
the
information
that
the
facility
must
certify
as
being
available
to
the
public.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)
71
Response:
According
to
§
270.30(
m)
and
§
124.33,
the
information
required
to
be
maintained
can
be
kept
at
the
facility
or
at
a
public
location
with
acceptable
access
as
determined
by
the
director
of
the
permitting
agency.

We
agree
the
confidential
business
information
and
government
classified
information
does
not
need
to
be
shared
with
the
public
and
can
be
excluded
form
the
certified
material.

Comment:
LOSS
OF
PUBLIC
PARTICIPATION
OPPORTUNITY
AND
ENVIRONMENTAL
REVIEW.
Routine
(
i.
e.,
Class
1
&
Class
2)
modifications
could
be
made
without
prior
approval
by
the
regulatory
agency.
The
facility
would
still
be
required
to
notice
the
regulatory
agency
and
the
mailing
list,
but
no
public
comment
period
would
be
available.
This
provision
is
significantly
less
stringent
than
the
current
regulations
for
Class
2
permit
modifications.
The
public
loses
the
opportunity
to
comment
on
the
proposal.
The
public
and
the
regulatory
agency
lose
the
opportunity
to
develop
or
review
an
analysis
of
the
potential
environmental
impacts
of
the
modification.
In
addition,
Class
3
modifications
(
that
sometimes
do
not
really
indicate
major
changes
at
a
facility)
would
be
required
to
go
through
a
full
public
participation
process,
with
a
public
meeting,
etc.
The
contrast
between
the
procedural
requirements
for
a
Class
2
modification
and
a
Class
3
modification,
that,
physically
or
environmentally,
may
be
very
similar,
does
not
appear
to
be
appropriate.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
We
appreciate
DTSC's
comments
and
are
modifying
the
requirements
for
permit
changes
from
what
was
presented
in
the
proposal.
We
envision
the
final
rule
to
not
be
"
significantly
less
stringent"
then
the
current
regulations.
Instead
of
only
having
routine
and
significant,
we
are
finalizing
the
rule
with
two
categories
for
routine
changes:
routine
changes
and
routine
changes
requiring
prior
agency
approval.
"
Routine
changes"
would
include
class
1
modifications
that
do
not
need
prior
agency
approval,
while
"
routine
changes
requiring
approval"
would
include
those
class
1
modifications
requiring
prior
agency
approval
and
class
2
modifications.

11.
Submit
a
Notice
of
Intent
to
operate
under
the
standardized
permit
along
with
appropriate
supporting
documents
(
III.
A.
2)

Comment:
p.
52201,
cols
2
&
3
 
The
preamble
describes
the
supporting
documents
that
the
proposed
rule
would
require
to
be
submitted
with
the
Notice
of
Intent
to
operate
under
a
standardized
permit.
Included
in
the
description
are:
(
1)
the
RCRA
Part
A
application;
(
2)
the
pre­
application
meeting
summary;
(
3)
the
certification
that
the
facility
either
complies
or
will
comply
before
permit
issuance
with
the
performance
and
design
standards
in
40
CFR
part
267;
and
(
4)
the
results
of
a
self­
audit.
72
DOE
notes
that
the
list
in
the
preamble
section
III.
A.
2
(
p.
52201)
of
support
documents
that
the
applicant
is
required
to
submit
with
the
standardized
permit
Notice
of
Intent
is
incomplete
in
comparison
to
the
lists
given
in
preamble
section
IX.
B
(
pp.
52228
­
52230)
and
the
proposed
regulatory
text
(
§
270.275;
pp.
52265
­
52266).
Specifically,
section
III.
A.
2
omits
documentation
of
compliance
with
the
location
standards
of
40
CFR
267.18
and
270.14(
b)(
11),
information
allowing
the
responsible
regulatory
agency
to
carry
out
obligations
under
other
Federal
laws
required
in
40
CFR
270.3,
and
solid
waste
management
unit
information
required
by
40
CFR
270.14(
d).
DOE
recommends
that,
if
the
contents
of
the
preamble
section
III.
A.
2
will
be
used
in
the
final
rule,
EPA
correct
the
omissions.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
agree
with
DOE
and
have
clarified.
what
documents
need
to
be
included
with
the
notice
of
intent.
Please
note
that
in
addition
to
what
was
presented
in
the
proposal,
we
are
finalizing
the
rule
to
require
that
all
applicants
must
submit
a
closure
plan
with
the
notice
of
intent
as
discussed
elsewhere
in
this
response
to
comments
document
and
the
preamble.

Comment:
p.
52201,
col.
3
and
p.
52266,
cols.
1&
2
 
The
preamble
explains
that
the
Notice
of
Intent
to
Operate
Under
a
Standardized
Permit
must
be
accompanied
by
a
certification
of
compliance
with
40
CFR
Part
267.
Alternatively,
if
the
facility
is
not
in
compliance,
the
certification
must
state
that
the
facility
will
come
into
compliance
before
permit
issuance
and
a
description
of
the
aspects
of
the
operations
that
do
no
comply
must
be
provided
along
with
a
schedule
indicating
when
the
facility
will
achieve
compliance.
The
proposed
regulatory
text
implementing
this
requirement
(
i.
e.,
§
270.285(
a))
indicates
that
the
required
schedule
"
must
include
an
enforceable
sequence
of
actions
with
milestones"
(
emphasis
added).

DOE
does
not
object
to
the
proposed
requirement
for
a
compliance
schedule
in
the
event
that
a
facility
seeking
a
standardized
RCRA
permit
does
not
comply
with
40
CFR
Part
267
at
the
time
a
Notice
of
Intent
is
filed.
However,
the
mechanism
by
which
the
compliance
schedule
would
become
"
enforceable,"
as
required
by
the
proposed
40
CFR
270.285(
a),
is
unclear,
particularly
for
interim
status
facilities.
Therefore,
as
is
further
explained
in
Specific
Comment
IX.
C.
3,
item
1,
DOE
suggests
that,
in
the
final
rule,
EPA
either
delete
the
word
"
enforceable"
from
§
270.285(
a)
or
clarify
the
provision
in
proposed
§
270.285
(
p.
52266)
requiring
that
the
schedule
of
compliance
"
include
an
enforceable
sequence
of
actions
with
milestones"
(
emphasis
added).
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
are
finalizing
the
rule
to
require
that
applicants
must
be
in
compliance
with
part
267
requirements
when
they
submit
their
notice
of
intent.
This
will
obviate
the
need
for
a
compliance
schedule
to
be
included
as
part
of
the
permit.

Comment:
NOI
content.
The
proposed
rule
requires
that
the
NOI
"
explain
how
the
facility
meets
the
standards"
in
40
CFR
Part
267.
The
preamble
states
that
a
bulleted
list
is
not
sufficient
73
information
and
that
the
type
of
detail
provided
in
a
Part
B
application
is
too
much
information.
However,
there
is
a
lot
of
territory
in
between
these
two
extremes.
In
the
preamble,
EPA
states
it
will
provide
guidance.
However,
guidance
does
not
have
the
force
of
regulation
and
there
is
not
any
certainty
that
guidance
would
be
developed
in
a
timely
fashion.
The
rule
needs
to
be
revised
to
make
it
clear
what
constitutes
a
sufficient
explanation
of
how
the
facility
meets
the
standards
in
40
CFR
Part
267.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
The
preamble
provides
a
discussion
on
compliance
audits
and
directs
permit
applicants
to
the
Agency's
Web
Page
for
further
information
on
conducting
audits.
For
the
purposes
of
this
rulemaking,
we
have
developed
compliance
audit
checklists
to
assist
permit
applicants
in
conducting
audits.

Comment:
Applicability
to
new
facilities.
The
preamble
to
the
proposed
rule
states
that
the
standardized
permit
can
be
applied
to
existing
or
new
facilities.
However,
the
rule
is
written
only
for
existing
facilities.
For
example,
to
obtain
a
permit,
the
facility
must
describe
how
it
is
currently
complying
with
the
40
CFR
Part
267
standards
before
the
standardized
permit
can
be
issued.
There
is
no
provision
for
stating
how
the
facility
will
meet
the
standards
if
a
permit
is
issued.
In
addition,
under
the
proposed
rules,
the
facility
must
certify
that
it
complies
with
40
CFR
Part
267
or
must
put
together
and
fully
implement
a
schedule
for
coming
into
compliance
before
the
agency
can
issue
a
permit.
This
is
possible
only
if
the
facility
is
not
already
constructed
and
operating.

In
editing
the
rule
so
it
also
applies
to
new
facilities,
EPA
needs
to
clarify
how
the
facility
will
explain
how
it
"
will"
comply
with
the
Part
267
standards
(
not
how
it
is
currently
complying
with
the
standards)
after
the
permit
is
issued
and
certify
that
the
facility
will
be
operated
to
comply
with
the
standards
(
not
that
it
already
complies
with
the
standards).
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
In
the
RCRA
permit
program,
terms
of
how
the
facility
will
comply
with
the
permit
once
the
permit
is
issued
are
specified
in
the
permit.
This
will
continue
to
be
the
case
for
standardized
permits.
In
the
final
rule
we
will
clarify
how
both
existing
and
new
facilities
must
certify
compliance.

Comment:
The
proposed
requirement
to
submit
a
"
notice
of
intent"
to
operate
under
the
standardized
permit,
along
with
supporting
documentation,
provides
for
an
added
measure
of
self
regulation/
implementation.
This
provision
has
the
potential
to
strain
already
limited
RCRA
enforcement
resources.
The
need
to
confirm
the
adequacy
of
internal
audits
and
other
compliance
type
certifications
that
would
be
the
basis
of
such
a
"
notice
of
intent"
is
largely
dependent
upon
past
experience
and/
or
the
working
relationship
between
a
regulator
and
those
subject
to
regulation.
As
such,
changes
in
ownership
or
operational
philosophy
could
easily
create
strained
74
compliance
relations
under
a
standard
permit,
that
would
not
otherwise
occur.
The
proposed
rule
further
enunciates
this
concern
on
page
52204
(
paragraph
IV.
C)
in
discussion
of
a
facility's
demonstrated
ability
to
adhere
to
regulations.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Response:
This
rule
may
place
additional
burden
on
enforcement.
However,
this
is
one
of
the
resource
tradeoffs
we
accepted
in
an
effort
to
streamline
the
permitting
process
and
obtain
burden
reductions
in
other
parts
of
the
permitting
process.

12.
How
would
I
Switch
from
an
Individual
Permit
to
a
Standardized
Permit?
(
III.
B)

Comment:
p.
52201,
col.
3
 
The
preamble
explains
that
the
proposed
rule
would
allow
facilities
operating
under
individual
RCRA
permits
to
request
that
the
responsible
regulatory
agency
revoke
the
individual
permit
and
reissue
a
standardized
permit.

As
stated
in
Specific
Comment
I.
E.
3,
item
1,
DOE
supports
allowing
a
facility,
at
its
own
discretion,
to
seek
a
conventional
RCRA
permit
for
some
activities,
while
seeking
a
separate
standardized
permit
for
eligible
on­
site
storage
and
treatment.
Similarly,
DOE
would
support
allowing
a
facility
that
already
holds
a
conventional
RCRA
permit
to
switch
only
eligible
on­
site
storage
and
treatment
units
at
the
facility
to
a
standardized
permit,
while
retaining
the
conventional
RCRA
permit
for
the
remaining
activities.
However,
DOE
believes
that
revocation
and
reissuance
of
the
individual
permit
should
not
be
required
to
accomplish
this.
Rather,
the
permittee
should
be
allowed
to
file
a
Notice
of
Intent
to
operate
under
a
standardized
permit
for
the
eligible
units
and
allowed
to
simultaneously
request
a
conforming
modification
to
its
individual
permit.
Since
EPA
did
not
address
this
scenario
in
the
preamble,
DOE
requests
that
the
final
rule
clarify
whether
switching
only
eligible
on­
site
storage
and
treatment
units
at
the
facility
to
a
standardized
permit,
while
retaining
an
individual
permit
for
the
remaining
activities,
can
be
accomplished
without
revocation
and
reissuance
of
the
individual
permit.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
Switching
from
an
individual
permit
to
a
standardized
permit
could
involve
a
few
scenarios.
In
general,
and
the
most
likely
case,
is
where
a
facility's
units
are
all
eligible
for
the
standardized
permit.
In
this
case
you
could
request
the
Director
of
the
regulatory
agency
to
revoke
your
individual
permit
and
issue
a
standardized
permit.
For
facilities
where
only
some
of
the
units
are
eligible
for
a
standardized
permit,
you
could
request
the
Director
to
modify
the
original
permit
to
no
longer
include
those
units,
and
issue
a
standardized
permit
for
those
units.
The
revocation
and
reissuance
procedures
are
in
§
124.203,
as
allowed
by
§
270.41,
and
are
finalized
as
proposed.

While
we
agree
that
there
may
be
some
instances
of
switching
to
a
standardized
permit
that
may
be
challenging
to
States,
we
also
do
not
want
to
burden
facilities
75
who
are
eligible
for
a
standardized
permit.
In
any
event,
States,
who
for
the
most
part
implement
the
permitting
program,
will
decide
at
what
point
they
will
allow
facilities
to
switch
from
the
individual
permit
to
the
standardized
permit.

Comment:
DoD
requests
clarification
as
to
whether
a
partial
conversion
from
an
individual
permit
to
a
standardized
permit
is
allowable,
e.
g.
where
a
part
of
a
facility
can
be
converted
to
a
standardized
permit
in
lieu
of
the
entire
facility.

Discussion.
Discussion
on
page
52198
implies
that
EPA
intends
to
allow
facilities
to
apply
for
both
standardized
and
individual
permits
when
some
units
are
eligible
for
the
standardized
permit
and
other
units
are
not
eligible.
However,
preamble
discussion
regarding
conversion
of
individual
permits
to
standardized
permits
and
the
corresponding
proposed
regulation
in
124.203
state
that
an
individual
permit
may
be
revoked
and
reissued
as
a
standardized
permit.
This
appears
to
address
the
permit
in
its
entirety
and
does
not
address
partial
conversion.
Thus
it
is
unclear
whether
conversion
must
be
for
the
entire
permit
or
whether
the
conversion
can
occur
for
certain
eligible
units,
while
other
units
retain
an
individual
permit,
thus
leaving
the
facility
to
possess
both
types
of
permits
simultaneously.
We
believe
it
was
EPA's
intent
to
allow
partial
conversions
as
well,
but
this
is
not
reflected
in
the
text
of
the
rule
in
124.203.

Recommendation.
DoD
requests
that
EPA
add
to
the
regulations
a
provision
that
clearly
allows
part
of
a
facility
to
convert
to
a
standardized
permit,
even
if
certain
units
are
ineligible
and
must
retain
permitted
status
under
an
individual
permit.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Response:
As
we
discuss
in
the
rule
preamble,
a
facility
can
have
some
units
covered
under
an
individual
permit
while
at
the
same
time
have
units
covered
under
a
standardized
permit.

13.
Issuing
a
Standardized
Permit
(
IV)

Comment:
The
issuance
and
maintenance
of
multiple
standardized
and
non­
standardized
RCRA
permits
will
be
an
administrative
nightmare
for
states
and
regions
and
will
be
particularly
burdensome
to
states
that
charge
fees
for
RCRA
permit
issuance.
(
Donald
Webster,
RCRA­
2001­
0029­
0029)

Response:
Allowing
two
different
RCRA
permits
at
a
facility
may
initially
be
an
increased
administrative
burden
but
it
should
reduce
administrative
burden
in
the
longer
term.
We
are
allowing
facilities
to
have
both
a
standardized
permit
for
eligible
units
and
an
individual
permit
for
other
TSD
units
at
the
facility.
76
Comment:
Site­
specific
permit
conditions.
It
is
unclear
from
the
rule
how
the
permitting
agency
would
obtain
site­
specific
information
in
sufficient
detail
to
develop
permit
conditions.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
We
have
clarified
in
the
preamble
that
the
information
would
be
obtained
through
site
investigation,
compliance
inspections,
and
public
comments.
The
preamble
also
references
270.10(
k)
&
makes
clear
that
the
permit
authority
can
request
additional
information
under
that
provision.

14.
Drafting
terms
and
conditions
for
the
supplemental
portion
(
IV.
A.
1)

Comment:
p.
52202,
col.
1
 
The
preamble
indicates
that
EPA
is
proposing
three
steps
in
the
process
for
preparing
a
standardized
permit
after
the
Agency
receives
the
Notice
of
Intent
to
Operate
Under
a
Standardized
Permit.
The
last
step,
which
must
occur
within
120
days
after
the
agency
receives
the
Notice
of
Intent,
would
be
for
the
responsible
regulatory
agency
to
inform
a
facility
owner
or
operator
of
the
agency's
tentative
decision
to
grant
or
deny
coverage
under
the
standardized
permit.

DOE
is
concerned
that
the
proposed
regulations
do
not
obligate
the
responsible
regulatory
agency
to
inform
a
facility
owner/
operator
that
his/
her
facility
is
not
eligible
for
a
standardized
RCRA
permit
until
the
draft
permit
decision
is
made,
which
might
be
as
long
as
120
days
after
a
Notice
of
Intent
is
filed.
DOE
believes
that
eligibility
for
a
standardized
permit
could
and
should
be
determined
much
faster.
Accordingly,
DOE
urges
EPA
to
insert
a
mechanism
into
the
final
rule
whereby
the
responsible
regulatory
agency
would
notify
a
facility
within
30
to
60
days
after
receiving
its
Notice
of
Intent,
if
the
facility
is
ineligible
for
a
standardized
permit.
Otherwise,
facilities
could
wait
several
months
expecting
to
operate
under
a
standardized
permit
only
to
discover
that
they
are
not
eligible
and
must
apply
for
a
conventional
RCRA
permit.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
An
earlier
notice
of
eligibility
would
add
and
additional
step
in
the
permit
issuance
process.
We
have
decided
not
to
include
this
additional
step.

Comment:
p.
52202,
cols.
2
&
3
 
The
preamble
states
that
the
Director
must
identify
appropriate
facility­
specific
conditions,
if
any,
to
impose
in
the
supplemental
portion
of
a
standardized
permit.
The
preamble
further
states
that
EPA
is
proposing
that
a
facility
owner
or
operator
could
include
a
statement
with
their
Notice
of
Intent
specifying
additional
conditions
he/
she
would
like
the
responsible
regulatory
agency
to
attach
to
the
standardized
permit.
77
DOE
agrees
that
a
facility
owner
or
operator
should
be
allowed
to
suggest
supplemental
conditions
that
he/
she
would
like
the
responsible
regulatory
agency
to
attach
to
the
standardized
permit.
DOE
notes,
however,
that
the
regulatory
text
proposed
as
40
CFR
270.275
("
What
information
must
I
submit
to
the
permitting
agency
to
support
my
standardized
permit
application?")
(
pp.
52265­
52266)
does
not
specifically
address
whether
the
seeker
of
a
standardized
RCRA
permit
should
include
in
the
Notice
of
Intent
such
suggestions.
Therefore,
DOE
suggests
that
EPA
add
the
following
subsection
§
270.275(
g)
to
the
final
rule
(
redline
font
=
addition):

§
270.275
What
information
must
I
submit
to
the
permitting
agency
to
support
my
standardized
permit
application?

*
*
*
*
*

(
g)
Specifications
for
supplemental
terms
and
conditions
that
you,
as
owner
or
operator
of
the
facility,
would
like
the
Director
to
include
in
the
supplemental
portion
of
the
standardized
permit,
as
described
in
§
124.204(
b)(
1),
if
any.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
While
we
agree
with
the
general
premise
of
the
suggestion
for
allowing
the
applicant
to
make
suggestions,
we
chose
not
to
include
the
language
in
the
rule
to
avoid
confusion
that
might
lead
applicants
to
feel
required
to
submit
suggested
language.

Comment:
MORE
STRINGENT
VS
MORE
DETAILED.
The
statement
was
made
that
"
We
do
not
anticipate
that
more
stringent
standards
would
be
necessary
in
most
situations".
This
statement
is
not
clear.
A
distinction
may
need
to
be
made
between
more
stringent
and
more
detailed.
In
California's
experience
with
Standardized
Permitting,
we
found
that
the
wide
variety
of
eligible
activities,
the
complexity
of
applicable
regulations,
and
the
lack
of
knowledge
of
many
owner/
operators
made
it
essential
to
provide
a
detailed
permit
that
specified
what
could
and
could
not
be
done.
Because
of
varying
facility
locations,
variations
in
types
of
equipment,
the
wide
variety
of
activities
eligible
for
a
Standardized
Permit,
differing
local
ordinances,
and
other
variables,
each
permit
had
to
be
tailored
to
the
specific
facility.
There
are
major
core
items,
or
course,
but
facility­
specific
special
conditions
were
necessary
in
order
to
provide
adequate
direction
to
allow
the
owner/
operator
to
operate
in
compliance
with
the
permit
and
the
regulations.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
We
will
clarify
in
the
preamble
that
supplemental
conditions
will
generally
be
more
detailed
and
in
some
cases
more
stringent.
78
15.
Denying
coverage
under
the
standardized
permit
(
IV.
A.
2)

Comment:
"
SELF­
IMPLEMENTING".
The
phrase
"
the
self­
implementing
nature
of
the
proposed
requirements
in
the
uniform
portion
of
the
standardized
permit..."
is
used.
The
meaning
of
"
self­
implementing"
in
this
phrase
is
unclear.
In
context,
it
appears
to
mean
uniform
or
standardized.
In
California,
the
term
"
self­
implementing"
is
used
to
describe
a
situation
where
no
facility
or
case­
specific
approval
is
required.
If,
for
example,
a
generator's
wastes
and
activities
meet
the
regulatory
criteria
for
permit­
by­
rule,
then
that
generator
is
automatically
eligible
for
the
permit­
by­
rule
tier.
The
owner/
operator
must
notify
DTSC
or
the
local
agency
that
he/
she
intends
to
operate
under
permit­
by­
rule,
but
that
notification
cannot
be
denied.
This
is
not
the
way
RCRA
Standardized
Permit
program
is
being
proposed;
an
applicant
can
be
denied
eligibility
for
a
RCRA
Standardized
permit
based
on
compliance
history.
This
does
not
qualify
as
self­
implementing.
Please
clarify
the
intent
of
this
statement
.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
We
will
clarify
in
the
preamble
that
self­
implementing
means
operating
under
the
uniform
or
standard
conditions
­
but
that
interaction
with
the
regulating
agency
and
public
is
still
required.

Comment:
Denying
or
revoking
a
standardized
permit.

a.
The
proposed
rules
fail
to
provide
sufficient
criteria
for
denying
a
permit
for
the
facility
(
triggering
closure)
and/
or
requiring
a
full
Part
B
permit
application.
The
criteria
for
denying
a
request
for
a
standardized
permit
appear
to
be:

°
Applicant's
application
is
for
a
unit
that
is
disposal;
storage
or
non­
thermal
treatment
in
other
than
containers,
tanks,
and
containment
buildings;
or
thermal
treatment
and/
or
the
facility
accepts
hazardous
waste
from
off­
site
facilities;
°
Facility
has
a
history
of
noncompliance
at
the
site;
or
°
Supplemental
conditions
to
protect
human
health
or
the
environment
"
cannot
be
imposed"

What
EPA
intends
by
the
comment
in
the
last
bullet
is
unclear.
What
would
cause
a
situation
in
which
a
"
condition
cannot
be
imposed"?
Also,
note
that
using
"
history
of
noncompliance"
at
the
site
would
be
difficult
to
apply
without
additional
specific
criteria.
The
problem
is:
how
much
noncompliance
is
needed
to
support
a
denial.

Additional
criteria,
similar
to
those
for
denying
or
revoking
a
decision
on
a
full
Part
B
permit,
need
to
be
added
to
the
rule.
There
are
likely
to
be
situations
in
which
the
criteria
above
are
met,
but
the
facility's
current
or
proposed
operations
do
not
protect
human
health
or
the
environment.
Examples
are
when
the
facility.
79
i)
Provides
an
incomplete
NOI.
Note
that
the
preamble
states
that
incomplete
information
is
a
reason
to
deny
the
request
for
a
standardized
permit.
However,
the
actual
rule
does
not
provide
procedures
or
criteria
for
dealing
with
an
incomplete
submittal
or
for
the
permitting
agency
to
ask
the
facility
to
supplement
the
submittal.
The
process
for
a
full
Part
B
permit
are
clear
that
refusal
or
inability
to
provide
a
complete
and
technically
adequate
application
are
grounds
for
denial.
The
standardized
permit
rules
need
the
same
requirement.
ii)
Is
unable
to
demonstrate
that
it
complies
with
the
procedures
and
plans
required
under
the
rule.
Perhaps
the
facility
certifies
that
it
complies
with
the
standards,
but
the
permitting
agency
determines
via
a
site
visit
that
the
facility
fails
to
meet
the
standards.
iii)
Under
the
rule,
the
permitting
agency
must
make
a
draft
decision
within
120
days
of
receiving
the
application
and
cannot
issue
a
standardized
permit
until
the
facility
is
in
compliance
with
the
technical
standards.
However,
proposed
40
CFR
Part
267
does
not
allow
failure
to
be
in
compliance
with
the
rules
within
that
deadline
to
be
a
criterion
for
denial
of
the
permit
request.
What
happens
then?
Does
the
permitting
agency
have
the
authority
to
deny?;
iv)
Is
large
and
complex,
for
example,
with
a
wide
variety
of
waste
streams,
many
of
which
are
incompatible;
or
v)
Is
in
or
near
a
residential
area.

b.
The
rules
are
also
unclear
whether
the
request
for
a
standardized
permit
can
result
in
a
full
denial
of
a
hazardous
waste
management
facility
permit
or
only
that
the
permitting
agency
must
offer
a
full
Part
B
permit
process
as
an
alternative.

c.
There
are
no
clear
criteria
for
revoking
a
standardized
permit.
The
rules
do
provide
for
requiring
the
facility
to
apply
for
a
full
"
Part
B"
permit,
but
the
only
reason
is
that
the
facility
is
not
complying
with
the
standards.
This
is
a
vague
criterion
that
is
difficult
to
implement.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
Under
the
final
rule,
the
Director
could
tentatively
deny
a
facility
coverage
under
the
standardized
permit.
Reasons
for
denial
could
include
failure
of
the
facility
owner
or
operator
to
submit
all
the
information
required
under
§
270.275,
or
that
the
facility
does
not
meet
the
eligibility
requirements
for
a
standardized
permit
(
that
is,
the
facility's
activities
are
outside
the
scope
of
the
permit).
The
Director
could
also
deny
coverage
based
on
a
facility's
compliance
history
(
see
§
124.204(
b)).

Consideration
of
compliance
history
reflects
the
self­
implementing
nature
of
the
requirements
that
are
being
imposed
under
the
uniform
portion
of
the
standardized
permit.
A
facility
with
a
demonstrated
history
of
noncompliance
may
not
be
a
viable
candidate
for
a
standardized
permit.
80
Beyond
these
points,
we
believe
it
is
difficult
to
develop
specific
criteria
defining
"
poor"
compliance
history.
We
believe
that
the
permitting
authority
is
in
the
best
position
to
determine
whether
or
not
a
facility
has
a
compliance
history
that
is
so
poor
as
to
determine
that
they
should
be
ineligible
for
a
standardized
permit.

Comment:
Sec.
124.206
­
Denying
Coverage
Under
a
Standardized
Permit
We
support
the
idea
that
the
permitting
agency
may
determine
that
facilities
with
a
history
of
environmental
non­
compliance
are
ineligible
for
a
standardized
permit.
We
also
feel
that
the
permitting
agency
should
have
the
flexibility
to
declare
facilities
who
habitually
submit
incomplete
and/
or
deficient
permit
application
information
to
be
ineligible.
This
is
an
important
consideration
because
the
agency
will
not
be
performing
a
detailed
review
of
the
application
information
that
is
kept
at
the
facility
during
the
permitting
process.

Therefore,
we
recommend
that
the
following
(
or
similar)
language
be
added
to
Section
124.206(
a)
of
the
regulations:
"
Cases
where
you
may
determine
that
a
facility
is
not
eligible
for
the
standardized
permit
include,
but
are
not
limited
to
the
following:
(
1)
The
facility
does
not
meet
the
criteria
in
Section
124.201.
(
2)
The
facility
has
a
demonstrated
history
of
non­
compliance
with
regulations
or
permit
conditions.
(
3)
The
facility
has
a
demonstrated
history
of
submitting
incomplete
or
deficient
permit
application
information."
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Response:
The
suggested
reasons
are
consistent
with
our
intent
to
limit
the
eligibility
for
the
standardized
permit
to
those
facilities
that
can
demonstrate,
or
have
demonstrated,
an
ability
to
adhere
to
the
regulations,
as
we
discussed
in
the
preamble
to
the
proposed
rule
(
see
66
FR
52203,
Section
IV.
B.
2).
The
final
rule
provides
specific
eligibility
criteria
in
§
124.204(
b).

16.
Preparing
your
draft
permit
decision
in
120
days
(
IV.
A.
3)

Comment:
Within
120
days
of
receiving
the
notice
of
intent
and
accompanying
information,
the
state
or
EPA
would
need
to
make
a
preliminary
decision
to
either
grant
or
deny
coverage
under
the
standardized
permit.
One
hundred
twenty
days
is
not
sufficient
time
for
the
agency
to
conduct
an
RFA
at
the
facility,
in
order
to
make
an
informed
decision
about
the
permit.
All
facilities
applying
for
a
RCRA
permit
must
have
an
RFA.
Therefore,
this
time
limitation
does
not
allow
for
issuance
of
the
HSWA
portion
of
a
complete
RCRA
permit.
The
result
would
be
for
the
agency
to
deny
most
standardized
permit
applications
unless
the
facility
could
show
a
recent
third
party
RFA
or
had
already
been
issued
a
permit
and
had
been
through
the
corrective
action
process.
In
81
the
latter
case
a
regular
RCRA
permit
is
easy
to
issue
and
a
Standardized
permit
is
unnecessary.
(
Donald
Webster,
RCRA­
2001­
0029­
0029)

Comment:
While
any
time
limit
on
departmental
review
is
a
significant
improvement
120
days
seems
to
be
an
inordinate
amount
of
time
for
what
is
essentially
a
"
cook
book"
application
with
little
supporting
documentation
subject
to
review.
By
far
the
more
significant
review
is
delegated
to
field
personal
during
a
compliance
inspection.
A
limit
of
30/
60/
90
days
would
seem
more
reasonable.
(
James
Butler,
Regulatory
Compliance
Officer,
Cycle
Chem,
Inc.,
RCRA­
2001­
0029­
0031)

Comment:
Under
the
Proposed
Rule,
a
permitting
agency
would
be
required
to
make
a
draft
permit
decision
within
120
days
of
receiving
a
facility's
notice
of
intent
and
supporting
documents.
SOCMA
agrees
with
EPA
that
the
goal
of
simplifying
and
expediting
the
permitting
process
will
not
be
met
unless
an
appropriate
time
limit
is
imposed
on
the
permitting
agency
not
only
to
determine
the
completeness
of
an
application,
but
to
issue
the
draft
permit
as
well.
SOCMA
believes
that
the
120­
day
time
period
proposed
by
EPA
is
adequate
for
the
permitting
agency
to
review
all
materials
submitted
with
a
permit
application.
SOCMA
also
believes
that
the
120­
day
period
typically
should
also
be
sufficient
to
allow
any
unanticipated
issues
to
be
addressed.
SOCMA
recommends
that
any
extensions
granted
on
the
review
period
be
kept
to
an
absolute
minimum
and
that
the
agency
requesting
the
extension
be
required
to
submit
a
justification
for
the
extension
in
order
to
preserve
the
integrity
of
the
standardized
permit.
Additionally,
SOCMA
believes
that
the
extension
period
should
be
limited
to
60
days,
as
opposed
to
the
90­
day
extension
proposed
by
EPA,
because
it
seems
disproportionate
to
make
the
extension
period
two­
thirds
as
long
as
the
original
review
period.
Otherwise,
regulatory
agencies
will
be
likely
to
avail
themselves
of
the
extension
alternative
with
sufficient
regularity
as
to
defeat
the
primary
purpose
of
the
Proposed
Rule.
(
Jeff
Gunnulfsen,
Manager,
Government
Relations,
the
Synthetic
Organic
Chemical
Manufacturers
Association
("
SOCMA"),
RCRA­
2001­
0029­
0038)

Comment:
p.
52203,
col.
2
 
The
preamble
requests
comments
on
three
related
issues:
(
1)
whether
120
days
is
an
appropriate
time
from
for
a
draft
permit
decision,
or
whether
a
longer
or
shorter
time
frame
would
be
more
suitable;
(
2)
whether
a
one­
time
extension
to
the
time
limit
should
be
allowed,
and
if
so,
what
an
appropriate
amount
of
time
would
be;
and
(
3)
whether
the
120­
day
"
clock"
should
be
suspended
if
site­
specific
conditions
require
a
comprehensive
site
visit
and
follow
up
by
the
permitting
authority.

(
f)
Regarding
the
length
of
time
to
be
allowed
for
the
responsible
regulatory
agency
to
prepare
a
draft
permit,
DOE
believes
120
days
should
be
adequate.
Notwithstanding,
the
Department
would
support
allowing
an
extension
of
up
to
90
days,
if
such
an
extension
would
encourage
states
to
pursue
the
option
of
standardized
permitting.

We
need
to
provide
a
response
to
this
82
(
g)
As
indicated
in
Specific
Comment
IV.
A.
1,
item
1,
DOE
is
concerned
that
facilities
be
notified
in
a
timely
manner
that
they
are
not
eligible
for
a
standardized
RCRA
permit.
Accordingly,
DOE
urges
EPA
to
insert
a
mechanism
into
the
final
rule
whereby
the
responsible
regulatory
agency
would
notify
a
facility
within
30
to
60
days
after
receiving
its
Notice
of
Intent
whether
the
facility
is
ineligible
for
a
standardized
permit.
Similarly,
in
cases
of
facilities
that
are
eligible
for
standardized
permits,
DOE
encourages
EPA
to
adopt
time
limits
which
will
motivate
the
most
efficient
processing
based
on
the
type
of
action
to
be
taken.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
The
Agency
seeks
comment
on
whether
120
days
is
an
appropriate
time
frame
for
the
permitting
agency
to
make
a
draft
permit
decision
(
i.
e.,
whether
to
issue
the
permit
or
not.)
Id.
at
52203.
USWAG
supports
the
120
day
time
frame
as
reasonable
and
appropriate,
even
though
no
parallel
time
frame
exists
in
the
current
RCRA
permitting
process.
As
EPA
explains,
"[
t]
o
ensure
that
the
standardized
permitting
process
does,
in
fact,
streamline
the
administrative
process
and
shorten
the
time
required
to
obtain
the
permit,
we
believe
it
is
appropriate
to
propose
a
time
limit
for
preparing
standardized
permits."
Id.

Additionally,
USWAG
supports
a
one­
time
extension
of
90
days.
As
EPA
explains,
there
may
be
times
when
permitting
authorities
might
need
to
continue
work
on
permitting
issues
past
the
120
days,
and
in
these
circumstances,
a
90
day
extension
would
be
appropriate.

USWAG
also
supports
suspending
the
120
day
"
clock"
if
site­
specific
conditions
require
a
comprehensive
site
visit
and
follow­
up
by
permitting
authorities.
We
understand
that
under
this
approach,
the
permit
application
review
"
clock"
would
restart
after
the
site­
specific
issues
were
resolved.
Id.
If
the
Agency
adopts
this
proposal,
however,
we
urge
EPA
to
clarify
in
the
final
rule
that
the
permitting
agency
must
provide
a
written
explanation
to
a
party
seeking
a
standardized
permit
explaining
why
a
site
visit
is
necessary
and
what
follow­
up
is
anticipated,
as
well
as
an
estimate
of
how
much
time
these
actions
will
require,
so
as
to
offer
the
permittee
an
idea
of
when
a
draft
decision
on
their
standardized
permit
application
will
be
made.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Comment:
Under
proposed
§
124.202,
the
Director
must
make
a
permit
decision
in
120
days
of
receiving
the
Notice
of
Intent.
Although
EPA's
desire
to
set
a
time
period,
which
makes
this
rule
more
attractive
from
a
streamlining
standpoint,
we
are
concerned
that
the
corrective
action
portion
could
take
much
longer.
The
120
days
would
likely
be
long
enough
for
the
operating
portion
of
the
permit,
however
the
corrective
action
portion
will
require
the
agency
to
perform
a
RCRA
Facility
Assessment
and
write
corrective
action
conditions
into
the
permit.
EPA
should
consider
some
method
to
allow
a
one­
time
extension
or
bifurcate
these
sections
in
some
way
in
order
to
expedite
the
operating
permit
while
allowing
the
necessary
time
for
corrective
action
83
provisions
to
be
established.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Comment:
The
EPA
proposes
to
institute
a
120­
day
time
frame
for
the
Agency
to
make
a
draft
permit
decision
and
whether
the
Agency
should
allow
a
one­
time
extension
to
the
120­
day
time
frame.
Dominion
agrees
with
the
proposal
to
require
a
120­
day
time
frame
for
making
a
draft
permit
decision,
and
that
an
extension
of
30
days
would
be
allowable
as
part
of
this
process.
The
Agency
has
complex
issues
to
address
in
this
process
and
needs
to
address
these
issues
in
a
timely
manner.
(
Pamela
F.
Faggert,
Dominion,
RCRA­
2001­
0029­
0049)

Comment:
We
do
not
support
a
one­
time
extension
to
processing
time
if
site
visits
or
followup
are
required.
One
of
the
most
significant
benefits
of
a
standardized
permit
is
EP
A's
commitment
to
limit
processing
time
to
120
days.
The
information
submitted
to
support
permits
for
the
simple
management
units
and
processes
allowed
under
the
Proposed
Rule
should
not
require
extensive
review.
If
facility
inspections
or
follow­
up
are
required
based
on
the
information
submitted,
they
should
be
easy
to
identify
within
60
days
of
receipt
of
the
information,
allowing
sufficient
time
for
them
to
be
completed
within
the
120
day
review
period.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Response:
The
Agency
believes
that
120
days
for
draft
permit
issuance
is
adequate,
subject
to
a
one
time
30­
day
extension.
EPA
considered
notifying
the
applicant
on
their
eligibility
for
the
standardized
permit
apart
from
doing
so
during
the
draft
permit
decision.
We
decided
that
making
a
decision
on
eligibility
earlier
in
the
process
is
not
necessary
and
may
complicate
the
permitting
process.
States
could
modify
these
requirements
to
take
into
consideration
unique
program
elements.

We
decided
that
the
time
clock
should
not
be
suspended.
Suspending
the
time
clock
is
not
necessary
since
we
are
going
with
the
one­
time
extension.

Although
CA
is
site­
specific
it
could
be
put
on
a
schedule
of
compliance.
Also
the
30­
day
extension
could
be
used
to
address
corrective
action
concerns.

The
original
proposal
called
for
a
draft
permit
decision
within
120
days,
and
requested
comment
on
whether
additional
time
should
be
allowed.
Several
commenters
agreed
with
the
proposal
that
120
days
is
sufficient
time
to
review
the
information
submitted
with
the
Notice
of
Intent.
In
addition,
several
commenters
recommended
an
extension
be
available
beyond
the
initial
120
days.
Suggested
extensions
ranged
from
those
who
suggested
no
extension,
all
the
way
up
to
180
days
suggested
by
one
commenter.
However,
other
commenters
have
argued
that
the
initial
120­
day
period
would
not
be
adequate
time
to
review
all
the
information
84
submitted
and
conduct
the
required
public
comment
period.
We
understand
that
some
states
have
additional
requirements
that
permit
applicants
must
meet,
that
may
necessitate
an
extension.
However,
we
believe
that
most
submissions
should
be
reviewable
in
the
120­
day
time
frame.
Furthermore,
under
the
standardized
permit
rule,
the
public
comment
period
begins
once
the
draft
permit
is
public
noticed,
and
is
not
part
of
the
120­
day
review
period.
Nevertheless,
there
may
be
situations
where
additional
time
is
needed,
for
example,
to
work
out
a
particular
approach
to
an
issue
requiring
a
supplemental
condition.
For
these
facilities,
and
in
response
to
comments,
the
Agency
is
providing
a
onetime
extension
of
30
days.
We
believe
that
the
120­
day
initial
time
period,
with
a
one
time
30­
day
extension
will
provide
sufficient
time
to
issue
a
draft
permit
(
or
permit
denial).

Comment:
U.
S.
EPA
proposes
to
have
a
draft
permit
decision
within
120
days
from
the
time
of
receiving
the
Intent
of
Notice
to
operate
under
a
Standardized
Permit.
From
the
California
experience,
this
processing
time
frame
may
not
be
possible.
To
have
a
draft
permit
decision,
an
agency
needs
to
have
good
understanding
of
not
only
the
proposed
operations,
but
also
the
environmental
impacts
from
the
operations.
Under
the
proposed
Standardized
Permit
scheme,
an
applicant
would
not
provide
detailed
information
about
the
technical
aspects
of
operation;
an
applicant
instead
would
certify
that
he/
she
meets
the
technical
standards.
To
make
sound
environmental
analyses,
for
example,
an
agency
in
California
needs
to
comply
with
the
requirements
of
California
Environmental
Quality
Act
(
CEQA)
and
would
need
a
lot
of
supplemental
information
to
determine
if
the
operations
may
have
environmental
impacts,
such
as
upset
of
risk,
air
quality,
etc.
From
our
experiences,
the
elapsed
time
frame
of
processing
a
standardized
permit
is
not
much
less
than
processing
a
full
permit.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
The
Agency
believes
that
120
days
for
draft
permit
issuance
is
adequate,
subject
to
a
one
time
30­
day
extension.
The
CEQA
environmental
impacts
could
be
addressed
during
the
30­
day
extension.
Also
the
30­
day
extension
for
cause
could
be
used
to
address
corrective
action
concerns.
States
could
modify
these
requirements
to
take
into
consideration
unique
program
elements.

Comment:
EPA's
Proposal
To
Standardized
Permits
Should
Not
Include
Any
Decrease
In
The
Length
of
Time
EPA
Has
To
Review
Permits.
Doing
So
Could
Weaken
Protections
For
Public
Health
And
Environmental
Quality.

RCRA
requires
detailed
permits,
and
detailed
information
to
complete
such
permits,
because
RCRA
facilities
handle
hazardous
substances
that
pose
serious
threats
to
public
health
and
environmental
quality.
At
every
stage
of
the
process,
permit
reviewers
need
time
to
review
these
85
permits
to
ensure
that
they
adequately
protect
public
health.
Therefore,
U.
S.
PIRG
objects
to
the
modifications
proposed
by
EPA
that
would
limit
the
amount
of
time
that
permit
reviewers
have
to
undertake
detailed
examinations
of
these
permits.

EPA
is
already
proposing
to
significantly
reduce
burden
on
facilities.
For
example,
the
agency
is
proposing
to
reduce
the
overall
level
of
information
that
facilities
have
to
submit.
Additionally,
the
standardized
permits
should
inure
substantial
burden
reduction
benefits
to
these
same
facilities.
These
actions
should
substantially
reduce
the
time
such
facilities
have
to
devote
to
the
permit
submittal
process.

However,
the
proposal
goes
one
step
further
by
proposing
to
drastically
scale
back
the
amount
of
time
that
EPA
officials
can
devote
to
ensuring
that
facilities,
which
handle
potentially
large
volumes
of
toxic
substances
in
areas
where
people
live
and
work,
operate
in
a
manner
that
protects
public
health.
RCRA's
"
cradle­
to­
grave"
permitting
system
contemplated
a
scenario
whereby
EPA
and
state
officials
would
undertake
extensive
reviews
of
highly
detailed
permits.
With
shrinking
budgets,
EPA
may
be
hard
pressed
to
keep
up
with
permit
submittals.
This
proposal,
which
already
gives
facilities
much
in
the
way
of
burden
reduction,
should
not
give
facilities
even
more
at
the
expense
of
EPA's
ability
to
protect
public
health.
(
Grant
Cope,
Staff
Attorney,
U.
S.
Public
Interest
Research
Group,
RCRA­
2001­
0029­
0051)

Response:
Under
the
final
rule,
much
of
the
information
gathered
by
the
applicant
and
kept
on
site
would
not
necessarily
be
reviewed,
except
on
a
case­
by
case
basis.
Rather,
applicants
would
self
certify
compliance
with
applicable
requirements.
Facilities,
whose
operations
are
overly
complex
might
not
be
good
candidates
for
a
standardized
permit,
but
rather
an
individual
RCRA
permit.
Facilities,
whose
waste
handling
operations
are
more
straightforward
would
make
better
candidates
for
a
standardized
permit.
With
this
in
mind,
the
Agency
believes
that
120
days
for
draft
permit
issuance
is
adequate
time
to
reach
a
draft
permit
decision.

Comment:
No.
120
days
is
insufficient
time
to
make
a
draft
permit
decision
if
detailed
site
specific
corrective
action
requirements
must
be
incorporated
into
the
supplemental
portion
of
the
permit
prior
to
issuance
of
the
draft
permit
decision.
Corrective
action
requirements
of
the
scope
currently
used
by
the
State
of
Arkansas
in
RCRA
permits
generally
require
a
much
longer
period
of
time
to
prepare
than
120
days.
Corrective
action
requirements
are
often
the
most
comprehensive
and
complicated
portion
of
the
RCRA
permit.
Without
streamlining
this
aspect
of
the
permitting
process,
ADEQ
believes
little
efficiency
will
be
realized
in
the
overall
process
of
utilizing
a
standardized
permit.
In
the
alternative,
ADEQ
thinks
that
it
is
not
necessary
to
include
detailed
site
specific
corrective
action
requirements
in
the
draft
or
final
permit
decision.
Statutory
requirements
for
addressing
past
waste
management
practices
can
be
accomplished
by
placing
general
requirements
in
the
draft
and
final
permit
decisions
which
will
establish
the
obligation
of
the
permittee
to
conduct
corrective
action
and
a
mechanism
by
which
the
detailed
site
specific
corrective
action
requirements
are
developed
under
a
compliance
schedule
in
the
86
permit.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Response:
The
Agency
believes
that
120
days
is
normally
an
adequate
time
to
issue
a
draft
permit,
but
are
allowing
an
extension
of
30
days
to
address
complex
situations.

Comment:
Under
the
proposal,
the
permitting
agency
has
120
days
from
receipt
of
the
notice
of
intent
(
NOI)
to
make
a
permit
decision.

e.
The
rule
fails
to
say
what
happens
if
there
is
no
permit
decision
by
the
"
deadline."
A
number
of
factors
could
cause
the
delay
of
the
decision;
for
example,
the
NOI
may
not
provide
sufficient
information
(
e.
g.,
there
may
be
an
insufficient
description
of
how
the
facility
meets
the
regulatory
standards).
It
would
be
appropriate
to
allow
an
extension
of
the
deadline
under
certain
conditions.
The
rule
needs
to
be
clear
what
happens
if
the
permitting
agency
does
not
meet
the
120
day
"
deadline"
for
issuing
a
draft
permit
decision.

f.
The
120­
day
deadline
for
making
a
permit
decision
fails
to
take
into
account
requirements
adopted
by
some
authorized
states
that
must
be
satisfied
before
an
application
can
be
reviewed
and
a
permit
decision
made.

(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Comment:
Florida's
Administrative
Procedures
Act
and
waste
management
statutes
provide
time
limits
for
permit
decisions.
Probably
other
states
also
have
administrative
and
permitting
deadlines.
Any
deadline
put
into
the
standardized
permit
rule
should
explicitly
accommodate
state
variations
without
requiring
statutory
reforms
that
make
the
hazardous
waste
permitting
program
inconsistent
with
generally
applicable
state
provisions.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
Safety­
Kleen
comments
that
there
might
be
extenuating
circumstances
that
could
prevent
a
permitting
agency
from
issuing
a
draft
permit
decision
in
120
days.
We
suggest
that
it
would
be
appropriate
to
allow
a
one­
time
60
day
extension
upon
written
notification
to
the
87
applicant.
We
also
seek
clarification
on
a
section
of
the
time
line
that
seems
to
be
missing.
In
the
proposal,
the
permitting
agency
would
have
120
days
to
make
an
initial
determination
and
draft
a
permit
for
public
review.
There
does
not
seem
to
be
any
time
frame
for
the
agency
to
issue
the
final
permit
after
the
public
comment
period
has
ended.
We
feel
that
this
oversight
weakens
the
advantages
of
the
standardized
permit.
Currently,
final
permits
can
take
years
to
be
issued
and
in
most
cases,
there
is
no
incentive
for
the
permitting
agency
to
issue
the
permit.
In
order
to
keep
the
process
expedited,
Safety­
Kleen
recommends
that
the
proposed
rule
be
modified
to
include
120
days
for
the
agency
to
issue
a
final
permit
after
the
public
comment
period
with
a
one­
time
60
day
extension
period
if
needed.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Comment:
ETC
strongly
supports
the
concept
of
a
120­
day
period
for
the
Director
to
make
a
decision
on
whether
to
issue
a
draft
standardized
permit.
66
FR
52203.
To
ensure
that
the
standardized
permit
process
does,
in
fact,
streamline
the
administrative
process
and
shorten
the
time
required
to
obtain
the
permit,
a
time
limit
is
essential.
A
period
of
120
days
after
the
facility
submits
its
application
and
supporting
materials
is
a
reasonable
amount
of
time
for
the
Director
to
make
the
necessary
determinations.
The
Director
should
also
have
be
able
to
invoke
a
one­
time
extension
for
60
days
in
the
event
additional
time
is
necessary.

We
do
not
support
the
concept
of
"
suspending"
the
120­
day
clock
for
any
reason.
The
four
months
provided
by
the
initial
120­
day
period
and
60­
day
extension
should
be
more
than
sufficient
to
conduct
a
comprehensive
site
visit.

Finally,
there
is
a
critical
missing
deadline
in
the
time
frame
for
issuing
the
standardized
permit.
While
the
proposal
has
a
120­
day
time
period
for
the
Director
to
issue
the
draft
permit,
there
is
no
comparable
time
period
after
the
close
of
the
public
comment
process
for
issuance
of
the
final
permit.
This
could
result
in
inordinate
delays
that
jeopardizes
the
whole
purpose
of
the
standardized
permit
rule.
The
ETC
strongly
recommends
that
EPA
include
a
120­
day
time
period
after
the
close
of
the
public
comment
period
for
the
Director
to
issue
the
final
standardized
permit.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Comment:
Regarding
preparation
of
draft
permit
decisions
in
120
days,
EPA
requests
comments
on
whether
to
suspend
the
120
day
"
clock"
if
site­
specific
conditions
require
a
comprehensive
site
visit
and
follow
up
by
the
permitting
authority.
The
regulatory
agency
must
have
the
ability
at
any
point
during
the
120
day
process
to
suspend
the
120
day
clock
for
the
purpose
of
addressing
site
specific
or
other
unforeseen
issues
that
could
otherwise
go
unaddressed
in
the
shortened
time
frame
provided
for
under
this
proposed
rule.
Such
suspension
might
require
agency
notification
as
to
the
reasons
for
delay,
and
could
also
include
scheduling
requirements
not
unlike
those
provided
for
at
40
CFR
124.3(
g).

A
one­
time
extension
of
the
120
day
"
clock"
for
the
Agency
decision
should
be
allowed.
Most
of
the
provisions
that
specify
facility
requirements
allow
for
extension
requests.
The
authorized
88
Agency
should
be
allowed
this
same
provision.
However,
the
one­
time
extension
should
be
for
another
120
days,
not
90
days
as
proposed
in
the
rule.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Response:
The
final
rule
has
no
provisions
for
cases
where
a
decision
is
not
made
after
the
120
day
period
or
even
after
the
extension
period.
We
did
not
want
to,
in
the
rule,
mandate
times
for
permit
issuance,
recognizing
that
individual
states
may
have
more
involved,
state­
specific
procedures
related
to
application
review
and
permit
issuance.
We
are
including
an
extension
of
30
days,
to
the
120­
day
period
for
review
and
issuance
of
a
draft
permit
decision,
as
described
previously.
These
time
lines
are
goals
for
the
permitting
agency
to
follow.
States
could
modify
these
requirements
to
take
into
consideration
unique
program
elements.

Comment:
Yes,
allow
an
additional
time
period
for
the
agency
to
review
submitted
materials.
In
some
cases
120
days
would
not
allow
adequate
time
to
review
and
propose
additional
conditions
needed
in
the
protection
of
human
health
and
the
environment.
Recommend
an
additional
180
day
time
period.
The
initial
permit
conversions,
even
done
as
modifications,
may
possibly
overload
agency
efforts
to
provide
timely
response
to
the
submitted
materials.
(
Jamie
Burroughs
of
the
TSD
Section
and
O.
J.
Wingfield
of
Financial
Responsibility,
Division
of
Solid
Waste
Management,
Tennessee
Department
of
Environmental
and
Conservation,
RCRA­
2001­
0029­
0057)

Response:
The
Agency
believes
that
120
days
for
draft
permit
issuance
is
adequate,
subject
to
a
one
time
30­
day
extension
for
cause.
These
time
lines
are
goals
for
the
permitting
agency
to
follow.
States
could
modify
these
requirements
to
take
into
consideration
unique
program
elements.

Comment:
A
draft
permit
decision
should
be
able
to
be
made
by
the
agency
within
the
120­
day
time
frame
in
most
instances.
However,
for
a
larger,
more
complex
facility,
the
120
days
may
not
be
an
adequate
time
frame
for
which
to
complete
the
decision­
making
process.
In
addition,
should
there
be
numerous
applications
filed
simultaneously
by
several
different
facilities
(
as
could
occur
initially
upon
adoption
of
the
rule
as
facilities
switch
from
individual
to
standardized
permits)
the
permit­
issuing
agency
could
experience
difficulty
in
meeting
the
120­
day
time
frame
for
all
applicants.
In
these
cases
a
one­
time,
120­
day
extension
should
be
available.

In
addition,
Onyx
does
not
believe
that
in
those
instances
that
a
comprehensive
site
visit
and
follow­
up
by
the
permitting
authority
is
required
that
the
120­
day
clock
should
be
suspended.
If
there
are
significant
siting
concerns
that
can't
be
resolved
in
240
days
(
initial
120
days
plus
the
120­
day
extension)
then
Onyx
believes
that
a
standardized
permit
should
not
be
issued
and
that
instead
the
individual
permit
should
be
required.
89
.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Response:
We
believe
that
draft
permit
decisions
should
normally
be
reached
within
120
days.
Units
eligible
for
a
standardized
permit
are,
as
we
state
in
the
proposed
rule,
generally
more
"
straightforward
than
other
types
of
management
units."
However,
we
are
providing
for
a
30­
day
extensions
on
a
case­
by­
case
basis.
The
final
rule
will
not
provide
for
a
suspension
of
the
120
day
clock
in
cases
where
the
regulatory
authority
wants
to
conduct
a
site
visit.
Suspending
the
time
clock
is
not
necessary
since
we
are
going
with
the
one­
time
extension.
However,
States
could
modify
these
requirements
to
take
into
consideration
unique
program
elements.

Comment:
If
the
Standardize
Permit
rule
goes
into
effect,
we
do
not
agree
that
120
days
is
an
appropriate
time
frame
for
draft
permit
issuance.
Based
upon
our
review
of
previous
Part
B
permit
applications,
we
would
not
feel
comfortable
issuing
a
permit
without
reviewing
all
of
the
pertinent
plans,
secondary
containment
requirements,
inspection
checklists,
etc.

Most
Part
B
permit
applications
for
storage
require
at
least
one
major
revision
based
upon
unsatisfactory
plans,
etc.
It
would
not
be
in
the
best
interest
to
human
health
and
the
environment
to
issue
a
hazardous
waste
permit
without
ensuring
compliance
with
all
regulations.
As
the
draft
regulation
is
proposed,
violations
may
never
be
discovered
until
an
inspector
conducts
the
compliance
inspection.
The
inspections
may
take
weeks
to
review
all
of
the
appropriate
plans,
specifications,
etc.,
which
are
normally
reviewed
and
approved
of
by
the
agency
prior
to
permitting.
Inspectors
currently
conduct
inspections
to
ensure
compliance
with
the
regulations
knowing
that
the
plans
have
already
been
approved.

The
Missouri
Hazardous
Waste
regulations
are
more
stringent
regarding
Health
Profiles
(
for
treatment
facilities),
Habitual
Violator
reviews,
etc.
where
draft
permit
issuance
would
more
than
likely
take
longer
than
120
days.

In
light
of
all
this,
we
feel
it
would
not
only
be
appropriate
but
also
necessary
to
allow
some
sort
of
mechanism
wherein
the
120
day
requirement
could
be
extended.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
The
Agency
believes
that
120
days
for
draft
permit
issuance
should
normally
be
adequate
to
reach
a
draft
permit
decision.
States
may
implement
the
rule
more
stringently
than
the
federal
program
in
order
to
meet
their
specific
needs.
Facilities
where
you
feel
the
need
to
more
thoroughly
review
documents
related
to
site
activities
might
be
more
suitable
for
an
individual
permit.
90
17.
How
Would
the
Regulatory
Agency
Prepare
a
Final
Standardized
Permit?
(
IV.
B)

Comment:
p.
52203,
col.
3
 
EPA
requests
comments
on
whether
it
would
be
appropriate
to
apply
the
current
provisions
of
§
124.15
for
final
issuance
of
an
individual
permit
to
the
process
for
issuing
standardized
permits.

DOE
believes
it
would
be
appropriate
to
apply
the
provisions
of
§
124.15
for
final
issuance
of
a
conventional
RCRA
permit
to
the
process
for
issuing
standardized
permits.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
Onyx
supports
the
recommendation
to
apply
the
current
provisions
of
40
CFR
124.14,
pertaining
to
the
final
issuance
of
an
individual
permit,
to
the
process
for
issuing
standardized
permits.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Comment:
Generally
yes.
The
State
of
Florida
requires
public
notification
of
an
application
for
a
hazardous
waste
permit.
This
step
in
the
review
process
should
not
be
eliminated
on
a
national
level.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
Yes.
The
current
process
is
a
thorough
way
to
ensure
that
all
affected
parties
receive
appropriate
information
and
that
the
public
remains
involved
and
informed
during
the
review
of
the
application.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Comment:
We
feel
that
the
final
permit
issuance
procedures
are
appropriate
for
standardized
permits.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
ETC
agrees
that
the
current
procedures
for
final
issuance
of
an
individual
permit
in
40
CFR
§
124.15
should
also
apply
to
standardized
permits.
66
FR
52203
col
3.
In
particular,
the
Director
should
have
to
respond
to
public
comments
on
the
draft
permit,
establish
an
administrative
record,
and
issue
a
30­
day
effective
date
for
the
final
standardized
permit.
EPA
should
only
deviate
from
the
well­
known
current
procedures
when
an
appropriate
burden
reduction
or
time
savings
can
be
achieved.
For
example,
we
agree
that
if
no
comments
are
received
requesting
a
change
in
the
terms
and
conditions
in
the
supplemental
portion
of
the
permit,
the
standardized
permit
could
become
effective
immediately.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
We
agree
that
the
current
permit
provisions
for
final
issuance
are
adequate.
91
18.
In
What
Situations
Could
Facility
Owners
or
Operators
be
Required
to
Apply
for
an
Individual
Permit?
(
IV.
C)

Comment:
p.
52204,
col.
1
 
The
preamble
explains
that
the
responsible
regulatory
agency
may
require
a
facility
operating
under
a
standardized
RCRA
permit
to
obtain
an
individual
permit
if
the
facility
has
a
poor
compliance
record
while
operating
under
the
standardized
permit.
However,
the
agency
must
provide
the
facility
with
a
description
of
the
reasons
that
led
up
to
the
decision
to
require
an
individual
permit.

(
a)
If
the
responsible
regulatory
agency
is
allowed
to
require
a
facility
to
obtain
a
conventional
RCRA
permit
because
the
facility
has
a
"
poor
compliance
record,"
DOE
believes
that
the
final
regulations
should
specify
uniform
criteria
defining
what
constitutes
a
"
poor
compliance
record."
Such
criteria
would
enable
more
consistent
decisions
concerning
the
necessity
for
facilities
to
obtain
conventional
RCRA
permits.

(
b)
DOE
supports
the
proposed
requirement
that
the
responsible
regulatory
agency
must
provide
notice
to
the
facility
of
the
agency's
decision
to
require
a
conventional
RCRA
permit,
including
a
description
of
the
reasons
that
led
to
the
decision.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
A
poor
compliance
record
is
a
consideration
we
believe
the
State
can
use
in
determining
whether
or
not
a
facility
is
eligible
for
a
standardized
permit.
A
poor
compliance
record,
in
the
judgement
of
the
state,
would
likely
relate
to
the
operations
for
which
the
applicant
is
seeking
a
permit
(
tank,
container,
containment
building
operations),
and
cast
doubt
on
whether
an
applicant
will
consistently
follow
their
permit
conditions.

Comment:
APl
opposes
allowing
interested
parties
to
petition
to
require
facilities
to
obtain
a
full
permit
rather
than
a
standardized
permit
based
on
either
the
failure
of
a
facility
to
meet
the
eligibility
requirements
or
the
facility's
compliance
history.
The
proposed
criteria
for
eligibility
are
straightforward:
limit
standardized
permits
to
management
in
tanks,
containers,
and
containment
buildings,
and
management
processes
that
do
not
include
thermal
treatment.

.
Further,
EPA
retains
the
authority
to
enforce
requirements
whether
or
not
a
permit
is
issued,
and
proposes
to
retain
the
right
to
reject
a
facility's
application
for
a
standardized
permit
based
on
its
concerns
about
compliance
history.
EPA
has
access
to
all
available
information
concerning
compliance
history,
and
the
experience
to
judge
whether
that
history
merits
requiring
a
full
permit,
though
API
believes
that
such
a
decision
would
rarely,
if
ever,
be
appropriate.
Members
of
the
public
will
be
provided
an
opportunity
to
comment
in
a
public
meeting
held
by
the
facility
and
summarized
for
the
regulatory
agency.
EPA
will
then
allow
further
comment
on
its
proposed
decision
to
issue
or
deny
a
permit.
There
is
sufficient
opportunity
for
public
comment
on
both
issues
and
ample
92
opportunity
for
EPA
to
consider
those
comments
during
the
proposed
process.
To
subject
facility
permits
to
public
challenge
based
on
eligibility
and/
or
compliance
history
presupposes
EPA
either
is
incapable
of
or
unwilling
to
do
so
based
on
the
facts.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Response:
The
Agency
disagrees
and
retains
the
same
third
party
petition
rights
that
are
currently
available
in
the
RCRA
program
in
part
124.
We
need
to
explain
our
reasoning
for
reaching
this
decision.
Also,
this
doesn't
address
the
issue
raised
in
the
highlighted
language.

Comment:
We
encourage
EPA
to
establish
clear
criteria
i/
the
Agency
reserves
authority
to
consider
compliance
history
as
a
basis
to
deny
applicants
the
use
of
standardized
permits,
and
to
explain
the
environmental
benefit
of
doing
so.
The
proposed
standardized
permit
would
include
fully
enforceable
technical
standards
applicable
to
the
types
of
hazardous
waste
management
occurring
at
a
facility
as
well
as
site­
specific
corrective
action
requirements.
All
enforcement
authorities
continue
to
apply
regardless
of
the
type
of
permit
a
facility
has,
and
EPA
does
not
propose
to
cede
its
broad
authority
to
inspect
facilities
at
will.
A
decision
by
EPA
to
impose
an
unnecessary
and
unproductive
administrative
burden
by
requiring
a
full
permit
will
simply
divert
resources
from
achieving
environmental
improvements
and
allowing
U.
S.
industry
to
conduct
its
business
with
the
minimum
paperwork
burden
compatible
with
environmentally
sound
management.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Response:
The
final
rule
discusses
and
includes
reasons
for
denying
coverage
under
a
standardized
permit.
Reasons
for
denial
could
include
failure
of
the
facility
owner
or
operator
to
submit
all
the
information
required
under
§
270.275,
or
that
the
facility
does
not
meet
the
eligibility
requirements
for
a
standardized
permit
(
that
is,
the
facility's
activities
are
outside
the
scope
of
the
permit).
The
Director
could
also
deny
coverage
based
on
a
facility's
compliance
history
(
see
§
124.204(
b)).

Consideration
of
compliance
history
reflects
the
self­
implementing
nature
of
the
requirements
that
are
being
imposed
under
the
uniform
portion
of
the
standardized
permit.
A
facility
with
a
demonstrated
history
of
noncompliance
may
not
be
a
viable
candidate
for
a
standardized
permit.
We
believe
that
the
permitting
authority
is
in
the
best
position
to
determine
whether
or
not
a
facility
has
a
compliance
history
that
is
so
poor
as
to
determine
that
they
should
be
ineligible
for
a
standardized
permit.

Comment:
Comment.
DoD
does
not
agree
that
compliance
status
should
be
a
factor
when
determining
whether
a
standardized
permit
is
appropriate.
93
Discussion.
EPA
states
on
page
52203,
"
Given
the
self­
implementing
nature
of
the
proposed
requirements
in
the
uniform
portion
of
the
standardized
permit,
we
believe
that
it
is
important
that
the
facility
demonstrate
its
ability
to
adhere
to
the
regulations.
If
a
facility
has
a
demonstrated
history
of
not
complying
with
applicable
requirements,
it
may
not
be
a
viable
candidate
for
a
standardized
permit."
On
page
52204
it
further
states
that
a
facility
would
be
required
to
apply
for
an
individual
permit
if
the
facility
has
"
a
poor
compliance
record"
while
operating
under
the
standardized
permit.

DoD
believes
non­
compliance
should
be
an
enforcement
matter,
not
an
eligibility
criteria
for
whether
a
facility
qualifies
for
a
standardized
permit.
It
is
highly
likely
that
even
a
well
managed
facility
may
still
be
issued
a
notice
of
violation
though
they
are
in
substantial
compliance.
For
example,
they
may
be
managing
thousands
of
drums
and
may
have
an
error
on
a
single
label
which
results
in
a
notice
of
violation.
Obtaining
a
notice
of
violation
for
such
an
error
should
not
preclude
the
facility
from
obtaining
a
standardized
permit.

Rather
than
using
compliance
history
to
automatically
disqualify
a
facility
from
the
standardized
permit
option,
the
regulatory
agency
should
use
their
own
discretion
as
to
whether
or
not
to
require
a
particular
facility
to
obtain
an
individual
permit.

Recommendation.
Address
non­
compliance
as
an
enforcement
matter
rather
than
as
an
eligibility
criteria
for
a
standardized
permit.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Response:
We
disagree.
As
stated,
compliance
history
is
a
factor
that
should
be
considered
when
issuing
a
standardized
permit.
The
number
of
minor
violations
is
not
the
major
determining
factor
in
judging
the
"
compliance
history."
The
significance
of
the
violation
would
be
the
determining
factor.
We
continue
to
believe
that
a
poor
compliance
record
may
be
grounds
for
denial
of
standardized
permit.
Consideration
of
compliance
history
reflects
the
self­
implementing
nature
of
the
requirements
that
are
being
imposed
under
the
uniform
portion
of
the
standardized
permit.
A
facility
with
a
demonstrated
history
of
noncompliance
may
not
be
a
viable
candidate
for
a
standardized
permit.
We
believe
that
the
permitting
authority
is
in
the
best
position
to
determine
whether
or
not
a
facility
has
a
compliance
history
that
is
so
poor
as
to
determine
that
they
should
be
ineligible
for
a
standardized
permit.

Comment:
Under
what
circumstances
does
EPA
propose
that
invoking
the
provision
to
require
an
individual
permit
be
permissible?
How
would
an
agency
determine
that
would
be
in
the
best
interest
of
human
health
and
the
environment?
(
Jamie
Burroughs
of
the
TSD
Section
and
O.
J.
Wingfield
of
Financial
Responsibility,
Division
of
Solid
Waste
Management,
Tennessee
Department
of
Environmental
and
Conservation,
RCRA­
2001­
0029­
0057)

Response:
Both
of
these
are
site­
specific
concerns
and
are
dependent
specific
factors
at
the
facility.
Consequently,
EPA
has
not
attempted
to
establish
specific
criteria
to
limit
94
the
permitting
authorities
ability
to
take
such
site­
specific
issues
into
account
in
establishing
the
conditions
for
the
permit.

19.
What
are
the
Proposed
Opportunities
for
Public
Comments
and
Hearings?
(
V.
B)

Comment:
p.
52205,
col.
1
 
The
preamble
requests
comments
on
the
adequacy
of
the
proposed
opportunities
for
public
comments
and
hearings
regarding
a
draft
standardized
permit
decision,
and
whether
they
should
be
strengthened
or
even
relaxed
(
given
that
the
management
units
potentially
eligible
for
the
standardized
permits
are
more
straightforward).

DOE
supports
stakeholder
participation
in
government
agency
actions
that
have
the
potential
to
affect
human
health
or
the
environment.
Such
participation
develops
credibility
and
ensures
that
local
community
needs,
concerns,
and
circumstances
are
considered
when
government
agencies
make
potentially
controversial
technical
decisions
on
which
community
members
have
the
right
to
be
heard.
However,
DOE
believes
that
the
public
need
for
the
opportunity
to
comment
(
and
have
those
comments
considered)
prior
to
an
Agency
decision
varies
with
the
nature
of
the
decision.
In
the
case
of
a
standardized
RCRA
permit
decision,
which
would
involve
only
hazardous
waste
being
non­
thermally
treated
or
stored
in
tanks,
containers,
or
containment
buildings,
DOE
believes
public
participation
should
be
that
required
to
comply
with
section
7004(
b)(
2)
of
the
RCRA
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
Public
participation
is
important
and
we
will
finalize
the
proposed
public
participation
procedures.

Comment:
Onyx
agrees
that
the
public
comments
and
hearings
opportunities
as
proposed
are
adequate
to
allow
the
public
input
into
the
permitting
process.
Even
though
the
management
units
associated
with
the
standardized
permits
are
more
straightforward
than
the
thermal
treatment
or
land
disposal
operations,
Onyx
believes
that
the
public
participation
process
should
still
not
be
relaxed.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Response:
We
agree
that
the
current
permit
provisions
for
final
issuance
are
adequate.

