In this 1988 rulemaking, EPA stated that it would monitor decisions by state and federal permitting officials and update Appendix I to include unanticipated classifications. Id. Since that time, however, what few additions have been made to Appendix I have generally been in response to new regulatory requirements rather than accumulated experience. Nevertheless, on a broader scale EPA has noted that § 270.42( d) has not been used as intended:

After several years' experience, EPA has found that very few unclassified modifications [ i. e., modifications based on § 270.42( d)] have been processed using this procedure. EPA believes that both facilities and permit writers may be restricting themselves to only the classification examples that are in Appendix I. EPA is also concerned that in those cases where § 270.42 ( d) is used, the Class 3 modification procedure may be automatically selected, without consideration of whether the permit activity is less significant and should be reclassified to a lower category. . The above discussion illustrates that Appendix I is not a definitive list of the myriad changes to a facility that might prompt a permit modification, an understandable shortcoming that § 270.42( d) procedures sought to remedy. Under their individualized permits, CRWI members have used these procedures to implement significant technological advances ( including pollution prevention measures) that otherwise would have been delayed or abandoned if faced with the Class 3 modification process. In the proposed standardized permitting rule, however, § 270.42( d) is " dead letter;" i. e., there is no avenue for downgrading an unlisted facility change that otherwise would qualify as a Class 1 or 2 modification under a § 270.42( d) analysis. While the 120 day time frame for an agency decision on a " significant change" is certainly preferable to the open ended timeline associated with a Class 3 modification, this does not alleviate the loss of flexibility that results in substituting an admittedly incomplete Appendix I for latitude by the regulators, the public, and permittees to exercise professional judgment and common sense. The current version of § 124.211 175 will inevitably lead to relatively innocuous facility changes being processed through the most arduous modification procedure simply because Appendix I to § 270.42 is not, and probably never will be, a definitive list of potential permit modifications. CRWI respectfully submits that the flexibility allowed by § 270.42( d) be preserved in the standardized permitting rule. ( Melvin E. Keener, Executive Director, Coalition for Responsible Waste Incineration, RCRA 2001 0029 0063)

Response: The final rule does not provide a mechanism to use the procedures in § 270.42( d), which requires the permittee to submit information to the regulatory agency for review regarding the permit change, if that activity is not currently listed in 270.42. The intent of the rule is to reduce the back and forth interaction between the regulatory authority and the permit applicant that is typical of the individual permitting process.

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

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

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

While we are adding a third category, the overall permit change process is more streamlined than the existing modification process. The new category  " routine with prior approval"  would not involve a public comment or hearing process, as would be the case with regular class 2 modifications, but would require a notification to, and acknowledgment and approval from the regulatory authority, and also, within 90 calendar days of the approval, notification to the facility's mailing list. The Director would need to respond within 90 days of receiving the modification request, either approving or denying the request. 176 53. Specific Changes to Part 270: Continuation of expiring permits ( VIII. B. 7)

Comment: p. 52228, col. 2   The preamble explains that the holder of an expiring standardized permit would have 60 days to submit a RCRA Part B application after being notified by the Director that he/ she was not eligible for a standardized permit, if a timely and complete Notice of Intent to continue operating under a standardized permit had been filed.

DOE notes that compiling a RCRA Part B application requires substantial effort. EPA has acknowledged this by allowing 6 months for a hazardous waste management facility operating under interim to prepare a Part B application upon a request for one by the responsible regulatory agency ( see § 270.10( e)( 4)). Accordingly, DOE requests that EPA consider allowing 6 months, rather than 60 days, for a permittee to submit a RCRA Part B application after being notified by the responsible regulatory agency that the facility is not eligible to continue operating under its standardized permit. ( Thomas T. Traceski, Director, RCRA/ CERCLA Division, DOE, RCRA 2001 0029 0039)

Response: We disagree, and believe that 60 days should be adequate to prepare a Part B application, because the part B material should be available since the owner/ operator certified that it is available to review at the site.

54. What Information would I Need to Submit to the Permitting Agency to Support my Standardized Permit Application?: RCRA Part A application information ( IX. B. 1)

Comment: INADEQUACY OF PART A INFORMATION. Unless USEPA proposes to re develop a Part A specifically for Standardized Permits, the existing Part A only provides general facility design capacity under process codes, and hazardous waste codes and does not provide information about individual tank sizes and waste handled. This will make future permit/ equipment modification tracking very difficult. ( California Department of Toxic Substances Control, RCRA 2001 0029 0043)

Response: According to § 270.275, one of the items required to be submitted with the Notice of Intent is the Part A information described at § 270.13. Section 270.13 requires process descriptions and design capacity information as well as the identity of waste managed.

Comment: 270.275 and 270.290 appear to be relying upon vague, combined unit information in the Part A for application requirements and allowing the facility to maintain more detailed 177 information on site. Does EPA intend to use a blanket approach and not include specific unit capacities and usages( TS) in the standard permits? The general Part A unit data has historically been hard to translate into unit specific data required by RCRIS and RCRAInfo. Will it be adequate to determine what the facility is doing, when a modification was required, what GPRA interim status units are to be permitted and thus will be controlled, etc.? ( Jamie Burroughs of the TSD Section and O. J. Wingfield of Financial Responsibility, Division of Solid Waste Management, Tennessee Department of Environmental and Conservation, RCRA 2001 0029 0057)

Response: We believe the Notice of Intent and accompanying material, as required by § 270.275 provides sufficient information to help describe a facility's activities. For example, According to § 270.275, one of the items required to be submitted with the Notice of Intent is the Part A information described at § 270.13. Section 270.13 requires process descriptions and design capacity information as well as the identity of waste managed.

55. What are the Proposed Certification Requirements? Certification of compliance ( IX. C. 1)

Comment: While we have no specific opinion on whether or not audits should be conducted by ` third' parties a few points should be specifically addressed. First it appears that the certification/ audit process functionally replaces " Departmental" review and as such should be thorough and concise. Generators may not have sufficient knowledge to adequately audit the finer points of LDR treatment, standard methods/ waste analysis or the air emission provisions. On the other hand ' third' party audits, under many circumstances may be overkill.

Second, the audit process appears to address only current operations and does not address status of activities not yet begun because of pending approval. Auditing activities that have not yet begun appears futile. Third, there appears to be no discussion or provisions regarding enforcement actions for items uncovered during an audit that are currently out of compliance. ( James Butler, Regulatory Compliance Officer, Cycle Chem, Inc., RCRA 2001 0029 0031)

Response: Audits will only be required at existing facilities. EPA believes audits are important and supports the idea that the facility be allowed to perform the audit themselves, or hire a third party to conduct the audit. We are not requiring audits be conducted by a third party. The standardized permit will not be issued until the facility is in compliance with the standardized permit provisions. Because an audit report must be submitted with the notice of intent, if an audit uncovers non compliance, then that information would be reflected in the audit report, and could weigh negatively in the Director's decision to grant or deny a standardized permit application.

Comment: p. 52230, col. 2   The preamble states that proposed § 270.280 would require the owner/ operator of a facility intending to operate under a standardized permit to certify that the 178 facility is either in compliance with all applicable requirements of 40 CFR part 267 or would come into compliance with all applicable requirements. The owner/ operator would also be required to certify that the facility would continue to comply with the proposed part 267 during the term of its permit.

DOE objects to the scope of the required certification in proposed § 270.280. DOE submits that no individual would be able to certify that a facility is, in fact, fully compliant now and will continue to fully comply in the future. DOE believes that an individual could only certify his/ her belief that such was the case. Accordingly, because of the significant penalties associated with false certification, DOE regards as unreasonable the requirement for an individual to certify that his/ her facility " complies with all applicable requirements of 40 CFR part 267 and will continue to comply until the expiration of the permit." Because similar certification issues have arisen in other RCRA programs ( e. g., the LDR program), DOE suggests that EPA consider revising the language of the standardized permit compliance certification in a manner consistent with similar certification statements in such other programs. Specifically, DOE suggests that proposed § 270.280 be revised to read as follows in the final rule ( redline font = addition; strikeout font = deletion):

§ 270.280 What are the certification requirements?

You must submit a signed certification based on your audit of your facility's compliance with 40 CFR part 267.

( a) Your certification must read: " I certify under penalty of law that: ( 1) I have personally examined and am familiar with the report containing the results of an audit conducted of my facility's compliance status with 40 CFR part 267, which supports this certification. Based on my inquiry of those individuals immediately responsible for conducting the audit and preparing the report, I believe that my facility ( include paragraph ( a)( 1)( i) or ( ii) of this section, whichever applies): ( i) Complies with all applicable requirements of 40 CFR part 267 and will continue to comply until the expiration of the permit; or ( ii) Will come into compliance before permit issuance with all applicable requirements of 40 CFR part 267 and will then continue to comply until expiration of the permit. ( 2) I have personally examined and am familiar with the operation of my facility. Based on my inquiry of those individuals immediately responsible for its operation, I believe that after permit issuance my facility will continue to comply with all applicable requirements of 40 CFR part 267, until expiration of the permit. ( 3) I will make all information that I am required to maintain at my facility by § § 270.290 through 277.315 readily available for review by the permitting agency and the public; and, ( 34) I will continue to make all information required by § § 270.290 through 277.315 available until the permit expires. I am aware that there are significant penalties for 179 submitting false information, including the possibility of fine and imprisonment for knowing violation."

( b) You must sign this certification following the requirements of § 270.11( a)( 1) through ( 3).

( c) This certification must be based upon an audit that you conduct of your facility's compliance status with 40 CFR part 267. You must submit this audit the audit of your facility's compliance status with 40 CFR part 267, on which this certification is based, to the Director with the 40 CFR 124.202( b) notice of intent. ( Thomas T. Traceski, Director, RCRA/ CERCLA Division, DOE, RCRA 2001 0029 0039)

Response: We generally agree with the suggestions and will incorporate, where appropriate, into the final rule.

Comment: p. 52232, col. 2   EPA is proposing ( in § 270.315, p. 52268) that facilities operating under a standardized permit be required to keep on site the information required for tanks and containers subject to the part 264 subpart CC standards ( air emission standards for tanks, surface impoundments and containers).

DOE agrees that the appropriate air emission standards in 40 CFR part 264, subpart CC should apply to containers and tanks managed under a standardized permit, and that the information required by subpart CC should be kept on site. However, DOE is concerned that the proposed regulations do not adequately clarify the applicability of 40 CFR part 264, subpart CC to containers and tanks that will be managed subject to the proposed operating standards in 40 CFR part 267. Specifically, DOE notes that the existing regulations in § 264.1080( a) limit the applicability of 40 CFR part 264, subpart CC to owners and operators of facilities that treat, store, or dispose of hazardous waste in tanks, surface impoundments, or containers subject to either subparts I, J, or K of 40 CFR part 264. Accordingly, DOE recommends that the final rule modify 40 CFR part 264, subpart CC, § 264.1080( a) to expressly make subpart CC applicable to containers and tanks that will be managed subject to the proposed operating standards in 40 CFR part 267. Specifically, DOE suggests that § 264.1080( a) be modified in the following manner ( redline font = addition):

§ 264.1080( a) Applicability.

