2 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 124, 260, 267, and 270 [ RCRA 2001 0029; FRL ] ( RAN 2050 AE44) Hazardous Waste Management System; Standardized Permit for RCRA Hazardous Waste Management Facilities AGENCY: Environmental Protection Agency.

ACTION: Final Rule SUMMARY: The Environmental Protection Agency ( EPA) is finalizing revisions to the RCRA hazardous waste permitting program, originally proposed on October 12, 2001, to allow for a " standardized permit." The standardized permit will be available to RCRA treatment, storage,

and disposal facilities ( TSDs) otherwise subject to RCRA permitting that generate and then store or non thermally treat hazardous waste on site in tanks, containers, and containment buildings.

The standardized permit will also be available to facilities which receive hazardous waste generated off site by a generator under the same ownership as the receiving facility, and which then store or non thermally treat the hazardous waste in containers, tanks, or containment buildings. The standardized permit will streamline the permitting process by allowing facilities to obtain and modify permits more easily, while still achieving the same level of environmental protection as individual permits.

This rule finalizes the proposal, with changes based on public comments. In the preamble to proposed rule, the Agency also requested comments on other permitting related topics including: how cleanups under non RCRA state cleanup programs might be reflected in RCRA permits; the conclusions about captive insurance in a March, 2001 report by EPA's Inspector General; and whether insurers that provide financial assurance for hazardous waste and PCB facilities have a minimum rating from commercial rating services. The Agency is not taking action at this point on these questions.

DATES: This rule is effective on [ Insert date 30 days after publication in the Federal Register.]

ADDRESSES: 3 EPA has established a docket for this action under Docket ID No. RCRA 2001 0029. All documents in the docket are listed in the DOCKET index at http:// www. epa. gov/ edocket.

Although listed in the index, some information is not publicly available, i. e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form.

Publicly available docket materials are available either electronically in DOCKET or in hard copy at the Resource Conservation and Recovery Act ( RCRA) Docket, EPA/ DC, EPA West, Room B102, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8: 30 a. m. to 4: 30 p. m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is ( 202) 566 1744, and the telephone number for the RCRA Docket is ( 202) 566 0270 FOR FURTHER INFORMATION CONTACT:

Jeff Gaines, Permits and State Programs Division, Office of Solid Waste, Mail Code 5303W, Environmental Protection Agency , 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703 308 8655; fax number: 703 308 8609; e mail address:

gaines. jeff@ epa. gov.

SUPPLEMENTARY INFORMATION:

How Can I Get Copies Of The Standardized Permit Rule and Other Related Information ?

1. Docket. EPA has established an official public docket for this action under Docket ID No.

RCRA 2001 0029. The official public docket is the collection of materials specifically referenced in this action, any public comments received, and other information related to this action.

Although a part of the official docket, the public docket does not include Confidential Business Information ( CBI) or other information whose disclosure is restricted by statute. The official public docket is available for public viewing at the RCRA Information Center in the EPA Docket Center, ( EPA/ DC) EPA West, Room B102, 1301 Constitution Ave., NW, Washington, DC. The 4 EPA Docket Center Public Reading Room is open from 8: 30 a. m. to 4: 30 p. m., Monday through Friday, excluding legal holidays.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the " Federal Register" listings at http:// www. epa. gov/ fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http:// www. epa. gov/ edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified above.

Once in the system, select " search," then key in the appropriate docket identification number.

The official record for this action will be kept in paper form. Accordingly, we will transfer all comments received electronically into paper form and place them in the official record, which will also include all comments submitted directly in writing. The official record is the paper record maintained at the RCRA Information Center.

Our responses to comments, whether the comments are written or electronic, appear in a response to comments document that we will place in the official record for this rulemaking.

Acronyms used in today' preamble are listed below:

APA: Administrative Procedures Act EA. B: Environmental Appeals Board EPA: Environmental Protection Agency CAMU: Corrective Action Management Unit CFR: Code of Federal Regulations EO: Executive Order FR: Federal Regulations HSWA: Hazardous and Solid Waste Amendments MOU: Memorandum of Understanding 5 MSWLF: Municipal Solid Waste Landfill Facilities NAICS: North American Industry Classification System NPDES: National Pollution Discharge Elimination System NTTAA: National Technology Transfer and Advancement Act OMB: Office of Management and Budget PIT: Permit Improvement Team PPE: Personal Protection Equipment RCRA: Resource Conservation and Recovery Act RFA: RCRA Facility Assessment SIC: Standard Industrial Classification SBREFA: Small Business Regulatory Enforcement Fairness Act SWMU: Solid Waste Management Unit TSD: Treatment Storage and Disposal ( facility)

UMRA: Unfunded Mandates Reform Act The contents of today's preamble are listed in the following outline:

I. Authority II. Overview and Background A. Background B. Overview 1. Effect of Today's Rule 2. What Is Being Finalized in Today's Rule C. What Is a Standardized Permit?

D. Who Is Eligible for a Standardized Permit?

E. Other General Comments on the Standardized Permit Rule F. Should a Standard Form Be Developed for Preparing the Required Part B Information?

G. Should the Current Provisions for Final Issuance of an Individual Permit Apply to Standardized Permits?

III. Section by Section Analysis and Response to Comments for the 40 CFR Part 124 Requirements Related to the Standardized Permit Rule 6 A. Applying for a Standardized Permit 1. How Do I Apply for a Standardized Permit?

a. Conduct a Pre application Meeting b. Submit a Notice of Intent to Operate under the Standardized Permit along with Appropriate Supporting Documents 2. How Do I Switch from an Individual Permit to a Standardized Permit?

B. Issuing a Standardized Permit 1. How Does the Regulatory Agency Prepare a Draft Standardized Permit?

a. Drafting Terms and Conditions for the Supplemental Portion b. Denying Coverage under the Standardized Permit c. Preparing the Draft Permit Decision.

2. How Does the Regulatory Agency Prepare a Final Standardized Permit?

C. Public Involvement in the Standardized Permit Process 1. Requirements for Public Notices 2. Opportunities for Public Comments and Hearings 3. Responding to Comments 4. May I, as an Interested Party, Appeal a Final Permit Decision?

D. Maintaining a Standardized Permit 1. What Types of Changes Can Owners or Operators Make?

2. What Are the Definitions of Routine, Routine with Prior Agency Approval, and Significant Changes and What Are the Requirements for Making Those Changes?

a. Routine Changes b. Routine Changes with Prior Agency Approval c. Significant Changes 3. How Do I Renew a Standardized Permit?

IV. Section by Section Analysis and Response to Comments for the 40 CFR Part 267 Requirements Related to the Standardized Permit Rule A. Overview B. Subpart A  General 1. Purpose, Scope, and Applicability 7 2. Relationship to Interim Status Standards 3. Imminent Hazard Action C. Subpart B  General Facility Standards 1. Applicability.

2. How Do I Comply with this Subpart?

3. How Do I Obtain an EPA Identification Number?

4. What Are the Waste Analysis Requirements?

5. What Are the Security Requirements?

6. What Are the Inspection Schedule Requirements?

7. What Are the Training Requirements?

8. What Are the Requirements for Managing Ignitable, Reactive, or Incompatible Waste?

9. What Are the Location Standards?

D. Subpart C  Preparedness and Prevention 1. What Are the Design and Operation Standards?

2. What Equipment Must I Have?

3. What Are the Testing and Maintenance Requirements for Equipment?

4. What Are the Requirements for Access to Communication Equipment or an Alarm System?

5. What Are the Requirements for Access for Personnel and Equipment During Emergencies?

6. What Are the Requirements for Arrangements with Local Authorities for Emergencies?

E. Subpart D  Contingency Plans and Emergency Procedures F. Subpart E  Record Keeping, Reporting, and Notifying G. Subpart F  Releases from Solid Waste Management Units H. Subpart G  Closure 1. Does this Subpart Apply to Me? 8 2. What General Standards Must I Meet When I Stop Operating the Unit?

3. What Procedures Must I Follow?

4. Will the Public Have the Opportunity to Comment on the Plan?

5. What Happens If the Plan Is Not Approved?

6. After I Stop Operating, How Long Do I Have Until I Must Close?

7. What Must I Do With Contaminated Equipment, Structures, and Soils?

8. How Do I Certify Closure?

I. Subpart H  Financial Requirements 1. Who Has to Comply with this Subpart and Briefly What Must They Do?

2. Definitions 3. Closure Cost Estimates 4. Financial Assurance for Closure 5. Post Closure Financial Responsibility 6. Liability Requirements 7. Other Provisions of the Financial Requirements J. Subpart I  Use and Management of Containers K. Subpart J  Use and Management of Tanks 1. Does this Subpart Apply to Me?

2. What Are the Required Design and Construction Standards for New Tank Systems or Components?

3. What Handling and Inspection Procedures Must I Follow During Installation of New Tank Systems?

4. What Testing Must I Do for New Tank Systems?

5. What Installation Requirements Must I Follow?

6. What Are the Secondary Containment Requirements?

7. What Are the Required Devices for Secondary Containment and What Are Their Design, Operating, and Installation Requirements?

8. What Are the Requirements for Ancillary Equipment? 9 9. What Are the General Operating Requirements for a Tank System?

10. What Inspection Requirements Must I Meet?

11. What Must I Do in Case of a Leak or Spill?

12. What Must I Do When I Stop Operating the Tank System?

13. What Special Requirements Must I Meet for Ignitable or Reactive Wastes?

14. What Special Requirements Must I Meet for Incompatible Wastes?

15. What Air Emission Standards Apply?

L. Subpart DD  Use and Management of Containment Buildings V. Section by Section Analysis and Response to Comments for the 40 CFR Part 270 Requirements Related to the Standardized Permit Rule A. Specific Changes to Part 270 1. Purpose and Scope 2. Definitions 3. Permit Applications 4. Permit Re application 5. Transfer of Permits 6. Continuation of Expiring Permits 7. Standardized Permits B. Standardized Permits 1. General Information about Standardized Permits a. What Is a RCRA Standardized Permit?

b. Who Is Eligible for a Standardized Permit?

c. What Requirements of Part 270 Apply to a Standardized Permit?

2. Applying for a Standardized Permit a. How Do I Apply for a Standardized Permit?

b. What Information Must I Submit to the Permitting Agency to Support My Standardized Permit?

