if a facility later fails to qualify and, so, EPA is not providing a waiver for cost estimates for facilities that use the financial test. One of the commenters noted that a firm could pass the financial test and then declare bankruptcy without a cost estimate so that the permitting authority could have difficulty in presenting a claim in bankruptcy court. EPA notes that closure costs are not actually " claims" in bankruptcy court, but are regulatory obligations imposed via governmental policey and regulatory filings and, as such, continue despite a bankruptcy filing. The Agency agrees, however, that having a cost estimate in place during a bankruptcy may be helpful, not only because it aids the owner/ operator in evaluating its financial and environmental obligations, but also because it may assist the regulatory authority in determining the extent of the owner/ operator's regulatory obligations.

4. Financial assurance for closure. We designed the requirements in § 267 § 267.142 to ensure that the cost estimate which forms the basis for determining the amount of the financial assurance instrument required in § 267 § 267.143 would provide sufficient funds to close the facility properly at any time. We want to ensure that there would be sufficient financial resources to close the facility properly even in the event that the facility enters bankruptcy. The requirements in § 267 § 267.143 specify the mechanisms from which you must choose to demonstrate financial assurance for closure obligations.

The requirements in § 267 § 267.143 allow the use of the same mechanisms that are available to owners and operators of facilities operating under individual permits currently issued 62 under part 264. However, we have made modifications to these requirements ( from the analogous requirements in part 264) to account for the particular circumstances of the standardized permit.

The differences between the requirements under § § 264 § § 264.143 and 267.143 are discussed below.

Closure Trust Fund ( § 267 § 267.143( a))

Under § 267 § 267.143( a), the pay in period for the closure trust fund for a facility with a standardized permit differs slightly from the pay in period for facilities with individual permits issued under part 264. Currently, if you have a new facility seeking coverage under a part 264 permit, you must make annual payments into the trust fund over the remaining life of your facility,

as estimated by your closure plan, or over the life of the permit ( which is usually ten years),

whichever is shorter. Under the proposed standardized permit procedures, however, we proposed a period of three years as the pay in period. We chose this time period ( which is shorter than the life of the permit as currently allowed for individual permits under § 264 § 264.143( a)( 3)) because the current requirements in § 264 § 264.143( a)( 3) were selected to accommodate the types of operations, such as landfills, which would normally be receiving waste over a period of years, with potentially increasing closure costs over that time period. Conversely, we did not expect facilities proposing to operate under the standardized permit to build up their waste volumes, and the resulting closure costs, over time. Moreover, the cost for closing a facility operating under the standardized permit would not include the costs of ground water monitoring, covers, or postclosure monitoring, so we expected the cost to be less than for many of the other types of facilities with individual permits that are currently subject to § 264 § 264.143. Therefore, we anticipated that the burden of the three year pay in period would not be excessive. Further, we noted that requiring a three year pay in period can preclude some potential problems that can arise under the longer pay in period. For example, a long pay in period can lead to insufficient funds being available at the time of closure, if the facility closes early. If the financial condition of the permittee were to deteriorate toward the beginning of the pay in period, the owner or operator would not yet have funded a substantial fraction of the trust, and the permitting authority could be left with insufficient funds for closure in the event of the permittee's failure to perform closure.

Furthermore, the three year period is consistent with the requirements for financial assurance for 63 commercial storers of PCB wastes. See § 761 § 761.65( g)( 1)( i). EPA requested comment on the proposed use of three years as the pay in period for a trust fund.

We received several comments on the pay in period for the trust fund for new facilities.

One state noted that a three year pay in period would reduce the incentive for interim status facilities or generators who wish to have the option to store for more than 90 days to apply for a standardized permit. AHowever, as noted in the preamble to the proposal, the pay in period for interim status facilities that use, or switch to, a trust fund ended on July 6, 2002 ( twenty years after the effective date of the financial responsibility rules for closure and post closure care).

Conversion to a permit, whether standardized or individual, does not reopen the pay in period or extend the pay in period. An owner or operator who switches from another mechanism to a trust fund under a standardized permit must fully fund the trust. For a generator who wishes to obtain a standardized permit, we believe that a three year pay in period provides sufficient time to afford a trust fund. In addition, we note that generators are not required to use a funded trust fund and can instead use other mechanisms such as a letter of credit or surety bonds that require a smaller cash outlay.

We received a comment from a state and an industry association that the three year pay in period was appropriate. On the other hand, some states and the Association of State and Territorial Solid Waste Management Officials objected to the three year pay in period and instead recommended a fully funded trust. Upon review of these comments, the Agency believes that the three year pay in period strikes an appropriate balance between the need for complete financial assurance, and the possibility that immediate funding of a trust would be prohibitively expensive.

Also, a state that wishes to adopt the standardized permit rule, but believes that the three year pay in period is too long is not precluded by RCRA from requiring immediate funding of the trust.

An existing facility whose trust fund's value is less than its closure cost estimate when it receives a standardized permit would have 60 days to increase the value of the trust to the amount of the closure cost estimate. The requirement proposed in § 267 § 267.143( a)( 3) clarified that the 60 days will apply both to existing facilities under interim status and under individual permits,

regardless of when they obtain a standardized permit. This means that the facility would 64 effectively have a 60 days to increase the value of the trust. EPA received no comments on this proposal and so has included it in the final rule.

Surety Bonds ( § 267 § 267.143( b) and ( c))

The proposed rule would have allowed you to use surety bonds guaranteeing either payment or performance as mechanisms to demonstrate compliance with proposed § 267 § 267.143( b) or ( c), respectively. As in the existing part 264 subpart H standards, you would also have to establish a standby trust fund. Commenters objected to the use of a surety bond in the absence of a closure plan because it would place an undue burden on permitting agencies in the event that the surety had to close the facility under the performance bond. We agree with this comment, and this is another reason that the Agency has required an approved closure plan to be submitted with the Notice of Intent and before the issuance of the standardized permit.

We received a comment from a state recommending that we require 120 days of notice before the cancellation of a surety bond, or a letter of credit under the solid waste financial regulations so that those regulations mirror the requirements for hazardous waste facilities. While this comment is outside of the scope of this rulemaking, we would note our agreement with the desirability of 120 days of notice before the cancellation of a surety bond or a letter of credit and point out that this is already required. The financial responsibility regulations for municipal solid waste landfill facilities are in 40 CFR 258.70 to 258.75. In 40 CFR 258.74( b)( 7), the surety is permitted to cancel the bond 120 days after sending a notice of cancellation by certified mail to the owner or operator and to the State Director. 40 CFR 258.74( c)( 3) has a similar requirement for advance notice of cancellation of a letter of credit. The federal regulations already incorporate the amount of notice recommended by the state in their comment.

Letter of Credit ( § 267 § 267.143( d))

The proposed regulations would allow you to use an irrevocable standby letter of credit,

and a standby trust fund as specified in existing § 264 § 264.143( d). We received no significant comment on this portion of the proposal and have incorporated this portion of the proposal into the final rule. 65 Closure Insurance ( § 267 § 267.143( e))

Under proposed § 267 § 267.143( e), we proposed to allow you to use insurance as a mechanism for demonstrating financial assurance for closure. The requirements of this section referenced the corresponding existing requirements in § 264 § 264.143( e). We also requested comments on the conclusions of the EPA Inspector's General report about captive insurance, and on whether to require that insurers who provide financial assurance insurance policies must have a minimum rating from a rating agency.

ASTSWMO objected to allowing insurance for closure, and made the following points:

" Closure insurance should not be allowed for facilities with standardized permits due to the uncertainties of insurance as an appropriate financial assurance mechanism in general and the potential problems associated with captive insurance in particular. If EPA does wish to allow closure insurance, the insurance policy must guarantee that funds will be available for closure."

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

Although EPA agrees that insurance policies can require a careful review, the rights and obligations under insurance policies issued to satisfy state or federal financial assurance requirements are controlled by those requirements. Thus, where a policy is issued to comply with RCRA financial assurance requirements set forth in statutes or regulations, those requirements will be read into the policy and the policy will be effectively amended to conform to the statute.

Nonconforming provisions are null and void. See, Holmes Appleman on Insurance, Section 22.1 et seq., esp. pp. 365, 368, 379,380; Couch on Insurance, Third Edition, Sections 19: 1, 19: 5 and 19: 11. 66 The issues raised by the commenter transcend the standardized permit rule and could apply to insurance for other financial assurance obligations under § § 264 § § 264 and 265. EPA did not propose or seek comment on an alternative that would disallow insurance as a financial assurance mechanism. As noted in the preamble to the proposed rule ( 66 FR 52192 at 52198), we did not reopen the existing regulations to public comment, except as explicitly set forth under the proposed rule.