( a) The requirements of this subpart apply to owners and operators of all facilities that treat, store, or dispose of hazardous waste in tanks, surface impoundments, or containers subject to either subparts I, J, or K of this part, or to either subparts I or J of part 267, except as § 264.1 and paragraph ( b) of this section provide otherwise.

DOE is particularly concerned that the part 264, subpart CC provisions that allow containers to be vented to the atmosphere and still be considered " closed" for purposes of compliance with 180 container operating standards should apply to containers that are subject to proposed § 267.171( c)( 1). ( Thomas T. Traceski, Director, RCRA/ CERCLA Division, DOE, RCRA 2001 0029 0039)

Response: Section 267.204 states that the requirements of subparts AA, BB, and CC of part 264 apply to standardized permits. We believe this reference makes the applicability of part 264, Subparts AA, BB, and CC clear without adding language to part 264.

Comment: EPA requests comment on whether the facility audit that may be necessary under proposed section 270.280 should be performed by an independent third party. Id. at 52230. USWAG strongly urges EPA to promulgate a final rule that does not require a third party audit, but rather allows a facility to perform its own internal compliance audits.

Many USWAG members have internal auditors that are trained and certified to perform unbiased and accurate internal audits. USWAG urges the Agency to allow such trained professionals to perform section 270.280 audits for their companies. The language proposed by EPA will allow such audits, and USWAG therefore supports it: " This certification must be based upon an audit that you conduct of your facility's compliance status with 40 C. F. R. Part 267." Id. at 52266 ( proposed 40 C. F. R. § 270.280( c) ( emphasis added)). No specific change is needed to this language to allow internal auditors to perform 270.280 audits, though the ability to use internal auditors should be confirmed by EPA in the preamble to the final rule. ( Utility Solid Waste Activities Group ( USWAG) et al., RCRA 2001 0029 0041)

Comment: EPA requests comments on the benefits of compliance audits and whether these audits need to be performed by an independent third party. Dominion disagrees with the proposal to require a Company to conduct an audit to certify compliance with the regulations. This requirement would be a burden to the owner or operator and the Agency would need to establish minimum Agency requirements.

Dominion disagrees with the concept that audits are the only tool that can determine site compliance. Dominion understands that an audit is a tool that could determine that an entity is in compliance, but various facilities conduct site inspections, self assessments, and/ or operational reviews to determine compliance at a level beyond an audit.

Dominion disagrees with the requirement to use an independent third party auditor because the auditor must be familiar with site operations to determine how the regulations apply to a specific site. Dominion understands the intent of conducting an audit, but the Agency should not require compliance audits as part of the regulations or as part of a permit condition. ( Pamela F. Faggert, Dominion, RCRA 2001 0029 0049)

Comment: AP I does not support requiring submission of an audit with a facility's permit application that certifies compliance with unit specific standards, whether it is a self audit or a third party audit. Hazardous waste generators currently comply with self implementing standards 181 without a need to submit certifications or other evidence of meeting those standards except in a few specific situations. The standardized permit is an opportunity to simplify requirements for facilities that require a permit and conduct exactly the same types of waste management. The imposition of a requirement to certify compliance beyond what is currently required of generators is simply another paperwork requirement that does not provide an environmental benefit. Existing facilities should already be in compliance, and new facilities are not allowed to begin operations until they comply. EPA enforcement authorities, including inspections, should be sufficient to ensure compliance. EPA can visit the facility either before or after issuing a permit if there is reason to believe compliance problems exist. It is unlikely in the extreme that applicants for a permit would be involved in a permitting process if they do not believe they are in compliance. With respect to submitting a schedule of compliance for those items for which a permit applicant is not already in compliance, we believe that it stretches credulity not to be able to comply with the simple conditions specified for tanks, containers, and containment buildings prior to submitting an application, or to anticipate that EPA would issue a permit to a facility under such conditions. The only situation in which a schedule of compliance would potentially serve a significant purpose would be for corrective action. However, that schedule would not be available until the permit is issued, at which time it would become an enforceable permit condition. ( Cindy Gordon, American Petroleum Institute, RCRA 2001 0029 0050)

Comment: ADEQ has required similar compliance audits in RCRA enforcement settlements for several years. Based on this experience, we are very much in support of this approach. Compliance audits provide an increased awareness and accountability on facility owners/ operators to achieve and maintain compliance with regulatory requirements. We believe facilities which practice regular compliance auditing themselves have better compliance records. We do not recommend third party compliance auditing to fulfill this requirement. ( Joe Hoover, Manager, Active Sites Branch, Arkansas Department of Environmental Quality, RCRA 2001 0029 0053)

Comment: Comment. DoD does not support requiring independent third party audits as part of the standardized permit process.

Discussion. EPA requests comment on whether independent third party audits should be required to determine compliance status of a facility as part of the standardized permit process.

DoD believes it is the permittee's and the EPA's/ state's duty to perform compliance audits, not independent third parties. Imposing a requirement to have a third party conduct the audit adds cost without commensurate value.

Recommendation. Do not require third party compliance inspections. ( Department of Defense, RCRA 2001 0029 0055) 182 Comment: The proposed certification of compliance requires that a copy of the facility's internal compliance audit also be submitted to the agency. Since there is no standardized audit form provided by the agency to use at this time Onyx sees little value in requiring that the audit report be submitted to the agency. The quality of the audits will vary greatly not only in actual format but also in the level of detail being provided. Onyx believes that it should be sufficient that a copy of the completed audit be maintained at the facility and be made available for inspection in lieu of having to be submitted to the agency. Furthermore, Onyx believes that a facility should be allowed to utilize internal resources or a third party consultant to perform the compliance certification audit. ( Thomas M. Baker, Director, Environmental and Transportation, Onyx Environmental Services, RCRA 2001 0029 0058)

Comment: There are significant benefits of a compliance audit: it encourages facility managers to take a holistic look at operations, but the Department questions the relationship between the certification of compliance proposed in § 270.80 and traditional inspections, which are a form of " third party audit." ( Augusta Posner, Senior Assistant General Counsel, Florida Department of Environmental Protection, RCRA 2001 0029 0059)

Comment: The ETC strongly endorses audits of facility compliance as a critical element of the standardized permit process. 66 FR 52230 col 2 3. Since the role of the permit writer in reviewing facility compliance has been reduced under the streamlined procedures, and facility audit is essential. We believe that such audits must be carried out by an independent third party to assure the local community and regulatory authorities of the appearance of objectivity. We also encourage EPA to develop the promised guidance on audit reporting concurrent with issuance of the final rule.

We would recommend that the regulations require that the facility compliance audit be performed by a third party ( preferably an independent, qualified registered professional engineer). We feel that this would subject the application information kept at the facility to at least some form of review by an outside party and would result in a less biased assessment of the facility's compliance. ( Environmental Technology Council, RCRA 2001 0029 0068)

Comment: Safety Kleen believes that the audit assessment is important to determine " baseline" compliance, and should be conducted by an independent third party for all new standardized permit applicants but not for existing permitted facilities. Existing facilities are familiar with the RCRA regulations/ guidance documents and many commercial facilities such as Safety Kleen already have detailed audit checklists that are performed on a routine basis as part of an Environmental Management System ( EMS). Existing facilities should be allowed to use their own audit checklist to certify compliance. New facilities however may not be as familiar with the RCRA requirements and should have an independent third party auditor inspect the facility at least initially. ( Susan L. Prior, Regulatory Programs Manager, Safety Kleen Corporation, RCRA 2001 0029 0061) 183 Response: EPA believes audits are important. While we appreciate the comments, we believe that compliance audits are an integral part of the standardized permitting process, serving to help ensure that a facility is complying with the applicable requirements. Compliance audits are intended to support the self certification process, and should not unnecessarily burden facilities. While there may be some owners/ operators who lack the expertise to conduct audits, we believe it unnecessary to require that only third parties conduct audits, because many facility owners are familiar with, and have the expertise to audit their operations. Therefore, for the final rule, audits may either be self or third party. The final rule discusses general guidelines for conducting audits and provides references to Agency audit guidances, which should be useful for facility owners/ operators not familiar with conducting audits. In addition, the final rule does require that the auditor sign and certify that the audit report is accurate, prior to submitting to the Director with the Notice of Intent, which provides an additional safeguard.

Comment: The § 270.280 certification requirement and its relation to the § 270.10( f) pre permit construction ban for new facilities. The § 270.280 certification requirement highlights crucial timing issues that must be resolved in this rule. In this proposed provision, the permittee must certify either that the facility already complies with Part 267 requirements, or that the permittee has entered into an enforceable compliance schedule that will assure that the facility will eventually meet Part 267 requirements. Since existing § 270.10( f) prohibits construction of new hazardous waste management units without an issued permit, the latter option   set out in proposed § 270.280( a)( 1)( ii)   essentially places the applicant for a standardized permit for a new waste management unit under an enforcement order at the outset of permit process. Many potential applicants will balk at signing onto an enforceable " compliance schedule" for building a new waste management unit under constantly changing market conditions. If the proposed new waste management unit is otherwise protective of human health and the environment and eligible for a standardized permit, the timing of its construction and eventual operation should be driven more by the permittee's actual business needs rather than a " compliance schedule" that may have to be revised in light of supervening circumstances.

To deal with this contingency, CRWI respectfully proposes adding a new paragraph, § 270.280( a)( 1)( iii), as follows:

( iii) Has been designed, and will be constructed and operated to comply with all applicable requirements of 40 CFR Part 267, and will continue to comply until expiration of the permit. ( Melvin E. Keener, Executive Director, Coalition for Responsible Waste Incineration, RCRA 2001 0029 0063)

Response: We generally agree with the comment and have incorporated the language, as appropriate, in the final rule. 184 Comment: We feel that some mechanism must be in place to review the information required by proposed 40 CFR 270.290. If staffing concerns at the regulatory agency do not allow for such audits an independent third party may be required to conduct these audits at the cost of the facility. ( Missouri Department of Natural Resources, RCRA 2001 0029 0065)

Response: The standardized permit process is envisioned to be a streamlined process for rather straight forward treatment and storage activities being conducted in tanks, containers, and containment buildings. While facilities are required to maintain extensive information on site, that would otherwise be submitted under an individual permit, requiring the review of that information would detract from the streamlined intent of the process. In general, we believe that for facilities that eligible for the standardized permit, self or third party audits to verify compliance with the applicable requirements are sufficient.

56. What are the Proposed Certification Requirements? Certification of availability of information ( IX. C. 2)

Comment: Waste analysis plans are integral for the safe handling and proper treatment of hazardous waste and as such should be subject to review, especially for LDR treatments and waste verification. Facilities applying for a ` standard' permit would either be initiating new operations or expanding current operations beyond what is allowable in 90 day units. Some mechanism needs to ensue these facilities have sufficient understanding to adequately conduct these activities.