20.
How
could
People
Appeal
a
Final
Standardized
Permit
Decision
under
the
Proposal?
(
V.
D)

Comment:
APPEAL
LIMITS.
In
the
proposed
regulations
only
the
supplemental
portion
of
the
permit
conditions
can
be
appealed.
The
Uniform
Portion
of
the
permit
can
not
be
appealed.
If
the
supplemental
conditions
related
to
containers
or
tanks
management
practices
are
appealed,
it
95
raises
a
question
whether
the
facility
can
still
operate
safely
under
the
unappealed
uniform
portion
of
the
permit.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
Just
like
the
current
regulatory
process,
if
an
appealed
section
of
the
permit
is
required
for
safe
management
of
hazardous
waste
in
unit,
then
waste
can
not
be
managed
in
the
unit
until
the
appeal
has
been
adjudicated.
For
a
standardized
permit,
if
the
supplemental
portion
of
the
permit
is
necessary
for
safe
waste
management,
then
waste
can
not
be
managed
unit
the
appeal
is
resolved.

Comment:
The
Public
Should
Have
At
Least
One
Year
To
Appeal
The
Director's
Final
Decision
On
An
EPA
Permit.

EPA's
proposal
to
limit
appeals
of
the
Director's
decision
on
an
EPA
permit
to
30
days
in
inadequate
to
protect
the
public's
ability
to
challenge
deficient
permits
that
threaten
their
communities.
As
noted
above,
RCRA
permits
contain
highly
specific
information,
which
can
be
extremely
difficult
for
citizens
to
analyze.
Furthermore,
if
public
participation
is
curtailed
and
structured
as
the
proposal
contemplates,
the
public
may
have
a
difficult
time
following
the
progression
of
the
permit
through
its
various
stages
of
review
and
modification.
Therefore,
to
protect
the
public's
ability
to
protect
their
communities
from
facilities
that
are
operating
pursuant
to
deficient
permits,
EPA's
proposal
should
to
one
year
from
the
date
of
the
Director's
final
decision.
(
Grant
Cope,
Staff
Attorney,
U.
S.
Public
Interest
Research
Group,
RCRA­
2001­
0029­
0051)

Response:
The
Agency
believes
that
the
current
permit
provisions
for
final
issuance
are
adequate
and
appropriate.
We
also
feel
that
the
existing
public
participation
procedures
are
adequate
and
appropriate
for
standardized
permits.
The
one­
month
time
period
to
appeal
a
final
permit
decision
has
worked
well
for
the
RCRA
for
over
20
years.
We
have
decided
not
to
change
it.

21.
Maintaining
a
Standardized
Permit
(
VI)

Comment:
The
procedures
proposed
for
modification
of
a
standardized
permit
should
greatly
reduce
the
paperwork
burden
for
those
facilities
requesting
a
permit
modification.
Onyx
supports
the
concept
of
defining
class
1
and
2
permit
modifications
as
"
routine"
changes.
However,
Onyx
is
concerned
that
additional
agency
oversight
is
warranted
to
assure
that
new
facility
owner/
operators
are
capable
of
meeting
the
financial
requirements
associated
with
closure.
Onyx
recommends
that
an
ownership
change
be
classified
as
a
"
significant"
change,
rather
than
a
"
routine"
change,
therefore
requiring
agency
approval.
However,
it
should
not
be
necessary
for
public
notice
/
comment
/
hearings
to
be
held
solely
for
a
proposed
change
of
ownership.

Overall,
Onyx
agrees
that
other
significant
changes
should
follow
a
similar
process
and
level
of
agency
review
as
is
required
to
obtain
the
initial
standardized
permit.
(
Thomas
M.
Baker,
96
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Response:
We
have
decided
that
ownership
change
requires
director
approval.
The
routine
modification
procedure
will
be
amended
to
include
director
approval
for
this
situation.
The
final
rule
will
make
a
change
to
what
appeared
in
the
proposal,
adding
a
third
change
category
"
routine
with
prior
agency
approval"
for
class
1
modifications
requiring
approval
and
for
class
2
modifications.

22.
What
Types
of
Changes
could
Owners
or
Operators
Make?
(
VI.
A)

Comment:
Changes
to
the
permit.
"
Routine
changes"
and
"
significant
changes"
require
a
submittal
to
the
Director
and
to
the
mailing
list,
including
state
and
local
governments
under
40
CFR
§
124.212
and
124.213.
However,
the
rule
fails
to
clearly
identify
the
intent.

a.
It
doesn't
describe
what
it
means
by
"
changes."
Are
changes
only
changes
to
the
information
in
the
Part
A?
Do
they
include
changes
in
facility
procedures?
In
the
site­
specific
conditions
in
the
permit?
The
rule
does
talk
about
"
information
submitted
with
the
NOI".
However,
that
doesn't
provide
clarity.

b.

c.
Requiring
an
automatic
public
meeting
seems
inconsistent
with
the
purpose
of
the
standardized
permit,
unless
there
is
actual
concern
in
the
community
surrounding
the
facility.
If
there
is
a
high
level
of
concern
about
a
facility,
then
a
standardized
permit
is
not
appropriate.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
Changes
to
individual
permits
occur
through
the
modification
process.
With
standardized
permit,
changes
occur
using
a
more
streamlined
approach.
As
we
describe
in
the
preamble,
"
The
only
thing
that
would
have
to
be
modified,
typically,
would
be
supplemental
conditions
that
are
unique
to
the
facility.
However,
when
changes
to
the
standardized
permit
are
necessary,
they
will
fall
into
the
categories
described
.
.
."
97
Section
§
124.211
describes
the
three
change
categories
to
standardized
permits
that
are
part
of
the
final
rule,
and
what
are
included
in
each
category.
The
three
categories
of
changes
are:
routine
changes,
routine
changes
with
prior
agency
approval,
and
significant
changes.
Section
124.212
describes
the
process
for
making
changes.

The
final
rule
modifies
the
routine
changes
category
originally
proposed,
and
adds
a
third
category,
routine
changes
requiring
prior
approval.
The
actual
procedures
for
performing
routine
and
significant
changes
are
finalized
as
proposed;
the
only
change
made
is
to
allow
routine
changes
requiring
prior
agency
approval
as
described
below.

The
addition
of
another
category
between
"
routine"
and
"
significant"
should
help
address
the
concern
that
some
class
2
modifications
are
more
like
class
3
modifications
and
should
be
treated
as
significant
changes,
because
now
all
class
2
modifications
will
require
prior
approval
under
the
standardized
permit.
Rather
than
class
2
modifications
being
a
"
routine
change"
as
described
in
the
proposed
rule,
class
2
modifications
will
now
require
prior
approval,
as
will
class
1
modifications
normally
requiring
prior
approval.

While
we
are
adding
a
third
category,
the
overall
permit
change
process
is
more
streamlined
than
the
existing
modification
process.
The
new
category
­­
"
routine
with
prior
approval"
­­
would
not
involve
a
public
comment
or
hearing
process,
as
would
be
the
case
with
regular
class
2
modifications,
but
would
require
a
notification
to,
and
acknowledgment
and
approval
from
the
regulatory
authority,
and
also,
within
90
calendar
days
of
the
approval,
notification
to
the
facility's
mailing
list.
The
Director
would
need
to
respond
within
90
days
of
receiving
the
modification
request,
either
approving
or
denying
the
request.

The
public
meeting
referenced
is
the
pre­
submittal
meeting
­
we
feel
that
is
important
to
keep
the
public
informed
of
changes
at
the
facility.

23.
What
are
the
Proposed
Definitions
of
Routine
and
Significant
Changes?
(
VI.
B)

Comment:
We
agree
with
the
modification
classifications
of
routine
&
significant.
Changes
either
introduce
significant
additional
risk
or
they
don't
irrespective
of
the
type
of
modification.
For
example:
adding
a
new
waste
code
to
a
facilities
acceptance
list
can
either
result
in
increasing
the
risk
{
from
new
handling
processes
or
compatibility
issues}
or
it
does
not.
Many
of
the
modifications
listed
as
Class
2
under
40
CFR
270
involve
no
incremental
risk
element
but
require
a
lengthy
review/
comment
process
any
way.
The
current
proposal
follows
a
more
logical
process
for
modifications.
98
Because
this
proposal
does
away
with
Class
2
modification
for
`
standard'
permits
a
disparity
is
be
created
placing
`
normal'
permit
holder's
at
a
significant
disadvantage.
We
urge
the
EPA
to
address
this
issue
by
revising
the
current
modification
procedures
to
mirror
those
proposed
here
for
all
facilities
not
just
recyclers.
It
makes
no
sense
that
a
`
standard
permit'
holder
can
add
a
waste
stream
with
new
codes
by
letter
while
a
commercial
TSD
must
undergo
a
laborious
review
process.
(
James
Butler,
Regulatory
Compliance
Officer,
Cycle
Chem,
Inc.,
RCRA­
2001­
0029­
0031)

Response:
This
is
beyond
the
scope
of
the
proposal.
We
are
not
going
to
change
modification
procedures
for
all
TSDs.

Comment:
Procedures
for
Modifications.
SOCMA
also
believes
that
EPA's
proposed
thresholds
for
significant
changes
to
the
standardized
permit
are
too
burdensome.
Because
EPA
is
proposing
to
require
another
public
meeting
to
accompany
any
significant
change,
SOCMA
believes
that
a
significant
change
should
only
include
changes
that
reflect
a
truly
significant
change
in
capacity
or
management
of
wastes.
For
example,
from
the
perspective
of
the
many
SOCMA
members
that
generate
only
small
amounts
of
waste,
it
seems
inconsistent
with
the
underlying
principle
of
the
standardized
permit
to
make
a
generator
who
stores
twenty
barrels
of
waste
hold
a
public
meeting
to
add
another
five
barrels
of
storage
capacity.
EPA
should
consider
a
minimum
quantity
threshold
that
must
be
met
before
needing
to
apply
the
significant
change
rule
of
25%
increase
in
capacity.
(
Jeff
Gunnulfsen,
Manager,
Government
Relations,
the
Synthetic
Organic
Chemical
Manufacturers
Association
("
SOCMA"),
RCRA­
2001­
0029­
0038)

Response:
We
disagree.
Changes
to
individual
permits
occur
through
the
modification
process.
With
standardized
permit,
changes
occur
using
a
more
streamlined
approach.
As
we
describe
in
the
preamble,
"
The
only
thing
that
would
have
to
be
modified,
typically,
would
be
supplemental
conditions
that
are
unique
to
the
facility.
While
the
rule
provides
a
mechanism
for
making
changes
to
standardized
permits,
we
envision
that
few
changes
to
the
actual
permit
would
likely
be
necessary.
However,
when
changes
to
the
standardized
permit
are
necessary,
they
will
fall
into
the
categories
described
.
.
."
Section
§
124.211
describes
the
three
change
categories
to
standardized
permits
that
are
part
of
the
final
rule,
and
what
are
included
in
each
category.
The
three
categories
of
changes
are:
routine
changes,
routine
changes
with
prior
agency
approval,
and
significant
changes.
Section
124.212
describes
the
process
for
making
changes.
The
final
rule
modifies
the
routine
changes
category
originally
proposed,
and
adds
a
third
category,
routine
changes
requiring
prior
approval.
The
actual
procedures
for
performing
routine
and
significant
changes
are
finalized
as
proposed;
the
only
change
made
is
to
allow
routine
changes
requiring
prior
agency
approval
as
described
below.
99
Comment:
USWAG
members
understand
first­
hand
that
RCRA
permits
often
need
to
be
modified
over
time
to
reflect
changes
in
facility
design
or
operations
or
administrative
changes
such
as
name
or
ownership
changes.
In
today's
proposal,
the
Agency
specifically
seeks
comment
on
whether
the
categories
it
proposes
for
determining
whether
a
permit
change
is
"
significant"
or
"
routine"
are
appropriate.
Id.
at
52205­
06.
EPA
proposes
to
define
"
routine"
to
include
administrative
and
informational
changes,
changes
in
ownership
or
operational
control,
changes
that
allow
less
than
25%
increase
in
capacity
of
a
hazardous
waste
management
unit,
and
changes
to
allow
storage
of
different
wastes
at
a
facility
so
long
as
the
wastes
undergo
similar
waste
management
processes.
Id.
at
52205.
Alternatively,
"
significant"
changes
would
include
a
greater
than
25%
increase
in
a
unit's
capacity,
as
well
as
managing
wastes
that
were
not
previously
identified
as
being
managed
and
which
require
different
management
processes
that
those
currently
in
use.
Id.

USWAG
supports
these
proposed
definitions,
but
we
strongly
encourage
EPA
to
make
clear
in
the
final
rule
that
simply
managing
wastes
not
previously
identified,
but
managed
in
the
same
qualified
units
as
wastes
previously
identified
in
the
permit,
should
be
considered
a
routine
permit
modification.
The
basis
of
EPA's
proposal
is
not
the
type
of
waste
managed
but
rather
the
storage/
treatment
unit
itself
(
i.
e.,
in
tanks,
containers,
and/
or
containment
buildings).
This
position
is
reflected
by
the
Agency
in
40
C.
F.
R.
§
270.42,
Appendix
I
(
F)(
3)(
b),
where,
for
example,
storage
of
different
wastes
in
containers
that
do
not
require
additional
or
different
management
practices
from
those
already
authorized
in
the
permit
are
a
class
2
modification,
and
would
therefore,
under
this
proposal,
be
a
routine
change.
In
sum,
so
long
as
the
management
unit
is
one
previously
identified
and
used
by
the
permitted
facility,
the
management
of
different
wastes
in
the
qualified
unit
should
be
characterized
as
a
routine
change.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
The
change
you
describe
as
a
class
2
modification,
would
under
the
final
rule,
be
a
routine
change
with
prior
approval.
This
is
a
new
category
from
what
was
in
the
proposed
rule.

The
final
rule
modifies
the
routine
changes
category
originally
proposed,
and
adds
a
third
category,
routine
changes
requiring
prior
approval.
The
actual
procedures
for
performing
routine
and
significant
changes
are
finalized
as
proposed;
the
only
change
made
is
to
allow
routine
changes
requiring
prior
agency
approval
as
described
below.

The
addition
of
another
category
between
"
routine"
and
"
significant"
should
help
address
the
concern
that
some
class
2
modifications
are
more
like
class
3
modifications
and
should
be
treated
as
significant
changes,
because
now
all
class
2
modifications
will
require
prior
approval
under
the
standardized
permit.
Rather
than
class
2
modifications
being
a
"
routine
change"
as
described
in
the
proposed
100
rule,
class
2
modifications
will
now
require
prior
approval,
as
will
class
1
modifications
normally
requiring
prior
approval.

While
we
are
adding
a
third
category,
the
overall
permit
change
process
is
more
streamlined
than
the
existing
modification
process.
The
new
category
­­
"
routine
with
prior
approval"
­­
would
not
involve
a
public
comment
or
hearing
process,
as
would
be
the
case
with
regular
class
2
modifications,
but
would
require
a
notification
to,
and
acknowledgment
and
approval
from
the
regulatory
authority,
and
also,
within
90
calendar
days
of
the
approval,
notification
to
the
facility's
mailing
list.
The
Director
would
need
to
respond
within
90
days
of
receiving
the
modification
request,
either
approving
or
denying
the
request.

Comment:
PERMIT
MODIFICATION
SECTION
124.211
AND
124.212.
A
class
2
permit
modification
is
now
considered
a
"
routine
change"
and
the
facility
operator
can
change
without
obtaining
approval
from
the
Director.
Section
270.41
refers
to
the
approval
or
denial
procedures
specified
in
section
270.42
that
includes
procedures
for
class
2
permit
modification.
If
USEPA
intends
to
streamline
the
"
routine
changes"
process,
these
two
sections
needs
to
be
re­
written.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
We
appreciate
your
comments.
We
are
making
a
change
to
what
appeared
in
the
proposal.
We
are
adding
a
third
category
"
routine
with
prior
agency
approval"
for
class
1
modifications
requiring
approval
and
for
class
2
modifications.

Comment:
All
class
1
and
2
modifications
should
not
be
considered
routine.
Any
modification
that
requires
approval
by
the
department
should
be
considered
significant.
(
William
C.
Gidley,
Waste
Management
Section
Supervisor,
Nebraska
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0046)

Comment:
"
Routine
changes"
as
proposed
would
be
changes
that
qualify
as
class
1
or
2
permit
modifications
according
to
40
CFR
270.42.
Florida
currently
requires
public
notice
of
class
2
and
class
3
modifications.
Class
1
modifications
may
be
made
without
public
notice.
Florida
believes
that
only
Class
1
modifications
should
be
viewed
as
"
routine."
A
change
in
ownership
is
proposed
to
be
a
"
routine"
change
without
requiring
approval
from
the
agency.
The
Department
suggests
that
approval
of
new
ownership
not
be
automatic,
because
of
issues
such
as
financial
assurance,
compliance
history,
etc.,
of
the
new
owner.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

.
101
Comment:
Yes.
The
WMD
supports
the
FR
language.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Comment:
Safety­
Kleen
agrees
with
EPA
on
the
proposed
definitions
of
"
routine"
and
"
significant"
changes.
These
definition
are
consistent
with
the
existing
regulations
and
the
Class
1
and
Class
2
items
represent
the
majority
of
the
modifications
made
to
facilities.
This
proposed
change
in
the
modification
procedure
would
greatly
reduce
the
burden
on
the
permitting
authority
and
the
regulated
community.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Comment:
The
proposed
rule
identifies
a
permit
modification
scheme
that
identifies
Class
1
and
2
permit
modifications
as
routine,
and
Class
3
modifications
as
significant.
Class
2
permit
modifications
can
and
do
involve
changes
that
can
significantly
impact
human
health
and
the
environment.
As
such,
changes
that
could
be
considered
as
Class
2
modifications
should
be
considered
significant.
Clearly,
the
proposed
modification
scheme
fits
neatly
into
the
pre­
application
meeting
requirements
in
40
CFR
124.31(
a).
However,
failure
to
provide
for
direct
agency
oversight
and
approval
associated
with
changes
to
closure
plans,
modified
inspection
schedules
and
frequencies,
elimination
of
monitoring
wells,
etc,
(
all
of
which
are
class
2
permit
modifications)
represents
a
significant
level
of
risk
from
the
standpoint
of
self
regulation.

In
addition,
changes
in
ownership
or
operational
control
should
not
be
considered
"
routine"
changes.
Permitting
authorities
need
to
evaluate
the
new
owner/
operator
to
confirm
that
they
are
operationally
legitimate
and
financially
capable.
There
are
far
too
many
instances
of
new
entities
springing
from
the
ashes
of
bankrupt
entities
with
either
the
same
or
like
management
to
consider
ownership
or
operational
change
a
routine
change.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Response:
The
final
rule
modifies
the
routine
changes
category
originally
proposed,
and
adds
a
third
category,
routine
changes
requiring
prior
approval.
The
actual
procedures
for
performing
routine
and
significant
changes
are
finalized
as
proposed;
the
only
change
made
is
to
allow
routine
changes
requiring
prior
agency
approval
as
described
below.

The
addition
of
another
category
between
"
routine"
and
"
significant"
should
help
address
the
concern
that
some
class
2
modifications
are
more
like
class
3
modifications
and
should
be
treated
as
significant
changes,
because
now
all
class
2
modifications
will
require
prior
approval
under
the
standardized
permit.
Rather
than
class
2
modifications
being
a
"
routine
change"
as
described
in
the
proposed
102
rule,
class
2
modifications
will
now
require
prior
approval,
as
will
class
1
modifications
normally
requiring
prior
approval.

While
we
are
adding
a
third
category,
the
overall
permit
change
process
is
more
streamlined
than
the
existing
modification
process.
The
new
category
­­
"
routine
with
prior
approval"
­­
would
not
involve
a
public
comment
or
hearing
process,
as
would
be
the
case
with
regular
class
2
modifications,
but
would
require
a
notification
to,
and
acknowledgment
and
approval
from
the
regulatory
authority,
and
also,
within
90
calendar
days
of
the
approval,
notification
to
the
facility's
mailing
list.
The
Director
would
need
to
respond
within
90
days
of
receiving
the
modification
request,
either
approving
or
denying
the
request.

Comment:
We
feel
that
the
permit
modification
procedures
should
be
no
different
than
individual
permit
modification
requirements.
We
would
like
to
comment
that
the
permit
modification
table
in
40
CR
270.42
Appendix
I
should
be
revised
to
allow
more
flexibility
for
all
facilities
to
modify
their
permits
without
jumping
through
so
many
hoops.
As
stated
in
this
draft
rule,
there
are
routine
changes
and
there
are
significant
changes.
If
the
permit
modification
table
was
revised
to
include
these
changes
for
all
facilities,
then
separate
requirements
would
not
be
necessary
if
the
proposed
standardized
rule
would
go
into
effect.

As
stated
above,
Missouri
has
more
stringent
regulations
requiring
a
facility
to
submit
habitual
violator
information
prior
to
permitting.
This
would
include
a
change
in
ownership.
Therefore,
all
change
in
ownership
modifications
should
be
with
prior
director's
approval
to
allow
for
habitual
violator
reviews.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
The
ETC
agrees
that
routine
changes
to
the
storage
unit
include
class
1
or
2
permit
modifications
under
40
CFR
§
270.42
Appendix
I.
All
other
changes
would
be
more
significant.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Comment:
The
proposed
rule
identifies
a
permit
modification
scheme
that
identifies
class
1,
and
2
permit
modifications
as
routine,
and
class
3
modifications
as
significant.
Changes
in
ownership
or
operational
control
should
not
be
considered
"
routine"
changes.
Permitting
authorities
need
to
evaluate
the
new
owner/
operator
to
confirm
that
they
are
operationally
legitimate
and
financially
capable.
There
are
many
instances
of
new
entities
emerging
from
bankrupt
entities
with
either
the
same
or
like
management
to
treat
changes
in
ownership
or
operational
control
as
routine.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)
103
Response:
Changing
the
modification
table
is
beyond
scope
of
the
rule.
The
final
rule
modifies
the
routine
changes
category
originally
proposed,
and
adds
a
third
category,
routine
changes
requiring
prior
approval.
The
actual
procedures
for
performing
routine
and
significant
changes
are
finalized
as
proposed;
the
only
change
made
is
to
allow
routine
changes
requiring
prior
agency
approval
as
described
below.

The
addition
of
another
category
between
"
routine"
and
"
significant"
should
help
address
the
concern
that
some
class
2
modifications
are
more
like
class
3
modifications
and
should
be
treated
as
significant
changes,
because
now
all
class
2
modifications
will
require
prior
approval
under
the
standardized
permit.
Rather
than
class
2
modifications
being
a
"
routine
change"
as
described
in
the
proposed
rule,
class
2
modifications
will
now
require
prior
approval,
as
will
class
1
modifications
normally
requiring
prior
approval.

While
we
are
adding
a
third
category,
the
overall
permit
change
process
is
more
streamlined
than
the
existing
modification
process.
The
new
category
­­
"
routine
with
prior
approval"
­­
would
not
involve
a
public
comment
or
hearing
process,
as
would
be
the
case
with
regular
class
2
modifications,
but
would
require
a
notification
to,
and
acknowledgment
and
approval
from
the
regulatory
authority,
and
also,
within
90
calendar
days
of
the
approval,
notification
to
the
facility's
mailing
list.
The
Director
would
need
to
respond
within
90
days
of
receiving
the
modification
request,
either
approving
or
denying
the
request.

Changes
in
ownership
will
be
under
a
routine
change
with
prior
approval,
according
to
§
270.40.

24.
What
are
the
Proposed
Standardized
Permit
Procedures
for
Making
Routine
Changes?
(
VI.
C)

Comment:
p.
52206,
col.
1
 
On
page
52205,
EPA
proposes
to
define
"
routine
changes"
as
any
changes
that
qualify
as
class
1
or
2
permit
modifications
under
40
CFR
270.42
Appendix
I.
On
page
52206,
the
preamble
explains
that
"
routine
changes"
will
be
allowed
without
prior
approval
by
the
responsible
regulatory
agency.
However,
revised
information
must
be
submitted
to
the
regulatory
agency,
if
a
change
amends
any
of
the
information
submitted
to
support
the
standardized
permit
application.

DOE
generally
agrees
with
the
proposed
definition
of
"
routine
changes."
However,
DOE
requests
that
EPA
more
clearly
define
which
routine
changes
would
trigger
the
need
to
submit
revised
information
to
104
the
responsible
regulatory
agency.
This
clarification
could
be
accomplished
by
adding
footnotes
to
the
table
in
40
CFR
270
Appendix
I,
or
by
strengthening
the
text
in
proposed
§
124.212(
a)
(
p.
52245)
in
the
following
manner
(
redline
font
=
addition):

§
124.212
What
Procedures
must
I
follow
to
make
routine
changes?

(
a)
You
can
make
routine
changes
without
obtaining
approval
from
the
Director.
However,
you
must
first
determine
whether
the
routine
change
you
will
make
amends
the
information
you
submitted
under
40
CFR
270.275
with
your
notice
of
intent
to
operate
under
the
standardized
permit.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
generally
agree
with
the
clarifying
Regulatory
language.
and
have
added
similar
language
to
Part
124.

Comment:
Section
VI.
C.
indicates
that
a
facility
having
a
standardized
permit
may
make
routine
changes
to
that
permit,
such
as
a
change
in
ownership
or
operational
control
of
the
facility,
without
prior
approval
of
the
regulatory
agency.
There
is
a
need
for
the
regulatory
agency
to
review
any
changes
in
ownership
or
operational
control
of
a
facility.
Examples
of
issues
that
would
warrant
regulatory
oversight
are
liability,
financial
assurance,
and
compliance
history.
There
are
cases
where
operators
with
inadequate
funds,
etc.
for
liability,
closure
and/
or
post­
closure
to
attempt
to
gain
control
of
hazardous
waste
management
facilities.
Therefore,
a
change
in
ownership
or
operational
control
should
not
be
considered
a
"
routine"
change
and
should
require
approval
by
the
regulatory
agency.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Response:
We
are
making
a
change
to
what
appeared
in
the
proposal.
We
are
adding
a
third
category
"
routine
with
prior
agency
approval"
for
class
1
modifications
requiring
approval
and
for
class
2
modifications.

25.
What
are
the
Proposed
Standardized
Permit
Procedures
for
Making
Significant
Changes?
(
VI.
D)

Comment:
p.
52206,
cols.
2
&
3
 
On
page
52205,
EPA
proposes
to
define
"
significant
changes"
at
a
facility
holding
a
standardized
RCRA
permit
as:
"(
1)
any
changes
that
qualify
as
class
3
permit
modifications
under
40
CFR
270.42
Appendix
I;
(
2)
any
changes
that
are
not
specifically
identified
in
Appendix
I;
or
(
3)
any
changes
that
amend
terms
or
conditions
in
the
supplemental
portion
of
the
standardized
permit"
(
emphasis
added).
On
page
52206,
EPA
explains
that
the
procedures
for
105
making
significant
changes
would
closely
resemble
the
initial
standardized
permitting
process
and
requests
comments
on
the
assumption
that
this
level
of
effort
would
be
needed.

(
a)
DOE
generally
agrees
with
the
proposed
definition
of
"
significant
changes."
However,
the
Department
takes
exception
to
the
notion
that
any
change
to
the
terms
and
conditions
of
the
supplemental
portion
of
the
standardized
permit
should
be
considered
significant.
Because
the
supplemental
portion
of
the
standardized
permit
may
contain
terms
and
conditions
related
to
site­
wide
corrective
action,
DOE
believes
such
terms
and
conditions
could
commonly
include
schedules
and
procedures.
If
so,
under
the
proposed
approach,
even
minor
changes
to
these
schedules
and
procedures
would
trigger
the
initial
standardized
permitting
process,
which
DOE
views
as
an
inappropriate
level
of
effort
for
such
changes.
Accordingly,
DOE
encourages
EPA
to
reformulate
the
proposed
regulations
so
that
minor
changes
to
terms
and
conditions
in
the
supplemental
portion
of
the
standardized
permit
would
be
classified
as
routine
changes
that
could
be
managed
under
the
procedures
proposed
in
§
124.212
(
p.
52245).

(
b)
DOE
is
concerned
that
the
proposed
requirement
in
§
124.213
for
holding
a
pre­
application
public
meeting
before
submitting
a
request
for
a
significant
change
will
be
more
burdensome
than
the
existing
requirements
in
§
270.42(
c)
for
making
Class
3
permit
modifications.
Specifically,
the
existing
§
270.42(
c)
does
not
require
a
pre­
application
public
meeting.
Instead,
it
requires
the
permittee
to
conduct
a
public
meeting
after
submitting
the
modification
request
to
the
responsible
agency.
In
addition,
§
270.42(
c)
does
not
require
that
a
summary
of
the
public
meeting
be
submitted
to
the
responsible
regulatory
agency
in
support
of
a
Class
3
permit
modification.
Hence,
under
the
existing
Class
3
permit
modification
process,
the
public
meeting
process
is
completed
in
parallel
with
the
agency
review
period.
In
comparison,
if
a
pre­
application
meeting
is
required
in
order
to
make
a
significant
change
to
a
standardized
permit,
about
2
to
3
months
would
be
needed
to
complete
the
public
meeting
process
(
i.
e.,
erect
signs,
send
out
meeting
notices,
compile
meeting
information,
and
prepare
meeting
summary)
before
the
request
for
a
significant
change
could
be
submitted
to
the
responsible
regulatory
agency.
Then,
an
additional
120
days
would
be
allowed
for
the
agency
to
issue
its
permit
decision.
Accordingly,
DOE
believes
that
the
review
process
for
a
significant
change
to
a
facility
operating
under
a
standardized
permit
could
potentially
take
longer
than
the
existing
review
process
for
a
Class
3
permit
modification.
Hence,
DOE
suggests
that
for
significant
changes
to
a
facility
operating
under
a
standardized
permit,
the
existing
process
for
Class
3
permit
modifications
in
§
270.42(
c)
should
be
followed,
rather
than
the
initial
permitting
process.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
It
is
important
to
maintain
the
public
notice
procedures
for
significant
modifications
because
of
the
significance
of
the
changes
and
their
potential
effects.
Class
2
level
modifications
should
also
be
reconsidered
because
many
of
those
type
changes
should
be
more
fully
explained
to
the
public
at
the
community
meeting.
(
Jamie
Burroughs
of
the
TSD
Section
and
O.
J.
Wingfield
of
106
Financial
Responsibility,
Division
of
Solid
Waste
Management,
Tennessee
Department
of
Environmental
and
Conservation,
RCRA­
2001­
0029­
0057)

Response:
As
we
describe
in
the
final
rule
preamble,
"
The
only
thing
that
would
have
to
be
modified,
typically,
would
be
supplemental
conditions
that
are
unique
to
the
facility.
While
the
rule
provides
a
mechanism
for
making
changes
to
standardized
permits,
we
envision
that
few
changes
to
the
actual
permit
would
likely
be
necessary.
However,
when
changes
to
the
standardized
permit
are
necessary,
they
will
fall
into
the
categories
described
.
.
."

The
final
rule
modifies
the
routine
changes
category
originally
proposed,
and
adds
a
third
category,
routine
changes
requiring
prior
approval.
The
actual
procedures
for
performing
routine
and
significant
changes
are
finalized
as
proposed;
the
only
change
made
is
to
allow
routine
changes
requiring
prior
agency
approval
as
described
below.

The
addition
of
another
category
between
"
routine"
and
"
significant"
should
help
address
the
concern
that
some
class
2
modifications
are
more
like
class
3
modifications
and
should
be
treated
as
significant
changes,
because
now
all
class
2
modifications
will
require
prior
approval
under
the
standardized
permit.
Rather
than
class
2
modifications
being
a
"
routine
change"
as
described
in
the
proposed
rule,
class
2
modifications
will
now
require
prior
approval,
as
will
class
1
modifications
normally
requiring
prior
approval.

While
we
are
adding
a
third
category,
the
overall
permit
change
process
is
more
streamlined
than
the
existing
modification
process.
The
new
category
­­
"
routine
with
prior
approval"
­­
would
not
involve
a
public
comment
or
hearing
process,
as
would
be
the
case
with
regular
class
2
modifications,
but
would
require
a
notification
to,
and
acknowledgment
and
approval
from
the
regulatory
authority,
and
also,
within
90
calendar
days
of
the
approval,
notification
to
the
facility's
mailing
list.
The
Director
would
need
to
respond
within
90
days
of
receiving
the
modification
request,
either
approving
or
denying
the
request.

26.
Proposed
Part
267
Standards
for
Owners
and
Operators
of
Hazardous
Waste
Facilities
Operating
Under
A
Standardized
Permit
(
VII)
107
Comment:
The
proposed
standardized
permit
rule
needlessly
adds
another
layer
of
regulations.
It
would
have
been
more
appropriate
to
change
the
process
for
submittals
and
review
while
still
requiring
that
the
facilities
comply
with
the
final
facility
standards
in
40
CFR
Part
264.
Anything
else
makes
the
standardized
permit
less
stringent
than
a
current
Part
B
permit.
[
See
also
comments
on
closure
plans.]
The
major
problems
with
adding
a
new
Part
267
are:

(
a)
Adding
a
new,
lengthy
Part
267
makes
already­
unwieldy
regulations
even
longer.

(
b)
Applicants,
permit
writers,
and
inspectors
must
learn
a
third
set
of
regulations
that
apply
to
facilities
(
interim
status
rules,
Part
B
or
"
final
facility
standards"
rules,
and
standardized
permit
rules),
keeping
track
of
the
differences
among
them.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
We
disagree,
we
don't
think
that
the
new
part
267
provisions
are
unwieldy.
For
clarity,
we
put
all
the
relevant
technical
provisions
for
eligible
units
in
one
part,
in
an
attempt
to
make
finding
the
relevant
requirements
easier
for
permit
applicants
and
regulators.

27.
Overview
(
VII.
A)

Comment:
In
general,
Onyx
supports
the
proposal
that
includes
requirements
for
a
facility
that
is
subject
to
a
standardized
permit
to
comply
with
the
applicable
technical
standards
of
Part
264.
In
addition,
Onyx
recommends
that
the
flood
plain
waste
removal
waiver
option
be
removed
from
the
standardized
permit.
Facilities
requiring
such
a
waiver
should
be
required
to
complete
the
application
process
for
an
individual
permit.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Response:
The
Agency
agrees
that
a
waiver
for
locating
within
the
100­
year
flood
plain
is
not
consistent
with
the
intent
of
the
standardized
permit.
The
Agency
further
believes
that
being
able
to
remove
and
relocate
the
waste
from
containers,
tanks,
and
containment
buildings
to
an
approved
site
in
time
to
avoid
a
flood
is
not
practical.
Therefore,
the
provision
for
a
waiver
will
be
removed
from
the
regulations.

28.
What
are
the
proposed
security
requirements?
(
VII.
C.
5)

Comment:
p.
52203,
col.
3
 
EPA
requests
comments
on
whether
it
would
be
appropriate
to
apply
the
current
provisions
of
§
124.15
for
final
issuance
of
an
individual
permit
to
the
process
for
issuing
standardized
permits.
108
DOE
believes
the
security
requirements
in
40
CFR
264.14
are
reasonable
and
sees
no
reason
to
provide
for
an
exemption
at
facilities
operating
under
standardized
permits.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
Based
on
the
responses
received,
the
Agency
has
decided
to
eliminate
the
provision
for
a
waiver
from
the
security
requirements.
Additionally,
the
desire
to
reduce
or
eliminate
waivers
from
the
standardized
permit,
particularly
one
which
the
Agency
admits
would
be
rarely
granted,
lead
to
the
decision
to
change
the
wording
of
Section
267.14
to
not
allow
for
a
waiver.

Comment:
EPA
requests
comment
on
whether
an
exemption
from
security
provisions
is
appropriate
for
facilities
operating
under
standardized
permits.
Id.
at
52209.
We
agree
that
the
facility
security
procedures
proposed
in
section
267.14
are
similar
to
the
security
requirements
currently
found
in
40
C.
F.
R.
§
264.14,
which
are
important
factors
in
the
safe
management
of
hazardous
waste.
However,
where
requisite
conditions
are
met,
an
exemption
from
these
requirements
should
be
available
for
all
standardized
permit
holders.

As
EPA
explains:
The
proposed
§
267.14
provision
contains
two
conditions
for
the
exemption:
(
1)
If
authorized
entry
will
not
result
in
injury
to
people
or
livestock
who
might
enter
the
facility,
and
(
2)
if
such
entry
will
not
result
in
injury
to
the
environment.
 
Because
past
experience
shows
us
that
these
two
conditions
are
rarely
satisfied,
we
do
not
expect
many
of
you
would
be
able
to
qualify
for
the
proposed
exemption
from
security
requirements.
Id.

USWAG
fully
supports
this
exemption
where
both
qualifying
conditions
are
met
because
all
regulated
parties
should
have
the
choice
to
try
and
take
advantage
of
the
exemption,
even
if
only
limited
numbers
of
regulated
parties
ultimately
qualify.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
The
Agency
has
decided
to
eliminate
the
provision
for
a
waiver
from
the
security
requirements.
Allowing
for
a
waiver
will
detract
from
the
streamlined
permitting
process.
Additionally,
the
desire
to
reduce
or
eliminate
waivers
from
the
standardized
permit,
particularly
one
which
the
Agency
admits
would
be
rarely
granted,
lead
to
the
decision
to
change
the
wording
of
Section
267.14
to
not
allow
for
a
waiver.
109
Comment:
The
proposal
requests
comment
on
a
number
of
waivers/
exemptions
that
might
be
available
under
a
standardized
permit
(
security,
flood
plain,
etc.).
Waivers/
exemptions
under
the
standardized
permit
should
be
very
specific
and
limited.
The
standardized
permit
is
intended
to
be
a
nationally
consistent,
streamlined
process.
The
availability
and
submission
of
waiver
applications
subverts
the
purpose
of
the
standardized
permit.
Moreover,
the
standardized
permit
should
be
available
only
if
you
do
not
have
extenuating
circumstances.
If
a
facility
needs
special
consideration
or
does
not
want
to
comply
with
established
minimum
standards,
they
should
be
required
to
seek
an
individual
permit.

We
believe
that
the
standardized
permits
success
for
facilities
and
regulatory
agencies
is
inextricable
linked
to
how
straight
forward
and
clear
the
requirements
are
articulated
in
the
Rule.
The
standardized
permit
is
premised
on
the
concept
that
everyone
knows
what
is
required
of
storage
facilities.
It
is
not
a
particularly
innovative
area
and
there
is
consequently
no
need
to
make
the
requirements
to
obtain
a
standardized
permit
overly
board.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
The
Agency
agrees,
and
has
eliminated
waiver
provisions
for
location
standards,
security
requirements.

Comment:
No.
Security
provisions
are
equally
applicable
regardless
of
the
type
of
permit
issued.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Response:
Based
on
the
responses
received,
the
Agency
has
decided
to
eliminate
the
provision
for
a
waiver
from
the
security
requirements.
Additionally,
the
desire
to
reduce
or
eliminate
waivers
from
the
standardized
permit,
particularly
one
which
the
Agency
admits
would
be
rarely
granted,
lead
to
the
decision
to
change
the
wording
of
Section
267.14
to
not
allow
for
a
waiver
Comment:
Comment.
DoD
does
not
support
self­
certification
of
the
exemption
from
security
provisions
for
facilities
operating
under
a
standardized
permit.

Discussion.
EPA
proposes
an
exemption
from
security
requirements
(
1)
if
unauthorized
entry
will
not
result
in
injury
to
people
or
livestock
who
may
enter
the
facility
and
(
2)
if
such
entry
will
not
result
in
injury
to
the
environment.

We
believe
the
proposed
exemption
is
too
vague
because
the
term
"
injury"
is
subject
to
interpretation.
The
argument
can
be
made
that
all
hazardous
waste
has
the
potential
to
injure
the
environment
if
spilled
and
therefore
waste
would
never
be
able
to
qualify
for
the
exemption.
We
110
believe
concurrence
on
the
part
of
the
regulator
should
be
required
in
order
to
waive
security
provisions.

Recommendation.
Establish
a
system
which
requires
concurrence
from
the
regulatory
agency
to
qualify
for
an
exemption
from
security
requirements.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Comment:
It
has
been
EPA's
experience
that
the
two
conditions
for
exemption
from
security
requirements
are
seldom
met,
and
yet
facilities
are
continually
willing
to
"
demonstrate"
to
EPA
that
they
in
fact
meet
the
conditions.
Therefore
the
Department
concludes
that
to
allow
a
facility
to
maintain
at
its
facility
a
"
self­
certification"
that
it
qualifies
for
the
exemption
is
to
invite
difficulties
and
enforcement
actions.
What
would
be
the
mechanism
to
invalidate
a
"
self­
certification"
that
did
not
in
fact
justify
the
exemption?
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
Safety­
Kleen
believes
that
in
light
of
the
September
11
attack
and
the
heightened
awareness
on
security
at
facilities
who
store
hazardous
materials
and
hazardous
waste,
EPA
should
require
that
any
exemption
request
from
security
be
submitted
to
the
permitting
agency
for
review
and
approval
as
currently
written
in
40
CFR
§
264.14.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Comment:
Exemptions
from
the
security
provisions
should
not
be
allowed
under
the
standardized
permit.
The
goal
of
the
standardized
permit
is
to
reduce
the
review
time
required
by
the
authorized
Agency.
Any
exemption
from
the
standard
requirements
will
only
add
to
the
time
required
to
review
the
permit,
thus
defeating
the
purpose.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
We
feel
that
the
intention
of
this
rule
was
to
provide
a
streamline
permitting
process
for
facilities
that
meet
all
the
requirements
of
the
regulations.
Once
exemptions
and
waivers
are
allowed
the
rule
starts
to
diverge
from
its
intended
purpose.
EPA
states
on
66
FR
52209
that
"...
we
do
not
expect
many
of
you
would
be
able
to
qualify
for
the
proposed
exemption
from
security
requirements."
However
the
proposed
rule
still
allows
for
facilities
to
self­
certify
that
they
meet
the
exemption.
This
seems
to
be
contradictory
thinking.
As
stated
above,
we
do
not
feel
that
any
exemptions
should
be
allowed
under
standardized
permits.
However,
if
exemptions
are
allowed
they
should
be
reviewed
by
the
regulatory
agency
and
not
"
self­
certified".
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
Recently,
both
the
Administration
and
Congress
have
made
clear
that
facilities
handling
hazardous
materials
must
become
even
more
vigilant,
not
lessen
security
procedures,
to
prevent
both
unknowing
and
unauthorized
entry.
The
TSD
facility
security
procedures
in
the
RCRA
regulations
are
important
measures
to
ensure
the
safe
management
of
hazardous
waste.
It
would
be
highly
inappropriate
for
EPA
to
allow
facilities
to
self­
certify
an
exemption
from
these
security
111
requirements
without
the
Director's
review
and
approval.
66
FR
52209
col
2.
The
ETC
strongly
opposes
the
proposed
exemption
from
security
requirements
in
§
267.14.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
Based
on
the
responses
received,
and
on
the
desire
to
maintain
a
streamlined
permitting
process,
the
Agency
has
decided
to
eliminate
the
provision
for
a
waiver
from
the
security
requirements.
Although
a
self­
certifying
waiver
would
not
contribute
to
an
increase
in
the
time
required
to
review
the
permit
application,
compelling
arguments
were
made
for
not
allowing
the
waiver
to
be
self­
certifying.
A
waiver
process
that
involves
concurrence
by
the
regulatory
agency
would
delay
the
approval
of
a
standardized
permit.
Overall,
the
desire
to
reduce
or
eliminate
waivers
from
the
standardized
permit,
particularly
one
which
the
Agency
admits
would
be
rarely
granted,
lead
to
the
decision
to
change
the
wording
of
Section
267.14
to
not
allow
for
a
waiver.

29.
What
are
the
proposed
standards
for
selecting
the
location
of
my
facility?
(
VII.
C.
9)

Comment:
See
response
to
item
5.
above.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)
[
We
feel
that
the
intention
of
this
rule
was
to
provide
a
streamline
permitting
process
for
facilities
that
meet
all
the
requirements
of
the
regulations.
Once
exemptions
and
waivers
are
allowed
the
rule
starts
to
diverge
from
its
intended
purpose.
As
stated
above,
we
do
not
feel
that
any
exemptions
should
be
allowed
under
standardized
permits.]

Response:
The
Agency
agrees
that
a
waiver
for
locating
within
the
100­
year
flood
plain
is
not
consistent
with
the
intent
of
the
standardized
permit.
The
Agency
further
believes
that
being
able
to
remove
and
relocate
the
waste
from
containers,
tanks,
and
containment
buildings
to
an
approved
site
in
time
to
avoid
a
flood
is
not
practical.
Therefore,
a
waiver
for
locating
within
the
100­
year
flood
plain
will
be
not
be
included
in
the
standardized
permit
regulations.

Comment:
p.
52210,
cols.
1
&
2
 
The
preamble
explains
that
the
proposed
technical
standards
for
facilities
operating
under
a
standardized
permit
would
require
compliance
with
location
standards.
These
standards
would
allow
location
within
a
100­
year
flood
plain
only
if
either
the
facility
was
designed,
constructed,
operated,
and
maintained
to
prevent
washout
of
any
hazardous
waste
or
the
facility
obtained
a
waiver
from
the
Director
based
on
a
demonstration
that
the
waste
would
be
safely
removed
before
flood
waters
could
reach
the
facility.
In
any
event,
the
facility
would
be
required
to
submit
the
information
required
by
the
location
standards
to
the
permitting
agency
with
its
Notice
of
Intent.
112
DOE
believes
it
would
be
inappropriate
to
include
the
flood
plain
waste
removal
waiver
in
the
technical
standards
for
facilities
operating
under
a
standardized
permit
because
it
would
be
unreasonable
to
expect
the
responsible
regulatory
agency
to
review
a
waiver
request
within
the
proposed
time
limits
for
issuing
an
initial
standardized
permit
decision.
However,
if
EPA
decides
to
include
the
waiver
in
the
final
rule,
DOE
agrees
that
a
facility
should
be
compelled
to
submit
a
demonstration
with
its
Notice
of
Intent
that,
in
the
event
of
a
100­
year
flood,
waste
at
the
facility
could
be
safely
removed
before
flood
water
reaches
the
facility.
Furthermore,
DOE
believes
that,
unless
the
waiver
is
being
requested,
it
should
not
be
necessary
for
all
information
required
by
the
facility
location
standards
(
see
proposed
§
267.18)
to
be
submitted
to
the
permitting
agency
with
the
Notice
of
Intent.
EPA
argues
that
the
location
of
a
facility
is
an
important
site­
specific
aspect
of
safe
waste
management
which
requires
review
by
the
permitting
agency.
Notwithstanding,
DOE
sees
no
reason
for
EPA
to
assume
that
an
applicant
for
a
standardized
permit
would
be
less
competent
to
certify
that
his/
her
facility
has
been
located
in
the
manner
required
by
proposed
§
267.18
than
he/
she
would
be
to
certify
compliance
with
other
technical
standards
contained
in
proposed
40
CFR
part
267,
many
of
which
could
also
involve
methods
of
compliance
that
would
vary
from
site
to
site.
Hence,
in
the
absence
of
a
waiver
request,
DOE
believes
it
should
not
be
necessary
for
a
facility
seeking
a
standardized
permit
to
submit
any
information
related
to
the
location
standards
with
the
Notice
of
Intent.
Accordingly,
if
EPA
decides
to
retain
the
flood
plain
waste
removal
waiver
in
the
final
rule,
DOE
requests
that
EPA
consider
modifying
proposed
§
270.275(
c)
(
p.
52266)
in
the
following
manner
(
redline
font
=
addition;
strikeout
font
=
deletion)

§
270.275
What
information
must
I
submit
to
the
permitting
agency
to
support
my
standardized
permit
application?

The
information
in
paragraphs
(
a)
through
(
f)
of
this
section
will
be
the
basis
of
your
standardized
permit
application.
You
must
submit
it
to
the
Director
when
you
submit
your
Notice
of
Intent
under
40
CFR
124.202(
b)
requesting
coverage
under
a
RCRA
standardized
permit:

*
*
*
*
*

(
c)
Documentation
of
compliance
with
the
location
standards
of
40
CFR
267.18
and
§
270.14(
b)(
11).
For
facilities
seeking
a
flood
plain
waste
removal
waiver
under
§
267.18(
b),
a
demonstration
that
in
the
event
of
a
100­
year
flood,
waste
at
the
facility
could
be
safely
removed,
before
flood
water
reaches
the
facility,
to
a
location
where
the
wastes
will
not
be
vulnerable
to
flood
waters.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
USWAG
strongly
urges
EPA
to
retain
proposed
section
267.18,
which
allows
facilities
to:
(
1)
locate
within
a
100­
year
flood
plain
as
long
as
the
facility
meets
proper
design,
construction,
and
operating
requirements
to
prevent
washout,
and
(
2)
seek
a
waiver
from
these
requirements
if
the
facility
can
demonstrate
that
it
can
remove
the
waste
before
flood
waters
can
reach
the
facility.
Id.
at
52210.
113
We
understand
that
submitting
and
approving
any
waiver
involves
a
lengthy
Agency
review
process
that
may
defeat
the
streamlined
permitting
goal
of
the
standardized
permit.
Id.
USWAG
believes,
however,
that
the
opportunity
to
seek
a
flood
plain
removal
waiver
should
be
available
to
maximize
the
regulatory
relief
potentially
afforded
by
this
rulemaking.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Comment:
The
proposal
requests
comment
on
a
number
of
waivers/
exemptions
that
might
be
available
under
a
standardized
permit
(
security,
flood
plain,
etc.).
Waivers/
exemptions
under
the
standardized
permit
should
be
very
specific
and
limited.
The
standardized
permit
is
intended
to
be
a
nationally
consistent,
streamlined
process.
The
availability
and
submission
of
waiver
applications
subverts
the
purpose
of
the
standardized
permit.
Moreover,
the
standardized
permit
should
be
available
only
if
you
do
not
have
extenuating
circumstances.
If
a
facility
needs
special
consideration
or
does
not
want
to
comply
with
established
minimum
standards,
they
should
be
required
to
seek
an
individual
permit.
We
believe
that
the
standardized
permits
success
for
facilities
and
regulatory
agencies
is
inextricable
linked
to
how
straight
forward
and
clear
the
requirements
are
articulated
in
the
Rule.
The
standardized
permit
is
premised
on
the
concept
that
everyone
knows
what
is
required
of
storage
facilities.
It
is
not
a
particularly
innovative
area
and
there
is
consequently
no
need
to
make
the
requirements
to
obtain
a
standardized
permit
overly
broad.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)
Comment:
Yes.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Comment:
No,
the
flood
plain
waste
removal
waiver
should
not
be
available
in
the
context
of
a
standardized
permit.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
Facilities
located
in
the
100­
year
flood
plain
should
not
be
eligible
for
the
standardized
permit.
The
review
of
either
the
flood
proofing
equipment
or
the
waste
removal
plan
can
be
quite
time
consuming.
Also,
development
of
the
waste
removal
plan
requires
that
the
facility
has
adequate
notice
that
a
flood
will
occur.
It
is
not
always
possible
to
get
adequate
notice
of
an
upcoming
flood,
particularly
if
it
happens
during
non­
operating
hours.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
EPA
should
retain
the
provision
in
the
standardized
permit
rules
that
will
allow
a
facility
to
be
located
in
a
100­
year
flood
plain,
provided
the
operator
can
make
a
demonstration
that
wastes
can
be
removed
before
flood
waters
reach
the
facility.
66
FR
52210
col
2.
This
waiver
provision
has
been
included
in
the
Part
264
and
265
standards
since
1980
and
has
not
presented
any
significant
difficulties.
Such
a
provision
is
particularly
appropriate
for
drum
and
container
storage
facilities.
The
demonstration
and
approval
necessary
to
gain
the
waiver
is
straight
forward
and
should
not
be
a
lengthy
process.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)
114
Response:
The
final
rule
does
not
retain
the
flood
plain
waste
removal
waiver.
Similar
to
our
reasons
for
not
having
an
exemption
from
the
security
provisions
of
§
267.14,
we
believe
that
having
a
waiver
from
the
location
standards
would
only
add
to
the
complexity
of
what
is
intended
to
be
a
streamlined
permit
process.
If
allowed,
waivers
would
require
review
and
approval
stages,
adding
to
the
time
necessary
for
issuance
of
a
draft
permit,
which
detracts
from
the
intent
of
permit
streamlining.
Therefore,
we
are
not
providing
for
a
waiver
from
the
flood
plain
location
standards
in
the
final
rule.

30.
How
would
I
ensure
access
for
personnel
and
equipment
during
emergencies?
(
VII.
D.
5)

Comment:
p.
52211,
col.
1
 
The
preamble
states
that
provisions
for
a
waiver
from
the
aisle
spacing
requirement
in
proposed
§
267.35
is
not
provided
because
EPA
does
not
believe,
under
the
proposed
standardized
permit,
that
a
situation
would
arise
when
sufficient
aisle
space
should
not
nor
could
not
be
provided.

DOE
notes
that
the
waiver
from
the
aisle
spacing
requirement
in
the
existing
§
264.35
(
on
which
the
proposed
§
267.35
is
modeled)
was
not
intended
as
a
mechanism
for
approval
of
insufficient
aisle
space.
Instead,
the
waiver
acknowledges
that
there
are
situations
in
which
it
might
not
be
necessary
for
spill
control
equipment
or
fire
protection
equipment
to
access
an
aisle.
For
example,
if
a
storage
room
is
filled.
11
with
waste
lead
bricks
in
containers,
it
is
not
possible
for
the
lead
bricks
to
leak
from
the
containers
or
catch
fire.
In
this
instance,
it
is
reasonable
to
conclude
that
sufficient
aisle
space
exists
if
the
aisle
is
wide
enough
to
accommodate
a
person
on
foot
performing
inspections
(
i.
e.,
aisle
width
of
approximately
2
feet).
Notwithstanding,
if
§
267.35
is
finalized
as
proposed,
a
storage
facility
for
lead
brick
containers
that
operates
under
a
standardized
permit
would
be
forced
to
have
aisles
wide
enough
to
allow
access
for
spill
control
and
fire
protection
equipment,
even
though
spills
and
fire
are
not
possible
threats.
Accordingly,
DOE
recommends
that
the
waiver
provision
in
existing
§
264.35
be
included
in
the
finalized
version
on
§
267.35.
Alternatively,
DOE
suggests
that
EPA
consider
modifying
proposed
§
267.35
(
p.
52249)
in
the
following
manner
to
indicate
that
a
facility
must
only
provide
space
for
types
of
equipment
that
could
possibly
be
needed
considering
the
type
of
waste
being
managed
(
redline
font
=
addition):

§
267.35
How
do
I
ensure
access
for
personnel
and
equipment
during
emergencies?

You
must
maintain
enough
aisle
space
to
allow
the
unobstructed
movement
of
personnel,
fire
protection
equipment,
spill
control
equipment,
and
decontamination
equipment
to
any
area
of
facility
operation
in
an
emergency,
as
appropriate
considering
the
type
of
waste
being
stored
or
treated.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
The
Agency
agrees
with
the
commentor
and
has
made
the
recommended
changes
to
final
regulation.
115
31.
When
would
I
need
to
manifest
my
waste?
(
VII.
F.
1)

Comment:
p.
52212,
col.
1
 
The
preamble
explains
that
because
the
part
267
standardized
permit
regulations,
as
proposed,
would
not
apply
to
facility
owners
and
operators
who
receive
waste
from
off­
site,
the
requirements
currently
found
in
§
264.71(
a),
(
b),
and
(
d)
("
Use
of
Manifest
System")
are
not
included
in
§
267.71
("
What
information
must
I
keep?").
EPA
requests,
however,
comments
on
whether
the
scope
of
the
proposed
standardized
permit
regulations
should
be
expanded
to
include
facilities
that
treat
or
store
waste
generated
off­
site.

For
the
reasons
given
in
Specific
Comment
I.
E.
3,
item
2,
DOE
encourages
EPA
to
expand
the
applicability
of
the
RCRA
standardized
permit
to
include
centralized
facilities
at
which
the
owner/
operator
stores
and/
or
treats
its
own
waste
generated
at
several
locations.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
As
described
in
previous
responses
to
comments,
we
are
expanding
the
scope
of
the
rule
to
also
include
facilities
receiving
wastes
from
off­
site
generators
that
are
under
the
same
ownership
as
the
receiving
facility.
Therefore,
the
final
rule
will
include
language
regarding
manifest
requirements.

32.
What
information
would
I
need
to
keep?
(
VII.
F.
2)

Comment:
Comment.
The
preamble
discusses
record
retention,
but
corresponding
language
in
proposed
regulations
in
40
CFR
267.71
and
267.72
do
not
state
record
retention
times.

Discussion.
The
preamble
discussion
on
page
52212,
implies
the
purpose
of
section
267.71
is
to
address
the
information
that
must
be
kept
and
the
retention
period
and
the
purpose
of
267.72
is
to
address
which
records
must
be
furnished
to
the
permitting
authority.
However,
related
language
in
proposed
267.71
and
267.72
do
not
mirror
this
discussion.
Neither
267.71
nor
267.72
state
the
record
retention
period,
and
it
is
not
clear
whether
record
retention
should
be
discussed
in
267.71
or
267.72.
Based
on
the
preamble
discussion,
we
believe
the
intent
was
to
state
within
proposed
267.71
that
operating
records
must
be
maintained
until
final
closure
of
the
facility.
If
this
is
the
case,
then
the
heading
of
proposed
267.72
should
merely
be
"
Who
sees
the
records"
and
should
not
include
"
and
how
long
do
I
keep
them".
The
retention
time
would
be
addressed
within
section
267.71.

Recommendation.
DoD
suggests
EPA
identify
the
required
time
period
for
record
retention
by
the
facility,
that
the
duration
be
consistent
with
the
record
retention
requirements
for
facilities
with
individual
permits,
and
that
the
section
headings
be
modified
to
properly
describe
the
section
content.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)
116
Response:
We
appreciate
your
comments.
As
you
indicated,
and
as
is
discussed
in
§
267.71,
certain
information
must
be
kept
at
the
facility
until
closure.
Section
267.72
further
states
that
this
retention
time
extends
automatically
during
the
course
of
unresolved
enforcement
action
or
as
requested
by
the
administrator.
Section
267.71
discusses
retention
times,
the
focus
of
the
section
is
to
indicate
what
information
must
be
kept
in
the
operating
record
at
the
facility,
while
§
267.72
provides
further
information
on
retention
times.
Also,
the
retention
times
discussed
in
§
§
267.71
and
267.72
are
the
same
as
discussed
in
§
§
264.73
and
264.74.

33.
Why
would
the
proposed
corrective
action
requirements
be
included
in
the
supplemental
portion
of
the
standardized
permit?
(
VII.
G.
4)

Comment:
Facilities
should
not
be
allowed
to
conduct
their
own
RFAs
or
catalog
and
evaluate
their
own
SWMUs.
Experience
has
shown
that
EPA
and
facilities
differ
considerably
in
what
they
call
Solid
Waste
Management
Units
and
their
action
status.
There
can
be
no
standard
permit
unless
all
SMWUs
are
determined
to
be
No
Further
Action.
To
allow
a
facility
to
make
its
own
NFA
determinations
is
ludicrous.
(
Donald
Webster,
RCRA­
2001­
0029­
0029)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
p.
52213,
cols.
2
&
3
 
The
preamble
explains
that,
because
most
sites
in
the
RCRA
universe
are
unique,
EPA
chose
to
utilize
the
same
site­
specific
flexibility
for
corrective
action
under
standardized
permits
as
is
currently
available
under
non­
standardized
permits,
rather
than
attempting
to
develop
generic
standards
for
corrective
action.
The
Agency
requests
comments
on
this
approach
and
also
solicits
suggestions
for
standardized
permit
conditions
that
might
be
used
for
corrective
action
under
standardized
permits.

DOE
supports
site­
specific
flexibility
for
corrective
action
under
standardized
permits.
However,
DOE
believes
EPA
could
streamline
the
corrective
action
process
under
many
standardized
permits
by
providing
optional
generic
standards
for
corrective
action
that
could
be
incorporated
into
a
standardized
permit
if
the
facility
owner/
operator
provides
certain
information
pertinent
to
corrective
action
with
his/
her
Notice
of
Intent.
For
example,
EPA
might
develop
generic
standards
establishing
presumptive
remedies
for
common
categories
of
sites.
Then,
if
the
facility
owner/
operator
provided
information
with
his/
her
Notice
of
Intent
demonstrating
that
corrective
action
at
the
facility
would
involve
only
sites
within
these
common
categories,
the
responsible
regulatory
agency
could
opt
to
incorporate
the
applicable
generic
standards
establishing
the
appropriate
presumptive
remedies.
If
the
facility
owner/
operator
did
not
include
such
information
117
in
the
Notice
of
Intent,
the
responsible
regulatory
agency
would
include
the
corrective
action
requirements
for
the
facility
in
the
supplemental
portion
of
the
standardized
permit.
Another
possibility
would
be
for
EPA
to
develop
generic
standards
for
instituting
a
specified
streamlined
approach
to
corrective
action
at
sites
with
certain
demonstrated
characteristics.
For
example,
DOE
notes
that
in
the
1996
Advanced
Notice
of
Proposed
Rulemaking
("
Corrective
Action
for
Solid
Waste
Management
Units
at
Hazardous
Waste
Management
Facilities,"
61
FR
19432;
May
1,
1996)

EPA
asked
for
comments
on
the
appropriateness
of
using
the
American
Society
for
Testing
and
Materials
(
ASTM)
standard,
ASTM
E1739­
95
("
Risk
Based
Corrective
Action
Applied
at
Petroleum
Release
Sites"
(
referred
to
as
RBCA)
in
the
RCRA
corrective
action
program
to
address
petroleum
releases
from
sources
other
than
leaking
underground
storage
tanks
or
to
address
releases
of
chemicals
other
than
petroleum
products
(
61
FR
19460).
EPA
does
not
report
on
the
results
of
its
1996
comment
request
in
this
standardized
permit
proposed
rule.
Nevertheless,
DOE
notes
that
the
underground
storage
tank
(
UST)
RBCA
program
is
now
quite
mature
and
addresses
such
issues
as
the
selection
of
target
levels
for
remediation,
the
off­
site
movement
of
constituents
of
concern,
the
use
of
institutional
controls
in
RBCA,
and
other
topics
closely
related
to
RCRA
corrective
action.
Therefore,
DOE
encourages
EPA
to
take
this
opportunity
to
develop
optional
generic
standards
whereby
a
RBCA­
like
approach
to
corrective
action
at
a
facility
could
be
incorporated
into
the
uniform
portion
of
the
standardized
permit
if
an
owner/
operator
provides
information
with
his/
her
Notice
of
Intent
demonstrating
eligibility
of
the
site
to
use
the
RBCA­
like
approach.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
The
Agency
appreciates
commenter's
ideas,
but
is
not
in
a
position
to
act
on
any
of
them
in
this
final
rule.
The
Agency
did
not
develop
or
discuss
any
specific
standardized
permit
conditions
in
the
proposed
rule,
nor
have
commenters
provided
such
specifics.
The
Agency
is
not
prepared
to
develop
such
specifics
at
this
time.
Moreover,
presumptive
remedies
and
generic
standards
for
streamlined
approaches
to
corrective
action
are
based
on
factors
such
as
type
of
waste
and
media
requiring
cleanup
­­
factors
unrelated
to
the
eligibility
criteria
for
standardized
permitted
facilities.
Thus,
presumptive
remedies
and
generic
standards
for
streamlined
approaches
to
corrective
action
are
program­
wide
issues
that
the
Agency
believes
are
better
addressed
in
other
forums.

This
final
rule
provides
that
corrective
action
conditions,
which
were
developed
specifically
for
that
facility,
be
included
in
the
supplemental
portion
of
the
standardized
permit.
The
Agency
believes
this
approach
balances
the
Agency's
desire
to
streamline
the
permitting
process
against
the
need
for
flexibility
to
fashion
remedies
that
are
protective
of
human
health
and
the
environment
and
that
reflect
the
conditions
and
complexities
of
each
facility
requiring
corrective
action.

Comment:
As
EPA
recognizes,
the
site­
specific
nature
of
corrective
action
demands
that
EPA
avoid
imposition
of
unnecessary
general
requirements
through
standardized
permits.
See
id.
at
118
52213.
By
deferring
to
state
alternate
cleanup
authorities,
EPA
will
defer
to
the
detailed,
site­
specific
corrective
action
requirements
of
those
programs.
Thus,
there
is
no
need
for
elaborate
provisions
on
corrective
action
in
an
EPA
permit.
Rather,
EPA
should
incorporate
the
relevant
state
program
by
reference
in
a
streamlined
provision
in
the
standardized
permit.
There
is
no
need
for
detailed
treatment
in
a
supplemental
portion.
However,
if
EPA
declines
to
adopt
the
Deferral
Method,
a
supplemental
section
of
the
permit
would
be
necessary.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
The
Agency
appreciates
USWAGs
comments
related
to
deferring
to
State
alternate
authorities.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
As
we
stated
previously,
ADEQ
thinks
that
it
is
not
necessary
to
include
detailed
site
specific
corrective
action
requirements
in
the
draft
or
final
permit
decision.
Statutory
requirements
for
addressing
past
waste
management
practices
can
be
accomplished
by
placing
general
requirements
in
the
draft
and
final
permit
decisions
which
will
establish
the
obligation
of
the
permittee
to
conduct
corrective
action
and
a
mechanism
by
which
the
detailed
site
specific
corrective
action
requirements
are
developed
under
a
compliance
schedule
in
the
permit.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Response:
The
Agency
appreciates
ADEQ's
comments,
however,
they
fall
outside
the
scope
of
this
rulemaking.
This
rule
does
not
address
issues
related
to
the
mechanisms
of
writing
corrective
action
requirements
into
RCRA
permits.

For
standardized
permits,
this
rule
provides
that
corrective
action
conditions,
which
were
developed
specifically
for
that
facility,
be
included
in
the
supplemental
portion
of
the
standardized
permit.
The
Agency
believes
that
approach
balances
the
Agency's
desire
to
streamline
the
permitting
process
against
the
need
for
flexibility
to
fashion
remedies
that
are
protective
of
human
health
and
the
environment
and
that
reflect
the
conditions
and
complexities
of
each
facility
requiring
corrective
action.

Comment:
The
Department
agrees
that
corrective
action
conditions
should
be
site­
specific
and
incorporated
into
the
supplemental
portion
of
the
standardized
permit.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)
119
Response:
The
Agency
agrees
with
this
commenter.
This
final
rule
provides
that
corrective
action
conditions,
which
were
developed
specifically
for
that
facility,
be
included
in
the
supplemental
portion
of
the
standardized
permit.
The
Agency
believes
that
this
approach
balances
the
Agency's
desire
to
streamline
the
permitting
process
against
the
need
for
flexibility
to
fashion
remedies
that
are
protective
of
human
health
and
the
environment
and
that
reflect
the
conditions
and
complexities
of
each
facility
requiring
corrective
action.

Comment:
Standardized
Permits
should
contain,
at
a
minimum,
the
following
standard
conditions:

°
Notification
requirements
for,
and
assessment
of,
newly
identified
SWMU(
s)
and
Areas
of
Concern
(
AOCs).
°
Notification
requirements
for,
and
assessment
of,
newly­
identified
releases
from
previously
identified
SWMUs/
AOCs.
°
Content
requirements
for
RFI/
CMS
workplans/
reports.
°
Approval
procedures
for
RFI/
CMS
workplans/
reports
°
Approval
procedures
for
Final
Remedies.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
The
Agency
appreciates
commenter's
ideas,
but
is
not
in
a
position
to
act
on
any
of
them
in
this
final
rule.
The
Agency
did
not
develop
or
discuss
any
specific
standardized
permit
conditions
in
the
proposed
rule,
nor
have
commenters
provided
such
specifics.
The
Agency
is
not
prepared
to
develop
such
specifics
at
this
time.
Moreover,
the
process­
oriented
permit
conditions
suggested
by
the
commenter
may
be
inconsistent
with
the
Agency's
approach
to
implementation
of
the
corrective
action
program.
Since
the
time
of
the
proposal,
the
Agency
has
continued
to
move
away
from
a
process­
oriented
corrective
action
approach
toward
a
result­
based
strategy
for
corrective
action.
In
September,
2003,
the
Agency
issued
a
guidance
entitled
"
Results­
Based
Approaches
and
Tailored
Oversight
Guidance,"
which
encouraged
the
use,
where
appropriate,
of
results­
based
approaches
to
corrective
action.
As
described
in
the
guidance,
results­
based
approaches
emphasize
outcomes,
or
results,
in
cleaning
up
releases,
and
strive
to
tailor
process
requirements
to
the
characteristics
of
the
specific
corrective
action.

This
final
rule
provides
that
corrective
action
conditions,
which
were
developed
specifically
for
that
facility,
be
included
in
the
supplemental
portion
of
the
standardized
permit.
The
Agency
believes
that
this
approach
balances
the
Agency's
desire
to
streamline
the
permitting
process
against
the
need
for
flexibility
to
fashion
remedies
that
are
protective
of
human
health
and
the
environment
and
that
reflect
te
conditions
and
complexities
of
each
facility
requiring
corrective
action.

Comment:
While
there
is
certainly
a
need
for
site­
specific
flexibility
for
cleanups,
the
standardized
permit
should
still
contain
basic
terms
and
conditions
for
corrective
action.
66
FR
52213
col
3.
EPA's
regulations
should
require
that
facility
operators
take
the
necessary
steps
to
identify,
evaluate,
and
address
solid
waste
management
units
from
which
there
is
a
release
or
threatened
release.
Facilities
with
standardized
permits
should
also
be
able
to
use
the
regulatory
provisions
120
that
relate
to
Corrective
Action
Management
Units
(
CAMUs).
Where
the
facility
also
has
an
individual
permit
for
other
waste
management
units,
the
standardized
permit
can
incorporate
by
reference
the
corrective
action
provisions
of
that
permit.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
This
final
rule
provides
that
corrective
action
conditions,
which
were
developed
specifically
for
that
facility,
be
included
in
the
supplemental
portion
of
the
standardized
permit.
The
Agency
believes
that
this
approach
balances
the
Agency's
desire
to
streamline
the
permitting
process
against
the
need
for
flexibility
to
fashion
remedies
that
are
protective
of
human
health
and
the
environment
and
that
reflect
the
conditions
and
complexities
of
each
facility
requiring
corrective
action.

Under
this
approach,
facilities
receiving
standardized
permits
would
be
subject
to
the
same
requirements
for
corrective
action
as
facilities
receiving
traditional
RCRA
permits,
and
would
have
available
to
them
the
same
regulatory
tools
(
such
as
CAME),
where
appropriate.