3. What Information Must I Keep at the Facility?

a. Section 270.290( bd) 10 b. Section 270.290( dm)

c. Section 270.290( m)

VI. State Authorization A. Applicability of the Rule in Authorized States B. Effect of State Authorization VII. Regulatory Assessments A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution,

or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations VIII. List of References IX. List of Subjects 1The Agency also took comment on other permitting related topics, including how facilities can satisfy corrective action through alternate cleanup programs, and issues related to financial assurance. The Agency is deferring action on those portions of the proposal.

11 I. Authority The Environmental Protection Agency is promulgating these regulations under the authority of sections 1003, 2002( a), 3004, 3005, 3006, 3007, and 3010 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 ( RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 ( HSWA), 42 U. S. C. 6902, 6912( a), 6924 6926, and 6930.

II. Overview and Background A. Background On October 12, 2001, we proposed revisions to the RCRA Hazardous Waste permitting program to allow for a " standardized permit" for RCRA TSDs that are otherwise subject to permitting and that generate and then store and/ or non thermally treat hazardous waste on site in tanks, containers, and containment buildings. In the proposal, we also requested comment on expanding the scope of the rule, e. g., to all off site facilities, to facilities who centralize their waste management operations, or to recyclers. The proposal laid out a streamlined approach to the permitting process, anticipating savings to both the regulatory authority and the permit applicant, while still providing protection to human health and the environment. Today's final rule adopts that proposal with some changes based on comments. 1 B. Overview This final rule describes the standardized permit, who is eligible for the permit, how facilities apply for the permit, how to make changes to the permit, and what the responsibilities are for the regulatory authority in reviewing and issuing the permit. 12 1. Effect of Today's Rule Today's action potentially affects about 86670 to 1,230130 private sector and federal facilities that ( a) generate and then store and / or non thermally treat hazardous wastes on site in tanks, containers, and/ or containment buildings; and ( b) which receive hazardous waste generated off site by a generator that is under the same ownership as the receiving facility, and then store or non thermally treat the hazardous waste in containers, tanks, or containment buildings. We estimate that these three types of eligible units represent 50% prevalence of the eleven major types of hazardous waste management units. Table 1 below identifies the economic sectors and associated counts of RCRA hazardous waste management units and facilities likely to be affected by this action. It is possible that other types of entities not identified in the Table could also be impacted; however the rule only affects three types of waste units. To determine whether you may be impacted, you should carefully examine the applicability section of the rule. 13 Table 1.  Identity of Economic Sectors Which Own & Operate Facilities Potentially Affected by this RuleRule*

SIC code Economic Sector NAICS code Count of Facilities With Potentially Affected Hazardous Waste Management Units ( Note: low end represents " on site" only,

and high end represents on site + off site units)

Waste Containers Waste Tank Systems* Waste Containment Buildings 0 Agriculture, Forestry & Fisheries 11 21 to 30 12 to 17 0 1 Mining, Oil/ Gas & Construction 21, 23 26 to 37 16 to 23 0 2 Manufacturing ( Food, Textile/ Apparel, Lumber/

Wood, Furniture/ Fixtures, Paper, Printing/

Publishing, Chemicals & Allied Products,

Petroleum/ Coal) 31 33, 511 427 to 606 313 to 445 5 to 7 3 Manufacturing ( Rubber/ Plastic, Leather, Stone/

Clay/ Glass, Primary Metals, Fabricated Metals,

Industrial Machinery, Electronics, Transportation Equipment, Instruments, & Misc. Mfg) 31 33 285 to 405 136 to 193 17 to 24 4 Transport, Communication, Utilities 22, 48, 49, 513, 562 272 to 386 201 to 285 10 to 14 5 Wholesale & Retail Trade 42, 44, 45 175 to 249 132 to 187 3 to 4 6 Finance, Insurance & Real Estate 52, 53 5 to 7 2 to 3 0 7 Services ( Hotels, Personal, Automotive, Repair,

Motion Pictures, & Recreation) 71, 72, 512, 514, 811,

812 221 to 314 183 to 260 2 to 3 8 Services ( Health, Legal, Social, Museums/

Gardens, Membership Organizations &

Engineering Mgt.) 54, 55, 561, 61, 62,

813, 814 90 to 128 38 to 54 0 9 Public Administration, Environment & Not Elsewhere Classified 92 200 to 284 85 to 121 4 to 6 Non duplicative column totals** = 800 to 1,136 623 to 885 22 to 31 Non duplicative total for three waste unit types = 866 to 1,230133 facilities Explanatory Notes:

( a) SIC = " Standard Industrial Classification" system.

( b) NAICS = " North American Industry Classification System", adopted by the US Federal Government in 1997,

replacing the SIC code system ( for SIC/ NAICS conversion tables see http:// www. census. gov/ epcd/ www/ naics. html).

( c) * Only above ground hazardous waste tanks are potentially eligible, not in ground or underground tanks.

( d) ** Some facilities report multiple SIC and NAICS codes for their operations to the EPA; consequently both the facility and unit total counts in this table exceed the non duplicative total numbers of facilities shown in the bottom row above. 14 15 2. What is Being Finalized in Today's Rule?

We are finalizing revisions to the hazardous waste permitting program to allow for issuance of a RCRA standardized permit for RCRA TSDs that are otherwise subject to RCRA permitting and that generate hazardous waste, and then store and/ or non thermally treat that waste on site in tanks, containers, and/ or containment buildings. The standardized permit will also be available to facilities that receive hazardous waste generated from off site, as long as the off site generator that sends the waste is under the same ownership as the receiving facility, and then stores or non thermally treats the hazardous waste in containers, tanks, or containment buildings. Throughout the remainder of this preamble, the term " manage" and " management" will be used to mean storage or non thermal treatment, unless otherwise noted. The specific provisions being finalized in today's rule are discussed in Sections III, IV, and V of this preamble.

In this final rule, some changes have been made from what was proposed. Some of those changes include: requiring the submission of the closure plan with the Notice of Intent, rather than 180 days prior to closure; adding a third category for making changes to permits ( modifications); allowing for a 180  day extension to completing closure; and allowing a 120

day30 day extension for agency review of the Notice of Intent materials.

We are also requiring that off site facilities, that are eligible for the standardized permit, must submit a waste analysis plan with their Notice of Intent.

C. What is a Standardized Permit?

A standardized permit is a special kind of permit that would be available for certain facilities that manage hazardous waste in tanks, containers, and containment buildings. The permit consists of two parts: a uniform portion included in all cases, and a supplemental portion included at EPA's or the State permitting authority's discretion. ( See Section I. C. 1 of the proposed rule at 66 FR 52195 for a more detailed discussion regarding the two parts of the permit.) The part 267 requirements being finalized today provide the basis for the uniform portion of the permit. The supplemental portion includes additional provisions deemed necessary to be protective of human health and the environment, including any corrective action, and would be based on site specific factors at the facility.

D. Who is Eligible For a Standardized Permit? 16 Throughout this preamble, we use the terms on site and off site in reference to facilities managing hazardous waste. When we use the term off site, we use it to help describe where the waste is being managed. For example, if facility " A" generates a waste and then sends the waste to facility " B" for treatment, storage or disposal, the waste is being managed off site. Wastes that are generated at one facility, and then are sent to another facility, may not be managed under a standardized permit. To be managed under a standardized permit, the wastes must be managed at the same facility where they were generated.

Owners and/ or operators of TSDs that are otherwise subject to permitting and that generate hazardous waste and then manage the waste on site in tanks, containers, or containment buildings are In the final rule, two types of facilities will be eligible for a standardized permit. To be eligible, a facility must:

( 1) generate hazardous waste and then store or non thermally treat the hazardous waste on site in containers, tanks, or containment buildings, or ( 2) receive hazardous waste generated from 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.

In the proposed rule, we limited the applicability of the standardized permit to those facilities that manage hazardous waste on site. However, we also requested comment on whether we should extend eligibility to facilities managing wastes generated off site ( commercials,

recyclers, and captives). A number of commenters argued that we should extend eligibility to offsite facilities suggesting that commercial facilities are better prepared and equipped to conduct waste storage ( since they were specifically in the hazardous waste management business), that the rule would provide flexibility for facilities in accepting a variety of waste streams, and would benefit facilities and states by reducing costs.

On the other hand, other commenters, particularly States, believed that the standardized permit should be limited to facilities that generate and manage hazardous waste on site and not be extended to off site facilities. Commenters argued that such off site facilities are often more 17 complex and may in some cases pose a greater potential for harm to the environment. Other concerns were also raised, including that off site facilities might not have adequate knowledge of the wastes they receive, that off site facilities may potentially accept a wide variety of incompatible wastes, and that inadequate waste analysis could be a problem for off site facilities.

As such, these commenters argued that direct review of the permit application ( i. e., the material normally submitted as part of a Part B application) by the permitting authority was an essential step in permitting off site facilities.

After consideration of these comments, we decided to limit eligibility to on site facilities.

Before reaching our decision, we considered various options, including extending eligibility to allA number of commenters noted that some facilities accept waste from off site locations of the same company for centralized management of their wastes, and argued that these facilities would be appropriate candidates for a standardized permit. For example, one commenter suggested 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.

Another commenter noted that extending the standardized permit to centralized facilities would allow a company 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, companies have procedures in place to assure that offsite waste streams are properly stored and/ or treated at centralized locations.

Another commenter noted that managing wastes at these facilities ( centralized 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." 18 Still another commenter noted problems with off site facilities that manage hazardous waste in tanks, containers, and containment buildings; extending eligibility to off site recycling facilities that manage hazardous waste in tanks, containers, and containment buildings only; and extending eligibility toin general, but also noted that it would expect that fewer problems would result from allowing off site facilities that manage hazardous waste in tanks, containers, and containment buildings undergoing permit renewals. As previously mentioned, 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 argued that commercial off site facilities were likely to manage wastes more safely than generators ( since this was their business), 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 suitedwho manage only their own wastes generated at different locations to be eligible for the standardized permit,

because of their familiarity with the wastes managed. However, States still believed that the rule should be limited as proposed, and that the generators of the wastes themselves are best suitedof the company with the composition and character of its own wastes.

Another commenter argued that 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, as they are potentially the most knowledgeable about their own waste streams. None of the off site options we considered fully addressed the concerns raised by the states, who, for the most part, implement the permit program. Thus, we are limiting. 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.