Of particular concern is adherence to LDR treatment standards by facilities with little or no knowledge or prior experience. As an example the neutralization, solidification and stabilization of acid metal containing wastes at a metal treating company in entirely different than the company normal business. Some mechanism must exist to ensure such facility's capabilities. A review of a waste analysis would accomplish this.

These waste analysis plans would not have to be elaborate but should address all the pertinent points for the processes involved. A cookbook plan could be used to simplify the process. ( James Butler, Regulatory Compliance Officer, Cycle Chem, Inc., RCRA 2001 0029 0031)

Comment: p. 52230, col. 3   The preamble explains that a facility seeking to operate under a standardized permit would be required to certify that RCRA Part B type information, such as a waste analysis plan, would be available on site for review. EPA requests comment on the need for submittal of the waste analysis plan.

As mentioned in Specific Comment I. E. 3, item 2, DOE suggests that EPA require facilities managing waste from off site to submit a waste analysis plan with the Notice of Intent to operate 185 under a standardized permit. ( Thomas T. Traceski, Director, RCRA/ CERCLA Division, DOE, RCRA 2001 0029 0039)

Comment: EPA asked whether a waste analysis plan and Part B type information should be submitted when an owner or operator submits the Part B permit. Dominion agrees that a waste analysis plan and Part B type information should not be submitted as part of the process, but should be available at the site upon request by the permit issuing agency.

Dominion disagrees that a specific certification is required from the owner or operator at any time during the permitting process. The owner or operator must comply with the regulations so a document or information availability certification should not be required.

Dominion understands the Agency's concerns regarding the availability of the waste analysis plan or Part type B information to the public. However, as proposed, the public will know the details of the site operations and waste analysis plan as part of the pre application meeting. ( Pamela F. Faggert, Dominion, RCRA 2001 0029 0049)

Comment: No, provided the requirement to maintain the waste analysis plan in the facility record remains intact. ( Joe Hoover, Manager, Active Sites Branch, Arkansas Department of Environmental Quality, RCRA 2001 0029 0053)

Comment: Yes, a waste analysis plan should be submitted even for facilities that generate a single waste stream. ( Augusta Posner, Senior Assistant General Counsel, Florida Department of Environmental Protection, RCRA 2001 0029 0059)

Comment: For captive facilities as proposed under this rule, a WAP is probably not required in the application. However, the WAP should be inspected for compliance with the proposed 40 CFR [ Title 40 of the Code of Federal Regulations] Part 267 requirements prior to issuance of the standardized permit. While a facility may know what kinds of wastes it is managing, often facilities with no prior permit applications may be missing some of the required elements in their WAPs under RCRA. ( Jim Sygo, Chief of the Waste Management Division, Michigan Department of Environmental Quality, RCRA 2001 0029 0060)

Comment: Safety Kleen believes that the waste analysis plan should not be submitted to the permitting agency. This section is typically the largest in the permit application and defeats the purpose of providing a streamline process. 40 CFR § 264.13 provides a detailed account of the waste analysis plan contents, which when combined with an audit and compliance certification should be sufficient to ensure compliance. ( Susan L. Prior, Regulatory Programs Manager, Safety Kleen Corporation, RCRA 2001 0029 0061)

Comment: We feel that since this rule only applies to facilities that manage waste on site, the facility should be familiar with the waste they themselves generate. Therefore waste analysis plans should be fairly elementary and would not need to be submitted. However, in the case where a 186 facility has numerous processes contributing hazardous waste to a storage or treatment unit, the waste analysis plan would be significantly more complex. In this case it may be prudent to submit the waste analysis plan with the initial notification to ensure that waste management procedures are adequately protective. It would also be prudent to review waste analysis plans if this rule is expanded to allow standardized permits at facilities who receive waste from off site for recycling. ( Missouri Department of Natural Resources, RCRA 2001 0029 0065)

Response: The final rule extends the scope of facilities eligible for a standardized permit. The final rule will apply to facilities managing wastes generated, and then managed, onsite as proposed. The rule will also apply to facilities that receive hazardous waste generated off site, by a generator under the same ownership as the receiving facility. ( Generators receiving wastes generated off site, would need to submit a waste analysis plan with their Notice of Intent.) As part of the final rule, we will require waste waste analysis plans to be submitted only for facilities managing wastes generated off site Several commenters expressed the need for submission and approval of waste analysis plans, particularly if the rule was extended to include off site facilities. Because we are extending the rule to certain off sites, as described previously, we are requiring those facilities to submit a waste analysis plan with the Notice of Intent. Most commenters addressing waste analysis plans supported the idea that on site facilities would not need to submit waste analysis plans. Therefore, we are not requiring on site facilities to submit waste analysis plans with the Notice of Intent.

We generally believe that on site facilities have good knowledge of the wastes they are managing, and therefore, we are not requiring that waste analysis plans be submitted with their Notice of Intent. Due to the streamlined nature of the standardized permit process, we believe that facilities conducting routine storage and treatment and that have good knowledge of the characteristics of the waste they generate and manage, and should be able to safely operate within a selfcertification of compliance process while maintaining the extensive information, normally submitted with a Part B application, on site. Furthermore, 40 CFR § 267.13 provides a detailed account of the waste analysis plan requirements, which when combined with an audit and compliance certification should be sufficient to ensure compliance. In the final rule, we are not requiring waste analysis plans for such facilities to be submitted, but maintained on site, except for the off sites as noted above. However, the Agency is also allowing facilities that receive hazardous waste generated off site by a generator under the same ownership as the receiving facility, to also be eligible for the standardized permit. In this situation, the facility will be required to submit the waste analysis plan with the Notice of Intent. As discussed previously, we believe it necessary for the waste analysis plan to be 187 submitted to help ensure that waste management procedures are adequately protective.

Comment: In a major departure from the existing RCRA permit program, EPA is proposing that facilities would certify that the information required by § § 270.290  270 315 is available at the facility for review by the public and the permitting authority. 66 FR 52230 col 3. This information which is typically included in the Part B application for an individual permit would not be submitted directly to the permitting agency. While we understand the advantages of this approach in terms of streamlining the review process, we believe that EPA should proceed here with caution.

At the very least, the final regulations should require that the permit writer visit the facility and inspect the certified information before issuance of the final permit. It seems patently absurd that a permit writer would issue a standardized permit for a hazardous waste storage/ treatment unit without ever even having seen the facility or the supporting documentation. We believe any responsible permit writer would take this step anyway, and the local community should demand it, so EPA should include this requirement in the final rule. ( Environmental Technology Council, RCRA 2001 0029 0068)

Response: We appreciate ETC's comments. However, we believe the " self certification" part of the permit application process is what helps to streamline the overall process. Furthermore, we believe that limiting eligibility to on site operations involving tanks, containers, and containment buildings will allow for a rather straightforward process.

The final rule will require that all facilities submit closure plans with the notice of intent, and that draft permits are subject to public comment. Complex facilities, where a facility visit appears necessary, may be good candidates for individual permitting.

We believe there are enough measures in place to provide assurance to both the public and to the regulatory authority that the facility in question can be operated safely.

57. What happens if my facility is not in compliance with proposed part 267 requirements at the time I submit my Notice of Intent? ( IX. C. 3)

Comment: p. 52230, col. 3 & p. 52231, col. 1   The preamble states that a standardized permit would not be issued until compliance with 40 CFR part 267 has been achieved. If a facility is not in compliance at the time the Notice of Intent is filed, then the Notice of Intent must be accompanied by a suggested compliance schedule that meets the requirements of existing § 270.33 and includes an enforceable sequence of actions with specific milestones. 188 As noted in Specific Comment III. A. 2, item 2, DOE does not object to the proposed requirement for a compliance schedule in the event that a facility seeking a standardized RCRA permit does not comply with 40 CFR Part 267 at the time a Notice of Intent is filed. However, the mechanism by which the compliance schedule would become " enforceable," as required by the proposed 40 CFR 270.285( a), is unclear, particularly for interim status facilities. DOE notes that the requirements of existing § 270.33 address schedules of compliance that are enforceable because they are incorporated into RCRA permits as conditions of the permits. In comparison, the § 270.285 addresses a schedule of compliance that would be submitted with the Notice of Intent to operate under a standardized permit. In the latter case, the schedule of compliance would not become an enforceable permit condition, because the responsible permitting agency would not issue the permit until the facility had completed the schedule and achieved compliance. Nevertheless, DOE questions the need for an enforceable compliance schedule. Since the permitting authority will not issue a new or renewed permit until the facility achieves compliance with part 267, DOE believes there is sufficient incentive for the facility to adhere to the compliance schedule without the threat of agency enforcement action. For these reasons, DOE suggests that, in the final rule, EPA either delete the word " enforceable" from § 270.285( a) or clarify the provision in proposed § 270.285 ( p. 52266) requiring that the schedule of compliance " include an enforceable sequence of actions with milestones" ( emphasis added). If EPA elects to do the latter, DOE would support issuance of the standardized permit with the schedule of compliance included as a supplemental condition. ( Thomas T. Traceski, Director, RCRA/ CERCLA Division, DOE, RCRA 2001 0029 0039)

Response: We agree with DOE in part and will, in the final rule, require that existing facilities seeking a standardized permit be in compliance with all provisions for Part 267 prior to submitting their notice of intent.

Comment: Under the standardized permit the agency would review the Notice of Intent and determine whether the facility is eligible for the standardized permit. The proposal further suggests that the agency could consider the facilities compliance history. Unless EPA provides further specifics in the rule, this will be a very subjective determination. If this decision were appealable this would create additional strain on resources and contribute to delays in permitting and corrective action.

Another problem may also exist with this approach. For example, under RCRA 7002, could third parties sue the Administrator for not reviewing the intent? This approach also seems to complicate completeness issues, the public's opportunity to review the application, notice of intent, or supporting information that support the applicant's request. ( Jennifer R. Kaduck, Chief, Georgia Department of Natural Resources, RCRA 2001 0029 0048)

Response: This rule making would not change how third party suits under 7002 are handled.

Comment: Sec. 270.285  Compliance Schedule 189 Since the proposal stipulates that standardized permits will not be issued until compliance with the new Part 267 standards is certified, we don't understand the need for an applicant whose facility is not in full compliance with Part 267 to submit a compliance schedule with the Notice of Intent. Applicants should simply not submit a Notice of Intent to operate under a standardized permit until they are in full compliance and can provide the required certification. Section IX. C. 3. of the preamble indicates that the schedule would be required to meet existing 40 CFR 270.33 standards. 40 CFR 270.33 addresses only schedules of compliance that are part of RCRA permits, and is intended to be used to lead permittees who comply with Part 265 standards, but not all Part 264 standards into full compliance thru the use of permit conditions.

Therefore, unless the intent is to allow schedules of compliance in standardized permits, like other RCRA permits, we would recommend that this and related sections be deleted from the proposal. ( John A. Castner, Director of the Division of Solid and Hazardous Waste, New Jersey Department of Environmental Protection, RCRA 2001 0029 0069)

Response: We agree with NJDEP and will clarify that we do not need a compliance schedule related to the Notice of Intent ( related to compliance with part 267), and that facilities must be in compliance with part 267 standards prior to the issuance of the standardized permit.