Because of interest by ASTSWMO and other issues involving insurance, an EPA federal advisory committee, the Environmental Financial Advisory Board, is undertaking a review of insurance as a financial assurance mechanism for Subtitle C facilities; ASTSWMO has been a part of this review. EPA believes that the suitability of insurance as a financial assurance mechanism is best resolved for all Subtitle C facilities, rather than in a piecemeal fashion, following an opportunity to review any recommendations from the Environmental Financial Advisory Board.

Since companies that may seek to obtain a standardized permit may already have an insurance policy for the facility, disallowance of insurance in the standardized permit would provide an disincentive to obtaining a standardized permit. States can, however, be more stringent than the federal requirement by prescribing policy language or disallowing insurance when they adopt this rule.

We also agree with the later portion of the ASTSWMO comment that " the insurance policy must guarantee that funds will be available for closure." In the proposal, we had proposed that insurance as specified in 40 CFR 264.143( e) would be an allowable mechanism. 40 CFR 264.143( e)( 4) states " The insurance policy must guarantee that funds will be available to close the facility whenever final closure occurs. The policy must also guarantee that once final closure begins, the insurer will be responsible for paying out funds, up to the amount of the policy, upon the direction of the Regional Administrator, to such party or parties as the Regional Administrator specifies." We believe that this language addresses the concern in the ASTSWMO comment regarding the need to guarantee that funds will be available for closure. 67 On the issue of captive insurance, in addition to the comments from ASTSWMO, we received several comments both supporting and recommending against accepting captive insurance as a mechanism. In the proposed rule, we asked for information regarding captive insurance, but did not make any specific proposals. In this final rulemaking, we are not determining whether or not to allow captive insurance as a financial assurance mechanism. EPA is continuing to analyze the information and comments it received on the proposed rule, and is preparing a report to Congress that was required by an EPA appropriations bill. While the focus of that report will be on insurance for municipal solid waste landfills, the analysis of financial assurance issues surrounding captive insurance may apply to both municipal solid waste and hazardous waste facilities.

Finally, we had proposed requiring that insurance providers have a minimum rating from either Standard & Poor's, Moody's, or A. M. Best. Comments on this issue included support,

objections to the cost of obtaining a rating for a captive insurer, and questions about the relationship between the rating of the parent insurance company and the rating of a subsidiary that would be writing environmental policies. The Agency is still evaluating these issues and the comments submitted; therefore, the Agency is not promulgating a final rule on a minimum rating of insurers at this time.

Financial assurance.

Financial Test ( § 267 § 267.143( f)) and Corporate Guarantee ( § 267 § 267.143( g))

The proposed regulation in § 267 § 267.143( f) would have allowed the use of a financial test by you or by a corporate guarantor, as is currently provided in § 264 § 264.143( f). The test that EPA proposed differs from the test that is currently in effect in parts 264 and 265.

The proposal included changes to the financial test that would make the test less available to firms more likely to enter bankruptcy. The test would do this by changing the financial test ratios to make the test less available to firms with large debts compared with their cash flow or net worth. However, the proposed testrule allowsed firms that pass the financial test to assure a higher level of obligations than the current RCRA Subtitle C financial test. Under the financial test in 40 CFR 264 and 265, companies must have tangible net worth at least six times the amount of the 68 obligations covered, and also of at least $ 10 million. Firms that pass the proposed test must also have $ 10$ 10 million in tangible net worth. They can assure an amount of obligations up to $ 10 million less than their tangible net worth.

Some commenters suggested that we should reconsider the financial test in light of recent corporate failures and financial scandals of Fortune 500 companies with audited financial statements, while other commenters argued that the regulations should make available all the mechanisms that are currently available to firms. For the reasons explained at proposal, the Agency continues to believe that the rules should contain a financial test, but are maintaining the approach included in the proposal   that is, continue to make available a mechanism that allows firms with a low probability of failure to self insure, and at the same time reduce the risk of the financial test by disallowing its use by companies that are more likely to enter bankruptcy. Some states may determine that they wish to be more stringent than this requirement and further restrict the availability of the financial test. This is allowable under RCRA.

In the proposal, we also requested comments on not requiring companies that pass the financial test to provide a cost estimate. As noted above in the last paragraph of the section on Closure Cost Estimates, based upon public comment, we have decided that we will still require cost estimates from such firms.

The record keeping and reporting requirements of the proposed requirementrule ( § 267 § 267.143( f)( 2)( i)( C)) would only require a special report from the independent certified public accountant in instances where the Agency could not verify financial data in the chief financial officer's letter from the firm's financial report. The proposal was intended to reduce the reporting burden and the expense of obtaining a letter from an outside auditor for any user of the financial test whose CFO submitted information that could be verified from the user's audited financial statements. We received comments from states supporting and objecting to this change. The objection involved the difficulty for the regulatory agency in reviewing financial statements and determining whether data in the chief financial officer's letter were taken from the firm's financial report. EPA agrees that this may present some difficulties and is modifying In the language of the CFO's letter to require the CFO to note whether the information in the letter is taken directly from 69 the audited financial statement. If not, the regulation requires an outside auditor's report explaining how the information was derived. Because we continue to believe that the proposed approach, as modified, would reduce athe reporting burden without significantly impacting the usefulness of the information provided, we have incorporated it in the final rule.

The proposed regulation did not prescribe language for the chief financial officer's letter as we currently do under § 264 § 264.151( f). Commenters advised us that prescribing the language of the Chief Financial Officer's letter would facilitate compliance checks by the state permitting agency. Therefore in the final rule, we are specifying language for the CFO letter. This language appears in § 267 § 267.151( a).

Because this rulemaking does not change the financial test in § § 264 § § 264 and 265,

owners or operators who have both standardized permit facilities and facilities using the financial tests in § § 264 § § 264 and 265 may have questions about which chief financial officer's letter to use.

For facilities with the standardized permit, the chief financial officer should use the letter in § 267 § 267.151. This letter will require the enumeration of costs assured through financial tests in § § 264 § § 264 and 265. For interim status or individually permitted facilities, the chief financial officer will continue to use the letters in § 264 § 264.151.

Situations may arise where an owner or operator has two types of units at a facility, one type subject to the financial assurance requirements of Part 267, and the second subject to the financial assurance requirements of Part 264 or Part 265, but cannot meet the applicable financial test for both types. For example, the owner or operator of a facility has units subject to an individual permit and provides financial assurance via the financial test in § 264 § 264.143( f). The owner or operator wants to add new units subject to a standardized permit, but does not qualify via the financial test in § 267 § 267.143( f) for those new units. Such a person would have to use a third party financial assurance mechanism under § 267 § 267.143, to qualify for a standardized permit for the new units.

Similarly, an owner or operator may have two or more facilities, with one set of facilities subject to a standardized permit with Part 267 financial assurance, and another set subject to 70 individual permits or operating in interim status with financial assurance via Part 264 or Part 265.

The financial assurance requirement for the facilities are determined by their respective regulations.

This is consistent with the situation under Parts 264 and 265. For example, an owner or operator may use a performance surety bond at the facility permitted under an individual permit that requires financial assurance consistent with Part 264, but may use a mechanism other than a bond consistent with part 265 at a facility operating under interim status Use of Multiple Mechanisms Proposed § 267 § 267.143( h) would allow you to utilize a combination of mechanisms at your facility. We received comments both supporting and objecting to this provision. The objection was that if an owner or operator could only cover part of the closure costs with the financial test, they should not be allowed to use the financial test for any of the costs, and instead should be required to use a third partythird party mechanism.

Because the financial test in the standardized permit rule is a better predictor of bankruptcy than the test in Parts 264 and 265, the risk of a facility qualifying for the test and then entering bankruptcy is lower than with the Parts 264/ 265 tests. The test in the proposal and the final rule requires that the firm have at least $ 10 million more in tangible net worth than the amount assured through a financial test. Disallowing the use of the financial test in combination with a thirdpartythird party mechanism could establish the situation where owners or operators each with two facilities and each with identical financial characteristics and total closure costs could have different amounts that could be covered by the financial test, based upon how the costs were distributed between their respective operations. For example, two companies could both have $ 12 million in tangible net worth and meet the other requirements of the financial test with identical financial statements. The first company has two facilities, one with $ 1.6 million in closure costs and the other with $ 1.4 million in closure costs. The second company has one facility with $ 2 million in closure costs, and another facility with $ 1 million in closure costs. If EPA were to disallow the use of the financial test in combination with other mechanisms, the first company could use the test for only $ 1.6 million of the closure costs, but the second can could use it for $ 2 million. 71 An all or nothing approach also could increase the incentive to underestimate closure costs, particularly for a facility with a closure cost estimate only slightly over the amount that could be covered by the test. The approach in the proposed and final rules is consistent with the regulations already adopted by EPA governing financial requirements for municipal solid waste landfills, and with an earlier proposal to revise the RCRA Subtitle C financial test, which is still under consideration ( 56 FR 30201, July 1, 1991), and with regulations governing third

partythirdparty liability coverage. EPA determined that it should incorporate this flexibility into the final rule, but, as previously noted, under RCRA a state may adopt more stringent regulations.