In response to comments on the proposal, the Agency has been persuaded by the commenters who argued that facilities that receive hazardous waste generated off site by a generator under the same ownership as the receiving facility, and then stores or non thermally treats the hazardous waste in containers, tanks, or containment buildings should be eligible for the standardized permit. Therefore, the final rule expands the eligibility so that a facility with a 19 standardized permit can also receive waste generated at another location that is under the same ownership as the receiving facility. For example, waste from one company could be sent to the standardized permit facility owned by that company. This would also apply to wholly owned subsidiaries, for example where a national corporation had wholly owned subsidiaries separately incorporated in different states. As long as the corporate ownership was the same, and the same corporate entity had ultimate oversight and responsibility, off site management under the standardized permit would be allowed. EPA anticipates that this change will broaden the benefits of this rule to operations under the same entity. To use this flexibility, the Notice of Intent must include documentation that the off site facility is under the same ownership as the facility seeking the standardized permit in this final rule to hazardous wastes that are generated and managed onsite in tanks. In addition, to receive wastes from off site, facilities must also submit a waste analysis plan with the Notice of Intent. We discuss the need for waste analysis plans later in the preamble in Section IV. C. 4.

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. The Department of Energy's comments on the proposal suggested allowing for consolidation of waste from multiple facilities within the DOE complex at a regional facility with a standardized permit. This expansion of the eligibility would allow for this consolidation.

EPA did not, however, extend the applicability to wastes that were not generated by the same entity. While we are extending eligibility to a limited subset of off site facilities, we are not extending eligibility for the standardized permit rule to all off site facilities.

One commenter noted that " 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. 20 It is difficult to conceive how the EPA could allow this kind of activity to be conducted without prior review of appropriate procedures."

Another commenter noted that " 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."

Because of the potential variation in types of wastes managed at off site facilities in general, and the length of time necessary to review waste analysis plans associated with such facilities, we believe it appropriate to limit applicability of the standardized permit rule to those facilities receiving wastes from generators under the same ownership as the receiving facility.

Commenters expressed concerns about the complexity of operations on many "

noncaptive and commercial facilities, the large number of wastes that may come in to the sites from many different locations and the environmental problems they've encountered. Commenters believed such facilities needed closer scrutiny to ensure they are operating in a safe manner, and would be better served by operating under an individual RCRA permit. In considering all the comments, and in attempting to balance the streamlined permitting that would be gained from the rule against the possible risk to human health and the environment, we have decided to allow the following types of facilities to be eligible for the standardized permit: ( 1) facilities that manage their hazardous waste on site in tanks, containers, and containment buildings and ( 2) 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. The response to comments document on this final rule provides additional discussion on this topic.

TIt 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 2The 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.

21 criteria/ facilities that EPA is considering in this context. 2 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 2004the near future.

An additional situation involves facilities that manage hazardous wastes in units eligible for the standardized permit, and also manage hazardous wastes in other types of waste management units. In our proposal, we solicited comment on whether a facility that manages some of its hazardous waste in on site storage and/ or non thermal treatment units and some of its hazardous waste in other types of waste management units should be eligible for a standardized permit for their storage and/ or non thermal treatment activities. Several commenters agreed that on site storage should be eligible for the standardized permit, even if the facility has other permitted operations on site. Other commenters, however, did not support this measure, noting that having two regimes of RCRA permitting at the same facility would complicate matters. In this final rule,

we are allowing facilities to have both a standardized permit for their eligible units, and an individual permit for their other regulated waste management activities because we believe there is a benefit in terms of permit streamlining for those eligible units. Some facilities may have a significant portion of their operations devoted to standardized permit eligible storage and/ or nonthermal treatment activities, which may make a dual permitting scenario worthwhile. Moreover, if a facility believes that having two RCRA permitting schemes at their plant would complicate matters, they need not apply for a standardized permit.

Therefore, the final rule will allow facilities with regular RCRA permits to apply for a standardized permit for their storage and non thermal treatment operations occurring in eligible units. Such facilities could then have an individual permit for some of their operations, and a 22 standardized permit for their eligible units. However, the Director has the final decision on whether a facility will be allowed to operate with dual permits, based on facility specific factors.

One commenter urged the Agency to be clearer in the final rule that the standardized permit rule will not require generators, already exempt from permitting in certain circumstances under § 262 § 262.34, to obtain permits. 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 treatmenttreat 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). We have revised the regulatory language and the preamble to make this point clear.

E. Other General Comments On the Standardized Permit Rule We believe the standardized permit should result in time and resource savings in the overall permitting process. While owners/ operators of such facilities will be required to gather nearly the same information that an individual permit applicant must gather, such information ( e. g., Part B application) will only need to be kept at the facility, or other location designated by the Director, as opposed to submitting it to the permitting authority. In fact, several commenters mentioned that the standardized permit would provide a less cumbersome approach for such storage units, than would the individual RCRA permitting process. Specifically noted was the provision that fewer documents would need to be submitted in the application phase, which should save time during the application review phase. We believe that because the standardized permit process would involve review of fewer materials, permits could be issued in less time than with the typical Part B permitting process.

Some commenters argued that the standardized permit process does not facilitate public involvement, because the technical parts of the application will not be circulated as is the case with the individual permitting process, or because the public might not feel comfortable going to the facility to review information. We believe the public will have ample opportunity to be 23 involved, both with the pre application meeting, and during the public comment period after the draft permit is public noticed. It should also be noted 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. To the extent that the public has concerns with the uniform portion of the permit being fully protective because of unique facility circumstances, the public can request that these concerns be addressed in the supplemental portion of the permit. Nevertheless, the facility would still be subject to similar management standards and thus, would still be fully protective of human health and the environment.

Other commenters argued that the standardized permit process could result in unsafe waste storage practices, because not all the technical information about the facility processes would be reviewed prior to permit issuance. We disagree with these commenters. We believe the regulations in today's rule provide the mechanisms necessary to ensure safe waste management even without requiring the up front submission of all of the technical information about the facility processes.

The units eligible for the standardized permit ( tanks, containers, and containment buildings) are relatively straightforward technologies, with straightforward permitting requirements, and, as we discuss in the proposed rule preamble ( 66 FR 52196), 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. Past experience with these units indicates that they are simpler to design, construct, and manage than units such as combustion units or land disposal units. Storage and non thermal treatment of waste in these types of units is generally less complicated than thermal treatment of waste ( e. g., combustion of hazardous waste in incinerators, boilers, or industrial furnaces) or disposal of waste ( e. g., landfilling). It is easier to control risks at these simpler storage and treatment units. We believe that the streamlined standardized permit, allows adequate interaction and oversight by the regulating agency and would provide sufficient technical controls to protect human health and the environment. Furthermore, the permitting requirements 24 in part 267 largely reflect the existing part 264 requirements, which are protective of human health and the environment. For example, the part 267 includes unit specific requirements for how waste management units are operated and maintained ( e. g., secondary containment,

response to spills, condition of units, etc.). Part 267 also includes corrective action and financial responsibility requirements. Today's rule also provides for public comment and review on the draft permit prior to final permit issuance, as well as a mechanism for public involvement prior to the submission of the Notice of Intent. In addition, even though this information will not be required to be submitted as part of the nNotice of iIntent, the information must be retained at the facility, and be made available for the Director/ Permitting authority to review, should any questions remain about whether a standardized or individual permit should be issued, or whether additional site specific conditions are necessary. Finally, the Director retains the ability to impose any site specific conditions, in the supplemental portion of the permit, necessary to protect human health and the environment. Thus, the standardized permit process, while it will likely speed up the process of issuing permits for on siteeligible facilities that store or non thermally treat waste in tanks, containers, or containment buildings, will do so in a manner that would still provide full protection of human health and the environment.

One commenter requested clarification that the standardized permit could apply to mixed wastes. The standardized permit rule could in fact apply to the management of mixed waste,

presuming the other regulatory conditions were met.

Finally, one commenter noted that the standardized permit process would limit the regulatory authority's ability to determine compliance with the waste analysis and closure plans.

We agree with the commenter, at least with respect to the closure plan, and in part to the waste analysis plan. The rule has been modified to require facilities to submit a closure plan with the Notice of Intent. Requiring the plan up front would allow the regulatory authority to review the plan, and would also allow the public to review the plan during the public comment period for the publicly noticed permit. The closure plan would become part of the permit at final permit issuance. The rule also has been modified to require submission of the waste analysis plan for facilities that are applying to manage waste that were generated off site. 25 Due to the streamlined nature of the standardized permit process, we believe that facilities conducting routine storage and treatment on site have good knowledge of the characteristics of the waste they generate and manage and should be able to safely operate within a self certification of compliance process, while maintaining the extensive information, normally submitted with a Part B application, on  site. Furthermore, 40 CFR § 267 § 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. The final rule, we will not require However, facilities that receive waste from off site will be required to submit a waste analysis plan and maintain a copy of the waste analysis plans to be submitted, but maintained on site.

plan on site. Although we generally believe that common ownership between the generating and receiving facilities means that the receiving facility could reasonably be expected to have a greater familiarity with the characteristics of the wastes generated from off site than other off site facilities, such facilities will still likely have less knowledge/ familiarity than the waste generator.

Consequently, the Agency believes that the additional safeguard provided by submission of the waste analysis plan is necessary to reduce any uncertainties regarding extension of the standardized permit to such facilities, and to allow the regulatory authority an adequate opportunity to determine whether management procedures are adequately protective, or whether additional, site specific conditions are warranted.

F. Should a Standard Form Be Developed for Preparing the Required " Part B" Information Required to Be Retained at the Facility?

We requested comment in the proposal on whether we should develop a " fill in

theblank type form that facilities could use as a tool to help prepare the information required to be maintained at the facility. A number of commenters supported the development of a " fill in the blank" type of form. Therefore, we are currently looking into the feasibility of developing a form that can be used to assist permit applicants gather the required information that must be maintained at the facility to support a standardized permit. If and when a form is developed, it will be available from EPA on OSW's hazardous waste permitting web site at:

http:// www. epa. gov/ epaoswer/ hazwaste/ permit/ index. htm 26 G. Should the Current Provisions for Final Issuance of an Individual Permit Apply to Standardized Permits?

As proposed, the provisions for final issuance of the standardized permit are set forth in section 124.205, and are the same as the current procedures for final issuance of an individual permit, codified in § 124 § 124.15. We did not receive any significant comment on this question,

and believe that the current provisions for final permit issuance are appropriate for issuing standardized permits. Therefore, we are finalizing § 124 § 124.205, as proposed.

III. Section by Section Analysis and Response to Comments for the 40 CFR Part 124 Requirements Related to the Standardized Permit Rule A. Applying for a Standardized Permit This section discusses the overall process of how owners and/ or operators apply for and obtain a standardized permit. For clarification, the application for a standardized permit is known as a " Notice of Intent."