58. What Information would be Required to be Kept at my Facility? ( IX. D)

Comment: Part 270, Subpart I  Information Requirements Sections 270.290 thru 270.315 specify the information which must be kept at the facility relative to containers, tanks, equipment, etc. The requirement for containment building information is missing and should be added to these sections. ( John A. Castner, Director of the Division of Solid and Hazardous Waste, New Jersey Department of Environmental Protection, RCRA 2001 0029 0069)

Response: We recognize the standardized permit rule does not provide a section for containment buildings. The information required for containers and tanks is based on existing part 270 Part B informational requirements. Because there are no Part B informational requirements for containment buildings in part 270, we did not include a section for this rulemaking.

59. What Information would be Required to be Kept at my Facility? Air emission control information ( IX. D. 5)

Comment: p. 52232, col. 2   EPA is proposing ( in § 270.315, p. 52268) that facilities operating under a standardized permit be required to keep on site the information required for tanks and containers subject to the part 264 subpart CC standards ( air emission standards for tanks, surface impoundments and containers). 190 DOE agrees that the appropriate air emission standards in 40 CFR part 264, subpart CC should apply to containers and tanks managed under a standardized permit, and that the information required by subpart CC should be kept on site. However, DOE is concerned that the proposed regulations do not adequately clarify the applicability of 40 CFR part 264, subpart CC to containers and tanks that will be managed subject to the proposed operating standards in 40 CFR part 267. Specifically, DOE notes that the existing regulations in § 264.1080( a) limit the applicability of 40 CFR part 264, subpart CC to owners and operators of facilities that treat, store, or dispose of hazardous waste in tanks, surface impoundments,. 20 or containers subject to either subparts I, J, or K of 40 CFR part 264. Accordingly, DOE recommends that the final rule modify 40 CFR part 264, subpart CC, § 264.1080( a) to expressly make subpart CC applicable to containers and tanks that will be managed subject to the proposed operating standards in 40 CFR part 267. Specifically, DOE suggests that § 264.1080( a) be modified in the following manner ( redline font = addition):

§ 264.1080( a) Applicability.

( a) The requirements of this subpart apply to owners and operators of all facilities that treat, store, or dispose of hazardous waste in tanks, surface impoundments, or containers subject to either subparts I, J, or K of this part, or to either subparts I or J of part 267, except as § 264.1 and paragraph ( b) of this section provide otherwise.

DOE is particularly concerned that the part 264, subpart CC provisions that allow containers to be vented to the atmosphere and still be considered " closed" for purposes of compliance with container operating standards should apply to containers that are subject to proposed § 267.171( c)( 1). ( Thomas T. Traceski, Director, RCRA/ CERCLA Division, DOE, RCRA 2001 0029 0039)

Response: Duplicate question. . answered previously under question category No. 56.

60. Public Comments on Corrective Action and Financial Assurance Issues ( X)

Comment: We question the legality of a substitution of the federal RCRA corrective action process in favor of other cleanup programs. Most RCRA facilities in Georgia and many other states are well into the RCRA corrective action process. GEPD and U. S. EPA Region IV have spent years to get these facilities into active corrective action. To open the gates to other cleanup programs at this advanced stage in the program will result in frustration and delay and will set back the cleanup program that has been underway in our RCRA authorized program for fifteen years.

There is an inherent loss of federal enforcement and subsequent lack of regulatory leverage if RCRA cleanups are deferred to state authorities. It would be very complicated from a legal standpoint for EPA attempt to enforce a state law simply by virtue of that law being referenced in a state RCRA permit. We have been very successful in compelling corrective action at recalcitrant 191 sites by partnering with Region IV to bring state and federal authorities to bear on a single problem. This would likely not be possible if RCRA cleanup is just deferred to state cleanup program.

It is also unclear if EPA will fund states to operate state cleanup programs through RCRA grants. States simply do not have the resources to absorb the RCRA cleanup program, which is already under funded. Also, states are not anxious to have their state cleanup law tested in court by large litigious RCRA facilities. In Georgia, we simply do not have the legal staff for protracted legal challenges to our state superfund law, nor would we wish to invite legal challenges even if we had the resources.

Finally, the proposed " Postponement" and " Deferral" programs are not consistent with EPA's established goals under the Government Performance and Results Act ( GPRA) and are not justified from a protection or equity standpoint. ( Jennifer R. Kaduck, Chief, Georgia Department of Natural Resources, RCRA 2001 0029 0048)

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

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

Comment: On the other hand, NADA is concerned about corrective action and financial assurance issues. Recently, several hundred dealerships were reminded of the historical weaknesses inherent in certain state and Federal approaches to corrective action, closure and financial assurance when they became involved in the Spectron Superfund Site in Elkton, Maryland. This site involved a permitted solvent recycling facility that was allowed to operate into the late 1980' s, only to close down without appropriate corrective action, closure/ post closure or financial assurance. The resulting Superfund action has involved more than one thousand small businesses who relied on Spectron's permitted status and deep pocket corporate parent.

Without question, any modifications to EPA's approach on corrective action, closure and financial assurance issues must be designed to eliminate even the slightest possibility that a hazardous waste facility operating today will become a Superfund site tomorrow. All generators, including dealerships, must have confidence in the permitted waste management facilities they do business with. As a practical matter, the small business waste generating community has little or no ability 192 to review and comment on hazardous waste facility permit specifics. They must instead rely on the stringent exercise of appropriate state and Federal authorities. Therefore, while a variety of flexible permitting and enforcement mechanisms may be warranted to achieve expeditious and thorough corrective action, oversight must be rigorous. Whether a corrective action or closure involves a RCRA moniker is less important than whether it is timely and well controlled. The objective must be equal or superior environmental benefits and zero likelihood that a Superfund site will result.

NADA supports tighter restrictions on the types of financial assurance mechanisms available to hazardous waste treatment, storage, and disposal facilities. Moreover, NADA supports the application of Part 264 corrective action, closure/ post closure and financial requirements to facilities governed under Part 279, Subpart F. ( Douglas I. Greenhaus, Director, Environment Health and Safety, National Automobile Dealers Association, RCRA 2001 0029 0052)

Response: Thank you for your comments.

61. Public Comment on Corrective Action and Financial Assurance Issues: Corrective Action ( X. A)

Comment: USWAG supports fully EPA's recognition of the ability of alternate state cleanup authorities to satisfy RCRA Corrective Action requirements. We agree that it is important to address this issue explicitly within the context of the standardized permit proposal to " balance [ EPA's] desire for a streamlined permitting process against the need for flexibility in the corrective action program." Id. at 52213. The standardized permit process and general terms must not limit the authority of state and regional regulators to work with corrective action site managers to determine optimal, site specific remedies. State alternate cleanup authorities have been designed carefully to accommodate these considerations, and EPA should defer to those authorities to satisfy RCRA § § 3004( u), ( v) and 3005( c)( 3). ( Utility Solid Waste Activities Group ( USWAG) et al., RCRA 2001 0029 0041)

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

Comment: Additional corrective action flexibility seems to be provided in the proposed rule, but exercising this flexibility appears discretionary. We approve of this allowance to apply the 193 corrective action flexibility on a discretionary basis. ( Jill B. Pafford, Chair of the ASTSWMO Corrective Action and Permitting Task Force, RCRA 2001 0029 0064)

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

Comment: EPA should issue standards dealing with the use of alternate authorities to accomplish corrective action at RCRA TSDFs as guidance, leaving it up to the regions and states to determine if and how they will implement this guidance. The authorized agencies will be best equipped to make a decision on whether or not they want to allow alternate authorities to handle RCRA corrective action. In some cases it is very appropriate to encourage clean up under another authority, primarily to avoid dual regulating the site. However, if the alternate authority concept is promulgated as rule, facilities will be shopping around for the best regulatory program or clean up deal they can find. The Alternate Cleanup Program idea should be issued as guidance and implemented by individual States as part of RCRA reforms initiative. ( Jill B. Pafford, Chair of the ASTSWMO Corrective Action and Permitting Task Force, RCRA 2001 0029 0064)

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

Comment: Use of Guidance vs. Regulations EPA notes that it is currently contemplating issuing policy guidance on the alternate authority issue instead of proposed and final regulations. AISI heartily concurs with this approach and urges EPA to issue guidance as soon as practicable on this issue to promote the use of alternate state authorities.

Issuance of guidance on this issue would preserve maximum flexibility for the employment of differing state programs while providing all interested stakeholders with notice of the Agency's intentions. In addition, guidance would be consistent with EPA's previous determinations that issuance of program guidance in lieu of final Subpart S regulations would better serve the RCRA corrective action program because it would be less disruptive of state programs already in place. Finally, the preamble discussion of the alternate authority issue in this Federal Register publication provides ample notice of, and opportunity to comment on, the Agency's proposals and intentions 194 with respect to this issue. As such, all stakeholders will have been afforded a meaningful opportunity to make their views known on this important topic.

At the same time, and as discussed further below, EPA's Federal Register discussion of this subject raises a number of significant and thorny issues whose resolution would be benefitted by further dialogue between the Agency and interested stakeholders. Consequently, AISI strongly encourages EPA to seek additional input on these issues prior to finalizing any such guidance. ( American Iron and Steel Institute, RCRA 2001 0029 0066)

Response: The Agency appreciates commenter's views concerning issuance of guidance ( rather than regulation) related to the use of alternate authorities. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities. The Agency continues to explore the use of alternate authorities, but would prefer to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking.

Because issues related to alternate authority use are not addressed in this final rule, the Agency did not respond to comments related to those issues.

Comment: Proposed Limitation on Use of State Authorities to Corrective Action Under Permits The Agency's discussion of the alternate authority issue is limited to circumstances in which RCRA corrective action would otherwise proceed pursuant to a final RCRA permit. AISI sees no reason why use of alternate state authorities would not also be appropriate  in states where EPA has determined their use is generally appropriate  at non permitted facilities that have at some point operated under RCRA interim status and are thus candidates for interim status corrective action orders under Section 3008( h) of RCRA. Indeed, facilities that have already received a Section 3008( h) order, e. g., for site investigation and characterization but not for corrective measures, might also be appropriate candidates for use of alternative state authorities for subsequent phases of corrective action. ( This would be particularly, albeit not solely, true where a state received EPA authorization for its corrective action program subsequent to issuance of a Section 3008( h) order by EPA for the limited purpose of site investigation/ characterization.)

AISI strongly urges EPA to establish a policy for use of alternate state authorities that would be applicable to all facilities subject to RCRA corrective action requirements. The approach set forth below, we believe, should be equally applicable and implementable for all RCRA corrective action sites. ( American Iron and Steel Institute, RCRA 2001 0029 0066) 195 Response: The Agency appreciates AISI's comments concerning the development of guidance that would address use of alternate authorities at all facilities, not just permitted facilities. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue. The Agency continues to explore the use of alternate authorities, but Agency agrees with commenter that it would be preferable to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking.