Under proposed § 267 § 267.143( i), if you have multiple facilities with a standardized permit, you would be able to use a single mechanism for more than one of your facilities. This provides the same flexibility that owners or operators of facilities with individual permits or interim status facilities have under existing § § 264 § § 264.143 and 265.143. This flexibility is also included in the final rule.

5. Post closure financial responsibility. Because the proposed standardized permit rule would only be available to facilities that can clean close, the proposed standardized permit regulation did not anticipate a need for post closure cost estimates, or financial assurance for postclosure care. Similarly there is no need for mechanisms for combining financial assurance for closure and post closure care. Therefore, the final regulations in part 267 do not have provisions reflecting the existing requirements of § 264 § 264.144 146. As noted in § 267 § 267.111( c),

however, if a unit at a standardized permit facility cannot be clean closed, then the owner/ operator must apply for a permit as a landfill in accordance with 40 CFR part 270. The post closure financial responsibility regulations in § § 264 § § 264.144 and 145 would then apply.

6. Liability Requirements. We proposed to require financial assurance for third party liability for sudden accidental occurrences. We proposed that you have and maintain liability coverage of at least $ 1 million per occurrence, with an annual aggregate of at least $ 2 million exclusive of legal costs ( § 267 § 267.147( a)). These proposed requirements are the same as for facilities with individual permits, and apply to the facility or a group of facilities. Thus, if the owner or operator of facilities with individual permits had the required liability coverage for those 72 facilities, then covering these facilities under the standardized permit would not increase the dollar amount of the liability coverage.

The proposed mechanisms available for demonstrating financial assurance for third party liability were the same under the standardized permit rule as for units covered by individual permits. In the proposed rule, we arranged the mechanisms in the same order as they appear for closure, even though this is different from the order currently in § 264 § 264.147. We requested comments on whether this makes the regulation easier to follow, or if we should organize proposed § 267 § 267.147 in the same order as existing § 264 § 264.147. The mechanisms for third party liability would be a trust fund ( § 267 § 267.147( a)( 1)), surety bond ( § 267 § 267.147( a)( 2)),

letter of credit ( § 267 § 267.147( a)( 3)), insurance ( § 267 § 267.147( a)( 4)), financial test ( § 267 § 267.147( a)( 5)), or guarantee ( § 267 § 267.147( a)( 6)). We would also allow the use of multiple mechanisms under proposed § 267 § 267.147( a)( 7), as are allowed under existing § 264 § 264.147( a)( 6). In the case of reordering the mechanisms in § 267 § 267.147 as they are in § 267 § 267.143, the commenters agreed with this approach. On other aspects of the proposal, there were no adverse comments and the final rule has been finalized, as proposed, with respect to these aspects.

In the proposal, we requested comments on whether pure captive insurance should be treated differently for third party liability coverage, where coverage is based on the risk an event will occur, as compared to closure, where the risk is based on an event that will, in fact, occur. As previously noted, this rulemaking is not promulgating a decision on captive insurance.

We proposed that the standardized permit would not be available for land disposal units such as surface impoundments, landfills, land treatment facilities, or disposal miscellaneous units.

Therefore, requirements for land disposal units under existing § 264 § 264.147( b) to maintain third party liability for non sudden accidental occurrences would not be necessary for standardized permit units. The proposed regulation and the final regulation reserves § 267 § 267.147( b).

Because the proposed standardized permit was intended to rely upon limited interaction between the permittee and the permitting agency, we believed it would not be appropriate to 73 include the provisions of existing § 264 § 264.147( c) and ( d). These provisions, respectively, allow the owner or operator to request a variance from the amounts required in § 264 § 264.147( a), or allow the Regional Administrator to require a different amount. There is no corresponding provision in the proposed § 264 § 264.147 and the corresponding paragraphs were reserved. As EPA received no adverse comment on excluding these provisions, the rule is finalized, as proposed.

Along with the proposed changes to the financial test for closure, we had previously proposed changes to the financial test for liability coverage ( 56 FR 30201, July 1, 1991 and 59 FR 51523, October 12, 1994). The proposed changes to the financial test for liability coverage were included in the proposal for this regulation. EPA received no adverse comment on this test. As previously noted, we have promulgated the proposed financial test for closure and have also decided to promulgate the proposed financial test for liability here as well. If a company is using the financial test for closure of its standardized permit units, and wishes to also use the financial test for third party liability coverage of its standardized permit units, it should use the chief financial officer's letter in § 267 § 267.151( a). In § 267 § 267.151( b) we have provided language for the chief financial officer's letter for companies that use the financial test only for third party liability for facilities with standardized permits.

BFinally, because the financial tests for facilities regulated under interim status and individual permits differ from the financial tests under the standardized permit rules, a question may arise on which chief financial officer's letter to use to demonstrate compliance with third party liability requirements. Companies that use the financial test only for third party liability ( and not for closure), and who also have facilities using the financial test either for a facility with an individual permit or operating under interim status, should use the language for the chief financial officer's letter in 40 CFR 264.151( g). A company that qualifies for the financial test under the individual permit regulations will also qualify under the standardized permit regulations for liability coverage. As noted previously, firms that use the financial test to provide financial assurance for closure for standardized permit units and interim and individual permit units, should use the chief financial officer's letter in § 267 § 267.151 for the standardized permit units, and the chief financial officer's letter in § 264 § 264.151 for interim status and individual permit units. 74 7. Other provisions of the financial requirements. We proposed that the requirements in existing § 264 § 264.148 to notify the permitting authority in the event of a bankruptcy would apply also to the standardized permit ( see proposed § 267 § 267.148). We also referenced this requirement in proposed § 267 § 267.140( c). There were no adverse comments on this portion on the proposal, and we have included this provision in the final rule.

Under existing § 264 § 264.149, if your facility is in a state where EPA administers the program, but the state imposes its own financial assurance mechanism, you may continue to use the state approved mechanism. There were only three states where we administered the program,

and we did not expect that these states have their own mechanisms. Therefore, we did not include an analogous provision in the proposal. We did not receive adverse comment on this omission.

For the reasons discussed in the preamble to the proposal, we did not include the analogous provision in the final rule, and have reserved § 267 § 267.149 in this final rulemaking.

In the financial responsibility regulations covering facilities with permits under part 264,

States can assume responsibility for an owner or operator's compliance with existing § § 264 § § 264.143 and 147 ( § 264 § 264.150). We included a similar provision ( § 267 § 267.150) in the proposal, but requested comment on whether such a provision is appropriate for standardized permits. We asked if states did in fact undertake such responsibilities, and asked if they would do so for holders of a standardized permit. Only one state commented on this provision and noted that it was not used. While we do not believe that this provision would have much use, we also see no harm in retaining this provision to provide flexibility should the circumstance warrant it.

Therefore, we have included this provision in the final rule.

The proposed language of § § 267 § § 267.143 and 267.147 references existing § 264 § 264.151, and would require the use of the language in existing § 264 § 264.151. Section 264.151 contains the exact wording of the instruments used to demonstrate financial assurance. In light of the substantial amount of text in existing § 264 § 264.151, we decided not to propose the creation of a § 267 § 267.151. This was similar to our decision not to include the instrument language in the current interim status standards in part 265. Because we received comments that 75 we should provide standard language for the chief financial officer's letter as part of the financial test, we have provided that language in § 267 § 267.151. If the Agency promulgates changes to the financial test in § § 264 § § 264 and 265 for holders of individual permits that mirror the requirements in § 267 § 267, EPA may eliminate the language in § 267 § 267.151 and simply require the language in a revised § 264 § 264.151 in a future rulemaking.