1. How Do I Apply for a Standardized Permit? This part of the preamble discusses the steps involved in applying for a standardized permit which are laid out in 40 CFR part 124 subparts A, B, and G. The steps involve the pre application meeting with the public followed by the submission of a Notice of Intent and supporting materials. The Notice of Intent and supporting materials, in most cases, should provide sufficient information for the Director to make a draft permit decision. Any lack of information could be a basis for the Director to determine that a facility is ineligible for a standardized permit.

a. How Do I Conduct a Pre application Meeting?

Today's rule subjects you to the existing requirements of § 124 § 124.31, obligating you to advertise and host a meeting with the neighboring community before submitting your Notice of Intent.

The meeting with your community is designed to provide an open, flexible, and informal occasion for you and the public to share ideas, educate each other, and start building the framework for a 27 solid working relationship. The meeting discussion should address topics such as: the type of facility, the location, the general processes involved, the types of wastes managed, and planned waste minimization and pollution control measures. The discussions also could include such topics as planned procedures for preventing or responding to accidents or releases.

When you submit your Notice of Intent, you will need to provide a summary of the meeting,

including a list of attendees. No major comments were received on this section and we are finalizing § 124 § 124.31 as proposed.

The Agency encourages facilities to refer to the RCRA Public Participation Manual ( EPA530 R 96 007, September 1996, available from the RCRA Call Center (( 800) 424 9346), or at http:// www. epa. gov/ epaoswer/ hazwaste/ permit/ pubpart/ manual. htm) to promote successful and equitable public involvement in RCRA permitting activities.

b. How Do I Submit a Notice of Intent to Operate under the Standardized Permit?

The requirement to submit a Notice of Intent to operate under a standardized permit is laid out in § 124 § 124.202, and is consistent with the process and terminology currently used for NPDES general permits. The Notice of Intent is composed of the documents described under § 270 § 270.275 and include the RCRA Part A information, the closure plan, the closure cost estimate, documentation of the financial instrument to cover closure, information supporting that you meet the location standards, the pre application meeting summary, and materials required under § 270 § 270.280 ( which include the required certifications and audit report).

In addition, facilities that wish to accept waste from off site, the Notice of Intent must include the waste analysis plan, and documentation that the originating generator and the facility seeking the standardized permit are under the same owner.

While the proposal did not require submission of the closure plan at the time the Notice of Intent was submitted, the final rule does include this requirement. Several commenters argued that the closure plan should be submitted to help assure the regulatory authority of the owner/ operator's ability to complete closure, and also that a closure plan would help support closure cost estimate figures. We agree with these commenters and are finalizing the rule to require submittal of the closure plan with the Notice of Intent. See also the discussion in Section 28 IV. G, for additional explanation of EPA's decision to require submission of the closure plan with the Notice of Intent. It should be noted that the closure plan should provide sufficient detail to assure the Director that the facility can close and show how the facility will be closed. Failure to submit sufficient information in the closure plan might be cause for a facility to be considered ineligible for a standardized permit. In addition to the closure plan, a closure cost estimate must be submitted, as must documentation showing the existence of a financial assurance instrument sufficient to cover closure.

Some commenters also argued that the waste analysis plan should be submitted with the Notice of Intent, and that submitting the plan would help assure the regulatory authority that the owner/ operator has adequate knowledge of the waste streams being managed ( waste compatibilities, characterization), especially if the rule were extended to include off site facilities.

Because the final rule is limited to on site facilities, and because we We generally believe that on site facilities generally 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 on site have good knowledge of the characteristics of the waste they generate and manage, and should be able to safely operate within a self certification of compliance process, while maintaining the extensive information,

normally submitted with a Part B application, on  site. Furthermore, 40 CFR § 267 § 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 will not require waste analysis plans for such facilities to be submitted, but maintained on site.

However, as noted previously, 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 submitted to help ensure that waste management procedures are adequately protective. 29 You must also certify, as required by § 270 § 270.280, that, at the time the Notice of Intent is submitted, that the facility is in compliance with the requirements of part 267, or in the case of a new facility, that the facility will comply with the part 267 requirements when the facility is built and operated. ( The proposed rule did not specifically contain a provision to allow the generator to submit the Notice of Intent for new facilities, that are designed, but built later. We believe that such a provision is appropriate and are adding such a provision to the final rule, at § 270 § 270.280( a)( 1)( ii). In addition to certifying compliance, a compliance audit must be completed. This audit is a systematic, documented, and objective review of the facility's operations and practices related to meeting environmental requirements, in order to assess the compliance status prior to submitting the Notice of Intent. The audit results must be included in an Audit Report with the compliance certification as supporting documentation to the Notice of Intent.

Regarding compliance audits, several commenters argued that we should not require audits at all, because doing so might unnecessarily burden facilities. Several commenters supported the need for conducting the audit, noting that doing so helped ensure compliance with the regulations and familiarity with facility operations. Other commenters argued that facilities be allowed to perform self audits, and not be limited to conducting independent, third party audits.

Another commenter, arguing for only third party audits, believed that some owners or operators of TSDs subject to this rule do not have the expertise to adequately audit their facility's operations. 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. We did not include specific regulatory provisions detailing how facilities must conduct compliance audits in the final rule, but provided general information and web links to guidance materials for conducting audits. ( see Section V. B. 3). 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. 30 Another commenter said the proposal was not clear on how existing facilities would comply with the part 267 standards if a permit is issued. In the RCRA permit program, terms of how a facility will comply with the permit, once a permit is issued, are specified in the permit.

This will continue to be the case for standardized permits  the uniform portion of the permit will contain the requirements as specified by part 267, and the supplemental portion will provide site specific standards, as needed.

Another commenter argued that the Notice of Intent and supporting documents submission will potentially strain RCRA enforcement resources, as focus is directed to confirm the adequacy of audits and certifications provided by the permit applicant. While it is foreseeable that some additional effort will likely be placed on the Agency's enforcement resources, we believe that the units eligible for a standardized permit involve rather straightforward conditions.

2. How Do I Switch from an Individual Permit to a Standardized Permit?

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 issued for those units. The revocation and reissuance procedures are in § 124 § 124.203, as allowed by § 270 § 270.41, and are finalized as proposed.

One commenter, while supportive of allowing facilities to switch to a standardized permit for eligible activities while keeping other activities under an individual permit, believed that revocation and reissuance should not be the required procedure to accomplish this. The commenter suggested that the facility should only need to submit a Notice of Intent for the standardized permit operations and, in addition, a conforming modification to the existing permit.

We agree with the commenter that submission of the Notice of Intent along with a modification can work in many instances ( modification, revocation, and reissuance procedures appear in 31 today's rule at § 124 § 124.5). Another commenter argued that a newly permitted facility should not be able to have their permit revoked, and a standardized permit issued, until the term of the existing permit comes to an end. Otherwise, allowing the revocation might be overly burdensome to states. While we agree that there may be some instances ofwhere switching to a standardized permit that may be challenging to States, we also do not want to burden facilities 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.

B. Issuing a Standardized Permit.

1. How Would You As the Regulatory Agency Prepare a Draft Standardized Permit?

Under the final rule, three steps are involved in preparing a draft permit. Step one is for you ( as the regulatory agency) to review the Notice of Intent and supporting information and determine if the facility is eligible for a standardized permit. Second, you would tentatively decide whether to grant or deny coverage under the standardized permit. If a decision is made to grant coverage, the draft standardized permit would propose appropriate terms and conditions, if any,

to include in the supplemental portion of the permit. Lastly, you would prepare your draft permit decision within 120 days after receiving the Notice of Intent and supporting information. If necessary, a one time 120 day30 day extension is permitted for review of the information, and preparation of the draft permit. Such extensions might be appropriate in cases involving complex facilities where more extensive review is necessary. site specific situations requiring more review.

We received comments regarding time periods for an extension, from no extension to 180 days.

We have decided to limit the extension to 30 days since we believe that due to the nature of the types of units that are eligible for the standardized permit   containers, tanks, and containment buildings, that a one time 30 day extension should be all that is necessary.

a. Drafting Terms and Conditions for the Supplemental Portion.

As noted previously, the supplemental portion of the standardized permit would include any additional provisions that are deemed necessary to protect human health and the environment and would be issued based on the regulatory agency's specific determination of the conditions at 32 the particular facility. If you, as the Director of the regulatory agency, decide to grant coverage under the standardized permit, you must determine whether supplemental conditions are appropriate or necessary and if so, tentatively identify appropriate facility specific conditions to impose in the supplemental portion of the standardized permit, and include those conditions as part of the draft permit. These proposed facility specific conditions would go beyond the standard conditions in the uniform portion of the standardized permit. ( The uniform portion of the permit includes standards based on the applicable part 267 requirements.) The supplemental terms and conditions would be those you deem necessary for corrective action purposes, or to ensure protection of human health and the environment. We expect that the need to have supplemental conditions, beyond corrective action requirements, will not be a common occurrence. The authority to impose corrective action conditions is found in RCRA § 3004 § 3004( u) and ( v), as well as EPA's implementing regulations at 40 CFR 267.101, and authority to impose conditions for protection of human health and the environment is found at RCRA § 3005 § 3005( c)( 3), as well as EPA's implementing regulations at 40 CFR 270.32( b)( 2).

One commenter noted that it was unclear how the regulatory authority would obtain sitespecific information in developing permit conditions. It should be noted that § 270 § 270.10( k)

allows the Director to require the submission of such information as necessary to establish permit conditions. In addition, information from the public meeting and inspections could be the basis to help develop permit conditions, as appropriate.

Another commenter agreed withsupported the idea suggested in the proposalpreamble 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," and suggested regulatory language to specifically allow that provision. While we certainly support allowing facilities to submit suggested conditions, we do not believe it necessary to specifically include that in the regulations, as it could confuse comesome permit applicants about what is actually required,

and could potentially increase the amount of information the regulatory authority would need to review. Thus, iIf a particular owner/ operator wants to suggest that supplemental conditions be included in their standardized permit, they are free to do so in the Notice of Intent. 33 b. Denying Coverage Under the Standardized Permit.

The provisions of § 124 § 124.206 for denying coverage under a standardized permit are finalized as proposed. Specifically, 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 § 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)).

§ 124.204( b)).

Instances of poor compliance history exists where previous violations by a facility establish a pattern of disregard of environmental requirements under RCRA or other environmental statutes. Some of the factors used to evaluate a facility's compliance history may include:

 number of previous violations  seriousness of previous violations  the facility's response with regard to correction of the problem ( e. g., how quickly the facility achieved compliance)

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.

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.