Comment:
GM
is
also
disappointed
in
the
revisions
regarding
facilities
that
are
only
regulated
under
RCRA
due
to
corrective
actions
at
the
site.
For
example,
a
facility
without
any
operating
units
may
still
be
subject
to
the
full
RCRA
permit
program
even
though
such
facilities
are
incompatible
with
the
specific
intent
and
requirements
of
the
permit
program.
We
would
like
to
see
more
revisions
in
the
area
of
corrective
action
permitting
to
move
away
from
requiring
RCRA
facility
permits,
when
appropriate.
(
Lenora
Strohm,
CHMM,
General
Motors,
RCRA­
2001­
0029­
0076)

Response:
This
comment
addresses
issues
that
are
outside
the
scope
of
this
rulemaking.

34.
Subpart
G
 
Closure
(
VII.
H)

Comment:
p.
52214,
col.
2
 
The
preamble
states
that
EPA
is
considering
an
option
of
not
requiring
a
closure
plan
for
facilities
that
operate
under
a
standardized
permit.
Instead,
inspections
and
certification
would
be
used
to
assure
that
the
unit(
s)
were
closed
in
accordance
with
the
clean
closure
performance
standards.
Comments
are
requested
on
the
feasibility
of
not
requiring
a
closure
plan
and
on
the
enforceability
of
performance
standards
in
the
permit.

DOE
believes
closure
plans
should
be
prepared
for
facilities
operating
under
standardized
permits.
However,
DOE
requests
that
the
Agency
clarify
that
partial
closures
at
a
facility
operating
under
a
standardized
permit
would
be
allowed
under
the
oversight
of
an
Independent
Registered
Professional
Engineer
(
IRPE),
without
first
submitting
a
closure
plan.
Under
such
circumstances,
EPA
could
require
notification
of
the
responsible
regulatory
agency
so
that
inspections
could
be
conducted.
In
addition,
the
owner/
operator
and
the
IRPE
could
be
required
to
retain
records
of
the
partial
closure
activities,
which
would
document
compliance
with
applicable
closure
performance
121
standards.
Upon
final
closure,
the
record(
s)
of
partial
closure
would
be
integrated
into
the
necessary
IRPE
certification
and
placed
in
the
record
of
the
final
closure.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
Thank
you
for
your
comment.
The
agency
has
decided
to
require
the
closure
plan
be
submitted
with
the
Notice
of
Intent.
The
principle
reasons
were
to
provide
better
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
issuance
of
the
permit.
As
a
result,
the
same
amendment
provisions
in
40
CFR
264.113
will
be
included
in
40
CFR
267.

Comment:
STANDARDIZED
CLOSURE
PLAN.
One
of
the
proposals
is
to
create
a
standardized
closure
plan
for
each
type
of
unit.
This
may
not
be
a
good
idea
from
an
environmental
standpoint;
there
are
too
many
variables.
It
would
be
difficult
to
create
a
single
plan
that
would
be
specific
enough
to
provide
necessary
guidance,
but
that
would
not
be
too
narrow
to
encompass
the
varieties
of
equipment
and
issues
that
may
arise.
This
concept
would
be
good
as
guidance
for
the
applicant,
for
the
basics,
but
with
the
caution
that
the
actual
closure
plan
would
also
have
to
address
any
variables.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Comment:
NEED
TO
BE
ABLE
TO
MODIFY
A
CLOSURE
PLAN.
No
provisions
are
proposed
for
modifying
a
closure
plan
for
one
of
these
facilities.
The
reason
given
is
that
if
the
closure
plan
is
submitted
only
180
days
before
closure
begins,
it
should
not
need
modifying.
What
if
new
problems
are
found?
Many
issues
are
not
under
the
control
of
the
owner/
operator.
What
if
the
accepting
TSDF
closes,
waste
handling
costs
changes
significantly,
etc.
etc.
A
closure
plan
must
be
able
to
be
modified.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
The
final
regulations
require
the
closure
plan
to
be
submitted
with
the
Notice
of
Intent.
The
principle
reasons
were
to
provide
better
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
issuance
of
the
permit.
As
a
result,
the
same
amendment
provisions
in
40
CFR
264.113
will
be
included
in
40
CFR
267.

Comment:
NO
TIME
EXTENSIONS
FOR
CLOSURE.
No
time
extensions
are
available
for
closing
within
90
days
after
final
volume
of
waste.
Is
this
a
problem?
What
if
new
problems
are
found?
Many
issues
are
not
under
the
control
of
the
owner/
operator.
Allowing
modifications
to
a
closure
schedule
would
assure
that
a
facility
can
close
with
the
fewest
procedural
barriers.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
Although
the
Agency
believes
that,
for
the
types
of
units
eligible
for
the
standardized
permit,
180
days
will
be
sufficient
for
clean
closure,
we
agree
with
122
many
of
the
commentors
that
circumstances
beyond
the
control
of
the
owner
or
operator
may
delay
closure
activities.
The
closure
regulations
in
40
CFR
264
and
265
allow
for
an
extension
to
the
closure
period
if
the
owner
or
operator
demonstrates
to
the
satisfaction
of
the
permitting
authority
that
more
than
180
days
is
required.
We
did
not
want
to
leave
the
extension
open­
ended,
and
we
wanted
to
avoid
a
lengthy
demonstration
and
approval
process.
Therefore,
in
the
final
regulation,
we
are
allowing
for
a
one­
time
180
extension
to
the
closure
period
if
the
owner
or
operator
demonstrates,
within
30
days
of
the
end
of
the
initial
180
day
period,
that
more
time
is
required.
No
extensions
will
be
granted
because
of
problems
arising
from
ground
water
contamination.

Comment:
EPA
proposes
to
allow
the
owner
or
operator
to
submit
the
closure
plan
180­
days
before
the
start
of
the
closure
activities
instead
of
upon
issuance
of
the
permit.
Dominion
agrees
that
the
closure
plan
should
be
submitted
at
least
within
180­
days
prior
to
the
projected
start
of
closure
activities.
This
action
gives
the
owner
or
operator
greater
flexibility
and
acknowledges
changes
in
the
regulations
that
could
require
changes
to
the
plan.
Additionally,
it
allows
a
facility
to
have
a
better
understanding
of
the
requirements
and
steps
necessary
to
close
a
facility
without
having
to
worry
about
changing
the
closure
plan,
resubmitting
it
to
the
agency,
and
then
modifying
the
Permit
(
if
needed).
Dominion
understands
that
the
Agency
and
owner
or
operator
may
determine
to
start
the
closure
activities
after
the
180­
day
time
frame
because
of
new
or
complex
issues
identified
during
the
review/
approval
process.

Dominion
recommends
that
the
Agency
develop
standardized
closure
plan
requirements
for
each
type
of
waste
unit.
These
requirements
would
outline
the
information
needed
to
evaluate
the
closure
plan
but
would
not
require
specific
technology
or
scientific
methods
to
obtain
the
data.
This
type
of
standardization
would
shorten
the
review/
approval
process
and
time
frame.
(
Pamela
F.
Faggert,
Dominion,
RCRA­
2001­
0029­
0049)

Response:
The
final
regulations
require
the
closure
plan
to
be
submitted
with
the
Notice
of
Intent.
The
principle
reasons
were
to
provide
better
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
issuance
of
the
permit.
As
a
result,
the
same
amendment
provisions
in
40
CFR
264.113
will
be
included
in
40
CFR
267.

Comment:
API
encourages
EPA
to
eliminate
the
requirement
for
a
closure
plan
in
favor
of
relying
on
a
certification
that
closure
meets
applicable
performance
standards
or
an
inspection.
Either
option
eliminates
the
need
to
submit
a
closure
plan
that
simply
reiterates
the
standards
now
in
place.
There
should
not
be
contamination
around
the
units,
since
failure
to
cleanup
any
spills
as
part
of
routine
operating
procedures
the
site
would
risk
becoming
regulated
as
a
land
disposal
123
facility.
By
removing
the
waste
and
units
to
meet
the
standards,
closure
would
be
completed.
The
amount
of
waste
that
would
be
removed
would
be
self­
limiting
by
unit
capacity,
and
would
need
to
be
managed
as
a
hazardous
waste.
Such
a
routine
procedure
does
not
require
an
advance
plan.
If
EP
A
does
require
a
closure
plan,
we
would
support
development
of
a
standardized
closure
plan
for
each
type
of
unit
allowed
under
the
standardized
permit
in
order
to
streamline
paperwork
to
the
maximum
extent
possible.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Comment:
The
proposal
not
to
require
development
or
submittal
of
a
closure
plan
until
180
days
prior
to
closure
will
place
increased
importance
on
the
closure
cost
estimate
to
ensure
that
the
taxpayers
do
not
end
up
picking
up
the
tab
for
inadequately
funded
closure.
We
urge
EPA
to
establish
uniform
minimum
standards
for
closing
these
units,
including
conservative
third
party
cost
estimates
and
reliable
financial
mechanisms
(
discussed
below).
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
While
the
standardized
permit
relies
heavily
on
self
certifications
for
a
number
of
requirements,
the
final
rule
will
require
that
certain
documents
be
submitted
with
the
notice
of
intent.
Among
those
documents
will
be
the
closure
plan.
The
principle
reasons
were
to
provide
better
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
issuance
of
the
permit.
As
a
result,
the
same
amendment
provisions
in
40
CFR
264.113
will
be
included
in
40
CFR
267.

Comment:
Closure
plans
should
be
required
prior
to
unit
or
facility
closure.
ADEQ
believes
it
is
reasonable
to
expect
facility
owners/
operators
to
submit
a
closure
plan
180
days
prior
to
receiving
the
last
volume
of
waste.
An
appropriate
enforcement
response
would
be
warranted
if
this
time
frame
is
not
met.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Response:
The
final
regulations
require
the
closure
plan
to
be
submitted
with
the
Notice
of
Intent.
The
principle
reasons
were
to
provide
better
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
issuance
of
the
permit.
As
a
result,
the
same
amendment
provisions
in
40
CFR
264.113
will
be
included
in
40
CFR
267.

Comment:
Closure.
Page
52214,
Subpart
G.
Eliminating
the
review
and
approval
of
closure
plans
before
issuing
a
permit
substantially
loosens
the
permit
requirements.
It
postpones
preparation
of
closure
plans
and
review
of
the
plans
by
the
regulator.
Before
the
permitting
agency
issues
a
standardized
permit,
the
facility
must
be
required
to
prepare
a
closure
plan
that
can
be
implemented
by
a
third
party
in
the
event
the
facility
walks
away
from
the
site.
It
is
not
protective
124
of
human
health
or
the
environment
to
delay
the
closure
plan
until
180
days
before
the
facility
begins
closure.

Delaying
preparation
of
the
closure
plan
causes
several
problems
that
could
significantly
affect
human
health
or
the
environment:

(
f)
It
moves
closure
further
from
the
attention
of
the
facility
designer
and
operator.
For
example,
a
regulator
may
normally
point
out
that
during
closure
of
a
storage
or
treatment
facility,
soil
sampling
will
be
required
under
major
cracks
in
the
foundation
of
a
tank,
container
area
or
containment
building.
Therefore,
the
owner
may
be
more
careful
about
the
design
and
operation
of
the
facility
than
would
otherwise
be
the
case
if
the
closure
plan
were
prepared
later
in
the
life
of
the
facility.
In
an
age
of
pollution
prevention,
this
proposal
is
not
sufficiently
protective
of
human
health
or
the
environment.

(
g)
It
may
create
significant
disagreements
between
the
compliance
agency
and
the
facility
about
what
should
be
required
in
an
acceptable
closure
plan.
It
is
better
to
try
to
negotiate
the
main
details
of
the
closure
plan
during
the
permit
review
process,
rather
than
try
to
negotiate
the
closure
plan
details
180­
days
prior
to
the
start
of
closure
activities.

(
h)
The
storage
applicant
may
submit
an
application
with
as
much
storage
capacity
as
possible.
From
the
applicant's
point
of
view
this
would
avoid
expensive
modifications
to
the
permit
later
as
the
need
for
additional
storage
capacity
arose.
However,
when
the
applicant
must
prepare
a
closure
plan
and
have
it
reviewed
by
the
regulators,
the
applicant
becomes
much
more
aware
of
the
implications
of
maximizing
their
storage
capacity
on
closure
costs.
In
Ecology's
experience
the
facility
will
revise
its
application
to
request
storage
capacity
at
a
more
realistic
level.

(
i)
It
may
result
in
underestimating
the
closure
cost
estimate
for
financial
assurance
Insufficient
financial
assurance
maintained
by
hazardous
waste
management
facilities
has
been
a
problem
in
Washington
State.

(
j)
When
the
closure
plan
is
submitted
only
180
days
before
closure,
the
time
lines
the
permitting
agency
must
meet
in
the
public
comment
and
closure
plan
approval
processes
are
very
short
and
difficult
to
meet.
This
reduces
the
permitting
agency's
ability
to
ensure
protection
of
human
health
or
the
environment.
i)
The
public
must
have
the
opportunity
to
comment
within
30­
days
after
the
permitting
agency
receives
the
notice
for
intent
to
close
ii)
Approval,
modification,
or
denial
of
the
closure
plan
must
occur
within
60­
days
of
its
receipt.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)
125
Response:
The
final
regulations
require
the
closure
plan
to
be
submitted
with
the
Notice
of
Intent.
The
principle
reasons
were
to
provide
better
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
issuance
of
the
permit.
As
a
result,
the
same
amendment
provisions
in
40
CFR
264.113
will
be
included
in
40
CFR
267.

Comment:
Options
to
traditional
Closure
plan.
EPA
presented
two
options
of
using
a)
a
conservative
but
standardized
closure
plan
for
the
hazardous
waste
management
units
in
the
permit;
and
b)
having
no
closure
plan
and
relying
on
standardized
investigation
and
remediation
procedures,
while
using
inspections
and
certifications
to
ensure
that
the
hazardous
waste
management
unit(
s)
are
clean­
closed.
The
second
option
would
carry
the
high
possibility
that
the
permitting
agency
and
the
hazardous
waste
management
facility
owner/
operator
may
disagree
on
the
adequacy
of
the
work
performed
after
closure
certification
is
delivered
to
the
permitting
agency.
This
could
lead
to
extra
expenses
on
the
part
of
the
facility
owner/
operator
to
conduct
additional
closure
work.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
The
final
regulations
require
the
closure
plan
to
be
submitted
with
the
Notice
of
Intent.
The
principle
reasons
were
to
provide
better
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
issuance
of
the
permit.
These
closure
plans
will
be
the
same
as
for
facilities
under
individual
permits.

Comment:
Addressing
groundwater
releases
and
subsurface
contamination.
Standardized
permits
are
not
issued
to
land­
based
treatment
or
disposal
facilities.
Therefore,
agencies
authorized
for
corrective
action
under
"
alternative
authorities"
should
be
allowed
to
address
any
ground
water
or
subsurface
contamination
resulting
from
releases
at
the
hazardous
waste
management
units
through
their
alternative
authorities
rather
than
having
to
issue
a
post­
closure
permit
for
RCRA
corrective
action.
In
the
case
of
Washington
State,
the
alternative
authority
is
the
Model
Toxics
Control
Act
(
MTCA).
EPA
should
require
no
further
review
of
the
authorized
RCRA
corrective
action
program
for
the
authorized
state
agency
to
implement
the
standardized
permit
program.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities.
However,
the
Agency
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.
126
Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.
The
Agency
may
in
the
future
develop
guidance
on
issues
related
to
use
of
alternate
authorities,
and
will
consider
comments
submitted
on
this
rulemaking
at
that
time.

Comment:
Comment.
DoD
supports
elimination
of
the
requirement
to
prepare
a
closure
plan.

Discussion.
EPA
proposes
to
require
facilities
to
submit
site­
specific
closure
plans
180
days
before
facility
closure.
However,
they
also
state
they
are
considering
the
option
of
not
requiring
a
closure
plan.

Because
units
covered
by
standardized
permits
are
required
to
clean
close,
there
will
be
little
variability
in
components
of
the
closure
plans.
Instead
of
requiring
site
specific
closure
plans,
EPA
could
establish
standard
closure
requirements
within
the
standardized
permit
regulations
in
40
CFR
267.
For
example,
part
267
could
require
the
permittee
to
notify
the
regulatory
agency
of
their
intent
to
close,
process
the
last
volume
of
waste,
decontaminate
structures,
dispose
of
contaminated
media,
conduct
verification
sampling
to
ensure
adequate
decontamination,
and
provide
documentation
and
professional
engineer
certification
of
clean
closure
or
proceed
to
obtain
a
post
closure
permit
if
clean
closure
is
not
reasonably
achievable.
Associated
cost
estimates
are
developed
as
part
of
the
biennial
report
as
discussed
in
Section
VII.
F.
4.
There
does
not
appear
to
be
a
need
to
require
each
individual
facility
to
develop
an
individual
closure
plan.

Recommendation.
Do
not
require
closure
plans.
Establish
standard
clean
closure
requirements
within
the
standardized
permit
regulations
in
40
CFR
267.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Comment:
Onyx
supports
the
proposed
requirement
that
only
clean
closure
is
allowed
for
facilities
subject
to
a
standardized
permit,
however,
Onyx
believes
that
the
closure
plan
should
be
submitted
to
the
agency
in
conjunction
with
the
initial
standardized
permit
application,
not
180
days
prior
to
closure
as
proposed.
Should
there
be
significant
deficiencies
in
a
facility's
planned
closure
activity,
it
would
not
be
discovered
by
the
agency
until
the
time
the
facility
is
actually
preparing
to
undergo
the
closure
process.
Onyx
believes
that
discussions
with
the
agency
on
closure
techniques
and
performance
are
better
held
before
a
permit
is
actually
issued
so
that
there
is
a
clear
understanding
between
the
agency
and
the
facility
as
to
what
constitutes
proper
closure
for
a
particular
facility.

Furthermore,
Onyx
opposes
the
proposed
option
to
allow
a
facility
not
to
prepare
a
closure
plan,
but
instead
rely
solely
upon
inspections
and
certifications
at
the
time
of
closure
to
assure
units
have
undergone
proper
closure.
This
option
completely
eliminates
any
agency
review
of
the
closure
plan
and
could
result
in
inadequacies
in
closure
performance
not
being
identified
until
the
end
of
the
closure
process.
In
general,
it
is
preferable
to
identify
deficiencies
in
the
closure
plan
during
the
initial
permit
review
process
rather
than
at
the
end
of
the
operating
life
of
the
facility.
(
Thomas
127
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Response:
We
disagree
that
we
should
eliminate
the
requirement
to
prepare
a
closure
plan.
Closure
plans
are
important
in
providing
a
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
issuance
of
the
permit.
The
final
rule
will
require
that
closure
plans
be
submitted
with
the
notice
of
intent.
The
requirements
for
closure
plans
will
be
the
same
as
for
facilities
under
individual
permits.

Additionally,
under
the
final
rule,
a
facility
under
a
standardized
permit
will
be
required
to
clean
close.
If
clean
closure
is
not
possible,
then
they
must
apply
for
a
post­
closure
permit.

Comment:
No,
we
should
not
drop
the
closure
plan
requirement.
FDEP
recommends
that
the
facility
should
submit
a
closure
plan
along
with
the
permit
application,
and
update
and
modify
the
closure
plan
within
180
days
before
it
expects
to
begin
final
closure.
In
order
to
assure
financial
responsibility
for
closure
the
facility
should
submit
an
initial
cost
estimate
based
on
a
"
worst
case
scenario".
Modifications
of
the
closure
plan
should
be
accompanied
by
revised
cost
estimates,
and
the
financial
instrument
should
be
updated
accordingly.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
The
proposals
under
consideration
to
streamline
the
closure
process
would
compromise
the
financial
assurances
for
closure.
The
best
means
to
ensure
that
adequate
funds
are
available
to
the
agencies
to
close
the
facilities
is
to
have
detailed
closure
cost
estimates
for
detailed
closure
plans.
Without
detailed
cost
estimates
and
plans,
the
agencies
and
taxpayers
will
be
at
greater
risk
for
having
to
pay
for
the
cleanup
of
hazardous
waste
management
facilities.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Comment:
Safety­
Kleen
does
not
agree
that
the
closure
plan
requirement
should
be
dropped.
We
also
believe
that
the
closure
plan
needs
to
be
developed
at
the
beginning
of
the
permit
process
in
order
to
estimate
closure
costs
and
provide
the
surrounding
community
with
complete
knowledge
of
the
facilities
activities
during
the
full
life
of
the
facility
including
the
closure
process.
Safety­
Kleen
believes
that
a
detailed
closure
plan
is
the
best
way
to
accurately
calculate
the
cost
of
closure.
Without
a
closure
plan,
the
permitting
authority
and
the
community
would
not
have
knowledge
of
potential
closure
activities
that
could
have
an
impact
on
human
health
and
the
environment.
Safety­
Kleen
believes
that
this
requirement
should
be
kept
the
same
as
the
current
regulation.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)
128
Comment:
ETC
strongly
disagrees
that
a
closure
plan
need
not
be
prepared
and
submitted
until
180
days
before
closure.
66
FR
52213
col
3.
The
main
purpose
of
the
closure
requirement
is
for
the
facility
to
be
fully
prepared
for
closure
from
the
outset
of
operations.
The
local
community
needs
to
be
assured
that
the
facility
has
an
approved
plan
for
closure
before
the
first
container
of
waste
is
placed
in
storage.
In
addition,
a
detailed
closure
plan
is
essential
for
purposes
of
a
reliable
cost
estimate
and
financial
assurance.
While
EPA
is
correct
that
procedures
should
be
streamlined
in
appropriate
areas
by
eliminating
unnecessary
review
of
plans
by
the
permitting
authority,
the
closure
plan
is
not
one
of
those
areas.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Comment:
The
proposed
rule
states
the
HWMU
closure
plan
will
be
submitted
180
days
prior
to
closure
of
the
unit.
Closure
costs
can
be
quite
significant,
therefore,
the
closure
plan
should
be
submitted
along
with
the
initial
application
for
a
standardized
permit.
This
is
the
only
way
to
calculate
a
reasonable
amount
of
financial
assurance
for
closure
of
the
units
throughout
the
life
of
the
unit.
In
addition,
requiring
the
closure
plan
up
front
eliminates
the
problem
of
the
facility
not
being
able
to
submit
the
closure
plan
180
days
in
advance
of
closure.

The
proposed
rule
states
that
the
HWMU
must
clean
close;
however,
it
is
unclear
if
this
is
"
pure"
clean
closure
(
i.
e.,
to
background)
or
whether
"
risk­
based"
clean
closure
would
be
allowed.
In
the
absence
of
any
discussion,
we
assume
that
risk­
based
clean
closure
would
be
allowable.
EPA
should
clarify
this
issue.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
The
requirements
in
the
proposed
rule
call
for
submittal
of
the
closure
plan
180
days
prior
to
closure.
This
could
be
interpreted
as
meaning
180
days
before
closure
activities
begin
or
180
days
before
receiving
the
final
volume
of
hazardous
waste.
This
point
should
be
clarified.

Other
time
frames
for
closure
are
confusing
as
outlined
in
the
preamble.
You
have
to
submit
the
closure
plan
180
days
prior
to
closure.
You
have
to
complete
closure
within
180
days
of
receiving
the
last
known
volume
of
waste.
The
director
has
to
provide
the
public
30
days
for
commenting
on
the
plan
prior
to
approval.
The
permitting
authority
would
have
60
days
after
receipt
of
the
closure
plan
to
make
its
decision
on
it.
The
public
may
request
a
hearing
which
required
a
public
notice
30
days
prior
to
the
hearing.
In
this
situation,
there
is
no
way
the
director
can
approve
the
closure
plan
within
60
days.
Furthermore,
the
proposed
regulation
does
not
allow
for
modification
of
the
closure
plan
after
the
implementation
begins.
In
our
experience,
most
closures
require
at
least
one
permit
modification
to
complete
closure
activities
due
to
unforeseen
circumstances.

To
avoid
all
these
complicated
time
frames,
we
feel
that
a
closure
plan
should
be
submitted
with
the
initial
application.
Then
the
time
frames
for
closure
could
be
identical
to
those
for
individual
permits.
This
would
also
provide
a
more
realistic
method
for
estimating
closure
costs
for
financial
assurance.
129
Under
no
circumstances
do
we
recommend
dropping
the
requirement
for
a
closure
plan.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
The
rule
proposes
to
eliminate
submission
of
a
closure
plan
until
180
days
before
closing.
Ohio
EPA
is
concerned
that
the
absence
of
an
approved
closure
plan
at
the
time
of
standardized
permit
issuance
would
severely
hamper
the
regulating
agency's
ability
to
assure
closure
in
the
event
that
the
owner/
operator
ceases
to
exist.
Currently,
in
such
situations
Ohio
EPA
can
access
closure
funds
provided
for
in
a
financial
assurance
mechanism,
pull
the
approved
closure
plan
"
off
the
shelf"
and
hire
a
contractor
to
perform
closure.
Ohio
EPA
recommends
that
closure
plans
be
included
as
a
part
of
the
original
standardized
permit
application.
(
Christopher
Jones,
Director,
Ohio
EPA,
RCRA­
2001­
0029­
0075)

Comment:
We
would
support
the
deletion
of
the
requirement
to
submit
the
closure
plan
to
the
agency.
Inspections
and
certifications
for
the
clean
closure
of
these
simple
units
provided
with
secondary
containment
should
be
adequate.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Comment:
VII.
H.
­
Closure
(
Page
52213)
Part
267
Subpart
G
­
Closure
(
of
units
permitted
in
standard
permit)
­
There
is
no
post
closure
care
in
the
standardized
permit
(
clean
closure
is
required).
If
clean
closure
is
not
possible,
the
facility
must
obtain
a
separate,
traditional
post­
closure
care
permit.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Comment:
p.
52215,
col.
1
 
The
preamble
explains
that
the
proposed
40
CFR
part
267
would
require
that
closure
plans
for
storage
and
treatment
units
covered
by
standardized
permits
be
submitted
to
the
responsible
regulatory
agency
at
least
180
days
before
the
start
of
closure.

Assuming
that
closure
plans
will
be
required
for
facilities
operating
under
standardized
permits,
DOE
supports
the
proposal
to
not
require
submission
of
such
closure
plans
sooner
than
180
days
before
closure
begins.
DOE
believes
this
is
a
reasonable
approach
to
streamlining
the
review
process
and
eliminating
permit
modifications
associated
with
closure
activities.
A
facility
should
be
able
to
foresee
the
general
time
frame
in
which
it
will
receive
the
last
volume
of
waste
and,
if
not,
submit
the
closure
plan
early
as
a
precaution.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
p.
52215,
col.
1
 
The
preamble
states
that
the
responsible
permitting
authority
would
provide
the
public
an
opportunity
to
comment
on
the
closure
plan
for
storage
and
treatment
units
operating
under
a
standardized
permit.
However,
the
preamble
also
states
that
the
facility
would
be
required
to
provide
copies
of
its
closure
plan
to
persons
on
the
facility
mailing
list
at
the
same
time
the
closure
plan
is
submitted
to
the
permitting
authority
and
that
the
facility
would
be
required
to
place
a
notice
in
the
local
newspaper
notifying
the
public
of
the
opportunity
to
comment
on
the
plan.
130
DOE
notes
that,
unlike
the
preamble,
the
proposed
regulatory
text
outlining
procedures
for
closure
does
not
mention
that
the
facility
would
be
required
to
provide
copies
of
its
closure
plan
to
persons
on
the
facility
mailing
list
at
the
same
time
the
closure
plan
is
submitted
to
the
permitting
authority
(
see
proposed
§
267.113(
a)
(
p.
52252)),
or
that
the
facility
would
be
required
to
publish
a
notice
in
the
local
newspaper.
In
this
regard,
DOE
believes
a
requirement
for
the
facility
to
distribute
copies
of
its
closure
plan
to
all
persons
on
the
facility
mailing
list
would
be
unreasonably
burdensome.
Furthermore,
the
facility
should
not
be
required
to
publish
a
notice
in
the
local
newspaper
if
the
responsible
permitting
agency
is
tasked
with
providing
for
public
comment.
It
should
be
adequate
that
the
responsible
permitting
agency
will
provide
an
opportunity
for
the
public
to
comment
on
the
closure
plan
in
the
manner
described
in
proposed
§
267.113,
which
is
consistent
with
the
public's
opportunity
to
comment
on
the
draft
permit
decision.
Therefore,
DOE
supports
retaining
in
the
final
rule
the
public
notice
procedure
for
closure
plans
in
the
proposed
regulatory
language
in
§
267.113,
rather
than
the
procedure
described
in
the
preamble
on
p.
52215,
column
1.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
CLOSURE
COST
ACCURACY.
There
is
no
closure
plan
submittal
requirement
when
the
applicant
submits
the
application.
A
facility
operator
can
submit
a
closure
plan
at
least
180
days
prior
to
the
closure.
The
agency
therefore
cannot
verify
if
the
closure
cost
is
adequate.
It
is
California's
experience
that
most
of
facilities
tend
to
have
low
closure
cost
estimates
to
avoid
the
high
cost
of
securing
a
financial
assurance.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Comment:
NO
CLOSURE
ASSURANCE
UPDATES.
There
is
no
requirement
to
update
the
level
of
closure
assurance
if
there
is
a
change
in
a
facility's
closure
plan,
because
there
is
no
provision
to
change
closure
plan.
As
long
as
the
regularly
required
financial
responsibility
updates
are
tracked,
this
is
probably
not
a
problem.
If,
however,
regular
financial
responsibility
reviews
are
not
held,
there
will
be,
after
a
few
years,
a
significant
disconnect
between
the
level
of
coverage
and
the
actual
costs.
Any
changes
to
a
closure
plan
will
probably
only
exacerbate
the
differences.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Comment:
INCORPORATING
CLOSURE
PLAN.
Section
267.112
(
a)(
1)
states
that
when
the
agency
approves
the
closure
plan,
it
will
then
become
a
condition
of
the
permit.
Section
267.113
(
b)
provides
a
30­
day
public
comment
period
for
the
closure
plan
approval.
Will
it
require
a
permit
modification
to
include
this
approved
closure
plan?
Will
there
be
another
public
comment
period
for
the
permit
modification
to
include
this
approved
closure
plan?
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
We
agree
with
commenters
that
closure
plans
need
to
be
submitted
with
the
notice
of
intent.
The
final
regulations
require
the
closure
plan
to
be
submitted
with
the
Notice
of
Intent.
The
principle
reasons
were
to
provide
better
basis
for
financial
estimates
for
closure
and
the
benefit
of
negotiating
the
details
of
the
plan
prior
to
131
issuance
of
the
permit.
Several
commenters
argued
that
the
submission
of
a
closure
plan
would
help
States
to
be
assured
that
a
facility
could
close
and
also
would
serve
to
help
verify
closure
cost
estimates.
These
closure
plans
will
be
the
same
as
for
facilities
under
individual
permits.
We
also
will
require
that
applicants
submit
with
their
Notice
of
Intent
the
most
recent
closure
cost
estimate
for
their
facility,
and
documentation
required
to
demonstrate
financial
assurance.

35.
What
general
standards
would
I
need
to
meet
when
I
stop
operating
the
unit?
(
VII.
H.
1)

Comment:
p.
52214,
col.
3
­
p.
52215,
col.
1
 
The
preamble
states
that
under
the
proposed
standardized
permit
rule,
tanks,
container
storage
areas,
and
containment
buildings
would
be
required
to
"
clean
close."
Notwithstanding,
the
preamble
indicates
that
the
proposed
rule
would
allow
tanks
and
containment
buildings
to
be
closed
as
landfills
if
clean
closure
could
not
be
obtained.
In
such
circumstances,
the
owner/
operator
would
be
required
to
obtain
an
individual
post­
closure
permit.

(
a)
DOE
supports
requiring
an
individual
post­
closure
permit
for
facilities
operating
under
a
standardized
permit
that
cannot
attain
clean
closure.
However,
DOE
believes
that
the
proposed
regulatory
text
does
not
clearly
provide
for
closure
of
any
of
the
types
of
units
eligible
for
a
standardized
permit
as
a
landfill
under
a
post­
closure
permit.
Specifically,
DOE
notes
that
the
existing
regulatory
text
in
part
264
subpart
G
contains
explicit
language
stating
that,
if
it
is
not
practicable
to
remove
or
decontaminate
all
contaminated
soils
during
closure
of
a
tank
or
containment
building
(
as
required
for
clean
closure),
these
units
may
be
closed
as
landfills
(
see
40
CFR
264.197
(
tanks)
and
40
CFR
264.1102
(
containment
buildings)).
However,
the
regulatory
text
for
proposed
part
267,
subpart
H
contains
no
language
explicitly
providing
an
alternative
in
the
event
it
is
not
practicable
to
remove
or
decontaminate
all
contaminated
soils
associated
with
these
unit
types,
if
they
have
been
operating
under
a
standardized
permit
(
see
§
267.111
through
§
267.115
(
general)
(
pp.
52252
­
52253),
§
267.201
(
tanks)
(
p.
52262),
and
§
267.1108
(
containment
buildings)
(
p.
52264)).
Accordingly,
DOE
requests
that
the
final
rule
be
written
to
explicitly
state
that,
if
it
is
not
practicable
to
remove
or
decontaminate
all
contaminated
soils
during
closure
of
a
tank
or
containment
building
that
has
operated
under
a
standardized
permit
(
as
required
for
clean
closure
in
their
respective
sections
of
the
proposed
regulations),
these
units
may
be
closed
as
landfills
using
individual
post­
closure
permits.
To
accomplish
this,
DOE
suggests
that
the
proposed
§
267.111(
c)
(
p.
52252)
be
revised
to
read
as
follows
in
the
final
rule
(
redline
font
=
addition):

§
267.111
What
general
standards
must
I
meet
when
I
stop
operating
the
unit?

*
*
*
*
*
132
(
c)
Meets
the
closure
requirements
of
this
subpart
and
the
requirements
of
§
§
267.176,
267.201,
and
267.1108.
If
you
determine
that,
when
applicable,
the
closure
requirements
of
§
267.201(
tanks)
or
§
267.1108
(
containment
buildings)
cannot
be
met,
then
you
must
close
the
unit
in
accordance
with
the
requirements
that
apply
to
landfills
(
§
264.310).
In
addition,
for
the
purposes
of
post­
closure
and
financial
responsibility,
such
a
tank
system
or
containment
building
is
then
considered
to
be
a
landfill,
and
you
must
apply
for
a
post­
closure
care
permit
in
accordance
with
40
CFR
part
270.

(
b)
For
facilities
operating
under
standardized
permits
that
cannot
attain
clean
closure,
but
that
are
located
at
sites
where
land
use
controls
would
be
in
place
for
other
reasons
(
e.
g.,
as
a
result
of
CERCLA
remedies),
DOE
requests
that
EPA
consider
allowing
such
land
use
controls
to
serve
as
an
alternative
to
individual
post­
closure
permits.

(
c)
DOE
also
urges
EPA
to
consider
providing
additional
guidance
regarding
the
definition
of
the
term
"
clean
closure."
While
DOE
believes
clean
closure
should
have
a
risk­
based
definition,
there
seems
to
be
considerable
variability
among
the
EPA
regions
and
States
as
to
its
meaning.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
The
final
rule
incorporates
into
§
267.111(
c)
the
text
you
provided
in
(
a)
above.

This
final
rule
requires
facilities
that
obtain
standardized
permits
for
hazardous
waste
management
units
to
clean
close
those
units.
Where
a
unit
cannot
satisfy
the
requirements
for
clean
closure,
the
facility
is
no
longer
eligible
for
a
standardized
permit.
At
that
point,
the
unit
becomes
like
any
other
disposal
unit,
and
subject
to
the
same
requirements.
Those
include
the
requirements
for
a
post­
closure
permit.
If
the
facility
is
eligible
to
utilize
the
flexibility
provided
by
the
Post­
Closure
rule(
See
63
FR
56710,
October
22,
1998),
the
facility
can
satisfy
that
requirement
by
obtaining
an
enforceable
document
in
lieu
of
a
post­
closure
permit.
The
provisions
of
the
Post­
Closure
rule
are
not
modified
by
this
final
rule.

Defining
clean
closure
is
beyond
the
scope
of
this
rulemaking.

Comment:
p.
52215,
col.
1
 
The
preamble
points
out
that,
under
the
Post­
Closure
rule
(
63
FR
56710,
October
22,
1998),
a
facility
with
land
disposal
units
has
the
option
of
obtaining
a
post­
closure
permit
or
integrating
the
closure
of
the
unit
with
on­
going
corrective
action
activities
in
progress
at
the
facility.
EPA
requests
comments
on
whether
a
similar
process
should
be
available
to
storage
and
treatment
units
covered
by
standardized
permits
that
have
difficulty
clean
closing.
Under
this
option,
such
units
may
not
have
to
obtain
an
individual
post­
closure
permit,
if
residual
contamination
at
the
closing
unit
can
be
addressed
by
on­
going
corrective
action
activities
at
the
facility.
133
DOE
sees
no
reason
not
to
give
storage
and
treatment
units
covered
by
standardized
permits
that
have
difficulty
clean
closing
the
option
to
either
obtain
a
post­
closure
permit
or
integrate
the
closure
of
the
unit
with
on­
going
corrective
action
activities
in
progress
at
the
facility.
The
post­
closure
activities
associated
with
storage
and
treatment
units
covered
by
standardized
permits
that
have
difficulty
clean
closing
would
be
essentially
the
same,
regardless
of
whether
the
unit
is
subject
to
a
post­
closure
permit
or
an
enforceable
corrective
action
plan.
Therefore,
either
approach
would
protect
human
health
and
the
environment
equally.
Hence,
DOE
supports
a
flexible
final
rule
that
would
allow
the
use
of
either
approach.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
The
Agency
requests
comment
on
whether
it
should
expand
the
number
of
options
available
to
facilities
that
cannot
meet
the
clean
closure
standards
of
proposed
Part
267
subpart
G
to
include
more
than
closing
tanks
and
containment
buildings
as
landfills.
Id.
at
52214­
15.
USWAG
encourages
such
an
expansion
and
supports
the
option
to
choose
between
post­
closure
permits
or
corrective
action
at
the
site,
as
championed
in
EPA's
Post­
Closure
rule
(
63
Fed.
Reg.
56710
(
Oct.
22,
1998)).
For
example,
an
owner/
operator
of
a
facility
with
land
disposal
units
should
have
the
option
of
obtaining
a
post­
closure
permit
or
integrating
the
closure
of
the
unit
with
on­
going
corrective
action
activities
in
progress
at
the
facility.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Comment:
We
support
allowing
holders
of
standardized
permits
to
integrate
closure
with
ongoing
corrective
action
if
the
operator
is
unable
to
complete
clean
closure
as
contemplated.
This
option
is
consistent
with
options
under
full
permits,
and
is
preferable
to
having
facilities
going
through
a
full
permit
process
for
activities
that
are
relatively
simple.
There
is
no
reason
that
such
cleanup
could
not
be
integrated
with
site­
specific
conditions
for
corrective
action.
Continuation
of
the
term
of
the
standardized
permit
for
the
purpose
of
integrating
closure
with
other
cleanup
requirements
would
allow
oversight
by
regulatory
authorities
without
imposing
additional
paperwork.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Comment:
We
support
the
proposal
to
require
clean
closure,
however
we
are
aware
of
several
storage
units
(
containers
and
tanks),
which
have
been
unable
to
clean
close.
We
recommend
that
the
rule
require
contingent
post
closure
plans
and
financial
assurance
in
the
event
that
clean
closure
is
not
possible.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Comment:
EPA
Should
Require
Facilities
To
Meet
Clean
Closure
Requirements.
It
Should
Not
Provide
Any
Other
Options,
But
Rather,
It
Should
Work
With
Facilities
To
Ensure
That
They
Meet
This
Requirement.

RCRA's
"
cradle­
to­
grave"
system
for
regulating
hazardous
waste
contemplates
that
facilities
will
manage
hazardous
waste
in
a
fashion
that
does
not
create
problems
with
future
contamination.
This
requires
strict
oversight
by
government
authorities
of
such
facilities,
and
meticulous
planning
for
clean
up
operations
by
such
facilities
that
decide
to
end
their
hazardous
waste
handling
134
activities.
EPA
should
not
reward
the
very
facilities
that
failed
to
conduct
appropriate
planning
activities,
or
who
mismanaged
their
operations
and
created
unknown
 
but
foreseeable
 
contamination
problems,
by
creating
loopholes
through
which
facilities
can
circumvent
clean
closure
requirements.

In
their
quest
for
profits,
many
facilities
may
exploit
any
such
loopholes
that
the
agency
creates,
thereby
making
the
exception
the
rule.
This
is
a
particular
danger
given
EPA's
lack
of
resources
to
conduct
adequate
oversight
of
RCRA
facilities.
This
combination
of
rewarding
poor
planning
or
mismanagement,
while
also
failing
to
have
the
resources
to
ensure
such
activities
do
not
occur
is
a
receipt
for
creating
situations
that
pose
serious
threats
to
public
health
and
environmental
quality.
Therefore,
EPA
should
require
that
facilities
meet
clean
closure
requirements,
without
exception.
(
Grant
Cope,
Staff
Attorney,
U.
S.
Public
Interest
Research
Group,
RCRA­
2001­
0029­
0051)

Comment:
The
standardized
permit
should
be
limited
to
routine
storage
and
treatment
units,
so
a
requirement
for
clean
closure
makes
perfect
sense.
This
approach
will
help
meet
EPA's
goal
of
streamlining
the
process
and
avoiding
unnecessary
review
of
plans
for
non­
clean
closure
and
post­
closure
care.
We
do
not
believe
that
EPA
should
provide
alternatives
for
other
types
of
closure,
such
as
closure
as
a
landfill
unit
which
requires
a
post­
closure
permit.
66
FR
52214
col
3.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Comment:
A
facility
failing
to
achieve
clean
closure
should
be
subject
to
post
closure
permitting
provisions.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Comment:
If
clean
closure
cannot
be
achieved,
the
Department
would
support
post­
closure
activities
under
an
ongoing
corrective
action
process
(
HSWA
authority.)
Only
if
there
were
no
corrective
actions
underway
at
a
facility
would
a
post­
closure
permit
be
required.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Response:
This
final
rule
requires
facilities
that
obtain
standardized
permits
for
hazardous
waste
management
units
to
clean
close
those
units.
Where
a
unit
cannot
satisfy
the
requirements
for
clean
closure,
the
facility
is
no
longer
eligible
for
a
standardized
permit.
At
that
point,
the
unit
becomes
like
any
other
disposal
unit,
and
subject
to
the
same
requirements.
Those
include
the
requirements
for
a
post­
closure
permit.
If
the
facility
is
eligible
to
utilize
the
flexibility
provided
by
the
Post­
Closure
rule(
See
63
FR
56710,
October
22,
1998),
the
facility
can
satisfy
that
requirement
by
obtaining
an
enforceable
document
in
lieu
of
a
post­
closure
permit.
The
provisions
of
the
Post­
Closure
rule
are
not
modified
by
this
final
rule.

Comment:
Facilities
that
for
some
reason
can
not
remove
all
hazardous
constituents
to
"
background"
levels
should
be
allowed
the
option
of
performing
a
risk
based
closure
wherein
135
contaminant
levels
are
compared
with
published
health
based
levels.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities.
However,
the
Agency
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.
The
Agency
may
in
the
future
develop
guidance
on
issues
related
to
use
of
alternate
authorities,
and
will
consider
comments
submitted
on
this
rulemaking
at
that
time.

The
Post­
Closure
rule
(
see
63
FR
56710,
October
22,
1998)
provided
flexibility
to
address
closure
through
the
corrective
action
process
under
certain
circumstances,
which
are
clearly
detailed
in
that
rule.
Where
a
unit
cannot
meet
the
clean
closure
standards
of
Part
267,
it
might
be
eligible
to
utilize
the
flexibility
provided
by
the
Post­
Closure
rule
if
it
meets
the
criteria
set
forth
in
that
final
rule.
However,
the
Post­
Closure
rule
is
not
modified
in
this
rulemaking.

36.
What
procedures
would
I
need
to
follow?
(
VII.
H.
2)

Comment:
p.
52215,
col.
2
 
The
preamble
summarizes
the
required
contents
of
the
closure
plan
for
storage
and
treatment
units
covered
by
standardized
permits.
Among
other
things,
the
closure
plan
must
describe
the
steps
needed
to
remove
or
decontaminate
hazardous
waste
residues,
contaminated
containment
system
components,
contaminated
soils,
and
contaminated
ground
water.

Under
the
regulatory
framework
proposed
by
EPA
for
storage
and
treatment
units
covered
by
standardized
permits,
there
would
be
no
requirement
to
monitor
groundwater
during
the
operating
period,
unless
land
disposal
regulated
units
were
also
present
at
the
facility,
or
corrective
action
was
needed.
Furthermore,
the
proposed
closure
strategy
for
storage
and
treatment
units
covered
by
standardized
permits
focuses
on
clean
closure,
which
would
not
typically
involve
groundwater
monitoring.
Therefore,
DOE
requests
that
the
final
rule
clarify
that,
by
listing
contaminated
groundwater
in
the
above­
noted
section
of
the
preamble,
EPA
did
not
intend
to
advocate
or
recommend
groundwater
monitoring
at
any
facility
where
tanks,
container
storage
areas,
or
containment
buildings
covered
by
a
standardized
permit
are
the
only
hazardous
waste
management
units
present.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)
136
Response:
The
final
rule
describes
closure
procedures
at
§
267.112.
One
of
the
requirements
is:
"
A
detailed
description
of
the
steps
needed
to
remove
or
decontaminate
all
hazardous
waste
residues
and
contaminated
containment
system
components,
equipment,
structures,
and
soils
during
partial
or
final
closure."
Contaminated
ground
water
is
not
discussed
in
this
section.
We
would
not
generally
expect
groundwater
contamination
from
the
units
eligible
for
a
standardized
permit.
If
ground
water
is
contaminated
by
activities
under
a
standardized
permit,
then
the
facility
could
not
clean
close.
Post
closure
options
would
need
to
be
explored.

37.
After
I
stop
operating,
how
long
would
I
have
until
I
close
the
unit?
(
VII.
H.
3)

Comment:
p.
52215,
col.
3
 
The
preamble
states
that
proposed
§
267.115(
a)
would
require
closure
of
a
unit
to
begin
within
90
days
after
the
unit
receives
its
final
volume
of
hazardous
waste.

DOE
is
concerned
that
circumstances
can
occur
in
which
hazardous
waste
is
no
longer
stored
in
a
permitted
area,
but
the
facility
still
needs
the
capability
to
use
the
area.
If
such
circumstances
were
to
arise
at
a
facility
operating
under
a
standardized
permit,
it
would
be
helpful
if
the
regulations
provided
for
waiver
of
the
requirement
to
implement
the
closure
plan
within
90
days
after
the
unit
receives
its
final
volume
of
waste.
Therefore,
DOE
requests
that
EPA
consider
adding
such
waiver
provisions
to
the
final
§
267.115(
a).
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
Adding
a
waiver
provision
is
beyond
the
intended
scope
of
the
standardized
permit
rule.
Incorporating
such
measures
might
be
better
accomplished
under
an
individual
permit.

Comment:
p.
52215,
col.
3
&
p.
52216,
col.
1
 
The
preamble
explains
that
the
provisions
in
§
267.115(
b),
as
proposed,
would
require
that
final
closure
be
completed
within
180
days
after
the
permitted
unit
receives
its
final
volume
of
waste.
EPA
invites
comments
on
this
requirement,
noting
that
extensive
groundwater
contamination
may
prevent
the
owner
or
operator
from
completing
clean
closure
within
180
days.

(
a)
Circumstances
beyond
the
control
of
an
owner/
operator,
such
as
a
force
majeure,
could
effect
a
planned
clean
closure
time
line.
Requiring
an
owner/
operator
to
apply
for
a
post
closure
permit
or
to
address
slightly
protracted
closure
activities
through
the
corrective
action
process
could
result
in
an
unneeded
increase
in
the
administrative
burden
for
both
the
owner/
operator
and
the
permitting
authority.
As
a
result,
DOE
believes
that
EPA
should
provide
for
a
one­
time
extension
of
the
deadline
for
completing
clean
closure.
Providing
a
one­
time
extension
of
180
days
seems
appropriate
to
account
for
contingencies
that
could
impact
clean
closure
activities.
The
final
rule
on
Standards
Applicable
to
Owners
and
Operators
of
Closed
and
Closing
Hazardous
Waste
Management
Facilities:
Post
137
Closure
Permit
Requirements
and
Closure
Process
(
63
FR
56710,
October
22,
1998)
allows
EPA
and
authorized
states
to
use
a
variety
of
authorities
to
impose
requirements
on
facilities
that
need
post­
closure
care.
This
rule
gives
regulators
the
flexibility
to
use
alternative
mechanisms
under
a
variety
of
authorities
to
address
post­
closure
requirements.
DOE
suggests
that,
if
the
owner/
operator
of
a
facility
holding
a
standardized
permit
is
not
able
to
complete
clean
closure
within
360
days
(
the
original
180
days
plus
the
180­
day
extension
period),
the
Director
be
authorized
to
require
a
post­
closure
permit
or
other
approved
alternative
mechanism,
as
established
in
the
final
Post
Closure
Permit
rule.

(
b)
DOE
notes
that
the
requirement
in
proposed
§
267.115(
b)
for
completion
of
clean
closure
within
180
days
after
receiving
the
final
volume
of
waste
assumes
approval
of
the
closure
plan
within
60
days
after
it
is
submitted
to
the
responsible
regulatory
agency.
One
DOE
facility
has
reported
that
the
regulatory
agency
responsible
for
permitting
of
its
RCRA
units
has
historically
not
approved
any
closure
plan
within
60
days,
apparently
due
to
a
lack
of
resources.
Hence,
DOE
is
concerned
that
some
RCRA
units
operating
under
standardized
permits
may
be
unable
to
complete
closure
within
180
days
after
receipt
of
the
final
volume
of
waste
because,
through
no
fault
of
the
owner/
operator,
the
responsible
regulatory
agency
fails
to
issue
timely
approval
of
the
closure
plan.
This
is
another
reason
that
DOE
suggests
a
one­
time
extension
of
the
180­
day
time
limit
for
completion
of
clean
closure.
Alternatively,
DOE
suggests
that
the
time
clock
for
completing
closure
not
start
until
the
date
the
closure
plan
is
approved
by
the
responsible
regulatory
agency,
if
that
agency
has
failed
to
approve
the
closure
plan
within
60
days
after
its
timely
submission.

(
c)
DOE
requests
clarification
regarding
the
presence
of
groundwater
contamination
at
a
storage
and
treatment
facility
operating
under
a
standardized
permit.
In
some
cases,
groundwater
contamination
may
be
the
sole
result
of
releases
to
groundwater
from
activities
located
up­
gradient
of
a
permitted
facility
that
are
completely
unrelated
to
either
the
permitted
units
or
other
solid
waste
management
units,
which
may
be
undergoing
corrective
action,
at
the
facility.
In
such
circumstances,
it
has
been
DOE's
understanding
that
the
closure/
post­
closure
process
would
not
impose
responsibility
for
groundwater
remediation
on
the
owner/
operator
of
the
permitted
facility,
which
did
not
contribute
to
the
contamination.
DOE
requests
EPA's
confirmation
that
an
owner/
operator
would
not
be
required,
through
the
closure/
post­
closure
process,
to
automatically
remediate
groundwater
contamination
at
the
permitted
facility,
regardless
of
its
source.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
EPA
solicits
comment
on
the
proposed
section
267.115(
b)
requirement
that
final
closure
activities
be
completed
in
accordance
with
an
approved
closure
plan
within
180
days
after
receiving
the
final
volume
of
waste.
Id.
at
52215.
Specifically,
the
Agency
requests
comment
on
whether
the
closure
period
should
be
extended
or
whether
the
owner/
operator
should
be
required
to
apply
for
a
post­
closure
permit
(
or
use
the
corrective
action
process)
where
extensive
groundwater
contamination
may
prevent
the
owner/
operator
from
completing
clean
closure
within
that
time
frame.
Id.
at
52215­
16.
138
USWAG
strongly
believes
that
an
extension
of
the
closure
period
may
be
appropriate
in
a
number
of
circumstances
and
that
parties
should
not
be
arbitrarily
limited
to
180
days
in
all
cases.
For
example,
in
the
scenario
identified
above
where
additional
time
is
needed
to
remove
contamination,
an
extension
may
allow
an
owner/
operator
to
properly
clean
close
a
site,
therefore
preventing
the
owner/
operator
and
the
regulators
from
beginning
the
resource­
intensive
process
of
obtaining
a
post­
closure
permit.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Comment:
The
EPA
requests
comments
on
whether
a
180­
day
closure
time
period
is
acceptable
and
under
what
circumstances
should
it
be
extended.
Dominion
disagrees
with
the
180­
day
time
frame
proposal.
The
proposed
180­
day
time
frame
does
not
give
a
facility
adequate
time
to
complete
closure
activities.
Dominion
recommends
that
the
Agency
and
the
owner
and
operator
establish
a
time
frame
based
upon
the
complexity
of
the
site
issues
and
the
review
of
the
closure
plan.
At
that
time,
the
Agency
and
facility
would
agree
to
start
the
closure
process
within
90
to
180
days
and
to
complete
the
closure
activities
within
a
reasonable
time.
If
an
entity
has
a
criminal
record,
the
Agency
should
be
able
to
utilize
an
enforcement
tool
that
would
determine
the
closure
time
frame.
(
Pamela
F.
Faggert,
Dominion,
RCRA­
2001­
0029­
0049)

Comment:
180
days
is
an
appropriate
period
to
achieve
closure.
Extensions
should
be
considered
on
a
case­
by­
case
basis
by
EPA
or
the
authorized
agency.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Comment:
Comment.
DoD
recommends
that
a
provision
be
added
to
the
regulations
to
allow
for
extensions
to
the
180
day
closure
period
under
certain
situations.

Discussion.
EPA
is
proposing
that
facilities
closing
under
a
standardized
permit,
accomplish
clean
closure
within
180
days.
In
addition,
there
would
be
no
time
extensions
allowed
for
closure.
DoD
can
foresee
simple
situations
were
an
extension
should
be
justifiable
and
allowed
under
the
standardized
permit.
Under
normal
scenarios,
DoD
should
be
able
to
award
contracts
with
time
specifications
so
that
the
closure
can
occur
within
the
180
day
time
frame.
However,
the
Federal
process
of
awarding
contracts,
allocating
funding,
and/
or
making
contract
modifications
may,
under
certain
circumstances,
make
it
difficult
to
complete
clean
closure
within
the
180
day
time
frame.
Unforeseen
events,
such
as
lack
of
disposal
capacity,
may
also
affect
the
ability
to
complete
closure
within
the
180
day
time
frame.

Recommendation.
DoD
recommends
that
EPA
allow
for
time
extensions
for
closures
under
the
standardized
permit
provisions
on
a
case­
by­
case
basis
at
the
request
of
the
permittee.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Comment:
Although
the
180
day
closure
time
period
is
appropriate,
there
are
extraordinary
circumstances,
such
as
acts
of
God,
business
failure
of
a
subcontractor
handling
the
closure
139
activities,
etc.,
which
could
make
the
deadline
impossible
to
meet.
The
Department
suggests
that
the
agency
should
be
able
to
grant
extensions
on
a
site
by
site
basis.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
There
should
be
no
reason
not
to
allow
for
extensions
in
necessary
circumstances.
It
is
understood
that
if
the
facility
cannot
clean
close,
then
the
standardized
permit
may
no
longer
apply.
But
many
facilities
need
the
excess
time
to
determine
the
rate
and
extent
of
contamination
and
conduct
a
risk­
based
closure
that
may
not
require
an
individual
post­
closure
permit
to
be
issued.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
Because
clean
closure
is
required,
EPA
should
allow
an
extension
beyond
the
180­
day
closure
period
if
necessary
for
decontamination
and
cleanup
measures.
It
would
be
much
preferable
to
allow
an
extension,
rather
than
try
to
integrate
the
clean
closure
into
a
corrective
action
program.
This
would
only
prolong
the
cleanup
and
add
unnecessary
complication
and
delay.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
The
final
rule
will
require
that
a
closure
plan
be
submitted
with
the
notice
of
intent.
This
closure
plan
must
be
approved
prior
to
permit
issuance.
Regarding
actual
closure,
in
addition
to
the
required
180
days
to
complete
clean
closure,
we
are
allowing
a
one
time
180­
day
extension.
We
believe
that
the
majority
of
facilities
should
be
able
to
clean
close
their
eligible
units
within
those
time
frames.
For
facilities
that
cannot
clean
close
in
those
time
frames
(
the
reason
will
likely
be
groundwater
contamination
associated
with
the
units
under
the
standardized
permit),
the
owner/
operator
must
obtain
a
post
closure
permit.

38.
Subpart
H
 
Financial
Requirements
(
VII.
I)

Comment:
The
entire
section
of
proposed
rules
dealing
with
financial
responsibility
is
predicated
on
the
false
assumption
that
financial
responsibility,
cost
estimating
for
closure,
closure
plan
development,
and
standardized
operating
permits
are
related
parts
of
the
same
entity
but
can
be
managed
in
disassociation
from
each
other.
The
closest
analogy
to
this
proposal
is,
in
retrospect,
the
development
of
nuclear
weaponry
in
the
1930'
s
and
1940'
s.
Out
of
the
necessity
of
selfdefense
hundreds
of
nuclear
facilities
were
developed
and
operated
with
little
regard
for
how
these
facilities
would
be
decommissioned,
the
increasing
cost
of
decommissioning
these
facilities,
and
the
availability
of
dedicated
and
earmarked
funds
to
pay
the
cost
of
decommissioning
these
sites.
Today,
70
years
later,
we
are
faced
with
the
almost
unsurmountable
tasks
of
developing
technology
to
decommission
these
facilities
and
of
locating
dollars
to
pay
for
the
decommissioning
of
these
sites.

No
logical
and
meaningful
closure
cost
estimate
can
be
derived
in
the
absence
of
a
closure
plan.
It
is
the
design
of
the
closure
plan
that
drives
the
cost
of
the
estimate
to
close
the
hazardous
waste
140
unit.
Further
it
is
the
amount
of
the
closure
cost
estimate
that
in
turn
determines
whether
or
not
a
prospective
owner/
operator
is
sufficiently
financially
responsible
to
undertake
the
cost
of
closure
and
in
retrospect
the
responsibility
to
develop
and
operate
a
hazardous
waste
treatment/
storage
facility.

It
is
clearly
stated
in
the
proposed
Rules
that
the
purpose
of
this
rulemaking
is
to
relieve
the
regulated
community
of
unnecessary
paperwork,
procedures,
and
cost
through
the
development
and
use
of
standardized
permits.
However,
it
does
not
logically
follow
that
the
available
technologies
and
methodologies
for
closing
facilities
are
so
numerous
and
non­
standard
that
the
development
of
meaningful
and
accurate
closure
plans
and
closure
cost
estimates
are
impossible
or
are
an
administrative
burden
until
180
days
prior
to
closure.
Tetra
Tech
EM,
Inc.,
itself,
has
developed
an
extremely
efficient,
cost
effective,
and
burden
less
tool
to
facilitate
the
development
of
cost
estimates
that
are
predicated
on
numerous
closure
technologies
and
methodologies.
Other
consultant
firms
have
developed
similar
tools
for
facilitating
cost
estimates
based
upon
the
limited
universe
of
possible
ways
of
closing
a
hazardous
waste
treatment
and
storage
unit.

Any
prospective
owner
or
operator
of
a
hazardous
waste
treatment
and
storage
business
that
finds
it
burdensome
and
a
bother
to
develop
a
technologically
sound
closure
plan
and
associated
cost
estimate
has
no
business
in
the
business
of
operating
such
a
facility.
The
logic
of
environmental
management
today,
not
just
for
state
governments,
but
also
for
industry
is
progressive
not
retrogressive
to
the
1930'
s
and
1940'
s.
Manufacturers
have
spent
the
past
20
years
producing
non­
toxic,
biodegradable,
and
recyclable
products
that
limit
the
possibility
of
contamination
of
the
environment.
To
ask
or
allow
these
companies
to
entertain
the
notion
of
not
developing
closure
plans
and
associated
cost
estimates
for
closure
at
the
beginning
of
product
development
will
conflict
with
their
natural
business
planning
process.
No
sound
business
today
looks
at
the
cost
of
the
front
end
of
product
or
service
development
and
defers
the
determination
of
the
cost
of
the
retirement
of
that
product
or
service
to
a
later
date.
The
actual
cost
of
developing
and
phasing
out
a
product
is
built
into
the
actual
pricing
of
the
product
on
the
front
end.

This
proposal
to
dichotomize
standardizing
permits,
closure
plans,
and
closure
cost
estimates
in
a
serious
business
mistake
that
should
not
be
undertaken.
Further,
such
unnatural
dichotomization
actually
undermines
the
cost
savings,
and
the
increased
efficiency
possible
for
the
regulator
and
the
regulated
gained
by
the
use
of
standardized
operating
permits.
By
using
standardizing
operating
permits,
the
procedures
for
closing
a
facility
are
made
more
uniform
which
in
itself
increases
the
efficiently
and
lessens
the
cost
and
time
of
the
regulated
community
in
the
development
of
closure
plans
and
the
cost
and
time
necessary
for
the
regulating
agencies
to
review
and
approve
closure
plans.
Therefore,
the
deferral
of
the
submittal
of
closure
plans
to
180
days
prior
to
the
closure
of
a
facility
is
a
gesture
of
little
value
to
either
party,
but
potentially
disruptive
to
both.

As
regards
the
matter
of
revisions
to
the
financial
test
that
would
allow
businesses
using
this
mechanism
to
be
exempt
from
submitting
cost
estimates
and
to
allow
such
businesses
to
assure
a
higher
level
of
obligation
than
the
current
RCRA
Subtitle
C
financial
test,
the
weakest
financial
assurance
instrument
currently
used
is
the
financial
test.
While
strengthening
the
debt
to
cash
flow
141
or
net
worth
ratio
requirements
is
noteworthy,
the
proposed
plan
to
allow
these
businesses
to
assure
higher
dollar
amounts
of
environmental
liabilities
negates
the
gains
of
the
former.
Tangible
net
worth
is
highly
subject
to
the
value
of
the
stock
of
a
company.
As
the
value
of
the
stock
decreases
so
often
does
the
tangible
net
worth
of
the
company
decrease
along
with
its
ability
to
generate
operating
funds,
borrow
money
for
developing
new
products
and
services,
and
to
refinance
old
debt.
Today,
we
are
witnessing
an
ever
increasing
number
of
bankruptcies
by
businesses
who
only
1
year
ago
had
excellent
debt
to
income
and
debt
to
net
worth
ratios.
In
many
of
these
instances,
the
closure
and
remediation
of
environmental
projects
will
be
delayed
for
years
to
come
while
the
matters
of
bankruptcy
or
prioritized
and
administered.
The
particular
favors
given
these
businesses
have
negatively
impacted
the
development
of
smaller
businesses
who
are
tightly
held
to
the
requirements
of
securing
third
party
financial
instruments.

It
would
be
more
responsible
to
require
businesses
qualifying
to
use
the
financial
test
to
provide
at
least
50%
of
their
financial
assurance
in
third
party
financial
instruments
such
as
letters
of
credit,
surety
bonds,
and
trust
funds
issued
by
commercial
financial
institutions.
Financial
tests
provide
no
assurances
of
financial
responsibilities;
they
provide
instead
an
honorable
promise
to
finance
closure
if
funds
are
available.
To
the
state,
these
promises
are
too
little.
Over
25
states
are
currently
operating
on
deficit
budgeting
and
have
no
excess
funds
to
aid
in
the
closure
of
environmentally
impaired
sites.
The
anticipated
excess
revenues
to
the
Federal
Government
of
our
nation
have
all
but
been
paired
to
even
board.
We
can
therefore
expect
increasingly
limited
federal
funds
to
be
available
for
environmental
site
remediation.
We
respectfully
request
that
the
states
not
be
limited
to
commenting
on
these
proposed
rules.
Instead,
the
states
should
be
invited
to
actively
participate
with
the
U.
S.
EPA
in
envisioning
and
promulgating
these
proposed
rules
in
a
meaningful
fashion.
(
Jamie
Burroughs
of
the
TSD
Section
and
O.
J.
Wingfield
of
Financial
Responsibility,
Division
of
Solid
Waste
Management,
Tennessee
Department
of
Environmental
and
Conservation,
RCRA­
2001­
0029­
0057)

Response:
In
response
to
this
and
other
public
comments,
EPA
has
included
in
the
final
rule
a
requirement
that
the
closure
plan
be
submitted
with
the
notice
of
intent.
We
have
incorporated
the
regulatory
language
from
the
current
40
CFR
264.142
regulations
into
the
standard
permit
regulations
to
ensure
that
the
closure
cost
requirements
are
consistent.

The
regulations
established
in
40
CFR
267.142
require
a
cost
estimate
even
for
companies
that
will
be
using
the
financial
test
for
all
of
their
other
environmental
obligations.
This
will
ensure
that
if
a
company
no
longer
qualifies
to
use
the
financial
test,
a
cost
estimate
will
be
readily
available
for
use
with
the
replacement
financial
assurance
instrument.

In
this
rule,
EPA
has
promulgated
the
financial
test
that
was
in
the
proposal.
This
will
improve
the
reliability
of
the
financial
test
by
reducing
its
availability
to
firms
more
likely
to
enter
bankruptcy.
EPA
believes
that
this
can
be
an
important
improvement.
A
test
that
is
better
at
screening
out
firms
more
likely
to
enter
142
bankruptcy
reduces
the
risk
of
the
financial
test.
Because
the
firms
using
the
test
are
less
likely
to
enter
bankruptcy,
there
is
less
need
for
the
net
worth
requirement
of
the
financial
test
in
40
CFR
264.143(
f)
to
limit
the
amount
to
be
covered.
This
regulation
limits
the
amount
that
can
be
covered
by
the
financial
test
to
$
10
million
less
than
a
firm's
tangible
net
worth.
A
firm's
tangible
net
worth
is
the
difference
between
the
value
of
its
tangible
assets
(
which
excludes
the
value
of
intangible
assets
such
as
goodwill)
and
its
liabilities.

Under
normal
circumstances,
fluctuations
in
a
firm's
share
price
do
not
affect
the
calculation
of
tangible
net
worth.
Share
prices
can
reflect
many
factors
in
the
markets
including
expectations
of
interest
changes
or
other
broad
market
phenomenon
that
will
not
affect
the
value
of
a
firm's
tangible
net
worth.
Asset
values
for
financial
statements
reflect
historical
costs
for
the
assets
as
reduced
by
depreciation,
or
other
accounting
adjustments.
The
exception
would
be
in
the
case
where
the
value
of
assets
on
the
financial
statements
would
change
to
reflect
an
impairment
of
the
assets
of
the
company.
EPA's
financial
test
does
not
require
share
price
information
in
the
calculation
of
tangible
net
worth.

The
commenter
questions
providing
a
financial
test
that
small
businesses
may
be
unable
to
meet
and
asserts
that
if
a
small
business
cannot
meet
the
financial
test,
this
will
reduce
the
company's
competitiveness.
The
financial
test
includes
a
requirement
that
the
firm
have
a
minimum
of
$
10
million
in
tangible
net
worth.
This
is
because
EPA's
earlier
analysis
found
that
firms
with
less
than
$
10
million
in
net
worth
are
more
likely
to
enter
bankruptcy.
Furthermore,
firms
with
less
than
$
10
million
in
net
worth
are
less
likely
to
have
audited
financial
statements
that
are
a
requirement
for
the
test.
As
a
result,
for
such
firms,
the
cost
of
obtaining
audited
financial
statements,
which
are
required
in
order
to
qualify
to
use
the
test,
will
reduce
cost
savings
the
business
might
otherwise
realize
by
using
the
financial
test.
(
56
FR
30209).
Thus,
EPA
decided
not
to
extend
the
financial
test
to
firms
with
less
than
$
10
million
in
tangible
net
worth.

While
firms
with
less
than
$
10
million
in
tangible
net
worth
are
ineligible
for
the
financial
test,
this
should
not
present
a
large
competitive
disadvantage
for
them.
Units
for
which
the
standardized
permit
may
be
used
must
be
tanks,
containers
or
containment
buildings.
These
units
have
relatively
low
closure
costs
compared
with
land
disposal
units
that
must
cap
their
units
and
provide
for
the
expense
of
postclosure
care.
When
EPA
looked
at
the
competitive
effects
of
allowing
private
owners
or
operators
of
municipal
solid
waste
landfills
to
use
the
financial
test,
it
found
that
allowing
the
use
of
a
financial
test
did
not
present
an
unfair
competitive
advantage
for
large
firms
versus
small
firms.
(
See
Subtitle
C
and
D
Financial
Test
Analysis
Issue
Paper,
Market
Effects
of
the
Financial
Test,
http://
www.
epa.
gov/
garbage/
finance/
famc/
paper9.
pdf.)
Since
closure
costs
are
generally
much
higher
for
landfills
than
for
tank,
container
or
containment­
type
143
storage
units,
EPA
does
not
anticipate
that
allowing
a
financial
test
for
the
standardized
permit
regulation
would,
by
itself,
cause
economic
difficulties.

EPA
disagrees
that
it
would
be
more
responsible
in
its
regulations
to
require
firms
using
the
financial
test
to
use
trust
funds,
letters
of
credit,
or
surety
bonds
for
50%
of
the
obligations
covered
by
the
test.
This
recommendation
would
entail
limiting
the
use
of
the
financial
test
with
little
basis
other
than
distrust
of
the
financial
test
mechanism.
EPA's
analysis
of
the
test
shows
that
the
test
is
a
reliable
predictor
of
firms
unlikely
to
enter
bankruptcy.
Therefore
EPA
decided
not
to
limit
the
amount
that
could
be
covered
by
the
financial
test
beyond
the
requirements
of
the
proposed
rule.
States
may
choose
to
be
more
stringent
under
RCRA.