J.  Subpart I  Use and Management of Containers The requirements of part 267 subpart I are finalized, as proposed, and apply to the storage and/ or non thermal treatment of hazardous wastes in containers. No significant comments were received on this subpart, which includes:

1. What Standards Apply to the Containers? ( § 267 § 267.171)

2. What are the Inspection Requirements? ( § 267 § 267.172)

3. What Standards Apply to the Container Storage Area? ( § 267 § 267.173)

4. What Special Requirements Do I Need to Meet for Ignitible or Reactive Waste? ( § 267 § 267.174)

5. What Special Requirements Do I Need to Meet for Incompatible Wastes? ( § 267 § 267.175)

6. What Must I Do When I wWant to Stop Using the Containers? ( § 267 § 267.176 )

7. What Air Emission Standards Apply? ( § 267 § 267.177 )

One comment regarding residues in empty containers, addressed the applicability language in § 267 § 267.170 which refers to § 267 § 267.1( b), which in turn, refers to part 261 subpart A. The commenter suggested that instead of indirectly referencing § 261 § 261.7, we add " part 267" to the list of cites in § 261 § 261.7 as a more direct method of addressing residues remaining in empty containers. We agree with the commenter, and will finalize the language in § 267 § 267.170 as proposed, and will add the requested language to § 261 § 261.7.

K. Subpart J  Tank Systems 1. Does This Subpart Apply to Me? 76 The applicability language of § 267 § 267.190 is finalized, as proposed. The final rule applies to above ground and on ground tanks, and excludes underground and in ground tanks.

Also excluded, are tanks with underground ancillary equipment ( e. g., piping).

We received several comments on the applicability of the standardized permit rule to tanks and tank systems. Most commenters believed that underground and in ground tanks should be excluded from eligibility, noting that underground and in ground tanks are more difficult to inspect and are difficult to perform integrity verification, noting that such tanks pose a risk of corrosion,

damage, and leakage. Some commenters also argued that underground piping should not be allowed under a standardized permit, for the same reasons underground and in ground tanks should be excluded. However, one commenter suggested that the final rule should allow underground tanks and/ or piping to be eligible for the standardized permit, and that States should be given the discretion to impose individual permits when deemed necessary. The commenter also noted that certain wastes are more safely stored underground. Another commenter also supported allowing underground and in ground tanks to be eligible for the standardized permit, suggesting the Agency incorporate similar provisions to § 264 § 264.192.

Based on the comments received and the Agency's experience in implementing the hazardous waste rules, we agree with those commenters that argued that underground and inground tanks, and underground piping are inherently harder to inspect, and may be more susceptible to corrosion and leakage. The standardized permit is designed to be a streamlined approach to permitting, and therefore we believe that more complex tank systems might be better served under an individual permit. Furthermore, units under the standardized permit would be required to be clean closed, and a properly designed, constructed, and operated tank system with secondary containment should always be able to clean close with minimal unforseen contingencies.

Therefore, the final rule does not allow underground and in ground tanks, and tanks with underground piping to be eligible for a standardized permit.

2. What are the Required Design and Construction Standards for new Tank Systems or Components? 77 The requirements of § 267 § 267.191 are finalized, as proposed. We did receive a comment about the Agency not proposing design and construction standards for facilities with underground tank systems. The commenter believed that there was no reason to exclude underground piping associated with above ground tanks provided the integrity of the underground piping is verified and documented at regular intervals. As we stated previously, underground tank systems, and above ground / on ground tanks with underground piping are not eligible for a standardized permit.

The streamlined nature of the standardized permit process does not lend itself to requiring periodic verification and documentation of underground piping integrity.

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

The requirements of § 267 § 267.192 are finalized as proposed. No significant comments were received on this section.

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

The requirements of § 267 § 267.193 are finalized as proposed, except that the title of the section is changed to read " What Testing Must I do for New Tank Systems?" One commenter requested this change to improve the clarity of the section, and we agree.

5. What Installation Requirements Must I Follow?

The tank installation requirements of § 267 § 267.194 are finalized as proposed. No significant comments were received on this section.

6. What are the Secondary Containment Requirements?

We are finalizing § 267 § 267.195 with some changes. In our proposal, we proposed to allowed tanks that could not detect a leak or spill within 24 hours to be eligible for the standardized permit. However, instead of providing a demonstration to the Director ( as is required in 40 CFR 264.193( c)( 3)), we discussed in the proposed preamble that a facility would self certify and document that a leak or spill cannot be detected and/ or removed within 24 hours, and keep the certification on site. 78 One commenter noted that the proposed rule included this provision, but was not referenced in subsequent sections about information that must be kept at the facility, or certifications that must be submitted. The standardized permit rule is intended for units ( tanks,

containers, storagecontainment buildings) that are easily designed and operated, and with minimal contingencies. More complex situations involving tank systems where leaks are difficult to detect,

are better served under an individual permit. Furthermore, such demonstrations only serve to lengthen the overall permitting process, detracting from the intent of the rule to streamline the process as much as possible.

Therefore, in the final rule, the provisions of § 267 § 267.195 will require that a facility's secondary containment system to be able to detect and/ or remove a leak or spill within 24 hours.

The rule will not provide a self certification provision for systems that cannot detect and/ or remove leaks or spills within 24 hours. These tank systems will need an individual permit.

7. What are the rRequired dDevices for sSecondary cContainment and wWhat are tTheir dDesign, oOperating, and iInstallation rRequirements?

The final requirements of § 267 § 267.196 are modified from what was proposed.

Specifically, although no significant comments were received on this section, we are removing the reference to " vaults" from § 267 § 267.196. Vaults are typically associated with underground tanks, and underground tanks are not eligible for a standardized permit.

8. What are the requirements for ancillary equipment?

The requirements of § 267 § 267.197 are finalized as proposed with one minor clarification to the proposed language. That change adds the words " Above ground" at the start of § 267 § 267.197( a), making the language consistent with the language in § 264 § 264.193( f)( 1). No significant comments were received on this section.

9. The following sections of this subpart are finalized as proposed, because no significant comments were received.

a. What are the general operating requirements for my tank system? ( § 267 § 267.198) 79 b. What inspection requirements must I meet? ( § 267 § 267.199)

c. What must I do in case of a leak or spill? ( § 267 § 267.200)

d. What must I do when I stop operating the tank system? ( § 267 § 267.201)

e. What special requirements must I meet for ignitable or reactive wastes?( § 267 § 267.202)

f. What special requirements must I meet for incompatible wastes? ( § 267 § 267.203)

g. What air emission standards apply? ( § 267 § 267.204)

L. Subpart DD  Containment Buildings No comments were received on Subpart DD of Part 267, therefore § § 267 § § 267.1100 through 267.1108 are finalized as proposed.

V. Section by Section Analysis and Response to Comments for Part 270  EPA Administered Permit Programs: The Hazardous Waste Permit Program This part of the RCRA hazardous waste regulations contains specific requirements for permit applications, permit conditions, changes to permits, expirations and continuation of permits,

interim status, and special forms of permits.

A. Specific changes to Part 270 1. Purpose and Scope. The proposed changes to § 270Section § 270.1 arehas been finalized with a minor changes to the definition. We arewhat facilities are eligible for a standardized permit, as discussed previously. We are also using the following language " Treatment, storage, and disposal facilities ( TSDs) that are otherwise subject to permitting under RCRA and that generate hazardous waste . . ." The change was intended to further clarify the types of facilities that may be eligible for the standardized permit. No significant comments were received on this section. 80 2. Definitions The proposed definitions at § 270 § 270.2 for permit and standardized permit are finalized as proposed. No significant comments were received on this section.

3. Permit Applications The requirements of § 270 § 270.10( a) are finalized as proposed. No significant comments were received on this section.

4. Permit Re Application The requirements of § 270 § 270.10( h) are finalized as proposed. No significant comments were received on this section.

5. Transfer of Permits The requirements of § 270 § 270.40 are changed to indicate how the standardized permit can be modified to reflect a change in ownership. The final rule adds to § 270 § 270.40 a reference to § 124 § 124.213 ( routine changes with prior approval). Comments on this issue are discussed in the preamble at Section III.. D  Maintaining a Standardized Permit. With this change, transfer of permits would be a routine change with prior approval of the Director.

6. Modification or Revocation and Reissuance of Permits.

The requirements of § 270 § 270.41 are finalized as proposed. Comments on this section were discussed previously in the preamble at Section III. A. 2.

7. Continuation of Expiring Permits.

One commenter noted that in cases where an expiring standardized permit holder is informed that he/ she is no longer eligible to continue operating under a standardized permit, the expiring permit holder only has 60 days to submit a part B permit application. Sixty days, the commenter noted, would not be sufficient time to submit the needed materials, and suggests 120 days to submit the information, just as interim status facilities have 120 days to submit their Part B information. We disagree with the commenter. As noted previously, while the permit application 81 submitted to EPA does not need to contain all the information contained in the Part B permit application, that information must still be kept on site at the facility and available for inspection.

Therefore, we believe that 60 days should be adequate time to package and submit the Part B application.