Comment: Mechanism for Implementing Alternate State Authority Approach The Agency has proposed two " methods of addressing, within the RCRA permit, the cleanups conducted pursuant to alternate State authorities." Id. at 52233. Under the first method, the " postponement" approach, the permit issuing agency would postpone the ultimate determination of facility specific corrective action requirements until after a cleanup under an alternate State cleanup authority is completed. Under the second method, the " deferral" option, the permit issuing agency would make an upfront determination that a cleanup conducted under an alternate authority will satisfy the corrective action requirements at a site, and then completely defer corrective action requirements to the alternate program.

AISI respectfully submits that both of these approaches contain elements that are likely to discourage significantly the use of alternate state authorities. The " postponement" approach suffers from the significant defect that the facility owner/ operator will not know until the cleanup under state authorities is complete ( at some indeterminate point) whether its significant investment of resources has served to satisfy its RCRA corrective action obligations. This uncertainty  and possible waste or misdirection of resources  is likely to be intolerable to many facility owners/ operators and serve as a severe disincentive to use of alternate state authorities. The " deferral" approach, on the other hand, would " not be conditioned on a review conducted at the end of the cleanup but rather be based on an analysis at the time of permitting, considering the recommended criteria, of the specific corrective action contemplated by the alternate cleanup program, or on a review of the alternate program itself, and demonstrating that the cleanup of the facility will be protective of human health and the environment." Id. at 52234 ( emphasis supplied). While this approach addresses the uncertainty concern posed by the postponement approach, it is likely to entail a significant commitment of dual permitting agency and facility owner/ operator resources  and concomitant delay  upfront in the process as EPA, the State, and the permittee all essentially " negotiate" the terms and conditions of the cleanup. AISI is concerned that this approach could well result not so much in a deferral to states of cleanup decisions at individual sites, but rather a process laden procedure pursuant to which EPA can " second guess" the overall remedial approach that even States authorized for corrective action choose to take at individual sites. Finally, as noted above, both options suffer from the fact that they are geared to final RCRA permit situations only, and do not cover other facilities subject to RCRA corrective action authorities. 196 AISI believes that EPA already has in place a process which EPA could use, with issuance of confirmatory guidance, for the purpose of authorizing the use of alternate state authorities to fulfill RCRA corrective action obligations. As the Agency is aware, several EPA Regions have in place Memoranda of Agreement (" MOA") with states within their Regions which reflect EPA determinations that: ( 1) signatory states have protective non RCRA remedial programs in place ( i. e., state voluntary cleanup programs (" VCPs")), and ( 2) those programs are sufficiently protective to enable the Agency to agree in the MOA that it will not seek to require further removal or remedial action under federal law at sites being remediated under those authorities except essentially in situations involving an " imminent and substantial endangerment." Inherent in those determinations is presumably an EPA conclusion that cleanup under the state programs involved should be sufficient to fulfill RCRA corrective action obligations ( otherwise, the Agency would not have agreed to forego invocation of federal cleanup authorities except in unusual circumstances). Put another way, if EPA has agreed in a MOA to forego use of its removal and remedial authorities at a site being cleaned up under alternative state authorities, it should be willing to forego use of comparable RCRA corrective action authorities as well. As such, these MOAs  which EPA has already entered into with numerous states  should provide a sufficient basis for determining that cleanup under the state programs involved should suffice to achieve RCRA corrective action program obligations.

Under this approach, any facility subject to RCRA corrective action obligations could choose, upon notice to the permitting agency, to proceed under the state remedial authorities which were the basis for an EPA determination to enter such a MOA with the state involved. The permitting agency could then ( 1) provide public notice that the facility had chosen to fulfill its corrective action obligations under a state program that EPA had determined is adequately protective for purposes of fulfilling the objectives of the federal program, and ( 2) describe the opportunities under the state program for public comment on corrective action at the site. Opportunities to challenge cleanup decisions would be those afforded under the state program involved. For its part, EPA could conduct whatever level of oversight it wished for each such cleanup consistent with the oversight it is otherwise choosing to conduct of cleanups conducted under the programs of " MOA states".

In order to maximize the effectiveness of this approach, it should be accompanied by two other actions. First, EPA Headquarters should strongly encourage the Regions to pursue MOAs in states with robust cleanup programs that are not yet signatories to MOAs ( and assist the Regions and States in doing so). Second, in order to address the " uncertainty" issue posed by EPA's retention of authority to take further action in a MOA state in the event of an " imminent and substantial endangerment," EPA should confirm that it expects to use that authority only sparingly and in highly unusual circumstances. Confirmation of this sort would be consistent with statements made by senior EPA management officials ( in Congressional testimony and elsewhere) that the Agency has yet to use its " imminent and substantial endangerment" authority at a site being remediated under a state program generally viewed as protective by EPA as a whole. 197 This approach has several virtues. First, the approach is already in place and appears to have resulted in a workable program in those states and Regions that have pursued it. Consequently, the approach should already be well understood and readily implementable. Second, the criteria by which state programs are to be judged for " protectiveness" are already established and understood. Third, the approach would not dictate either an " upfront" or " after the fact" case by case review of the protectiveness of each cleanup under an " approved" state program; instead, EPA " oversight" of the protectiveness of the cleanup would be undertaken in the same manner as it otherwise is being pursued under existing MOAs. Finally, the approach, if properly structured, should avoid the pitfalls of the two methods proposed by EPA, including the applicability solely to facilities with final RCRA permits.

AISI recognizes that there are certain limitations under this approach as well, not the least of which is the fact that some states do not allow sites subject to RCRA corrective action requirements to be cleaned up under the state authorities that served as the basis for a MOA. In those states, either the states could modify their eligibility requirements ( with this new EPA initiative as an incentive to do so), and/ or EPA could conclude that cleanup under unauthorized state corrective action programs was " functionally equivalent" to cleanup under the alternate state VCPs that EPA reviewed for purposes of the MOA ( on the basis of a conclusion that those state programs were at least as rigorous as alternate state remedial authorities reviewed for purposes of evaluating the appropriateness of a MOA).

If EPA concludes that the MOA approach outlined above is unacceptable for some reason, AISI encourages the Agency to enter a dialogue with the regulated community to explore the noted shortcomings of the two options it has proposed. Those discussions may provide a basis for refining one ( or both) of those approaches in a manner that will sufficiently mitigate the disincentives they present to use of alternate state authorities. ( American Iron and Steel Institute, RCRA 2001 0029 0066)

Response: The Agency continues to explore the use of alternate authorities, and appreciates AISI's thoughtful comments on this issue. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue.

Comment: Criteria for Assessing Adequacy of Alternate State Cleanup Programs Consistent with the approach outlined above, AISI believes that the criteria for assessment and evaluation of alternate state programs should be those already set forth in the November 14, 1996 " Interim Approaches for Regional Relations with State Voluntary Cleanup Programs," i. e., the " VCP guidance" criteria. As noted above, EPA has already made a determination that these criteria are appropriate for assessing whether state remedial programs are sufficiently robust that invocation of federal cleanup authorities is generally unnecessary. In addition, the criteria have proven to be workable and " acceptable", leading to MOAs in several Regions with numerous 198 States. Finally, AISI is unaware of any evidence that would demonstrate that the criteria have proven inadequate for demonstrating the sufficiency of state programs.

Regardless of the state program evaluation criteria used, however, AISI agrees with the Agency that the level of assessment of the adequacy of the alternate state program need not be as stringent or comprehensive as that conducted in the authorization process for state correction action programs. As indicated above, the review process EPA has already adopted for entering MOAs with states for use of state remedial programs in lieu of federal authorities appears to have proven acceptable, workable, and protective. Once a MOA has been entered, use of the alternate State program that formed the basis for the MOA should be permitted at individual sites unless EPA has made a determination, based on experience to date with that state program, that the MOA is no longer viable. This result is particularly  but not solely  warranted in states already authorized by EPA for RCRA corrective action.

An " authorization" approach akin to that in place for authorization of state corrective action programs would likely present the delays, resource drains, and other problems associated with RCRA authorization processes now in place. Accordingly, AISI urges EPA not to employ that approach. ( American Iron and Steel Institute, RCRA 2001 0029 0066)

Response: The Agency appreciates commenter's position on assessment and evaluation of alternate State programs. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities. Because issues related to alternate authority use are not addressed in this final rule, the Agency did not respond to comments related to those issues.

Comment: Conclusion The proposal by EPA to adopt a policy that would promote the use of state cleanup programs in lieu of the federal or state authorized RCRA program to satisfy corrective action requirements is an important one. If adroitly fashioned and implemented, the policy could go far in promoting more, and more timely, cleanups at RCRA corrective action sites, thereby advancing the objectives of both RCRA and the Government Performance Results Act.

At the same time, the discussion in these comments regarding the appropriate method for determining whether cleanups under state authorities are sufficiently protective of human health and the environment hopefully highlights the fact that issue is a difficult one. As such, AISI believes it is one that merits further discussion with the States and other interested stakeholders. AISI therefore encourages EPA to continue the dialogue initiated in this Federal Register notice on a fast track basis with the intent of fashioning in relatively short order an optimal approach. ( American Iron and Steel Institute, RCRA 2001 0029 0066) 199 Response: The Agency continues to explore the use of alternate authorities, and appreciates AISI's thoughtful comments on this issue. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue.

Comment: General Support for Alternates to RCRA Corrective Action Council member companies are actively engaged in remedial activities at a large number of sites on the RCRA Cleanup Baseline. We are long time participants in RCRA Corrective Action advocacy, and look forward to working closely with the Agency on this and other efforts to improve the corrective action program.

We share the Agency's interest in providing more flexible means of achieving RCRA Corrective Action requirements, and commend the Agency for suggesting that cleanup programs other than the authorized RCRA Corrective Action program may be used to achieve RCRA's requirements for protection of human health and the environment. Allowing alternate cleanup approaches is consistent with the Agency's efforts in recent years to shift the RCRA Corrective Action program from a process heavy to a results focused program.

The Agency's recognition that further RCRA rulemaking may be detrimental to the pace of cleanups, and understanding that state programs are both effective and protective, as evidenced by the withdrawal of the Subpart S proposal ( October 7, 1999, 64 FR 54604), has been instrumental in improving the RCRA Corrective Action program. The best hopes for cleanup progress lie at the state level. EPA has correctly shifted its efforts from a top down approach in which states are provided prescriptive regulations to a more flexible regime in which states are provided a variety of guidance / policy tools with which state authorities are able to determine the most appropriate means to achieve cleanups that are protective of human health and the environment.