A number of commenters believe that the regulations should be clearer on the criteria for denying coverage under the standardized permit, and offered suggested situations that could weigh heavily in deciding whether or not to deny a facility from receiving a standardized permit. 34 Among the reasons suggested for denial included a facility's demonstrated history of noncompliance with regulations or permit conditions, demonstrated history of submitting incomplete or deficient permit applications, and that the facility does not meet the criteria of eligibility in § 124 § 124.201.

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). Section 124.204( b) provides specific eligibility criteria. Under 124.204( b)( 2)( iv), you may consider the facility's compliance history, in cases where the facility is operating under RCRA interim status, or has an existing permit and is choosing to convert to a standardized permit. Poor compliance history could indicate a facility that might more appropriately be served by an individual permit, or, of course, permit denial if warranted.

Examples of situations in which the permitting authority might decide to deny coverage under a standardized permit include, but are not limited to, cases where:

1. a permit applicant provides an incomplete Notice of Intent 2. a facility has a poor compliance history, in the judgement of the Director.

c. Preparing the Draft Permit Decision.

Under § 124 § 124.204( c), the Director needs to make a draft permit decision within 120 days of receiving the Notice of Intent and supporting information. In addition, we are allowing a one time 120 day30 day extension. 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, and that 120 days should be an adequate time for an extension. However, other commenters have argued that the initial 120 day period would not be adequate time to review all the information submitted and conduct the required public comment period. Suggested extensions ranged from those who suggested no extension, all the way up to 180 days suggested by one commenter. We understand that some states have additional requirements that permit applicants must meet, that may necessitate an extension. However, we 35 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 one time extension of 12030 days. We believe that the 120 day initial time period, with a one time 120 day30 day extension will provide sufficient time to issue a draft permit ( or permit denial).

2. How Does the Regulatory Agency Prepare a Final Standardized Permit?

After the close of the public comment period, the Director would make a final determination on the draft permit decision ( i. e., whether to grant or deny coverage for a facility to operate under the standardized permit). The Director would use the same procedures to finalize a draft standardized permit as he or she would use to finalize a draft individual permit, found in § 124 § 124.15. Commenters supported this provision of the rule; therefore, § 124 § 124.205 for preparing a final permit decision is finalized, as proposed.

C. Public Involvement in the Standardized Permit Process Public involvement begins early in the standardized permitting process, starting with the public meeting that must occur prior to submission of the Notice of Intent. This meeting is described in more detail in preamble section III. A. 1. a.

1. Requirements for Public Notices The provisions of § 124 § 124.207 require the Director to issue a public notice announcing the draft permit decision. The procedures and time periods for public comment are the same as for commenting on draft individual permits. Because we received no significant comment, we are finalizing § 124 § 124.207 as proposed.

2. Opportunities for Public Comments and Hearings 36 The provisions for the comment period and hearings are found in § 124 § 124.208.

Because we received no significant comment, we are finalizing § 124 § 124.208 as proposed.

3. Responding to Comments The requirements for responding to comments are found in § 124 § 124.209. Because we received no significant comment, we are finalizing § 124 § 124.209 as proposed.

4. Appealing a Final Permit Decision Under today's final rule, according to § 124 § 124.210, you may appeal the final permit decision to the Environmental Appeals Board within 30 days. You may appeal the permit,

including any terms and conditions in the supplemental portion, but only after the final determination is made. At that time, you may also appeal the eligibility of the facility for the standardized permit. ( For example, you may challenge whether a unit is a tank.) You may not appeal the terms and conditions of the uniform portion of the standardized permit.

One commenter noted that appealing the supplemental portion of the permit might call into question whether the facility can still operate safely under the unappealed portion of the permit. Just as occurs in the current regulatory process, if an appealed section of the permit is required for safe management of hazardous waste in that unit, then waste can not be managed in the unit until the appeal has been adjudicated. See 40 C. F. R. § 124 § 124.16( a). For a standardized permit, if the supplemental portion of the permit is necessary for safe waste management, and that part of the permit is appealed, then waste may not be managed in the unit until the appeal is resolved. However, if the appealed supplemental portion of the permit deals with SWMU corrective action issues, then safe waste management in the eligible units can likely occur. More directly stated, if the appealed parts of the permit are unrelated to the units eligible for the standardized permit, then safe waste management in those eligible units can likely occur.

D. Maintaining a Standardized Permit This portion of the preamble discusses what is being finalized today regarding how your standardized permit is modified over time to reflect changes in the facility's design or operations. 37 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. This is because standardized permits contain standard conditions based on the requirements of Part 267, and that many changes at the facility would only affect the information kept on site and not the actual permit. 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 below.

1. What Types of Changes Could Owners or Operators Make?

The proposed rule set forth two categories of modifications, routine and significant, for making changes to standardized permits. Routine changes included those changes that, under an individual permit situation, would be classified as either a class 1 or class 2 modification under § 270 § 270.42 appendix I, while significant changes included those changes that would have been class 3 modifications. 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.

Several commenters argued that some class 2 modifications are more like class 3 modifications, and should not be considered as routine changes under a standardized permit, but as significant changes. Furthermore, because some class 1 modifications require prior approval under an individual permit, those changes should be treated similarly under a standardized permit.

For example, several commenters noted that changes in ownership should not simply be a routine change under the standardized permit rule, but should require prior approval from the regulatory agency, because of financial assurance and compliance history concerns about a new owner.

Under the original proposed rule, " routine changes" encompassed both class 1 and class 2 modifications, leaving class 3 modifications to be addressed as " significant changes."

We agree with commenters to the extent that some changes to standardized permits should require prior approval, especially changes that would require prior approval under individual permitting. 38 Therefore, the final rule adds a third category of changes to permits, " routine changes with prior approval." ( See the next section for a description of the types of modifications that would fall into the various categories.) 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.

2. What are the Definitions of Routine Changes, Routine Changes with Prior Agency Approval,

and Significant Changes, and What Are the Requirements for Making Those Changes?

a. Routine Changes Routine changes are any changes that qualify as a class 1 modification under 40 CFR 270.42 Appendix I that do not require prior approval by the regulatory authority. The requirements for making routine changes are found at § 124 § 124.212. The procedures for making routine changes are described in the preamble of the proposed rule at 66 FR 52206 ( Section VI. C). Basically, these procedures allow routine changes to be made without notifying the regulatory authority, as long as those changes do not amend any of the information that was originally submitted under § 270 § 270.275 during the standardized permit application process. 39 If the change amends the information provided under § 270 § 270.275, then the revised information must be provided to the Director, the facility mailing list, and to state and local governments, as described in § 124 § 124.212( b)( 1) and ( 2).

b. Routine Changes With Prior Agency Approval Routine changes with prior agency approval are changes that, according to 40 CFR 270.42 Appendix I, either qualify as class 1 modifications requiring prior agency approval, or as class 2 modifications. The requirements for making routine changes with prior agency approval are found at § 124 § 124.213. The procedures for making changes with prior approval include the same steps that must be followed for making changes that amend the information submitted under § 270 § 270.275 ( see § 124 § 124.212( b)( 1) and ( 2)), and also require approval from the Director.

c. Significant Changes Significant changes are any changes that qualify as: ( 1) class 3 permit modifications under 40 CFR 270.42 Appendix I, ( 2) any changes not specifically identified in Appendix I, or ( 3) any changes that amend the terms or conditions in the supplemental portion of the standardized permit. The requirements for making significant changes are found at § 124 § 124.214. The procedures for making significant changes to the standardized permit are very similar to the initial standardized permitting process, and is described in the preamble of the proposed rule at 66 FR 52206 ( Section VI. D), and are finalized, as proposed.

3. How Do I Renew a Standardized Permit?

The process to renew a standardized permit is the same as for renewing an individual permit. See § § 270 § § 270.11( h) and 270.30( b). To renew a standardized permit, you would follow the same procedures as you would to initially obtain coverage under the standardized permit ( those in 40 CFR 124 subpart G). We did not receive any significant comment regarding the process of renewing a standardized permit, and therefore, are finalizing this section, as proposed.

IV. Section by Section Analysis and Response to Comments for the Part 267 Standards for Owners and Operators of Hazardous Waste Facilities Operating Under a Standardized Permit 40 A. Overview Most of the proposed part 267 requirements have been finalized, as proposed, with few exceptions, which are discussed later in this section. The requirements in part 267 form the basis for the uniform portion of the standardized permit, which is a required part of all standardized permits.

Some commenters argued that the standardized permit rule only adds another set of regulations, and thus, adds to the difficulty of keeping track of the various permits. We acknowledge this rule does add another set of regulations to the CFR. However, these regulations replace the existing technical regulations ( part 264) that already apply to tanks,

containers, and containment buildings, which these facilities are already subject to. Thus, we would disagree with the commenter that all we are doing is subjecting these units to additional regulation. Moreover, as stated previously, we believe that this rule will help streamline the permitting process, saving time and resources for both the facility and the regulatory agency,

while maintaining protection of human health and the environment.

B. Subpart A  General 1. Purpose, Scope, and Applicability The final rule sets forth the minimum national standards for facilities managing wastes under a standardized permit. The final part 267 standards apply to owners and operators who store or non thermally treat their wastes on site in tanks, containers, and containment buildings,

and to facilities that manage wastes generated off site, by a generator under the same ownership as the receiving facility. Based on comments, there appeared to be some confusion on whether facilities with thermal treatment units could apply for a standardized permit for their eligible units in which non thermal treatment or storage is being conducted. A facility may apply for a standardized permit for its eligible units, regardless of what other hazardous waste management is occurring at the facility. For example, a hazardous waste incineration facility that conducts tank storage for wastes generated on site may apply for a standardized permit for the tank storage.

Except for a clarifying correction to the part 270 reference ( subpart J rather than subpart I), the language of § 267 § 267.1 is finalized, as proposed. 41 2. Relationship to Interim Status Standards The final § 267 § 267.2 provisions are similar to the § 264 § 264.3 provisions. If you are currently complying with the requirements for interim status, you will need to continue to comply with the interim status standards specified in part 265 until final disposition of your standardized permit application. We received no significant comments on this section. Thus, the § 267 § 267.2 requirements are finalized, as proposed 3. Imminent Hazard Action The final § 267 § 267.3 provisions repeats the current § 264 § 264.4 provisions concerning imminent and substantial hazards. We received no significant comments on this section, and therefore, are finalizing these provisions, as proposed.

C. Subpart B  General Facility Standards These standards are similar to the general facility standards currently found in 40 CFR part 264 subpart B. These standards describe how to obtain an EPA identification number,

requirements for waste analysis, security requirements, inspection schedules, employee training,

managing ignitable, reactive or incompatible wastes, and location standards.