8. Standardized Permits The language at § 270 § 270.67 is finalized as proposed with a minor modification. The applicability of standardized permits has already been discussed previously in this preamble.

The modification to this section is to the reference to subpart I of part 270. The part 270 requirements formerly in proposed Subpart I are finalized as part 270 subpart J. Also, the term " TSD" is added, for reasons described previously for § 270 § 270.1( b).

B. RCRA Standardized Permits for Storage and Treatment Units This part of the preamble discusses the new part 270 Subpart J requirements for RCRA Standardized Permits for Storage and Treatment Units, originally proposed as part 270 Subpart I.

1. General Information about Standardized Permits.

a. What is a RCRA Standardized Permit?

The language in § 270 § 270.250 is finalized as proposed. No significant comments were received on this section b. Who is eEligible for a Standardized Permit?

The language in § 270 § 270.255 is finalized as proposedwith changes to what facilities are eligible for the standardized permit. Eligibility was discussed earlier in this preamble in Section II. D.

c. What Requirements of Part 270 aApply to a sStandardized pPermit?

The language of § 270 § 270.260 is finalized as proposed. No significant comments were received on this section. 82 2. Applying for a Standardized Permit a. How Do I aApply for a Standardized Permit?

Applying for a standardized permit is discussed earlier in this preamble ( see Section III. A.

for further discussion). The language of § 270 § 270.270 is finalized as proposed. No significant comments were received on this section.

b. What iInformation mMust I sSubmit to the pPermitting aAgency to sSupport m My sStandardized pPermit?

Section § 270 § 270.275 lists the information that must be submitted to the permitting agency in support of the standardized permit. The final rule adds one additional items to this section, that being. These items are the closure plan, documentation demonstrating financial assurance for closure, and, for eligible facilities receiving wastes from off site, a waste analysis plan, and documentation that the off site and the receiving facility are under the same ownership.

We received comments on the need for submitting a closure plan with the Notice of Intent, rather than 180 days prior to closure. ( See preamble section IV. H. 3.) The closure cost estimates and financial assurance for closure requirements are further discussed in the preamble in section IV. I.

One commenter suggested adding to § 270 § 270.275 language providing for an optional submission of information detailing suggested specifications for supplemental terms and conditions,

if any, that the owner or operator of the facility, would like the Director to consider including in their supplemental portion of the standardized permit. A voluntary submission of information was also discussed in the proposed preamble of the proposed rule ( see 66 FR 52202, section IV. A. 1.).

We chose not to include applicable language in the regulatory section, because there is nothing that would prevent the owner/ operator of the facility from suggesting such supplemental terms and conditions in their submission.

c. What are the cCertification rRequirements?

The signed certification, pursuant to § 270 § 270.280, documents the facility owner/ operator's compliance with the requirements of part 267. The signed certification is based upon a compliance audit performed either by or for the facility owner/ operator. 83 Proposed § 270 § 270.280( a)( ii) willis being changed to reflect our intent that a facility ( in the case of an existing facility) be in compliance at the time they submit their Notice of Intent, and that if a facility is not in compliance with part 267, based upon their audit and certifications, it should not submit its Notice of Intent until it comes into compliance. A, and, in the case of new facilities, that they be designed and constructed to comply. The new language will read: " Has been designed, and will be constructed and operated to comply with all applicable requirements of 40 CFR part 267, and will continue to comply until expiration of the permit."

The facility's audit may either be a self or third party audit. ( See section III. A. 1. b. of this preamble for a discussion on compliance audit comments.)

3. Conducting Compliance Audits The following section provides information to assist owners/ operators who are seeking a standardized permit to conduct compliance audits, as required by part 270.275( f).

Compliance audits may be conducted by either the applicant or a third party.

a. Section 270.275( f) requires the standardized permit applicant to submit to the permitting authority an audit of the facility's compliance status with 40 CFR part 267. When conducting this audit, the auditor may consult the Protocol for Conducting Environmental Compliance Audits of Treatment, Storage and Disposal Facilities under the Resource Conservation and Recovery Act, EPA 305 B 98 006 ( December 1998). You will find that protocol at the following web address:

http:// www. epa. gov/ compliance/ incentives/ auditing/ protocol. html. In addition, the auditor may consult Procedures for Conducting Compliance Audit Required by 40 CFR 270.275( f). This document is located in the Docket, as well as on the web site described in paragraph ( b) below.

b. The audit must address all the requirements of part 267 that apply to the facility.

The auditor may develop a site specific audit protocol or inspection checklist to be used while conducting the audit. Sample audit checklists can be found at the following web address:

http:// www. epa. gov/ epaoswer/ hazwaste/ permit/ epmt/ toolperm. htm. 84 c. The person conducting the audit should of course have appropriate training for conducting the audit. The auditor should have a working process knowledge of the facility or of another facility with similar operations, and should have a working knowledge of the proposed 40 CFR part 267 requirements that apply to the facility.

d. The results of the audit ( i. e., an audit report) must be prepared documenting compliance with the applicable requirements of part 267. The audit report must be signed and certified by the auditor as accurate. The final rule adds language to § 270 § 270.280( c) clarifying that the audit ( audit report) must be signed and certified by the auditor as accurate prior to submitting to the Director with the Notice of Intent.

4. What Information Must be Kept at the Facility The informational requirements of § 270 § 270.290 through § 270 § 270.320 are finalized as proposed, except for the portions of § 270 § 270.290 noted below.

a. Regarding proposed § 270 § 270.290( d), because we are not allowing a waiver for security provisions, the last phrase of proposed § 270 § 270.290( d) regarding the waiver is omitted in the final rule.

b. Because we are requiring a closure plan to be submitted with the Notice of Intent, we are omitting proposed § 270 § 270.290( m).

One commenter noted that, while we included requirements for information that must be kept on site for tanks and containers, we did not include a similar requirement for containment buildings. The requirements for what information must be kept on site for tanks and containers were based on the previously existing part 270 Part B requirements for these units. When the requirements for containment buildings were finalized ( 57 FR 37265, August 18, 1992), a section detailing the Part B informational requirements for those units was not provided. Therefore, in the standardized permit rule, a section in part 270 on containment buildings was not provided. In deciding what information should be kept on site, the facility should maintain information related to the part 267 containment building requirements. 85 VI. State Authorization A. Applicability of the Rule in Authorized States Under section 3006 of RCRA, EPA may authorize qualified states to administer their own hazardous waste programs in lieu of the federal program within the state. Following authorization,

EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR Part 271.

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 ( HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law.

In contrast, under RCRA section 3006( g) ( 42 U. S. C. 6926( g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so.

Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements.

RCRA section 3009 allows the states to impose standards more stringent than those in the federal 5EPA encourages States to take this approach for federal requirements where rapid implementation is important. For example, EPA encouraged States to implement State Corrective Action Management Unit Regulations, once adopted as a matter of State law, prior to authorization ( see 58 FR 8677, February 16, 1993).

86 program ( see also 40 CFR 271.1). Therefore, authorized states may, but are not required to,

adopt federal regulations, both HSWA and non HSWA, that are considered less stringent than previous federal regulations.

B. Effect of State Authorization Today's rule finalizes regulations that are not promulgated under the authority of HSWA.

Thus, the standards finalized today are applicable on the effective date only in those States that do not have final authorization. Moreover, authorized States are required to modify their program only when EPA promulgates Federal regulations that are more stringent or broader in scope than the authorized State regulations. For those changes that are less stringent or reduce the scope of the Federal program, States are not required to modify their program. This is a result of section 3009 of RCRA, which allows States to impose more stringent regulations than the Federal program. Today's rule however, is considered to be neither more nor less stringent than the current standards. Therefore, authorized States are not required to modify their programs to adopt regulations consistent with and equivalent to today's final standards.

Because the Agency believes that the changes promulgated today will make the permitting program more efficient and save time, EPA strongly encourages States to adopt and seek authorization for this rule as soon as possible. EPA also encourages States to begin implementing this rule as soon as it is allowable under State law, while the RCRA authorization process proceeds. 5 Note that the requirements in today's rule are not less stringent than the previous federal standards.

As in the case of individual permit procedures, a State that chooses to adopt and request authorization for issuing standardized permits must adopt permitting procedures equivalent, but not necessarily identical to those promulgated by EPA. The authorization regulations in 40 CFR 87 271.14 list several provisions of the permitting regulations which EPA determined are necessary for an equivalent permitting program. States would need to adopt a similar scope of legal authorities for issuing standardized permits as for individual permits.