The Agency's proposal to make additional tools   in the form of alternate regulatory programs   available is an additional positive step. The Council strongly supports this concept. The balance of our comments details our support and provides our input on issues for which the Agency solicits comment. ( American Chemistry Council, RCRA 2001 0029 0067)

Response: The Agency appreciates ACC's comments concerning the use of alternate authorities to address corrective action. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue. The Agency continues to explore the use of alternate authorities but would prefer to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking. 200 Comment: Alternate Programs Should not be Limited to Permitted Facilities The Agency's discussion of allowing alternate state cleanup programs appears to be limited to permitted facilities. We believe that alternate state programs may also be appropriate at facilities subject to RCRA Corrective Action activities via an order ( e. g., RCRA Section 3008( h) order). The benefits of alternate state cleanup programs could aid both RCRA permitted and order sites in streamlining corrective action efforts. We therefore recommend that EPA's policy for allowing alternate state cleanup programs apply to all RCRA Corrective Action sites. ( American Chemistry Council, RCRA 2001 0029 0067)

Response: The Agency appreciates ACC's comments concerning the use of alternate authorities at all facilities, rather than just at permitted facilities. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue. The Agency continues to explore the use of alternate authorities, and agrees with commenter that the issue should be addressed in the broader context of all facilities, rather than just permitted facilities. Therefore, the Agency believes it is more appropriate to address this issue outside of this rulemaking.

Comment: Guidance, Rather than Rulemaking, Should be Used to Allow State Alternate Programs.

EPA solicits comment on whether mechanisms to allow the use of alternate state programs should be done via guidance or rulemaking. We strongly encourage EPA to employ guidance rather than rulemaking. The complexity of writing regulations to address the multiplicity of program specific circumstances would result in a loss of the flexibility needed to advance the pace of corrective action. We suggest that the Agency develop guidance that provides general assistance on how alternate state cleanups may be used in lieu of the RCRA Corrective Action program.

We are concerned that it would be extremely difficult to craft regulations that can anticipate the issues that may need to be addressed when considering the multiplicity of current and future state cleanup programs that may be appropriate means to achieve RCRA's goals of protection of human health and the environment. Guidance would provide a more general and flexible framework to facilitate the use of alternate programs.

We commend the Agency for raising the important issues in this notice, and recognizing the benefits of providing alternatives to the base RCRA Corrective Action program. We appreciate the opportunity to communicate our view on the key points raised in the Federal Register notice, but we believe that this may be a complex issue warranting further discussion. We urge the Agency to continue the dialogue with the Council and other stakeholders on this issue such that an optimal approach may be developed. We welcome the opportunity to work with the Agency in a subsequent dialogue. ( American Chemistry Council, RCRA 2001 0029 0067) 201 Response: The Agency appreciates ACC's comments concerning the development of guidance on alternate authorities, rather than regulations. This final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue. The Agency continues to explore the use of alternate authorities, but would prefer to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking.

62. Could I satisfy the RCRA corrective action requirements for my site by conducting cleanup under an alternate State program? ( X. A. 1)

Comment: Generally anything that simplifies administrative oversight and compliance requirements while not sacrificing accountability is a good thing. For corrective action it's the final result that is important not necessarily how it is achieved. Simplification of the State's and EPA's evolvement is a positive. ( James Butler, Regulatory Compliance Officer, Cycle Chem, Inc., RCRA 2001 0029 0031)

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

Comment: p. 52232, cols. 2 & 3   EPA is soliciting comment on whether and under what conditions it should adopt a policy that would promote the use of cleanup programs other than the authorized RCRA program to satisfy corrective action requirements at permitted facilities.

DOE supports EPA's contention in the preamble that by developing a policy that recommends guidelines for the use of alternate authorities at permitted facilities, the Agency would be able to leverage the potential offered by alternate cleanup authorities, while at the same time ensuring that cleanups conducted under those authorities satisfy the statutory requirements of RCRA. EPA has already noted the usefulness of alternate cleanup authorities in the Post Closure rule, wherein the Agency established standards for the evaluation of alternate authorities that are adequate to ensure that statutory requirements of RCRA are met ( 63 FR 56710, October 22, 1998). DOE believes that alternate authorities deemed to be protective for the purposes of post closure would also be appropriate for the purposes of corrective action.

pp. 52232, col. 3   The preamble notes that, although EPA currently is contemplating 202 issuing policy guidance on the alternate authority issue, the Agency may decide instead to issue the guidance provisions discussed in section X. A. 1 of the NPRM as final regulations. EPA solicits comment on whether such a policy, if adopted, should be promulgated as regulations or issued as guidance.

In keeping with EPA's practice for RCRA corrective action, and to preserve the flexibility EPA has incorporated into the RCRA corrective action program, DOE recommends that EPA issue policy guidance on the alternate authority issue. This guidance should include specific criteria that alternate cleanup programs must meet in order to be considered substantially equivalent. Key factors would include cleanup to accepted risk based standards ( including those based on residential and industrial land uses), and public involvement. ( Thomas T. Traceski, Director, RCRA/ CERCLA Division, DOE, RCRA 2001 0029 0039)

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

Comment: USWAG agrees that " by developing a policy that recommends guidelines for the use of alternate authorities at permitted facilities, the Agency would be able to leverage the potential offered by alternate authorities, while at the same time ensuring that cleanups conducted under those authorities satisfy the statutory requirements of RCRA." Id. at 52233. USWAG recommends that EPA establish this policy in the form of guidance to provide the flexibility needed to address variations among state programs. We also request that EPA develop the guidance through a stakeholder process. ( Utility Solid Waste Activities Group ( USWAG) et al., RCRA 2001 0029 0041)

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

Comment: API supports promulgation of the deferral option for corrective action, under which alternate state program cleanup requirements would become enforceable conditions of the RCRA permit. The complexity and duration of corrective action programs at sites require a significant 203 commitment of resources. Both the industry and the public are best served by ensuring that the early decisions not to have to be revisited following large expenditures of money and time. The postponement option discussed by EPA would require just that. If cleanup is not considered until completion, there is a significant possibility that a facility would need to complete additional unplanned and unbudgeted activities. ( Cindy Gordon, American Petroleum Institute, RCRA 2001 0029 0050)

API does not support a review of alternative state programs for states that have been authorized for corrective action. If EPA finds it necessary to review alternative state programs in states that are not authorized, we strongly prefer use of the criteria currently applied to voluntary cleanup programs to those identified in the post closure rule or the ANPR on corrective action. States that have been authorized for corrective action under RCRA have already undergone extensive review. That review has resulted in a determination that the state is capable of implementing cleanups and that it has appropriate authorities. There is no need to revisit the state's programs in this context. As far as reviewing alternative programs in states that have. not yet been authorized for corrective action, the criteria identified in the latter documents closely parallel the state authorization review process, and are inconsistent with EPA's statement that it does not believe the level of review of alternate cleanup programs would be commensurate with that used for the state authorization process. Use of an ANPR for guidance on this issue is inconsistent with the Administrative Procedures Act ( APA) since an ANPR does not represent final Agency action. ( Cindy Gordon, American Petroleum Institute, RCRA 2001 0029 0050)

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

Comment: EPA Should Not Allow Any Facility To Satisfy RCRA Corrective Action Requirements By Conducting Cleanups Under An Alternative State Program. Doing So Presents A Serious Threat To Public Health And Environmental Quality.

Congress drafted RCRA intending that the statute provide EPA with the authority to ensure facilities clean up contaminated sites pursuant to consistent federal standards that protect public health and environmental quality, and which ensure the public a meaningful role in the clean up process through access to all relevant information pertaining to the clean up, and by giving the public a voice in clean up decisions that could detrimentally affect their community. State voluntary clean up programs fail to provide a consistent level of protection for public health and environmental quality, and a consistent meaningful voice for the public in clean up decisions. 204 Therefore, EPA should not accept requirements of any state voluntary cleanup program in lieu of RCRA's CA requirements. National, state, and local environmental and public interest organizations strongly oppose any movement by EPA in this direction.

A. Some State Programs Lack Key Protections It is clear that not all state programs are alike. However, some broad themes are evident from the available data. For example, information on state enforcement of environmental laws and analysis of state cleanup programs raise cause for concern regarding inadequate cleanup standards, low rates of enforcement, minimal or non existent public participation provisions, inability to manage contained sites over the long term, inadequate funding, and insufficient technical expertise for remediating very contaminated sites. In fact, numerous state programs share these significant deficiencies.

B. Concerns Over State Enforcement Of Environmental Laws As reported by " Inside EPA," there is EPA data demonstrating that some states may not be vigorously enforcing environmental laws. While states have raised concerns over the data's quality, both " state and EPA officials confirm that state enforcement activity has dropped since 1994, and that hazardous waste enforcement has fallen hardest." This drop in enforcement of hazardous waste relates to the RCRA.

C. Declines In State Enforcement Actions The data shows that state enforcement under all environmental statutes has dropped by as much as 30 percent from historic highs. For example, in 1997, Oregon filed 138 enforcement actions, which is down from 438 in 1994. Indian's totals for the same period dropped from 2,509 to 165. In 1995, California filed 208 enforcement actions, down from 813 in 1993.

Leading this overall decline was state enforcement of RCRA, which dropped by more than 50 percent, and possibly as much as 70 percent, nationwide from 1993   1997. A number of states have experienced particularly dramatic declines, including Indian ( 191 in 1993 to 1 in 1997), New York ( 221 in 1994 to 1 in 1997), and New Jersey ( 100 in 1994, 0 in 1996, and 1 in 1997). These declines came during a time when major violations of RCRA jumped from 269 in 1996 to 550 in 1997.

There are numerous possible causes for this decline in state enforcement. Two causes frequently cited are shrinking state enforcement budgets and shifting priorities by state agencies. Inside EPA reported that " state legislature are squeezing the budgets of environmental agencies, and there is less money coming to states from EPA." One source in EPA headquarters commented that, "` There are fewer inspectors, fewer state resources. . . [ and] the trend [ for enforcement activity] has been down.'" 205 Inside EPA also reported that states are shifting priorities towards " offering technical assistance to obtain compliance up front." However, there is no comparative data on the effectiveness of this assistance in reducing pollution. Absent such baseline data, claims of increased benefits remain just that, unsubstantiated claims.

A December 1998 review of state and federal enforcement measures in EPA Region 5, the largest Region in the nation, by the Office of Enforcement and Compliance Assurance ( OECA) confirms Inside EPA's reports. OECA concluded that the " number of state enforcement actions and the number of inspections conducted by the states [ in region 5] have decreased substantially over the past several years across most programs. . . [ T] he Region believes inspectors in some states are being prompted to not identify SNCs." (" Significant Non Compilers" are the worst violators of protections for public health or environmental quality)." A similar report for Region 9 also notes a drop in state enforcement, " The general trend in enforcement in AZ and CA is one of a significantly decreasing enforcement presence."

D. Some State Programs Lack Assurances For Public Participation A 1998 report by the Environmental Law Institute reviewed the public participation requirements of state cleanup programs throughout the nation. The report shows that twelve states have no statutory or regulatory requirements for public participation. In another twelve states, public participation is only used as a matter of policy. Less than half of the states require public notice, comment, and hearings.

Some states believe that EPA's standards for obtaining community participation unnecessarily burdens the cleanup process. However, the EPA counters that early public involvement, particularly in ascertaining the community's desired future use of a site, contributes a range of benefits including more expedited, cost effective cleanups. As discussed above, at a minimum, certain segments of the public will be greatly impacted by cleanup remedies, and therefore should be encouraged to fully participate in the remedy selection process if they so desire.