Comment:
In
consideration
of
the
six
options
proposed
for
developing
closure
cost
estimates,
Onyx
recommends
that
option
4
be
implemented
by
the
agency.
Standard
forms
that
have
been
prepared
by
the
agency
will
not
only
assist
the
agency
in
reviewing
the
closure
estimates
but
will
also
be
useful
to
facilities
in
developing
and
estimating
closure
costs.
Option
5,
default
estimates,
is
not
desirable
because
it
will
likely
over­
estimate
the
actual
cost
of
closure
due
it
over­
generalizing
the
waste
types
into
just
two
cost
categories,
that
being
ignitable
and
non­
ignitable
wastes.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Response:
In
the
preamble
to
the
proposal
EPA
provided
the
options
for
developing
cost
estimates
because
there
was
no
regulatory
requirement
to
have
a
closure
plan
until
180
days
before
closure.
As
a
result,
a
closure
plan
would
not
be
available
to
be
used
to
prepare
a
closure
cost
estimate
at
any
time
before
180
days
before
closure.
However,
in
response
to
public
comments,
EPA
has
included
in
the
final
rule
the
requirement
that
closure
plans
be
developed
as
part
of
the
application
process
and
so
mirror
closure
plans
for
traditional
permits.
As
a
result,
EPA
does
not
believe
that
it
is
necessary
to
implement
any
particular
option
that
was
included
in
the
preamble
to
the
proposal.
EPA
recognizes,
however,
that
states
or
permit
applicants
may
choose
to
use
the
options
to
assist
in
the
development
of
closure
cost
estimates.
Therefore,
EPA
has
included,
in
the
docket
to
this
rulemaking,
information
and
background
documents
about
the
options
Comment:
We
would
support
the
use
of
a
generic
closure
cost
estimating
approach
based
upon
a
facility's
number
and
type
of
eligible
units,
unit
volumes,
and
waste
types/
physical
states.
This
guidance
could
be
provided
to
the
permittee
in
a
table/
matrix
format
as
outlined
in
"
Option
5"
or
calculated
in
a
more
detailed
manner
by
the
permittee
using
forms
or
software
under
"
Option
4"
to
account
for
atypical
circumstances
at
the
facility.
144
In
either
case,
it
should
be
recognized
that
the
burden
for
updating
any
data
provided
to
the
permittee
for
development
of
the
cost
estimate
would
be
placed
on
the
agency.
We
do
not
see
a
way
to
provide
closure
cost
data
to
the
permittee
without
having
to
update
such
data
on
a
routine
basis.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Response:
Please
see
the
response
to
the
previous
comment
by
Onyx.
The
Agency
will
include
information
and
background
documents
about
the
options
in
the
docket
to
this
rulemaking.

Comment:
EPA
asked
for
public
comment
on
whether
to
change
the
deadline
for
updating
the
cost
estimate
for
inflation
for
users
of
the
financial
test
to
90
days
after
the
close
of
the
fiscal
year.

We
feel
that
facilities
using
the
financial
test
should
be
subject
to
requirements
for
updating
cost
estimates
for
inflation
similar
to
the
requirements
for
other
forms
of
financial
assurance.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
EPA
agrees
with
this
comments
and
has
maintained
the
deadline
for
updating
closure
costs
for
inflation
as
they
were
in
the
proposal.

Comment:
We
concur
that
the
changing
of
the
deadline
for
the
annual
update
of
the
closure
cost
estimate
to
90
days
after
the
close
of
the
fiscal
year
for
facilities
utilizing
the
financial
test
option
for
financial
assurance
is
advisable
so
that
the
process
runs
concurrent
with
the
availability
of
corporate
financial
data.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Response:
In
the
final
rule,
EPA
decided
to
maintain
the
proposed
requirement
for
updating
the
closure
cost
estimates.
While
EPA
had
solicited
comments
on
the
alternative
of
allowing
90
days
after
the
close
of
the
fiscal
year
for
updating
the
cost
estimate
for
companies
using
the
financial
test,
EPA
decided
to
maintain
the
deadlines
in
the
proposal.
The
proposal
deadlines
ensure
that
a
company
that
uses
the
financial
test
for
the
standardized
permit
rule
and
other
operations
operating
under
either
a
traditional
permit,
or
with
a
standardized
permit
and
not
using
the
financial
test
would
have
the
same
deadlines
for
updating
the
closure
cost
estimates
for
inflation.

39.
Closure
cost
estimates
(
VII.
I.
3)

Comment:
As
stated
in
a
previous
comment,
a
detailed
written
cost
estimate
for
closure
should
be
based
on
a
detailed
closure
plan.
The
proposal
to
not
require
a
closure
plan
during
the
operating
life
of
the
facility,
and
therefore
to
not
require
that
an
estimate
be
based
on
the
detailed,
site­
specific
closure
plan,
will
diminish
the
effectiveness
of
the
financial
assurance
requirements
and
put
the
agencies
­
and
ultimately
the
taxpayers
­
at
greater
financial
risk
for
cleanups.
Further,
as
noted
in
the
preamble,
the
EPA
does
not
have
adequate
information
to
justify
any
aspect
of
its
145
proposal
to
lessen
the
cost
estimate
requirements.
The
EPA
has
not
collected
data
regarding
the
actual
costs
to
close
facilities
over
the
past
two
decades,
and
so
bases
some
of
its
proposed
changes
on
assumptions
and
limited
surveys
and
experiences.
Those
limited
surveys
and
experiences
do
not
establish
the
norm
for
today.
The
agencies
and
the
regulated
community
have
gotten
more
sophisticated
in
developing
closure
plans
and
cost
estimates,
and
the
closure
plans
are
now
developed
for
facilities
where
the
environmental
conditions
­
at
least
those
attributed
to
the
regulated
units
­
have
been
more
accurately
defined
after
years
of
environmental
monitoring
and
facility
upgrades.
Regarding
experiences
where
cost
estimates
lagged
significantly
behind
the
actual
closure
costs,
the
majority
of
the
closures
that
occurred
in
the
1980'
s
and
early
1990'
s
were
for
interim
status
facilities
that
did
not
have
adequate
environmental
monitoring
programs
and
that
often
included
units
that
lacked
the
proper
secondary
containment
or
liner
systems
(
e.
g.,
unlined
surface
impoundments).
A
significant
portion
of
the
costs
to
close
these
facilities
was
contaminated
soil
removal
and
disposal.
Given
the
lack
of
information
about
these
facilities
prior
to
closure,
it
was
difficult
to
estimate
the
amount
of
soils
that
required
removal
and
disposal,
and,
therefore,
it
was
difficult
to
prepare
an
accurate
cost
estimate.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
In
response
to
this
and
other
comments,
EPA
has
decided
to
require
a
closure
plan
with
the
permit
application.
EPA
anticipates
that
with
the
closure
plan
facilities
will
have
the
information
available
to
provide
accurate
closure
cost
estimates.

Comment:
We
appreciate
the
opportunity
to
submit
comments
on
the
October
12,
2001
EPA
(
the
"
Agency")
proposal
to
allow
for
a
standardized
permit
for
generators
of
hazardous
waste.
Our
comments
relate
specifically
to
the
proposed
mechanisms
in
section
I.
of
the
proposal
(
Financial
Requirements)
concerning
the
calculation
of
closure
cost
estimates.
We
represent
a
number
of
permitted
hazardous
waste
treatment,
storage,
and
disposal
facilities
("
TSDFs")
in
California,
where
closure
cost
estimates
have
recently
become
an
important
issue
for
the
California
Department
of
Toxic
Substances
Control
("
DTSC").
Therefore,
we
have
an
interest
in
any
changes
the
Agency
is
proposing
to
make
in
this
area
of
the
hazardous
waste
regulations.

We
understand
that
the
closure
cost
estimating
mechanisms
discussed
in
this
proposal,
as
currently
written,
apply
only
to
facilities
seeking
a
standardized
permit
.
It
is
our
hope
that
in
the
future,
the
Agency
will
allow
some
of
these
mechanisms
to
be
used
by
a
hazardous
waste
management
facility
operating
under
either
a
standardized
permit,
or
a
full
part
B
hazardous
waste
facility
permit.

Estimating
closure
costs,
and
subsequently
putting
the
funds
in
place
through
a
financial
mechanism
to
cover
the
closure
activities,
is
a
difficult
task.
Attempting
to
determine
all
of
the
possible
closure
activities
which
will
need
to
take
place
possibly
decades
in
the
future
is
more
of
an
art
than
an
exact
science.
Typically,
closure
cost
estimates
prepared
by
the
facility
are
thought
to
be
too
low
by
the
regulatory
agency,
and
agency
counter­
estimates
are
likewise
deemed
too
high
by
the
facility
as
they
assume
too
many
expected
future
closure
activities.
There
are
numerous
methods
used
to
estimate
closure
costs,
including
expensive
cost
estimating
software
programs,
146
which
assume
high
overhead
costs
for
the
closure
activities
and
make
other
assumptions
which
can
further
cause
estimates
be
inflated.

We
understand
and
respect
the
Agency's
need
to
have
sufficient
closure
funds
in
place
to
close
facilities
which
may
be
abandoned
or
unable
to
perform
closure
themselves
in
order
to
be
protective
of
human
health
and
the
environment.
However,
there
needs
to
be
a
reasonable
method
for
estimating
closure
costs
that
both
the
Agency
and
the
regulated
community
can
agree
upon.

Two
of
the
options
discussed
in
the
proposal
seem
to
be
moving
towards
a
reasonable
approach
for
estimating
closure
costs
that
all
parties
can
agree
upon:
Option
4
"
Standard
Form
for
Estimating
Closure
Costs,"
and
Option
5
"
Default
Estimates
for
Estimating
Closure
Costs."
The
standard
form
option
(#
4)
would
help
standardize
the
estimating
process
so
that
the
methodology
is
in
place,
and
facilities
can
seek
cost
information
from
vendor
and
other
sources
to
"
plug­
in"
to
the
forms.
The
cost
estimating
methodology
is
often
the
most
difficult
issue
between
the
regulating
agency
and
the
facility,
and
this
standard
form
would
help
remove
the
need
to
argue
that
issue.
The
default
estimate
option
(#
5)
would
use
data
from
available
cost
estimating
methodologies
to
help
facilities
estimate
closure
costs.
This
option
seems
to
even
further
streamline
the
cost
estimating
process
by
also
including
standard
costs
for
closure
activities,
and
would
help
standardize
estimates
among
all
facilities
in
a
given
state.

Of
course,
the
Agency
and
the
regulated
community
will
need
to
reach
agreement
on
the
contents
of
the
methodology
and
sources
of
standard
default
costs
to
be
used
for
both
options
4
and
5
before
implementing
these
options.
Assuming
agreement
will
be
reached
on
these
issues,
once
these
options
are
in
place,
estimating
closure
costs
and
obtaining
approval
from
the
regulating
agency
will
not
be
the
difficult
task
it
is
currently.

We
would
be
happy
to
work
with
the
Agency,
and
the
California
DTSC,
to
provide
assistance
with
sensible
solutions
for
calculating
closure
costs
that
meet
the
needs
of
both
the
regulating
agencies
and
the
regulated
community.
Thank
you
for
the
opportunity
to
submit
these
comments.
Please
do
not
hesitate
to
contact
me
if
you
have
any
questions
concerning
these
comments,
or
require
additional
information.
(
Edward
A.
Vitarelli,
Environmental
Analyst,
Paul
Hastings,
Janesfsk,
and
Walker,
LLP,
RCRA­
2001­
0029­
0062)

Response:
EPA
agrees
that
the
use
of
Options
4
or
5
may
streamline
the
cost
estimating
process
within
a
state.
Therefore,
EPA
has
included
the
descriptions
of
the
options
in
the
docket
to
this
rule.
However,
as
in
the
proposal,
EPA
is
not
requiring
the
use
of
any
particular
option
for
estimating
closure
costs,
but
in
response
to
the
comments
on
the
proposal
requiring
a
closure
plan
up
front
as
part
of
the
permitting
process
which
EPA
expects
will
improve
cost
estimates.

Comment:
The
ETC
strongly
opposes
any
requirement
to
use
cost
estimating
software.
66
FR
52217
col
3.
The
methods
currently
available
are
inaccurate,
overly
conservative,
and
unreliable.
The
ETC
is
not
surprised
that
the
agency's
comparison
of
actual
facility
cost
estimates
with
the
147
estimates
produced
by
cost
estimating
methodologies
showed
a
pattern
of
lower
estimates
from
facility
operators.
66
FR
52218
col
1.
The
operators
rely
on
actual
cost
information
based
on
vendor
quotes
and
experience,
while
the
cost
estimating
software
utilizes
outdated
and
inaccurate
inputs
and
overly
conservative
assumptions.
We
are
aware
of
costing
software
the
over­
estimates
closure
costs
by
as
much
as
10
times
compared
to
estimates
that
have
been
carefully
and
accurately
prepared
and
verified
by
facility
operators.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
EPA's
proposal
and
this
final
rulemaking
do
not
include
a
requirement
to
use
cost
estimating
software.
The
proposal
had
included
a
simplified
method
that
a
company
could
use
to
estimate
closure
costs
if
it
did
not
want
to
use
more
rigorous
methods.
EPA
noted
that
this
method
had
a
tendency
to
overestimate
costs,
but
EPA
believed
that
for
at
least
some
companies,
this
overestimation
would
not
present
an
obstacle
to
use
of
the
simplified
cost
estimating
method.
In
the
final
rule,
since
a
closure
plan
is
now
required
with
the
permit
application,
and
EPA
has
adopted
language
for
the
closure
cost
estimate
that
is
consistent
with
that
for
traditional
permits.
The
regulation
does
not
require
the
use
of
any
cost
estimating
software.

40.
Option
4:
Standard
forms
for
estimating
closure
costs
(
VII.
I.
6)

Comment:
At
a
minimum,
regarding
option
4,
standard
forms
for
estimating
costs
should
be
adopted
and
the
closure
plan
and
cost
estimates
should
be
submitted
initially
with
the
permit
application.
(
William
C.
Gidley,
Waste
Management
Section
Supervisor,
Nebraska
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0046)

Response:
In
its
regulation,
EPA
is
not
requiring
the
use
of
forms
in
Option
4.
In
the
proposal,
these
forms
were
included
as
guidance,
and
EPA
has
for
cost
estimates
required
that
they
meet
the
same
criteria
as
for
traditional
permits.
In
addition,
the
final
regulation
requires
the
submission
of
the
cost
estimate
with
the
closure
plan
as
part
of
the
permit
application.
Under
RCRA
a
state
may
adopt
regulations
that
are
more
stringent
than
the
federal
regulations.
A
state
may
elect
to
require
the
use
of
a
standard
form
such
as
Option
4.

Comment:
The
closure
cost
estimates
should
be
the
most
expensive
that
the
facility
could
reasonably
incur,
based
on
a
third
party
hired
to
perform
closure.
Inflation
adjustments
should
occur
within
60
days
of
the
anniversary
of
the
financial
instrument.
The
financial
test
should
be
updated
within
30
days
after
the
facility
closes
its
fiscal
year.
A
trust
fund
should
be
fully
funded
within
three
years,
not
five.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)
148
Response:
In
the
final
rule,
EPA
has
required
that
he
cost
estimates
be
based
upon
the
cost
of
final
closure
at
the
point
in
the
facility's
active
life
when
it
operations
would
make
closure
the
most
expensive,
and
be
based
upon
the
cost
of
a
third
party
performing
closure.
The
inflation
adjustments
will
have
the
deadlines
recommended
by
the
commenter,
and
already
included
in
the
regulations
for
traditional
permits.
For
reasons
explained
more
fully
in
the
section
on
trust
funds,
EPA
decided
to
maintain
the
proposed
three
year
pay­
in
period.

Comment:
Michigan
often
refers
to
the
cost
estimating
software
and
forms
developed
by
Tetra
Tech
EM
Inc.,
the
EPA
contractor
identified
in
the
preamble.
However,
the
software
and
forms
should
only
be
used
for
developing
a
detailed
cost
estimate
based
on
a
detailed
closure
plan.
Information
from
the
detailed
closure
plan
is
used
to
work
through
the
cost
estimating
software
and
forms
and
is
essential
to
determining
whether
reasonable
costs
have
been
estimated
for
all
relevant
closure
items.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
EPA
is
not
requiring
the
use
of
any
particular
cost
estimating
software
in
this
regulation.
Based
upon
this
comment
and
others
EPA
in
the
final
rule
is
requiring
the
submission
of
a
closure
plan
with
the
detailed
closure
cost
estimate
as
part
of
the
permit
application.

Comment:
As
noted
in
the
previous
question,
Safety­
Kleen
believes
that
a
detailed
closure
plan
is
the
most
accurate
method
for
determining
the
closure
cost
estimates.
We
would
support
the
use
of
standardized
forms
for
estimating
closure
costs
as
detailed
in
EPA
Option
#
4
in
the
proposal.
A
standardized
form
for
each
unit
type
would
ensure
that
the
same
level
of
detail
is
applied
to
each
closure
cost
estimate.
A
standardized
form
would
also
be
easier
for
the
permitting
agency
to
review,
thus
expediting
the
review
time.

Safety­
Kleen
does
not
believe
that
EPA
should
provide,
suggest
or
endorse
default
estimate
vendors
or
packaged
software
in
the
preamble
or
in
the
regulatory
language
of
the
final
rule.
Safety­
Kleen
has
direct
experience
with
these
packages
and
as
found
that
closure
costs
are
inflated
as
much
as
10
times
the
actual
cost,
resulting
in
excessive
premiums
for
financial
assurance.
Through
analysis
we
have
determined
that
the
program
costs
are
grossly
inflated
for
almost
all
items
and
some
build
in
remediation
costs
before
any
type
of
remediation
determination
has
been
made.
Safety­
Kleen
requests
that
EPA
not
include
references
to
specific
vendors
in
the
final
rule
and
indicate
that
the
use
of
these
packaged
programs
are
optional.

Safety­
Kleen
does
not
believe
that
EPA
should
calculate
closure
cost
estimates,
or
develop
a
cost
estimate
matrix
based
on
historical
data.
Prices
have
the
potential
to
change
from
region
to
region
depending
on
transportation
costs
and
disposal
capacity.
Any
use
of
historical
data
has
to
take
into
account
regional
variations
and
needs
to
be
flexible
enough
to
account
for
recent
market
changes
that
almost
certainly
will
apply
in
the
future,
but
which
were
not
reflected
in
historical
data.
We
feel
that
it
is
most
appropriate
for
the
hazardous
waste
facilities
to
determine
the
closure
cost
149
estimates
based
on
knowledge
of
pricing
in
the
area
and
a
detailed
knowledge
of
the
waste
in
question.
Safety­
Kleen
does
not
feel
that
a
model
designed
by
EPA
would
take
into
account
these
regional
variations
in
price
and
that
the
closure
cost
estimates
would
not
be
accurate.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Response:
Based
upon
this
and
other
comments,
EPA
has
decided
to
require
the
submission
of
a
closure
plan
as
part
of
the
permit
application,
and
to
require
that
the
closure
cost
estimate
be
based
upon
the
closure
plan.
In
the
final
regulation,
EPA
has
required
the
submission
of
a
detailed
closure
cost
estimate.
The
applicant
may
find
that
Option
4
provides
a
vehicle
for
providing
such
an
estimate,
or
a
state
may
be
more
stringent
than
EPA
and
in
its
regulations
require
the
use
of
a
standardized
form,
but
EPA
is
not
requiring
such
a
form
in
its
regulations.

EPA
is
not
providing,
suggesting
or
endorsing
default
estimates
in
the
final
rule.
Several
commenter
objected
to
Option
5
and
EPA
is
not
pursuing
it
in
the
final
rule.

EPA
is
not
estimating
closure
costs
using
historical
data
for
individual
facilities
in
the
final
rule.
Rather
than
EPA
providing
a
model,
the
final
rule
requires
that
the
applicant
provide
a
detailed
closure
cost
estimate
in
accordance
with
the
requirement
of
40
CFR
267.142.

Comment:
We
feel
that
sampling,
analytical,
and
waste
disposal
costs
make
up
the
majority
of
closure
costs.
Therefore
the
information
most
crucial
to
estimating
closure
costs
would
be;
a)
Volume
of
hazardous
waste
inventory,
b)
volume
of
waste
generated
during
cleanup
activities,
c)
quantity
of
samples
taken,
d)
cost
per
volume
of
waste
disposal,
cost
per
sample
for
sampling
and
analysis.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
In
the
preamble
to
the
standardized
permit
rule,
EPA
requested
comments
on
which
information
in
the
draft
forms
would
be
the
most
crucial
for
developing
cost
estimates
in
light
of
EPA's
proposal
to
allow
the
submission
of
the
closure
plan
after
the
permit
application
and
to
only
require
it
180
before
closure.
Because
the
permit
applicant
would
not
necessarily
have
a
closure
plan
when
developing
the
cost
estimate,
EPA
had
included
several
options
for
estimating
closure
costs
including
a
blank
form
that
requested
certain
information.
Missouri's
comment
responded
to
a
request
in
the
preamble
to
the
proposal
for
information
on
which
types
of
information
are
most
critical
for
estimating
closure
costs.
Because
in
the
final
rule,
EPA
is
requiring
the
submission
of
the
closure
plan
and
the
cost
estimate
with
the
permit
application,
EPA
is
not
developing
the
blank
form
further
since
it
is
unnecessary
for
developing
a
cost
estimate.
150
Comment:
We
support
the
proposal
for
EPA
to
develop
standard
forms
that
operators
could
use
to
estimate
the
costs
of
closing
units.
66
FR
52218
col
3.
The
forms
would
not
contain
costs
for
specific
closure
activities,
but
would
provide
a
methodology
that
will
help
reduce
the
burden
by
standardizing
the
cost
estimating
process.
The
information
that
is
most
crucial
for
estimating
the
cost
of
closure
of
an
eligible
unit
are
the
costs
of
(
1)
removal
and
disposal
of
maximum
inventory
of
hazardous
wastes
and
decontamination
residues;
(
2)
equipment
for
decontamination
and,
if
appropriate,
demolition
of
structure;
(
3)
testing
and
analytical
program;
(
4)
labor.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
See
response
to
Missouri
directly
above
this
comment.

41.
Option
5:
Default
estimates
for
estimating
closure
costs
(
VII.
I.
7)

Comment:
As
stated
previously,
software
or
forms
used
to
develop
cost
estimates
must
be
used
in
conjunction
with
detailed
closure
plans.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
EPA
agrees
with
the
commenter
that
a
detailed
closure
plan
should
be
submitted
with
the
application.

Comment:
The
ETC
opposes
any
requirement
to
use
data
from
available
cost
estimating
methodologies
to
develop
default
cost
estimates
for
storage
units.
66
FR
52219
cols
2­
3.
As
stated
above,
ETC
members
have
found
the
currently
available
software
packages
to
be
grossly
inaccurate
and
unreliable.
We
do
not
believe
that
EPA
should
be
endorsing
this
approach
in
the
proposed
rule.
The
facility
operator
should
obtain
verifiable
cost
data
for
use
in
developing
his
closure
cost
estimates.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
EPA
did
not
propose
to
require
using
data
from
default
cost
estimates
for
storage
units.
EPA
solicited
comments
on
the
alternative
of
using
default
estimates
as
a
way
for
companies
to
estimate
closure
costs
in
the
absence
of
a
closure
plan.
Because
the
final
regulation,
in
response
to
comments
such
as
the
Environmental
Technology
Council's,
requires
the
submission
of
a
closure
plan,
EPA
can,
and
will,
require
that
the
closure
cost
estimate
be
based
upon
the
closure
plan.
As
noted
in
the
preamble
to
the
proposal,
66
FR
22220
column
1,
the
use
of
option
5
was
not
a
regulatory
requirements.

"
While
we
have
discussed
these
alternative
methods
of
estimating
closure
costs,
the
purpose
of
the
proposed
regulatory
requirement
for
those
of
you
operating
under
the
standardized
permit
remains
the
same
as
for
a
facility
currently
operating
under
a
Part
264
permit
or
under
interim
status.
Under
proposed
§
267.142
you
would
be
required
to
have
a
closure
cost
estimate
that
ensures
you
have
sufficient
funds
151
available
to
close
your
facility
properly.
While
options
4
and
5
provide
simplified
methods
of
estimating
these
costs,
you
would
still
be
responsible
for
ensuring
that
the
use
of
these
methods
provides
an
estimate
that
will
cover
the
costs
of
closure
by
a
third
party."

EPA
agrees
that
the
facility
operator
should
obtain
verifiable
cost
data
for
use
in
developing
cost
estimates.
EPA
notes
that
the
commenter
provided
no
data
to
allow
verification
of
the
commenter's
claim
that
the
currently
available
software
packages
are
grossly
inaccurate
and
unreliable.

42.
Option
6:
Waiving
the
cost
estimate
for
facilities
using
the
financial
test
or
corporate
guarantee
(
VII.
I.
8)

Comment:
Cost
estimates
are
just
as
relevant
for
large
corporations
who
can
pass
a
financial
test
as
they
are
for
smaller
companies
who
must
use
letters
of
credit,
trust
funds,
and
other
negotiable
financial
mechanisms
to
demonstrate
financial
assurance
for
closure.
Further,
the
larger
corporations
are
also
more
likely
to
have
multiple
facilities
covered
under
a
financial
test
or
corporate
guarantee,
thereby
compounding
the
uncertainty
of
financial
assurance
provided
if
detailed
cost
estimates
are
not
required.
Also,
the
statement
in
the
preamble
that
firms
who
can
pass
the
financial
test
have
a
low
probability
of
bankruptcy
is
problematic.
At
best,
the
financial
test
indicates
whether
a
firm
should
be
able
to
pay
for
its
closures
without
substantially
compromising
the
strength
of
its
balance
sheet
at
the
moment
in
time
that
the
year­
end
financials
were
developed.
The
financial
test
is
not
a
predictor
of
bankruptcy.
Cost
estimates
must
be
provided
by
all
owners
and
operators.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Comment:
Cost
estimates
from
all
entities
should
be
required
and
cost
estimates
from
those
entities
that
use
the
financial
test
or
corporate
guarantee
should
not
be
waived.
Companies
routinely
change
from
a
financial
test
to
other
mechanisms
when
they
fail
the
test
one
year.
If
the
financial
test
were
waived,
we
would
have
to
ask
the
company
to
procure
a
Letter
of
Credit,
but
we
would
not
know
what
the
amount
should
be.
In
fact,
if
anything,
EPA
should
reconsider
the
financial
test
and
corporate
guarantee
as
financial
assurance
mechanisms
after
the
financial
meltdown
of
Enron
and
the
many
other
publicized
financial
scandals
of
Fortune
500
companies
with
audited
financial
statements.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
The
ETC
does
not
believe
that
the
closure
cost
estimate
should
be
waived,
even
for
facilities
that
demonstrate
financial
assurance
using
the
financial
test
or
corporate
guarantee.
66
FR
52220
col
1.
We
believe
that
a
carefully
prepared
closure
plan
and
reliable
cost
estimate
are
essential
guarantees
to
the
community
that
the
facility
will
close
its
operation
in
a
responsible
152
manner,
and
we
do
not
believe
that
these
requirements
should
be
waived
even
for
storage
units
subject
to
standardized
permits.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Comment:
Closure
cost
estimates
from
all
entities
should
be
required
and
cost
estimates
from
those
entities
that
use
the
financial
test
or
corporate
guarantee
should
not
be
waived.
Companies
routinely
convert
from
a
financial
test
to
other
financial
assurance
mechanisms
when
they
no
longer
meet
the
requirements
of
the
financial
test.
If
the
requirement
to
submit
a
closure
cost
estimate
were
waived
and
the
company
had
to
procure
another
mechanism,
the
regulatory
agency
would
not
know
what
the
amount
of
the
mechanism
should
be.
Instead
of
providing
additional
benefits
to
users
of
the
financial
test,
EPA
should
focus
on
reevaluating
the
ability
of
the
financial
test
to
screen
out
those
companies
at
risk
of
financial
failure
considering
the
well­
publicized
financial
difficulties
and
accounting
scandals
of
several
Fortune
500
companies
in
recent
years.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Comment:
EPA
is
seeking
public
comment
on
not
requiring
a
firm
to
prepare
a
closure
cost
estimate
for
units
covered
by
the
standardized
permit
if
it
passes
the
financial
test
and
can
cover
all
of
its
other
obligations
with
the
financial
test.

If
a
facility
uses
the
financial
test
and
the
facility
subsequently
declares
bankruptcy
(
and
it
can
happen),
determination
of
the
claim
to
the
bankruptcy
court
would
be
more
difficult
and
expensive
to
prepare.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
API
supports
eliminating
the
requirement
for
a
closure
cost
estimate
for
firms
that
use
a
financial
test
to
fulfill
financial
assurance
requirements.
The
stringency
of
the
financial
test
mechanism
ensures
that
there
is
adequate
funding
available
to
close
a
site
at
the
time
when
it
is
storing
the
maximum
possible
quantity
of
hazardous
wastes.
This
is
even
clearer
if
EPA
applies
the
new
financial
test
requirement
for
demonstrating
the
availability
of
$
10
million
beyond
all
estimated
costs
associated
with
items
for
which
financial
assurance
is
required.

Existing
facilities
that
have
already
prepared
a
closure
cost
estimate,
demonstrated
financial
assurance
for
closure
and
liability
should
not
be
required
to
revisit
these
issues
if
they
switch
to
a
standardized
permit.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Response:
In
the
proposed
regulatory
language,
EPA
had
included
the
requirement
for
a
closure
cost
estimate
for
facilities
seeking
a
standardized
permit.
However,
in
the
preamble
EPA
requested
comment
on
the
option
of
not
requiring
a
cost
estimate
for
facilities
that
were
using
the
financial
test
for
their
other
operations.
Commenters
noted
that
companies
change
financial
assurance
mechanisms
and
move
from
being
eligible
for
the
financial
test
to
third
party
mechanisms,
and
Missouri
expressed
concern
with
having
no
cost
estimate
if
a
facility
should
experience
bankruptcy.
EPA
agrees
with
the
commenters
that
these
concerns
153
would
complicate
acquiring
new
financial
assurance
and
so
has
not
allowed
this
option
in
the
final
rule.

API's
comment
recommends
that
the
regulation
not
require
existing
facilities
to
revisit
their
financial
assurance
instruments
or
closure
cost
estimate.
EPA
disagrees
with
this
recommendation
because
some
existing
facilities
are
operating
under
interim
status
and
so
have
not
had
these
documents,
and
the
closure
plan,
reviewed
as
part
of
the
permitting
process.
For
facilities
that
have
operated
under
a
tradition
permit
and
seek
a
standardized
permit,
the
burden
of
submitting
the
information
as
part
of
the
permit
application
should
not
be
excessive,
and
will
ensure
that
the
permitting
authority
has
the
ability
to
check
the
most
recent
version
of
the
closure
cost
estimate
with
the
closure
plan
and
ensure
that
the
amount
of
the
financial
assurance
instruments
is
at
least
equal
to
the
cost
estimate.

43.
Financial
assurance
for
closure
(
VII.
I.
10)

Closure
Trust
Funds
Comment:
PAY­
IN
PERIODS.
There
is
only
a
three­
year
pay
in
period
for
any
closure
assurance
trust
fund.
This
rate
of
funding
may
be
a
severe
strain
for
most
generators.
There
is
a
60­
day
pay
in
period
for
an
interim
status
facility
wanting
to
change
to
Standardized
Permit.
This
is
really
short.
What
would
be
any
advantage
to
an
existing
facility
to
change
to
a
RCRA
Standardized
Permit?
Would
there
therefore
be
any
reason
to
expedite
the
change?
If
not,
maybe
an
interim
status
facility
would
just
keep
paying
on
its
interim
status
closure
assurance,
until
it
was
nearly
fully
funded,
before
switching
to
a
RCRA
Standardized
Permit.
The
apparent
questions
are
of
the
financial
impacts
on
generators
of
the
two
shortened
pay­
in
periods,
and
if
those
impacts
create
a
dis­
incentive
for
pursuing
a
RCRA
Standardized
Permit.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
For
a
facility
that
is
currently
under
interim
status,
the
pay­
in
period
for
a
trust
is
20
years
from
the
effective
date
of
the
closure
financial
assurance
regulations
(
July
6,
1982).
Thus,
as
noted
in
the
preamble
to
the
proposed
rule
on
page
52221,
interim
status
facilities
must
have
fully
funded
trusts
by
the
time
that
the
standardized
permit
regulation
would
become
effective.
Therefore
EPA
anticipates
that
the
payin
period
for
a
trust
fund
is
not
a
financial
disincentive
for
an
interim
status
facility
to
apply
for
a
standardized
permit.

For
a
generator
that
wishes
to
acquire
a
standardized
permit,
EPA
notes
that
there
are
several
options
in
the
regulations
for
providing
financial
assurance
besides
funding
a
trust,
including
letters
of
credit
or
surety
bonds.
For
generators
who
would
not
qualify
for
these
other
instruments
EPA
believes
that
the
three
year
payin
period
in
the
proposal
represents
a
reasonable
compromise
between
the
desire
for
full
funding
of
the
trust
to
ensure
that
facilities
do
not
enter
bankruptcy
before
154
providing
adequate
financial
assurance,
and
the
competing
desire
to
allow
facilities
to
use
the
standardized
permit
even
if
they
are
unable
to
obtain
an
alternative
financial
assurance
instrument.
If
a
generator
would
find
the
burden
of
establishing
financial
assurance
for
closure
too
onerous,
remaining
a
generator
and
moving
the
waste
off­
site
within
the
prescribed
time
limits
could
be
the
environmentally
preferable
alternative
to
allowing
a
generator
to
accumulate
more
waste
and
not
having
the
resources
to
close
the
facility
properly.

Comment:
Closure
trust
fund.
(
Sec.
267.143(
a)).
EPA
proposes
to
that
the
pay­
in
period
for
the
closure
trust
fund
be
three
years.
With
at
least
one
bad
experience
of
inadequate
closure
funds
in
a
partially
funded
trust
fund,
Ecology
suggests
that
trust
funds
be
fully
funded
at
the
point
that
they
are
established.
The
complexities
of
insuring
that
trust
funds
are
funded
on
a
year­
to­
year
basis
are
a
burden
on
the
regulatory
agencies
administering
financial
assurance
rules.
A
facility
that
does
not
have
the
financial
backing
to
place
such
sum
in
a
trust
fund
should
not
be
allowed
to
manage
hazardous
waste,
given
the
costs
that
the
public
incurs
when
the
owners/
operators
walk
away
from
sites
without
proper
cleanup
early
in
the
life
of
the
facility.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Comment:
For
standardized
permits,
it
is
recommended
that
EPA
delete
the
pay­
in
trust
option
in
lieu
of
changing
the
pay­
in
period
to
3
years.
The
concept
behind
decreasing
the
pay­
in
period
from
10
years
noted
that
unlike
landfills,
storage
tanks
and
container
storage
areas
are
not
filled
up
over
a
period
of
time
that
has
any
correlation
to
the
pay­
in
period.
Deleting
the
pay­
in
trust
option
is
more
conservative
by
assuring
the
financial
ability
to
close,
and
regulatory
tracking
is
simplified
by
not
creating
different
pay­
in
periods
of
3
years
for
standardized
permits
and
10
years
for
regular
RCRA
permits.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Comment:
We
recommend
deleting
the
pay­
in
trust
as
a
financial
assurance
option
in
lieu
of
changing
the
pay­
in
period
to
3
years.
In
this
way,
regulatory
tracking
is
simplified
in
that
you
do
not
end
up
with
different
pay­
in
periods
of
3
years
and
10
years.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
We
do
not
agree
with
ASTSWMO's
comment,
which
is
in
favor
of
deleting
the
pay­
in
trust
financial
assurance
option
in
lieu
of
changing
the
pay­
in
period
to
3
years.
We
are
not
in
favor
of
deleting
this
option.
(
William
C.
Gidley,
Waste
Management
Section
Supervisor,
Nebraska
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0046)

Comment:
A
three
year
pay­
in
period
for
trust
funds
for
units
subject
to
a
standardized
permit
is
a
reasonable
approach
for
the
reasons
recited
in
the
preamble.
66
FR
52220
col
3.
We
also
agree
with
the
proposal
to
have
interim
status
and
permitted
facilities
that
wish
to
change
to
a
standardized
permit
to
have
60
days
to
complete
funding
of
a
partially
funded
trust
fund.
66
FR
52221
col
1.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)
155
Response:
EPA
disagrees
with
the
comments
that
a
three
year
pay­
in
period
presents
a
substantial
administrative
complexity
to
state
permitting
authorities.
First,
the
three
year
pay­
in
period
applies
only
to
new
facilities
that
are
seeking
a
standardized
permit
and
wish
to
use
a
trust
fund.
EPA
does
not
expect
that
there
will
be
several
of
these
nationwide,
much
less
in
any
particular
state.
In
the
Economics
Background
Document
supporting
this
rule,
the
Agency
estimates
three
new
units
annually,
nationwide,
and
estimates
that
12%
of
these
will
use
trust
funds.
Second,
the
comment
overlooks
the
fact
that
for
all
closure
trust
funds,
the
permitting
authority,
on
an
annual
basis,
should
be
comparing
the
amount
in
the
trust
with
the
current
closure
cost
estimate
to
ensure
that
the
trust
has
been
appropriately
funded.
The
owner
or
operator
should,
within
sixty
days
of
the
anniversary
of
the
instrument,
have
made
a
payment
to
the
trust
at
least
equal
to
the
difference
between
the
current
cost
estimate
and
the
value
of
the
trust.

The
difference
for
permitting
authorities
reviewing
the
trust
fund
for
a
new
standardized
permit
facility
is
that
the
payments
are
decided
by
a
formula
in
the
regulations
(
40
CFR
267.143(
a)(
2))
that
has
a
different
pay­
in
period
from
the
formula
in
40
CFR
264.143(
a)(
3).
EPA
does
not
anticipate
that
this
will
involve
substantial
administrative
complexity.
Here
is
an
explanation
of
how
the
formula,
which
involves
division
and
subtraction,
works
for
a
new
facility
under
this
rule.
The
permitting
agency
must
ensure
that
the
first
payment
is
at
least
equal
to
the
closure
cost
divided
by
the
number
of
years
in
the
pay­
in
period
(
generally
three).
Thirty
days
after
the
first
anniversary
of
the
instrument,
the
owner
or
operator
should
have
made
a
second
payment
to
the
trust
fund
that
is
at
least
one­
half
of
the
difference
between
the
current
cost
estimate
and
the
current
value
of
the
trust.
Then,
thirty
days
after
the
second
anniversary,
the
owner
or
operator
should
have
made
a
payment
into
the
trust
fund
at
least
equal
to
the
difference
between
the
current
cost
estimate
and
the
value
of
the
trust.
At
this
point,
the
trust
should
be
fully
funded.

The
difference
between
EPA's
approach,
which
was
supported
by
Nebraska
and
the
Environmental
Technology
Council,
and
the
approach
suggested
by
Washington,
Texas,
and
ASTSWMO's
comment
that
EPA
should
require
a
fully
funded
trust,
and
is
that
under
EPA's
proposed
approach
the
value
of
the
trust
is
allowed
to
build
until
25
months
after
the
establishment
of
the
trust,
rather
than
being
immediately
funded.
For
a
new
facility,
the
risk
of
a
partially
funded
trust
is
over
this
25
month
period.

EPA
recognizes
that
a
state
in
adopting
this
rule,
may
decide
to
require
full
funding
of
the
trust
for
new
facilities.
However,
since
the
new
facility
will
generally
have
to
fund
one­
third
of
the
closure
costs
before
accepting
waste,
EPA
anticipates
that
the
risks
from
partially
funded
trusts
will
be
smaller
than
in
the
past.
Because
of
this
substantial
commitment
of
funds,
EPA
expects
that
facilities
will
be
less
willing
to
156
obtain
a
hazardous
waste
standardized
permit
and
then
abandon
the
operation.
EPA
also
notes
that
under
the
Part
264
permit,
a
new
facility
could
potentially
avail
itself
of
a
ten
year
pay­
in
period.
Imposing
a
requirement
for
a
fully
funded
trust
could
simply
have
driven
new
permit
applications
towards
a
Part
264
permit,
with
the
additional
burdens
on
both
the
permitting
agency
and
the
applicant.
EPA
believes
that
the
three
year
pay­
in
period
in
this
rule
provides
a
greater
degree
of
assurance
to
permitting
agencies
than
the
existing
264
requirements.

EPA
has
used
the
three
year
pay­
in
period
for
facilities
establishing
financial
assurance
for
the
storage
of
PCBs
(
40
CFR
761.65(
g)(
1)(
i).
EPA's
experience
has
been
that
facilities
that
cannot
qualify
for
the
financial
test
or
surety
bonds
or
letters
of
credit
establish
trust
funds.
EPA
has
had
no
problems
with
the
three
year
pay­
in
period
in
that
program.

On
balance
EPA
decided
to
maintain
the
three
year
pay­
in
period
of
the
proposed
rule
in
the
final
rule.

Surety
Bonds
Comment:
Some
State
hazardous
waste
regulations
do
not
allow
performance
bonds
as
a
financial
assurance
mechanism.
Although
the
existing
federal
regulations
do
allow
performance
bonds,
for
facilities
with
standardized
permits
it
could
be
particularly
onerous
for
the
regulatory
agencies
to
ensure
that
a
surety
company
performs
a
clean
closure
in
the
event
that
the
facility
is
rapidly
forced
into
bankruptcy
and
does
not
have
an
approved
closure
plan.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Existing
federal
regulations
for
RCRA
allow
the
use
of
performance
bonds
for
financial
assurance.
However,
this
option
would
be
particularly
onerous
for
regulatory
agencies
in
dealing
with
surety
companies
where
the
surety
is
required
to
perform
a
clean
closure
and
the
facility
does
not
have
an
approved
closure
plan
because
their
financial
condition
deteriorated
rapidly.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Response:
EPA
agrees
that
allowing
a
performance
surety
bond
to
be
used
without
an
approved
closure
plan
could
create
problems
in
determining
what
activities
the
surety
must
do
in
performing
closure.
This
is
another
reason
that
EPA
decided
to
require
submission
of
the
closure
plan
with
the
permit
application.

Surety
Bond
and
Letter
of
Credit
for
MSWLFs
Comment:
The
IEPA
feels
that
the
regulations
for
the
Letter
of
Credit
and
the
Bond
should
be
changed
to
require
notification
of
the
owner
or
operator
and
the
respective
State
at
least
120
days
prior
to
expiration,
which
is
the
case
with
Hazardous
Waste
Facility
Letters
of
Credit
and
Bonds.
This
time
frame,
although
short,
provides
adequate
time
for
the
IEPA
to
"
cash"
the
instrument
if
157
no
alternate
financial
assurance
is
provided.
For
example,
recently
it
has
come
to
our
attention
that
on
June
30,
2000,
a
1.8
million
dollar
Performance
Bond
expired
for
Pekin
Landfill,
a
solid
waste
landfill
located
in
Pekin,
Illinois.
To
date,
no
alternate
financial
assurance
has
been
provided.
(
William
C.
Child,
Chief,
Bureau
of
Land,
Illinois
EPA,
RCRA­
2001­
0029­
0080)

Response:
This
comment
is
outside
of
the
scope
of
this
rulemaking
since
it
concerns
municipal
solid
waste
landfills.
However,
because
it
contain
a
mischaracterization
of
its
regulations
for
MSWLFs,
EPA
wants
to
correct
the
misunderstanding.
Both
the
surety
regulations
(
40
CFR
258.74(
b)(
6))
and
the
letter
of
credit
regulations
(
40
CFR
258.74(
c)(
3))
provide
for
120
days
notice
by
certified
mail
to
the
State
Director
and
the
owner
or
operator
before
cancellation.

Insurance:
In
the
preamble
to
the
proposal,
EPA
discussed
the
use
of
insurance
for
financially
assuring
closure
obligations,
and
also
noted
that
there
are
potential
issues
with
the
use
of
captive
insurance.
In
this
document,
this
section
will
deal
with
the
general
topic
of
the
use
of
insurance
for
assuring
closure
costs.
Later
sections
of
the
document
will
contain
the
comments
addressing
captive
insurance
and
ratings
for
insurers.

Comment:
Closure
insurance
should
not
be
allowed
for
facilities
with
standardized
permits
due
to
the
uncertainties
of
insurance
as
an
appropriate
financial
assurance
mechanism
in
general
and
the
potential
problems
associated
with
captive
insurance
in
particular.
If
EPA
does
wish
to
allow
closure
insurance,
the
insurance
policy
must
guarantee
that
funds
will
be
available
for
closure
(
and
post­
closure).
This
requirement
of
the
policy
could
be
canceled
through
re­
insurance
agreements
and
the
regulatory
agency
might
not
be
aware
of
it.
For
example,
a
hazardous
waste
facility
provided
a
State
regulatory
agency
an
insurance
policy
for
closure,
post
closure
and
corrective
action
issued
by
an
excess
lines
insurer.
Even
though
the
insurer
is
a
member
of
a
well
rated
group
of
insurers
(
A+
by
Best
Rating),
the
State
was
informed
that
it
will
be
unable
to
seek
funding
from
any
member
of
the
group,
including
the
parent,
in
the
event
that
the
insurer
providing
the
coverage
has
financial
difficulties.
This
illustrates
that
even
if
the
insurer
meets
the
ratings
assigned
to
the
parent,
it
does
not
guarantee
that
the
funds
will
be
collected.
Consequently,
the
regulatory
agency
might
accept
a
policy
that
will
not
meet
the
condition
of
guaranteed
funds
even
though
the
insurance
company
was
rated
as
A+.
If
EPA
allows
closure
insurance
as
a
financial
mechanism,
EPA
should
promulgate
standardized
policy
conditions,
just
as
there
are
for
all
of
the
other
mechanisms,
to
ensure
that
all
policies
provide
the
type
of
coverage
required
for
closure.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
First
of
all
closure
insurance
should
not
be
allowed
as
a
financial
assurance
mechanism.
Insurance
is
necessary
to
cover
accidents
and
to
protect
the
public
in
case
of
sudden
and
non­
sudden
occurrences.
Insurance
is
not
appropriate
for
an
event
whose
occurrence
is
certain.
We
do
not
have
extensive
experience
with
closure
insurance
but
the
experience
that
we
have
had
has
been
disastrous.
Closure
insurance
was
obtained
by
a
RCRA
facility
in
Augusta,
Georgia
for
an
initial
premium
of
$
8000.00,
the
company
filed
for
bankruptcy
before
the
second
premium
158
became
due.
The
estimated
cost
to
clean
up
this
site
is
in
excess
of
eight
million
dollars.
The
insurer's
attorneys
are
interpreting
the
policy
very
narrowly.
Our
only
option
is
to
initiate
legal
action
against
an
out
of
state
insurance
company.
We
do
not
have
the
resources
to
engage
the
insurer
on
this
matter.
This
RCRA
TSD
is
being
closed
and
cleaned
up
by
our
state
clean
up
program.
Although
a
minimum
rating
should
be
required
of
insurance
companies,
it
is
not
enough
to
guarantee
the
adequacy
of
insurance
policies;
the
insurance
policies
are
very
long
and
complicated
and
are
designed
to
protect
the
interests
of
the
insurance
companies.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
EPA's
regulations
in
40
CFR
264.151
do
not
specify
policy
language.
Instead,
the
regulations
specify
the
language
for
the
certificate
of
insurance.
In
the
certificate,
the
insurer
(
1)
certifies
that
the
policy
meets
the
requirements
of
the
regulations
for
closure
insurance,
(
2)
agrees
that
any
provision
of
the
policy
inconsistent
with
the
regulations
is
hereby
amended
to
remove
such
inconsistency,
and
(
3)
agrees
to
make
available
a
duplicate
original
of
the
policy
and
all
endorsements
thereon.

In
reviewing
ASTSWMO's
comment,
EPA
contacted
the
commenter
to
seek
clarification
of
some
of
the
points
raised.
The
commenter
noted
that
closure
insurance
policies
can
present
difficulties
for
permitting
agencies
because
the
regulations
do
not
specify
the
language
of
the
policies,
but
only
the
language
of
the
certificate
of
insurance.
The
commenter
noted
that
endorsements
can
require
a
careful
review
to
ensure
that
they
have
not
changed
the
terms
of
the
policy
in
a
way
that
would
render
it
inconsistent
with
the
regulatory
requirements.
Also,
the
commenter
clarified
that
the
concern
over
payment
by
policies
included
concern
that
insurers
could
become
insolvent,
as
occurred
with
Reliance
Insurance,
and
be
unable
to
pay
claims.

Although
EPA
agrees
that
insurance
policies
can
require
a
careful
review,
the
rights
and
obligations
under
insurance
policies
issued
to
satisfy
state
or
federal
financial
assurance
requirements
are
controlled
by
those
requirements.
Thus,
where
a
policy
is
issued
to
comply
with
RCRA
financial
assurance
requirements
set
forth
in
statutes
or
regulations,
those
requirements
will
be
read
into
the
policy
and
the
policy
will
be
effectively
amended
to
conform
to
the
statute.
Non­
conforming
provisions
are
null
and
void.
See,
Holmes­
Appleman
on
Insurance,
Section
22.1
et
seq.,
esp.
pp.
365,
368,
379,380;
Couch
on
Insurance,
Third
Edition,
Sections
19:
1,
19:
5
and
19:
11.

We
also
agree
with
the
later
portion
of
the
ASTSWMO
comment
that
"
the
insurance
policy
must
guarantee
that
funds
will
be
available
for
closure."
In
the
proposal,
we
had
proposed
that
insurance
as
specified
in
40
CFR
264.143(
e)
would
be
an
allowable
mechanism.
40
CFR
264.143(
e)(
4)
states
"
The
insurance
policy
must
guarantee
that
funds
will
be
available
to
close
the
facility
whenever
final
closure
occurs.
The
policy
must
also
guarantee
that
once
final
closure
begins,
the
159
insurer
will
be
responsible
for
paying
out
funds,
up
to
the
amount
of
the
policy,
upon
the
direction
of
the
Regional
Administrator,
to
such
party
or
parties
as
the
Regional
Administrator
specifies."
We
believe
that
this
language
addresses
the
concern
in
the
ASTSWMO
comment
regarding
the
need
to
guarantee
that
funds
will
be
available
for
closure.

Georgia's
argument
is
that
insurance
should
not
be
allowed
as
a
financial
assurance
mechanism
for
closure
because
closure
is
a
sure
event.
The
presumption
is
that
insurance
is
only
for
risk
and
not
certain
events.
EPA
has
noticed
that
insurance
is
used
in
a
variety
of
contexts,
where
insurers
demand
premiums
that
presumably
reflect
the
probability,
timing,
and
size
of
a
pay
out,
including
for
seemingly
sure
events.
Many
insurers
offer
life
insurance,
for
example,
despite
the
commonly
accepted
wisdom
of
the
inevitability
of
death.

EPA
is
sympathetic
regarding
the
problems
which
Georgia
may
have
encountered
in
attempting
to
secure
payment
under
the
policy.
Georgia
notes
that
securing
payment
could
involve
using
the
courts
in
another
state.
This
does
not,
however,
appear
to
be
unique
to
insurance.
Potentially,
any
financial
assurance
instrument
could
involve
recourse
to
the
courts
to
secure
payment.

Financial
Test
and
Corporate
Guarantee
Comment:
The
EPA
seeks
comment
on
its
proposal
to
eliminate
the
report
from
the
independent
certified
public
accountant
for
financial
tests
except
in
instances
where
the
agencies
cannot
verify
financial
data
in
the
chief
financial
officer's
letter.
The
report
from
the
independent
certified
public
comment
should
not
be
eliminated
or
limited
to
only
that
information
which
is
not
readily
verifiable.
The
agencies
typically
do
not
employ
accountants
or
financial
analysts
to
review
financial
test
submittals.
Rather,
they
rely
upon
the
independent
certified
public
accountant
to
ensure
that
the
data
from
the
year­
end
financial
statements
is
properly
reflected
in
the
chief
financial
officer's
letter.
This
independent
third
party
verification
is
essential
to
the
integrity
of
the
financial
test
submittal.
While
some
of
the
entries
in
the
chief
financial
officer's
letter
are
derived
directly
from
the
balance
sheet
and
income
statements,
others
require
calculations
on
amounts
in
those
statements,
and
other
information
that
is
not
intuitively
obvious
from
them.
For
example,
some
firms
treat
their
employee
pension
benefit
liabilities
differently
in
the
financial
test
than
they
do
in
their
year­
end
financial
statements.
The
agencies
should
not
be
left
at
the
mercy
of
the
firms
and
their
accountants
to
determine
what
is
readily
verifiable
financial
data
that
does
not
require
a
certification,
and
the
agencies
do
not
have
the
necessary
resources
and
should
not
be
required
to
conduct
detailed
reviews
of
the
financial
statements
to
ensure
that
the
financial
data
is
accurately
reflected
in
the
financial
test
tables;
this
is
already
done
well
by
the
independent
certified
public
accountants.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)
160
Comment:
The
EPA
requests
comment
on
whether
to
prescribe
language
for
the
chief
financial
officer's
letter
for
the
financial
test.
Both
the
firms
and
the
agencies
need
to
know
what
is
expected
for
financial
tests.
The
financial
test
is
probably
the
least
burdensome
financial
mechanism,
at
least
from
a
cost
perspective,
so
to
leave
the
wording
of
the
chief
financial
officer's
letter
to
chance
will
not
benefit
anyone,
and
it
could
potentially
result
in
a
greater
burden
on
both
the
agencies
and
the
firms
when
questions
arise
over
the
wording
and
revisions
are
required.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Comment:
We
would
recommend
the
use
of
a
standard
format
and
standard
language
for
the
letter
to
be
submitted
by
the
facility's
Chief
Financial
Officer
(
CFO)
as
is
currently
prescribed
in
40
CFR
264.151(
f).
This
would
make
compliance
easier
for
the
permittee
as
well
as
standardize
the
data
submitted
for
ease
of
review
by
the
agency.
If
a
waiver
of
the
closure
cost
estimate
is
allowed
as
described
in
"
Option
6",
it
should
be
ensured
that
information
concerning
all
environmental
obligations
listed
at
40
CFR
267.143(
f)(
2)(
i)(
A)(
1)
is
disclosed
and
attested
by
the
CFO
for
the
entire
corporate
entity.

In
addition,
we
agree
that
a
special
report
from
an
independent
certified
public
accounting
firm
is
not
needed
in
instances
where
it
can
be
verified
that
the
financial
data
in
the
CFO's
letter
comes
directly
from
the
company's
audited
financial
statements
and
annual
report
submission.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Comment:
Specific
language
should
be
included
in
the
regulation
for
the
financial
test
mechanism.
In
an
accounting
environment
where
companies
and
their
auditors
are
having
a
difficult
time
following
generally
accepted
accounting
procedures,
liberalizing
this
option
to
allow
companies
to
write
their
own
"
Chief
Financial
Officer"
letter
is
not
prudent.
Experience
with
financial
assurance
mechanisms
has
demonstrated
to
us
that
if
standard
language
is
not
required,
regulatory
agencies
will
bear
the
burden
of
additional
review
time,
companies
will
spend
more
time
answering
regulator's
questions,
and
legal
review
will
often
be
required.
In
addition,
facilities
using
a
financial
test
should
still
be
required
to
prepare
a
cost
estimate,
since
the
costs
associated
with
closure
of
the
units
covered
under
the
standardized
permit
could
be
significantly
greater
than
the
firm's
"
other"
obligations,
and
the
agency
would
still
need
to
verify
that
the
facility
could
cover
the
amount
of
all
of
their
environmental
obligations.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
EPA
was
interested
in
comments
on
the
appropriateness
of
reducing
this
reporting
burden,
whether
this
would
also
be
appropriate
for
facilities
currently
regulated
under
part
264
or
265
and
whether
this
change
would
significantly
reduce
the
reporting
burden
and
by
how
much.

We
feel
that
it
is
more
appropriate
to
require
both
independent
certified
accountants'
reports
for
all
financial
tests.
The
report
on
the
financial
statements
is
already
available
and
the
second
should
not
be
difficult
to
get
at
the
time
of
the
independent
certified
accountants'
examination
of
the
161
financial
statements.
Having
the
independent
certified
accountants
perform
examinations
provides
a
higher
level
of
assurance
of
accuracy.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
EPA
requested
information
from
States
and
the
regulated
community
on
the
need
for
specific
language,
or
whether
the
current
arrangement
used
in
the
municipal
solid
waste
landfill
regulations
(
258.74),
which
does
not
specify
the
language
of
the
letter
is
appropriate.

We
most
emphatically
oppose
discontinuing
the
required
language
of
the
chief
financial
officer's
letter.
As
regulators,
we
are
required
to
review
the
documents.
With
required
language
we
can
simply
check
the
language
and
have
a
measure
of
assurance
that
the
company
is
able
to
meet
the
requirements.
If
there
is
no
required
language,
we
must
closely
examine
and
interpret
each
letter
on
its
own
merits.
This
will
be
time
consuming
for
us
and
confusing
for
the
regulated
community
as
to
what
they
must
include
in
an
acceptable
document.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
EPA
requested
information
from
the
States
on
the
need
for
specific
language
for
the
financial
test.
Specific
language
should
be
included
in
the
regulation
for
the
financial
test
mechanism.
In
an
accounting
environment
where
companies
and
their
external
auditors
are
frequently
being
sued
for
liberal
interpretations
of
generally
accepted
accounting
procedures,
allowing
companies
to
write
their
own
"
Chief
Financial
Officer"
letter
is
not
a
prudent
approach.
Our
experience
with
financial
assurance
mechanisms
has
demonstrated
that
if
standard
language
is
not
required,
regulatory
agencies
bear
the
burden
of
additional
review
time.
Legal
review
will
often
be
required,
and
regulated
entities
will
spend
more
time
responding
to
the
questions
of
regulatory
agencies.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Comment:
EPA
requested
comments
on
suggested
changes
to
language
of
264.151
that
they
should
make
for
consistency
with
the
proposed
standardized
permit
rule.

For
the
most
part
we
agree;
however,
the
proposed
changes
in
the
requirements
of
the
financial
test
for
the
standardized
permit
is
an
exception.
Since
there
are
actual
changes
in
the
requirements
to
pass
the
financial
test,
specific
wording
for
the
new
financial
test
should
be
included
in
the
proposed
regulations.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
EPA
requests
comment
on
allowing
more
flexibility
on
the
language
of
financial
assurance
mechanisms.
We
urge
EPA
not
to
go
down
this
road.
The
states
do
not
have
the
legal
resources
or
the
legal
experience
necessary
to
review
these
documents
on
a
case
by
case
basis.
EPA
should
develop
model
documents
with
required
stipulations
to
insure
their
enforceability.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
EPA
agrees
with
the
comments
that
a
standard
format
and
language
for
the
CFO's
letter
would
assist
the
permittee
and
the
state
permitting
agency
that
would
have
to
162
review
it.
Accordingly,
EPA
provided
regulatory
language
for
the
letter
in
40
CFR
267.151(
a).
That
letter
ensures
that
all
environmental
obligations
of
the
permittee
covered
by
a
financial
test
or
corporate
guarantee
are
listed
and
disclosed.
EPA
agrees
with
Michigan's
comment
that
companies
may
report
information
in
the
chief
financial
officer's
letter
that
is
not
readily
available
from
the
financial
statements.
That
is
why
in
those
circumstances,
the
proposal
would
have
required
a
letter
from
the
auditor
explaining
the
adjustments.
To
reduce
the
burden
on
the
regulatory
agency,
EPA
is
establishing
language
in
the
CFO's
letter
that
will
inform
the
regulatory
agency
whether
the
information
is
taken
directly
from
the
financial
statements.
If
not,
an
auditor's
letter
is
required
which
will
explain
the
derivation
of
the
information.
We
have
also
agreed
with
the
comment
that
a
special
report
is
unnecessary
if
the
information
in
the
CFO's
letter
can
be
verified
directly
from
the
company's
audited
financial
statements.

Comment:
The
ETC
strongly
believes
that
all
of
the
instruments
for
financial
assurance,
including
the
financial
test,
corporate
guarantee,
and
captive
insurance,
should
be
available
for
the
standardized
permit.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
EPA
has
included
a
financial
test
and
corporate
guarantee
in
the
mechanisms
that
the
owner
or
operator
of
a
unit
permitted
under
the
standardized
permit
may
use
to
demonstrate
financial
responsibility.

Comment:
The
IEPA
does
not
believe
that
the
financial
test
can
adequately
assure
that
a
company
can
fulfill
its
financial
assurance
obligation
in
cases
of
bankruptcy.
For
example,
Laclede
Steel,
which
is
a
hazardous
waste
facility
located
in
Alton,
Illinois,
had
fulfilled
its
obligation
for
financial
assurance
by
means
of
the
financial
test
on
March
27,
1998.
Subsequently,
they
notified
the
IEPA
on
December
10,
1998,
that
they
filed
a
voluntary
petition
for
bankruptcy
reorganization
on
November
30,
1998.
In
response
to
this
notice,
the
IEPA
Division
of
Legal
Council
drafted
a
letter
dated
March
8,
1999,
notifying
Laclede
of
its
continued
obligation
to
maintain
financial
assurance.
Subsequently,
on
March
16,
1999,
the
IEPA
received
written
notice
that
Laclede
could
not,
"
at
present,"
demonstrate
financial
assurance
for
post­
closure
care.
Consequently,
on
May
6,
1999,
a
Violation
Notice
was
sent
to
Laclede.
Then,
on
behalf
of
Laclede,
Laclede's
attorney
responded
in
a
letter
dated
June
11,
1999,
maintaining
that
they
were
unable
to
currently
demonstrate
proof
of
financial
assurance.
Therefore,
on
June
24,
1999,
the
IEPA
sent
Laclede
a
letter
rejecting
their
June
11,
1999
response
because
they
did
not
provide
proof
of
any
financial
assurance
nor
did
they
provide
a
time
frame
in
which
they
could
provide
proof
of
financial
assurance.
Later,
on
January
26,
2001,
the
IEPA
received
a
Letter
of
Credit
for
the
amount
of
$
287,000
for
post­
closure
care
financial
assurance;
however,
Laclede's
current
cost
estimate
is
over
3.5
million
dollars
leaving
a
deficit
of
over
3.2
million
dollars
in
an
un­
assured
post­
closure
care
requirement.
(
William
C.
Child,
Chief,
Bureau
of
Land,
Illinois
EPA,
RCRA­
2001­
0029­
0080)
163
Response:
EPA
obtained
additional
information
from
Illinois
on
the
financial
test
submission
by
Laclede
Steel.
Laclede
had
provided
documents
showing
that
it
qualified
for
the
financial
test
because
it
had
almost
$
73
million
in
tangible
net
worth
and
an
investment
grade
bond
rating
(
A+).

EPA's
review
of
this
case
found
that
the
company
had
increased
its
tangible
net
worth
by
adding
in
two
adjustments:
(
a)
$
45
million
for
postretirement
benefits
($
76
million
accrued
postretirement
benefit
cost
less
$
31
million
deferred
tax
asset
on
its
postretirement
benefits),
and
(
b)
$
23
million
for
underfunded
pension
plans
(
an
additional
minimum
pension
liability
for
underfunded
plans
which
resulted
in
a
charge
to
equity
of
$
23
million,
net
of
taxes).
Neither
of
these
two
adjustments
appear
to
be
consistent
with
GAAP
(
generally
accepted
accounting
practices).
While
GAAP
allows
either
an
immediate
or
delayed
method
for
recognizing
post
retirement
benefits
(
See
Financial
Accounting
Standards
106),
neither
method
envisions
increasing
tangible
net
worth
by
the
shortfall
in
the
benefits.
Also,
underfunded
pension
plans
do
not
qualify
as
assets
and
so
their
value
should
not
be
reflected
in
tangible
net
worth.
Without
these
adjustments,
the
company
would
not
have
qualified
for
the
financial
test
since
the
test
requires
a
minimum
of
$
10
million
and
it
would
only
have
had
$
5
million
in
tangible
net
worth.

Laclede
does
not
appear
to
have
had
an
investment
grade
bond
rating.
There
was
no
entry
in
Standard
&
Poor's
bond
rating
manual
for
the
company's
bond
issue.
Further
investigation
disclosed
that
the
company
may
have
"
borrowed"
the
bond
rating
of
a
town
to
"
qualify"
for
the
financial
test.
Since
the
test
requires
that
the
rating
be
on
the
company's
most
recent
bond
issue,
the
company's
submission
failed
to
meet
the
criteria
of
the
test.

While
EPA
is
sympathetic
to
the
problems
Laclede
caused
the
state
of
Illinois,
the
facts
in
this
instance
do
not
support
disallowing
the
use
of
the
financial
test
as
part
of
this
rule.

Comment:
Applicability
of
the
Standardized
Permit/
financial
assurance.
The
standardized
permit
process
is
a
substantial
departure
from
current
permitting
rules.
Therefore,
its
applicability
should
be
limited
only
to
firms
that
currently
have
the
assets
to
qualify
for
the
financial
test
(
and
corporate
guarantee)
as
these
instruments
exist
under
the
current
40
CFR
parts
264
and
265
rules.
If
the
standardized
permitting
approach
appears
to
be
successful
in
the
future,
then
addition
financial
instruments
for
firms
that
are
less
financially
strong
could
be
added,
thereby
expanding
the
number
of
facilities
capable
of
using
the
standardized
permit
approach.
Use
of
standardized
permits
for
financially
weak
corporations/
owners
could
lead
to
the
resulting
cleanup
legacy
such
facilities
would
leave
behind.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)
164
Response:
In
the
final
rule
EPA
has
required
the
submission
of
a
closure
plan
with
the
permit
application,
as
is
the
case
for
permits
under
40
CFR
part
264.
EPA
anticipates
that
this
will
improve
the
adequacy
of
cost
estimates.
With
adequate
cost
estimates,
EPA
anticipates
that
third
party
mechanisms
such
as
letters
of
credit
and
surety
bonds
can
provide
adequate
financial
assurance
for
companies
that
cannot
qualify
for
the
financial
test.

Use
of
the
financial
test
in
conjunction
with
other
mechanisms
Comment:
The
EPA
proposes
to
allow
the
financial
test
to
be
used
in
combination
with
other
mechanisms
for
financial
assurance.
If
a
firm
can
only
meet
a
portion
of
its
closure,
post­
closure,
third­
party
liability,
corrective
action,
and
other
environmental
obligations
with
a
financial
test,
it
is
potentially
only
marginally
capable
of
satisfying
those
obligations
without
a
significant
disruption
to
the
strength
of
its
balance
sheet.

Although
it
may
be
an
unlikely
scenario,
if
a
firm
was
required
to
satisfy
all
of
its
environmental
obligations
within
a
relatively
short
period,
it
could
run
into
financial
difficulties
that
would
prohibit
it
from
satisfying
any
of
them.
The
agencies
would
then
be
left
with
only
the
partial
financial
assurance
provided
by
the
other
mechanisms
­
not
enough
to
satisfy
all
of
the
obligations.
If
a
firm
cannot
cover
all
of
its
environmental
obligations
under
a
financial
test,
it
should
not
be
allowed
to
cover
any
of
them
with
the
financial
test.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
Because
the
financial
test
in
the
standardized
permit
rule
is
a
better
predictor
of
bankruptcy
than
the
test
in
Parts
264
and
265,
the
risk
of
a
facility
qualifying
for
the
test
and
then
entering
bankruptcy
is
lower
than
with
the
Parts
264/
265
tests.
The
test
in
the
proposal
and
the
final
rule
requires
that
the
firm
have
at
least
$
10
million
more
in
tangible
net
worth
than
the
amount
assured
through
a
financial
test.
Disallowing
the
use
of
the
financial
test
in
combination
with
a
third­
party
mechanism
could
establish
the
situation
where
owners
or
operators
each
with
two
facilities
and
each
with
identical
financial
characteristics
and
total
closure
costs
could
have
different
amounts
that
could
be
covered
by
the
financial
test,
based
upon
how
the
costs
were
distributed
between
their
respective
operations.
For
example,
two
companies
could
both
have
$
12
million
in
tangible
net
worth
and
meet
the
other
requirements
of
the
financial
test
with
identical
financial
statements.
The
first
company
has
two
facilities,
one
with
$
1.6
million
in
closure
costs
and
the
other
with
$
1.4
million
in
closure
costs.
The
second
company
has
one
facility
with
$
2
million
in
closure
costs,
and
another
facility
with
$
1
million
in
closure
costs.
If
EPA
were
to
disallow
the
use
of
the
test
in
combination
with
other
mechanisms,
the
first
company
could
use
the
test
for
only
$
1.6
million
of
the
closure
costs
but
the
second
can
could
use
it
for
$
2
million.

An
all
or
nothing
approach
also
could
increase
the
incentive
to
underestimate
closure
costs,
particularly
for
a
facility
with
a
closure
cost
estimate
only
slightly
165
over
the
amount
that
could
be
covered
by
the
test.
The
approach
in
the
proposed
and
final
rules
is
consistent
with
the
regulations
already
adopted
by
EPA
governing
financial
requirements
for
municipal
solid
waste
landfills,
and
with
an
earlier
proposal
to
revise
the
RCRA
Subtitle
C
financial
test,
which
is
still
under
consideration
(
56
FR
30201,
July
1,
1991),
and
with
regulations
governing
thirdparty
liability
coverage.
EPA
determined
that
it
should
incorporate
this
flexibility
into
the
final
rule,
but
under
RCRA
a
state
may
adopt
more
stringent
regulations.

44.
Liability
requirements
(
VII.
I.
12)

Comment:
EPA
requested
comments
on
whether
this
makes
the
regulation
easier
to
follow,
or
if
we
should
organize
proposed
267.147
in
the
same
order
as
existing
264.147.

We
approve
listing
the
mechanisms
for
liability
in
the
same
order
as
the
mechanisms
for
closure.
We
agree
that
it
makes
the
regulation
easier
to
follow.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
EPA
has
promulgated
the
final
regulation
in
the
order
listed
in
the
proposal
which
is
the
same
order
as
the
mechanisms
appear
for
closure.

Comment:
EPA
stated
"
We
believe
it
would
not
be
appropriate
to
include
the
provisions
of
existing
264.147
(
c)
and
(
d).
These
provisions,
respectively,
allow
the
owner
or
operator
to
request
a
variance
from
the
amount
required
in
264.147
(
a)
,
or
allow
the
Regional
Administrator
to
require
a
different
amount."