1. Applicability The applicability language in § 267 § 267.10 is finalized, as proposed, except for the change in the reference to Subpart I to Subpart J, of Part 267. The reason for this change is editorial. No significant comments were received on this section. The purpose of part 267 is to establish minimum national standards for facilities managing waste under a standardized permit, and as such would apply to owners and operators of facilities who non thermally treat and/ or store hazardous waste on site in tanks, containers, and/ or containment buildings, as well as facilities that receive hazardous waste generated off site by a generator under the same ownership as the receiving facility and who store or non thermally treat the hazardous waste in containers, tanks, or containment buildings.

2. How Do I cComply with this Subpart? 42 Section 267.11 lists the steps you need to take if the subpart applies to you. Specifically,

you would obtain an EPA identification number, and follow prescribed requirements for waste analysis, security, inspections, training, special waste handling and location standards. We are finalizing § 267 § 267.11, as proposed, because no substantive comments were received on this section.

3. How Do I Obtain an EPA Identification Number?

Section 267.12 generally repeats the requirement found currently found in § 264 § 264.11 with the addition of whom to contact for information. No significant comments were received on this section, and thus, we are finalizing this provision, as proposed.

4. What are the Waste Analysis Requirements?

The provisions of § 267 § 267.13 are finalized as proposednd include a change related to eligible off site facilities. These provisions generally require owners and operators to prepare a waste analysis plan and keep it on site at their facility. Eligible facilities that receive wastes generated off site must submit a waste analysis plan with their Notice of Intent, as well as retain the plan on 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. However, mostBecause we are extending the rule to certain off site facilities, 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. Because the final rule limits eligibility to on site facilitiesTherefore, we are not requiring submission ofon site facilities to submit waste analysis plans with the Notice of Intent. ( See the discussions onf on site versus off site in section II. D, and on waste analysis plans in section III. A. 1. b of this preamble.)

A number of commenters discussed the importance of waste analysis plans. DOE noted that a key aspect of the acceptability of this approach [ extending the rule to eligible offsites] 43 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.

DOE also noted that " to verify that acceptable waste analysis requirements are in place at a facility managing waste from off site, they suggest that EPA require the facility to submit a waste analysis plan with the Notice of Intent to operate under a standardized permit.

One commenter noted that where a 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.

Based on these comments and the need they expressed to have adequate knowledge of wastes being received from off site, we are requiring that waste analysis plans be submitted to the regulatory agency with the Notice of Intent. Multiple facilities under the same owner may be in different states, and may have variations in their waste streams. States should have waste analysis information concerning wastes generated in facilities located in other states in deciding whether the facility should receive a standardized permit, and in ensuring that waste analysis at the receiving facility will be sufficient to protect human health and the environment.

5. What are the Security Requirements?

The § 267 § 267.14 security provisions are similar to the § 264 § 264.14 provisions. The proposal in § 267 § 267.14( a) and ( b) provided for an exemption from the security provisions by requiring a certification that both of the conditions in § 267 § 267.14( a) are met. While several commenters supported the exemption in the proposal, most of the commenters believed that the proposed security provisions are reasonable, and that there is no reason for an exemption from those provisions. If, for example, a facility wants consideration for an exemption due to site specific 44 conditions, we believe such a facility might likely be a better candidate for an individual permit,

than for a standardized permit. Commenters also noted that the conditions for the exemption are rarely met.

Based on the comments submitted and upon reflection of the Agency's overall goal in issuing the standardized permit rule, we believe that having an exemption provision would add to the complexity of what is intended to be a streamlined permit process. If allowed, the exemption would require review and approval stages, adding to the time necessary for issuance of a draft permit. Therefore, the final rule does not include the exemption proposed in § 267 § 267.14( a), and the remaining language in § 267 § 267.14 has been edited accordingly.

6. What are the Inspection Schedule Requirements?

The § 267 § 267.15 inspection schedule requirements are finalized, as proposed. No significant comments were received on this section.

7. What are the Training Requirements?

The § 267 § 267.16 training requirements are essentially the same as the training standards in § 264 § 264.16, and are finalized, as proposed. No significant comments were received on this section.

Owners/ operators will be required to keep a description of the training program and individual personnel training logs with other required records at their facility.

8. What are the Requirements for Managing Ignitable, Reactive, or Incompatible Waste?

The general requirements of § 267 § 267.17 for managing ignitable, reactive, or incompatible waste are very similar to the requirements found in § 264 § 264.17, and are finalized,

as proposed. No significant comments were received on this section. These general requirements minimize the potential for accidents when handling ignitable or reactive wastes, or when mixing incompatible wastes.

9. What are the Location Standards? 45 The § 267 § 267.18 location standards are similar to the requirements found in 264.18,

except that today's final rule does not provide for a waiver from the 100 year floodplain restriction, based on the ability to remove the waste.

Most commenters agreed with the Agency that we should not allow a waiver from the location requirements that prohibit locating a facility in a 100 year floodplain, if wastes can be removed before flood waters reach the facility. Commenters provided similar arguments to those regarding the exemption from the security provisions. Moreover, they argued that if a facility believes, based on site specific conditions, that they should be eligible for a waiver, that the facility would likely be better suited for an individual permit. We agree with these commenters.

However, some commenters argued that the waiver provision should be available for siting a facility in the 100 year flood plain in order to maximize regulatory relief. We disagree. Similar to our reasons for not having an exemption from the security provisions of § 267 § 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 floodplain location standards in the final rule.

D. Subpart C  Preparedness and Prevention This subpart requires you as the owner or operator to minimize threats to human health and the environment caused by the release of waste from unplanned events.

1. What are the Design and Operation Standards?

The requirements of 267.31 are the same as those found in 264.31, and include requirements on how to design, construct, maintain and operate your facility to minimize threats to human health and the environment. No significant comments were received on this section.

Therefore, we are finalizing the requirements, as proposed.

2. What Equipment Am I Required To Have? 46 Section 267.32 equipment requirements are finalized, as proposed. This section requires you to have certain equipment at the facility, including an alarm system, communication equipment, fire extinguishers and fire control equipment, and either water forat adequate volume and pressure to supply hose streams, foam equipment, or water spray systems. The section also provides an exemption for certain equipment, otherwise required, if the potential hazards at the facility don't warrant the equipment. To make use of that equipment exemption, you would need to submit a certification and keep documentation supporting the exemption at your facility. This exemption has been retained for two reasons: it avoids unnecessary expenditures, and the exemption does not require approval of a demonstration by the permitting agency. However, you would be required to keep documentation supporting any equipment exemption at the facility and you would make the documentation available for review by the permitting agency and the public.

No significant comments were received on this section.

3. What are the Testing and Maintenance Requirements for Equipment?

Section 267.33 is finalized, as proposed, requiring the testing of all equipment identified in 267.32. No significant comments were received on this section.

4. What are the Requirements for Access to Communication Equipment or an Alarm System?

Section 267.34 requires all personnel involved in waste handling to have ready access to communication equipment and alarms. The requirement would not apply when the equipment is not required under § 267 § 267.32. No significant comments were received on this section.

Therefore, this section is finalized, as proposed.

5. What are the Requirements for Access for Personnel and Equipment During Emergencies?

Section 267.35 is being finalized with additional language as described below. Specifically,

a commenter suggested adding the following language to the end of proposed § 267 § 267.35: " as appropriate considering the type of waste being stored or treated." We agree with the suggested change because. The change it acknowledges that certain wastes may not necessarily require spill control or fire equipment access to the area. 47 6. What are the Requirements for Arrangements with Local Authorities for Emergencies?

Section 267.36, regarding making arrangements with local entities such as police, fire, and response authorities, is finalized, as proposed. No significant comments were received on this section.

E. Subpart D  Contingency Plans and Emergency Procedures.

This subpart contains standards requiring a contingency plan that describes how hazards to human health and the environment will be minimized. These requirements are similar to those in part 264 subpart D with the exception that you are not required to submit the plan with your application.

The following Sections of Subpart D are finalized, as proposed, because no significant comments were received.

a. Purpose of the Contingency Plan ( § 267 § 267.51 )

b. What is Required to be in the Contingency Plan?( § 267 § 267.52 )

c. Who is Required to Have Copies of the Contingency Plan? ( § 267 § 267.53 )

c. Revising the Contingency Plan ( § 267 § 267.54 )

d. Role of the Emergency Coordinator ( § 267 § 267.55 )

e. Emergency Procedures for the Emergency Coordinator ( § § 267 § § 267.56 and 267.57 )

F. Subpart E  Manifest System, Record keeping, Reporting, and Notifying The following sections of Part 267 are finalized as proposed, because no significant comment was received, except as noted below regarding § 267.72.

a. Does this subpart apply to me? ( § 267.70)

b. What information must I keep? ( § 267.71)

c. Who sees the records? ( § 267.72 )

c. What reports must I prepare and to whom do I send them? ( § 267.73 )

d. What notifications must I make? ( § 267.74 )

This subpart of part 267 contains the standardized permit manifest system, record keeping, reporting, and notifying requirements. We changed the name of the 48 heading for Subpart E to reflect the applicability of the manifest system requirements in cases involving eligible off site facilities.

1. When Would I Need To Manifest My Waste?

Today's rule extends eligibility for the standardized permit to certain off site facilities.

Because the proposal only addressed on site generator facilities, § 267.70 did not include all of the provisions from § 264.71 " Use of the Manifest System." We, therefore, are finalizing today's rule to insert the provisions of § 264.71 into § 267.71, now titled " Use of the Manifest System," and the provisions of § 264.72 into § 267.72, now titled " Manifest Discrepancies."

With these insertions, the proposed § § 267.71 through and 267.74 are renumbered and finalized as follows:

a. Section 267.71 becomes § 267.73 ( What Information Must I Keep?);

b. Section 267.72 becomes § 267.74 ( Who Sees the Records?);

c. Section 267.73 becomes § 267.75 ( What Reports Must I Prepare and to Whom Do I Send Them?); and d. Section 267.74 becomes § 267.76 ( What Notifications Must I Make?).

Because we are extending eligibility to certain off site facilities, we are adding paragraphs to § 267.73 and § 267.75 that relate to off site facilities ( e. g., § 267.73( b)( 11) and ( 12) and § 267.75( c)

and ( d).

One commentor did suggested that the proposeda change to include manifest requirements be modified if the Agency expanded the rule to addressin the final rule be made to allow for off site facility eligibility. Because we are extending this rule to certain off site facilities. However,

because we are limiting the rule to on site facilities, where an owner/ operator manages their own waste generated at several locations, the suggested change was not incorporated into the rule.