E. Some State Programs Lack Adequate Funding One GAO report surveyed 44 states on their program's financial ability to fund cleanups if the PRPs were unwilling or unable to pay. Twenty three states ranked their financial ability to cleanup potentially eligible NPL sites as very poor to poor, while an additional seven sites ranked their capabilities as only fair.

A second report, by the Environmental Law Institute, found that numerous state programs lack adequate funding. Out of the states and territories surveyed, the report found that two states did not have any cleanup funds, three states and one territory had funds but did not have any money in them, and that one state ( Missouri) had a negative balance in its fund. Further, eight other states had balances of less than $ 1 million, while fourteen states had fund balances of less than $ 5 million. 206 Other documents also describe problems with state program funding. For example, the director of the Texas Superfund programs stated that the state was " having great difficulty funding its NPL and non NPL responsibilities, and can therefore take on additional duties only if EPA continues to provide funding." The report goes on to state that "[ a] ll of the other states visited cited budgetary constraints as a major factor in their programs, a factor that may also limit their ability to take on additional responsibilities for NPL site cleanups without federal support."

F. News Reports Mirror Concerns News reports also demonstrate problems with state cleanup programs. Failings occur through non reauthorization of cleanup programs, inadequate monitoring, lack of funding, and regulations that contain only minimal clean up and public participation standards.

1. California In 1999, the California legislature failed to reauthorize the state's Superfund cleanup law. On November 19, 1998, a state agency had to adopt emergency cleanup regulations, which were effective for only 120 days.

In 1998, the Los Angeles Daily News reported that at least nine Los Angeles schools were built on sites that school district officials knew might be contaminated. These findings came from a study prepared by California's Joint Legislative Audit Committee.

2. New York On January 31, 1999, the New York Times reported that the New York State Superfund program was running out of money. The story noted that the last major infusion of cash into program was in 1986, when voters passed a $ 1.2 billion bond. However, at the time the story was printed, " all that money [ was] either spent or spoken for." This occurred despite the fact that New York State contained 300 contaminated sites that posed a " significant threat to public health."

The Comptroller for New York also found serious deficiencies with the state's clean up program, which call into question the state's ability to protect public health and environmental quality. In February 2001, the Comptroller published an audit of the state clean up program. The audit found that since 1979, 167 sites have been taken off of the state contaminated site list. Of those sites, only two met the goal of being as clean as they were before being polluted. Of the 221 treated sites that were still on the list, 30 did not meet the state's minimum standards for protecting public health. At five other sites, state workers had failed to meet their own cleanup goals. At 141 other sites, the comptroller found that state records did not demonstrate whether the state's cleanup goals were met. The audit also noted that gaps in the system could have left the public unaware of the continuing dangers or the restrictions on some sites.

3. Pennsylvania The Philadelphia Inquirer reported that " many states [ including Pennsylvania], under the banner of so called brownfields, have dramatically loosened cleanup regulations and standards in recent years 207 to spur the development, or sales, of contaminated lands." The story quotes Rick Gimello, assistant commissioner at New Jersey's Department of Environmental Protection as stating, " I don't think any state is as busy as we are. . . Our pace [ of putting properties through the program] is off the charts."

4. Washington On April 16, 1999, the Seattle Post Intelligencer reported that the state fund which pays for the cleanup of toxic spills and environmental contamination is facing a $ 5.9 million shortfall, about a seventh of the program's annual budget. The story noted that cleanup work could be halted or delayed at a minimum of 12 highly contaminated, high priority sites. The shortfall could also severely limit monitoring and testing operations. The paper referenced Jim Pendowski, manager of the state toxic cleanup program, as stating that the " shortfall would compromise the department's ability to detect emerging toxic problems in the environment and deal with existing ones."

A series of reports by the same paper present compelling evidence that the state's Department of Ecology failed to protect 635 Hispanic migrant workers from drinking contaminated groundwater, while providing other ( mostly Caucasian) people with bottled drinking water. The migrant workers lived for " several years at a camp with a well that had ethylene dibromide levels 17 times higher than federal regulators considered safe." The paper quotes agency memos from 1988 and 1989 that describe agency debate about whether to provide bottled water to workers. The memos also express concern about the public reaction if people learned that the agency was providing water to white residents, but not Hispanic workers.

5. New Jersey In a series of stories, the Bergen Record reported that the Mayor of Secaucus, New Jersey failed to notify citizens and city council members about the migration of contamination from a nearby Superfund site, under the homes of nearby residents. The paper also reported that the Mayor ordered engineers to locate test wells on municipal property where there was no requirement to notify the public. The Mayor stated that since the waste did not pose a danger to the residents, release of the information would have unnecessarily alarmed the public. While some city council members agreed with the Mayor's decision, the paper reported that homeowners and other city council members insisted that they should have been included in the decision making process.

6. Ohio As noted above, public notice and involvement in cleanup decisions is critical for ensuring the long term protection of public health, particularly when contamination is left on site. When the public is informed about the risks of a site and understands the tools used to decrease those risks, they are uniquely situated to help enforce those controls, whether by telling children not to play in certain areas or by informing new residents or businesses not to undertake certain actions.

However, a study by the Northeast Midwest Institute on Ohio's Voluntary Action Program ( VAP) found that the public might not be notified of a clean up plan until after a cleanup occurs and the state has issued a covenant not to sue. 208 A coalition of groups recently reviewed Ohio's VAP. Their findings are rather disturbing. Under Ohio's VAP, if the Ohio EPA agrees that a site meets the standards set forth in the VAP, Ohio EPA will issue a Covenant Not to Sue, which releases the owner from state civil liability. By releasing developers from liability, the state largely forecloses its primary tool to ensure that landowners or developers pay to clean up dangerous contamination left on site. This means that taxpayers may bear the costs of any future clean ups.

The report lists a number of other disturbing findings regarding Ohio's VAP. For example, Ohio provided financial incentives for some sites to participate in the VAP, but the sites were never cleaned. Additionally, the report notes that the VAP process did not address offsite contamination concerns, as required by Ohio statutes, and that "[ s] ome sites were located on or near critical resource aquifers, wells, and/ or municipal water supplies. On and offsite [ contamination] threatened these critical resources, [ and] potentially [ threatened] human health."

The VAP program also strongly relies on institutional or engineering controls as a form of clean up, rather than requiring contamination to be remediated or removed. For example, deed restrictions on land use or groundwater use, the most common form of institutional control employed, were applied at 49.5 percent of the 111 surveyed sites. Additionally, Ohio's program has an Urban Setting Designation that allows developers to avoid cleaning up contaminated groundwater. Thus far, the Ohio Program has issued 57 " Covenants Not to Sue" at VAP sites; of these sites, 17,526 acres of groundwater have been defined as Urban Setting Designators, while another 525 acres of groundwater and 828 acres of land have also been restricted through institutional controls.

Other problems continue to crop up with Ohio's clean up program. For example, The Columbia Dispatch recently reported that only 10 sites within Ohio have been completely cleaned up since the program began over a decade ago. Additionally, owners of contaminated property recently won a suit that bars Ohio EPA from publicly listing contaminated sites.

Currently, citizens across Ohio are urging their state government to improve their program by meeting EPA's standards that would allow for a Memoranda of Agreement. Thus far, the state has failed to make the required program improvements.

7. Problems May Be National In Scope These problems do not appear to be relegated to the few state programs highlighted above. A 1999 report by the National Conference of Mayors surveyed officials in 231 cities across the nation. The survey asked the officials to rank their state's voluntary clean up program. Only 23% of the officials reported that their state programs were excellent, while almost one out of every five officials reported that their state program was not very good. Perhaps more troubling, 34% could not rank their states program, pointing to a large gap in knowledge or a lack of any coherent efforts at education, oversight, and implementation. ( Grant Cope, Staff Attorney, U. S. Public Interest Research Group, RCRA 2001 0029 0051) 209 Response: The Agency appreciates PIRG's detailed comments related to alternate State cleanup programs. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue. The Agency continues to explore the use of alternate authorities, but would prefer to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking.

Comment: Yes. Many alternative State programs have broader scope and flexibility for conducting cleanups and corrective action than does RCRA authority alone. For example, the Remedial Action Trust Fund Act ( RATFA) in Arkansas allows actions to cleanup hazardous substances as defined in the Act, which is a much broader set of hazardous constituents and pollutants than are included in RCRA. Alternative State cleanup authority should be considered under any circumstance which RCRA cleanup authority is considered. In most cases, State cleanup authorities allows for no less stringent cleanup standards than RCRA and often allow for broader based actions with more flexibility. ( Joe Hoover, Manager, Active Sites Branch, Arkansas Department of Environmental Quality, RCRA 2001 0029 0053)

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

Comment: Rather than issuing guidance regarding the use of alternative state programs to conduct RCRA corrective action, EPA should issue regulations. Attorneys at EPA's Office of Regional Counsel and state attorneys general are unwilling to make legal decisions when EPA policies are spelled out as guidance. In general, Ecology supports the proposed policies for postponement and deferral outlined in the federal register, but believes the policies do not go far enough in removing the unnecessary administrative burden of requiring a permit for the RCRA corrective action process. ( Greg Sorlie, Manager, Hazardous Waste and Toxics Reduction Program, Washington State Department of Ecology ( Ecology), RCRA 2001 0029 0054)

Response: This final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue. The Agency continues to explore the use of alternate authorities, but would prefer to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking. 210 Comment: EPA asked if facilities should be able to satisfy the RCRA corrective action requirements for by conducting cleanup under an alternative state program.

Yes, facilities should be able to satisfy the RCRA corrective action requirements by conducting cleanup under an alternative state program.

Rather than issuing guidance regarding the use of alternative state programs to conduct RCRA corrective action, Washington State believes that EPA should issue regulations. Attorneys at the Office of Regional Counsel and state attorneys general are unwilling to make legal decisions when EPA policies are spelled out as guidance.

Washington State uses the state cleanup law, the Model Toxics Control Act ( MTCA), and its implementing regulations and procedures, to implement corrective action. In 1994, EPA authorized Washington State's use of MTCA to conduct RCRA corrective action. EPA's authorization confirmed that MTCA cleanups provide environmental results that are equivalent to results achieved by EPA's corrective action program, thus satisfying the requirements of 40 CFR 264.101 for achieving cleanups that are protective of human health and the environment.

With MTCA, Washington State has a tested and established environmental cleanup authority and program that serves several purposes:

° MTCA and its implementing regulations and procedures are already in place and in use at many sites in Washington State. ° The MTCA process allows for a more extensive public involvement process than RCRA. ° It is very important to Ecology that cleanups at RCRA sites be consistent with procedures and requirements for other existing cleanup sites in Washington State. ° Under the MTCA, the Department of Ecology can recover the costs of staff time used to manage corrective action sites. Ecology would have no such cost recovery authority through RCRA; resources for work on RCRA permits come from federal grant funds.