We
disagree.
Although
the
proposed
standardized
permit
is
intended
to
rely
upon
limited
interaction
between
the
permittee
and
the
permitting
agency,
it
should
not
preclude
interaction
when
it
is
appropriate.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
EPA
continues
to
believe
that
the
benefits
of
reducing
the
need
for
interaction
between
the
owner/
operator
and
the
permitting
authority
justify
the
reduction
in
flexibility.
EPA
also
notes
that
for
an
owner/
operator
who
wishes
to
take
advantage
of
a
provision
such
as
§
264.147(
c)
can
apply
for
a
permit
under
the
part
264
regulations.
If
the
permitting
authority
were
to
find
that
higher
amounts
of
liability
coverage
would
be
necessary
for
protection
of
human
health
and
the
environment
because
of
the
degree
and
duration
of
risk,
this
could
be
imposed
through
permitting
authority,
and
would
not
require
a
provision
in
§
267.147.

45.
Other
provisions
of
the
financial
requirements
(
VII.
I.
13)
166
Comment:
STATE
ASSUMING
RESPONSIBILITY
FOR
FINANCIAL
RESPONSIBILITY.
California
did
not
adopt
regulations
equivalent
to
40
CFR
section
264.150.
It
remains
unclear
why
a
state
would
choose
to
assume
responsibility
for
a
facility's
financial
responsibility
obligations.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Comment:
We
are
not
aware
of
any
state
that
has
assumed
responsibility
for
a
facility
operator's
compliance
with
financial
responsibility
or
become
the
holder's
of
the
facility's
individual
permit.
66
FR
52223
col
2.
Therefore,
we
do
not
see
a
need
for
§
267.150
in
the
standardized
permit
regulations.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
Based
upon
EPA's
experience
and
these
comments,
we
do
not
believe
that
this
provision
would
be
used
very
often.
On
the
other
hand,
we
also
see
no
harm
in
retaining
this
provision
to
provide
flexibility
should
the
circumstance
warrant
it.
Therefore,
we
have
included
this
provision
in
the
final
rule.

46.
Subpart
I
 
Use
and
management
of
containers
(
VII.
J)

Comment:
1.
Eligibility
of
thermal
treatment
facilities.
The
currently
proposed
revisions
describe
the
scope
of
eligibility
for
a
standardized
permit
in
§
§
124.201
and
270.255
as
follows:

If
you
generate
hazardous
waste
and
then
non­
thermally
treat
or
store
the
hazardous
waste
in
tanks,
containers,
or
containment
buildings,
you
may
be
eligible
for
a
standardized
permit.
We
will
inform
you
of
your
eligibility
when
we
make
a
decision
on
your
permit.

On
its
face,
this
language
suggests
that
storage
or
treatment
in
tanks,
containers,
or
containment
buildings
prior
to
thermal
treatment
is
not
eligible
for
standardized
permitting,
while
post­
thermal
treatment
storage
or
treatment
in
such
units
would
be
eligible.
Nothing
in
the
proposed
rules
or
the
regulatory
preamble,
however,
explains
an
eligibility
distinction
based
upon
pre­
as
opposed
to
post­
thermal
treatment.
In
contrast,
there
are
some
discussions
in
the
preamble
that
imply
that
any
"
facility"
engaged
in
thermal
treatment
of
hazardous
waste
would
not
be
eligible
for
the
proposed
standardized
permit.

In
its
most
direct
and
persuasive
explanation
of
why
thermal
treatment
is
not
eligible
for
coverage
under
a
standardized
permit,
however,
EPA
focuses
upon
regulated
"
activities"
and
"
units"
rather
than
"
facilities:"

Experience
gained
by
the
Agency
and
states
over
the
past
15
years
has
shown
that
the
complexity
of
waste
management
varies
by
type
of
activity.
Some
activities,
such
as
thermal
treatment
and
land
disposal
of
hazardous
waste,
are
more
complex
than
storage
of
hazardous
waste.
We
believe
that
thermal
treatment
and
land
disposal
activities
continue
to
warrant
"
individual"
permits,
prescribing
unit­
specific
conditions .
However,
we
also
believe
that
some
accommodation
can
be
made
for
hazardous
waste
management
practices
in
standardized
units
such
as
tanks,
container
storage
areas,
and
containment
buildings.
167
This
activity­
specific
approach
is
consistent
with
the
original
intent
of
the
RCRA
alternative
permitting
recommendations
issued
by
the
PIT
Task
Force
in
1996.
While
recognizing
that
combustion
facilities
warranted
individualized
permitting,
the
Task
Force
also
noted
that
efficiency
could
be
obtained
through
general
or
hybrid
permitting
at
combustion
facilities
for
"
any
ancillary
units
(
e.
g.,
storage
units)."
The
"
hybrid"
permit
proposed
in
the
original
PIT
Concept
Paper
coincides
with
the
standardized
permit
proposed
in
the
current
rulemaking.

Thus,
EPA
understood
as
early
as
1996
that
technical
concerns
should
not
foreclose
the
use
of
standardized
permits
at
thermal
treatment
facilities
for
ancillary
units
in
which
waste
is
stored
or
treated
in
containers,
tanks,
or
containment
buildings.
The
public
may
have
concerns,
but
these
will
be
adequately
aired
through
the
pre­
application
meeting
conducted
by
the
owner/
operator
and
eventual
public
notice
of
the
Agency's
draft
permit
decision.
These
established
procedures
for
incorporating
public
concerns
into
permitting
decisions
are
a
more
appropriate
regulatory
mechanism
than
a
blanket
prohibition
on
thermal
treatment
facilities'
benefitting
from
streamlined
permitting
reforms.

As
for
the
eligibility
of
facilities
receiving
waste
from
off­
site,
this
seems
an
issue
more
appropriately
addressed
in
the
facility
waste
analysis
plan
or
supplemental
site­
specific
permit
conditions,
rather
than
a
categorical
exclusion
from
eligibility.

CRWI
believes
that
applying
the
standardized
permit
rule
to
diversified
facilities
that
include,
but
are
not
limited
to,
thermal
treatment
can
benefit
the
environment
by
promoting
innovative
treatment
technologies,
waste
minimization,
and
efficient
allocation
of
private
and
public
resources.
A
proposed
amendment
to
§
§
124.201
and
270.255
assuring
that
ancillary
units
at
thermal
treatment
facilities
and
off­
site
treatment
facilities
are
eligible
for
standardized
permits
follows:

If
you
non­
thermally
treat
or
store
hazardous
waste
in
tanks,
containers,
or
containment
buildings
at
your
facility,
these
activities
may
be
eligible
for
a
standardized
permit.
We
will
inform
you
of
your
eligibility
when
we
make
a
decision
on
your
permit
application.
(
Melvin
E.
Keener,
Executive
Director,
Coalition
for
Responsible
Waste
Incineration,
RCRA­
2001­
0029­
0063)

Response:
Our
intent
in
the
standardized
permit
rule
was
not
to
preclude
eligibility
for
thermal
treatment
facilities
that
conduct
storage
operations,
but
to
preclude
units
in
which
thermal
treatment
is
conducted.
In
other
words,
the
final
rule
allows
facilities
to
apply
for
a
standardized
permit
for
their
storage
operations
occurring
in
eligible
units,
including
storage
prior
to,
or
after
thermal
treatment.

The
final
rule
will
limit
the
scope
of
eligible
facilities
to
what
was
proposed,
that
is,
facilities
that
generate
and
then
manage
wastes
on­
site.
We
considered
extending
eligibility
to
off­
site
facilities,
but
considering
commentors
concerns
with
off­
site
facilities
,
we
decided
at
this
time
to
limit
the
rule
to
on­
site
facilities
only.
168
The
Agency
remains
open
to
considering
providing
relief
to
off­
sites
in
future
rulemaking,
(
e.
g.,
Performance
Track),
where
facilities
meeting
certain
performance
criteria
could
enjoy
streamlined
approaches
to
permitting.

Comment:
The
standards
for
the
use
and
management
of
containers
are
basically
the
same
as
the
Part
264
requirements
and
are
reasonable.
The
ETC
agrees
that
the
control
devices
for
the
Subparts
AA
­
CC
should
be
limited
to
the
listed
devices,
including
carbon
adsorption
and
thermal
units,
because
alternative
devices
would
require
more
extensive
performance
testing
and
agency
review.
66
FR
52224
col
2.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
We
appreciate
ETC's
comments.

47.
Would
this
subpart
apply
to
me?
(
VII.
J.
1)

Comment:
EXEMPTING
EMPTY
CONTAINERS.
California's
definition
of
an
"
empty"
container
is
more
stringent
than
the
federal.
This
would
mean
that
some
of
the
containers
exempted
from
regulation
at
a
RCRA
Standardized
Permit
facility
would
still
be
regulated
under
California­
only
requirements.
The
RCRA
exemption
would
allow
authorizing
the
management
of
these
containers
under
one
of
California's
three
onsite
treatment
tiers.
Interested
parties
should
note
that,
in
some
states,
a
generator
may
end
up
exempt
from
a
RCRA
Standardized
Permit,
having
a
RCRA
Standardized
Permit,
or
having
both
a
RCRA
Standardized
Permit
and
another
form
of
state­
only
authorization.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
States
can
modify
the
procedures
and
time­
lines
to
best
fit
their
situations.
We
are
establishing
federal
standards
only
with
this
rulemaking.

Comment:
TANK
APPLICABILITY
CLARIFICATION.
Subpart
J
­
Tank
System
(
Section
267.190
et
al)
states
that
the
Subpart
applies
only
to
above­
ground
and
on­
ground
tanks.
In
this
case,
all
sections
dealing
with
Standardized
Permit
eligibility,
e.
g.
sections
270.67
270.255
should
state
"...
treat
or
store
the
hazardous
waste
in
above­
ground
or
on­
ground
tanks,
containers,
or
containment
buildings...."
to
clarify
that
underground
tanks
are
not
eligible.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
We
will
clarify
in
the
final
rule
that
that
underground
tanks
are
not
eligible
for
the
standardized
permit.

Comment:
169
Comment.
To
be
straightforward,
DoD
believes
it
would
be
better
to
address
the
"
RCRA
empty"
container
exemption
within
section
261.7
rather
than
within
267.

Discussion.
In
the
discussion
on
page
52223
regarding
applicability,
EPA
discusses
the
intent
with
respect
to
residues
in
empty
containers.
EPA
states,
"
Note
that,
under
existing
261.7
and
261.33(
c),
if
you
empty
a
hazardous
waste
from
a
container,
the
residue
remaining
in
the
container
is
not
considered
a
hazardous
waste
if
the
container
is
"
empty"
as
defined
in
261.7.
If
the
container
is
"
empty"
we
are
proposing
that
the
management
of
the
container
would
be
exempt
from
the
requirements
of
this
subchapter."
The
related
proposed
text
in
267.170
and
267.1(
b),
however
is
very
convoluted
and
confusing.

Section
267.170
states,
"
This
subpart
applies
to
you
if
you
own
or
operate
a
facility
that
treats
or
stores
hazardous
waste
in
a
container
under
a
40
CFR
270,
subpart
I
standardized
permit,
except
as
provided
in
267.1(
b)."
Section
267.1(
b)
in
turn
states,
"
This
part
applies
to
owners
or
operators
of
facilities
who
treat
or
store
hazardous
waste
under
40
CFR
part
270,
subpart
I
standardized
permit,
except
as
provided
otherwise
in
40
CFR
261,
subpart
A "

DoD
believes
it
would
be
more
straightforward
to
simply
modify
the
existing
language
in
261.7(
a)(
1)
directly
to
include
267.
The
modification
would
read,
"
Any
hazardous
waste
remaining
in
either
(
i)
an
empty
container
 
is
not
subject
to
regulation
under
parts
261
through
265,
267,
268,
270
or
124
of
this
chapter "

Recommendation.
Address
residues
in
empty
containers
in
section
261.7
directly
rather
than
in
section
267.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Response:
We
agree
with
the
commentor
and
will
make
the
change
in
the
final
rule.

48.
What
would
I
need
to
do
when
I
want
to
stop
using
the
containers?
(
VII.
J.
7)

Comment:
CLOSURE
OF
TANK
SYSTEM.
There
is
a
section,
267.176
dealing
with
closure
of
containers.
However,
there
is
no
parallel
closure
requirement
for
tank
system.
It
should
be
included
as
we
see
tank
closure
is
often
more
complex
than
container
closure.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
Section
267.201
(
What
must
I
do
when
I
stop
operating
the
tank
system?)
provides
closure
information
for
tanks.

49.
Subpart
J
 
Tank
Systems
(
VII.
K)

Comment:
p.
52224,
col.
3
 
The
preamble
states
that,
as
proposed,
standardized
permits
would
not
be
170
available
for
facilities
with
underground
tank
or
in­
ground
tank
systems
because
inspections
will
be
the
basis
for
determining
compliance,
and
underground
and
in­
ground
tank
systems
are
inherently
harder
to
inspect
than
above­
ground
or
on­
ground
systems
and
components.
Notwithstanding,
EPA
requests
comments
on
the
merits
of
excluding
underground
and
in­
ground
tank
systems
from
eligibility
for
standardized
permits.

DOE
agrees
that
underground
and
in­
ground
tank
systems
should
be
excluded
from
eligibility
for
standardized
RCRA
permits.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
Yes.
These
units
require
management
controls
which
are
in
many
cases
much
more
complex
than
above
ground
units.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Comment:
YES,
because
of
the
difficulty
of
verifying
after­
the­
fact
that
standardized
permit
conditions
were
met.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
Safety­
Kleen
agrees
with
EPA's
proposal
to
exclude
underground
and
in­
ground
tank
systems
from
the
standardized
permit
due
to
inspection
difficulties.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Response:
The
final
rule
excludes
underground
and
in­
ground
tank
systems
from
eligibility
for
the
standardized
permit.

Comment:
EPA
proposes
to
exclude
underground
and
in­
ground
tank
systems
from
standardized
permits
because
the
proposed
Part
267
subpart
J
regulations
rely
on
inspections
to
ensure
compliance
with
the
standardized
permit,
and
underground
tanks
and
in­
ground
tank
systems
"
are
inherently
harder
to
inspect"
than
aboveground
tanks.
Id.
at
52224.
The
Agency
explains
that
40
C.
F.
R.
§
264.192(
a)(
4)
(
tanks
adversely
affected
by
vehicular
traffic)
and
40
C.
F.
R.
§
264.192(
c)
(
new
tank
systems
that
are
backfilled)
would
not
be
carried
over
in
the
proposal.
Id.
at
52225.
It
is
unclear
why
only
these
specific
sections
of
264.192
would
not
be
included
in
the
final
rule,
while
perhaps
others
would.
Additionally,
many
performance
standards
under
section
264.192
can
not
easily
be
met
by
inspection,
but
nonetheless
remain
part
of
current
regulations.

USWAG
therefore
disagrees
with
EPA's
proposal
to
exclude
underground
and
in­
ground
tanks
from
standardized
permits
and
encourages
the
Agency
to
include
a
provision
in
its
final
rule
similar
to
that
currently
found
in
40
C.
F.
R.
§
264.192.
We
understand
that
inspection
of
underground
and
in­
ground
tank
systems
is
perhaps
more
time­
consuming
than
inspecting
other
storage
units,
but
regulated
entities
should
have
the
option
to
include
underground
and
in­
ground
storage
tanks
in
their
standardized
permit
if
they
are
willing
to
comply
with
applicable
regulations
that
might
be
171
more
resource­
intensive.
That
decision
should
be
left
to
the
owner/
operator.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
The
intent
of
the
standardized
permit
rule
was
to
make
available
a
streamlined
permitting
approach
for
straightforward
technologies
such
as
tanks,
containers,
and
containment
buildings
which
require
relatively
straightforward
management
controls,
and
are
relatively
easy
visually
inspect.
Underground
and
in­
ground
tanks
are
not
easily
inspected
to
verify
integrity.
In
addition,
because
EPA
believes
that
site­
specific
conditions
would
likely
need
to
be
included
in
the
supplemental
portion
of
the
permit,
including
such
tanks
would
detract
from
streamlining
the
permitting
process.

Comment:
Comment.
DoD
believes
underground
tanks
and/
or
piping
with
adequate
leak
protection
should
be
eligible
for
standardized
permits.

Discussion.
Regarding
eligibility
of
tanks,
on
page
52224
EPA
states,
" 
as
proposed,
underground
or
in­
ground
tank
systems
would
not
be
eligible
for
standardized
permits."
Separately,
on
page
52203,
EPA
discusses
retaining
discretion
to
require
an
individual
permit
even
when
an
activity
qualifies
for
a
standard
permit.
Thus
DoD
believes
the
best
approach
would
be
to
make
underground
and
in­
ground
tank
systems
eligible
for
a
standardized
permit
but
to
allow
the
EPA/
State
the
discretion
to
impose
individual
permits
when
deemed
necessary.

There
are
times
when
it
is
safer
to
store
waste
below
ground.
For
example,
above
ground
storage
of
ignitable
waste
may
present
an
explosion
hazard
in
the
event
of
a
fire
or
other
uncontrolled
event.
Underground
storage
with
adequate
leak
detection
and
protection
may
be
more
protective.

Recommendation.
Flexibility
should
be
built
into
the
permitting
system
by
allowing
underground
tanks
to
qualify
for
standardized
permits
especially
since
the
EPA/
State
retain
the
discretion
to
require
an
individual
permit.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Response:
The
intent
of
the
standardized
permit
rule
was
to
make
available
a
streamlined
permitting
approach
for
straightforward
technologies
such
as
tanks,
containers,
and
containment
buildings
which
are
relatively
easy
visually
inspect.
Underground
and
in­
ground
tanks,
as
well
as
underground
piping,
are
not
as
easily
inspected
to
verify
integrity.
We
believe
allowing
underground
tanks
to
be
eligible
would
only
add
more
time
for
review
and
inspection
of
such
situations.

Comment:
Only
aboveground
tanks
should
be
included
in
standardized
permits.
The
inspection
for
leaks,
the
leak
detection
systems
and
the
tank
integrity
is
far
more
complex
for
in­
ground
and
underground
tanks.
The
variability
of
these
systems
do
not
lend
themselves
to
standardization.
172
Similarly,
underground
piping
should
not
be
allowed
under
a
standardized
permit.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Comment:
Given
the
heightened
risk
for
undetected
releases
of
hazardous
waste
to
the
environment
from
underground
and
in­
ground
tank
systems
we
feel
that
they
should
indeed
be
excluded
from
standardized
permits.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Comment:
The
standards
for
the
use
and
management
of
tanks
are
also
based
on
the
Part
264
requirements
and
generally
are
appropriate.
We
agree
that
all
tanks
should
have
secondary
containment,
without
a
provision
for
waivers.
66
FR
52224
col
2.

We
also
definitely
agree
that
underground
and
in­
ground
tank
systems
should
not
be
eligible
for
a
standardized
permit,
and
that
above­
ground
tanks
with
underground
piping
should
also
not
be
covered.
Underground
tanks
and
piping
pose
significant
risks
of
corrosion,
damage,
and
leakage.
The
standardized
permit
is
dependent
upon
self­
inspection
of
the
covered
units,
and
we
suspect
that
EPA
and
state
inspections
will
be
infrequent
at
best.
Therefore,
only
above­
ground
tanks
and
piping
are
appropriate
for
the
standardized
permit.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
The
final
rule
excludes
underground
and
in­
ground
tank
systems
from
eligibility
for
the
standardized
permit.
Furthermore,
tanks
under
the
standardized
permit
will
be
required
to
have
secondary
containment.

50.
What
are
the
proposed
required
design
and
construction
standards
for
new
tank
systems
or
components?
(
VII.
K.
2)

Comment:
p.
52225,
col.
1
 
The
preamble
mentions
that
design
and
construction
standards
are
not
proposed
for
facilities
with
underground
tank
systems
or
components
because
such
facilities
will
not
be
eligible
for
a
standardized
permit.
Notwithstanding,
EPA
requests
comments
on
whether
underground
piping
connecting
above­
ground
or
in­
ground
tank
systems
should
be
allowed
under
a
standardized
permit.

DOE
sees
no
reason
for
prohibiting
standardized
permits
for
above­
ground
tank
systems
connected
with
underground
piping,
provided
that
the
integrity
of
the
underground
piping
is
verified
and
documented
at
regular
intervals.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
The
intent
of
the
standardized
permit
rule
was
to
make
available
a
streamlined
permitting
approach
for
straightforward
technologies
such
as
tanks,
containers,
and
containment
buildings
which
are
relatively
easy
visually
inspect.
Underground
piping,
on
the
other
hand,
is
not
as
easily
inspected
to
verify
its
integrity.
173
Therefore,
tank
systems
involving
underground
piping
are
not
eligible
for
a
standardized
permit.

Comment:
Sec.
267.194
­
New
Tank
Installation
Requirements
The
title
of
this
section
should
indicate
that
it
applies
only
to
new
tanks.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Response:
We
appreciate
NJDEP's
comments
and
have
made
clarifications
to
the
part
267
requirements
for
tanks.

51.
What
are
the
proposed
preventative
requirements
for
containing
a
release?
(
VII.
K.
6)

Comment:
p.
52225,
col.
2
 
The
preamble
states
that
all
proposed
design,
installation,
and
operating
requirements
of
§
267.195
are
identical
to
the
current
provisions
in
§
264.193,
except
for
the
current
part
264
requirement
to
submit
a
demonstration
to
the
Director
when
the
leak
detection
and
removal
system
cannot
detect
a
leak
within
24
hours
of
it
occurring.
Instead,
the
facility
would
self­
certify
and
document
that
a
leak
or
spill
cannot
be
detected
and/
or
removed
within
24
hours.

DOE
notes
that
neither
the
proposed
§
267.195
nor
the
proposed
§
270.305
("
What
tank
information
must
I
keep
at
my
facility?")
states
the
requirement
that
the
facility
must
self­
certify
and
document
that
a
leak
or
spill
cannot
be
detected
and/
or
removed
within
24
hours.
Accordingly,
DOE
requests
that
EPA
resolve
this
discrepancy
between
the
preamble
and
the
proposed
regulatory
text
in
the
final
rule.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
appreciate
DOE's
comments.
The
final
rule
does
not
provide
for
either
a
demonstration
or
a
self
certification
for
instances
where
leak
detection
and
removal
systems
cannot
detect
a
leak
within
24
hours.
The
standardized
permit
rule
is
intended
for
units
that
are
easily
designed,
and
operated
with
minimal
contingencies.
The
final
rule
requires
a
facility's
secondary
containment
system
to
be
able
to
detect
and
/
or
remove
a
spill
within
24
hours.

52.
Specific
Changes
to
Part
270:
Permit
reapplication
(
VIII.
B.
4)

Comment:
Permit
modification
procedure.
CRWI
supports
the
proposed
modification
procedures
for
standardized
permits.
CRWI
also
generally
supports
the
definitions
of
the
two
types
of
modifications
available
for
standardized
permits;
"
routine
changes"
are
those
that
would
qualify
as
Class
1
and
2
modifications,
and
"
significant
changes"
are
those
that
would
be
Class
3
modifications,
under
40
C.
F.
R.
§
270.42.
However,
the
reliance
on
Appendix
I
 
particularly
as
174
proposed
in
40
C.
F.
R.
§
124.211(
b)(
2)
and
(
3)
 
resurrects
an
unnecessary
procedural
hurdle
that
EPA
sought
to
remedy
in
1988
with
the
promulgation
of
40
C.
F.
R.
§
270.42(
d).

Upon
promulgating
§
270.42
in
1988,
EPA
recognized
that
"
there
will
undoubtedly
be
permit
modification
requests
that
are
not
included
in
Appendix
I."
The
procedures
set
out
at
40
C.
F.
R.
§
270.42(
d)
allow
the
permittee
to
seek
a
Class
1
or
2
classification
based
upon
(
1)
the
similarity
between
the
proposed
facility
modification
and
the
changes
classified
in
Appendix
I,
and
(
2)
the
general
definitions
of
Class
1,
2,
and
3
modifications
set
out
in
40
C.
F.
R.
§
270.42(
d)(
2).
Substantially
paraphrased,
those
definitions
are:

°
Class
1:
Minor
changes
that
keep
the
permit
current
with
routine
changes
to
the
facility.
°
Class
2:
Common
variations
in
the
types
or
quantity
of
wastes
managed
at
the
facility;
technological
advancements;
and
changes
necessary
to
meet
new
regulatory
requirements.
°
Class
3:
Changes
that
so
substantially
alter
the
facility
or
its
operations
that
the
procedural
equivalent
of
a
new
Part
B
application
is
in
order.

In
this
1988
rulemaking,
EPA
stated
that
it
would
monitor
decisions
by
state
and
federal
permitting
officials
and
update
Appendix
I
to
include
unanticipated
classifications.
Id.
Since
that
time,
however,
what
few
additions
have
been
made
to
Appendix
I
have
generally
been
in
response
to
new
regulatory
requirements
rather
than
accumulated
experience.
Nevertheless,
on
a
broader
scale
EPA
has
noted
that
§
270.42(
d)
has
not
been
used
as
intended:

After
several
years'
experience,
EPA
has
found
that
very
few
unclassified
modifications
[
i.
e.,
modifications
based
on
§
270.42(
d)]
have
been
processed
using
this
procedure.
EPA
believes
that
both
facilities
and
permit
writers
may
be
restricting
themselves
to
only
the
classification
examples
that
are
in
Appendix
I.
EPA
is
also
concerned
that
in
those
cases
where
§
270.42
(
d)
is
used,
the
Class
3
modification
procedure
may
be
automatically
selected,
without
consideration
of
whether
the
permit
activity
is
less
significant
and
should
be
reclassified
to
a
lower
category.
.
The
above
discussion
illustrates
that
Appendix
I
is
not
a
definitive
list
of
the
myriad
changes
to
a
facility
that
might
prompt
a
permit
modification,
an
understandable
shortcoming
that
§
270.42(
d)
procedures
sought
to
remedy.
Under
their
individualized
permits,
CRWI
members
have
used
these
procedures
to
implement
significant
technological
advances
(
including
pollution
prevention
measures)
that
otherwise
would
have
been
delayed
or
abandoned
if
faced
with
the
Class
3
modification
process.
In
the
proposed
standardized
permitting
rule,
however,
§
270.42(
d)
is
"
dead
letter;"
i.
e.,
there
is
no
avenue
for
downgrading
an
unlisted
facility
change
that
otherwise
would
qualify
as
a
Class
1
or
2
modification
under
a
§
270.42(
d)
analysis.
While
the
120­
day
time
frame
for
an
agency
decision
on
a
"
significant
change"
is
certainly
preferable
to
the
open­
ended
timeline
associated
with
a
Class
3
modification,
this
does
not
alleviate
the
loss
of
flexibility
that
results
in
substituting
an
admittedly
incomplete
Appendix
I
for
latitude
by
the
regulators,
the
public,
and
permittees
to
exercise
professional
judgment
and
common
sense.
The
current
version
of
§
124.211
175
will
inevitably
lead
to
relatively
innocuous
facility
changes
being
processed
through
the
most
arduous
modification
procedure
simply
because
Appendix
I
to
§
270.42
is
not,
and
probably
never
will
be,
a
definitive
list
of
potential
permit
modifications.
CRWI
respectfully
submits
that
the
flexibility
allowed
by
§
270.42(
d)
be
preserved
in
the
standardized
permitting
rule.
(
Melvin
E.
Keener,
Executive
Director,
Coalition
for
Responsible
Waste
Incineration,
RCRA­
2001­
0029­
0063)

Response:
The
final
rule
does
not
provide
a
mechanism
to
use
the
procedures
in
§
270.42(
d),
which
requires
the
permittee
to
submit
information
to
the
regulatory
agency
for
review
regarding
the
permit
change,
if
that
activity
is
not
currently
listed
in
270.42.
The
intent
of
the
rule
is
to
reduce
the
back­
and­
forth
interaction
between
the
regulatory
authority
and
the
permit
applicant
that
is
typical
of
the
individual
permitting
process.

As
we
describe
in
the
final
rule
preamble,
"
The
only
thing
that
would
have
to
be
modified,
typically,
would
be
supplemental
conditions
that
are
unique
to
the
facility.
While
the
rule
provides
a
mechanism
for
making
changes
to
standardized
permits,
we
envision
that
few
changes
to
the
actual
permit
would
likely
be
necessary.
However,
when
changes
to
the
standardized
permit
are
necessary,
they
will
fall
into
the
categories
described
.
.
."

The
final
rule
modifies
the
routine
changes
category
originally
proposed,
and
adds
a
third
category,
routine
changes
requiring
prior
approval.
The
actual
procedures
for
performing
routine
and
significant
changes
are
finalized
as
proposed;
the
only
change
made
is
to
allow
routine
changes
requiring
prior
agency
approval
as
described
below.

The
addition
of
another
category
between
"
routine"
and
"
significant"
should
help
address
the
concern
that
some
class
2
modifications
are
more
like
class
3
modifications
and
should
be
treated
as
significant
changes,
because
now
all
class
2
modifications
will
require
prior
approval
under
the
standardized
permit.
Rather
than
class
2
modifications
being
a
"
routine
change"
as
described
in
the
proposed
rule,
class
2
modifications
will
now
require
prior
approval,
as
will
class
1
modifications
normally
requiring
prior
approval.

While
we
are
adding
a
third
category,
the
overall
permit
change
process
is
more
streamlined
than
the
existing
modification
process.
The
new
category
­­
"
routine
with
prior
approval"
­­
would
not
involve
a
public
comment
or
hearing
process,
as
would
be
the
case
with
regular
class
2
modifications,
but
would
require
a
notification
to,
and
acknowledgment
and
approval
from
the
regulatory
authority,
and
also,
within
90
calendar
days
of
the
approval,
notification
to
the
facility's
mailing
list.
The
Director
would
need
to
respond
within
90
days
of
receiving
the
modification
request,
either
approving
or
denying
the
request.
176
53.
Specific
Changes
to
Part
270:
Continuation
of
expiring
permits
(
VIII.
B.
7)

Comment:
p.
52228,
col.
2
 
The
preamble
explains
that
the
holder
of
an
expiring
standardized
permit
would
have
60
days
to
submit
a
RCRA
Part
B
application
after
being
notified
by
the
Director
that
he/
she
was
not
eligible
for
a
standardized
permit,
if
a
timely
and
complete
Notice
of
Intent
to
continue
operating
under
a
standardized
permit
had
been
filed.

DOE
notes
that
compiling
a
RCRA
Part
B
application
requires
substantial
effort.
EPA
has
acknowledged
this
by
allowing
6
months
for
a
hazardous
waste
management
facility
operating
under
interim
to
prepare
a
Part
B
application
upon
a
request
for
one
by
the
responsible
regulatory
agency
(
see
§
270.10(
e)(
4)).
Accordingly,
DOE
requests
that
EPA
consider
allowing
6
months,
rather
than
60
days,
for
a
permittee
to
submit
a
RCRA
Part
B
application
after
being
notified
by
the
responsible
regulatory
agency
that
the
facility
is
not
eligible
to
continue
operating
under
its
standardized
permit.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
disagree,
and
believe
that
60
days
should
be
adequate
to
prepare
a
Part
B
application,
because
the
part
B
material
should
be
available
since
the
owner/
operator
certified
that
it
is
available
to
review
at
the
site.

54.
What
Information
would
I
Need
to
Submit
to
the
Permitting
Agency
to
Support
my
Standardized
Permit
Application?:
RCRA
Part
A
application
information
(
IX.
B.
1)

Comment:
INADEQUACY
OF
PART
A
INFORMATION.
Unless
USEPA
proposes
to
re­
develop
a
Part
A
specifically
for
Standardized
Permits,
the
existing
Part
A
only
provides
general
facility
design
capacity
under
process
codes,
and
hazardous
waste
codes
and
does
not
provide
information
about
individual
tank
sizes
and
waste
handled.
This
will
make
future
permit/
equipment
modification
tracking
very
difficult.
(
California
Department
of
Toxic
Substances
Control,
RCRA­
2001­
0029­
0043)

Response:
According
to
§
270.275,
one
of
the
items
required
to
be
submitted
with
the
Notice
of
Intent
is
the
Part
A
information
described
at
§
270.13.
Section
270.13
requires
process
descriptions
and
design
capacity
information
as
well
as
the
identity
of
waste
managed.

Comment:
270.275
and
270.290
appear
to
be
relying
upon
vague,
combined
unit
information
in
the
Part
A
for
application
requirements
and
allowing
the
facility
to
maintain
more
detailed
177
information
on
site.
Does
EPA
intend
to
use
a
blanket
approach
and
not
include
specific
unit
capacities
and
usages(
TS)
in
the
standard
permits?
The
general
Part
A
unit
data
has
historically
been
hard
to
translate
into
unit
specific
data
required
by
RCRIS
and
RCRAInfo.
Will
it
be
adequate
to
determine
what
the
facility
is
doing,
when
a
modification
was
required,
what
GPRA
interim
status
units
are
to
be
permitted
and
thus
will
be
controlled,
etc.?
(
Jamie
Burroughs
of
the
TSD
Section
and
O.
J.
Wingfield
of
Financial
Responsibility,
Division
of
Solid
Waste
Management,
Tennessee
Department
of
Environmental
and
Conservation,
RCRA­
2001­
0029­
0057)

Response:
We
believe
the
Notice
of
Intent
and
accompanying
material,
as
required
by
§
270.275
provides
sufficient
information
to
help
describe
a
facility's
activities.
For
example,
According
to
§
270.275,
one
of
the
items
required
to
be
submitted
with
the
Notice
of
Intent
is
the
Part
A
information
described
at
§
270.13.
Section
270.13
requires
process
descriptions
and
design
capacity
information
as
well
as
the
identity
of
waste
managed.

55.
What
are
the
Proposed
Certification
Requirements?
Certification
of
compliance
(
IX.
C.
1)

Comment:
While
we
have
no
specific
opinion
on
whether
or
not
audits
should
be
conducted
by
`
third'
parties
a
few
points
should
be
specifically
addressed.
First
it
appears
that
the
certification/
audit
process
functionally
replaces
"
Departmental"
review
and
as
such
should
be
thorough
and
concise.
Generators
may
not
have
sufficient
knowledge
to
adequately
audit
the
finer
points
of
LDR
treatment,
standard
methods/
waste
analysis
or
the
air
emission
provisions.
On
the
other
hand
'
third'
party
audits,
under
many
circumstances
may
be
overkill.

Second,
the
audit
process
appears
to
address
only
current
operations
and
does
not
address
status
of
activities
not
yet
begun
because
of
pending
approval.
Auditing
activities
that
have
not
yet
begun
appears
futile.
Third,
there
appears
to
be
no
discussion
or
provisions
regarding
enforcement
actions
for
items
uncovered
during
an
audit
that
are
currently
out
of
compliance.
(
James
Butler,
Regulatory
Compliance
Officer,
Cycle
Chem,
Inc.,
RCRA­
2001­
0029­
0031)

Response:
Audits
will
only
be
required
at
existing
facilities.
EPA
believes
audits
are
important
and
supports
the
idea
that
the
facility
be
allowed
to
perform
the
audit
themselves,
or
hire
a
third
party
to
conduct
the
audit.
We
are
not
requiring
audits
be
conducted
by
a
third
party.
The
standardized
permit
will
not
be
issued
until
the
facility
is
in
compliance
with
the
standardized
permit
provisions.
Because
an
audit
report
must
be
submitted
with
the
notice
of
intent,
if
an
audit
uncovers
non­
compliance,
then
that
information
would
be
reflected
in
the
audit
report,
and
could
weigh
negatively
in
the
Director's
decision
to
grant
or
deny
a
standardized
permit
application.

Comment:
p.
52230,
col.
2
 
The
preamble
states
that
proposed
§
270.280
would
require
the
owner/
operator
of
a
facility
intending
to
operate
under
a
standardized
permit
to
certify
that
the
178
facility
is
either
in
compliance
with
all
applicable
requirements
of
40
CFR
part
267
or
would
come
into
compliance
with
all
applicable
requirements.
The
owner/
operator
would
also
be
required
to
certify
that
the
facility
would
continue
to
comply
with
the
proposed
part
267
during
the
term
of
its
permit.

DOE
objects
to
the
scope
of
the
required
certification
in
proposed
§
270.280.
DOE
submits
that
no
individual
would
be
able
to
certify
that
a
facility
is,
in
fact,
fully
compliant
now
and
will
continue
to
fully
comply
in
the
future.
DOE
believes
that
an
individual
could
only
certify
his/
her
belief
that
such
was
the
case.
Accordingly,
because
of
the
significant
penalties
associated
with
false
certification,
DOE
regards
as
unreasonable
the
requirement
for
an
individual
to
certify
that
his/
her
facility
"
complies
with
all
applicable
requirements
of
40
CFR
part
267
and
will
continue
to
comply
until
the
expiration
of
the
permit."
Because
similar
certification
issues
have
arisen
in
other
RCRA
programs
(
e.
g.,
the
LDR
program),
DOE
suggests
that
EPA
consider
revising
the
language
of
the
standardized
permit
compliance
certification
in
a
manner
consistent
with
similar
certification
statements
in
such
other
programs.
Specifically,
DOE
suggests
that
proposed
§
270.280
be
revised
to
read
as
follows
in
the
final
rule
(
redline
font
=
addition;
strikeout
font
=
deletion):

§
270.280
What
are
the
certification
requirements?

You
must
submit
a
signed
certification
based
on
your
audit
of
your
facility's
compliance
with
40
CFR
part
267.

(
a)
Your
certification
must
read:
"
I
certify
under
penalty
of
law
that:
(
1)
I
have
personally
examined
and
am
familiar
with
the
report
containing
the
results
of
an
audit
conducted
of
my
facility's
compliance
status
with
40
CFR
part
267,
which
supports
this
certification.
Based
on
my
inquiry
of
those
individuals
immediately
responsible
for
conducting
the
audit
and
preparing
the
report,
I
believe
that
my
facility
(
include
paragraph
(
a)(
1)(
i)
or
(
ii)
of
this
section,
whichever
applies):
(
i)
Complies
with
all
applicable
requirements
of
40
CFR
part
267
and
will
continue
to
comply
until
the
expiration
of
the
permit;
or
(
ii)
Will
come
into
compliance
before
permit
issuance
with
all
applicable
requirements
of
40
CFR
part
267
and
will
then
continue
to
comply
until
expiration
of
the
permit.
(
2)
I
have
personally
examined
and
am
familiar
with
the
operation
of
my
facility.
Based
on
my
inquiry
of
those
individuals
immediately
responsible
for
its
operation,
I
believe
that
after
permit
issuance
my
facility
will
continue
to
comply
with
all
applicable
requirements
of
40
CFR
part
267,
until
expiration
of
the
permit.
(
3)
I
will
make
all
information
that
I
am
required
to
maintain
at
my
facility
by
§
§
270.290
through
277.315
readily
available
for
review
by
the
permitting
agency
and
the
public;
and,
(
34)
I
will
continue
to
make
all
information
required
by
§
§
270.290
through
277.315
available
until
the
permit
expires.
I
am
aware
that
there
are
significant
penalties
for
179
submitting
false
information,
including
the
possibility
of
fine
and
imprisonment
for
knowing
violation."

(
b)
You
must
sign
this
certification
following
the
requirements
of
§
270.11(
a)(
1)
through
(
3).

(
c)
This
certification
must
be
based
upon
an
audit
that
you
conduct
of
your
facility's
compliance
status
with
40
CFR
part
267.
You
must
submit
this
audit
the
audit
of
your
facility's
compliance
status
with
40
CFR
part
267,
on
which
this
certification
is
based,
to
the
Director
with
the
40
CFR
124.202(
b)
notice
of
intent.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
generally
agree
with
the
suggestions
and
will
incorporate,
where
appropriate,
into
the
final
rule.

Comment:
p.
52232,
col.
2
 
EPA
is
proposing
(
in
§
270.315,
p.
52268)
that
facilities
operating
under
a
standardized
permit
be
required
to
keep
on­
site
the
information
required
for
tanks
and
containers
subject
to
the
part
264
subpart
CC
standards
(
air
emission
standards
for
tanks,
surface
impoundments
and
containers).

DOE
agrees
that
the
appropriate
air
emission
standards
in
40
CFR
part
264,
subpart
CC
should
apply
to
containers
and
tanks
managed
under
a
standardized
permit,
and
that
the
information
required
by
subpart
CC
should
be
kept
on­
site.
However,
DOE
is
concerned
that
the
proposed
regulations
do
not
adequately
clarify
the
applicability
of
40
CFR
part
264,
subpart
CC
to
containers
and
tanks
that
will
be
managed
subject
to
the
proposed
operating
standards
in
40
CFR
part
267.
Specifically,
DOE
notes
that
the
existing
regulations
in
§
264.1080(
a)
limit
the
applicability
of
40
CFR
part
264,
subpart
CC
to
owners
and
operators
of
facilities
that
treat,
store,
or
dispose
of
hazardous
waste
in
tanks,
surface
impoundments,
or
containers
subject
to
either
subparts
I,
J,
or
K
of
40
CFR
part
264.
Accordingly,
DOE
recommends
that
the
final
rule
modify
40
CFR
part
264,
subpart
CC,
§
264.1080(
a)
to
expressly
make
subpart
CC
applicable
to
containers
and
tanks
that
will
be
managed
subject
to
the
proposed
operating
standards
in
40
CFR
part
267.
Specifically,
DOE
suggests
that
§
264.1080(
a)
be
modified
in
the
following
manner
(
redline
font
=
addition):

§
264.1080(
a)
Applicability.

(
a)
The
requirements
of
this
subpart
apply
to
owners
and
operators
of
all
facilities
that
treat,
store,
or
dispose
of
hazardous
waste
in
tanks,
surface
impoundments,
or
containers
subject
to
either
subparts
I,
J,
or
K
of
this
part,
or
to
either
subparts
I
or
J
of
part
267,
except
as
§
264.1
and
paragraph
(
b)
of
this
section
provide
otherwise.

DOE
is
particularly
concerned
that
the
part
264,
subpart
CC
provisions
that
allow
containers
to
be
vented
to
the
atmosphere
and
still
be
considered
"
closed"
for
purposes
of
compliance
with
180
container
operating
standards
should
apply
to
containers
that
are
subject
to
proposed
§
267.171(
c)(
1).
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
Section
267.204
states
that
the
requirements
of
subparts
AA,
BB,
and
CC
of
part
264
apply
to
standardized
permits.
We
believe
this
reference
makes
the
applicability
of
part
264,
Subparts
AA,
BB,
and
CC
clear
without
adding
language
to
part
264.

Comment:
EPA
requests
comment
on
whether
the
facility
audit
that
may
be
necessary
under
proposed
section
270.280
should
be
performed
by
an
independent
third
party.
Id.
at
52230.
USWAG
strongly
urges
EPA
to
promulgate
a
final
rule
that
does
not
require
a
third­
party
audit,
but
rather
allows
a
facility
to
perform
its
own
internal
compliance
audits.

Many
USWAG
members
have
internal
auditors
that
are
trained
and
certified
to
perform
unbiased
and
accurate
internal
audits.
USWAG
urges
the
Agency
to
allow
such
trained
professionals
to
perform
section
270.280
audits
for
their
companies.
The
language
proposed
by
EPA
will
allow
such
audits,
and
USWAG
therefore
supports
it:
"
This
certification
must
be
based
upon
an
audit
that
you
conduct
of
your
facility's
compliance
status
with
40
C.
F.
R.
Part
267."
Id.
at
52266
(
proposed
40
C.
F.
R.
§
270.280(
c)
(
emphasis
added)).
No
specific
change
is
needed
to
this
language
to
allow
internal
auditors
to
perform
270.280
audits,
though
the
ability
to
use
internal
auditors
should
be
confirmed
by
EPA
in
the
preamble
to
the
final
rule.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Comment:
EPA
requests
comments
on
the
benefits
of
compliance
audits
and
whether
these
audits
need
to
be
performed
by
an
independent
third
party.
Dominion
disagrees
with
the
proposal
to
require
a
Company
to
conduct
an
audit
to
certify
compliance
with
the
regulations.
This
requirement
would
be
a
burden
to
the
owner
or
operator
and
the
Agency
would
need
to
establish
minimum
Agency
requirements.

Dominion
disagrees
with
the
concept
that
audits
are
the
only
tool
that
can
determine
site
compliance.
Dominion
understands
that
an
audit
is
a
tool
that
could
determine
that
an
entity
is
in
compliance,
but
various
facilities
conduct
site
inspections,
self­
assessments,
and/
or
operational
reviews
to
determine
compliance
at
a
level
beyond
an
audit.

Dominion
disagrees
with
the
requirement
to
use
an
independent
third
party
auditor
because
the
auditor
must
be
familiar
with
site
operations
to
determine
how
the
regulations
apply
to
a
specific
site.
Dominion
understands
the
intent
of
conducting
an
audit,
but
the
Agency
should
not
require
compliance
audits
as
part
of
the
regulations
or
as
part
of
a
permit
condition.
(
Pamela
F.
Faggert,
Dominion,
RCRA­
2001­
0029­
0049)

Comment:
AP
I
does
not
support
requiring
submission
of
an
audit
with
a
facility's
permit
application
that
certifies
compliance
with
unit
specific
standards,
whether
it
is
a
self­
audit
or
a
third­
party
audit.
Hazardous
waste
generators
currently
comply
with
self­
implementing
standards
181
without
a
need
to
submit
certifications
or
other
evidence
of
meeting
those
standards
except
in
a
few
specific
situations.
The
standardized
permit
is
an
opportunity
to
simplify
requirements
for
facilities
that
require
a
permit
and
conduct
exactly
the
same
types
of
waste
management.
The
imposition
of
a
requirement
to
certify
compliance
beyond
what
is
currently
required
of
generators
is
simply
another
paperwork
requirement
that
does
not
provide
an
environmental
benefit.
Existing
facilities
should
already
be
in
compliance,
and
new
facilities
are
not
allowed
to
begin
operations
until
they
comply.
EPA
enforcement
authorities,
including
inspections,
should
be
sufficient
to
ensure
compliance.
EPA
can
visit
the
facility
either
before
or
after
issuing
a
permit
if
there
is
reason
to
believe
compliance
problems
exist.
It
is
unlikely
in
the
extreme
that
applicants
for
a
permit
would
be
involved
in
a
permitting
process
if
they
do
not
believe
they
are
in
compliance.
With
respect
to
submitting
a
schedule
of
compliance
for
those
items
for
which
a
permit
applicant
is
not
already
in
compliance,
we
believe
that
it
stretches
credulity
not
to
be
able
to
comply
with
the
simple
conditions
specified
for
tanks,
containers,
and
containment
buildings
prior
to
submitting
an
application,
or
to
anticipate
that
EPA
would
issue
a
permit
to
a
facility
under
such
conditions.
The
only
situation
in
which
a
schedule
of
compliance
would
potentially
serve
a
significant
purpose
would
be
for
corrective
action.
However,
that
schedule
would
not
be
available
until
the
permit
is
issued,
at
which
time
it
would
become
an
enforceable
permit
condition.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Comment:
ADEQ
has
required
similar
compliance
audits
in
RCRA
enforcement
settlements
for
several
years.
Based
on
this
experience,
we
are
very
much
in
support
of
this
approach.
Compliance
audits
provide
an
increased
awareness
and
accountability
on
facility
owners/
operators
to
achieve
and
maintain
compliance
with
regulatory
requirements.
We
believe
facilities
which
practice
regular
compliance
auditing
themselves
have
better
compliance
records.
We
do
not
recommend
third
party
compliance
auditing
to
fulfill
this
requirement.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Comment:
Comment.
DoD
does
not
support
requiring
independent
third
party
audits
as
part
of
the
standardized
permit
process.

Discussion.
EPA
requests
comment
on
whether
independent
third
party
audits
should
be
required
to
determine
compliance
status
of
a
facility
as
part
of
the
standardized
permit
process.

DoD
believes
it
is
the
permittee's
and
the
EPA's/
state's
duty
to
perform
compliance
audits,
not
independent
third
parties.
Imposing
a
requirement
to
have
a
third
party
conduct
the
audit
adds
cost
without
commensurate
value.

Recommendation.
Do
not
require
third
party
compliance
inspections.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)
182
Comment:
The
proposed
certification
of
compliance
requires
that
a
copy
of
the
facility's
internal
compliance
audit
also
be
submitted
to
the
agency.
Since
there
is
no
standardized
audit
form
provided
by
the
agency
to
use
at
this
time
Onyx
sees
little
value
in
requiring
that
the
audit
report
be
submitted
to
the
agency.
The
quality
of
the
audits
will
vary
greatly
not
only
in
actual
format
but
also
in
the
level
of
detail
being
provided.
Onyx
believes
that
it
should
be
sufficient
that
a
copy
of
the
completed
audit
be
maintained
at
the
facility
and
be
made
available
for
inspection
in
lieu
of
having
to
be
submitted
to
the
agency.
Furthermore,
Onyx
believes
that
a
facility
should
be
allowed
to
utilize
internal
resources
or
a
third­
party
consultant
to
perform
the
compliance
certification
audit.
(
Thomas
M.
Baker,
Director,
Environmental
and
Transportation,
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0058)

Comment:
There
are
significant
benefits
of
a
compliance
audit:
it
encourages
facility
managers
to
take
a
holistic
look
at
operations,
but
the
Department
questions
the
relationship
between
the
certification
of
compliance
proposed
in
§
270.80
and
traditional
inspections,
which
are
a
form
of
"
third
party
audit."
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
The
ETC
strongly
endorses
audits
of
facility
compliance
as
a
critical
element
of
the
standardized
permit
process.
66
FR
52230
col
2­
3.
Since
the
role
of
the
permit
writer
in
reviewing
facility
compliance
has
been
reduced
under
the
streamlined
procedures,
and
facility
audit
is
essential.
We
believe
that
such
audits
must
be
carried
out
by
an
independent
third
party
to
assure
the
local
community
and
regulatory
authorities
of
the
appearance
of
objectivity.
We
also
encourage
EPA
to
develop
the
promised
guidance
on
audit
reporting
concurrent
with
issuance
of
the
final
rule.

We
would
recommend
that
the
regulations
require
that
the
facility
compliance
audit
be
performed
by
a
third
party
(
preferably
an
independent,
qualified
registered
professional
engineer).
We
feel
that
this
would
subject
the
application
information
kept
at
the
facility
to
at
least
some
form
of
review
by
an
outside
party
and
would
result
in
a
less
biased
assessment
of
the
facility's
compliance.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Comment:
Safety­
Kleen
believes
that
the
audit
assessment
is
important
to
determine
"
baseline"
compliance,
and
should
be
conducted
by
an
independent
third
party
for
all
new
standardized
permit
applicants
but
not
for
existing
permitted
facilities.
Existing
facilities
are
familiar
with
the
RCRA
regulations/
guidance
documents
and
many
commercial
facilities
such
as
Safety­
Kleen
already
have
detailed
audit
checklists
that
are
performed
on
a
routine
basis
as
part
of
an
Environmental
Management
System
(
EMS).
Existing
facilities
should
be
allowed
to
use
their
own
audit
checklist
to
certify
compliance.
New
facilities
however
may
not
be
as
familiar
with
the
RCRA
requirements
and
should
have
an
independent
third
party
auditor
inspect
the
facility
at
least
initially.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)
183
Response:
EPA
believes
audits
are
important.
While
we
appreciate
the
comments,
we
believe
that
compliance
audits
are
an
integral
part
of
the
standardized
permitting
process,
serving
to
help
ensure
that
a
facility
is
complying
with
the
applicable
requirements.
Compliance
audits
are
intended
to
support
the
self­
certification
process,
and
should
not
unnecessarily
burden
facilities.
While
there
may
be
some
owners/
operators
who
lack
the
expertise
to
conduct
audits,
we
believe
it
unnecessary
to
require
that
only
third
parties
conduct
audits,
because
many
facility
owners
are
familiar
with,
and
have
the
expertise
to
audit
their
operations.
Therefore,
for
the
final
rule,
audits
may
either
be
self
or
third­
party.
The
final
rule
discusses
general
guidelines
for
conducting
audits
and
provides
references
to
Agency
audit
guidances,
which
should
be
useful
for
facility
owners/
operators
not
familiar
with
conducting
audits.
In
addition,
the
final
rule
does
require
that
the
auditor
sign
and
certify
that
the
audit
report
is
accurate,
prior
to
submitting
to
the
Director
with
the
Notice
of
Intent,
which
provides
an
additional
safeguard.

Comment:
The
§
270.280
certification
requirement
and
its
relation
to
the
§
270.10(
f)
pre­
permit
construction
ban
for
new
facilities.
The
§
270.280
certification
requirement
highlights
crucial
timing
issues
that
must
be
resolved
in
this
rule.
In
this
proposed
provision,
the
permittee
must
certify
either
that
the
facility
already
complies
with
Part
267
requirements,
or
that
the
permittee
has
entered
into
an
enforceable
compliance
schedule
that
will
assure
that
the
facility
will
eventually
meet
Part
267
requirements.
Since
existing
§
270.10(
f)
prohibits
construction
of
new
hazardous
waste
management
units
without
an
issued
permit,
the
latter
option
 
set
out
in
proposed
§
270.280(
a)(
1)(
ii)
 
essentially
places
the
applicant
for
a
standardized
permit
for
a
new
waste
management
unit
under
an
enforcement
order
at
the
outset
of
permit
process.
Many
potential
applicants
will
balk
at
signing
onto
an
enforceable
"
compliance
schedule"
for
building
a
new
waste
management
unit
under
constantly
changing
market
conditions.
If
the
proposed
new
waste
management
unit
is
otherwise
protective
of
human
health
and
the
environment
and
eligible
for
a
standardized
permit,
the
timing
of
its
construction
and
eventual
operation
should
be
driven
more
by
the
permittee's
actual
business
needs
rather
than
a
"
compliance
schedule"
that
may
have
to
be
revised
in
light
of
supervening
circumstances.

To
deal
with
this
contingency,
CRWI
respectfully
proposes
adding
a
new
paragraph,
§
270.280(
a)(
1)(
iii),
as
follows:

(
iii)
Has
been
designed,
and
will
be
constructed
and
operated
to
comply
with
all
applicable
requirements
of
40
CFR
Part
267,
and
will
continue
to
comply
until
expiration
of
the
permit.
(
Melvin
E.
Keener,
Executive
Director,
Coalition
for
Responsible
Waste
Incineration,
RCRA­
2001­
0029­
0063)

Response:
We
generally
agree
with
the
comment
and
have
incorporated
the
language,
as
appropriate,
in
the
final
rule.
184
Comment:
We
feel
that
some
mechanism
must
be
in
place
to
review
the
information
required
by
proposed
40
CFR
270.290.
If
staffing
concerns
at
the
regulatory
agency
do
not
allow
for
such
audits
an
independent
third
party
may
be
required
to
conduct
these
audits
at
the
cost
of
the
facility.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
The
standardized
permit
process
is
envisioned
to
be
a
streamlined
process
for
rather
straight­
forward
treatment
and
storage
activities
being
conducted
in
tanks,
containers,
and
containment
buildings.
While
facilities
are
required
to
maintain
extensive
information
on­
site,
that
would
otherwise
be
submitted
under
an
individual
permit,
requiring
the
review
of
that
information
would
detract
from
the
streamlined
intent
of
the
process.
In
general,
we
believe
that
for
facilities
that
eligible
for
the
standardized
permit,
self
or
third­
party
audits
to
verify
compliance
with
the
applicable
requirements
are
sufficient.

56.
What
are
the
Proposed
Certification
Requirements?
Certification
of
availability
of
information
(
IX.
C.
2)

Comment:
Waste
analysis
plans
are
integral
for
the
safe
handling
and
proper
treatment
of
hazardous
waste
and
as
such
should
be
subject
to
review,
especially
for
LDR
treatments
and
waste
verification.
Facilities
applying
for
a
`
standard'
permit
would
either
be
initiating
new
operations
or
expanding
current
operations
beyond
what
is
allowable
in
90
day
units.
Some
mechanism
needs
to
ensue
these
facilities
have
sufficient
understanding
to
adequately
conduct
these
activities.

Of
particular
concern
is
adherence
to
LDR
treatment
standards
by
facilities
with
little
or
no
knowledge
or
prior
experience.
As
an
example
the
neutralization,
solidification
and
stabilization
of
acid
metal
containing
wastes
at
a
metal
treating
company
in
entirely
different
than
the
company
normal
business.
Some
mechanism
must
exist
to
ensure
such
facility's
capabilities.
A
review
of
a
waste
analysis
would
accomplish
this.

These
waste
analysis
plans
would
not
have
to
be
elaborate
but
should
address
all
the
pertinent
points
for
the
processes
involved.
A
cookbook
plan
could
be
used
to
simplify
the
process.
(
James
Butler,
Regulatory
Compliance
Officer,
Cycle
Chem,
Inc.,
RCRA­
2001­
0029­
0031)

Comment:
p.
52230,
col.
3
 
The
preamble
explains
that
a
facility
seeking
to
operate
under
a
standardized
permit
would
be
required
to
certify
that
RCRA
Part
B
type
information,
such
as
a
waste
analysis
plan,
would
be
available
on­
site
for
review.
EPA
requests
comment
on
the
need
for
submittal
of
the
waste
analysis
plan.

As
mentioned
in
Specific
Comment
I.
E.
3,
item
2,
DOE
suggests
that
EPA
require
facilities
managing
waste
from
off­
site
to
submit
a
waste
analysis
plan
with
the
Notice
of
Intent
to
operate
185
under
a
standardized
permit.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Comment:
EPA
asked
whether
a
waste
analysis
plan
and
Part
B
type
information
should
be
submitted
when
an
owner
or
operator
submits
the
Part
B
permit.
Dominion
agrees
that
a
waste
analysis
plan
and
Part
B
type
information
should
not
be
submitted
as
part
of
the
process,
but
should
be
available
at
the
site
upon
request
by
the
permit­
issuing
agency.

Dominion
disagrees
that
a
specific
certification
is
required
from
the
owner
or
operator
at
any
time
during
the
permitting
process.
The
owner
or
operator
must
comply
with
the
regulations
so
a
document
or
information
availability
certification
should
not
be
required.

Dominion
understands
the
Agency's
concerns
regarding
the
availability
of
the
waste
analysis
plan
or
Part
type
B
information
to
the
public.
However,
as
proposed,
the
public
will
know
the
details
of
the
site
operations
and
waste
analysis
plan
as
part
of
the
pre­
application
meeting.
(
Pamela
F.
Faggert,
Dominion,
RCRA­
2001­
0029­
0049)

Comment:
No,
provided
the
requirement
to
maintain
the
waste
analysis
plan
in
the
facility
record
remains
intact.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Comment:
Yes,
a
waste
analysis
plan
should
be
submitted
even
for
facilities
that
generate
a
single
waste
stream.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Comment:
For
captive
facilities
as
proposed
under
this
rule,
a
WAP
is
probably
not
required
in
the
application.
However,
the
WAP
should
be
inspected
for
compliance
with
the
proposed
40
CFR
[
Title
40
of
the
Code
of
Federal
Regulations]
Part
267
requirements
prior
to
issuance
of
the
standardized
permit.
While
a
facility
may
know
what
kinds
of
wastes
it
is
managing,
often
facilities
with
no
prior
permit
applications
may
be
missing
some
of
the
required
elements
in
their
WAPs
under
RCRA.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Comment:
Safety­
Kleen
believes
that
the
waste
analysis
plan
should
not
be
submitted
to
the
permitting
agency.
This
section
is
typically
the
largest
in
the
permit
application
and
defeats
the
purpose
of
providing
a
streamline
process.
40
CFR
§
264.13
provides
a
detailed
account
of
the
waste
analysis
plan
contents,
which
when
combined
with
an
audit
and
compliance
certification
should
be
sufficient
to
ensure
compliance.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Comment:
We
feel
that
since
this
rule
only
applies
to
facilities
that
manage
waste
on­
site,
the
facility
should
be
familiar
with
the
waste
they
themselves
generate.
Therefore
waste
analysis
plans
should
be
fairly
elementary
and
would
not
need
to
be
submitted.
However,
in
the
case
where
a
186
facility
has
numerous
processes
contributing
hazardous
waste
to
a
storage
or
treatment
unit,
the
waste
analysis
plan
would
be
significantly
more
complex.
In
this
case
it
may
be
prudent
to
submit
the
waste
analysis
plan
with
the
initial
notification
to
ensure
that
waste
management
procedures
are
adequately
protective.
It
would
also
be
prudent
to
review
waste
analysis
plans
if
this
rule
is
expanded
to
allow
standardized
permits
at
facilities
who
receive
waste
from
off
site
for
recycling.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
The
final
rule
extends
the
scope
of
facilities
eligible
for
a
standardized
permit.
The
final
rule
will
apply
to
facilities
managing
wastes
generated,
and
then
managed,
onsite
as
proposed.
The
rule
will
also
apply
to
facilities
that
receive
hazardous
waste
generated
off­
site,
by
a
generator
under
the
same
ownership
as
the
receiving
facility.
(
Generators
receiving
wastes
generated
off­
site,
would
need
to
submit
a
waste
analysis
plan
with
their
Notice
of
Intent.)
As
part
of
the
final
rule,
we
will
require
waste
waste
analysis
plans
to
be
submitted
only
for
facilities
managing
wastes
generated
off­
site
Several
commenters
expressed
the
need
for
submission
and
approval
of
waste
analysis
plans,
particularly
if
the
rule
was
extended
to
include
off­
site
facilities.
Because
we
are
extending
the
rule
to
certain
off­
sites,
as
described
previously,
we
are
requiring
those
facilities
to
submit
a
waste
analysis
plan
with
the
Notice
of
Intent.
Most
commenters
addressing
waste
analysis
plans
supported
the
idea
that
on­
site
facilities
would
not
need
to
submit
waste
analysis
plans.
Therefore,
we
are
not
requiring
on­
site
facilities
to
submit
waste
analysis
plans
with
the
Notice
of
Intent.

We
generally
believe
that
on­
site
facilities
have
good
knowledge
of
the
wastes
they
are
managing,
and
therefore,
we
are
not
requiring
that
waste
analysis
plans
be
submitted
with
their
Notice
of
Intent.
Due
to
the
streamlined
nature
of
the
standardized
permit
process,
we
believe
that
facilities
conducting
routine
storage
and
treatment
and
that
have
good
knowledge
of
the
characteristics
of
the
waste
they
generate
and
manage,
and
should
be
able
to
safely
operate
within
a
selfcertification
of
compliance
process
while
maintaining
the
extensive
information,
normally
submitted
with
a
Part
B
application,
on
site.
Furthermore,
40
CFR
§
267.13
provides
a
detailed
account
of
the
waste
analysis
plan
requirements,
which
when
combined
with
an
audit
and
compliance
certification
should
be
sufficient
to
ensure
compliance.
In
the
final
rule,
we
are
not
requiring
waste
analysis
plans
for
such
facilities
to
be
submitted,
but
maintained
on­
site,
except
for
the
off­
sites
as
noted
above.
However,
the
Agency
is
also
allowing
facilities
that
receive
hazardous
waste
generated
off­
site
by
a
generator
under
the
same
ownership
as
the
receiving
facility,
to
also
be
eligible
for
the
standardized
permit.
In
this
situation,
the
facility
will
be
required
to
submit
the
waste
analysis
plan
with
the
Notice
of
Intent.
As
discussed
previously,
we
believe
it
necessary
for
the
waste
analysis
plan
to
be
187
submitted
to
help
ensure
that
waste
management
procedures
are
adequately
protective.

Comment:
In
a
major
departure
from
the
existing
RCRA
permit
program,
EPA
is
proposing
that
facilities
would
certify
that
the
information
required
by
§
§
270.290
­
270­
315
is
available
at
the
facility
for
review
by
the
public
and
the
permitting
authority.
66
FR
52230
col
3.
This
information
which
is
typically
included
in
the
Part
B
application
for
an
individual
permit
would
not
be
submitted
directly
to
the
permitting
agency.
While
we
understand
the
advantages
of
this
approach
in
terms
of
streamlining
the
review
process,
we
believe
that
EPA
should
proceed
here
with
caution.

At
the
very
least,
the
final
regulations
should
require
that
the
permit
writer
visit
the
facility
and
inspect
the
certified
information
before
issuance
of
the
final
permit.
It
seems
patently
absurd
that
a
permit
writer
would
issue
a
standardized
permit
for
a
hazardous
waste
storage/
treatment
unit
without
ever
even
having
seen
the
facility
or
the
supporting
documentation.
We
believe
any
responsible
permit
writer
would
take
this
step
anyway,
and
the
local
community
should
demand
it,
so
EPA
should
include
this
requirement
in
the
final
rule.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
We
appreciate
ETC's
comments.
However,
we
believe
the
"
self
certification"
part
of
the
permit
application
process
is
what
helps
to
streamline
the
overall
process.
Furthermore,
we
believe
that
limiting
eligibility
to
on­
site
operations
involving
tanks,
containers,
and
containment
buildings
will
allow
for
a
rather
straightforward
process.

The
final
rule
will
require
that
all
facilities
submit
closure
plans
with
the
notice
of
intent,
and
that
draft
permits
are
subject
to
public
comment.
Complex
facilities,
where
a
facility
visit
appears
necessary,
may
be
good
candidates
for
individual
permitting.

We
believe
there
are
enough
measures
in
place
to
provide
assurance
to
both
the
public
and
to
the
regulatory
authority
that
the
facility
in
question
can
be
operated
safely.

57.
What
happens
if
my
facility
is
not
in
compliance
with
proposed
part
267
requirements
at
the
time
I
submit
my
Notice
of
Intent?
(
IX.
C.
3)

Comment:
p.
52230,
col.
3
&
p.
52231,
col.
1
 
The
preamble
states
that
a
standardized
permit
would
not
be
issued
until
compliance
with
40
CFR
part
267
has
been
achieved.
If
a
facility
is
not
in
compliance
at
the
time
the
Notice
of
Intent
is
filed,
then
the
Notice
of
Intent
must
be
accompanied
by
a
suggested
compliance
schedule
that
meets
the
requirements
of
existing
§
270.33
and
includes
an
enforceable
sequence
of
actions
with
specific
milestones.
188
As
noted
in
Specific
Comment
III.
A.
2,
item
2,
DOE
does
not
object
to
the
proposed
requirement
for
a
compliance
schedule
in
the
event
that
a
facility
seeking
a
standardized
RCRA
permit
does
not
comply
with
40
CFR
Part
267
at
the
time
a
Notice
of
Intent
is
filed.
However,
the
mechanism
by
which
the
compliance
schedule
would
become
"
enforceable,"
as
required
by
the
proposed
40
CFR
270.285(
a),
is
unclear,
particularly
for
interim
status
facilities.
DOE
notes
that
the
requirements
of
existing
§
270.33
address
schedules
of
compliance
that
are
enforceable
because
they
are
incorporated
into
RCRA
permits
as
conditions
of
the
permits.
In
comparison,
the
§
270.285
addresses
a
schedule
of
compliance
that
would
be
submitted
with
the
Notice
of
Intent
to
operate
under
a
standardized
permit.
In
the
latter
case,
the
schedule
of
compliance
would
not
become
an
enforceable
permit
condition,
because
the
responsible
permitting
agency
would
not
issue
the
permit
until
the
facility
had
completed
the
schedule
and
achieved
compliance.
Nevertheless,
DOE
questions
the
need
for
an
enforceable
compliance
schedule.
Since
the
permitting
authority
will
not
issue
a
new
or
renewed
permit
until
the
facility
achieves
compliance
with
part
267,
DOE
believes
there
is
sufficient
incentive
for
the
facility
to
adhere
to
the
compliance
schedule
without
the
threat
of
agency
enforcement
action.
For
these
reasons,
DOE
suggests
that,
in
the
final
rule,
EPA
either
delete
the
word
"
enforceable"
from
§
270.285(
a)
or
clarify
the
provision
in
proposed
§
270.285
(
p.
52266)
requiring
that
the
schedule
of
compliance
"
include
an
enforceable
sequence
of
actions
with
milestones"
(
emphasis
added).
If
EPA
elects
to
do
the
latter,
DOE
would
support
issuance
of
the
standardized
permit
with
the
schedule
of
compliance
included
as
a
supplemental
condition.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
We
agree
with
DOE
in
part
and
will,
in
the
final
rule,
require
that
existing
facilities
seeking
a
standardized
permit
be
in
compliance
with
all
provisions
for
Part
267
prior
to
submitting
their
notice
of
intent.

Comment:
Under
the
standardized
permit
the
agency
would
review
the
Notice
of
Intent
and
determine
whether
the
facility
is
eligible
for
the
standardized
permit.
The
proposal
further
suggests
that
the
agency
could
consider
the
facilities
compliance
history.
Unless
EPA
provides
further
specifics
in
the
rule,
this
will
be
a
very
subjective
determination.
If
this
decision
were
appealable
this
would
create
additional
strain
on
resources
and
contribute
to
delays
in
permitting
and
corrective
action.

Another
problem
may
also
exist
with
this
approach.
For
example,
under
RCRA
7002,
could
third
parties
sue
the
Administrator
for
not
reviewing
the
intent?
This
approach
also
seems
to
complicate
completeness
issues,
the
public's
opportunity
to
review
the
application,
notice
of
intent,
or
supporting
information
that
support
the
applicant's
request.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
This
rule
making
would
not
change
how
third
party
suits
under
7002
are
handled.

Comment:
Sec.
270.285
­
Compliance
Schedule
189
Since
the
proposal
stipulates
that
standardized
permits
will
not
be
issued
until
compliance
with
the
new
Part
267
standards
is
certified,
we
don't
understand
the
need
for
an
applicant
whose
facility
is
not
in
full
compliance
with
Part
267
to
submit
a
compliance
schedule
with
the
Notice
of
Intent.
Applicants
should
simply
not
submit
a
Notice
of
Intent
to
operate
under
a
standardized
permit
until
they
are
in
full
compliance
and
can
provide
the
required
certification.
Section
IX.
C.
3.
of
the
preamble
indicates
that
the
schedule
would
be
required
to
meet
existing
40
CFR
270.33
standards.
40
CFR
270.33
addresses
only
schedules
of
compliance
that
are
part
of
RCRA
permits,
and
is
intended
to
be
used
to
lead
permittees
who
comply
with
Part
265
standards,
but
not
all
Part
264
standards
into
full
compliance
thru
the
use
of
permit
conditions.

Therefore,
unless
the
intent
is
to
allow
schedules
of
compliance
in
standardized
permits,
like
other
RCRA
permits,
we
would
recommend
that
this
and
related
sections
be
deleted
from
the
proposal.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Response:
We
agree
with
NJDEP
and
will
clarify
that
we
do
not
need
a
compliance
schedule
related
to
the
Notice
of
Intent
(
related
to
compliance
with
part
267),
and
that
facilities
must
be
in
compliance
with
part
267
standards
prior
to
the
issuance
of
the
standardized
permit.