VII. Regulatory Assessments A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866, [ 58 FR 51735 ( October 4, 1993)] we must determine whether a regulatory action is    significant''" significant" and therefore subject to OMB review and the requirements of the Executive Order. The Order defines    significant" significant regulatory action''" as one that is likely to result in a rule that may:

( 1) Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

( 2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

( 3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or ( 4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, OMB has determined that this proposed rule is a    significant" significant regulatory action''" because it raises novel legal or policy issues.

As such, we submitted this action to OMB for review before publishing it in the Federal Register.

Changes made in response to OMB suggestions or recommendations are documented in the public record in support of this final rule.

1. Assessment of Potential Costs and Benefits 88 For regulations that are projected to have significant economic impacts, agencies are required to conduct a    Regulatory" Regulatory Impact Assessment''" of potential costs and benefits of the regulation. Although OMB has not designated this proposed rule as economically significant, we have completed an economic analysis of the proposed ruleit ( available to the public from the EPA docket at http:// www. epa. gov/ dOCKETgov/ edocket), the results of which we summarize below.

a.. Description of entities to which this rule applies. This rule potentially applies to approximately 86670 to 1,230130 existing private sector and Federal facilities which non thermally treat and/ or store RCRA hazardous waste in tanks, containers, and containment buildings. T eithe rule applies only to on site treatment and storage of hazardous waster " on site"

( i. e. at the waste generator site), not to off siteor at " off site" facilities such as commercial hazardous waste treatment, storage and recycling facilitiesthat receive waste from off site,

provided that the company/ institution is under the same ownership. Eligible facilities may voluntarily participate in the RCRA standardized permit program. We designed the final rule to reduce the informationpaperwork reporting requirementsburden for eligible facilities, as well as to reduce EPA and state administrative review time for these permit activities. Eligible facilities are a mix of small, medium and large facilities.

b. Description of potential impacts of this rule. The RCRA standardized permit rule is designed to streamline the regulatory burden to EPA/ states, as well as to private sector and Federal facilities covered by the rule, by reducing the amount of information collected, submitted and reviewed for RCRA permit actions ( i. e., new RCRA permit applications, RCRA permit modifications, and RCRA permit renewals). Our economic analysis presents monetary estimates of the future average annual impact expected for five potential impact categories: ( 1) paperwork burden reduction, ( 2) benefits and costs associated with changes to closure financial assurance ( three year pay in period, financial ratio test, and independent financial audit report), ( 3) cost for facility certification audit, ( 4) improvement in financial return on waste management capital assets and investments, and ( 5) potential reduction in state hazardous waste fees paid by eligible facilities for RCRA permitting.

Based on our economic analysis, we estimate potential average annual cost savings to between 86670 to 1,230130 eligible on site facilities of $ 100 to $ 20,800 per permit action ( i. e., 89 between 2 to 480 paperwork burden hours reduction per permit action), which represents a 4% to 40% reduction in burden hours compared to the conventional RCRA permit process, depending.

The extent of reduction depends on the type of future permit action ( i. e. new or interim status permits, conversion of existing permits, permit renewals, or permit modifications), and the type of eligible waste management unit ( i. e. tank, container, or containment building). We estimate an average of 55% of annual permit actions will involve container systems, 43% will involve tank systems ( although some small fraction of tanks may be ineligible in ground and under ground tanks), and 2% containment buildings. Aggregated over a future 30 year average annual 166 futureto 202 RCRA standardized permit actions ( 11% of which are expected to consist of conversion of existing permits, 61% of interim status and new facility permit applications, 18%

modification permit applications, and 10% permit renewal applications upon expiration), produces an expected national paperwork cost savings benefit of $ 1.3 million to $ 3.94 million annually. This annual savings consists of 35% to 94% of benefits to eligible facilities, and 6% to 65% of benefits to EPA/ state permit authorities ( numerical ranges reflect two alternative estimation methods).

Potential cost savings benefits are incremental to the average annual cost associated with the current ( conventional) RCRA permitting process.

In addition to paperwork burden savings, our economic analysis also estimates $ 0.01 million to $ 0.172 million in average annual potential improvement in financial return to eligible hazardous waste management capital assets and investments ( i. e. tanks, containers, and containment buildings), from expediting by 2.5 to 28 months per permit action, the time required for the RCRA permitting process. We also estimate a potential net annual cost of $ 0.03 million to $ 0.04 million associated with changes to closure financial assurance, and potential annual costs of $ 0.005 million ( if self audit) to $ 2.916 million ( if third party audit) for the certification audit.

Taking both benefits and added costs into consideration, we estimate the net annual economic impact of the rule at $ 2.8 to $ 43.05 million in potential annual paperwork burden cost savings. In addition, we estimate a potential reduction of $ 12.7 $ 7.2 to $ 18.08 million per year in hazardous waste permitting fees paid by eligible facilities to state governments, which represents a " transfer payment" impact, rather than a real resource " economic impact", impact," to avoid double counting state government paperwork burden impacts in our analysis. This does not necessarily translate into a net revenue loss to state governments, as states may beneficially reallocate these annual administrative resources to other revenue generating activities. From the perspective of eligible 90 facilities, the potential reduction in state fees added to the net reduction in annual costs to facilities associated with RCRA hazardous waste permits, provides a potential annual regulatory relief to eligible facilities of $ 150.50 million to $ 212.03 million per year.

These impact estimates represent hypothetical adoption of this rule by all state governments. However, the net benefits of the rule may be less than estimated because not all states may act immediately to change their state laws in order to adopt the standardized permit.

Such an assumption is unlikely to occur in practice because ( 1) it will take states some time to change their laws, and ( 2) some states may choose not to adopt the EPA rule. For example, five states ( AR, GA, MI, TN, WA) oppose offsite facility eligibility based on state government comments to the October 2001 proposed rule. These five states accounted for 64 ( 11%) of the 595 offsite facility universe in the 2001 RCRA Biennial Report count of waste management facilities ( i. e. facilities which received RCRA hazardous waste shipments from offsite). If these five states do not adopt the off site portion of this voluntary rule, it will result in an 11% smaller net benefit estimate for this final rule.

B. Paperwork Reduction Act The Office of Management and Budget ( OMB) has approved the information collection requirements contained in this rule under the provisions of the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. and has assigned OMB control number 2050 0182.

Section 270.275 requires that applicants for a standardized permit submit to the permitting agency a Notice of Intent that will be used as the basis of the standardized permit application. This information includes:

The Part A permit application required by sSection 270.13;

A summary of the pre application public meeting and other materials required by section 124.31;

Documentation of compliance with the location standards of sections 267.18 and 270.14( b)( 11); 91 Information that allows the Director to carry out his obligations under other Federal laws required in Sec. 270.3;

A closure plan as described in 267.112;

Solid waste management unit information required by Sec. 270.14( d); andSection 270.14( d);

For facilities managing wastes generated off site, a copy of the waste analysis plan;

For facilities managing wastes generated off site, documentation showing that the waste generator and the receiving facility are under the same ownership;

A signed certification of the facility's compliance with part 267, as specified at SecSection.

270.280 and an audit report of the facility's current compliance status; and;

The most recent closure cost estimate and a copy of the documentation required to demonstrate financial responsibility.

EPA needs this information to comprehensively evaluate the potential risk posed by facilities seeking permits. This information aids EPA in meeting its goal of ascertaining and minimizing risks to human health and the environment from hazardous waste management facilities.

In addition, facilities that store or treat hazardous waste under a standardized permit must keep at their facilities general types of information ( Sec. 267 § 267.290), as well as unit specific information for containers ( Sec. 267 § 267 Subpart I), tanks ( Sec. 267 § 267 Subpart J), and containment buildings ( Sec. 267 § 267 Subpart DD), equipment subject to part 264, subpart BB ( Sec. 270 § 270.310), and tanks, containers and containment buildings subject to part 264, subpart CC ( Sec. 270 § 270.315). EPA anticipates that the owner or operator will use this information to ensure that tanks, containers, containment buildings, and other equipment are in good condition and, that operating requirements are being satisfied, and to prevent placing in proximity wastes that are incompatible with other wastes that are likely to ignite or explode. EPA needs this information to evaluate compliance of facilities with the permitting standards. These requirements contribute to EPA's goal of insuring that hazardous waste management facilities are operated in a manner fully protective of human health and the environment. Information collection requirements in the 92 standardized permit rule are authorized by sections 2002 and 3007 of RCRA, as amended. In particular, section 2002 gives the Administrator the authority to promulgate such regulations as are necessary to carry out the functions of this subchapter. Section 3007 gives EPA the authority to compel anyone who generates, stores, treats, transports, disposes of or otherwise handles or has handled hazardous wastes to " furnish information related to such wastes" and make such information available to the government for " the purposes of * * * enforcing. . . enforcing the provisions of this chapter." EPA believes the information collection requirements in this rule are consistent with the Agency's responsibility to protect human health and the environment.