Finally, oneto Subpart E was appropriate.

2. What Information Would I Need to Keep?

For similar reasons as with the section on " when would I need to manifest my waste?,"

proposed § 267.71 was developed with on site generator facilities only. Because certain off site 49 facilities are now included, we are adding the applicable provisions from § 264.71 that relate to offsite facilities, into § 267.73.

One commentor noted that there appeared to be some confusion on retention times for records, and with the heading to § 267.72 which seems to focus primarily on who sees the records.

. The retention time for records, unless otherwise noted, is until the facility is closed, as is stated at § 267.73( b).

According to § 267 § 267.7173( b), records must be retained until the facility is closed. In addition, § 267 § 267.72 74( b) further states this retention period can be extended due to an unresolved enforcement action involving the facility or as requested by the Administrator. For the purpose of clarity, we removed the words " and how long do I keep them" from the heading of § 267.72.

G. § 267.74.

3. Who Sees the Records?

Proposed § 267.72 regarding submission of records to the permitting authority is finalized at § 267.74. No significant comments were received on this section.

4. What Reports Do I Need to Prepare and Who Would I Need to Send them to?

Because we are finalizing today's rule to extend to certain off site facilities, we are adding the applicable provisions from § 264.76 ( Unmanifested Wastes) to proposed § 267.73, and finalizing that section at § 267.75. No significant comments were received on this section.

5. What Notifications Must I Make?

Proposed § 267.74 is finalized as § 267.76. No significant comments were received on this section.

G. Subpart F  Releases from Solid Waste Management Units 50 Section 267.101 of the final rule sets forth requirements for corrective action at facilities that obtain standardized permits. These requirements have not been changed from the October 12,

2001 proposed rule.

Section 3004( u) of RCRA provides that all permits issued after November 8, 1984 and under the authority of section 3005 must require corrective action for all releases of hazardous waste or constituents from any solid waste management units ( SWMU) at the facility, as necessary to protect human health and the environment ( see also 40 CFR 264.101). Section 3004( u)

requires that schedules of compliance ( where corrective action cannot be completed prior to permit issuance) and financial assurances for completing such corrective action be included in the permit.

In addition, section 3004( v) directs EPA to require corrective action as necessary to protect human health and the environment beyond the facility boundary, where permission to conduct such corrective action can be obtained. Because standardized permits, like non standardized permits ( i. e., individual permits and permits by rule), will be issued under the authority of section 3005 of RCRA, these statutory corrective action requirements extend to standardized permits as well.

Section 267.101( b) provides that corrective action provisions will be specified in the supplemental portion of the standardized permit ( as necessary to protect human health and the environment). In the October 12, 2001 proposed rule, the Agency did not propose standardized permit conditions for corrective action. The Agency explained that, while it was attempting to streamline the permit application and permit issuance processes by developing generic design and operating standards for storage permits, it had to balance the desire for a streamlined permitting process against the need for flexibility in the corrective action program. The Agency recognized that most sites in the RCRA corrective action universe are unique, and that site specific determinations for corrective action remedies are vital to assuring the best remedy is selected at each site. The Agency therefore proposed the same site specific flexibility for corrective action under standardized permits as is available under non standardized permits. The Agency believed that this approach would provide flexibility to fashion remedies that are protective of human health and the environment and that reflect the conditions and the complexities of each facility. The Agency solicited comment on this approach, but also requested suggestions for standardized corrective action permit conditions. 51 The Agency received few comments on this proposed approach. While some commenters agreed that site specific flexibility should be preserved for corrective action, some suggested standard permit conditions that the Agency might adopt.

One commenter suggested that the Agency develop standard permit conditions for presumptive remedies or specified corrective action approaches which could be incorporated into the uniform portion of the standardized permit. Though the Agency agreed that the commenter raised interesting ideas, the Agency did not develop standard permit conditions based on this comment for several reasons. First, commneterthe commenter did not provide sufficient detail to develop standard conditions, and developing the suggested standard permit conditions would have required significant effort on the part of the Agency. The Agency did not believe that the level of interest demonstrated by commenters for standard permit conditions for corrective action warranted those efforts. In addition, the Agency did not believe that this rule was an appropriate forum for addressing the type of streamlined approach suggested by the commenter suggested.

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.

Another commenter suggested that standardized permits should contain several standard permit conditions, at a minimum, including notification requirements for, and assessment of, newly identified solid waste management units, areas of concern, and newly identified releases; content requirements for workplans and reports; approval procedures for workplans and reports; and approval procedures for final remedies. The Agency did not develop standard permit conditions in response to this comment. As was the case with the first commenter, this commenter did not provide the detail that would have been necessary to develop standard permit conditions. Further,

the process oriented permit conditions suggested by the commenter would have been 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 results based strategy for corrective action. In September, 2003, the Agency 52 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 strives to tailor process requirements to the characteristics of the specific corrective action. The Agency believes that development of the standard permit conditions for corrective action as suggested by the commenters would not be consistent with a results based approach.

The Agency believes that the better approach is to continue to allow regulators the flexibility to develop permit conditions and based on the conditions at the site. Thus, section 267.101( b) provides that provisions ( or schedules of compliance) for corrective action will be specified in the supplemental portion of a standardized permit, and § 267 § 267.101( c) provides for corrective action beyond the facility boundary. These paragraphs impose requirements for corrective action at facilities that receive standardized permits that are identical to those requirements imposed by § 264 § 264.101 at facilities that receive non standardized permits.

In the proposed rule ( see 66 FR 52191 @ 52232), the Agency also solicited comment on how cleanups under cleanup programs other than the authorized RCRA program ( or under " alternate authorities") might be addressed in RCRA permits at permitted facilities, including facilities with standardized permits. The Agency identified two approaches that might be used to address an alternate cleanup authority in a RCRA permit  the approaches were referred to as " postponement" and " deferral." Under the postponement approach, the permitting authority would postpone the determination of RCRA specific corrective action provisions until after a cleanup under an alternate State authority is completed. Under the deferral approach, the permitting authority would make a determination that corrective action is necessary, and that the appropriate corrective action at the site would be the state action run by the state alternate program. The Agency requested comment on the postponement and deferral approaches as part of its ongoing effort to determine how to effectively utilize alternate authorities to address corrective action needs at RCRA facilities.

The Agency is not taking final action in this final rule with respect to the issues raised regarding alternate authorities. The Agency does note, however, that since the time of the 3Alternate authorities are utilized at RCRA facilities in most States. These authorities include a variety of cleanup programs, including voluntary programs and state superfund type programs.

4It should be noted that since issues related to use of alternate authorities are not addressed in this final rule, the Agency did not respond to comments related to those issues.

53 proposed rule, the Agency has continued, outside of the context of this rulemaking, to support the appropriate use at specific sites of alternate authorities to address RCRA corrective action, not only at permitted facilities, but at other RCRA facilities as well. 3 The Agency plans to address issues and options related to the use of alternate authorities discussed in the proposal, including how to address alternate authorities in RCRA permits, outside of the context of this rulemaking. 4 H. Subpart G  Closure 1. Does this subpart apply to me?

The language of § 267 § 267.110 is finalized, as proposed, since no significant comments were received on this section. You are subject to the requirements of Subpart G if you own or operate a facility treating or storing hazardous waste under a standardized permit.

2. What general standards must I meet when I stop operating the unit?

The language of § 267 § 267.111 has been modified to further reinforce that facilities under a standardized permit must clean close. If a facility under a standardized permit cannot clean close, then the owner/ operator of the facility must pursue post closure options.

3. What procedures must I follow?

As discussed below, § 267 § 267.112 has been revised to require that the closure plan be submitted with the Notice of Intent, instead of 180 days prior to closure, as proposed. The closure plan, as part of the permit, would be approved with final permit issuance.

The Agency requested comments on several aspects of the closure plan in the proposed rule. Specifically, while the Agency proposed to require that the closure plan be submitted at least 180 days prior to closure, we also requested comment on whether the closure plan should be 54 submitted with the Notice of Intent; not allowing the option to close as a landfill and therefore require clean closure of the units addressed in the standardized permit; and not allowing time extensions for closure. We also requested comments and suggestions for procedures to be followed in the event that you do not know that you are to receive the final volume of hazardous waste until you are within the 180 day period, and proposed options for that occurrence. Finally,

we invited comment on an option of not requiring a closure plan, but, instead, including closure conditions in the standardized permit. Our response to these comments are addressed in this section of the preamble and in the Response to Comments document.

The majority of the comments received supported a requirement that the closure plan be submitted with the Notice of Intent. Those who favored the closure plan being submitted with the Notice of Intent argued that early submittal of the closure plan would be more protective of human health and the environment because it would allow for better cost estimates, would allow for early negotiation of closure conditions, and would avoid the problem of meeting time frames within the 180 day window. Moreover, as noted previously, requiring the plan up front would allow the regulatory authority to review the plan and assure the regulatory authority of the owner/ operator's ability to complete closure. Early submission of a closure plan would also help support closure cost estimate figures. Finally, the revision would allow the public to review the plan during the public comment period for the publicly noticed permit. Consequently, we agree that it would be more appropriate to require that the closure plan be submitted with the Notice of Intent and have modified the rule accordingly.

With this change to require closure plan submissions with the Notice of Intent, we have modified the proposed § 267 § 267.112( c) language to account for changes to the facility requiring a change to the closure plan. These changes may include, but are not limited to, changes in the operating plan, facility design, change in the year of closure, and unexpected events. These conditions were not relevant in the proposed rule where the closure plan was not required until 180 days prior to closure.

4. Will the public have the opportunity to comment on the plan? 55 Based on the changes discussed in the previous section, the public will have an opportunity to review the closure plan during the public comment period that occurs once the draft permit is public noticed.

5. What happens if the plan is not approved?

Because of the change made to require that the closure plan be submitted with the Notice of Intent, section 267.114 is no longer appropriate and thus, is not included in the final rule. The plans are considered approved when the final permit is issued, becoming part of the permit. If the plan is not acceptable, then the standardized permit will not be issued.

6. After I stop operating, how long until I must close?

The proposed rule required that closure begin within 9030 days after the facility received its final volume of hazardous waste, and that clean closure be completed within 180 days after receiving the final volume of waste, with no time extensions. ( The rule intends that eligible units should be able to clean close.) Our rationale for requiring clean closure of the units subject to the standardized permit was to reduce the likelihood of any unforeseen circumstances and thus, it would be unlikely that closure would take longer than 180 days. Nevertheless, in the proposal, we invited comments on the need for extending the closure time period to allow for more time to clean close.