58.
What
Information
would
be
Required
to
be
Kept
at
my
Facility?
(
IX.
D)

Comment:
Part
270,
Subpart
I
­
Information
Requirements
Sections
270.290
thru
270.315
specify
the
information
which
must
be
kept
at
the
facility
relative
to
containers,
tanks,
equipment,
etc.
The
requirement
for
containment
building
information
is
missing
and
should
be
added
to
these
sections.
(
John
A.
Castner,
Director
of
the
Division
of
Solid
and
Hazardous
Waste,
New
Jersey
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0069)

Response:
We
recognize
the
standardized
permit
rule
does
not
provide
a
section
for
containment
buildings.
The
information
required
for
containers
and
tanks
is
based
on
existing
part
270
Part
B
informational
requirements.
Because
there
are
no
Part
B
informational
requirements
for
containment
buildings
in
part
270,
we
did
not
include
a
section
for
this
rulemaking.

59.
What
Information
would
be
Required
to
be
Kept
at
my
Facility?
Air
emission
control
information
(
IX.
D.
5)

Comment:
p.
52232,
col.
2
 
EPA
is
proposing
(
in
§
270.315,
p.
52268)
that
facilities
operating
under
a
standardized
permit
be
required
to
keep
on­
site
the
information
required
for
tanks
and
containers
subject
to
the
part
264
subpart
CC
standards
(
air
emission
standards
for
tanks,
surface
impoundments
and
containers).
190
DOE
agrees
that
the
appropriate
air
emission
standards
in
40
CFR
part
264,
subpart
CC
should
apply
to
containers
and
tanks
managed
under
a
standardized
permit,
and
that
the
information
required
by
subpart
CC
should
be
kept
on­
site.
However,
DOE
is
concerned
that
the
proposed
regulations
do
not
adequately
clarify
the
applicability
of
40
CFR
part
264,
subpart
CC
to
containers
and
tanks
that
will
be
managed
subject
to
the
proposed
operating
standards
in
40
CFR
part
267.
Specifically,
DOE
notes
that
the
existing
regulations
in
§
264.1080(
a)
limit
the
applicability
of
40
CFR
part
264,
subpart
CC
to
owners
and
operators
of
facilities
that
treat,
store,
or
dispose
of
hazardous
waste
in
tanks,
surface
impoundments,.
20
or
containers
subject
to
either
subparts
I,
J,
or
K
of
40
CFR
part
264.
Accordingly,
DOE
recommends
that
the
final
rule
modify
40
CFR
part
264,
subpart
CC,
§
264.1080(
a)
to
expressly
make
subpart
CC
applicable
to
containers
and
tanks
that
will
be
managed
subject
to
the
proposed
operating
standards
in
40
CFR
part
267.
Specifically,
DOE
suggests
that
§
264.1080(
a)
be
modified
in
the
following
manner
(
redline
font
=
addition):

§
264.1080(
a)
Applicability.

(
a)
The
requirements
of
this
subpart
apply
to
owners
and
operators
of
all
facilities
that
treat,
store,
or
dispose
of
hazardous
waste
in
tanks,
surface
impoundments,
or
containers
subject
to
either
subparts
I,
J,
or
K
of
this
part,
or
to
either
subparts
I
or
J
of
part
267,
except
as
§
264.1
and
paragraph
(
b)
of
this
section
provide
otherwise.

DOE
is
particularly
concerned
that
the
part
264,
subpart
CC
provisions
that
allow
containers
to
be
vented
to
the
atmosphere
and
still
be
considered
"
closed"
for
purposes
of
compliance
with
container
operating
standards
should
apply
to
containers
that
are
subject
to
proposed
§
267.171(
c)(
1).
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
Duplicate
question.
.
answered
previously
under
question
category
No.
56.

60.
Public
Comments
on
Corrective
Action
and
Financial
Assurance
Issues
(
X)

Comment:
We
question
the
legality
of
a
substitution
of
the
federal
RCRA
corrective
action
process
in
favor
of
other
cleanup
programs.
Most
RCRA
facilities
in
Georgia
and
many
other
states
are
well
into
the
RCRA
corrective
action
process.
GEPD
and
U.
S.
EPA
Region
IV
have
spent
years
to
get
these
facilities
into
active
corrective
action.
To
open
the
gates
to
other
cleanup
programs
at
this
advanced
stage
in
the
program
will
result
in
frustration
and
delay
and
will
set
back
the
cleanup
program
that
has
been
underway
in
our
RCRA
authorized
program
for
fifteen
years.

There
is
an
inherent
loss
of
federal
enforcement
and
subsequent
lack
of
regulatory
leverage
if
RCRA
cleanups
are
deferred
to
state
authorities.
It
would
be
very
complicated
from
a
legal
standpoint
for
EPA
attempt
to
enforce
a
state
law
simply
by
virtue
of
that
law
being
referenced
in
a
state
RCRA
permit.
We
have
been
very
successful
in
compelling
corrective
action
at
recalcitrant
191
sites
by
partnering
with
Region
IV
to
bring
state
and
federal
authorities
to
bear
on
a
single
problem.
This
would
likely
not
be
possible
if
RCRA
cleanup
is
just
deferred
to
state
cleanup
program.

It
is
also
unclear
if
EPA
will
fund
states
to
operate
state
cleanup
programs
through
RCRA
grants.
States
simply
do
not
have
the
resources
to
absorb
the
RCRA
cleanup
program,
which
is
already
under
funded.
Also,
states
are
not
anxious
to
have
their
state
cleanup
law
tested
in
court
by
large
litigious
RCRA
facilities.
In
Georgia,
we
simply
do
not
have
the
legal
staff
for
protracted
legal
challenges
to
our
state
superfund
law,
nor
would
we
wish
to
invite
legal
challenges
even
if
we
had
the
resources.

Finally,
the
proposed
"
Postponement"
and
"
Deferral"
programs
are
not
consistent
with
EPA's
established
goals
under
the
Government
Performance
and
Results
Act
(
GPRA)
and
are
not
justified
from
a
protection
or
equity
standpoint.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities.
However,
the
Agency
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.
The
Agency
may
in
the
future
develop
guidance
on
issues
related
to
use
of
alternate
authorities,
and
will
consider
comments
submitted
on
this
rulemaking
at
that
time.

Comment:
On
the
other
hand,
NADA
is
concerned
about
corrective
action
and
financial
assurance
issues.
Recently,
several
hundred
dealerships
were
reminded
of
the
historical
weaknesses
inherent
in
certain
state
and
Federal
approaches
to
corrective
action,
closure
and
financial
assurance
when
they
became
involved
in
the
Spectron
Superfund
Site
in
Elkton,
Maryland.
This
site
involved
a
permitted
solvent
recycling
facility
that
was
allowed
to
operate
into
the
late
1980'
s,
only
to
close
down
without
appropriate
corrective
action,
closure/
post­
closure
or
financial
assurance.
The
resulting
Superfund
action
has
involved
more
than
one
thousand
small
businesses
who
relied
on
Spectron's
permitted
status
and
deep
pocket
corporate
parent.

Without
question,
any
modifications
to
EPA's
approach
on
corrective
action,
closure
and
financial
assurance
issues
must
be
designed
to
eliminate
even
the
slightest
possibility
that
a
hazardous
waste
facility
operating
today
will
become
a
Superfund
site
tomorrow.
All
generators,
including
dealerships,
must
have
confidence
in
the
permitted
waste
management
facilities
they
do
business
with.
As
a
practical
matter,
the
small
business
waste
generating
community
has
little
or
no
ability
192
to
review
and
comment
on
hazardous
waste
facility
permit
specifics.
They
must
instead
rely
on
the
stringent
exercise
of
appropriate
state
and
Federal
authorities.
Therefore,
while
a
variety
of
flexible
permitting
and
enforcement
mechanisms
may
be
warranted
to
achieve
expeditious
and
thorough
corrective
action,
oversight
must
be
rigorous.
Whether
a
corrective
action
or
closure
involves
a
RCRA
moniker
is
less
important
than
whether
it
is
timely
and
well
controlled.
The
objective
must
be
equal
or
superior
environmental
benefits
and
zero
likelihood
that
a
Superfund
site
will
result.

NADA
supports
tighter
restrictions
on
the
types
of
financial
assurance
mechanisms
available
to
hazardous
waste
treatment,
storage,
and
disposal
facilities.
Moreover,
NADA
supports
the
application
of
Part
264
corrective
action,
closure/
post­
closure
and
financial
requirements
to
facilities
governed
under
Part
279,
Subpart
F.
(
Douglas
I.
Greenhaus,
Director,
Environment
Health
and
Safety,
National
Automobile
Dealers
Association,
RCRA­
2001­
0029­
0052)

Response:
Thank
you
for
your
comments.

61.
Public
Comment
on
Corrective
Action
and
Financial
Assurance
Issues:
Corrective
Action
(
X.
A)

Comment:
USWAG
supports
fully
EPA's
recognition
of
the
ability
of
alternate
state
cleanup
authorities
to
satisfy
RCRA
Corrective
Action
requirements.
We
agree
that
it
is
important
to
address
this
issue
explicitly
within
the
context
of
the
standardized
permit
proposal
to
"
balance
[
EPA's]
desire
for
a
streamlined
permitting
process
against
the
need
for
flexibility
in
the
corrective
action
program."
Id.
at
52213.
The
standardized
permit
process
and
general
terms
must
not
limit
the
authority
of
state
and
regional
regulators
to
work
with
corrective
action
site
managers
to
determine
optimal,
site­
specific
remedies.
State
alternate
cleanup
authorities
have
been
designed
carefully
to
accommodate
these
considerations,
and
EPA
should
defer
to
those
authorities
to
satisfy
RCRA
§
§
3004(
u),
(
v)
and
3005(
c)(
3).
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
The
Agency
appreciates
USWAG's
comments
related
to
use
of
alternate
State
authorities.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Additional
corrective
action
flexibility
seems
to
be
provided
in
the
proposed
rule,
but
exercising
this
flexibility
appears
discretionary.
We
approve
of
this
allowance
to
apply
the
193
corrective
action
flexibility
on
a
discretionary
basis.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
EPA
should
issue
standards
dealing
with
the
use
of
alternate
authorities
to
accomplish
corrective
action
at
RCRA
TSDFs
as
guidance,
leaving
it
up
to
the
regions
and
states
to
determine
if
and
how
they
will
implement
this
guidance.
The
authorized
agencies
will
be
best
equipped
to
make
a
decision
on
whether
or
not
they
want
to
allow
alternate
authorities
to
handle
RCRA
corrective
action.
In
some
cases
it
is
very
appropriate
to
encourage
clean­
up
under
another
authority,
primarily
to
avoid
dual­
regulating
the
site.
However,
if
the
alternate
authority
concept
is
promulgated
as
rule,
facilities
will
be
shopping
around
for
the
best
regulatory
program
or
clean­
up
deal
they
can
find.
The
Alternate
Cleanup
Program
idea
should
be
issued
as
guidance
and
implemented
by
individual
States
as
part
of
RCRA
reforms
initiative.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Response:
The
Agency
appreciates
commenter's
views
concerning
issuance
of
guidance
(
rather
than
regulation),
related
to
the
use
of
alternate
authorities.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Use
of
Guidance
vs.
Regulations
EPA
notes
that
it
is
currently
contemplating
issuing
policy
guidance
on
the
alternate
authority
issue
instead
of
proposed
and
final
regulations.
AISI
heartily
concurs
with
this
approach
and
urges
EPA
to
issue
guidance
as
soon
as
practicable
on
this
issue
to
promote
the
use
of
alternate
state
authorities.

Issuance
of
guidance
on
this
issue
would
preserve
maximum
flexibility
for
the
employment
of
differing
state
programs
while
providing
all
interested
stakeholders
with
notice
of
the
Agency's
intentions.
In
addition,
guidance
would
be
consistent
with
EPA's
previous
determinations
that
issuance
of
program
guidance
in
lieu
of
final
Subpart
S
regulations
would
better
serve
the
RCRA
corrective
action
program
because
it
would
be
less
disruptive
of
state
programs
already
in
place.
Finally,
the
preamble
discussion
of
the
alternate
authority
issue
in
this
Federal
Register
publication
provides
ample
notice
of,
and
opportunity
to
comment
on,
the
Agency's
proposals
and
intentions
194
with
respect
to
this
issue.
As
such,
all
stakeholders
will
have
been
afforded
a
meaningful
opportunity
to
make
their
views
known
on
this
important
topic.

At
the
same
time,
and
as
discussed
further
below,
EPA's
Federal
Register
discussion
of
this
subject
raises
a
number
of
significant
and
thorny
issues
whose
resolution
would
be
benefitted
by
further
dialogue
between
the
Agency
and
interested
stakeholders.
Consequently,
AISI
strongly
encourages
EPA
to
seek
additional
input
on
these
issues
prior
to
finalizing
any
such
guidance.
(
American
Iron
and
Steel
Institute,
RCRA­
2001­
0029­
0066)

Response:
The
Agency
appreciates
commenter's
views
concerning
issuance
of
guidance
(
rather
than
regulation)
related
to
the
use
of
alternate
authorities.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Proposed
Limitation
on
Use
of
State
Authorities
to
Corrective
Action
Under
Permits
The
Agency's
discussion
of
the
alternate
authority
issue
is
limited
to
circumstances
in
which
RCRA
corrective
action
would
otherwise
proceed
pursuant
to
a
final
RCRA
permit.
AISI
sees
no
reason
why
use
of
alternate
state
authorities
would
not
also
be
appropriate
­
in
states
where
EPA
has
determined
their
use
is
generally
appropriate
­
at
non­
permitted
facilities
that
have
at
some
point
operated
under
RCRA
interim
status
and
are
thus
candidates
for
interim
status
corrective
action
orders
under
Section
3008(
h)
of
RCRA.
Indeed,
facilities
that
have
already
received
a
Section
3008(
h)
order,
e.
g.,
for
site
investigation
and
characterization
but
not
for
corrective
measures,
might
also
be
appropriate
candidates
for
use
of
alternative
state
authorities
for
subsequent
phases
of
corrective
action.
(
This
would
be
particularly,
albeit
not
solely,
true
where
a
state
received
EPA
authorization
for
its
corrective
action
program
subsequent
to
issuance
of
a
Section
3008(
h)
order
by
EPA
for
the
limited
purpose
of
site
investigation/
characterization.)

AISI
strongly
urges
EPA
to
establish
a
policy
for
use
of
alternate
state
authorities
that
would
be
applicable
to
all
facilities
subject
to
RCRA
corrective
action
requirements.
The
approach
set
forth
below,
we
believe,
should
be
equally
applicable
and
implementable
for
all
RCRA
corrective
action
sites.
(
American
Iron
and
Steel
Institute,
RCRA­
2001­
0029­
0066)
195
Response:
The
Agency
appreciates
AISI's
comments
concerning
the
development
of
guidance
that
would
address
use
of
alternate
authorities
at
all
facilities,
not
just
permitted
facilities.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
Agency
agrees
with
commenter
that
it
would
be
preferable
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Mechanism
for
Implementing
Alternate
State
Authority
Approach
The
Agency
has
proposed
two
"
methods
of
addressing,
within
the
RCRA
permit,
the
cleanups
conducted
pursuant
to
alternate
State
authorities."
Id.
at
52233.
Under
the
first
method,
the
"
postponement"
approach,
the
permit­
issuing
agency
would
postpone
the
ultimate
determination
of
facility­
specific
corrective
action
requirements
until
after
a
cleanup
under
an
alternate
State
cleanup
authority
is
completed.
Under
the
second
method,
the
"
deferral"
option,
the
permit­
issuing
agency
would
make
an
upfront
determination
that
a
cleanup
conducted
under
an
alternate
authority
will
satisfy
the
corrective
action
requirements
at
a
site,
and
then
completely
defer
corrective
action
requirements
to
the
alternate
program.

AISI
respectfully
submits
that
both
of
these
approaches
contain
elements
that
are
likely
to
discourage
significantly
the
use
of
alternate
state
authorities.
The
"
postponement"
approach
suffers
from
the
significant
defect
that
the
facility
owner/
operator
will
not
know
until
the
cleanup
under
state
authorities
is
complete
(
at
some
indeterminate
point)
whether
its
significant
investment
of
resources
has
served
to
satisfy
its
RCRA
corrective
action
obligations.
This
uncertainty
­
and
possible
waste
or
misdirection
of
resources
­
is
likely
to
be
intolerable
to
many
facility
owners/
operators
and
serve
as
a
severe
disincentive
to
use
of
alternate
state
authorities.
The
"
deferral"
approach,
on
the
other
hand,
would
"
not
be
conditioned
on
a
review
conducted
at
the
end
of
the
cleanup
but
rather
be
based
on
an
analysis
at
the
time
of
permitting,
considering
the
recommended
criteria,
of
the
specific
corrective
action
contemplated
by
the
alternate
cleanup
program,
or
on
a
review
of
the
alternate
program
itself,
and
demonstrating
that
the
cleanup
of
the
facility
will
be
protective
of
human
health
and
the
environment."
Id.
at
52234
(
emphasis
supplied).
While
this
approach
addresses
the
uncertainty
concern
posed
by
the
postponement
approach,
it
is
likely
to
entail
a
significant
commitment
of
dual
permitting
agency
and
facility
owner/
operator
resources
­
and
concomitant
delay
­
upfront
in
the
process
as
EPA,
the
State,
and
the
permittee
all
essentially
"
negotiate"
the
terms
and
conditions
of
the
cleanup.
AISI
is
concerned
that
this
approach
could
well
result
not
so
much
in
a
deferral
to
states
of
cleanup
decisions
at
individual
sites,
but
rather
a
process­
laden
procedure
pursuant
to
which
EPA
can
"
second­
guess"
the
overall
remedial
approach
that
even
States
authorized
for
corrective
action
choose
to
take
at
individual
sites.
Finally,
as
noted
above,
both
options
suffer
from
the
fact
that
they
are
geared
to
final
RCRA
permit
situations
only,
and
do
not
cover
other
facilities
subject
to
RCRA
corrective
action
authorities.
196
AISI
believes
that
EPA
already
has
in
place
a
process
which
EPA
could
use,
with
issuance
of
confirmatory
guidance,
for
the
purpose
of
authorizing
the
use
of
alternate
state
authorities
to
fulfill
RCRA
corrective
action
obligations.
As
the
Agency
is
aware,
several
EPA
Regions
have
in
place
Memoranda
of
Agreement
("
MOA")
with
states
within
their
Regions
which
reflect
EPA
determinations
that:
(
1)
signatory
states
have
protective
non­
RCRA
remedial
programs
in
place
(
i.
e.,
state
voluntary
cleanup
programs
("
VCPs")),
and
(
2)
those
programs
are
sufficiently
protective
to
enable
the
Agency
to
agree
in
the
MOA
that
it
will
not
seek
to
require
further
removal
or
remedial
action
under
federal
law
at
sites
being
remediated
under
those
authorities
except
essentially
in
situations
involving
an
"
imminent
and
substantial
endangerment."
Inherent
in
those
determinations
is
presumably
an
EPA
conclusion
that
cleanup
under
the
state
programs
involved
should
be
sufficient
to
fulfill
RCRA
corrective
action
obligations
(
otherwise,
the
Agency
would
not
have
agreed
to
forego
invocation
of
federal
cleanup
authorities
except
in
unusual
circumstances).
Put
another
way,
if
EPA
has
agreed
in
a
MOA
to
forego
use
of
its
removal
and
remedial
authorities
at
a
site
being
cleaned
up
under
alternative
state
authorities,
it
should
be
willing
to
forego
use
of
comparable
RCRA
corrective
action
authorities
as
well.
As
such,
these
MOAs
­
which
EPA
has
already
entered
into
with
numerous
states
­
should
provide
a
sufficient
basis
for
determining
that
cleanup
under
the
state
programs
involved
should
suffice
to
achieve
RCRA
corrective
action
program
obligations.

Under
this
approach,
any
facility
subject
to
RCRA
corrective
action
obligations
could
choose,
upon
notice
to
the
permitting
agency,
to
proceed
under
the
state
remedial
authorities
which
were
the
basis
for
an
EPA
determination
to
enter
such
a
MOA
with
the
state
involved.
The
permitting
agency
could
then
(
1)
provide
public
notice
that
the
facility
had
chosen
to
fulfill
its
corrective
action
obligations
under
a
state
program
that
EPA
had
determined
is
adequately
protective
for
purposes
of
fulfilling
the
objectives
of
the
federal
program,
and
(
2)
describe
the
opportunities
under
the
state
program
for
public
comment
on
corrective
action
at
the
site.
Opportunities
to
challenge
cleanup
decisions
would
be
those
afforded
under
the
state
program
involved.
For
its
part,
EPA
could
conduct
whatever
level
of
oversight
it
wished
for
each
such
cleanup
consistent
with
the
oversight
it
is
otherwise
choosing
to
conduct
of
cleanups
conducted
under
the
programs
of
"
MOA
states".

In
order
to
maximize
the
effectiveness
of
this
approach,
it
should
be
accompanied
by
two
other
actions.
First,
EPA
Headquarters
should
strongly
encourage
the
Regions
to
pursue
MOAs
in
states
with
robust
cleanup
programs
that
are
not
yet
signatories
to
MOAs
(
and
assist
the
Regions
and
States
in
doing
so).
Second,
in
order
to
address
the
"
uncertainty"
issue
posed
by
EPA's
retention
of
authority
to
take
further
action
in
a
MOA
state
in
the
event
of
an
"
imminent
and
substantial
endangerment,"
EPA
should
confirm
that
it
expects
to
use
that
authority
only
sparingly
and
in
highly
unusual
circumstances.
Confirmation
of
this
sort
would
be
consistent
with
statements
made
by
senior
EPA
management
officials
(
in
Congressional
testimony
and
elsewhere)
that
the
Agency
has
yet
to
use
its
"
imminent
and
substantial
endangerment"
authority
at
a
site
being
remediated
under
a
state
program
generally
viewed
as
protective
by
EPA
as
a
whole.
197
This
approach
has
several
virtues.
First,
the
approach
is
already
in
place
and
appears
to
have
resulted
in
a
workable
program
in
those
states
and
Regions
that
have
pursued
it.
Consequently,
the
approach
should
already
be
well­
understood
and
readily
implementable.
Second,
the
criteria
by
which
state
programs
are
to
be
judged
for
"
protectiveness"
are
already
established
and
understood.
Third,
the
approach
would
not
dictate
either
an
"
upfront"
or
"
after
the
fact"
case­
by­
case
review
of
the
protectiveness
of
each
cleanup
under
an
"
approved"
state
program;
instead,
EPA
"
oversight"
of
the
protectiveness
of
the
cleanup
would
be
undertaken
in
the
same
manner
as
it
otherwise
is
being
pursued
under
existing
MOAs.
Finally,
the
approach,
if
properly
structured,
should
avoid
the
pitfalls
of
the
two
methods
proposed
by
EPA,
including
the
applicability
solely
to
facilities
with
final
RCRA
permits.

AISI
recognizes
that
there
are
certain
limitations
under
this
approach
as
well,
not
the
least
of
which
is
the
fact
that
some
states
do
not
allow
sites
subject
to
RCRA
corrective
action
requirements
to
be
cleaned
up
under
the
state
authorities
that
served
as
the
basis
for
a
MOA.
In
those
states,
either
the
states
could
modify
their
eligibility
requirements
(
with
this
new
EPA
initiative
as
an
incentive
to
do
so),
and/
or
EPA
could
conclude
that
cleanup
under
unauthorized
state
corrective
action
programs
was
"
functionally
equivalent"
to
cleanup
under
the
alternate
state
VCPs
that
EPA
reviewed
for
purposes
of
the
MOA
(
on
the
basis
of
a
conclusion
that
those
state
programs
were
at
least
as
rigorous
as
alternate
state
remedial
authorities
reviewed
for
purposes
of
evaluating
the
appropriateness
of
a
MOA).

If
EPA
concludes
that
the
MOA
approach
outlined
above
is
unacceptable
for
some
reason,
AISI
encourages
the
Agency
to
enter
a
dialogue
with
the
regulated
community
to
explore
the
noted
shortcomings
of
the
two
options
it
has
proposed.
Those
discussions
may
provide
a
basis
for
refining
one
(
or
both)
of
those
approaches
in
a
manner
that
will
sufficiently
mitigate
the
disincentives
they
present
to
use
of
alternate
state
authorities.
(
American
Iron
and
Steel
Institute,
RCRA­
2001­
0029­
0066)

Response:
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
and
appreciates
AISI's
thoughtful
comments
on
this
issue.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.

Comment:
Criteria
for
Assessing
Adequacy
of
Alternate
State
Cleanup
Programs
Consistent
with
the
approach
outlined
above,
AISI
believes
that
the
criteria
for
assessment
and
evaluation
of
alternate
state
programs
should
be
those
already
set
forth
in
the
November
14,
1996
"
Interim
Approaches
for
Regional
Relations
with
State
Voluntary
Cleanup
Programs,"
i.
e.,
the
"
VCP
guidance"
criteria.
As
noted
above,
EPA
has
already
made
a
determination
that
these
criteria
are
appropriate
for
assessing
whether
state
remedial
programs
are
sufficiently
robust
that
invocation
of
federal
cleanup
authorities
is
generally
unnecessary.
In
addition,
the
criteria
have
proven
to
be
workable
and
"
acceptable",
leading
to
MOAs
in
several
Regions
with
numerous
198
States.
Finally,
AISI
is
unaware
of
any
evidence
that
would
demonstrate
that
the
criteria
have
proven
inadequate
for
demonstrating
the
sufficiency
of
state
programs.

Regardless
of
the
state
program
evaluation
criteria
used,
however,
AISI
agrees
with
the
Agency
that
the
level
of
assessment
of
the
adequacy
of
the
alternate
state
program
need
not
be
as
stringent
or
comprehensive
as
that
conducted
in
the
authorization
process
for
state
correction
action
programs.
As
indicated
above,
the
review
process
EPA
has
already
adopted
for
entering
MOAs
with
states
for
use
of
state
remedial
programs
in
lieu
of
federal
authorities
appears
to
have
proven
acceptable,
workable,
and
protective.
Once
a
MOA
has
been
entered,
use
of
the
alternate
State
program
that
formed
the
basis
for
the
MOA
should
be
permitted
at
individual
sites
unless
EPA
has
made
a
determination,
based
on
experience
to
date
with
that
state
program,
that
the
MOA
is
no
longer
viable.
This
result
is
particularly
­
but
not
solely
­
warranted
in
states
already
authorized
by
EPA
for
RCRA
corrective
action.

An
"
authorization"
approach
akin
to
that
in
place
for
authorization
of
state
corrective
action
programs
would
likely
present
the
delays,
resource
drains,
and
other
problems
associated
with
RCRA
authorization
processes
now
in
place.
Accordingly,
AISI
urges
EPA
not
to
employ
that
approach.
(
American
Iron
and
Steel
Institute,
RCRA­
2001­
0029­
0066)

Response:
The
Agency
appreciates
commenter's
position
on
assessment
and
evaluation
of
alternate
State
programs.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Conclusion
The
proposal
by
EPA
to
adopt
a
policy
that
would
promote
the
use
of
state
cleanup
programs
in
lieu
of
the
federal
or
state­
authorized
RCRA
program
to
satisfy
corrective
action
requirements
is
an
important
one.
If
adroitly
fashioned
and
implemented,
the
policy
could
go
far
in
promoting
more,
and
more
timely,
cleanups
at
RCRA
corrective
action
sites,
thereby
advancing
the
objectives
of
both
RCRA
and
the
Government
Performance
Results
Act.

At
the
same
time,
the
discussion
in
these
comments
regarding
the
appropriate
method
for
determining
whether
cleanups
under
state
authorities
are
sufficiently
protective
of
human
health
and
the
environment
hopefully
highlights
the
fact
that
issue
is
a
difficult
one.
As
such,
AISI
believes
it
is
one
that
merits
further
discussion
with
the
States
and
other
interested
stakeholders.
AISI
therefore
encourages
EPA
to
continue
the
dialogue
initiated
in
this
Federal
Register
notice
on
a
fast­
track
basis
with
the
intent
of
fashioning
in
relatively
short
order
an
optimal
approach.
(
American
Iron
and
Steel
Institute,
RCRA­
2001­
0029­
0066)
199
Response:
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
and
appreciates
AISI's
thoughtful
comments
on
this
issue.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.

Comment:
General
Support
for
Alternates
to
RCRA
Corrective
Action
Council
member
companies
are
actively
engaged
in
remedial
activities
at
a
large
number
of
sites
on
the
RCRA
Cleanup
Baseline.
We
are
long­
time
participants
in
RCRA
Corrective
Action
advocacy,
and
look
forward
to
working
closely
with
the
Agency
on
this
and
other
efforts
to
improve
the
corrective
action
program.

We
share
the
Agency's
interest
in
providing
more
flexible
means
of
achieving
RCRA
Corrective
Action
requirements,
and
commend
the
Agency
for
suggesting
that
cleanup
programs
other
than
the
authorized
RCRA
Corrective
Action
program
may
be
used
to
achieve
RCRA's
requirements
for
protection
of
human
health
and
the
environment.
Allowing
alternate
cleanup
approaches
is
consistent
with
the
Agency's
efforts
in
recent
years
to
shift
the
RCRA
Corrective
Action
program
from
a
process­
heavy
to
a
results­
focused
program.

The
Agency's
recognition
that
further
RCRA
rulemaking
may
be
detrimental
to
the
pace
of
cleanups,
and
understanding
that
state
programs
are
both
effective
and
protective,
as
evidenced
by
the
withdrawal
of
the
Subpart
S
proposal
(
October
7,
1999,
64
FR
54604),
has
been
instrumental
in
improving
the
RCRA
Corrective
Action
program.
The
best
hopes
for
cleanup
progress
lie
at
the
state
level.
EPA
has
correctly
shifted
its
efforts
from
a
top­
down
approach
in
which
states
are
provided
prescriptive
regulations
to
a
more
flexible
regime
in
which
states
are
provided
a
variety
of
guidance
/
policy
tools
with
which
state
authorities
are
able
to
determine
the
most
appropriate
means
to
achieve
cleanups
that
are
protective
of
human
health
and
the
environment.

The
Agency's
proposal
to
make
additional
tools
 
in
the
form
of
alternate
regulatory
programs
 
available
is
an
additional
positive
step.
The
Council
strongly
supports
this
concept.
The
balance
of
our
comments
details
our
support
and
provides
our
input
on
issues
for
which
the
Agency
solicits
comment.
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)

Response:
The
Agency
appreciates
ACC's
comments
concerning
the
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.
200
Comment:
Alternate
Programs
Should
not
be
Limited
to
Permitted
Facilities
The
Agency's
discussion
of
allowing
alternate
state
cleanup
programs
appears
to
be
limited
to
permitted
facilities.
We
believe
that
alternate
state
programs
may
also
be
appropriate
at
facilities
subject
to
RCRA
Corrective
Action
activities
via
an
order
(
e.
g.,
RCRA
Section
3008(
h)
order).
The
benefits
of
alternate
state
cleanup
programs
could
aid
both
RCRA
permitted
and
order
sites
in
streamlining
corrective
action
efforts.
We
therefore
recommend
that
EPA's
policy
for
allowing
alternate
state
cleanup
programs
apply
to
all
RCRA
Corrective
Action
sites.
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)

Response:
The
Agency
appreciates
ACC's
comments
concerning
the
use
of
alternate
authorities
at
all
facilities,
rather
than
just
at
permitted
facilities.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
and
agrees
with
commenter
that
the
issue
should
be
addressed
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities.
Therefore,
the
Agency
believes
it
is
more
appropriate
to
address
this
issue
outside
of
this
rulemaking.

Comment:
Guidance,
Rather
than
Rulemaking,
Should
be
Used
to
Allow
State
Alternate
Programs.

EPA
solicits
comment
on
whether
mechanisms
to
allow
the
use
of
alternate
state
programs
should
be
done
via
guidance
or
rulemaking.
We
strongly
encourage
EPA
to
employ
guidance
rather
than
rulemaking.
The
complexity
of
writing
regulations
to
address
the
multiplicity
of
program­
specific
circumstances
would
result
in
a
loss
of
the
flexibility
needed
to
advance
the
pace
of
corrective
action.
We
suggest
that
the
Agency
develop
guidance
that
provides
general
assistance
on
how
alternate
state
cleanups
may
be
used
in
lieu
of
the
RCRA
Corrective
Action
program.

We
are
concerned
that
it
would
be
extremely
difficult
to
craft
regulations
that
can
anticipate
the
issues
that
may
need
to
be
addressed
when
considering
the
multiplicity
of
current
and
future
state
cleanup
programs
that
may
be
appropriate
means
to
achieve
RCRA's
goals
of
protection
of
human
health
and
the
environment.
Guidance
would
provide
a
more
general
and
flexible
framework
to
facilitate
the
use
of
alternate
programs.

We
commend
the
Agency
for
raising
the
important
issues
in
this
notice,
and
recognizing
the
benefits
of
providing
alternatives
to
the
base
RCRA
Corrective
Action
program.
We
appreciate
the
opportunity
to
communicate
our
view
on
the
key
points
raised
in
the
Federal
Register
notice,
but
we
believe
that
this
may
be
a
complex
issue
warranting
further
discussion.
We
urge
the
Agency
to
continue
the
dialogue
with
the
Council
and
other
stakeholders
on
this
issue
such
that
an
optimal
approach
may
be
developed.
We
welcome
the
opportunity
to
work
with
the
Agency
in
a
subsequent
dialogue.
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)
201
Response:
The
Agency
appreciates
ACC's
comments
concerning
the
development
of
guidance
on
alternate
authorities,
rather
than
regulations.
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

62.
Could
I
satisfy
the
RCRA
corrective
action
requirements
for
my
site
by
conducting
cleanup
under
an
alternate
State
program?
(
X.
A.
1)

Comment:
Generally
anything
that
simplifies
administrative
oversight
and
compliance
requirements
while
not
sacrificing
accountability
is
a
good
thing.
For
corrective
action
it's
the
final
result
that
is
important
not
necessarily
how
it
is
achieved.
Simplification
of
the
State's
and
EPA's
evolvement
is
a
positive.
(
James
Butler,
Regulatory
Compliance
Officer,
Cycle
Chem,
Inc.,
RCRA­
2001­
0029­
0031)

Response:
The
Agency
appreciates
Cycle
Chem's
comments
regarding
the
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
p.
52232,
cols.
2
&
3
 
EPA
is
soliciting
comment
on
whether
and
under
what
conditions
it
should
adopt
a
policy
that
would
promote
the
use
of
cleanup
programs
other
than
the
authorized
RCRA
program
to
satisfy
corrective
action
requirements
at
permitted
facilities.

DOE
supports
EPA's
contention
in
the
preamble
that
by
developing
a
policy
that
recommends
guidelines
for
the
use
of
alternate
authorities
at
permitted
facilities,
the
Agency
would
be
able
to
leverage
the
potential
offered
by
alternate
cleanup
authorities,
while
at
the
same
time
ensuring
that
cleanups
conducted
under
those
authorities
satisfy
the
statutory
requirements
of
RCRA.
EPA
has
already
noted
the
usefulness
of
alternate
cleanup
authorities
in
the
Post­
Closure
rule,
wherein
the
Agency
established
standards
for
the
evaluation
of
alternate
authorities
that
are
adequate
to
ensure
that
statutory
requirements
of
RCRA
are
met
(
63
FR
56710,
October
22,
1998).
DOE
believes
that
alternate
authorities
deemed
to
be
protective
for
the
purposes
of
post
closure
would
also
be
appropriate
for
the
purposes
of
corrective
action.

pp.
52232,
col.
3
 
The
preamble
notes
that,
although
EPA
currently
is
contemplating
202
issuing
policy
guidance
on
the
alternate
authority
issue,
the
Agency
may
decide
instead
to
issue
the
guidance
provisions
discussed
in
section
X.
A.
1
of
the
NPRM
as
final
regulations.
EPA
solicits
comment
on
whether
such
a
policy,
if
adopted,
should
be
promulgated
as
regulations
or
issued
as
guidance.

In
keeping
with
EPA's
practice
for
RCRA
corrective
action,
and
to
preserve
the
flexibility
EPA
has
incorporated
into
the
RCRA
corrective
action
program,
DOE
recommends
that
EPA
issue
policy
guidance
on
the
alternate
authority
issue.
This
guidance
should
include
specific
criteria
that
alternate
cleanup
programs
must
meet
in
order
to
be
considered
substantially
equivalent.
Key
factors
would
include
cleanup
to
accepted
risk­
based
standards
(
including
those
based
on
residential
and
industrial
land
uses),
and
public
involvement.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
EPA
appreciate's
DOE's
comments
regarding
the
development
of
guidance
on
alternate
authorities.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
USWAG
agrees
that
"
by
developing
a
policy
that
recommends
guidelines
for
the
use
of
alternate
authorities
at
permitted
facilities,
the
Agency
would
be
able
to
leverage
the
potential
offered
by
alternate
authorities,
while
at
the
same
time
ensuring
that
cleanups
conducted
under
those
authorities
satisfy
the
statutory
requirements
of
RCRA."
Id.
at
52233.
USWAG
recommends
that
EPA
establish
this
policy
in
the
form
of
guidance
to
provide
the
flexibility
needed
to
address
variations
among
state
programs.
We
also
request
that
EPA
develop
the
guidance
through
a
stakeholder
process.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
EPA
appreciates
USWAG's
comments
concerning
the
development
of
guidance
on
the
use
of
alternate
authorities.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
API
supports
promulgation
of
the
deferral
option
for
corrective
action,
under
which
alternate
state
program
cleanup
requirements
would
become
enforceable
conditions
of
the
RCRA
permit.
The
complexity
and
duration
of
corrective
action
programs
at
sites
require
a
significant
203
commitment
of
resources.
Both
the
industry
and
the
public
are
best
served
by
ensuring
that
the
early
decisions
not
to
have
to
be
revisited
following
large
expenditures
of
money
and
time.
The
postponement
option
discussed
by
EPA
would
require
just
that.
If
cleanup
is
not
considered
until
completion,
there
is
a
significant
possibility
that
a
facility
would
need
to
complete
additional
unplanned
and
unbudgeted
activities.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

API
does
not
support
a
review
of
alternative
state
programs
for
states
that
have
been
authorized
for
corrective
action.
If
EPA
finds
it
necessary
to
review
alternative
state
programs
in
states
that
are
not
authorized,
we
strongly
prefer
use
of
the
criteria
currently
applied
to
voluntary
cleanup
programs
to
those
identified
in
the
post­
closure
rule
or
the
ANPR
on
corrective
action.
States
that
have
been
authorized
for
corrective
action
under
RCRA
have
already
undergone
extensive
review.
That
review
has
resulted
in
a
determination
that
the
state
is
capable
of
implementing
cleanups
and
that
it
has
appropriate
authorities.
There
is
no
need
to
revisit
the
state's
programs
in
this
context.
As
far
as
reviewing
alternative
programs
in
states
that
have.
not
yet
been
authorized
for
corrective
action,
the
criteria
identified
in
the
latter
documents
closely
parallel
the
state
authorization
review
process,
and
are
inconsistent
with
EPA's
statement
that
it
does
not
believe
the
level
of
review
of
alternate
cleanup
programs
would
be
commensurate
with
that
used
for
the
state
authorization
process.
Use
of
an
ANPR
for
guidance
on
this
issue
is
inconsistent
with
the
Administrative
Procedures
Act
(
APA)
since
an
ANPR
does
not
represent
final
Agency
action.
(
Cindy
Gordon,
American
Petroleum
Institute,
RCRA­
2001­
0029­
0050)

Response:
The
Agency
appreciates
APIs
comments
regarding
the
deferral
option
for
addressing
corrective
action
in
RCRA
permits,
and
the
review
of
alternative
State
programs
in
authorized
States.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
EPA
Should
Not
Allow
Any
Facility
To
Satisfy
RCRA
Corrective
Action
Requirements
By
Conducting
Cleanups
Under
An
Alternative
State
Program.
Doing
So
Presents
A
Serious
Threat
To
Public
Health
And
Environmental
Quality.

Congress
drafted
RCRA
intending
that
the
statute
provide
EPA
with
the
authority
to
ensure
facilities
clean
up
contaminated
sites
pursuant
to
consistent
federal
standards
that
protect
public
health
and
environmental
quality,
and
which
ensure
the
public
a
meaningful
role
in
the
clean
up
process
through
access
to
all
relevant
information
pertaining
to
the
clean
up,
and
by
giving
the
public
a
voice
in
clean
up
decisions
that
could
detrimentally
affect
their
community.
State
voluntary
clean
up
programs
fail
to
provide
a
consistent
level
of
protection
for
public
health
and
environmental
quality,
and
a
consistent
meaningful
voice
for
the
public
in
clean
up
decisions.
204
Therefore,
EPA
should
not
accept
requirements
of
any
state
voluntary
cleanup
program
in
lieu
of
RCRA's
CA
requirements.
National,
state,
and
local
environmental
and
public
interest
organizations
strongly
oppose
any
movement
by
EPA
in
this
direction.

A.
Some
State
Programs
Lack
Key
Protections
It
is
clear
that
not
all
state
programs
are
alike.
However,
some
broad
themes
are
evident
from
the
available
data.
For
example,
information
on
state
enforcement
of
environmental
laws
and
analysis
of
state
cleanup
programs
raise
cause
for
concern
regarding
inadequate
cleanup
standards,
low
rates
of
enforcement,
minimal
or
non­
existent
public
participation
provisions,
inability
to
manage
contained
sites
over
the
long­
term,
inadequate
funding,
and
insufficient
technical
expertise
for
remediating
very
contaminated
sites.
In
fact,
numerous
state
programs
share
these
significant
deficiencies.

B.
Concerns
Over
State
Enforcement
Of
Environmental
Laws
As
reported
by
"
Inside
EPA,"
there
is
EPA
data
demonstrating
that
some
states
may
not
be
vigorously
enforcing
environmental
laws.
While
states
have
raised
concerns
over
the
data's
quality,
both
"
state
and
EPA
officials
confirm
that
state
enforcement
activity
has
dropped
since
1994,
and
that
hazardous
waste
enforcement
has
fallen
hardest."
This
drop
in
enforcement
of
hazardous
waste
relates
to
the
RCRA.

C.
Declines
In
State
Enforcement
Actions
The
data
shows
that
state
enforcement
under
all
environmental
statutes
has
dropped
by
as
much
as
30
percent
from
historic
highs.
For
example,
in
1997,
Oregon
filed
138
enforcement
actions,
which
is
down
from
438
in
1994.
Indian's
totals
for
the
same
period
dropped
from
2,509
to
165.
In
1995,
California
filed
208
enforcement
actions,
down
from
813
in
1993.

Leading
this
overall
decline
was
state
enforcement
of
RCRA,
which
dropped
by
more
than
50
percent,
and
possibly
as
much
as
70
percent,
nationwide
from
1993
 
1997.
A
number
of
states
have
experienced
particularly
dramatic
declines,
including
Indian
(
191
in
1993
to
1
in
1997),
New
York
(
221
in
1994
to
1
in
1997),
and
New
Jersey
(
100
in
1994,
0
in
1996,
and
1
in
1997).
These
declines
came
during
a
time
when
major
violations
of
RCRA
jumped
from
269
in
1996
to
550
in
1997.

There
are
numerous
possible
causes
for
this
decline
in
state
enforcement.
Two
causes
frequently
cited
are
shrinking
state
enforcement
budgets
and
shifting
priorities
by
state
agencies.
Inside
EPA
reported
that
"
state
legislature
are
squeezing
the
budgets
of
environmental
agencies,
and
there
is
less
money
coming
to
states
from
EPA."
One
source
in
EPA
headquarters
commented
that,
"`
There
are
fewer
inspectors,
fewer
state
resources.
.
.
[
and]
the
trend
[
for
enforcement
activity]
has
been
down.'"
205
Inside
EPA
also
reported
that
states
are
shifting
priorities
towards
"
offering
technical
assistance
to
obtain
compliance
up­
front."
However,
there
is
no
comparative
data
on
the
effectiveness
of
this
assistance
in
reducing
pollution.
Absent
such
baseline
data,
claims
of
increased
benefits
remain
just
that,
unsubstantiated
claims.

A
December
1998
review
of
state
and
federal
enforcement
measures
in
EPA
Region
5,
the
largest
Region
in
the
nation,
by
the
Office
of
Enforcement
and
Compliance
Assurance
(
OECA)
confirms
Inside
EPA's
reports.
OECA
concluded
that
the
"
number
of
state
enforcement
actions
and
the
number
of
inspections
conducted
by
the
states
[
in
region
5]
have
decreased
substantially
over
the
past
several
years
across
most
programs.
.
.
[
T]
he
Region
believes
inspectors
in
some
states
are
being
prompted
to
not
identify
SNCs."
("
Significant
Non­
Compilers"
are
the
worst
violators
of
protections
for
public
health
or
environmental
quality)."
A
similar
report
for
Region
9
also
notes
a
drop
in
state
enforcement,
"
The
general
trend
in
enforcement
in
AZ
and
CA
is
one
of
a
significantly
decreasing
enforcement
presence."

D.
Some
State
Programs
Lack
Assurances
For
Public
Participation
A
1998
report
by
the
Environmental
Law
Institute
reviewed
the
public
participation
requirements
of
state
cleanup
programs
throughout
the
nation.
The
report
shows
that
twelve
states
have
no
statutory
or
regulatory
requirements
for
public
participation.
In
another
twelve
states,
public
participation
is
only
used
as
a
matter
of
policy.
Less
than
half
of
the
states
require
public
notice,
comment,
and
hearings.

Some
states
believe
that
EPA's
standards
for
obtaining
community
participation
unnecessarily
burdens
the
cleanup
process.
However,
the
EPA
counters
that
early
public
involvement,
particularly
in
ascertaining
the
community's
desired
future
use
of
a
site,
contributes
a
range
of
benefits
including
more
expedited,
cost
effective
cleanups.
As
discussed
above,
at
a
minimum,
certain
segments
of
the
public
will
be
greatly
impacted
by
cleanup
remedies,
and
therefore
should
be
encouraged
to
fully
participate
in
the
remedy
selection
process
if
they
so
desire.

E.
Some
State
Programs
Lack
Adequate
Funding
One
GAO
report
surveyed
44
states
on
their
program's
financial
ability
to
fund
cleanups
if
the
PRPs
were
unwilling
or
unable
to
pay.
Twenty­
three
states
ranked
their
financial
ability
to
cleanup
potentially
eligible
NPL
sites
as
very
poor
to
poor,
while
an
additional
seven
sites
ranked
their
capabilities
as
only
fair.

A
second
report,
by
the
Environmental
Law
Institute,
found
that
numerous
state
programs
lack
adequate
funding.
Out
of
the
states
and
territories
surveyed,
the
report
found
that
two
states
did
not
have
any
cleanup
funds,
three
states
and
one
territory
had
funds
but
did
not
have
any
money
in
them,
and
that
one
state
(
Missouri)
had
a
negative
balance
in
its
fund.
Further,
eight
other
states
had
balances
of
less
than
$
1
million,
while
fourteen
states
had
fund
balances
of
less
than
$
5
million.
206
Other
documents
also
describe
problems
with
state
program
funding.
For
example,
the
director
of
the
Texas
Superfund
programs
stated
that
the
state
was
"
having
great
difficulty
funding
its
NPL
and
non­
NPL
responsibilities,
and
can
therefore
take
on
additional
duties
only
if
EPA
continues
to
provide
funding."
The
report
goes
on
to
state
that
"[
a]
ll
of
the
other
states
visited
cited
budgetary
constraints
as
a
major
factor
in
their
programs,
a
factor
that
may
also
limit
their
ability
to
take
on
additional
responsibilities
for
NPL
site
cleanups
without
federal
support."

F.
News
Reports
Mirror
Concerns
News
reports
also
demonstrate
problems
with
state
cleanup
programs.
Failings
occur
through
non­
reauthorization
of
cleanup
programs,
inadequate
monitoring,
lack
of
funding,
and
regulations
that
contain
only
minimal
clean
up
and
public
participation
standards.

1.
California
In
1999,
the
California
legislature
failed
to
reauthorize
the
state's
Superfund
cleanup
law.
On
November
19,
1998,
a
state
agency
had
to
adopt
emergency
cleanup
regulations,
which
were
effective
for
only
120
days.

In
1998,
the
Los
Angeles
Daily
News
reported
that
at
least
nine
Los
Angeles
schools
were
built
on
sites
that
school
district
officials
knew
might
be
contaminated.
These
findings
came
from
a
study
prepared
by
California's
Joint
Legislative
Audit
Committee.

2.
New
York
On
January
31,
1999,
the
New
York
Times
reported
that
the
New
York
State
Superfund
program
was
running
out
of
money.
The
story
noted
that
the
last
major
infusion
of
cash
into
program
was
in
1986,
when
voters
passed
a
$
1.2
billion
bond.
However,
at
the
time
the
story
was
printed,
"
all
that
money
[
was]
either
spent
or
spoken
for."
This
occurred
despite
the
fact
that
New
York
State
contained
300
contaminated
sites
that
posed
a
"
significant
threat
to
public
health."

The
Comptroller
for
New
York
also
found
serious
deficiencies
with
the
state's
clean
up
program,
which
call
into
question
the
state's
ability
to
protect
public
health
and
environmental
quality.
In
February
2001,
the
Comptroller
published
an
audit
of
the
state
clean
up
program.
The
audit
found
that
since
1979,
167
sites
have
been
taken
off
of
the
state
contaminated
site
list.
Of
those
sites,
only
two
met
the
goal
of
being
as
clean
as
they
were
before
being
polluted.
Of
the
221
treated
sites
that
were
still
on
the
list,
30
did
not
meet
the
state's
minimum
standards
for
protecting
public
health.
At
five
other
sites,
state
workers
had
failed
to
meet
their
own
cleanup
goals.
At
141
other
sites,
the
comptroller
found
that
state
records
did
not
demonstrate
whether
the
state's
cleanup
goals
were
met.
The
audit
also
noted
that
gaps
in
the
system
could
have
left
the
public
unaware
of
the
continuing
dangers
or
the
restrictions
on
some
sites.

3.
Pennsylvania
The
Philadelphia
Inquirer
reported
that
"
many
states
[
including
Pennsylvania],
under
the
banner
of
so­
called
brownfields,
have
dramatically
loosened
cleanup
regulations
and
standards
in
recent
years
207
to
spur
the
development,
or
sales,
of
contaminated
lands."
The
story
quotes
Rick
Gimello,
assistant
commissioner
at
New
Jersey's
Department
of
Environmental
Protection
as
stating,
"
I
don't
think
any
state
is
as
busy
as
we
are.
.
.
Our
pace
[
of
putting
properties
through
the
program]
is
off
the
charts."

4.
Washington
On
April
16,
1999,
the
Seattle
Post­
Intelligencer
reported
that
the
state
fund
which
pays
for
the
cleanup
of
toxic
spills
and
environmental
contamination
is
facing
a
$
5.9
million
shortfall,
about
a
seventh
of
the
program's
annual
budget.
The
story
noted
that
cleanup
work
could
be
halted
or
delayed
at
a
minimum
of
12
highly
contaminated,
high­
priority
sites.
The
shortfall
could
also
severely
limit
monitoring
and
testing
operations.
The
paper
referenced
Jim
Pendowski,
manager
of
the
state
toxic
cleanup
program,
as
stating
that
the
"
shortfall
would
compromise
the
department's
ability
to
detect
emerging
toxic
problems
in
the
environment
and
deal
with
existing
ones."

A
series
of
reports
by
the
same
paper
present
compelling
evidence
that
the
state's
Department
of
Ecology
failed
to
protect
635
Hispanic
migrant
workers
from
drinking
contaminated
groundwater,
while
providing
other
(
mostly
Caucasian)
people
with
bottled
drinking
water.
The
migrant
workers
lived
for
"
several
years
at
a
camp
with
a
well
that
had
ethylene
dibromide
levels
17
times
higher
than
federal
regulators
considered
safe."
The
paper
quotes
agency
memos
from
1988
and
1989
that
describe
agency
debate
about
whether
to
provide
bottled
water
to
workers.
The
memos
also
express
concern
about
the
public
reaction
if
people
learned
that
the
agency
was
providing
water
to
white
residents,
but
not
Hispanic
workers.

5.
New
Jersey
In
a
series
of
stories,
the
Bergen
Record
reported
that
the
Mayor
of
Secaucus,
New
Jersey
failed
to
notify
citizens
and
city
council
members
about
the
migration
of
contamination
from
a
nearby
Superfund
site,
under
the
homes
of
nearby
residents.
The
paper
also
reported
that
the
Mayor
ordered
engineers
to
locate
test
wells
on
municipal
property
where
there
was
no
requirement
to
notify
the
public.
The
Mayor
stated
that
since
the
waste
did
not
pose
a
danger
to
the
residents,
release
of
the
information
would
have
unnecessarily
alarmed
the
public.
While
some
city
council
members
agreed
with
the
Mayor's
decision,
the
paper
reported
that
homeowners
and
other
city
council
members
insisted
that
they
should
have
been
included
in
the
decision
making
process.

6.
Ohio
As
noted
above,
public
notice
and
involvement
in
cleanup
decisions
is
critical
for
ensuring
the
long­
term
protection
of
public
health,
particularly
when
contamination
is
left
on­
site.
When
the
public
is
informed
about
the
risks
of
a
site
and
understands
the
tools
used
to
decrease
those
risks,
they
are
uniquely
situated
to
help
enforce
those
controls,
whether
by
telling
children
not
to
play
in
certain
areas
or
by
informing
new
residents
or
businesses
not
to
undertake
certain
actions.

However,
a
study
by
the
Northeast­
Midwest
Institute
on
Ohio's
Voluntary
Action
Program
(
VAP)
found
that
the
public
might
not
be
notified
of
a
clean
up
plan
until
after
a
cleanup
occurs
and
the
state
has
issued
a
covenant
not
to
sue.
208
A
coalition
of
groups
recently
reviewed
Ohio's
VAP.
Their
findings
are
rather
disturbing.
Under
Ohio's
VAP,
if
the
Ohio
EPA
agrees
that
a
site
meets
the
standards
set
forth
in
the
VAP,
Ohio
EPA
will
issue
a
Covenant
Not
to
Sue,
which
releases
the
owner
from
state
civil
liability.
By
releasing
developers
from
liability,
the
state
largely
forecloses
its
primary
tool
to
ensure
that
landowners
or
developers
pay
to
clean
up
dangerous
contamination
left
on­
site.
This
means
that
taxpayers
may
bear
the
costs
of
any
future
clean
ups.

The
report
lists
a
number
of
other
disturbing
findings
regarding
Ohio's
VAP.
For
example,
Ohio
provided
financial
incentives
for
some
sites
to
participate
in
the
VAP,
but
the
sites
were
never
cleaned.
Additionally,
the
report
notes
that
the
VAP
process
did
not
address
offsite
contamination
concerns,
as
required
by
Ohio
statutes,
and
that
"[
s]
ome
sites
were
located
on
or
near
critical
resource
aquifers,
wells,
and/
or
municipal
water
supplies.
On­
and
offsite
[
contamination]
threatened
these
critical
resources,
[
and]
potentially
[
threatened]
human
health."

The
VAP
program
also
strongly
relies
on
institutional
or
engineering
controls
as
a
form
of
clean
up,
rather
than
requiring
contamination
to
be
remediated
or
removed.
For
example,
deed
restrictions
on
land
use
or
groundwater
use,
the
most
common
form
of
institutional
control
employed,
were
applied
at
49.5
percent
of
the
111
surveyed
sites.
Additionally,
Ohio's
program
has
an
Urban
Setting
Designation
that
allows
developers
to
avoid
cleaning
up
contaminated
groundwater.
Thus
far,
the
Ohio
Program
has
issued
57
"
Covenants
Not
to
Sue"
at
VAP
sites;
of
these
sites,
17,526
acres
of
groundwater
have
been
defined
as
Urban
Setting
Designators,
while
another
525
acres
of
groundwater
and
828
acres
of
land
have
also
been
restricted
through
institutional
controls.

Other
problems
continue
to
crop
up
with
Ohio's
clean
up
program.
For
example,
The
Columbia
Dispatch
recently
reported
that
only
10
sites
within
Ohio
have
been
completely
cleaned
up
since
the
program
began
over
a
decade
ago.
Additionally,
owners
of
contaminated
property
recently
won
a
suit
that
bars
Ohio
EPA
from
publicly
listing
contaminated
sites.

Currently,
citizens
across
Ohio
are
urging
their
state
government
to
improve
their
program
by
meeting
EPA's
standards
that
would
allow
for
a
Memoranda
of
Agreement.
Thus
far,
the
state
has
failed
to
make
the
required
program
improvements.

7.
Problems
May
Be
National
In
Scope
These
problems
do
not
appear
to
be
relegated
to
the
few
state
programs
highlighted
above.
A
1999
report
by
the
National
Conference
of
Mayors
surveyed
officials
in
231
cities
across
the
nation.
The
survey
asked
the
officials
to
rank
their
state's
voluntary
clean
up
program.
Only
23%
of
the
officials
reported
that
their
state
programs
were
excellent,
while
almost
one
out
of
every
five
officials
reported
that
their
state
program
was
not
very
good.
Perhaps
more
troubling,
34%
could
not
rank
their
states
program,
pointing
to
a
large
gap
in
knowledge
or
a
lack
of
any
coherent
efforts
at
education,
oversight,
and
implementation.
(
Grant
Cope,
Staff
Attorney,
U.
S.
Public
Interest
Research
Group,
RCRA­
2001­
0029­
0051)
209
Response:
The
Agency
appreciates
PIRG's
detailed
comments
related
to
alternate
State
cleanup
programs.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Yes.
Many
alternative
State
programs
have
broader
scope
and
flexibility
for
conducting
cleanups
and
corrective
action
than
does
RCRA
authority
alone.
For
example,
the
Remedial
Action
Trust
Fund
Act
(
RATFA)
in
Arkansas
allows
actions
to
cleanup
hazardous
substances
as
defined
in
the
Act,
which
is
a
much
broader
set
of
hazardous
constituents
and
pollutants
than
are
included
in
RCRA.
Alternative
State
cleanup
authority
should
be
considered
under
any
circumstance
which
RCRA
cleanup
authority
is
considered.
In
most
cases,
State
cleanup
authorities
allows
for
no
less
stringent
cleanup
standards
than
RCRA
and
often
allow
for
broader
based
actions
with
more
flexibility.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Rather
than
issuing
guidance
regarding
the
use
of
alternative
state
programs
to
conduct
RCRA
corrective
action,
EPA
should
issue
regulations.
Attorneys
at
EPA's
Office
of
Regional
Counsel
and
state
attorneys
general
are
unwilling
to
make
legal
decisions
when
EPA
policies
are
spelled
out
as
guidance.
In
general,
Ecology
supports
the
proposed
policies
for
postponement
and
deferral
outlined
in
the
federal
register,
but
believes
the
policies
do
not
go
far
enough
in
removing
the
unnecessary
administrative
burden
of
requiring
a
permit
for
the
RCRA
corrective
action
process.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.
210
Comment:
EPA
asked
if
facilities
should
be
able
to
satisfy
the
RCRA
corrective
action
requirements
for
by
conducting
cleanup
under
an
alternative
state
program.

Yes,
facilities
should
be
able
to
satisfy
the
RCRA
corrective
action
requirements
by
conducting
cleanup
under
an
alternative
state
program.

Rather
than
issuing
guidance
regarding
the
use
of
alternative
state
programs
to
conduct
RCRA
corrective
action,
Washington
State
believes
that
EPA
should
issue
regulations.
Attorneys
at
the
Office
of
Regional
Counsel
and
state
attorneys
general
are
unwilling
to
make
legal
decisions
when
EPA
policies
are
spelled
out
as
guidance.

Washington
State
uses
the
state
cleanup
law,
the
Model
Toxics
Control
Act
(
MTCA),
and
its
implementing
regulations
and
procedures,
to
implement
corrective
action.
In
1994,
EPA
authorized
Washington
State's
use
of
MTCA
to
conduct
RCRA
corrective
action.
EPA's
authorization
confirmed
that
MTCA
cleanups
provide
environmental
results
that
are
equivalent
to
results
achieved
by
EPA's
corrective
action
program,
thus
satisfying
the
requirements
of
40
CFR
264.101
for
achieving
cleanups
that
are
protective
of
human
health
and
the
environment.

With
MTCA,
Washington
State
has
a
tested
and
established
environmental
cleanup
authority
and
program
that
serves
several
purposes:

°
MTCA
and
its
implementing
regulations
and
procedures
are
already
in
place
and
in
use
at
many
sites
in
Washington
State.
°
The
MTCA
process
allows
for
a
more
extensive
public
involvement
process
than
RCRA.
°
It
is
very
important
to
Ecology
that
cleanups
at
RCRA
sites
be
consistent
with
procedures
and
requirements
for
other
existing
cleanup
sites
in
Washington
State.
°
Under
the
MTCA,
the
Department
of
Ecology
can
recover
the
costs
of
staff
time
used
to
manage
corrective
action
sites.
Ecology
would
have
no
such
cost
recovery
authority
through
RCRA;
resources
for
work
on
RCRA
permits
come
from
federal
grant
funds.

EPA
has
required
that
corrective
action
be
implemented
under
a
final
status
hazardous
waste
management
corrective
action
or
post­
closure
permit.
Like
operating
and
closure
permits,
these
corrective
action
and
post­
closure
permits
can
only
be
issued
following
a
very
prescriptive
application
and
review
procedures.

Ecology
is
striving
to
minimize
administrative
burdens
under
RCRA
at
corrective
action
sites
so
that
cleanups
can
proceed
more
quickly.
Ecology
wishes
to
be
able
to
use
MTCA
cleanup
orders
and/
or
consent
decrees
in
lieu
of
incorporating
corrective
action
requirements
into
RCRA
permits
or
referencing
cleanup
orders
or
consent
decrees
in
RCRA
permits.
Ecology
also
wishes
to
use
MTCA
in
lieu
of
permits
for
those
hazardous
waste
management
facilities
that
are
no
longer
receiving
wastes
and
would
receive
a
permit
solely
for
implementing
facility­
wide
corrective
action,
rather
than
being
required
to
issue
a
place­
holder
permit
for
implementing
RCRA
211
corrective
action
or
for
post­
closure.
This
is
also
true
for
closing
hazardous
waste
management
facilities
without
final
permits
or
with
expired
final
permits.

In
addition,
if
clean
closure
is
not
achieved
at
a
particular
site,
Ecology
would
want
to
use
MTCA
to
integrate
the
cleanup
of
the
hazardous
waste
management
unit
with
the
required
facility­
wide
RCRA
corrective
action
rather
than
pursue
a
post­
closure
permit.

Orders
or
decrees
issued
under
MTCA
achieve
the
same
results
as
the
more
prescriptive
process
of
issuing
a
corrective
action
or
post­
closure
permit.
There
is
no
environmental
advantage
of
using
permits
to
issue
MTCA
orders.
The
tedious
permit
application
process
could
be
avoided
and
staff
time
and
energy
spent
on
other
effective
aspects
of
cleanup.
Washington
State
believes
that
a
permit
or
incorporation
of
a
corrective
action
order
into
a
permit
is
not
necessary
for
effective
corrective
action.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Comment.
DoD
supports
development
of
formal
regulations
which
would
allow
alternate
authorities
to
be
used
in
lieu
of
RCRA
corrective
action
authorities
to
cleanup
sites
at
RCRA
permitted
facilities.
DoD
also
requests
addition
of
other
federal
cleanup
programs
to
the
proposed
corrective
action
policy.

Discussion.
EPA
is
considering
issuing
a
policy
to
address
the
use
of
alternative
cleanup
authorities,
such
as
state
cleanup
authorities,
voluntary
cleanup
programs
(
VCP)
etc.
to
satisfy
the
corrective
action
requirements
of
the
permit.
EPA
also
solicits
comment
on
whether
such
a
policy,
if
adopted,
should
be
promulgated
as
regulation
or
issued
as
guidance.

In
discussing
this
issue,
EPA
mentions
various
alternate
cleanup
programs
that
might
be
used
in
lieu
of
RCRA.
EPA
states
that
"
Whether
a
cleanup
program
is
conducted
under
a
federal
cleanup
program
(
e.
g.,
RCRA
corrective
action
or
CERCLA),
an
authorized
RCRA
corrective
action
program,
or
an
alternate
State
cleanup
program,
EPA
is
responsible
for
reporting
the
progress
to
Congress
and
the
public."
In
addition,
on
page
52235,
EPA
discusses
the
uses
of
VCP
for
non­
NPL
sites,
including
brownsfields.
DoD
believes
that
Federal
cleanup
authorities
including
CERCLA,
Toxic
Substances
Control
Act
(
TSCA),
and
the
Safe
Drinking
Water
Act
(
SDWA),
should
also
be
included
in
this
policy.

DoD
also
believes
that
EPA
should
promulgate
the
policy
formally
as
regulation
rather
than
as
guidance.
EPA
has
already
issued
related
guidance
via
an
EPA
memo
dated
9/
24/
96
entitled,
212
"
Coordination
between
RCRA
Corrective
Action
and
Closure
and
CERCLA
Site
Activities".
This
explains
that
it
may
be
more
appropriate
in
some
cases
to
use
the
Federal
CERCLA
program
or
a
state/
tribal
"
superfund­
like"
cleanup
program
to
address
cleanup
rather
than
RCRA.
In
this
guidance
EPA
states,
"
For
example,
where
program
priorities
differ,
and
a
cleanup
under
CERCLA
has
already
been
completed
or
is
underway
at
a
RCRA
facility,
corrective
action
conditions
in
the
RCRA
permit/
order
could
state
that
the
existence
of
a
CERCLA
action
makes
separate
RCRA
action
unnecessary.
In
this
case,
there
would
be
no
need
for
the
RCRA
program
to
revisit
the
remedy
at
some
later
point
in
time ."
Though
this
guidance
has
existed
for
several
years,
it
has
been
our
experience
that
not
everyone
is
aware
of
it.
We
believe
formal
promulgation
of
the
policy
within
the
Code
of
Federal
Regulations
would
be
the
best
means
of
ensuring
this
information
remains
available
to
affected
parties.

Recommendation.
DoD
undertakes
many
cleanups
at
non­
NPL
sites
under
federal
CERCLA
authorities
with
state
and
federal
oversight.
DoD
requests
that
EPA
include
within
the
regulation
a
provision
to
authorize
the
use
of
alternative
federal
authorities
as
well,
i.
e.
CERCLA,
TSCA,
SDWA,
etc.
DoD
typically
conducts
CERCLA
responses
at
non­
NPL
sites.
For
sites
acquiring
or
renewing
their
RCRA
permit,
it
would
be
advantageous
to
the
DoD,
regulators,
and
the
public
taxpayers
to
allow
DoD
to
proceed
on
with
the
cleanup
under
existing
Federal
authorities
in
lieu
of
duplicating
portions
of
the
remediation
process
under
RCRA.
(
Department
of
Defense,
RCRA­
2001­
0029­
0055)

Response:
The
Agency
appreciates
DoD's
comments
on
the
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Yes,
when
a
cleanup
is
underway
according
to
a
state
cleanup
authority
that
is
substantially
equivalent
to
RCRA
corrective
action
in
terms
of
public
participation;
protection
of
human
health
and
the
environment;
remediation
of
all
releases
at
the
applicable
SWMUs,
facility­
wide
and
off­
site;
adequate
resources
and
mechanisms
to
review
and
approve
cleanup
plans
and
decisions;
and
enforcement
authority.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Response:
The
Agency
appreciates
FDEP's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.
213
Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Yes.
The
basic
premise
of
corrective
action
is
to
assess,
investigate,
and
implement
corrective
measures
for
releases
of
contamination
to
the
environment.
Several
state
programs
do
the
same
thing
as
the
RCRA
Corrective
action
process,
for
example,
the
delegated
RCRA
programs
(
in
Michigan
Part
111,
Hazardous
Waste
Management,
of
the
Natural
Resources
and
Environmental
Protection
Act,
1994
PA
451
[
Act
451]):
the
state
equivalent
to
the
federal
Superfund
program
(
Part
201,
Environmental
Remediation,
of
Act
451)
and
underground
storage
tank
cleanup
programs
(
Part
213,
Leaking
Underground
Storage
Tanks,
of
Act
451).
Risk
models
from
those
programs
should
be
acceptable
to
meet
the
RCRA
requirements
for
corrective
action
with
verification,
because
they
look
at
the
impact
of
the
contamination
and
the
likelihood
of
it
reaching
potential
receptors.
Please
refer
to
Parts
111,
201,
and
213
of
Act
451
for
examples
of
regulations
in
Michigan
that
pertain
to
risk
models
for
cleanups.
Copies
of
these
regulations
are
available
on
the
MDEQ
home
page
at
www.
deq.
state.
mi.
us/
wmd,
www.
deq.
state.
mi.
us/
erd,
and
www.
deq.
state.
mi.
us/
std
respectively.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
The
Agency
appreciates
MDEQ's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Safety­
Kleen
believes
that
the
RCRA
corrective
action
program
should
be
left
under
EPA
control.
We
feel
that
there
is
already
too
much
variation
from
the
federal
RCRA
framework
at
the
state
level
and
feel
that
the
current
authorized
corrective
action
program
is
protective
of
human
health
and
the
environment
and
should
be
left
unchanged.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Response:
The
Agency
appreciates
Safety
Kleen's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.
214
Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Missouri
would
handle
all
cleanups
under
RCRA
corrective
action.
There
are
alternative
programs
in
the
state.
However,
RCRA
facilities
are
ineligible
for
these
programs.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
The
Agency
appreciates
MDNR's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
As
a
general
matter,
AISI
commends
the
Agency
for
seeking
to
encourage
the
use
of
alternate
state
remedial
authorities
in
lieu
of
RCRA
corrective
action
authorities.
As
EPA
itself
acknowledges,
numerous
states
have
developed
flexible,
yet
protective,
cleanup
approaches
that
can
well
serve
the
objectives
of
the
RCRA
corrective
action
program
while
dispensing
with
many
of
the
resource­
intensive
and
process­
laden
elements
of
that
program.
The
development
of
a
policy
which
will
provide
clear
direction
on
when
the
use
of
state
authorities
is
appropriate
to
satisfy
RCRA
corrective
action
obligations
should
promote
use
of
those
authorities,
as
all
concerned
will
better
understand
the
Agency's
position
on
the
acceptable
use
of
state
approaches
at
individual
facilities.
We
turn
below
to
specific
elements
of
EPA's
overall
approach
to
establishing
a
policy
on
the
"
alternate
authority"
issue
and
to
specific
topics
upon
which
the
Agency
has
requested
comment.
(
American
Iron
and
Steel
Institute,
RCRA­
2001­
0029­
0066)

Response:
The
Agency
appreciates
AISI's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
EPA
strongly
opposes
the
use
of
alternative
state
programs
in
lieu
of
the
RCRA
corrective
action
program.
66
FR
52232
col
2.
EPA
has
recently
noticed
its
second
round
of
RCRA
Cleanup
Reforms
aimed
at
making
cleanups
under
the
corrective
action
program
more
flexible.
The
first
round
of
"
reforms"
made
significant
changes
by
eliminating
the
need
for
contaminated
soils
to
meet
the
strict
LDRs
for
process
waste.
EPA
has
recently
proposed
new
Corrective
Action
Management
Unit
regulations
that
allow
hazardous
wastes
from
corrective
action
sites
to
be
treated
to
standards
equivalent
to
contaminated
soils
and
allow
these
wastes
to
215
be
placed
in
single­
lined
on­
site
disposal
units.
EPA
has
established
"
environmental
indicators"
that
encourage
fences
and
other
temporary
measures
to
demonstrate
"
current
human
exposure
under
control"
rather
than
permanent
remedies.