Section 3007( b) of RCRA and 40 CFR part 2, subpart B, which define EPA's general policy on public disclosure of information, contain provisions for confidentiality. However, the Agency does not anticipate that businesses will assert a claim of confidentiality covering all or part of the information that would be requested pursuant to the proposed information collection requirements. If such a claim were asserted, EPA must and will treat the information in accordance with the regulations cited above. EPA also will assure that this information collection complies with the Privacy Act of 1974 and OMB Circular 108. Further, no questions of a sensitive nature are included in the proposed information collection requirements.

EPA estimates that a future 3 year average annual 175 ( permitted, interim status, and new)

on site captive TSDFs per year will apply for a RCRA standardized permit in the years after its implementation ( not counting a small additional amount of eligible federal facilities which are excluded from ICRs). The Agency has not estimated the burden for eligible off site facilities. In the ICR, EPA estimates average annual respondent burden to be about 14,400 hours at an annual cost of $ 1.42 million, and average annual agency ( EPA/ state) burden to be about 11,200 hours at an annual cost of $ 0.58 million ( which on a combined bases totals 25,600 hours/ year at $ 2.0 million/ year). Assuming each eligible TSDF responds once annually ( i. e. process a RCRA permit action), the average burden per response would be 82 hours. It is important to note that these ICR burden estimates are absolute magnitudes, not incremental; i. e. these estimates do not net out the baseline burden of the existing conventional RCRA permitting process, as was done in the economic analysis summarized a few sections above. 93 Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. In addition, EPA is amending the table in 40 CFR part 9 of currently approved OMB control numbers for various regulations to list the regulatory citations for the information requirements contained in this final rule.

C. Regulatory Flexibility Act The Regulatory Flexibility Act ( RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: ( 1) a small business as defined by the Small Business Administration's ( SBA)

regulations at 13 CFR 121.201 , ( 2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and ( 3)

a small organization that is any not for profit enterprise which is independently owned and operated and is not dominant in its field. 94 After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives " which minimize any significant economic impact of the rule on small entities." 5 USC 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

The final rule is expected to provide net annual benefits ( in the form of administrative paperwork burden reduction cost savings) from the voluntary participation by eligible facilities in the private sector. We have therefore concluded that today's final rule will relieve regulatory burden for all small entities eligible for the rule.

D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), Public Law 104 4,

establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under Section 202 of UMRA, we generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with " Federal mandates" that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any one year.

Before promulgating an EPA rule which must have a written statement, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly,

most cost effective, or least burdensome alternative if the Administrator publishes an explanation with the final rule. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, we must develop, under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have 95 meaningful and timely input in the development of our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's rule contains no Federal mandates ( under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Small governments are not authorized for the RCRA program and therefore will not be implementing these rules.

E. Executive Order 13132: Federalism Executive Order 13132, entitled " Federalism" ( 64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure " meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications." " Policies that have federalism implications" is defined in the Executive Order to include regulations that have " substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government."

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Rather, it would provide more flexibility for States to implement alreadyexisting requirements in the RCRA permitting program. Thus, Executive Order 13132 does not apply to this rule. 96 In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the proposed rule from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled " Consultation and Coordination with Indian Tribal Governments" ( 65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure " meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications." This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. There is no impact to tribal governments as thea result of the standardized permit. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks " Protection of Children from Environmental Health Risks and Safety Risks" ( 62 FR 19885,

April 23, 1997) applies to any rule that: ( 1) is determined to be " economically significant" as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. 97 H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use This rule is not a " significant energy action" as defined in Executive Order 13211, " Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" ( 66 FR 28355 ( May 22, 2001)) because it is not likely to have a significant adverse effect on the supply,

distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act As noted in the proposed rule, Section 12( d) of the National Technology Transfer and Advancement Act of 1995 (" NTTAA"), Pubic Law No. 104 113, section 12( d)( 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs us to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involveestablish any new technical standards. Therefore, we are not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations.

Under Executive Order 12898, " Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations," as well as through EPA's April 1995,

" Environmental Justice Strategy, OSWER Environmental Justice Task Force Action Agenda Report," and the National Environmental Justice Advisory Council, we have initiated efforts to incorporate environmental justice into our policies and programs. We are committed to addressing 98 environmental justice concerns and have assumed a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. Our goals are to ensure that no segment of the population, regardless of race, color, national origin, or income bears disproportionately high and adverse human health and environmental effects as a result of our policies, programs, and activities, and that all people live in clean and sustainable communities.

To address this goal, we considered the impacts of this rule on low income populations and minority populations.

We concluded that today's final rule will meet environmental justice goals because the public involvement process set forth in today's rule provides the opportunity for all potentially affected segments of the population to participate in public hearings and/ or to provide comment on health and environmental concerns that may arise pursuant to a permitting action.

K. The Congressional Review Act.

The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U. S. Senate, the U. S.

House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a " major rule" as defined by 5 U. S. C. 804( 2). This rule will be effective 30 days after publication in the Federal Register.

VIII. List of References 1. RCRA Standardized Permit Rule Response to Comments Document. EPA Office of Solid Waste, Permits and State Programs Division. March 20045.

2. RCRA Part A Application. EPA/ 8700 23, May 2002. 99 3. Economics Background Document: Estimate of Potential National Regulatory Cost Savings for USEPA's RCRA Hazardous Waste Management " Standardized" Permit Final Rule, EPA Office of Solid Waste, Economics, Methods & Risk Analysis Division, 08 October 2003,

73ppMarch 29, 2005 4. Protocol for Conducting Environmental Compliance Audits of Treatment, Storage and Disposal Facilities under the Resource Conservation and Recovery Act, EPA 305 B 98 006 ( December 1998).

5. Procedures for Conducting Compliance Audit Required by 40 CFR 270.275( f). EPA Office of Enforcement and Compliance Assurance.

List of Subjects 40 CFR Part 124 Administrative practice and procedure, Hazardous waste, RCRA permits.

40 CFR Part 260 Hazardous waste management system 40 CFR Part 261 Identification and Listing of Hazardous Waste 40 CFR Part 267 Corrective action, Financial assurance, Hazardous waste, Reporting and record keeping requirements, Standardized permit requirements. 100 40 CFR Part 270 Administrative practice and procedure, Hazardous waste, Permit application and modification procedures, RCRA permits, Standardized permit requirements.

Dated:

Mike LeavittStephen L. Johnson,

Administrator 101 For reasons stated in the preamble, title 40 chapter I of the Code of Federal Regulations is amended as follows:

PART 124 PROCEDURES FOR DECISION MAKING 1. The authority citation for part 124 continues to read as follows:

Authority: Resource Conservation and Recovery Act, 42 U. S. C. 6901 et seq.; Safe Drinking Water Act, 42 U. S. C. 300( f) et seq.; Clean Water Act, 33 U. S. C. 1251 et seq.; and Clean Air Act,

42 U. S. C. 1857 et seq.

2. Section 124.1 is amended by revising paragraph ( b) to read as follows:

§ 124.1 Purpose and scope.

* * * * *

( b) Part 124 is organized into five subparts. Subpart A contains general procedural requirements applicable to all permit programs covered by these provisions. Subparts B through D and Subpart G supplement these general provisions with requirements that apply to only one or more of the programs. Subpart A describes the steps EPA will follow in receiving permit applications,

preparing draft permits, issuing public notice, inviting public comment and holding public hearings on draft permits. Subpart A also covers assembling an administrative record, responding to comments, issuing a final permit decision, and allowing for administrative appeal of the final permit decisions. Subpart B contains public participation requirements applicable to all RCRA hazardous waste management facilities. Subpart C contains definitions and specific procedural requirements for PSD permits. Subpart D contains specific procedural requirements for NPDES permits.

Subpart G contains specific procedural requirements for RCRA standardized permits, which, in some instances, change how the General Program Requirements of subpart A apply in the context of the RCRA standardized permit.

* * * * * 102 3. Section 124.2 is amended by revising the definition of " permit" in paragraph ( a) and adding a definition for a standardized permit in alphabetical order as follows:

§ 124.2 Definitions.

( a) * * *

Permit means an authorization, license or equivalent control document issued by EPA or an " approved State" to implement the requirements of this part and parts 122, 123, 144, 145, 233,

270, and 271 of this chapter. " Permit" includes RCRA " permit by rule" ( § 270.60), RCRA standardized permit ( § 270.67), UIC area permit ( § 144.33), NPDES or 404 " general permit"

( § § 270.61, 144.34, and 233.38). Permit does not include RCRA interim status ( § 270.70), UIC authorization by rule ( § 144.21), or any permit which has not yet been the subject of final agency action, such as a " draft permit" or a " proposed permit."