EPA has required that corrective action be implemented under a final status hazardous waste management corrective action or post closure permit. Like operating and closure permits, these corrective action and post closure permits can only be issued following a very prescriptive application and review procedures.

Ecology is striving to minimize administrative burdens under RCRA at corrective action sites so that cleanups can proceed more quickly. Ecology wishes to be able to use MTCA cleanup orders and/ or consent decrees in lieu of incorporating corrective action requirements into RCRA permits or referencing cleanup orders or consent decrees in RCRA permits. Ecology also wishes to use MTCA in lieu of permits for those hazardous waste management facilities that are no longer receiving wastes and would receive a permit solely for implementing facility wide corrective action, rather than being required to issue a place holder permit for implementing RCRA 211 corrective action or for post closure. This is also true for closing hazardous waste management facilities without final permits or with expired final permits.

In addition, if clean closure is not achieved at a particular site, Ecology would want to use MTCA to integrate the cleanup of the hazardous waste management unit with the required facility wide RCRA corrective action rather than pursue a post closure permit.

Orders or decrees issued under MTCA achieve the same results as the more prescriptive process of issuing a corrective action or post closure permit. There is no environmental advantage of using permits to issue MTCA orders. The tedious permit application process could be avoided and staff time and energy spent on other effective aspects of cleanup. Washington State believes that a permit or incorporation of a corrective action order into a permit is not necessary for effective corrective action. ( Greg Sorlie, Manager, Hazardous Waste and Toxics Reduction Program, Washington State Department of Ecology ( Ecology), RCRA 2001 0029 0054)

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

Comment: Comment. DoD supports development of formal regulations which would allow alternate authorities to be used in lieu of RCRA corrective action authorities to cleanup sites at RCRA permitted facilities. DoD also requests addition of other federal cleanup programs to the proposed corrective action policy.

Discussion. EPA is considering issuing a policy to address the use of alternative cleanup authorities, such as state cleanup authorities, voluntary cleanup programs ( VCP) etc. to satisfy the corrective action requirements of the permit. EPA also solicits comment on whether such a policy, if adopted, should be promulgated as regulation or issued as guidance.

In discussing this issue, EPA mentions various alternate cleanup programs that might be used in lieu of RCRA. EPA states that " Whether a cleanup program is conducted under a federal cleanup program ( e. g., RCRA corrective action or CERCLA), an authorized RCRA corrective action program, or an alternate State cleanup program, EPA is responsible for reporting the progress to Congress and the public." In addition, on page 52235, EPA discusses the uses of VCP for non NPL sites, including brownsfields. DoD believes that Federal cleanup authorities including CERCLA, Toxic Substances Control Act ( TSCA), and the Safe Drinking Water Act ( SDWA), should also be included in this policy.

DoD also believes that EPA should promulgate the policy formally as regulation rather than as guidance. EPA has already issued related guidance via an EPA memo dated 9/ 24/ 96 entitled, 212 " Coordination between RCRA Corrective Action and Closure and CERCLA Site Activities". This explains that it may be more appropriate in some cases to use the Federal CERCLA program or a state/ tribal " superfund like" cleanup program to address cleanup rather than RCRA. In this guidance EPA states, " For example, where program priorities differ, and a cleanup under CERCLA has already been completed or is underway at a RCRA facility, corrective action conditions in the RCRA permit/ order could state that the existence of a CERCLA action makes separate RCRA action unnecessary. In this case, there would be no need for the RCRA program to revisit the remedy at some later point in time ." Though this guidance has existed for several years, it has been our experience that not everyone is aware of it. We believe formal promulgation of the policy within the Code of Federal Regulations would be the best means of ensuring this information remains available to affected parties.

Recommendation. DoD undertakes many cleanups at non NPL sites under federal CERCLA authorities with state and federal oversight. DoD requests that EPA include within the regulation a provision to authorize the use of alternative federal authorities as well, i. e. CERCLA, TSCA, SDWA, etc. DoD typically conducts CERCLA responses at non NPL sites. For sites acquiring or renewing their RCRA permit, it would be advantageous to the DoD, regulators, and the public taxpayers to allow DoD to proceed on with the cleanup under existing Federal authorities in lieu of duplicating portions of the remediation process under RCRA. ( Department of Defense, RCRA 2001 0029 0055)

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

Comment: Yes, when a cleanup is underway according to a state cleanup authority that is substantially equivalent to RCRA corrective action in terms of public participation; protection of human health and the environment; remediation of all releases at the applicable SWMUs, facility wide and off site; adequate resources and mechanisms to review and approve cleanup plans and decisions; and enforcement authority. ( Augusta Posner, Senior Assistant General Counsel, Florida Department of Environmental Protection, RCRA 2001 0029 0059)

Response: The Agency appreciates FDEP's comments on use of alternate authorities to address corrective action. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities. The Agency continues to explore the use of alternate authorities, but would prefer to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking. 213 Because issues related to alternate authority use are not addressed in this final rule, the Agency did not respond to comments related to those issues.

Comment: Yes. The basic premise of corrective action is to assess, investigate, and implement corrective measures for releases of contamination to the environment. Several state programs do the same thing as the RCRA Corrective action process, for example, the delegated RCRA programs ( in Michigan Part 111, Hazardous Waste Management, of the Natural Resources and Environmental Protection Act, 1994 PA 451 [ Act 451]): the state equivalent to the federal Superfund program ( Part 201, Environmental Remediation, of Act 451) and underground storage tank cleanup programs ( Part 213, Leaking Underground Storage Tanks, of Act 451). Risk models from those programs should be acceptable to meet the RCRA requirements for corrective action with verification, because they look at the impact of the contamination and the likelihood of it reaching potential receptors. Please refer to Parts 111, 201, and 213 of Act 451 for examples of regulations in Michigan that pertain to risk models for cleanups. Copies of these regulations are available on the MDEQ home page at www. deq. state. mi. us/ wmd, www. deq. state. mi. us/ erd, and www. deq. state. mi. us/ std respectively. ( Jim Sygo, Chief of the Waste Management Division, Michigan Department of Environmental Quality, RCRA 2001 0029 0060)

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

Because issues related to alternate authority use are not addressed in this final rule, the Agency did not respond to comments related to those issues.

Comment: Safety Kleen believes that the RCRA corrective action program should be left under EPA control. We feel that there is already too much variation from the federal RCRA framework at the state level and feel that the current authorized corrective action program is protective of human health and the environment and should be left unchanged. ( Susan L. Prior, Regulatory Programs Manager, Safety Kleen Corporation, RCRA 2001 0029 0061)

Response: The Agency appreciates Safety Kleen's comments on use of alternate authorities to address corrective action. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities. The Agency continues to explore the use of alternate authorities, but would prefer to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking. 214 Because issues related to alternate authority use are not addressed in this final rule, the Agency did not respond to comments related to those issues.

Comment: Missouri would handle all cleanups under RCRA corrective action. There are alternative programs in the state. However, RCRA facilities are ineligible for these programs. ( Missouri Department of Natural Resources, RCRA 2001 0029 0065)

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

Because issues related to alternate authority use are not addressed in this final rule, the Agency did not respond to comments related to those issues.

Comment: As a general matter, AISI commends the Agency for seeking to encourage the use of alternate state remedial authorities in lieu of RCRA corrective action authorities. As EPA itself acknowledges, numerous states have developed flexible, yet protective, cleanup approaches that can well serve the objectives of the RCRA corrective action program while dispensing with many of the resource intensive and process laden elements of that program. The development of a policy which will provide clear direction on when the use of state authorities is appropriate to satisfy RCRA corrective action obligations should promote use of those authorities, as all concerned will better understand the Agency's position on the acceptable use of state approaches at individual facilities. We turn below to specific elements of EPA's overall approach to establishing a policy on the " alternate authority" issue and to specific topics upon which the Agency has requested comment. ( American Iron and Steel Institute, RCRA 2001 0029 0066)

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

Comment: EPA strongly opposes the use of alternative state programs in lieu of the RCRA corrective action program. 66 FR 52232 col 2. EPA has recently noticed its second round of RCRA Cleanup Reforms aimed at making cleanups under the corrective action program more flexible. The first round of " reforms" made significant changes by eliminating the need for contaminated soils to meet the strict LDRs for process waste. EPA has recently proposed new Corrective Action Management Unit regulations that allow hazardous wastes from corrective action sites to be treated to standards equivalent to contaminated soils and allow these wastes to 215 be placed in single lined on site disposal units. EPA has established " environmental indicators" that encourage fences and other temporary measures to demonstrate " current human exposure under control" rather than permanent remedies.

Now the Agency is considering allowing state alternative programs to essentially replace the corrective action program. It is clear from the preamble language that the belief is that these state programs  generally programs that are voluntary cleanup programs aimed at brownfields sites  may be quicker but less protective as the RCRA corrective action program. EPA has not made the case that there is any need to allow states to abandon the corrective action program for alternative approaches that are unlikely to be protective. We note that 37 states have been approved to run the RCRA corrective action program. Is this proposal aimed at the 13 states that do not have the program or does the Agency expect states to abandon their approved corrective action programs for less rigorous alternatives? We find either option unacceptable.

The test for an innovative program should be better performance for the same or lower cost, or the same performance for lower cost. In the case of this proposal, performance will be sacrificed to achieve lower cost. This is clearly backsliding by EPA.

Improvements to the existing corrective action program should be made to find more efficient ways to get the job done within the existing framework. ETC members who have their own corrective action sites find that much time is wasted on revisiting or renegotiating already settled issues when the Region or state changes personnel or decisions are delayed because of so called " data gaps." Addressing these concerns would protect the environment as well as speed up and lower the cost of cleanups.

The preamble indicates that EPA may implement changes in approving state alternative programs by issuing direct final regulations or guidance. We believe the issue of allowing alternative state programs could have a major impact on the Agency's corrective action obligations under RCRA. We believe it is incumbent upon EPA to propose specific language on any deferral to alternative state programs. The proposal states: " EPA did not develop an Agency position on these issues  rather, the Agency chose to present for comment the options and issues it currently is considering." 66 FR 52232 col 3. We object to direct final regulations on this issue without the Agency explaining the basis and purpose for its final position and proposing regulatory language for public comment. We believe the proposal is too broad to be made effective under guidance. ( Environmental Technology Council, RCRA 2001 0029 0068)

Response: The Agency appreciates ETC's comments on use of alternate authorities to address corrective action. However, this final rule does not include provisions related to the use of alternate authorities to address corrective action needs at RCRA facilities, and thus the Agency is not responding to comments on that issue. The Agency continues to explore the use of alternate authorities, but would prefer to do so in the broader context of all facilities, rather than just permitted facilities and, therefore, believes it is more appropriate to do so outside of this rulemaking. 216 Comment: EPA is also asking for comments relating to satisfying RCRA CA requirements under alternate state cleanup programs ( pages 52232 to 52234). EPA proposes two methods for addressing cleanups under alternate state cleanup programs;

1. Postponement  would postpone determination of RCRA specific CA until cleanup under state rules is finished.