Most commenters agree with the Agency that, in most cases, 180 days is an adequate amount of time to clean close container units, tank storage units, and containment buildings.

However, commenters also believed it appropriate ( and necessary) to include a provision in the final rule that would allow for an extension for circumstances beyond the control of the owner/ operator.

Based on these comments and the Agency's experience in implementing the hazardous waste program, we agree with the commenters that a provision should be included in the final rule that would allow a one time extension for circumstances beyond the control of the owner/ operator. Therefore, we are including a provision in the final regulations at § 267 § 267.115 to allow for a one time extension of 180 days to the time allowed to clean close to address 56 circumstances beyond the control of the owner/ operator. In cases where closure is expected to take more time, the facility will be required to use post closure options to close.

7. What must I do with contaminated equipment, structures, and soils?

The language of § 267 § 267.116 is finalized, as proposed. No comments were received on this section.

8. How do I certify closure?

The language of § 267 § 267.117 is finalized, as proposed. No comments were received on this section.

I.  Subpart H  Financial Requirements Much of the regulatory language in this final rule uses a format of questions and answers that refers to the permittee as " you" and to EPA as " we." Except for the introduction to the regulations ( § 267 § 267.140), the language in Subpart H does not follow the question and answer format, and it does not use these first and second person pronouns to identify the subject. There are two main reasons for this difference. First, the underlying current financial responsibility regulations in subpart H of 40 CFR 264 and 265, which remain integral to the proposed part 267 regulations, do not use first and second person pronouns, and EPA has not rewritten the existing part 264 and 265 regulations to conform to the question and answer format. The regulations here cross reference the existing part 264 regulations extensively, and often provide that compliance with an existing part 264 provision would constitute compliance with proposed part 267. This linkage of the regulations is necessary so that firms with facilities under both existing part 264 ( or part 265 regulations) and proposed part 267 could use the same mechanism for more than one facility, thus eliminating the expense of a separate mechanism. EPA expects that several firms using the proposed standardized permit could have other facilities operating under existing part 265 interim status or part 264 permitting standards.

Second, unlike many other permitting regulations, the responsibilities in the financial assurance regulations often extend to parties in addition to EPA ( or the state permitting agency) 57 and the permittee. For example, a trustee agrees to perform certain functions as part of a trust agreement where EPA is the beneficiary, but EPA is not a signatory. Third, parties must fulfill their responsibilities in accordance with, and the language used for the documents often must conform to, specific industry standards such as the Uniform Commercial Code. Because third parties are integral to the operation of the financial responsibility regulations, EPA has not issued regulatory language based upon first and second person subjects.

1. Who must comply with this subpart and briefly what must they do? The financial responsibility requirements for the standardized permit largely mirror the provisions found currently in 40 CFR part 264 subpart H. As discussed more fully below, the major differences involve the pay in period for a trust for a new facility, and the adoption of a financial test that differs from the current financial test under 40 CFR 264 Subpart H. Both of these provisions were included in the proposal. Under § 267 § 267.140, you must comply with these regulations if you are the owner or operator of a facility that treats or stores waste under a standardized permit, except as provided under § 267 § 267.1( b), and § 267 § 267.140( d) which, like current part 264 subpart H,

exempts the States and the Federal government from the requirements of this subpart. If you are subject to these regulations, you must prepare a closure cost estimate, demonstrate financial assurance for closure, and demonstrate financial assurance for liability. You must also notify the Regional Administrator if you are named as a debtor in a bankruptcy proceeding under Title 11 ( Bankruptcy), U. S. Code.

2. Definitions. The definitions and terms in § 267 § 267.141 largely follow those currently used in § 264 § 264.141. As discussed below, the proposed regulatory text included, as a method of complying with the financial assurance requirements, a financial test that reflected the test that EPA had proposed for other hazardous waste TSDFs. Because this proposed test did not use some of the terms in the part 264 financial test, EPA omitted those definitions from the proposed part 267. For the standardized permit rule, EPA has adopted the financial tests that were contained in the proposal and so the definitions that were omitted from the proposal are again omitted from the final text of § 267 § 267.141. 58 3. Closure cost estimates. For traditional permits, the closure plan forms one of the bases for estimating closure costs. However, under the proposed rule, the holder of a standardized permit would not have had to prepare a closure plan until 180 days before closure. Therefore,

EPA developed proposed regulatory language that could accommodate this difference. As previously discussed, many commenters objected to this provision ( in part because of the difficulty of developing precise cost estimates in the absence of a closure plan) and so in the final rule, EPA has required that the closure plan be submitted with the Notice of Intent and be approved before the issuance of the standardized permit. ( See section H. Subpart G, Closure preceding this section for further discussion of this issue.) Because approval of the closure plan is now required before the issuance of the standardized permit, the closure cost estimating requirements can be and are the same for holders of standardized permits as for holders of traditionalindividual permits. Thus, the regulatory language that was included in the proposal that would have accommodated the difference between proposed § 267 § 267.142( a)( 1), ( 2), and ( 5) and the current part 264 subpart H has been removed from the final rule, and a new § 267 § 267.142( c) added. Under § 270 § 270.275( i), a copy of the closure cost estimate must be submitted with the Notice of Intent.

This is consistent with the requirement for other permits in § 270 § 270.14( b)( 15).

As under the requirements for other permitted facilities, you must develop and keep at the facility a detailed written estimate, in current dollars, of the cost of closing the facility in accordance with the closure requirements of § § 267 § § 267.111 through 267.117, and applicable closure requirements in § § 267 § § 267.176, 267.201, and 267.1108. As under the requirements for facilities operating under individual permits, you must base these cost estimates upon a closure plan. Under § 267 § 267.142( a)( 1), the estimate must equal the cost of final closure at the point in your facility's active life when the extent and manner of its operation would make closure the most expensive. We are requiring in § 267 § 267.142( a)( 2) that you base the closure cost estimate on the cost to hire a third party to close the facility. In addition, the closure cost estimate may not incorporate any salvage value from the sale of hazardous waste, non hazardous waste, facility structures or equipment, land, or other assets associated with the facility at the time of partial or final closure ( § 267 § 267.142( a)( 3)). This disallowance of a salvage credit reflects the Agency's conviction that allowing salvage value to be credited is inconsistent with the goal of ensuring adequate funds are available in the event that the owner or operator fails to cover the costs of 59 closure. Further, your cost estimate may not incorporate a zero cost for hazardous waste or nonhazardous waste that you might be able to sell. The value of waste at closure sometime in the future is too speculative to allow it to offset closure costs. ( § 267 § 267.142( a)( 4)).

Under § 267 § 267.142( b), you must adjust the closure cost estimate for inflation within 60 days before the anniversary date you established for the financial instruments utilized to comply with § 267 § 267.143. Proposed § 267 § 267.143, which we discuss below, would require an instrument to demonstrate financial assurance for closure. If you use the financial test or corporate guarantee to demonstrate financial responsibility, you must update your closure cost estimate for inflation within 30 days after the close of the firm's fiscal year and before submitting the updated financial test information to the Regional Administrator. Because the financial test submission must be updated for inflation within 90 days of the close of the firm's fiscal year, effectively both users of the financial test and corporate guarantee, and users of the other mechanisms must update the cost estimates on the same schedule.

However, we requested 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. Changing to 90 days would have made this requirement the same as the deadline for updating the financial test. After evaluating the public comments, we decided to keep the dates for updating cost estimates for holders of standardized permits the same as for individual permits.

Changing these dates would have made them inconsistent with the dates for individual permits.

While two commenters recommended the change, another recommended against it and we determined that keeping the dates consistent with the other program requirements would be preferable In adjusting your cost estimate, you may recalculate the maximum costs in current dollars or use an inflation factor derived from the Implicit Price Deflator for Gross Domestic Product published by the U. S. Department of Commerce. This is a slightly different specification for the adjustment than is currently in § 264 § 264.142 because those regulations specify the use of the Implicit Price Deflator for Gross National Product rather than the Gross Domestic Product. We proposed using the Gross Domestic Product deflator under this rule because the Gross Domestic 60 Product Deflator is more readily available. Generally, the differences between the two series are not significant and we believe using the more readily available information will help you to better comply with the requirement to adjust your cost estimate for inflation. We received no adverse comment on using the Gross Domestic Product deflator and therefore, have included it in the final rule. EPA notes it has issued guidance allowing owners and operators of facilities with individual permits to use the Implicit Price Deflator for Gross Domestic Product under § 264 § 264.142 so long as they are consistent in its use.

Under proposed § 267 § 267.142( a)( 5), you would have been required to revise your closure cost estimate in accordance with the closure plan within 30 days after submitting your closure plan. This provision is not part of the final rule because now the closure plan must be submitted with the Notice of Intent. The requirements for closure costs are the same in § 267 § 267.142 as in § 264 § 264.142. You would also adjust the revised closure cost estimate for inflation as proposed in § 267 § 267.142( b). These requirements mirror those currently in part 264 for facilities operating under individual permits and have been incorporated into this final rule.

As with the current § 264 § 264.142( c) requirement, under § 267 § 267.142( c), you must update the closure cost estimate when a modification to the closure plan has been approved. If you modify your operations so that the cost of closure would increase, you must increase the closure cost estimate and provide financial assurance for that amount under § 267 § 267.143.

Similarly, the requirements in § 267 § 267.142( d) correspond to the existing requirements in § 264 § 264.142( d) and require you to maintain the latest cost estimate at the facility, and, when the cost estimate has been adjusted for inflation as required under § 267 § 267.142, the latest adjusted closure cost estimate.

In the preamble and docket to the proposed rule, we described several options that the holder of a standardized permit could use to develop a closure cost estimate in the absence of a closure plan. As discussed more fully above in Subpart G  Closure, EPA is requiring facilities to submit a closure plan as part of the Notice of Intent and the closure plan will be available when the closure cotscost estimate is prepared.. As a result , the final rule does not need to contain tools to 61 develop a closure cost estimate in the absence of a closure plan are unnecessary. However,

because of comments suggesting that the various options for developing closure cost estimates could be useful, we note that the Options remain in the docket and may be used as aids in computing cost estimates.

EPA also requested comment on waiving cost estimates for facilities that use the financial test ( Option 6). Some commenters objected to this because firms can initially pass the financial test, but then later fail to qualify. Such firms will need a cost estimate to determine the amount of the replacement financial assurance instrument. EPA agrees with the comments that having a cost estimate will be useful in determining the amount of a replacement financial assurance instrument,