Now
the
Agency
is
considering
allowing
state
alternative
programs
to
essentially
replace
the
corrective
action
program.
It
is
clear
from
the
preamble
language
that
the
belief
is
that
these
state
programs
­
generally
programs
that
are
voluntary
cleanup
programs
aimed
at
brownfields
sites
­
may
be
quicker
but
less
protective
as
the
RCRA
corrective
action
program.
EPA
has
not
made
the
case
that
there
is
any
need
to
allow
states
to
abandon
the
corrective
action
program
for
alternative
approaches
that
are
unlikely
to
be
protective.
We
note
that
37
states
have
been
approved
to
run
the
RCRA
corrective
action
program.
Is
this
proposal
aimed
at
the
13
states
that
do
not
have
the
program
or
does
the
Agency
expect
states
to
abandon
their
approved
corrective
action
programs
for
less
rigorous
alternatives?
We
find
either
option
unacceptable.

The
test
for
an
innovative
program
should
be
better
performance
for
the
same
or
lower
cost,
or
the
same
performance
for
lower
cost.
In
the
case
of
this
proposal,
performance
will
be
sacrificed
to
achieve
lower
cost.
This
is
clearly
backsliding
by
EPA.

Improvements
to
the
existing
corrective
action
program
should
be
made
to
find
more
efficient
ways
to
get
the
job
done
within
the
existing
framework.
ETC
members
who
have
their
own
corrective
action
sites
find
that
much
time
is
wasted
on
revisiting
or
renegotiating
already­
settled
issues
when
the
Region
or
state
changes
personnel
or
decisions
are
delayed
because
of
so­
called
"
data
gaps."
Addressing
these
concerns
would
protect
the
environment
as
well
as
speed
up
and
lower
the
cost
of
cleanups.

The
preamble
indicates
that
EPA
may
implement
changes
in
approving
state
alternative
programs
by
issuing
direct
final
regulations
or
guidance.
We
believe
the
issue
of
allowing
alternative
state
programs
could
have
a
major
impact
on
the
Agency's
corrective
action
obligations
under
RCRA.
We
believe
it
is
incumbent
upon
EPA
to
propose
specific
language
on
any
deferral
to
alternative
state
programs.
The
proposal
states:
"
EPA
did
not
develop
an
Agency
position
on
these
issues
­
rather,
the
Agency
chose
to
present
for
comment
the
options
and
issues
it
currently
is
considering."
66
FR
52232
col
3.
We
object
to
direct
final
regulations
on
this
issue
without
the
Agency
explaining
the
basis
and
purpose
for
its
final
position
and
proposing
regulatory
language
for
public
comment.
We
believe
the
proposal
is
too
broad
to
be
made
effective
under
guidance.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
The
Agency
appreciates
ETC's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.
216
Comment:
EPA
is
also
asking
for
comments
relating
to
satisfying
RCRA
CA
requirements
under
alternate
state
cleanup
programs
(
pages
52232
to
52234).
EPA
proposes
two
methods
for
addressing
cleanups
under
alternate
state
cleanup
programs;

1.
Postponement
­
would
postpone
determination
of
RCRA
specific
CA
until
cleanup
under
state
rules
is
finished.

2.
Deferral
­
state
would
make
determination
that
state
cleanup
will
satisfy
RCRA
CA
requirements
and
completely
defer
CA
requirements
to
state
program.

We
strongly
support
that
EPA
defer
the
cleanups
under
the
alternate
state
cleanup
programs.
Postponement
of
determination
of
RCRA
specific
CA
will
not
only
create
unnecessary
confusion,
but
will
be
inherently
inefficient.

EPA
also
seeks
comment
(
pages
52234
to
52236)
on
two
approaches
to
determining
that
a
state
program
will
satisfy
RCRA
requirements.
One
is
outlined
in
the
"
VCP
Guidance
Criteria"
(
11/
96).
The
other
is
in
the
10/
22/
98
final
Post
Closure
rule.

The
only
significant
difference
between
the
"
VCP
Guidance
Criteria"
and
"
Post
Closure
Rule"
is
that
the
former
does
not
require
facility­
wide
assessment.
Texas
Risk
Reduction
Program
is
neutral
on
the
requirement
of
facility­
wide
assessment
and
relies
on
the
RCRA
definition
of
the
facility.
Therefore,
the
state
program
will
not
conflict
with
either
of
the
two
approaches.

On
pages
52234
to
52236,
EPA
solicits
comments
on
whether
it
is
necessary
for
EPA
to
review
and
approve
an
alternate
program
before
a
State
authorized
for
CA
defers
to
that
program
in
a
permit,
or
postpones
CA
under
a
permit
pending
a
cleanup
conducted
under
the
alternate
program.
Texas
promulgates
state
cleanup
regulations
through
a
comprehensive
public
participation
process.
Comments
are
solicited
from
all
the
stakeholders
including
the
respective
EPA
regional
offices.
The
rule
promulgation
process
incorporates
review
and
approval
by
the
EPA.
A
second
round
of
review
and
approval
by
the
EPA
is
redundant
and
unnecessary.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Response:
The
Agency
appreciates
TNRCC's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

63.
How
would
EPA
and
the
authorized
States
address
the
alternate
authority
cleanup
provisions
in
the
RCRA
permit?
(
X.
A.
2)
217
Comment:
Missouri
would
handle
all
cleanups
under
RCRA
corrective
action.
There
are
alternative
programs
in
the
state.
However,
RCRA
facilities
are
ineligible
for
these
programs.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
p.
52233,
col.
2
­
p.
52234,
col.
2
 
The
preamble
describes
two
methods
of
addressing,
within
the
RCRA
permit,
the
cleanups
conducted
pursuant
to
alternate
state
authorities.
Under
the
first
method,
referred
to
a
"
postponement,"
postpone
the
determination
of
RCRA­
specific
corrective
action
provisions
until
after
a
cleanup
under
an
alternate
State
authority
is
completed.
Under
the
second
method,
referred
to
as
"
deferral,"
the
permit
issuing
agency
would
make
a
determination
that
a
cleanup
conducted
under
an
alternate
authority
will
satisfy
the
corrective
action
requirements
at
the
site,
then
completely
defer
corrective
action
requirements
to
the
alternate
program.
EPA
requests
comment
on
whether
the
Agency
should,
as
a
general
matter,
recommend
use
of
either
method.

DOE
believes
it
would
be
appropriate
for
EPA
to
recommend
use
of
the
"
deferral"
method
of
addressing
cleanups
conducted
pursuant
to
alternate
state
authorities,
if
such
alternate
state
authorities
have
been
reviewed
in
advance
by
EPA
using
an
authorization
approach
(
see
Specific
Comment
X.
A.
3,
item
1,
below).
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
The
proposed
Deferral
Method
(
id.
at
52234)
is
clearly
the
preferred
approach
to
incorporating
a
state
alternate
cleanup
authority
into
the
RCRA
Program.
Indeed,
USWAG
opposes
the
Postponement
Method
as
contrary
to
the
objective
of
facilitating
clean­
ups.
Corrective
Action
is
a
complex
planning
process
that
generally
encompasses
state­
of­
the­
art
environmental
science
and
engineering,
extended
public
outreach,
and
complex
financial
planning.
It
can
be
accomplished
in
a
timely,
cost­
effective,
and
satisfactory
manner
only
in
a
climate
of
regulatory
certainty
(
or
minimal
uncertainty).
Deferral
of
corrective
action
to
the
authority
of
a
state
implementing
an
adequate
alternate
cleanup
program
would
optimize
cleanup
decisions
and
lead
to
sooner
and
better
remediations.
EPA
would
have
the
opportunity,
as
discussed
below,
to
determine
the
adequacy
of
state
alternate
programs
to
satisfy
corrective
action
requirements.
The
site­
specific
permit
should
then
simply
218
require
the
cleanup
to
meet
the
alternate
program
requirements
and
defer
to
the
substance
and
procedures
of
that
program.

The
Postponement
Method
would
create
undue
uncertainty
through
continued,
overlapping
regulatory
authority
and
the
threat
of
EPA
veto
of
state­
approved
corrective
action
measures
many
months
or
years
after
initiation
of
a
project.
EPA
should
specifically
avoid
periodic
or
milestone
review
of
the
adequacy
of
corrective
action.
The
benefit
of
relying
on
state
alternate
cleanup
authorities
is
the
streamlined
process
and
the
accompanying
increased
degree
of
certainty.
Continued
active
supervision
by
EPA
would
defeat
the
purpose.
Those
pursuing
corrective
action
under
state
alternate
cleanup
authorities
need
the
assurance
that
EPA
will
not
later
second­
guess
the
states
and
require
additional
or
different
measures.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
EPA
requested
comments
on
whether
the
Agency
should
use
the
postponement
or
deferral
method
if
a
state
alternate
program
is
an
effective
method
to
meet
the
RCRA
corrective
action
measures.
Dominion
recommends
that
the
EPA
institute
the
deferral
method
,
which
would
mean
the
facility
would
be
considered
closed
in
accordance
with
the
state
alternate
program
requirements.
The
deferral
method
supports
the
fact
that
states
have
developed
effective
corrective
action
programs
that
address
site­
specific
issues,
but
are
not
part
of
a
regulation
or
a
guidance
document.
Further,
the
deferral
method
would
remove
the
need
for
the
permit­
issuing
agency
to
re­
evaluate
the
cleanup
process
after
the
cleanup
is
declared
complete
in
accordance
with
the
state
alternate
program.

Dominion
disagrees
with
the
postponement
method,
which
allows
the
permit­
issuing
agency
to
determine
if
the
site
is
closed
in
accordance
with
the
authorized
RCRA
specific
corrective
action
provisions
after
the
owner
or
operator
has
conducted
the
cleanup
based
upon
the
state
alternate
requirements.
This
action
would
increase
the
closure
costs
and
prolong
the
closure
process
because
the
permit­
issuing
agency
is
not
defining
the
specific
cleanup
measures
the
site
must
follow
to
close
the
site
prior
to
the
start
of
the
cleanup
process.
(
Pamela
F.
Faggert,
Dominion,
RCRA­
2001­
0029­
0049)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.
219
Comment:
The
"
deferral"
method
as
described
in
this
proposed
rule­
making
is
appropriate.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
EPA
asked
how
it
and
the
authorized
states
would
address
the
alternate
authority
cleanup
provisions
in
the
RCRA
permit.

In
general,
Ecology
supports
proposed
policies
for
postponement
and
deferral
outlined
in
the
federal
register,
but
believes
the
policies
do
not
go
far
enough
in
removing
the
unnecessary
administrative
burden
of
requiring
a
permit
from
the
RCRA
corrective
action
process.

In
the
matter
of
postponement,
more
detail
is
needed
on
the
nature
of
the
schedule
of
compliance
that
would
be
incorporated
into
the
permit.
Cleaning
up
contamination
at
corrective
action
sites
is
difficult,
complex,
and
protracted
because
the
nature
and
extent
of
contamination
must
be
assessed
and
investigated
before
actual
implementation
of
the
cleanup
occurs.
Implementing
and
monitoring
cleanup
can
also
be
protracted,
especially
if
bioremediation
and
natural
attenuation
are
the
preferred
methods.
If
the
schedule
of
compliance
is
overly
detailed
and
prescriptive,
modifying
the
permit
to
reflect
schedule
changes
will
take
away
time
and
staff
resources
away
from
active
cleanup
processes.

Ecology
supports
complete
deferral
to
state
cleanup
programs
in
lieu
of
a
permit,
especially
in
cases
where
the
facility
is
not
actively
receiving
wastes
and
corrective
action
is
scheduled
to
take
place
under
a
corrective
action
permit
or
post­
closure
permit.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Regulatory
agencies
should
have
the
option
of
"
postponing"
or
"
deferring"
the
decision
as
to
whether
or
not
HSWA­
specific
corrective
action
provisions
must
be
included
in
the
RCRA
permit
when
alternate
state
cleanup
authorities
are
addressing
one
or
more
SWMUs.
At
this
time,
postponement
is
the
preferable
option,
because
it
will
allow
time
to
gain
experience
with
and
thoroughly
evaluate
the
differences
or
gaps
between
RCRA
and
the
applicable
state
authority.
220
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
Perhaps
the
best
way
to
do
this
is
to
have
a
general
statement
saying
that
other
cleanups
conducted
with
federal
or
state
oversight
and
acceptance
may
be
acceptable
to
satisfy
a
company's
RCRA
Corrective
Action
requirements
in
part
or
in
whole.
Then
have
a
review
period
to
assess
the
equivalency
of
these
approaches
to
the
goals
of
the
RCRA
corrective
action
program,
preferably
during
the
initial
assessment
phase
of
corrective
action.
Realistically,
with
concurrent
cleanups
going
on
at
one
facility,
this
assessment
could
also
occur
at
any
time
during
the
process
or
when
requested
by
the
facility.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Comment:
"
Deferral"
of
Corrective
Action
to
an
Alternate
State
Cleanup
is
the
Only
Acceptable
Option;
"
Postponement"
of
Corrective
Action
is
Unworkable.

The
Agency
proposes
two
options
for
how
to
address
the
alternate
authority
cleanup
provisions
in
a
RCRA
permit:

°
Postponement,
in
which
the
agency
issuing
the
RCA
permit
would
postpone
determination
of
RCRA­
specific
corrective
action
requirements
until
after
a
cleanup
is
completed
under
an
alternate
state
authority.

°
Deferral,
in
which
EPA
or
the
authorized
state
would
completely
defer
corrective
action
requirements
to
an
alternate
cleanup
program.

We
strongly
suggest
that
deferral
is
the
only
acceptable
option.

Postponement
poses
fatal
issues.
The
postponement
option
presents
a
scenario
in
which
the
certainty
that
a
given
cleanup
effort
is
sufficient
is
delayed
until
the
very
end
of
the
cleanup.
The
regulated
community
must
have
a
single
authority
with
which
to
conduct
a
remedial
program
without
the
prospect
of
second­
guessing
at
the
completion
of
the
process.
Postponement
could
221
stifle
cleanup
efforts
if,
after
years
of
effort
and
use
of
considerable
resources,
a
cleanup
could
be
determined
insufficient,
even
though
the
state
alternate
program
was
reasonably
anticipated
to
meet
RCRA
program
requirements.
We
expect
that
very
few
facility
owners
would
opt
to
assume
the
significant
risks
associated
with
the
postponement
approach,
and
these
risks
could
prove
to
be
a
disincentive
to
pursuit
of
an
alternate
cleanup
program.

Deferral,
in
contrast,
results
in
a
clear,
up­
front
understanding
that
the
appropriate
corrective
action
at
the
site
would
be
taken
by
the
state
pursuant
to
its
alternate
program.
The
permit
would
clearly
state
that
the
State
alternate
program
is
the
sole
implementer
of
the
cleanup
and
these
cleanup
requirements
would
become
an
enforceable
part
of
a
RCRA
permit.
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)

Response:
This
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities,
and
thus
the
Agency
is
not
responding
to
comments
on
that
issue.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

64.
How
would
EPA
or
the
authorized
State
determine
that
cleanups
conducted
under
an
alternate
cleanup
program
would
satisfy
the
requirements
of
section
264.101?
(
X.
A.
3)

Comment:
p.
52236,
cols.
1
&
2
 
According
to
the
preamble,
EPA
believes
that,
as
a
general
matter,
the
Agency
should
review
state
alternate
programs
in
advance
of
relying
on
them
at
individual
sites
in
the
state.
EPA
requests
comment
on
two
options
for
up­
front
review
of
a
state
alternate
program:
(
1)
EPA
could
use
an
authorization
approach
where
the
State
would
submit,
among
other
things,
copies
of
the
statutes
and
regulations
for
the
alternate
cleanup
authority
to
demonstrate
that
the
program
would
result
in
protective
cleanups;
or
(
2)
EPA
and
the
State
could
enter
into
an
YOU,
or
other
agreement,
regarding
permit
determinations
and
the
use
of
a
particular
alternate
authority
for
RCRA
corrective
action
facilities.

DOE
agrees
that
EPA
should,
as
a
general
matter,
review
state
alternate
programs
in
advance
of
relying
on
them
at
individual
sites
in
the
state.
In
this
regard,
DOE
believes
the
most
efficient
way
for
EPA
to
review
state
alternate
programs
in
advance
would
be
the
first
approach.
Under
this
approach,
EPA
could
identify
inadequacies
in
state
alternate
cleanup
authorities
and
the
inadequacies
could
be
corrected
before
any
consideration
is
given
to
relying
on
them
to
meet
RCRA
corrective
action
requirements
at
individual
sites.
If
EPA
has
already
reviewed
alternate
cleanup
authorities
in
a
state
(
e.
g.,
during
the
authorization
of
the
State
RCRA
program
for
the
Post­
Closure
rule),
DOE
would
support
not
requiring
that
they
be
evaluated
again
for
the
purpose
of
authorizing
them
to
be
used
to
meet
RCRA
corrective
action
requirements.
DOE
recognizes,
however,
that
regardless
of
whether
state
alternate
cleanup
authorities
are
found
acceptable,
the
decision
about
whether
to
defer
or
postpone
corrective
action
requirements
in
the
RCRA
permit
222
for
any
particular
facility
will
be
made
on
a
case­
by­
case
basis,
after
the
responsible
regulatory
agency
has
determined
whether
cleanups
conducted
at
that
facility
under
the
authorized
state
cleanup
authorities
would
satisfy
the
RCRA
corrective
action
requirements
in
40
CFR
264.101.
(
Thomas
T.
Traceski,
Director,
RCRA/
CERCLA
Division,
DOE,
RCRA­
2001­
0029­
0039)

Response:
The
Agency
appreciates
DOE's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
EPA's
guidance
should
include
a
streamlined
approach
for
evaluating
the
adequacy
of
state
alternate
cleanup
authorities
for
RCRA
corrective
action
purposes.
EPA
should
pre­
approve
state
authorities
according
to
a
specific
list
of
general
criteria.
However,
EPA
must
be
careful
not
to
weigh
down
the
procedure
in
time­
consuming
paperwork
and
must
avoid
fundamental
reshaping
of
state­
designed
programs.
EPA
should
recognize
that
existing
authorizations
for
state
implementation
of
corrective
action
and
state­
federal
memoranda
of
agreement
(
MOA)
and
memoranda
of
understanding
(
YOU)
establish
the
foundation
for
a
streamlined
approval
procedure.

As
discussed
above,
USWAG
recommends
that
EPA
should
develop
this
procedure
with
stakeholder
input.
The
stakeholder
process
need
not
be
prolonged,
and
we
urge
EPA
to
develop
the
guidance
as
quickly
as
possible.
In
the
interim,
EPA
should
proceed
to
accept
state
programs
on
a
state­
by­
state
basis,
on
the
basis
of
existing
YOU,
MOA,
and
guidance.
(
Utility
Solid
Waste
Activities
Group
(
USWAG)
et
al.,
RCRA­
2001­
0029­
0041)

Response:
The
Agency
appreciates
USWAG's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Utilization
of
State
program
controls
and
traditional
program
oversight
by
EPA
of
the
authorized
State
program
is
adequate.
(
Joe
Hoover,
Manager,
Active
Sites
Branch,
Arkansas
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0053)
223
Response:
The
Agency
appreciates
ADEQ's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
EPA
asked
how
it
or
the
authorized
state
would
determine
that
cleanups
conducted
under
an
alternate
cleanup
program
would
satisfy
the
requirements
of
section
264.101.

Washington
State
is
already
using
an
alternative
authority
for
Section
3004(
u)
corrective
action.
The
use
of
MTCA
results
in
cleanups
that
are
protective
of
human
health
and
the
environment
 
as
required
by
40
CFR
264.101.
Any
policy
or
regulation
issued
by
EPA
should
not
conflict
with
Washington
State's
existing
authorization.
EPA
should
allow
Ecology's
1994
authorization
to
serve
as
authorization
for
any
regulation
developed
under
this
proposed
policy.
Because
of
the
time
and
staff
effort
spent
to
receive
Ecology's
1994
alternative
authorization,
Ecology
would
prefer
the
use
of
a
MOA
process
rather
than
an
authorization
process
to
allow
the
use
of
the
postponement
or
deferral
policies
in
Washington
State.
A
more
detailed
level
of
authorization
is
onerous
 
consuming
time
and
staff
resources
that
could
be
spent
actively
cleaning
up
corrective
action
sites.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
The
Agency
appreciates
WSDE's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
There
must
be
a
complete
and
thorough
comparison
of
state
statutes,
rules,
forms,
policies,
guidance
documents
and
implementation
practices,
as
well
as
a
comparison
of
corrective
action
objectives
based
on
actual
monitoring
data.
The
states
should
be
encouraged
to
perform
this
evaluation,
and
to
submit
to
EPA
for
review.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Response:
The
Agency
appreciates
FDEP's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
224
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Regardless
of
the
cleanup
authority,
the
basic
premise
remains
the
same:
do
an
assessment
(
did
we
find
all
of
the
releases?),
investigate
them
(
are
all
releases
defined
in
three
dimensions?),
and
implement
appropriate
measures
to
cleanup
or
contain
contamination,
including
any
necessary
institutional
controls
and
legally
enforceable
agreements
(
will
anyone/
thing
be
harmed?).
The
criteria
for
any
program
should
be
to
protect
people
and
the
environment
from
exposure
and
then
cleanup
and
restore
the
resource,
where
possible.
This
should
be
handled
on
a
site­
specific
basis,
because
a
general
requirement
would
not
adequately
cover
some
sites
and
may
be
too
burdensome
at
others.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
The
Agency
appreciates
MDEQ's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Missouri
would
handle
all
cleanups
under
RCRA
corrective
action.
There
are
alternative
programs
in
the
state.
However,
RCRA
facilities
are
ineligible
for
these
programs.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
The
Agency
appreciates
MDNR's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.
225
Comment:
Voluntary
Cleanup
Program
(
VCP)
Guidance
Criteria
are
Appropriate
for
Assessing
Alternate
State
Programs.

The
Agency
discusses
two
existing
assessment
tools
that
may
be
appropriate
for
evaluating
alternate
state
cleanup
programs:

°
Voluntary
Cleanup
Program
(
VCP)
Guidance
 
November
14,
1996
memorandum
entitled
"
Interim
Approaches
for
Regional
Relations
with
State
Voluntary
Cleanup
Programs".
The
criteria
include:

°
Opportunities
for
meaningful
public
involvement
°
Response
actions
that
are
protective
of
human
health
and
the
environment
°
Adequate
resources
to
ensure
that
response
actions
are
conducted
in
an
appropriate
and
timely
manner,
and
that
both
technical;
assistance
and
streamlined
procedures,
where
appropriate,
are
available
°
Mechanisms
for
the
written
approval
of
response
action
plans
and
a
certification
or
similar
documentation
indicating
that
response
actions
are
complete
°
Adequate
oversight
to
ensure
that
response
actions
are
conducted
in
such
a
manner
to
assure
protection
of
human
health
and
the
environment
°
Capability,
through
enforcement
or
other
authorities,
of
ensuring
completion
of
response
actions
if
the
party
conducting
the
response
action
fails
or
refuses
to
complete
the
necessary
response
actions,
including
operation
and
maintenance
or
long­
term
monitoring
and
activities
°
Post­
Closure
Rule
Criteria
 
Criteria
established
in
the
October
22,
1998
rule
(
see
63
FR
56710
at
56792).
An
alternate
cleanup
program
must
demonstrate,
at
a
minimum,
that
the
authority
is
sufficiently
broad
to:

°
Require
facility­
wide
assessments
°
Address
all
release
of
hazardous
wastes
or
constituents
to
all
media
for
all
SWMUs
within
the
facility
boundary
as
well
as
off­
site
releases
to
the
extent
required
under
RCRA
section
3004(
v)
(
to
the
extent
that
releases
pose
a
threat
to
human
health
and
the
environment)

°
Impose
remedies
that
are
protective
of
human
health
at
the
environment
226
EPA
states
that
regardless
of
which
criteria
are
selected,
it
does
not
believe
that
the
level
of
overall
review
of
the
alternate
program
would
be
the
same
level
as
an
authorization
review.
We
strongly
agree.
EPA
should
strive
for
an
appropriate
balance
between
the
time
and
resources
it
dedicates
to
its
review
(
and
approval
or
disapproval)
of
an
alternate
state
program
and
its
stated
goal
of
leveraging
the
potential
offered
by
alternate
authorities
in
achieving
more
streamlined,
yet
nonetheless
protective,
cleanups.
This
is
nowhere
more
important
than
when
EPA
is
reviewing
alternate
cleanup
programs
in
states
already
authorized
for
the
RCRA
Corrective
Action
program.

In
general,
we
believe
the
VCP
guidance
criteria
to
be
more
appropriate
for
assessing
alternate
state
cleanup
programs.

VCP
Guidance
As
EPA
states,
many
of
the
VCP
criteria
are
the
same
as
those
used
in
the
authorization
process
for
state
RCRA
Corrective
Action
programs.
The
VCP
criteria
correctly
address
general
criteria
associated
with
the
process
by
which
the
base
RCRA
requirements
are
achieved.
While
the
criterion
of
"
Response
actions
that
are
protective
of
human
health
and
the
environment"
is
redundant
with
the
§
40
CFR
264.101(
a)
corrective
action
requirements
for
protection
of
human
health
and
the
environment,
we
are
not
troubled
by
this
redundancy,
as
we
welcome
recognition
that
the
primary
objective
of
any
corrective
action
cleanup
is
"
protection
of
human
health
and
the
environment."

We
respectfully
suggest
that
the
VCP
criterion
relating
to
"
opportunity
for
meaningful
public
involvement"
should
be
considered
in
the
context
of
that
state
program
and
should
not
necessarily
be
equated
with
corresponding
EPA
national
policy.
A
state­
authorized
public
involvement
process
is
indicative
of
what
the
people
of
the
state
support,
and
may
therefore
differ
from
what
EPA
desires
on
a
national
level.

Post­
Closure
Rule
The
Post­
Closure
Rule
criteria
largely
track
the
RCRA
Corrective
Action
program
regulatory
requirements
of
40
CFR
§
264.101.
As
stated
above,
even
those
RCRA
sites
cleaned
up
under
alternate
authorities
would
have
to
meet
the
40
CFR
§
264.101
requirements.
The
Post­
Closure
rule
criteria
(
devised
to
allow
closing
of
RCRA
waste
management
units
as
part
of
a
broader
corrective
action
effort)
are
therefore
redundant
with
the
base
RCRA
Corrective
Action
requirements.

We
believe
that
the
Post­
Closure
Rule
criterion
requiring
site­
wide
assessments
could
be
a
significant
disincentive
to
the
use
of
alternate
state
cleanup
programs.
As
the
Agency
recognized
in
the
November
30,
1998
final
HWIR­
Media
rule,
facility­
wide
corrective
action
requirements
are
considered
by
many
as
a
disincentive
to
cleanups
(
See
63
FR
65874
at
65883).
The
Agency
took
the
important
step
in
the
HWIR­
Media
rule
of
clarifying
that
facility­
wide
corrective
action
requirements
are
not
triggered
at
remediation­
only
facilities.
We
recommend
that
the
Agency
not
consider
requirements
for
site­
wide
assessments
when
evaluating
alternate
state
cleanup
programs
as
it
may
further
fuel
the
misinterpretation
that
remediation­
only
facilities
subject
to
RCRA
are
227
likewise
subject
to
site­
wide
assessments.
Further,
EPA
already
has
authority
for
site­
wide
assessments
under
40
CFR
§
264.101;
it
is
not
needed
as
an
additional
criterion
for
alternate
state
cleanup
programs.
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)

Response:
The
Agency
appreciates
ACC's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

Comment:
Memoranda
of
Understanding
(
YOU)
are
the
Appropriate
Process
for
Review
of
Alternate
Cleanup
Programs
EPA
notes
its
belief
that,
as
a
general
matter,
it
should
review
alternate
state
programs
in
advance
of
relying
upon
them
at
individual
sites
in
a
state.
Two
options
are
presented:

°
Authorization
approach,
in
which
states
submit
extensive
supporting
materials
to
document
that
its
cleanup
program
would
result
in
protective
cleanups.

°
Memorandum
of
Understanding
(
YOU)
approach,
in
which
EPA
and
the
state
enter
into
an
agreement
regarding
the
use
of
alternate
authority
for
RCRA
Corrective
Action.

We
strongly
urge
the
Agency
to
employ
a
YOU
approach,
rather
than
an
authorization
process.
The
very
process
of
establishing
a
YOU
appropriately
forces
EPA
and
the
states
to
focus
on
and
resolve
key
issues,
rather
than
become
burdened
by
a
process­
heavy
authorization
exercise.
EPA
and
the
states
have
growing
experience
in
establishing
MOUs,
as
evidenced
by
MOUs
already
in
place
(
e.
g.,
Illinois,
Michigan).
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)

Response:
The
Agency
appreciates
ACC's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.
228
Comment:
Oversight
and
Reassessment
of
Alternate
Cleanup
Programs
The
Agency
solicits
comment
on
the
extent
to
which
EPA
should
participate
in
review
and
assessment
of
alternate
state
cleanup
programs
in
states
authorized
for
RCRA
Corrective
Action.
The
Agency
also
seeks
comment
on
whether
review
and
assessment
of
alternate
programs
should
be
considered
part
of
the
Agency's
oversight
responsibility
for
authorized
states.

If
EPA
already
entrusts
a
state
 
through
formal
authorization
 
with
the
responsibility
of
ensuring
that
RCRA
Corrective
Action
cleanups
are
protective
of
human
health
and
the
environment,
EPA
should
likewise
give
great
deference
to
the
state
in
determining
the
suitability
of
alternate
cleanup
programs.
The
state
is
in
the
best
position
to
determine
which
program,
on
a
site­
specific
basis,
is
best
for
the
particular
needs
of
that
site,
the
local
community
and
the
people
of
that
state.

A
more
in­
depth
and
broader
EPA
review
is
appropriate
for
states
that
have
not
applied
for
RCRA
Corrective
Action
authority.
For
such
states,
EPA
should
provide
general
guidance
to
the
state
as
to
what
is
expected
and
required
under
statute
and
perhaps
develop
a
memorandum
of
agreement
(
MOA)
or
memorandum
of
understanding
(
YOU)
clearly
outlining
the
understanding
for
use
of
the
alternate
cleanup
program
in
the
non­
authorized
state.
States
that
have
applied
for
RCRA
Corrective
Action
authority,
but
authorization
is
still
pending,
should
be
subjected
to
a
more
limited
EPA
review
and
YOU/
MOA
requirements,
determined
on
a
state­
specific
level.

Once
the
determination
has
been
made
that
an
alternate
state
program
may
be
employed,
EPA
reassessment
is
not
necessary
unless
the
alternate
cleanup
program
is
changed
significantly
so
that
protection
of
human
health
and
the
environment
is
called
into
question.
States
employing
alternate
programs
should
have
an
obligation
to
communicate
to
EPA
any
significant
changes
to
their
programs,
after
which
EPA
may
elect
to
reassess.
We
do
not
recommend
a
blanket
"
reassess
every
X
years"
process.
We
suggest
that
the
YOU
process
recommended
for
states
may
be
an
appropriate
vehicle
to
identify
the
appropriate
reassessment
process,
if
any,
for
a
particular
state.
(
American
Chemistry
Council,
RCRA­
2001­
0029­
0067)

Response:
The
Agency
appreciates
ACC's
comments
on
use
of
alternate
authorities
to
address
corrective
action.
However,
this
final
rule
does
not
include
provisions
related
to
the
use
of
alternate
authorities
to
address
corrective
action
needs
at
RCRA
facilities.
The
Agency
continues
to
explore
the
use
of
alternate
authorities,
but
would
prefer
to
do
so
in
the
broader
context
of
all
facilities,
rather
than
just
permitted
facilities
and,
therefore,
believes
it
is
more
appropriate
to
do
so
outside
of
this
rulemaking.

Because
issues
related
to
alternate
authority
use
are
not
addressed
in
this
final
rule,
the
Agency
did
not
respond
to
comments
related
to
those
issues.

65.
Financial
Assurance
(
X.
B)
3
The
term
"
fully­
funded",
as
applied
to
NEIC,
means
that
NEIC
has
set
aside
loss
reserves
in
an
amount
(
certified
by
an
actuary)
approximating
the
expected
cost
of
closure
of
its
insured's
(
RISI's)
facility,
performed
in
compliance
with
all
applicable
regulations.

4
In
its
letter,
OEPA
apologized
for
inconvenience
caused
RISI
and
NEIC,
which
expended
much
time,
effort
and
legal
expenses
in
responding
to
OEPA's
intense
scrutiny.

229
Comment:
This
office
and
I
represent
Ross
Incineration
Services,
Inc.
("
RISI"),
a
privately­
owned
hazardous
waste
treatment
facility
located
in
Northeast
Ohio,
and
Northeast
Indemnity
Company
("
NEIC"),
a
Vermont
captive
insurance
company.
RISI
has
been
in
business
at
the
same
location
for
over
fifty
years,
and
takes
pride
in
its
state­
of­
the­
art
equipment
and
diligent
compliance
with
the
letter
and
spirit
of
applicable
environmental
laws.
NEIC
has
been
in
business
since
1988.
NEIC
and
RISI
are
separately
owned
by
different
parent
companies,
and
are
financially
independent.
However,
far
up
the
corporate
ladder,
the
parent
companies
in
part
are
owned
by
the
same
shareholder.
NEIC,
which
has
fully­
funded
loss
reserves3,
is
the
insurer
under
an
insurance
policy
that
provides
RISI's
financial
assurance
for
closure
of
RISI's
facility,
as
required
by
the
Resource
Conservation
and
Recovery
Act
of
1976,
as
amended
("
RCRA").
Both
RISI
and
NEIC
are
deeply
concerned
about
many
of
the
conclusions
set
forth
in
the
March
30,
2001
Audit
Report
("
OIG
Report")
of
the
Office
of
Inspector
General.
Quite
frankly,
RISI
and
NEIC
are
surprised
that
the
United
States
EPA
("
Agency")
is
considering
taking
actions
that
in
effect
would
ban
the
use
of
captive
insurance
to
provide
financial
assurance
for
closure/
post­
closure
care.
Just
three
years
ago,
the
Ohio
EPA
("
OEPA"),
authorized
to
administer
RCRA's
financial
assurance
requirements,
thoroughly
reviewed
RISI's
use
of
an
insurance
policy
issued
by
NEIC.
After
detailed
scrutiny
of
RISI
and
NEIC
by
the
Compliance
Assurance
Section
of
the
OEPA's
Division
of
Hazardous
Waste
Management,
RISI
was
informed
that
"
OEPA
believes
the
insurance
policy
(
issued
by
NEIC)
is
legal
and
valid
to
demonstrate
financial
assurance
in
Ohio."
4
NEIC
and
RISI
are
now
compelled
to
again
respond
to
concerns,
many
of
which
are
misguided,
about
the
use
of
captive
insurance
for
closure/
post­
closure
financial
assurance.

GENERAL
COMMENTS
As
a
general
comment,
it
is
the
opinion
of
RISI
and
NEIC
that
the
Agency's
consideration
of
taking
action
(
through
the
use
of
required
ratings,
continuing
to
require
assignable
policies,
or
otherwise)
to
eliminate
captive
insurance
companies
should
not
be
its
focus
when
reviewing
financial
assurance.
Rather,
the
issue
that
the
Agency
should
consider
is
whether
risk
(
of
funds
being
available
for
closure/
post­
closure
care)
is
being
managed.
As
stated
in
the
OIG
Report,
some
facilities
do
not
even
have
financial
assurance
mechanisms
in
place.
Others
have
established
closure
cost
estimates
that
are
questionable
in
the
adequacy
of
the
amounts.
These
circumstances
place
RISI
and
similarly­
situated
companies
at
a
competitive
disadvantage.
More
important
from
an
environmental
standpoint,
lack
of
financial
assurance
and
unrealistic
closure
cost
estimates,
not
the
issuance
of
insurance
by
well­
operated
captive
insurance
companies,
may
negatively
impact
human
health
and
the
environment.
230
RISI
and
NEIC
inquire
as
to
why
captive
insurance
companies
appear
to
be
targeted
by
the
Agency.
A
lot
of
questions
need
to
be
answered.
Has
the
Agency
or
OIG
documented
actual
damages
to
human
health
and
the
environment
as
a
result
of
failed
captive
insurance
mechanisms?
What
are
the
relative
failure
rates
of
the
various
financial
assurance
mechanisms?
How
many
enforcement
referrals
have
the
Agency
and
authorized
states
made
concerning
the
various
types
of
financial
assurance
mechanisms?
Has
the
Agency
or
any
authorized
state
ever
been
required
to
pay
for
closure/
post­
closure
care
as
a
direct
result
of
the
failure
of
a
financial
assurance
mechanism
issued
by
a
captive
insurance
company
 
or
as
a
direct
result
of
the
failure
of
other
mechanisms?
To
reiterate,
is
the
Agency
focusing
on
the
correct
issue:
is
risk
being
managed?

Despite
the
concerns
of
RISI
and
NEIC
regarding
the
appropriateness
of
the
Agency's
focus
upon
captive
insurance
companies,
RISI
and
NEIC
are
not
opposed
to
guidance
or
regulations
which
disallow
situations
where
independence
between
facility
failure
and
failure
of
a
financial
assurance
mechanism
is
not
maintained.
However,
they
urge
the
Agency
not
to
disallow
the
use
of
all
captive
insurance,
but
rather
to
condition
the
use
of
insurance
issued
by
captive
insurance
companies
that
meet
certain
standards
(
such
as
the
requirements
of
Vermont
law,
discussed
below).
The
captive
insurance
industry
serves
a
critically
important
role
in
the
strategies
of
companies
around
the
world.
Captive
insurance
is
a
sophisticated
and
legitimate
mechanism
that
benefits
large
and
medium­
sized
companies
by
providing
to
them
greater
control
over
their
risk
programs,
the
ability
to
achieve
cost
savings
and
efficiencies,
and
the
ability
to
customize
types
of
insurance
coverages.
Barring
the
use
of
captive
insurance
will
force
companies
to
purchase
costly
traditional
insurance.
This
will
create
an
additional
pressure
on
the
commercial
insurance
market,
which
already
has
limited
capacity
to
cover
types
of
risks
such
as
closure/
post­
closure
and,
in
fact,
little
interest
in
providing
such
coverage.
Such
a
situation,
in
fact,
creates
more
risks
to
human
health
and
the
environment.

There
are
many
situations
where
there
is
independence
between
the
risk
of
failure
of
an
insured
facility
and
the
financial
assurance
issued
by
a
captive
insurance
company.
Many
insured
facilities
and
captive
insurance
companies
are
financially
independent.
Further,
the
use
of
a
fully­
funded
captive
insurance
company
to
provide
financial
assurance
perhaps
provides
the
least
risky
form
of
financial
assurance.
Additionally,
as
further
discussed
below,
RISI
and
NEIC
submit
that
the
Agency's
requirement
that
insurance
policies
must
be
assignable
(
a
requirement
that
may
be
impossible
for
some
captive
insurance
companies
to
meet)
should
be
revisited
by
the
Agency.
RISI
and
NEIC
jointly
submit
to
the
Agency
this
letter
which
sets
forth
their
comments
upon
the
OIG
Report,
and
respectfully
request
that
the
Agency
consider
the
comments
and
address
the
many
questions
raised
before
it
takes
any
action
to
revise
the
current
regulations
that
govern
closure/
post­
closure
financial
assurance
mechanisms.

INDEPENDENCE
BETWEEN
FACILITY
FAILURE
AND
FAILURE
OF
A
FINANCIAL
ASSURANCE
MECHANISM
The
OIG
Report,
as
well
as
the
Agency's
request
for
comments,
concludes
that
there
is
not
corporate
separateness
between
a
captive
insurance
company
and
the
insured
facility.
They
assume
that
the
captive
insurance
company
is
a
subsidiary
of
the
insured
facility
or,
at
least,
that
the
4
As
stated
above,
far
up
the
corporate
ladder,
the
parent
companies
in
part
are
owned
by
the
same
shareholder.

5
For
the
purpose
of
this
letter,
affiliates
are
companies
that,
far
up
the
corporate
ladder,
are
owned
in
whole
or
in
part
by
the
same
corporate
parent.

6
In
fact,
approximately
three
years
ago,
an
affiliate
of
NEIC
became
financially
insecure
and
eventually
went
out
of
business.
No
monies
from
any
of
the
affiliated
companies,
including
NEIC,
were
used
to
assist
the
financially
insecure
company.

231
captive
insurance
company
and
the
insured
facility
are
not
financially
separate.
This
is
not
true
in
situations
involving
all
captives,
and
certainly
is
not
the
case
with
respect
to
RISI
and
NEIC.
RISI,
the
insured
facility,
is
not
the
parent
of
NEIC,
the
captive
insurance
company
that
issues
financial
assurance.
As
stated
above,
RISI
and
NEIC
are
separately
owned
by
different
parent
companies
and
operate
financially
independent.
4
They
do
not
exchange
or
intermingle
monies
other
than
the
insurance
premiums
(
the
amount
of
which
are
approved
by
the
State
of
Vermont)
paid
by
RISI
to
NEIC.
Vermont
law
precludes
the
captive
insurance
company
from
diverting
funds
set
aside
as
a
reserve
for
losses
to
pay
for
unrelated
expenses
not
covered
by
the
insurance
policy
or
incurred
by
an
insured
affiliate.
5
If
an
affiliated
company
(
such
as
RISI)
of
NEIC
were
to
become
financially
insecure,
NEIC's
monies,
under
Vermont
law,
cannot
be
used
to
subsidize
the
affiliate.
6
In
other
words,
there
is
independence
between
risk
of
failure
of
RISI's
facility
and
risk
of
failure
of
NEIC.
Therefore,
the
conclusion
set
forth
in
the
OIG
report
that
it
finds
no
independence
between
facility
failure
and
failure
of
the
mechanism
simply
is
not
correct
in
the
case
of
all
captive
insurance
companies.
This
fact
should
be
taken
into
consideration
by
the
Agency
if
and
when
it
considers
amending
its
regulations
regarding
financial
assurance
mechanisms.

THE
CAPTIVE
INSURANCE
INDUSTRY
The
OIG's
Report
provides
little
in
the
way
of
understanding
the
regulatory
oversight
in
the
performance
of
the
captive
insurance
industry.
Indeed,
captive
insurance
is
a
responsible
financial
assurance
mechanism.

As
stated
above,
RISI's
financial
assurance
for
closure
is
issued
by
NEIC,
a
captive
insurance
company
located
in
the
State
of
Vermont,
the
largest
captive
domicile
in
the
United
States.
The
State
of
Vermont,
through
its
Department
of
Banking,
Insurance,
Securities
and
Health
Care
Administration,
by
law,
regulates
captive
insurance
companies
in
a
responsible
manner.
It
provides
substantial
oversight
over
capitalization
requirements.
Certified
actuaries
must
annually
certify
the
adequacy
of
the
loss
reserves.
Vermont
law
requires
each
captive
to
be
a
separate
corporation
and
have
a
board
of
directors,
as
well
as
audited
financial
statements.
The
Vermont
Department
of
Banking,
Insurance,
Securities
Health
Care
Administration,
accredited
by
the
National
Association
of
Insurance
Commissioners,
employs
technical
staff
who
carefully
monitor
Vermont
captive
insurance
companies.
Vermont's
approach
to
solvency
regulation
of
captive
has
performed
better
than
traditional
insurance
regulation.
The
State
of
Vermont's
thoroughness
and
constancy
of
oversight
7
The
Agency
is
considering
requiring
that
each
insurer,
in
addition
to
being
"
licensed
to
transact
the
business
of
insurance"
in
one
or
more
states,
have
a
certain
rating
(
typically,
no
less
than
an
A­
rating
from
a
rating
agency
such
as
Moody,
Standard
&
Poor's
or
A.
M.
Best
Company.

232
over
captive
insurance
companies
demonstrates
its
desire
to
maintain
an
unblemished
reputation
in
this
regard.

The
validity
of
captive
insurance
companies
is
embraced
outside
of
Vermont's
borders.
Over
twenty
states
have
endorsed
the
captive
concept
by
passing
legislation
allowing
for
the
establishment
and
operation
of
captive
insurance
companies.

In
short,
captive
insurance
companies
are
legitimate
insurers.
There
is
detailed
and
strict
oversight
of
their
businesses.
Further,
there
is
financial
separateness
between
captive
insurance
companies
and
the
facilities
insured
by
captives.

RISK
OF
FINANCIAL
ASSURANCE
PROVIDED
BY
CAPTIVE
INSURANCE
COMPANIES
NEIC's
reserves
are
fully­
funded.
The
use
of
a
captive
insurance
company
that
has
fully­
funded
reserves
to
issue
closure/
post­
closure
insurance
provides
a
very
low­
risk
form
of
financial
assurance
mechanism.
It
perhaps
is
the
safest
type
of
financial
mechanism,
from
the
standpoint
of
availability
of
monies
for
closure/
post­
closure
care
in
the
event
that
the
insured
becomes
insolvent.

In
fact,
financial
assurance
provided
by
a
fully­
funded
captive
is
less
risky
than
other
forms
of
financial
assurance
that
are
allowed
by
the
Agency.
A
trust
fund
mechanism,
for
example,
has
a
pay­
in
period
over
at
least
a
part
of
the
life
of
the
facility,
and
therefore
may
not
be
fully­
funded.
What
would
happen
if
a
facility
that
has
a
partially­
funded
trust
were
to
become
insolvent?
Obviously,
there
would
not
be
sufficient
monies
to
cover
financial
assurance
requirements.

Further,
the
strength,
from
a
risk
standpoint,
of
a
surety
bond
or
a
letter
of
credit
depends
upon
the
financial
strength
of
the
surety
company
or
the
issuer
of
the
letter
of
credit.
Both
carry
risk
that
such
companies
will
remain
financially
viable.
Will
the
Agency
require
these
companies
to
obtain
ratings?
Has
the
Agency
reviewed
failure
rates
of
sureties
or
issuers
of
letter
of
credit?
Because
a
fully­
funded
captive
insurance
company
has
money
immediately
set
aside,
legally
protected,
and
dedicated
exclusively
for
financial
assurance,
risk
of
unavailability
of
monies
for
closure/
post­
closure
care
is
slight.
RISI
and
NEIC
submit
to
the
Agency
that
the
risk
of
unavailability
of
monies
may
be
greater
if
a
trust
fund,
surety
bond,
or
letter
of
credit,
as
opposed
to
captive
insurance,
is
used
as
a
financial
assurance
mechanism.

RATING
SYSTEMS
AND
RISK
A
proposed
rating
system7
for
insurers
is
unworkable,
especially
for
small
businesses
such
as
captive
insurance
companies.
Rating
systems
often
favor
large
companies
with
diversification
of
8
A
review
of
diversity
of
risk
may
be
appropriate
for
a
larger
insurance
company
that
is
not
fully­
funded,
but
for
a
small
fully­
funded
captive
insurance
company,
it
is
not
necessary.
Diversity
of
risk
simply
translates
into
more
opportunities
for
loss.
If
the
idea
is
to
assure
funding
for
closure/
post­
closure
care
or
financial
assurance,
should
a
captive
be
forced
to
expose
itself
to
other
potential
claims
just
to
receive
a
rating?

9
It
is
extremely
expensive
to
seek
and
maintain
a
rating.
Costs
to
obtain
a
rating
may
be
as
high
as
$
20,000.00
to
$
40,000.00,
plus
approximately
one­
half
of
such
costs
to
annually
maintain
a
rating.

10
For
some
time,
Reliance
Insurance
Company
of
Illinois
issued
financial
assurance
for
Safety­
Kleen.
The
Safety­
Kleen
situation
is
perhaps
a
prime
example
of
a
situation
where
substantial
risk
of
lack
of
funds
for
closure
occurred
despite
the
fact
that
both
the
facility
and
its
insurer(
s)
were
large.
Just
because
a
company
is
large,
or
has
a
high
rating,
or
is
insured
by
a
high­
rated
insurer,
does
not
mean
that
monies
will
be
available
for
closure/
post­
closure
care.
The
use
of
closure/
post­
closure
insurance
issued
by
a
fully­
funded
captive
insurance
company
provides
minimum
risk
with
respect
to
the
availability
of
future
monies
for
closure/
post­
closure
care.

233
risk,
something
that
captives
generally
lack.
8
A
fully­
funded
captive
insurance
company,
although
without
risk
in
providing
adequate
financial
assurance
for
closure/
post­
care,
may
not
be
able
to
obtain
a
high
rating
(
due
to
lack
of
diversity
of
risk),
or
may
not
be
able
to
obtain
any
rating
simply
as
a
matter
of
size.
9
Moreover,
in
this
time
of
instability
of
financial
markets
and
insecurity
in
the
insurance
industry
due
to
national
events,
it
cannot
be
guaranteed
that
top­
rated
insurance
companies
will
remain
in
business.
In
fact,
the
material
in
the
Agency's
docket
relating
to
the
subject
proposal
supports
the
conclusion
that
a
good
rating
does
not
necessarily
mean
that
a
company
will
not
become
insolvent.
See,
e.
g.,
the
discussion
in
the
Journal
of
Risk
and
Insurance,
Volume
66,
No.
4,
621­
642
(
1999).
The
A.
M.
Best,
February,
1999
Special
Report
describes
a
situation
involving
First
Central
Insurance
Co.,
which
initially
was
rated
A
by
A.
M.
Best
Company,
and
was
rated
A­
as
late
as
1995.
In
1997,
the
company
was
placed
"
into
rehabilitation".
Perhaps
the
most
noteworthy
situation
involves
the
bankruptcy
of
Reliance
Insurance
Company
of
Illinois,
10
discussed
in
the
June
13,
2001
Wall
Street
Journal
article
included
in
the
Agency's
docket.
Because
history
has
demonstrated
that
there
is
no
guarantee
that
a
company
with
a
high
rating
will
remain
in
business,
and
the
use
of
a
rating
system
in
effect
may
prohibit
the
continuing
use
of
all
captive
insurance
companies
(
including
those
with
fully­
funded
reserves),
RISI
and
NEIC
request
that
Agency
not
rely
on
a
rating
system
to
qualify
insurance
companies
that
provide
financial
assurance
for
closure/
post­
closure
care.
Rather,
it
would
be
more
appropriate
if
the
Agency
consider
qualifying
insurance
companies
based
upon
such
factors
as
corporate
separateness,
capitalization
requirements,
and
state
oversight,
such
as
that
required
in
with
respect
to
Vermont
captive
insurance
companies.

ASSIGNABILITY
REQUIREMENT
With
respect
to
the
concern
that
insurance
policies
issued
by
captive
insurance
companies
are
not
assignable,
the
Agency
should
revisit
whether
or
not
such
a
requirement,
as
a
practical
matter,
should
exist.
234
The
issue
of
assignability
is
inconsistent
with
commercial
insurance
practices.
The
current
regulations
require
that
a
seller
of
a
hazardous
waste
facility
keep
financial
assurance
in
place
until
the
permitting
authority
accepts
financial
assurance
by
the
purchaser.
According
to
the
Agency,
this
will
ensure
that
there
will
be
no
lapse
in
coverage.

As
with
purchasers
of
businesses
that
have
other
types
of
insurance
coverage
(
e.
g.,
liability,
fire
and
extended
coverage),
no
prudent
purchaser
closes
an
acquisition
without
first
having
its
own
financial
assurance
in
place.
It
is
unrealistic
to
presume
a
purchaser
will
continue
with
the
same
financial
mechanism
as
the
seller.
Further,
a
seller
will
not
wish
to
continue
to
have
financial
obligations
once
a
facility
and
its
permit
have
been
transferred
to
a
new
owner.

With
captive
insurance,
the
insurance
would
remain
in
place
until
the
purchaser
has
its
own
financial
assurance,
as
is
required
by
the
Agency's
regulations.
The
captive
insurance
program
fully
meets
the
intent
of
the
regulations,
which
is
to
ensure
no
lapse
of
coverage
in
the
event
of
change
of
ownership.

SUMMARY
OF
COMMENTS
In
light
of
the
foregoing,
the
Agency,
if
it
determines
that
it
is
necessary
to
revise
financial
assurance
requirements,
should
keep
in
mind
that
there
are
situations
where
the
independence
between
the
risk
of
failure
of
an
insured
facility
and
the
issuance
of
financial
assurance
by
a
captive
insurance
company
exist.
The
use
of
a
fully­
funded
captive
insurance
company
perhaps
provides
the
least
risky
form
of
financial
assurance.
Additionally,
the
Agency
should
revisit
the
requirement
that
insurance
policies
must
be
assignable,
as
such
requirement
does
not
meet
current
commercial
practices.
(
Marsha
Collett,
Attorney
at
Law,
Representing
Ross
Incineration
Services,
Inc.
("
RISI"),
and
Northeast
Indemnity
Company
("
NEIC"),
RCRA­
2001­
0029­
0032)

Response:

This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
The
current
proposal
for
changes
in
financial
assurance
mechanisms
seem
to
reference
studies
only
for
the
bond
rating
and
the
captive
insurance
proposals
(
which
cite
the
Office
of
Inspector
General
Study).
EPA
should
perform
studies
of
all
mechanisms
and
propose
changes
that
would
apply
to
interim
status,
final
status,
and
standardized
permits
across
the
board.
The
proposed
changes
in
the
trust
fund
mechanism
and
financial
test
criteria
should
be
folded
into
a
proposed
rule
for
standardized
permits
only
if
they
are
adopted
into
interim
and
final
status
requirements
at
the
same
time.
Unless
changes
are
adopted
into
all
three
sets
of
standards
at
the
same
time,
the
details
of
a
specific
financial
assurance
mechanism
would
differ
depending
on
the
235
type
of
permit
being
issued.
This
added
difference
would
impose
a
regulatory
burden
on
the
applicant
as
well
as
on
the
administering
agency,
such
as
Ecology.
In
the
preamble,
EPA
asks
if
there
should
be
additional
requirements
for
insurers.
The
current
financial
assurance
requirements
use
Standard
and
Poor
and
Moody's
bond
ratings
for
the
financial
test.
It
makes
sense
to
use
a
similar
rating
service
for
insurers
who
must
have
sufficient
financial
stability
and
soundness
just
as
corporations
must
have
when
they
must
carry
out
closure.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Financial
Assurance.
Page
52237.
EPA
asked
for
comments
on
additional
requirements
for
insurers
in
general.
Ecology
recommends
that
the
current
financial
assurance
requirements
use
Standard
and
Poor
and
Moody's
bond
ratings
for
the
financial
test.
It
makes
sense
to
use
a
similar
rating
service
for
insurers
who
must
have
sufficient
financial
stability
and
soundness
as
corporations
must
have
when
they
must
carry
out
closure.
(
Greg
Sorlie,
Manager,
Hazardous
Waste
and
Toxics
Reduction
Program,
Washington
State
Department
of
Ecology
(
Ecology),
RCRA­
2001­
0029­
0054)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
YES.
(
Augusta
Posner,
Senior
Assistant
General
Counsel,
Florida
Department
of
Environmental
Protection,
RCRA­
2001­
0029­
0059)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
The
EPA
seeks
comments
and
information
regarding
captive
insurers,
especially
in
response
to
the
Office
of
Inspector
General
audit
report
on
financial
assurance
for
closure
and
post­
closure.
However,
Michigan
already
prohibits
the
use
of
a
captive
insurer
for
closure
or
post­
closure
insurance,
and
has
additional
requirements
for
the
insurer,
as
specified
in
Michigan
Administrative
Code
(
MAC)
R
299.9708(
3):

The
insurer
shall
satisfy
all
of
the
following
requirements:
236
(
r)
The
insurer
shall
be
licensed
to
transact
the
business
of
insurance,
or
eligible
to
provide
insurance
as
an
excess
or
surplus
lines
insurer,
in
the
State
of
Michigan.
(
s)
The
insurer
shall
have
a
minimum
of
$
7,000,000.00
of
unimpaired
surplus
funds.
(
t)
The
insurer
shall
assume
financial
responsibility
for
the
accepted
risk,
pursuant
to
the
terms
of
the
policy,
using
its
own
pool
of
resources
that
is
independent,
separate,
and
unrelated
to
that
of
the
owner
or
operator.

Michigan
supports
the
addition
of
a
bond
rating
requirement
on
the
insurer,
as
discussed
in
the
preamble.
(
Jim
Sygo,
Chief
of
the
Waste
Management
Division,
Michigan
Department
of
Environmental
Quality,
RCRA­
2001­
0029­
0060)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Safety­
Kleen
believes
that
EPA
has
set
forth
compelling
reasons
for
including
minimum
ratings
for
insurers,
so
we
do
not
oppose
the
concept
that
has
been
proposed.
However,
we
urge
that
the
Agency
work
very
closely
with
the
insurance
industry
on
this
proposal
so
that
whatever
ratings
system
emerges
has
the
full
input
of
experts
in
this
highly
specialized
arena.
The
Agency
should
not
rely
exclusively
on
comments
from
the
regulated
environmental
sector
in
fashioning
this
requirement.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Safety­
Kleen
does
not
use
captive
insurance
at
this
time,
but
given
the
difficulty
across
the
market
in
obtaining
financial
assurance
generally,
the
agency
should
not
be
reducing
the
options
available,
particularly
when
there
is
no
evidence
that
any
captive
insurer
has
ever
failed
to
honor
its
financial
assurance
obligations.
We
agree
with
EPA
that
the
coverage
provided
by
captive
insurance
should
be
the
functional
equivalent,
from
an
economic
standpoint,
with
that
afforded
by
the
other
mechanisms,
but
rather
than
completely
eliminating
this
option,
EPA
should
fine
tune
it,
and
leave
it
available,
as
modified.
(
Susan
L.
Prior,
Regulatory
Programs
Manager,
Safety­
Kleen
Corporation,
RCRA­
2001­
0029­
0061)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.
237
Comment:
We
agree
with
the
Office
of
Inspector
General's
(
OIG)
evaluation
of
the
apparent
limitations
of
captive
insurance,
and
would
not
support
the
use
of
that
financial
mechanism
for
this
rulemaking
until
the
issues
raised
in
that
OIG
report
are
fully
resolved.

We
also
agree
with
the
recommendation
that
EPA
needs
to
conduct
further
investigations
with
the
States
in
order
to
determine
the
need
for
guidance
on
this
issue.

EPA
should
adopt
minimum
ratings
for
insurance
companies
and
we
concur
with
those
ratings
and
ratings
services
identified
by
EPA.
(
Jill
B.
Pafford,
Chair
of
the
ASTSWMO
Corrective
Action
and
Permitting
Task
Force,
RCRA­
2001­
0029­
0064)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Our
citizens
(
as
beneficiaries
of
third
party
liability
policies)
are
entitled
to
the
same
level
of
protection
from
insolvency
of
the
insurance
provider
as
the
regulatory
body
(
as
beneficiary
of
the
closure
policy)
is
entitled
to
receive.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Pure
captive
insurance
companies
should
not
be
treated
differently
for
providing
third­
party
liability
coverage
than
for
providing
closure
coverage.
The
standard
should
be
whether
the
insurance
company
demonstrates
the
financial
capacity
to
pay
when
required,
and
it
has
been
demonstrated
that
captive
insurance
companies
do
not
meet
that
standard.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
1.
The
Office
of
Inspector
General
Audit
Report,
RCRA
Financial
Assurance
for
Closure
and
Post­
Closure,
is
seriously
flawed
in
its
analysis
of
captive
insurance
and
should
not
be
used
by
EPA
as
the
basis
for
limiting
or
eliminating
the
use
of
captive
insurance.
238
The
OIG
report's
analysis
is
superficial
in
the
extreme.
Having
determined
that
"
independence"
of
risk
is
critical
to
the
financial
assurance
mechanism,
the
report
simply
assumes
that
pure
captive
insurance
provides
no
independence
of
risk,
regardless
of
the
financial
strength
of
the
parent
company,
the
asset
requirements
of
the
captive,
or
the
state's
licensing
and
regulatory
oversight
process.
Instead,
the
Report
demonstrates
a
notable
misunderstanding
of
how
insurance
works,
and
seems
to
largely
reflect
viewpoints,
concerns,
and
fears
of
state
officials
whose
expertise
lies
outside
insurance
law,
regulation,
and
standard
practices.

The
Report
inexplicably
provides
no
analysis
or
case
study
on
any
captive
insurance
program.
The
Report
fails
to
review
and
discuss
the
track
record
of
captive
insurance
relative
to
other
financial
assurance
mechanisms.
Most
notably,
the
Report
fails
to
articulate
any
standards
of
licensing
and
oversight
by
which
captive
insurance
policies
may
be
evaluated
and
compared
against
other
instruments.
In
one
example,
the
Report
appears
to
be
critical
of
the
assets
of
one
company's
pure
captive
(
the
Report's
information
was,
tellingly,
out
of
date),
but
the
Report
contains
no
analysis
of
the
criteria
or
oversight
by
which
the
State
of
Vermont
determined
the
asset
base
was
adequate
to
satisfy
the
risk.
Another
example
is
found
in
the
Report's
finding
that
"
there
are
few
RCRA
regulatory
requirements
on
insurance
established
for
financial
assurance
because
insurance
is
primarily
regulated
by
the
States."
The
Report
suggests
that
state
oversight
is
a
defect
of
captive
and
other
insurance
programs.
On
the
contrary,
deference
to
professional
insurance
regulators
of
a
State
is
in
fact
a
commendable
aspect
of
the
financial
assurance
requirements.
In
the
case
of
captive
insurance,
it
is
entirely
appropriate
for
federal
and
State
regulators
to
defer
to
those
State
insurance
agencies
with
professional
expertise
and
extensive
experience
in
regulating
captive
insurers.
Indeed,
captive
insurance
(
as
well
as
other
insurance)
may
be
a
superior
form
of
financial
assurance
in
light
of
the
regulatory
oversight
by
agencies
whose
primary
responsibility
is
insurance
regulation.

2.
A
more
complete
understanding
and
analysis
of
captive
insurance
demonstrates
that
captive
insurance
is
a
viable
and
vital
form
of
risk
management
for
RCRA
entities
and
should
be
retained
as
an
acceptable
instrument
for
financial
responsibility.

°
There
are
currently
over
4,000
captives
licensed
worldwide.
Captive
insurance
helps
States
and
regulated
entities
to
fulfill
their
financial
obligations
consistent
with
EPA's
stated
policy
of
providing
a
broad
array
of
mechanisms
to
facilitate
the
economically
sound
financing
of
financial
assurance
obligations.
One
of
the
chief
functions
of
a
captive
is
to
facilitate
the
efficient
financing
of
risk
within
an
organization.
In
addition,
captives
form
part
of
an
overall
financial
planning
structure
for
a
corporation
and
can
act
as
a
shield
against
upswings
and
downswings
in
the
commercial
market.

°
Vermont
has
licensed
over
500
captives,
which
makes
it
the
largest
domicile
in
the
U.
S.
This
is
attributable
chiefly
to
the
excellence
of
its
regulatory
control
and
administration.
One
hundred
twenty
(
120)
of
the
Fortune
500
companies
have
opted
to
domicile
their
captives
in
Vermont.
239
°
There
has
never
been
a
failure
of
a
Vermont
regulated
pure
captive
to
meet
its
financial
obligations.

°
The
owners
of
captive
insurance
companies
are
typically
sophisticated
entities
with
the
ability
to
manage
and
retain
their
own
risk.

°
WM's
captive,
NGIC,
is
currently
active
in
18
states
for
financial
assurance
and
28
states
for
performance/
miscellaneous
obligations.

°
Vermont
holds
captives
to
a
rigorous
set
of
requirements
before
licensing,
and
then
monitors
the
ongoing
operations
and
financial
stability
of
captives.
Captive
insurers
are
required
annually
to
provide
to
the
Vermont
Insurance
Department
the
following
information:

°
Audited
financial
statements
°
An
actuarial
certification
of
loss
reserves,
calculated
by
an
approved
actuarial
firm
°
A
statutory
annual
report
including
financial
and
insurance
operational
information
°
Parent
company
financial
statements
°
Biographical
affidavits
outlining
the
background
of
every
officer,
director,
and
key
employee
°
In
addition,
the
Department
also
monitors
press
releases
and
other
public
disclosures
about
the
parent
companies.

°
The
Vermont
Department
of
Banking,
Insurance,
Securities,
and
Health
Care
Administration
(
DBISHCA)
examines
captives
every
3­
5
years.
The
purpose
of
the
examination
is
to
determine
if
the
Company
is
operating
within
its
by­
laws
and
is
conforming
to
Vermont
Statutes
and
its
plan
of
operation
as
submitted
to
the
Department.
A
review
of
the
Company
operations
is
performed
including
an
analysis
of
financial
condition,
a
review
of
the
corporate
records,
and
tests
of
various
income
and
disbursement
items
as
deemed
appropriate.

°
In
WM's
case,
there
has
never
been
a
claim
submitted
to
NGIC
and
currently
there
are
no
claim
reserves
established
(
including
incurred
but
not
reserved).
The
independent
actuaries,
auditors,
A.
M.
Best
and
the
Vermont
regulators
have
approved
not
carrying
any
cash
reserves.
It
has
been
independently
verified
that
due
to
the
nature
of
the
exposure,
it
is
highly
unlikely
any
claims
will
ever
be
submitted.
Indeed,
WM's
total
closure/
post­
closure
costs
are
an
extremely
small
percentage
of
the
company's
total
assets
or
annual
revenues.
240
°
NGIC
is
required
to
operate
with
a
limits­
to­
surplus
ratio
of
3:
1.
On
average,
NGIC
will
have
a
minimum
of
33
cents
in
surplus
for
every
dollar
in
limits
written.
This
ratio
is
well
above
the
standard
for
the
commercial
insurance
industry.

°
As
of
April
2001,
the
A.
M.
Best
rating
for
NGIC
was
B++.
It
is
uncommon
for
a
captive
to
undergo
a
rigorous
rating
process
such
as
this.

°
NGIC
has
irrevocable,
evergreen
letters
of
credit
in
favor
of
the
State
of
Vermont
for
$
168
million,
and
an
inter­
company
note,
payable
upon
demand,
with
Waste
Management
for
an
additional
$
157
million.
The
State
of
Vermont
can
require
this
inter­
company
demand
note
to
be
replaced
with
letters
of
credit
or
cash
if
WMI
fails
to
meet
required
financial
standards
at
any
time.
This
ability
to
call
the
inter­
company
demand
note
allows
Vermont
to
ensure
that
sufficient
funds
are
available
to
NGIC
to
cover
any
foreseeable
claim
or
demand
for
payment
 
fully
independent
of
Waste
Management.

°
NGIC's
management
company
is
Marsh
Management
Services,
Inc.
Marsh
is
the
largest
manager
of
captive
insurers
in
the
country.
Their
knowledge
of
and
experience
with
insurance
companies
of
all
kinds,
including
experience
with
captives,
was
a
key
element
of
WM's
decision
to
contract
with
them.
Marsh
provides
key
services
including
issuance
of
policies,
assistance
in
determining
appropriate
rate
and
policy
conditions,
statistical
information
for
regulators,
premium
billings,
accounting,
regulatory
compliance
and
actuarial
certifications.

°
If
at
any
time
Vermont
determined
that
NGIC
was
not
adequate
for
its
intended
purpose,
WM
would
have
to
replace
that
vehicle
in
60
days.

1.
EPA's
long­
standing
policy
is
to
promote
a
diversity
of
financial
assurance
instruments.
Current
market
conditions
support
the
need
for
continuation
of
that
diversity
policy
to
include
retention
of
captive
insurance
as
an
acceptable
instrument.

It
is
important
for
EPA
to
recognize
that
many
Fortune
500
companies
have
moved
aggressively
in
recent
years
to
establish
captive
insurance
mechanisms
as
a
response
to
the
volatility
and
uncertainty
of
the
commercial
financial
assurance
marketplace.
Companies
seek
to
establish
well
run
and
fully
regulated
captive
insurance
companies
for
those
risks
they
know
and
can
directly
manage
 
as
compared
to
using
a
commercial
carrier
that
forces
the
risks
of
the
insured
party
to
be
commingled
with
the
risks
of
other
parties
over
which
there
is
absolutely
no
control.
As
discussed
below,
the
volatility
and
uncertainty
of
the
commercial
financial
assurance
marketplace
has
increased
dramatically
in
recent
months
­­
and
weeks.
As
a
result,
for
some
companies
and
for
the
integrity
of
the
RCRA
program,
captive
insurance
may
be
the
most
secure
financial
assurance
mechanism
available
for
use.
241
Capacity
has
become
extremely
tight
and
very
unstable
for
financial
assurance
instruments
in
the
commercial
marketplace.
At
the
same
time,
the
cost
of
the
instruments
has
escalated;
some
rates
have
tripled
since
the
summer
of
2000.
Surety
capacity
started
tightening
in
2000
when
the
number
of
primary
surety
companies
began
to
shrink
due
to
mergers,
consolidations
and
business
failures.
For
instance,
as
EPA
is
aware,
Frontier
Insurance
Company,
a
major
surety
providing
financial
assurance
to
the
waste
industry
for
landfill
obligations,
lost
their
treasury
listing
in
May
2000,
which
required
replacement
of
virtually
all
of
their
bonds
within
a
sixty­
day
time
period.
In
response,
Waste
Management
moved
quickly
to
comply
with
regulatory
agency
requirements
in
light
of
Frontier's
changed
status,
without
any
violations;
however
having
to
replace
Frontier
bonds
significantly
reduced
available
capacity
in
the
commercial
marketplace.

