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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

21. Maintaining a Standardized Permit ( VI)

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

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

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

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

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

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

b.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

27. Overview ( VII. A)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * * * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

34. Subpart G   Closure ( VII. H)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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