This
year,
the
tight
surety
market
continues
as
the
surety
industry
has
begun
to
experience
an
increase
in
both
contract
and
commercial
bond
losses.
The
economic
downturn
has
begun
to
negatively
affect
many
surety
clients.
The
surety
companies
normally
reinsure
a
large
portion
of
their
book
of
business
with
a
small
group
of
reinsurers.
The
reinsurance
companies
are
now
sustaining
large
losses
and
in
turn
are
pulling
back
or
refusing
to
renew
the
reinsurance
treaties.
This
is
resulting
in
large
reductions
in
capacity
and
the
exclusion
of
many
classes
of
more
difficult
bonds
from
their
reinsurance
treaties.
Although
the
waste
industry
has
not
incurred
any
losses
suffered
by
the
surety
industry,
the
reinsurers
have
pulled
back
on
all
of
their
treaties.

A
few
of
the
commercial
insurance
companies
offered
significant
capacity
in
1999
by
writing
insurance
policies.
As
the
market
continues
to
harden,
capacity
is
shrinking
and
underwriters
are
not
writing
new
policies
without
collateral
from
the
client.
New
capacity
is
available
on
a
case­
by­
case
basis;
the
rates
are
significantly
higher
with
a
collateral
requirement
of
up
to
100%
of
the
policy
limits.
Letter
of
credit
(
LOC)
capacity
has
shrunk
due
to
the
consolidations
occurring
in
the
banking
industry.
Some
banks
have
changed
their
global
strategy
and
made
the
decision
to
exit
the
commercial
banking
business
altogether.

Further,
the
recent
tragedies
that
occurred
in
New
York
and
near
Washington,
D.
C.
will
have
a
severe
impact
on
the
commercial
insurance
and
surety
markets.
The
insurance
companies
will
see
a
decrease
in
their
capital
base
due
to
the
losses
incurred;
this
will
restrict
the
capacity
offered
to
their
clients.
The
commercial
surety
industry
is
geared
toward
the
economy.
The
impact
on
the
U.
S.
economy
from
these
acts
will
put
tighter
restrictions
on
the
capacity
offered
by
the
sureties.
As
recently
stated
in
Waste
Industry
News
(
September/
October
2001),

"
The
terrorist
attack
on
September
11
is
unquestionably
the
most
significant
event
in
the
history
of
the
insurance
industry.
Loss
estimates
continue
to
rise
with
current
estimates
as
high
as
$
40
billion.
This
will
undoubtedly
cause
significant
financial
repercussions
to
primary
insurers,
reinsurers,
and
policyholders
alike.
These
events
will
result
in
the
largest
workers'
compensation
loss
in
history,
the
most
expensive
aviation
disaster
in
history,
one
of
the
largest
property
losses
in
history,
the
most
expensive
business
interruption
loss
in
history,
the
largest
life
insurance
catastrophic
242
loss
in
history,
and
potentially
the
largest
liability
claim
in
history.
It
is
predicted
that
this
single
chain
of
fortuitous
(
sic)
events
could
cause
the
capacity
of
the
reinsurance
market
worldwide
to
shrink
significantly,
perhaps,
by
one­
third
or
even
more."

It
is
important
to
note
that
none
of
the
waste
industry
captive
insurers
suffered
any
losses
due
to
the
unfortunate
events
of
September
11,
2001.

2.
Assignability
as
it
relates
to
captive
insurance
is
an
anomalous
provision
of
the
RCRA
financial
assurance
requirements,
and
there
is
no
evidence
to
indicate
that
the
provision
was
intended
to
impede
the
use
of
captives.

The
OIG
Report
did
not
reach
a
judgement
on
the
merits
of
the
assignability
provision,
but
simply
pointed
out
the
potential
anomaly.
Indeed,
at
a
July
18,
2001,
meeting
between
representatives
of
WM
and
EPA,
EPA
staff
suggested
that
the
apparent
intent
of
the
assignability
provision
was
to
provide
some
protection
for
the
insured,
and
was
not
intended
as
a
barrier
to
the
use
of
captive
insurance.
At
its
July
31
meeting
with
the
Association
of
State
and
Territorial
Solid
Waste
Management
Officials,
EPA
cautioned
against
a
presumption
that
the
assignability
provision
was
intended
to
limit
or
prohibit
the
use
of
captives.
EPA
acknowledges
that
the
record
for
the
development
of
the
assignability
provision
is
sketchy
or
non­
existent,
and
one
can
only
turn
to
other
events
to
provide
context
for
the
provision.

°
For
MSW
landfills
subject
to
Part
258,
the
assignability
provision
at
Section
258.74(
d)(
5),
is
sandwiched
between
two
other
provisions
in
the
regulations.
Both
of
these
provisions
are
intended
to
protect
the
owner
operator,
apparently
in
the
context
of
commercial
insurance.
Section
258.74(
d)(
4)
allows
the
owner/
operator
to
receive
reimbursements
for
undertaking
closure
or
post­
closure
activities.
Section
258.74(
d)(
6)
protects
the
insured,
the
owner/
operator,
against
cancellation
except
for
premium
default.
The
placement
of
the
assignability
provision
in
context
indicates
an
attempt
to
protect
the
insured
against
an
unreasonable
failure
to
reassign
by
the
insurer,
in
which
case
the
provision
may
only
be
read
to
be
appropriate
for
commercial
insurance,
as
a
captive
insured
would
have
no
need
for
such
protection.

°
In
1988,
in
preamble
language
to
amendments
of
the
financial
responsibility
provisions
of
Parts
264
and
265,
EPA
acknowledged
the
existence
of
captive
insurance
as
an
acceptable
instrument.
This
notice
took
place
several
years
after
the
assignability
provision
was
first
established
in
these
sections,
and
was
already
being
used
by
the
regulated
community.

°
As
noted
above,
captive
insurance
has
been
used
with
unmatched
success
as
a
financial
assurance
instrument
for
at
least
16
years,
and
in
that
time,
EPA
has
not
raised
the
issue
of
the
anomalous
assignability
provision.
243
Given
the
above
circumstances,
there
is
no
reason
for
EPA
to
conclude
at
this
juncture
that
the
assignability
provision
should
be
an
impediment
to
the
continued
use
of
captive
insurance.

Recommendations
1.
To
resolve
the
assignability
issue,
EPA
should
promptly
proceed
with
an
interpretive
guidance,
direct
final
rule,
or
a
technical
correction
to
the
RCRA
regulations
at
§
258.74
and
§
264.143,
264.145,
265.143,
and
265.145
of
Title
40
of
the
CFR
governing
the
use
of
financial
assurance
instruments.

EPA,
the
States,
and
the
regulated
community
have
proceeded
for
over
a
decade
on
the
assumption
that
captive
insurance
was
a
viable
financial
assurance
instrument,
and
the
history
of
its
use
and
effectiveness
support
the
merits
of
that
assumption.
Captive
insurance
fulfills
the
principal
purpose
of
financial
assurance
as
identified
by
EPA
in
its
rulemakings,
to
provide
assurance
only
in
the
event
that
an
owner/
operator
is
unwilling
or
unable
to
pay
for
closure/
post­
closure
care.
In
that
regard,
WM
understands
that
no
captive
has
ever
been
called
upon
to
fund
a
closure
or
post­
closure
obligation.
In
addition,
there
is
no
evidence
that
the
assignability
provision
was
intended
to
limit
or
prohibit
the
use
of
captive
insurance.
If
that
were
not
the
case,
there
would
be
no
explaining
EPA's
long
silence
on
the
use
of
the
instruments
or
EPA's
determination
in
another
rulemaking
that
captive
insurance
is
a
viable
instrument.
All
evidence
suggests
that
the
existence
of
the
assignability
provision
came
about
without
EPA
consideration
or
judgement
as
to
its
potential
effect
on
the
captive
insurance
instrument,
and
was
not
identified
as
an
issue
until
the
recent
OIG
Report.
With
this
history,
it
is
entirely
appropriate
for
EPA
to
expeditiously
correct
the
regulations
in
one
of
several
ways:

(
1)
EPA
can
amend
the
language
of
the
assignability
provision
to
remove
its
applicability
to
captive
insurance
policies.

(
2)
EPA
can
amend
the
language
of
the
assignability
provision
to
provide
an
alternative
condition
that
in
the
case
of
captive
insurance,
in
lieu
of
assignability,
there
will
be
no
lapse
of
coverage
for
financial
assurance
in
the
event
of
a
change
of
ownership
and/
or
operation
to
a
new
permittee.

(
3)
EPA
can
provide
clarifying
language
that
the
assignability
provision
is
intended
solely
for
non­
captive
insurance
policies
where
an
issue
of
asset
recovery
for
the
insured
may
exist.

With
the
appropriate
resolution
in
place,
the
States
may
then
be
free
to
consider
continuing
the
use
of
captive
insurance
without
any
ambiguity
regarding
the
assignability
provision.

2.
EPA
should
examine
the
record
and
financial
integrity
of
captive
insurance
programs,
with
the
Vermont
program
as
a
model,
and
retain
the
use
of
captive
insurance
for
meeting
244
financial
responsibility
obligations.
By
doing
so,
EPA
will
maintain
its
policy
of
diversity
in
the
market
place,
preclude
a
crisis
atmosphere
in
the
financial
assurance
market
place,
and
prevent
an
unwarranted
flight
to
riskier
mechanisms.

A
thorough
review
of
the
Vermont
program
will
provide
strong
evidence
that
captive
insurance
should
remain
among
the
instruments
for
use
by
the
regulated
community.
In
that
regard,
WM
recommends
that
EPA
consider
developing
guidance
or
regulatory
amendments
for
the
use
of
the
captive
insurance
instrument
which
contains
the
following
elements:

(
4)
The
licensing
state
should
establish
an
annual
review
process
for
the
captive
insurer
which
will
include
the
submission
and
review
of
audited
financial
statements,
an
annual
report
by
the
company
with
financial
and
insurance
operational
information,
financial
statements
of
the
parent
company,
and
biographical
affidavits
on
the
officers
and
directors
of
the
captive
insurance
company.

(
5)
Captive
insurers
writing
coverage
for
RCRA
financial
assurance
should
have
a
minimum
1:
3
capital­
to­
limits
ratio
(
minimum
of
$
1
of
equity
for
every
$
3
of
policy
limits
in
force).

(
6)
If
loan
backs
are
to
be
used
as
part
of
the
captive
insurer's
capital
base,
the
parent
company
should
have
equity
of
at
least
$
100
million.
Provisions
should
be
established
to
require
repayment
of
the
loan
if
the
financial
condition
of
the
parent
company
should
so
warrant.

(
7)
The
combined
ratio
generally
should
not
be
greater
than
100%.
(
The
combined
ratio
is
simply
the
measure
of
insurance
company
expenses
(
including
losses
and
administrative
expenses)
compared
to
premium
dollars
received.
A
ratio
above
100
means
that
for
every
premium
dollar
taken
in,
more
than
a
dollar
went
for
losses
and
administrative
expenses.)

(
8)
Premiums
written
to
surplus
ratio
should
not
generally
exceed
300%.
(
This
ratio
attempts
to
measure
the
adequacy
of
an
insurer's
surplus,
relative
to
its
operating
exposure.
A
low
ratio
indicates
stronger
surplus
support
for
net
premiums
written
and
less
exposure
to
a
material
reduction
in
surplus
arising
from
a
sudden
downturn
in
underwriting
results.)

3.
WM
opposes
the
establishment
of
the
minimum
insurance
rating
suggested
by
EPA.

EPA
suggests
in
its
notice
that
a
minimum
insurance
rating
for
all
insurance
coverage
would
provide
an
extra
measure
of
confidence
in
the
insurance
mechanism.
WM
believes
that
such
a
measure
would
be
counterproductive
and
would
only
increase
costs
and
flexibility
for
owner/
operators
without
any
substantive
improvement
in
the
financial
responsibility
program.
245
°
The
establishment
of
the
specific
minimum
rating
suggested
by
EPA
appears
to
be
arbitrary
and
does
not
identify
any
analysis
of
what
problem
EPA
is
trying
to
solve,
other
than
one
of
appearances,
nor
does
EPA
articulate
how
the
rating
will
improve
the
program
compared
to
any
other
rating.
EPA
is
making
the
same
mistake
found
in
the
OIG
Report,
in
that
it
is
attempting
to
address
the
fears
of
regulators
unfamiliar
with
insurance
practices
or
risk
management
methods,
rather
than
any
substantive
concerns
with
the
insurance
instrument
itself.
EPA
stated
policy
is
to
promote
a
variety
of
financial
assurance
instruments.
Any
proposal
that
may
restrict
the
use
of
an
otherwise
viable
instrument,
such
as
insurance,
must
meet
a
threshold
test
for
necessity
or
program
integrity.
EPA
has
failed
to
undertake
such
an
analysis
in
its
proposal
for
a
minimum
insurance
rating.

°
EPA
has
not
analyzed
how
any
specific
minimum
insurance
rating
may
affect
the
cost
of
insurance
to
the
regulated
community.
As
stated
above,
market
circumstances
have
tightened
the
market
for
financial
assurance
instruments,
and
further
restrictions
on
the
participation
of
insurance
providers
will
only
serve
to
exacerbate
the
costs.
EPA
must
analyze
and
document
those
potential
costs
before
it
can
determine
whether
the
marginal
benefits
of
confidence
or
protection
it
may
superficially
obtain
with
a
minimum
insurance
rating
exceeds
the
likely
costs
or
the
potential
flight
to
riskier
instruments.

°
EPA's
justification
for
a
minimum
insurance
rating
for
insurance
companies
addresses
those
circumstances
where
the
risks
of
many
companies
are
pooled,
which
is
not
the
case
for
captives.
EPA
must
undertake
an
analysis
of
how
its
minimum
insurance
rating
might
affect
the
availability
of
captive
insurance
vs.
commercial
insurance
providers.

°
EPA's
proposal
for
a
minimum
insurance
rating,
if
applied
to
captives,
is
illogical
and
inconsistent
with
past
EPA
analysis.
The
financial
test
requires
an
"
investment
grade"
bond
rating.
EPA
has
recognized
that
an
investment
grade
bond
rating
­
even
those
at
the
lower
end
of
the
investment
grade
scale
­
demonstrated
an
appropriate
level
of
financial
strength:
"
An
investment
grade
bond
rating
was
believed
to
be
a
good
demonstration
of
financial
strength
because
it
reflected
the
expert
opinion
of
the
bond
rating
service
and
the
financial
community.
 
Moreover,
the
Agency
performed
a
quantitative
analysis
indicating
that
bond
ratings
have
historically
been
a
reasonably
good
indicator
for
predicting
default,
and
noted
that
none
of
the
firms
in
its
sample
of
bankrupt
firms
between
1966
and
1979
had
an
investment
grade
rated
bond
issuance."
56
Fed
Reg.
30201(
July
1,
1991).
If
EPA
maintains
on
one
hand
that
an
investment
grade
rating
may
be
appropriate
for
the
financial
strength
for
the
parent
company,
then
a
separate
test
for
a
wholly
owned
subsidiary
is
redundant.
Finally,
if
EPA
were
to
adopt,
as
recommended
above,
a
set
of
minimum
criteria
for
captive
insurance
instruments,
then
the
minimum
insurance
rating
is
again
redundant,
as
all
the
needed
protection
is
provided
by
the
implementation
of
the
criteria.

WM
offers
its
resources
and
support
for
a
more
thoughtful
review
by
EPA
of
the
issues
raised
by
the
OIG
Report.
Please
contact
me
at
your
convenience
if
you
have
any
questions
or
concerns
246
regarding
these
comments
or
if
WM
can
be
of
any
further
assistance.
(
Edmund
J.
Skernolis,
Director
of
Government
Affairs,
Waste
Management
Inc,
RCRA­
2001­
0029­
0040)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
We
completely
agree
with
USEPA
that
several
aspects
of
the
current
financial
assurance
structure
need
revision.

.
.
.
.
.

Finally
GEPD
does
not
support
the
use
of
captive
insurance.
This
is
insurance
is
self­
insurance
which
is
much
less
reliable
than
the
financial
test.
(
Jennifer
R.
Kaduck,
Chief,
Georgia
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0048)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
EPA
requests
comments
on
minimum
ratings
for
insurers
with
respect
to
the
financial
strength
of
the
insurer.
Dominion
agrees
with
the
proposed
requirement
and
the
rating
system.
Dominion
recommends
that
the
Agency
consider
having
the
insurance
company
maintain
a
"
bond."
The
bond
could
be
set
up
to
reduce
the
likelihood
of
having
a
claim
made
against
the
insurance
company
and
having
the
insurance
company
say
they
have
insufficient
or
no
funds.
(
Pamela
F.
Faggert,
Dominion,
RCRA­
2001­
0029­
0049)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Because
of
various
changes
in
the
insurance
business,
the
availability
of
insurance
for
TSD
facilities
has
decreased.
As
a
result,
the
cost
of
insurance
for
TSD
facilities
has
significantly
increased
with
no
additional
benefit
to
our
companies.
Therefore,
hazardous
waste
firms
must
be
able
to
utilize
all
the
available
tools
to
provide
financial
assurance.
One
of
those
options
is
captive
insurance.
247
EPA
asked
for
comments
on
captive
insurance
and
provides
several
rationales
why
captive
insurance
policies
should
not
be
allowed.
66
FR
52237
col
1.
Much
of
EPA's
justification
is
based
on
the
Office
of
Inspector
General's
report
cited
in
the
preamble.
The
OIG
report
assumes
that
captive
insurance
companies
are
mere
subsidiaries
or
affiliates
of
the
insured
facilities,
and
that
they
are
not
financially
separate.
That
is
not
true.
The
TSD
facility
and
the
captive
insurance
company
are
separately
owned
by
different
parent
companies
and
do
not
exchange
or
intermingle
monies
other
than
premiums.
In
addition,
Vermont
law
precludes
the
captive
insurance
company
from
subsidizing
affiliates.
Far
enough
up
the
ownership
ladder,
of
course,
the
captive
insurance
company
and
the
TSD
facility
come
under
the
common
ownership
of
the
same
corporate
parent.
This
is
a
typical
ownership
structure
in
the
corporate
world,
and
there
is
no
reason
to
believe
that
captive
insurance
companies,
which
are
independent
corporations
that
are
typically
incorporated
under
the
insurance
laws
of
the
State
of
Vermont,
are
not
financially
separate
from
the
insured
facilities.

Vermont
captive
insurance
companies
are
subject
to
regulations
under
the
Vermont
Department
of
Insurance
that
provide
substantial
oversight
through
capitalization
requirements
and
certification
of
adequacy
of
loss
reserves
by
certified
actuaries.
EPA's
assumption
that
the
state
does
not
properly
assess
the
capacity
of
these
companies
and
that
they
are
likely
to
fail
underlies
the
proposal
to
drop
captive
insurance
as
an
option.
EPA
needs
to
point
to
losses
that
occurred
due
to
the
inadequacy
of
captive
insurance
before
rejecting
captive
insurance
as
an
option.

A
fully
funded
captive
insurance
reserve
is
a
very
low­
risk
financial
assurance
mechanism.
For
example,
trust
mechanisms
may
not
be
fully
funded
if
there
is
a
pay­
in
period
over
part
of
the
life
of
the
facility.
What
happens,
then,
if
a
company
becomes
insolvent
during
the
pay­
in
period?
As
well,
surety
bonds
and
letters
of
credit
depend
upon
the
financial
strength
of
the
surety
company
and/
or
issuer
of
the
letter
of
credit.
Only
a
100%
funded
trust
is
completely
secure,
but
the
cost
of
closure
makes
that
a
financially
impractical
option.

EPA
suggests
an
independent
rating
of
companies
providing
the
captive
insurance.
This
proposal
is
unfair,
particularly
for
smaller
businesses.
The
rating
systems
favor
large
companies,
so
even
a
fully
funded
smaller
captive
may
not
be
able
to
achieve
a
high
enough
rating
­
or
even
be
rated
for
that
matter.
In
addition,
the
cost
to
obtain
a
rating
may
be
from
$
20,000
to
$
40,000
initially,
plus
up
to
half
that
amount
again
to
maintain
the
rating.
We
believe
that
EPA
is
required
to
consider
the
rating
issue's
impact
on
small
business
and
the
impact
of
not
allowing
captive
insurance
pursuant
to
the
requirement
of
the
Small
Business
Regulatory
Enforcement
Fairness
Act
(
SBREFA).
EPA's
analysis
of
small
business
impacts
(
Section
XII
B.)
seems
to
have
been
limited
to
those
proposals
dealing
with
standardized
permits
and
not
the
additional
issues
such
as
captive
insurance.

Another
concern
that
is
invoked
as
a
supposed
weakness
of
captive
insurance
is
the
lack
of
"
diversity
of
risk."
It
may
be
appropriate
for
a
large
insurance
company
that
is
not
fully
funded
to
diversify
its
risk,
but
for
a
small,
fully­
funded
captive
it
is
unnecessary.
Diversity
of
risk
just
translates
into
"
opportunity
for
claim."
One
concern
common
among
states
is
that
they
do
not
like
248
insurance
coverage
because
insurance
companies
are
structured
to
deny
and
litigate
claims.
That
is
not
the
case
with
a
captive
insurance
company.
It
seems
illogical
to
force
a
captive
insurance
company
to
expose
itself
to
other
potential
claims
in
order
to
achieve
a
rating.

EPA
needs
to
reconsider
the
issue
of
requiring
assignability
because
it
is
inconsistent
with
commercial
insurance
practices.
EPA
requires
permit
issuers
to
approve
any
sale
of
a
facility.
One
of
the
issues
EPA
should
expect
is
that
the
new
owner
will
have
proper
closure
financial
assurance
ready
in
place
when
it
takes
over
the
facility.
Companies
providing
financial
assurance,
especially
insurance
companies,
try
to
avoid
having
to
pay
claims.
Therefore,
they
investigates
the
customer's
viability
before
placing
or
pricing
insurance.
Expecting
them
to
also
cover
future
unknown
buyers
leads
to
higher
insurance
rates
because
of
the
increased
uncertainty
and
risk.
Therefore,
EPA
should
revise
its
requirements
for
assignability
and
require
the
new
coverage
for
the
succeeding
company
to
take
effect
upon
the
transfer.
Such
a
change
would
follow
industry
practices
and
make
the
inability
to
assign
the
closure
coverage
a
moot
issue.

Both
the
proposal
and
the
Office
of
Inspector
General's
Report
fail
to
point
to
losses
in
the
hazardous
waste
industry
or
to
other
industries
because
of
failures
of
captive
insurance
companies.
Before
Subtitle
C
facilities
are
further
limited
in
closure
funding
options,
EPA
should
have
a
stronger
record
of
problems
to
justify
the
change.
(
Environmental
Technology
Council,
RCRA­
2001­
0029­
0068)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
1.
VCIA
believes
that
if
EPA
regulators
have
concerns
about
an
individual
program,
due
to
a
material
problem,
they
should
attempt
to
condition
the
use
of
a
particular
captive
insurance
company,
rather
than
outlaw
an
entire
industry,
which
serves
a
critically
important
role
in
the
risk
management
strategies
of
companies
(
both
for­
and
non­
profit)
around
the
world.

2.
By
outlawing
captive
insurance
companies,
VCIA
believes
that
EPA
would
set
a
dangerous
precedent,
which
could
open
the
door
to
the
wholesale
exclusion
of
captives
for
other
legitimate
purposes.

3.
Captive
insurance
is
a
sophisticated
and
legitimate
financial
strategy
that
benefits
the
large
and
medium­
sized
insurance
consumer
by
providing
them
with
greater
control
over
their
risk
programs,
the
ability
to
achieve
cost
savings
and
efficiencies
that
are
passed
on
throughout
their
organizations,
and
to
customize
the
kinds
of
insurance
coverages
that
are
unique
to
that
company.
Barring
the
use
of
captives
will
force
corporations
to
buy
more
costly
traditional
insurance
and
create
additional
pressure
on
the
commercial
market,
where
249
there
is
already
limited
capacity
to
cover
all
these
types
of
risks
and
little
interest
in
providing
such
coverage,
if
it
is
available
at
all.
Because
of
the
complex
nature
and
vitally
important
role
of
the
captive
insurance
industry,
the
VCIA
respectfully
requests
that
the
US
EPA
not
adopt
the
proposed
regulations
to
exclude
the
use
of
captive
insurance
for
financial
assurance
purposes.

In
his
letter
to
Administrator
Christine
Todd
Whitman,
dated
July
20,
2001,
Vermont's
US
Senator
James
Jeffords
outlined
his
concerns
about
two
aspects
of
this
OIG
report
in
particular:
the
assignability
of
a
policy
and
the
independence
of
captives.
I
urge
you
to
consider
the
arguments
he
puts
forth
on
those
two
points,
and
to
accept
his
invitation
to
work
with
you
"
to
ensure
the
integrity
of
the
financial
assurance
program
while
maintaining
this
necessary
pool
of
viable
instruments."
(
Lisa
Ventriss,
President,
Vermont
Captive
Insurance
Association,
RCRA­
2001­
0029­
0070)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
We
agree
with
the
EPA
Office
of
Inspector
General's
(
OIG)
comments
that
captive
insurance
is
just
another
form
of
self­
insurance
which
does
not
meet
the
financial
standards
of
the
financial
test
of
self­
insurance.
We
recommend
that
captive
insurers
are
disallowed
as
financial
assurance
providers.
Additionally,
we
believe
that
EPA
should
adopt
minimum
ratings
for
insurance
companies,
and
we
concur
with
the
ratings
and
ratings
services
identified
by
EPA.
(
Texas
Natural
Resources
Conservation
Commission,
RCRA­
2001­
0029­
0072)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Onyx
supports
EPA's
review
of
Captive
Insurance
policies
for
Hazardous
Waste
Management
Facilities.
Onyx
agrees
with
the
OIG
report
the
states:
" 
insurance
policies
issued
by
a
"
captive"
insurance
company
do
not
provide
an
adequate
level
of
assurance
because
we
found
no
independence
between
facility
failure
and
the
failure
of
the
mechanism."
Onyx
also
supports
OIG's
position
that
pure
captive
insurance
is
a
form
of
"
self
insurance".
Onyx
believes
that
if
EPA
agrees
to
allow
companies
to
utilize
"
pure
captive
insurance"
an
alternate
financial
test
similar
to
the
self
insurance
test
should
be
developed.
In
conclusion,
Onyx
is
supportive
of
EPA's
review
of
Captive
Insurance
policies
and
would
support
the
elimination
of
the
pure
captive
insurance
policies,
or
an
added
financial
test
to
ensure
that
the
hazardous
waste
facility
could
fulfill
its
financial
obligations
in
the
event
of
a
bankruptcy.
(
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0078)
250
Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Onyx
supports
the
recommendation
that
insurance
providers
meet
at
least
a
minimum
rating
of
A
by
Moody's,
Standard
&
Poor's,
or
A.
M.
Best
to
provide
financial
assurance
to
hazardous
waste
management
facilities.
(
Onyx
Environmental
Services,
RCRA­
2001­
0029­
0078)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
The
National
Solid
Wastes
Management
Association's
(
NSWMA)
Landfill
Institute
is
pleased
to
provide
comments
on
the
Environmental
Protection
Agency's
(
EPA)
proposed
rule:
Hazardous
Waste
Management
System:
Standardized
Permit;
Corrective
Action;
and
Financial
Responsibility
for
RCRA
Hazardous
Waste
Management
Facilities
(
66
FR
52192).
The
Landfill
Institute's
comments
are
limited
to
the
request
for
comments
and
information
on
financial
assurance.
Our
understanding
is
that
EPA
is
not
proposing
any
changes
to
the
financial
assurance
provisions
of
the
municipal
solid
waste
(
MSW)
landfill
criteria
(
RCRA
part
258)
at
this
time,
but
is
seeking
comments
on
issues
raised
by
the
EPA
Office
of
Inspector
General's
(
OIG)
Audit
Report
titled
RCRA
Financial
Assurance
for
Closure
and
Post­
Closure
(
March
30,
2001).

NSWMA
is
the
trade
association
that
represents
the
private
waste
management
industry.
NSWMA's
Landfill
Institute
is
comprised
of
those
members
that
own
or
operate
non­
hazardous
waste
landfills
including
MSW
landfills.
Our
members
own
or
operate
some
800
MSW
landfills,
representing
almost
60
percent
of
the
nation's
landfill
capacity.

NSWMA
members
utilize
a
variety
of
financial
assurance
mechanism
to
meet
their
financial
assurance
obligations
under
RCRA
part
258.
The
allowable
mechanisms
under
the
federal
criteria
include
trust
funds,
surety
bonds,
letters
of
credit,
insurance,
a
corporate
financial
test,
and
a
corporate
guarantee,
or
some
combination
of
the
mechanisms.
The
decision
to
use
any
particular
instrument
or
combination
of
instruments
at
a
landfill
is
a
function
of
state
requirements,
company
finances,
and
market
factors
influencing
the
cost
of
any
instrument.
This
allows
member
companies
to
remain
competitive
in
the
market
place.

EPA
Should
Fulfill
Its
Obligation
to
the
Inspector
General
Before
Seeking
Comments
The
OIG's
report
did
not
recommend
a
change
to
the
use
of
captive
insurance.
Rather,
the
report
recommended
that
EPA's
Acting
Assistant
for
Solid
Waste
and
Emergency
Response
(
OSWER):
251
°
Issue
guidance
to
state
financial
assurance
programs
that
when
an
insurance
policy
is
used
for
closure
or
post­
closure
financial
assurance:

°
The
insurance
policy
should
meet
all
requirements;
and
°
The
state
program
should
obtain
verification
from
the
insurance
commissioner,
in
the
state
where
the
insurance
company
issuing
the
policy
is
licensed,
that
the
insurance
policy
allows
assignment
of
the
policy
to
the
successor
owner
or
operator
of
the
facility,
in
the
event
that
the
facility
is
sold
outside
of
the
corporate
family
of
the
seller.

°
Investigate
complex
insurance
issues
with
states
and
determine
states'
need
for
additional
guidance
on
these
issues.

°
Develop
existing
financial
assurance
training
materials
for
placement
on
the
Agency's
Internet
site
to
be
downloaded
by
state
programs.

°
Work
with
ASTSWMO
to
develop
an
Internet
bulletin
board
to
increase
opportunities
for
information
sharing
among
financial
assurance
program
officials.

The
Inspector
General
received
EPA's
response
to
its
draft
report
on
March
27,
2001.
OSWER
agreed
with
all
of
the
Inspector
General's
recommendations
and
stated
it
planed
to
conduct
a
study
during
2001
that
would
examine
the
existing
financial
assurance
mechanisms.
Therefore,
EPA
should
not
be
seeking
comments,
and
defer
any
decision,
on
captive
insurance
until
it
examines
all
financial
assurance
mechanisms
and
publishes
the
results
of
the
study
for
review
and
comment.
At
this
point
in
time,
EPA
appears
to
be
premature
in
requesting
comments
on
a
single
financial
assurance
mechanism
(
i.
e.,
captive
insurance)
without
completion
of
this
study
and
examination
of
the
issues
associated
with
all
financial
assurance
mechanisms.

EPA
Should
Not
Use
the
Office
of
Inspector
General's
Audit
Report
as
the
Basis
for
Limiting
or
Eliminating
the
Use
of
Captive
Insurance
Because
the
Report
is
Flawed
The
OIG
report
does
not
provide
an
in
depth
analysis
of
captive
insurance.
In
the
report,
the
OIG
determined
that
risk
independence
was
a
critical
element
of
a
financial
assurance
mechanism.
Therefore,
the
OIG
assumed
that
pure
captive
insurance
did
not
provide
risk
independence
regardless
of
the
financial
strength
of
the
parent
company,
the
captive's
asset
requirements,
or
the
state's
licensing
and
regulatory
oversight
process.
The
report
also
demonstrated
a
misunderstanding
of
how
insurance
works
and
appears
to
reflect
the
viewpoints,
concerns,
and
fears
of
state
officials
whose
expertise
lies
outside
insurance
law,
regulation,
and
standard
practices.

Further,
the
report
did
not
provide
any
analysis
or
case
studies
of
captive
insurance
programs.
The
OIG's
report
failed
to
review
and
discuss
the
track
record
of
captive
insurance
relative
to
other
financial
assurance
mechanisms,
which
EPA
stated
it
would
reexamine.
Finally,
the
standards
of
252
licensing
and
oversight
by
which
captive
insurance
policies
should
be
evaluated
and
compared
against
other
instruments
was
not
presented
in
the
report.

For
example,
the
report
criticized
the
assets
of
one
company's
pure
captive
but
did
not
contain
an
analysis
of
the
criteria
or
oversight
by
which
the
state
determined
the
asset
base
was
adequate
to
satisfy
the
risk.
Additionally,
the
report
found
that
few
RCRA
regulatory
requirements
on
insurance
had
been
established
for
financial
assurance
because
insurance
was
primarily
regulated
by
the
states.
The
report
suggested
that
state
oversight
was
a
defect
of
captive
and
other
insurance
programs.
In
fact,
this
aspect
of
the
financial
assurance
requirements
is
commendable
because
it
defers
decisions
to
professional
state
insurance
regulators.
For
the
case
of
captive
insurance,
deferring
to
state
insurance
agencies
with
professional
expertise
and
extensive
experience
in
regulating
captive
insurers
is
entirely
appropriate
for
federal
and
state
regulators.
Captive
insurance,
and
other
insurance
instruments,
may
be
a
superior
form
of
financial
assurance
because
of
the
regulatory
oversight
by
agencies
whose
primary
responsibility
is
insurance
regulation.

Current
Market
Conditions
Support
the
Need
for
Continuation
of
EPA's
Long­
Standing
Policy
is
to
Promote
a
Diversity
of
Financial
Assurance
Instruments
Including
Retention
of
Captive
Insurance.
EPA
needs
to
recognize
that
many
Fortune
500
companies
have
recently
established
captive
insurance
mechanisms
as
a
response
to
the
volatility
and
uncertainty
in
the
commercial
financial
assurance
marketplace.
Companies,
including
those
in
the
waste
management
industry,
can
directly
manage
their
known
risks
by
establishing
well­
run
and
fully
regulated
captive
insurance
companies.
Through
the
use
of
a
captive
insurance
company,
a
company's
risks
are
not
commingled
with
the
risks
of
other
parties
over
which
the
company
does
not
have
control.

The
commercial
financial
assurance
marketplace
has
become
increasingly
volatility
and
uncertain
in
recent
months.
The
capacity
of
the
commercial
marketplace
for
financial
assurance
instruments
has
become
extremely
tight
and
unstable,
while
the
cost
of
the
instruments
has
escalated.
For
example,
some
rates
have
tripled
since
the
summer
of
2000.

The
surety
capacity
tightened
in
2000
because
the
number
of
primary
surety
companies
shrank
as
a
result
of
mergers,
consolidations
and
business
failures.
In
2001,
the
surety
market
continued
to
tighten
as
the
industry
began
to
experience
increases
in
both
contract
and
commercial
bond
losses.
The
recent
economic
downturn
has
negatively
affected
many
surety
clients
because
a
surety
company
normally
reinsures
a
large
portion
of
business
with
a
small
group
of
reinsures.
Because
the
reinsurance
companies
sustained
large
losses,
they
pulled
back
or
refused
to
renew
the
reinsurance
treaties.
This
resulted
in
large
reductions
in
capacity
and
the
exclusion
of
many
classes
of
more
difficult
bonds
from
their
reinsurance
treaties.
The
reinsurers
pulled
back
on
all
of
their
treaties
despite
the
waste
industry
not
incurring
any
losses
suffered
by
the
surety
industry.

In
1999,
a
few
of
the
commercial
insurance
companies
offered
significant
capacity
by
writing
insurance
policies.
As
the
market
hardened,
capacity
shrank
and
underwriters
were
not
writing
new
policies
without
collateral
from
the
client.
New
capacity
in
the
insurance
industry
is
however
253
available
on
a
case­
by­
case
basis
with
significantly
higher
rates
and
collateral
requirements
equal
to
100%
of
policy
limits.
Letter
of
credit
capacity
diminished
because
of
consolidation
in
the
banking
industry
with
some
banks
exiting
the
commercial
banking
business.

Finally,
the
terrorist
attacks
on
September
11
will
have
a
severe
impact
on
the
commercial
insurance
and
surety
markets.
The
insurance
companies
expect
to
experience
a
decrease
in
their
capital
base
because
of
the
losses
incurred.
As
a
result,
the
capacity
offered
by
insurance
companies
will
be
restricted.
The
commercial
surety
industry
also
is
dependent
on
the
economy.
The
impact
from
the
terrorists
attack
on
the
U.
S.
economy
will
cause
tighter
restrictions
on
the
capacity
offered
by
the
sureties.

None
of
the
waste
industry
captive
insurers
suffered
any
losses
because
of
the
September
11
events.
As
a
result,
captive
insurance
may
be
the
most
secure
financial
assurance
mechanism
available
for
use
by
companies
and
the
RCRA
program.

Assignability
of
Captive
Insurance
is
an
Anomalous
Provision
of
the
RCRA
Part
258
Financial
Assurance
Requirements
and
was
not
Intended
to
Impede
the
Use
of
Captives.
The
OIG
report
did
not
reach
any
conclusions
concerning
the
assignability
provision
of
captive
insurance.
Rather,
the
report
pointed
out
that
a
potential
anomaly
existed
within
RCRA
part
258.
The
intent
of
the
assignability
provision
provides
some
protection
for
the
insured
and
was
not
intended
as
a
barrier
to
the
use
of
captive
insurance.

The
assignability
provision
for
MSW
landfills
is
contained
at
Section
258.74(
d)(
5).
The
provision
is
preceded
and
followed
by
other
provisions
intended
to
protect
the
owner
operator
using
commercial
insurance.
The
first
section
(
Section
258.74(
d)(
4))
allows
the
owner/
operator
to
receive
reimbursements
for
undertaking
closure
or
post­
closure
activities.
The
second
section
(
Section
258.74(
d)(
6))
protects
the
owner/
operator
against
cancellation
except
for
premium
default.
The
placement
of
the
assignability
provision
in
context
with
the
other
two
provisions
appears
to
be
an
attempt
to
protect
the
insured
against
an
unreasonable
failure
to
reassign
by
the
insurer.
Read
in
context,
the
provision
is
only
appropriate
for
commercial
insurance.
A
captive
insured
would
not
have
a
need
for
such
protection.

Further,
the
1988
preamble
language
to
the
financial
responsibility
provisions
amendments
of
Parts
264
and
265
acknowledged
the
existence
of
captive
insurance
as
an
acceptable
financial
assurance
instrument.
The
notice
appeared
several
years
after
the
assignability
provision
was
first
established
in
these
sections
and
was
already
being
used
by
the
regulated
community.

Finally,
captive
insurance
has
been
used
with
unmatched
success
as
a
financial
assurance
instrument
for
at
least
16
years.
EPA
has
not
raised
the
issue
of
the
anomalous
assignability
provision
in
this
time.
Based
on
the
above,
EPA
cannot
conclude
that
the
assignability
provision
should
be
an
impediment
to
the
continued
use
of
captive
insurance.
Therefore,
the
Landfill
Institute
recommends
that
EPA
254
promptly
proceed
with
interpretive
guidance,
a
direct
final
rule,
or
a
technical
correction
to
40
CFR
part
258.74
of
the
RCRA
regulations
that
govern
the
use
of
financial
assurance
instruments.

The
EPA,
state
regulatory
agencies,
and
regulated
communities
have
used,
and
assumed,
that
captive
insurance
was
a
viable
financial
assurance
instrument
more
than
decade.
The
use
and
effectiveness
of
captive
insurance
supports
this
assumption
because:

Captive
insurance
fulfills
the
principle
purpose
of
financial
assurance
as
identified
by
EPA
by
providing
assurance
only
in
the
event
that
an
owner/
operator
is
unwilling
or
unable
to
pay
for
closure/
post­
closure
care,
and
Captive
insurance
has
never
been
called
upon
to
fund
a
closure
or
post­
closure
obligation.

Finally,
evidence
does
not
exist
indicating
that
the
assignability
provision
was
intended
to
limit
or
prohibit
the
use
of
captive
insurance.
In
fact,
EPA
has
not
identified
this
as
an
issue
until
the
recent
OIG
Report
despite
having
opportunities
in
rulemaking
to
raise
the
issue.
EPA's
quick
development
of
the
October
12,
2001
request
for
comments
appears
to
indicate
that
the
agency
did
not
consider
the
potential
effect
on
the
use
of
the
captive
insurance
instrument.
We
believe
that
EPA
can
quickly
correct
the
regulations
in
one
of
several
ways:

°
Amend
the
language
of
the
assignability
provision
to
remove
its
applicability
to
captive
insurance
policies,

°
Amend
the
language
of
the
assignability
provision
by
providing
an
alternative
condition
that
in
the
case
of
captive
insurance
a
lapse
of
coverage
for
financial
assurance
will
not
occur
in
the
event
of
a
facility
owner/
operator
change
to
a
new
permittee,
or
°
Clarify
that
the
language
concerning
the
assignability
provision
is
intended
solely
for
non­
captive
insurance
policies
where
an
issue
of
asset
recovery
for
the
insured
may
exist.

Once
a
resolution
is
in
place,
states
are
then
free
to
consider
continuing
the
use
of
captive
insurance
without
any
ambiguity
regarding
the
assignability
provision.

EPA
Should
Not
Establishment
Minimum
Insurance
Ratings
In
the
October
12,
2001
Federal
Register
notice,
EPA
stated
that
it
was
considering
a
minimum
insurance
rating
for
all
insurance
coverage
to
provide
an
extra
measure
of
confidence
in
the
insurance
mechanism.
The
Landfill
Institute
opposes
such
a
requirement
because
it
would
be
counterproductive,
increase
costs,
and
decrease
flexibility
for
owner/
operators
without
any
substantive
improvement
in
the
financial
assurance
program.

First,
the
minimum
ratings
suggested
by
EPA
appear
to
be
arbitrary
and
lack
any
in­
depth
analysis
of
the
problem
trying
to
be
solved.
EPA
does
not
provide
any
analysis
or
data
to
show
how
the
rating
would
improve
the
program
compared
to
any
other
rating.
Any
proposal
that
restricts
the
255
use
of
a
viable
financial
assurance
instrument,
such
as
captive
insurance,
must
meet
a
threshold
test
for
necessity
or
program
integrity.
The
Institute
believes
that
EPA
has
failed
to
undertake
such
an
analysis
for
proposing
a
minimum
insurance
rating.
Rather,
EPA
appears
to
be
addressing
the
concerns
and
fears
of
regulatory
agencies
that
are
unfamiliar
with
insurance
practices
or
risk
management
methods
rather
than
any
substantive
concerns
with
the
insurance
instrument,
a
similar
mistake
found
in
the
OIG
Report.

Second,
EPA
has
failed
to
analyze
how
a
minimum
insurance
rating
may
affect
the
cost
of
insurance
to
the
regulated
community.
As
previously
stated,
market
conditions
have
tightened
for
financial
assurance
instruments.
Further
restrictions
on
the
participation
of
insurance
providers
only
serve
to
exacerbate
the
costs.
EPA
must
analyze
and
publish
for
comment
these
potential
costs
before
determining
whether
the
marginal
benefits
of
confidence
or
protection
the
minimum
ratings
may
obtain
exceeds
the
costs
or
the
potential
move
by
operators
to
riskier
instruments.

Finally,
EPA's
suggestion
regarding
a
minimum
insurance
rating
different
from
the
one
for
a
parent
company
does
not
make
sense.
If
a
lower
rating
supports
the
financial
test
for
a
parent
company,
the
same
rating
should
support
a
parent
company's
wholly
owned­
subsidiary.
If
EPA
adopts
the
recommended
set
of
minimum
criteria
for
captive
insurance
instruments,
then
the
minimum
rating
is
redundant
because
the
needed
protection
is
provided
through
the
implementation
of
the
criteria.
(
Edward
W.
Repa,
Ph.
D.,
Director,
Environmental
Programs,
National
Solid
Wastes
Management
Association,
RCRA­
2001­
0029­
0079)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions.

Comment:
Probably
the
matter
that
presents
the
most
difficulty
is
that
which
was
recently
highlighted
by
the
United
States
Office
of
Inspector
General.
Among
many
other
problems,
the
Auditor
General
has
noted
that:

When
insurance
is
the
mechanism,
a
state
program
may
be
presented
with
a
number
of
additional
complex
issues,
e.
g.,
policy
terms
and
exclusions
inconsistent
with
regulations,
potential
litigation,
late
or
missing
cancellation
notices,
and
whether
the
insurer
is
qualified
to
write
insurance
in
the
state.
Since
insurance
is
primarily
regulated
by
states,
differences
in
state
insurance
regulations
contribute
to
the
complexities
in
evaluating
insurance
policies.
As
a
result,
insurance
can
be
difficult
to
evaluate
and
monitor.
 
The
lack
of
a
standardized
insurance
policy
form
for
financial
assurance
adds
to
the
difficulty.

Evaluation
of
insurance
as
a
mechanism
involves
more
than
merely
evaluating
the
legal
effect
of
the
tendered
policy
 
a
task
that
is
usually
daunting
enough.
It
also
involves
evaluation
of
the
insurance
provider.
Since
a
closure
and
post­
closure
care
insurance
policy
 
at
least
in
theory
 
256
might
be
required
pay
out
the
full
cost
of
closure
shortly
after
becoming
effective,
companies
either
"
front
load"
the
policy
(
require
a
substantial
advance
premium
in
the
amount
of
the
present
value
of
the
total
predicted
cost
of
closure)
or
privately
contract
with
the
owner/
operator
for
a
substantial
deductible.
In
the
former
case,
the
policy
is
not
much
different
from
a
trust
fund
administered
by
an
insurance
company,
rather
than
a
bank
or
other
financial
institution.
In
the
latter
case,
the
company
gambles
on
sharing
the
risk
with
the
insured.
However,
one
of
the
reasons
that
an
insurance
company
might
be
required
to
pay
out
on
a
policy
relates
to
the
financial
inability
of
the
owner/
operator
to
pay
for
its
own
costs
of
closure
and
post­
closure
care.
Such
circumstances
might
prevent
a
company
from
being
able
to
collect
the
deductible
from
the
owner/
operator,
and
several
of
these
might
have
an
adverse
affect
upon
the
financial
ability
of
the
company
to
honor
the
terms
of
its
policies.
Accordingly,
in
addition
to
evaluating
the
terms
of
the
policy,
a
review
of
an
insurance
policy
as
a
tendered
mechanism
for
financial
assurance
ought
to
include
consideration
of
the
financial
strength
of
the
insurer.
This
is
especially
true
of
insurance
providers
that
are
not
licensed
by
the
Illinois
Department
of
Insurance
to
transact
the
business
of
insurance
in
Illinois,
but
may
nevertheless
provide
closure
insurance
for
MSWLFs
if
they
meet
the
requirements
Section
21.1(
a­
5)
of
the
Illinois
Environmental
Protection
Act
("
Act"),
415
ILCS
5/
21.1(
a­
5),
because
policies
issued
by
such
companies
are
not
subject
to
the
Illinois
Insurance
Guarantee
Fund.

While
the
financial
assurance
regulations
generally
require
an
unconditional
commitment
to
pay
the
full
costs
of
closure
and
post­
closure
care
once
the
triggering
event
for
the
obligation
has
occurred,
most
insurance
policies
are
drafted
in
such
a
way
that
their
obligation
to
pay
seems
highly
conditional.
In
order
to
determine
whether
a
particular
policy
complies
with
the
regulations,
it
should
be
subjected
to
a
full
legal
review
 
preferably
by
someone
with
experience
(
or
specifically
trained)
in
the
area
of
insurance
underwriting
or
insurance.
As
an
alternative
to
a
complex
review
of
each
tendered
policy
and,
USEPA
and
subsequently
the
Illinois
Pollution
Control
Board
should
promulgate
a
standard
closure
and
post­
closure
care
insurance
policy
that
would
be
incorporated
in
the
regulations,
with
non­
alteration
provisions,
that
any
insurance
company
wishing
to
undertake
such
business
would
have
to
adopt.

The
third
area
of
concern
has
to
do
with
company
attitude
towards
claims
management.
Different
companies
have
different
attitudes
toward
claims.
Some
companies
may
readily
pay
claims
presented
in
accordance
with
the
terms
of
their
policy,
while
others
with
similar
policy
terms
and
similar
claims
may
balk
at
settlement
and
even
require
litigation
before
paying.
There
is
no
way
to
tell
in
advance
what
attitude
will
be
encountered
upon
presentation
of
a
claim.
This
mechanism
seems
clearly
less
desirable
than
a
trust
fund,
an
irrevocable
letter
of
credit
or
a
performance
bond.

In
addition
to
the
foregoing,
use
of
captive
insurance
companies
presents
special
problems
associated
with
the
captive
being
a
wholly
owned
subsidiary
of
the
facility
owner/
operator.
Captives
are
thus
subject
to
the
same
financial
circumstances
or
conditions
as
the
owner/
operator,
and
a
failure
of
the
parent
might
well
signify
the
failure
of
the
subsidiary,
due
to
a
lack
of
diversification.
There
are
also
rarely
measures
in
place
that
would
insulate
the
captive
in
the
event
that
the
parent
files
bankruptcy.
In
addition,
since
they
are
not
full
service
insurance
companies,
257
captives
often
have
minimal
capitalization
and
reserve
obligations.
What
capitalization
they
have
is
often
stock
of
their
parent
corporation,
which
would
not
be
worth
its
stated
value
in
the
event
the
parent
experiences
financial
hardship.
Moreover,
captives
are
often
surplus­
lines
carriers
that
are
not
licensed
in
Illinois,
and
are
thus
not
subject
to
the
Illinois
Insurance
Guarantee
Fund.
Finally,
a
corporation
unable
or
unwilling
to
perform
its
closure
and
post­
closure
care
activities
in
its
capacity
as
a
facility
operator
may
be
no
more
willing
to
act
in
its
capacity
as
the
corporate
captive
insurer.
A
"
good"
captive
policy
may
be
no
more
effective
than
a
mere
promise
by
the
parent
to
comply.
As
financial
assurance
this
amounts
to
mere
form
without
substance.
(
William
C.
Child,
Chief,
Bureau
of
Land,
Illinois
EPA,
RCRA­
2001­
0029­
0080)

Response:
This
final
rule
does
not
include
a
policy
or
regulatory
provisions
related
to
the
use
of
captive
insurance
or
minimum
ratings
for
insurers.
The
Agency
continues
to
explore
these
issues,
and
has
requested
that
an
Agency
federal
advisory
committee,
the
Environmental
Financial
Advisory
Board
provide
input
on
these
questions,
and
on
the
use
of
insurance
for
demonstrating
financial
assurance
under
the
RCRA
regulations.

66.
Executive
Order
12866:
Description
of
potential
benefits
of
this
rule
(
XII.
A.
1.
b)

Comment:
We
foresee
no
other
benefits
besides
those
outlined
in
the
preamble
to
the
proposed
rule.
(
Missouri
Department
of
Natural
Resources,
RCRA­
2001­
0029­
0065)

Response:
Thank
you
for
your
comment.

Comment:
Comments
on
the
Economic
Analysis
According
to
EPA's
own
economic
analysis,
the
standardized
permit
rule
will
have
a
very
small
economic
benefit
of
only
$
100
to
$
5800
per
permit
action.
This
amount
is
based
entirely
on
administrative
time
savings
of
2
to
140
hours
per
permit
action.
The
total
estimated
national
savings
is
reported
to
be
$
380,000
to
$
530,000
a
year,
barely
the
cost
of
one
commercial
incinerator
trial
burn
or
risk
assessment.
Such
an
insignificant
impact
does
not
justify
the
standardized
permit
process.
The
savings
come
primarily
from
eliminating
the
review
process
by
the
Agency
with
written
Notices
of
Deficiencies
and
responses
by
the
permit
applicant,
as
well
as
from
eliminating
the
preparation
of
a
closure
plan
prior
to
permit
issuance.
Such
small
savings
do
not
justify
the
elimination
of
these
vital
steps
in
the
permitting
process.

A
review
of
the
Economics
Background
Document
to
this
proposed
rule
indicates
that
even
these
purported
cost
savings
are
highly
overestimated.
See
Estimate
of
Potential
National
Cost
Savings
for
the
Industrial
Hazardous
Waste
"
Standardized"
RCRA
Permit
Proposal,
EPA
Office
of
Solid
Waste
(
May
3,
2000).
This
is
due
to
the
following
5
major
points:
258
°
State
permit
fees
are
not
accounted
for
in
the
analysis.

°
There
are
no
savings
associated
with
eliminating
the
closure
plan
in
the
application.

°
Permit
renewal
applications
are
assumed
to
be
of
equal
time
demand
as
new
permit
applications.

°
The
analysis
assumes
200
permit
actions
per
year,
when
historically
Table
5
of
the
Economic
Background
Document
indicates
an
average
of
105
actions
per
year.

°
The
relaxation
of
permitting
requirements
may
encourage
more
generators
to
apply
for
standardized
storage
permits.
The
Economic
Analysis
did
not
consider
any
increase
in
preparation
of
standardized
permits
and
the
impact
this
would
have
on
costs.

Each
of
these
points
is
evaluated
in
the
following
sections.

1.
State
Permit
Fees
Are
Not
Accounted
For
The
Economics
Background
Document
states
that
76%
of
the
savings
will
be
realized
by
the
state
or
Federal
permitting
authority.
Yet
there
is
no
allowance
or
adjustment
made
for
state
permitting
fees.
Many
states
have
permitting
fees
in
place
to
help
cover
permitting
costs.
These
fees
often
exceed
the
maximum
reported
savings
of
$
5800
per
permit
action.
Since
most
of
the
savings
are
associated
with
eliminating
review
and
preparation
of
NODs
by
the
state,
and
since
state
permit
fees
cover
this
cost
already,
then
there
really
are
no
net
savings.
The
impact
of
permit
fees
should
be
accounted
for
in
the
economic
analysis.

Almost
all
of
the
states
in
which
ETC
members
operate
have
permit
fees,
and
most
of
the
heavily
industrialized
states,
where
generators
are
located,
have
permit
fees
as
well.
If
we
assume
that
half
the
states
have
permit
fees,
then
the
economic
benefit
needs
to
be
reduced
by
35%
(
one
half
of
the
76%
savings
attributed
to
government
administrative
costs).
This
would
make
the
total
national
savings
closer
to
$
235,600
to
$
328,600
per
year.

2.
No
Savings
Associated
With
Elimination
of
the
Closure
Plan
at
the
Time
of
Permit
Application
The
economic
analysis
should
not
consider
savings
related
to
elimination
of
a
closure
plan
because
preparation
and
submission
of
the
plan
would
simply
be
postponed,
not
eliminated.
At
some
point
in
the
future,
prior
to
closing,
a
closure
plan
will
still
be
required.
The
permit
authority
will
still
need
to
invest
the
technical
effort
at
a
point
in
time
when
costs
will
be
higher.
Therefore,
there
really
are
no
net
savings.
In
fact,
there
are
actually
cost
increases
associated
with
the
standardized
permit
approach
because
applicants
still
need
to
prepare
some
estimate
of
closure
costs
for
their
files.
Then
in
addition,
at
the
time
of
closure,
the
plan
needs
to
be
prepared,
submitted,
and
reviewed.
There
may
actually
be
more
costs
associated
with
trying
to
reconcile
previous
estimates
259
made
at
the
time
of
permit
application
with
the
estimates
needed
at
the
time
of
closure,
particularly
if
the
permit
application
costs
are
based
on
Options
4
or
5
discussed
in
the
proposed
rule.
Another
key
consideration
is
that
the
administrative
costs
to
the
government
will
be
higher
since
it
is
easier
to
review
a
closure
plan
submitted
simultaneously
with
the
permit
application,
because
all
of
the
engineering
detail
is
together.
In
contrast,
a
postponed
closure
plan
submitted
separately
from
the
application
will
require
more
research,
site
visits
and
file
review
by
the
government.

For
the
purposes
of
this
evaluation
it
is
assumed
that
the
closure
cost
savings
should
be
ignored,
even
though
a
case
can
be
made
that
they
will
be
higher.
Table
8
of
the
Economics
Background
Document
indicates
that
the
assumed
hours
saved
related
to
closure
plan
postponement
amount
to
19
hours
out
of
the
total
of
120
hours
saved
per
permit
action.
This
amounts
to
16%
of
the
cost
savings.
Eliminating
another
16%
of
costs
savings
brings
the
total
cost
savings
down
another
$
60,800
to
$
84,800
for
a
total
net
range
of
$
174,800
to
$
243,800
savings
(
including
adjustments
from
section
1
above).

3.
Permit
Renewal
Applications
Should
Not
Be
Considered
as
Costly
as
New
Permit
Applications
It
is
clear
from
Table
9
of
the
Economics
Background
Document
at
page
30
that
EPA
assumed
that
the
hours
of
preparation
and
review
of
a
renewal
application
are
of
equal
magnitude
to
a
new
permit
application.
This
is
simply
not
true
for
a
basic
on­
site
storage
unit.
A
more
realistic
estimate
would
be
to
assume
that
permit
renewals
require
about
half
of
the
hours
that
a
new
permit
application
requires.
Based
on
this
assumption,
total
permit
hours
saved
would
be
reduced
by
16%,
using
the
data
presented
in
Table
9.
Adjusting
the
savings
for
this
16%
reduced
time
required
for
renewal
applications
results
in
a
reduction
in
the
cost
savings
by
another
increment
of
$
60,800
to
$
84,800.
This
makes
the
net
adjusted
cost
savings
of
the
standardized
permit
rule
in
the
range
of
$
114,000
to
$
159,000
per
year
(
including
adjustments
from
Sections
1
and
2
above).

4.
The
Calculations
in
the
Economics
Background
Documents
are
Based
on
200
Permit
Actions
per
Year
Instead
of
the
Actual
Rate
of
105
Actions
Per
Year
Table
11
of
the
Economics
Background
Document
at
page
31
indicates
that
the
cost
savings
are
based
on
200
Permit
Actions
per
year.
Yet
the
historical
analysis
presented
in
Table
5
of
the
same
document
indicates
a
recent
permit
action
rate
of
105
per
year.
Therefore,
the
savings
should
be
reduced
to
correspond
to
this
actual
rate
of
105
actions
per
year.
Adjusting
the
savings
in
Section
3
above
by
a
ratio
of
105/
200
results
in
a
reduced
savings
of
$
59,850
to
$
83,475.

5.
No
Costs
Assumed
for
A
Rise
in
Permit
Applications
The
Economics
Background
Document
does
not
consider
that
the
standardized
permit
rule
will
encourage
more
generators
to
apply
for
storage
permits.
If
more
permit
actions
result,
this
will
actually
increase
costs,
and
further
reduce
the
meager
net
savings
estimated
in
Section
4
above.
In
fact,
the
standardized
permit
could
encourage
such
a
large
number
storage
permits
that
there
may
260
likely
be
a
net
increase
in
costs
to
government
agencies,
with
a
higher
number
of
permit
actions
required.
These
costs
are
not
evaluated
or
considered
in
EPA's
analysis.

Overall
Conclusions
on
Economics
Based
on
the
above
critique
of
the
Economics
Background
Document,
the
true
nationwide
savings
of
the
Standardized
Permit
Rule
is
at
most
$
83,475
per
year.
Such
a
meager
savings
does
not
justify
the
standardized
permit
process.
These
savings
are
simply
not
worth
it
since
they
essentially
come
from
shortcutting
two
portions
of
the
permit
process:
elimination
of
closure
plans
and
the
elimination
of
government
review
with
written
comments
on
the
permit
application
and
responses
by
the
applicant.
This
shortcutting
of
the
permitting
process
eliminates
quality
assurance
of
the
application
and
the
checks
and
balances
built
into
the
current
permitting
process,
and
also
reduces
public
participation.
All
of
these
shortcuts
are
not
justified
to
save
nationwide
costs
of
only
$
83,475,
or
just
22
hours
per
permit
action.
Considering
further
that
most
states
are
covering
their
costs
with
permit
fees,
there
is
no
economic
justification
for
this
rule.
Finally,
the
rule
will
more
likely
result
in
increased
nationwide
costs
because
the
standardized
permit
will
encourage
more
permit
actions.

In
view
of
this
analysis,
the
ETC
again
urges
the
Agency
to
withdraw
the
proposed
standardized
permit
rule
and
develop
a
broader
proposal
that
would
provide
a
more
streamlined
and
efficient
process,
without
sacrificing
environmental
protection
or
public
participation,
for
all
RCRA
permits.
(
David
R.
Case,
Executive
Director,
Environmental
Technology
Council,
RCRA­
2001­
0029­
0071)

Response:

1.
EPA
revised
the
burden
reduction
estimation
methodology
in
the
economic
analysis
by:
(
a)
applying
a
burden
multiplier
to
increase
the
baseline
burden
associated
with
submitting/
reviewing
the
Part
B
application,
to
compensate
for
the
fact
that
the
burden
estimates
in
the
initial
economic
analysis
(
which
were
based
on
"
Supporting
Statement"
burden
hour
data
for
Information
Collection
Request
(
ICR)
Nr.
1573
and
Nr.
1935.01),
did
not
reflect
multiple
"
back­
and­
forth"
burden
between
submitter
and
agency
reviewers,
and
(
b)
implemented
a
second
alternative
burden
reduction
estimation
methodology
based
on
an
alternative
data
source
("
Method
A").
Consequently,
the
burden
hour
reduction
savings
(
to
facilities
+
authorities
combined)
in
the
final
rule
economic
analysis
is
modified
to
$
6,400
to
$
32,100
per
permit
action
(
under
the
new
"
Method
A"),
and
$
100
to
$
20,800
under
the
modified
initial
method
("
Method
B"),
which
represents
an
overall
paperwork
burden
savings
range
of
$
100
to
$
32,100
per
permit
action.
The
modified
estimate
of
combined
burden
hour
reduction
is
2
to
480
hours
per
permit
action,
which
represent
reductions
of
4%
to
40%
in
traditional
permit
burden
baseline.
The
modified
estimate
of
national
cost
savings
associated
with
annual
burden
reduction
is
$
1.34
million
to
$
2.72
million.
These
estimates
represent
substantive
potential
savings
in
paperwork
burden
on
a
per­
action
and
on
an
aggregate
basis.
Most
of
the
burden
reduction
savings
is
from
elimination
of
the
"
back­
and­
forth"
submittal
and
review
of
the
Part
B
application.
Under
the
final
rule,
submittal
of
a
closure
plan
is
261
required
with
the
Notice
of
Intent
to
apply
for
a
standardized
permit.
Furthermore,
the
rationale
for
limiting
standardized
permits
to
tanks,
containers,
and
containment
buildings
is
that
(
a)
these
three
types
of
waste
management
units
are
normally
"
off­
the­
shelf"
standardized
design
and
simpler
to
design,
construct
and
manage,
and
(
b)
only
units
that
can
be
clean­
closed
are
eligible
(
which
obviates
Part
B
permit
post­
closure
planning),
both
considerations
diminish
the
rationale
for
review
of
detailed
Part
B
technical
information
about
such
units.

2.
State
fees:
This
impact
element
is
included
in
the
final
rule
economic
analysis,
which
estimates
a
$
12.7
to
$
15.4
million/
year
potential
future
reduction
in
payment
of
state
hazardous
waste
management
fees.
This
impact
element
is
a
"
transfer
payment"
effect
rather
than
a
"
real
resource"
economic
effect.
Closure
plan:
The
final
rule
requires
submittal
of
a
closure
plan
with
Notice
of
Intent
to
apply
for
a
standardized
permit.
Renewals:
The
baseline
burden
and
incremental
change
in
burden
associate
with
permit
renewal
actions
is
modified
in
the
final
rule
economic
analysis,
according
to
the
new
data
source
applied
as
estimation
"
Method
A"
which
provides
a
unique
estimate
for
permit
renewals,
and
according
to
a
unique
estimate
for
permit
renewals
derived
from
the
ICR
reference
data,
collected
and
applied
as
estimation
"
Method
B".
Actions/
year:
The
3­
year
historical
data
trend
of
105
permit
determinations/
year
does
not
include
(
a)
induced
conversions
of
traditional
permits
to
standardized
permits,
or
(
b)
renewals
occurring
after
10­
year
permit
expiration;
in
comparison,
the
10­
year
historical
data
show
125
average
annual
permit
actions.
The
final
rule
economic
analysis
basically
assumes
135
average
annual
permit
actions
(
for
n=
866
eligible
facility
universe),
escalated
10­
years
out
into
the
future
by
renewal
of
the
converted
permits,
resulting
in
166
future
average
annual
permit
actions
over
the
30­
year
future
period
applied
as
a
framework
in
the
economic
analysis.
To
reflect
uncertainty,
this
assumption
is
subject
to
a
sensitivity
analysis
of
­
2.9%
to
+
2.9%
future
annual
changes
in
permit
activities.
Induced
actions:
The
economic
analysis
applies
a
+
2.9%
future
annual
increase
in
permit
activities
to
reflect
the
possibility
that
the
rule
may
induce
additional
new
applications
beyond
the
expected
future
trend
relative
to
historical
baseline.
Although
this
represents
a
potential
induced
increase
in
annual
permitting
burden
to
authorities,
the
net
national
economic
effect
includes
the
potential
positive
impact
of
new
entrants
on:
(
a)
reducing
the
paperwork
cost
of
future
permit
renewals/
modifications;
(
b)
improving
market
competition
in
the
waste
management
industry
thereby
potentially
lowering
prices
for
services,
(
c)
expediting
improvement
in
waste
management
equipment
performance
by
induced
replacements/
modifications
to
existing
equipment,
and
(
d)
decreasing
overall
waste
transportation
costs
to
waste
management
facilities
by
possible
addition
of
more
locations
across
the
nation,
thereby
reducing
waste
transportation
distances.
The
final
rule
economic
analysis
provides
a
brief
qualitative
discussion
of
this
potential
net
economic
effect
as
being
positive
on
the
national
economy
and
US
waste
management
industry.

3.
The
economic
analysis
attempts
to
provide
an
estimate
of
"
real
resource"
impact
on
the
economy,
rather
than
"
transfer
payment"
effects.
Rather
than
76%,
the
modifications
to
the
burden
hour
estimation
methodology
resulted
in
estimates
of
6%
("
Method
A")
and
of
65%
262
("
Method
B")
of
paperwork
burden
cost
reduction
accruing
to
state
permitting
authorities.
Furthermore,
the
final
rule
economic
analysis
provides
an
estimate
of
$
12.7
million
to
$
15.4
million/
year
in
potential
impact
on
state
fees
paid
(
collected)
for
hazardous
waste
permitting.

4.
This
cost
savings
element
is
dropped
from
the
final
rule
economic
analysis,
because
the
final
rule
requires
preparation
and
submittal
of
a
closure
plan
with
a
Notice
of
Intent
to
apply
for
a
standardized
permit.

5.
The
baseline
burden
and
incremental
change
in
burden
associate
with
permit
renewal
actions
is
modified
in
the
final
rule
economic
analysis,
according
to
the
new
data
source
applied
as
estimation
"
Method
A"
which
provides
a
unique
estimate
for
permit
renewals,
and
according
to
a
unique
estimate
for
permit
renewals
derived
from
the
ICR
reference
data,
collected
and
applied
as
estimation
"
Method
B"

6.
The
3­
year
historical
data
trend
of
105
permit
determinations/
year
does
not
include
(
a)
induced
conversions
of
traditional
permits
to
standardized
permits,
or
(
b)
renewals
occurring
after
10­
year
permit
expiration;
in
comparison,
the
10­
year
historical
data
show
125
average
annual
permit
actions.
The
final
rule
economic
analysis
basically
assumes
135
average
annual
permit
actions
(
for
n=
866
eligible
facility
universe),
escalated
10­
years
out
into
the
future
by
renewal
of
the
converted
permits,
resulting
in
166
future
average
annual
permit
actions
over
the
30­
year
future
period
applied
as
a
framework
in
the
economic
analysis.
To
reflect
uncertainty,
this
assumption
is
subject
to
a
sensitivity
analysis
of
­
2.9%
to
+
2.9%
future
annual
changes
in
permit
activities.

7.
The
economic
analysis
applies
a
+
2.9%
future
annual
increase
in
permit
activities
to
reflect
the
possibility
that
the
rule
may
induce
additional
new
applications
beyond
the
expected
future
trend
relative
to
historical
baseline.
Although
this
represents
a
potential
induced
increase
in
annual
permitting
burden
to
authorities,
the
net
national
economic
effect
includes
the
potential
positive
impact
of
new
entrants
on:
(
a)
reducing
the
paperwork
cost
of
future
permit
renewals/
modifications;
(
b)
improving
market
competition
in
the
waste
management
industry
thereby
potentially
lowering
prices
for
services,
(
c)
expediting
improvement
in
waste
management
equipment
performance
by
induced
replacements/
modifications
to
existing
equipment,
and
(
d)
decreasing
overall
waste
transportation
costs
to
waste
management
facilities
by
possible
addition
of
more
locations
across
the
nation,
thereby
reducing
waste
transportation
distances.
The
final
rule
economic
analysis
provides
a
brief
qualitative
discussion
of
this
potential
net
economic
effect
as
being
positive
on
the
national
economy
and
US
waste
management
industry.

8.
The
modified
estimate
of
net
national
economic
impact
for
all
incremental
features
of
the
final
rule
is
$
2.8
million/
year
(
i.
e.,
burden
reduction
+
changes
to
financial
assurance
requirements
+
added
cost
for
site
audit
certification
+
improved
financial
return
on
waste
management
capital
assets).
Furthermore,
the
final
rule
is
expected
to
decrease
state
permitting
fee
payments
by
$
12.7
million
to
$
15.4
million/
year
associated
with
the
reduction
in
paperwork
burden
to
state
authorities
(
a
"
transfer
payment"
effect).
These
estimates
represent
substantive
potential
savings
in
263
paperwork
burden
on
a
per­
action,
as
well
as
aggregate
national
economic
effects.
Most
of
the
burden
reduction
savings
is
from
elimination
of
the
"
back­
and­
forth"
submittal
and
review
of
the
Part
B
application.
Under
the
final
rule,
submittal
of
a
closure
plan
is
required
with
the
Notice
of
Intent
to
apply
for
a
standardized
permit.