* * * * *

Standardized permit means a RCRA permit authorizing management of hazardous waste issued under subpart G of this part and part 270, subpart J. The standardized permit may have two parts:

A uniform portion issued in all cases and a supplemental portion issued at the Director's discretion.

* * * * *

4. Section 124.5( c) is amended by revising paragraph ( c)( 1) as follows:

§ 124.5 Modification, revocation and reissuance, or termination of permits.

* * * * *

( c) ( Applicable to State programs, see 40 CFR 123.25 ( NPDES), 145.11 ( UIC), 233.26 ( 404),

and 271.14 ( RCRA)). ( 1) If the Director tentatively decides to modify or revoke and reissue a permit under 40 CFR 122.62 ( NPDES), 144.39 ( UIC), 233.14 ( 404), or 270.41 ( other than § 270.41( b)( 3)) or § 270.42( c) ( RCRA), he or she shall prepare a draft permit under § 124.6 incorporating the proposed changes. The Director may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, other than under 40 CFR 270.41( b)( 3), the Director shall require the 103 submission of a new application. In the case of revoked and reissued permits under 40 CFR 270.41( b)( 3), the Director and the permittee shall comply with the appropriate requirements in 40 CFR part 124, subpart G for RCRA standardized permits.

* * * * *

5. Section 124.31 is amended by revising paragraphs ( a), ( b), and ( c) as follows:

§ 124.31 Pre application public meeting and notice.

( a) Applicability. The requirements of this section shall apply to all RCRA part B applications seeking initial permits for hazardous waste management units over which EPA has permit issuance authority. The requirements of this section shall also apply to RCRA part B applications seeking renewal of permits for such units, where the renewal application is proposing a significant change in facility operations. For the purposes of this section, a " significant change" is any change that would qualify as a class 3 permit modification under 40 CFR 270.42. For the purposes of this section only, " hazardous waste management units over which EPA has permit issuance authority"

refers to hazardous waste management units for which the State where the units are located has not been authorized to issue RCRA permits pursuant to 40 CFR part 271. The requirements of this section shall also apply to hazardous waste management facilities for which facility owners or operators are seeking coverage under a RCRA standardized permit ( see 40 part 270, subpart J),

including renewal of a standardized permit for such units, where the renewal is proposing a significant change in facility operations, as defined at § 124.211( c). The requirements of this section do not apply to permit modifications under 40 CFR 270.42 or to applications that are submitted for the sole purpose of conducting post closure activities or post closure activities and corrective action at a facility.

( b) Prior to the submission of a part B RCRA permit application for a facility, or to the submission of a written Notice of Intent to be covered by a RCRA standardized permit ( see 40 CFR part 270, subpart J), the applicant must hold at least one meeting with the public in order to solicit questions from the community and inform the community of proposed hazardous waste management activities. The applicant shall post a sign in sheet or otherwise provide a voluntary opportunity for attendees to provide their names and addresses. 104 ( c) The applicant shall submit a summary of the meeting, along with the list of attendees and their addresses developed under paragraph ( b) of this section, and copies of any written comments or materials submitted at the meeting, to the permitting agency as a part of the part B application,

in accordance with 40 CFR 270.14( b), or with the written Notice of Intent to be covered by a RCRA standardized permit ( see 40 CFR part 270, subpart J).

* * * * *

6. Section 124.32 is amended by revising paragraph ( a) as follows:

§ 124.32 Public notice requirements at the application stage.

( a) Applicability. The requirements of this section shall apply to all RCRA part B applications seeking initial permits for hazardous waste management units over which EPA has permit issuance authority. The requirements of this section shall also apply to RCRA part B applications seeking renewal of permits for such units under 40 CFR 270.51. For the purposes of this section only,

" hazardous waste management units over which EPA has permit issuance authority" refers to hazardous waste management units for which the State where the units are located has not been authorized to issue RCRA permits pursuant to 40 CFR part 271. The requirements of this section do not apply to hazardous waste units for which facility owners or operators are seeking coverage under a RCRA standardized permit ( see 40 CFR part 270, subpart J)). The requirements of this section also do not apply to permit modifications under 40 CFR 270.42 or permit applications submitted for the sole purpose of conducting post closure activities or post closure activities and corrective action at a facility.

* * * * *

7. Subpart G is added to read as follows:

Subpart G Procedures for RCRA Standardized Permit General Information About Standardized Permits 124.200 What is a RCRA standardized permit?

124.201 Who is eligible for a standardized permit?

Applying for a Standardized Permit 105 124.202 How do I as a facility owner or operator apply for a standardized permit?

124.203 How may I switch from my individual RCRA permit to a standardized permit?

Issuing a Standardized Permit 124.204 What must I do as the Director of the regulatory agency to prepare a draft standardized permit?

124.205 What must I do as the Director of the regulatory agency to prepare a final standardized permit?

124.206 In what situations may I require a facility owner or operator to apply for an individual permit?

Opportunities for Public Involvement in the Standardized Permit Process 124.207 What are the requirements for public notices?

124.208 What are the opportunities for public comments and hearings on draft permit decisions?

124.209 What are the requirements for responding to comments?

124.210 May I, as an interested party in the permit process, appeal a final standardized permit?

Maintaining a Standardized Permit 124.211 What types of changes may I make to my standardized permit?

124.212 What procedures must I follow to make routine changes?

124.213 What procedures must I follow to make routine changes with prior approval?

124.214 What procedures must I follow to make significant changes?

Subpart G Procedures for RCRA Standardized Permit General Information About Standardized Permits § 124.200 What is a RCRA standardized permit?

The standardized permit is a special form of RCRA permit, that may consist of two parts: A uniform portion that the Director issues in all cases, and a supplemental portion that the Director issues at his or her discretion. We formally define the term " Standardized permit" in § 124.2. 106 ( a) What comprises the uniform portion? The uniform portion of a standardized permit consists of terms and conditions, relevant to the unit( s) you are operating at your facility, that EPA has promulgated in 40 CFR part 267 ( Standards for Owners and Operators of Hazardous Waste Facilities Operating under a Standardized Permit). If you intend to operate under the standardized permit, you must comply with these nationally applicable terms and conditions.

( b) What comprises the supplemental portion? The supplemental portion of a standardized permit consists of site specific terms and conditions, beyond those of the uniform portion, that the Director may impose on your particular facility, as necessary to protect human health and the environment. If the Director issues you a supplemental portion, you must comply with the site specific terms and conditions it imposes.

( 1) When required under § 267.101, provisions to implement corrective action will be included in the supplemental portion.

( 2) Unless otherwise specified, these supplemental permit terms and conditions apply to your facility in addition to the terms and conditions of the uniform portion of the standardized permit and not in place of any of those terms and conditions.

§ 124.201 Who is eligible for a standardized permit?

You may be eligible for a standardized permit if:

( a) you generate hazardous waste and then store or non thermally treat the hazardous waste onsite in containers, tanks, or containment buildings, or if ( b) you receive hazardous waste generated off site by a generator under the same ownership as the receiving facility, and then you store or non thermally treat the hazardous waste in containers,

tanks, or containment buildings.

In either case, the Director will inform you of your eligibility when a decision is made on your permit. 107 Applying for a Standardized Permit § 124.202 How do I as a facility owner or operator apply for a standardized permit?

( a) You must follow the requirements in this subpart as well as those in § 124.31, 40 CFR 270.10, and 40 CFR part 270, subpart J.

( b) You must submit to the Director a written Notice of Intent to operate under the standardized permit. You must also include the information and certifications required under 40 CFR part 270, subpart J.

§ 124.203 How may I switch from my individual RCRA permit to a standardized permit?

Where all units in the RCRA permit are eligible for the standardized permit, you may request that your individual permit be revoked and reissued as a standardized permit, in accordance with § 124.5. Where only some of the units in the RCRA permit are eligible for the standardized permit,

you may request that your individual permit be modified to no longer include those units and issue a standardized permit for those units in accordance with § 124.204.

Issuing a Standardized Permit § 124.204 What must I do as the Director of the regulatory agency to prepare a draft standardized permit?

( a) You must review the Notice of Intent and supporting information submitted by the facility owner or operator.

( b) You must determine whether the facility is or is not eligible to operate under the standardized permit.

( 1) If the facility is eligible for the standardized permit, you must propose terms and conditions,

if any, to include in a supplemental portion. If you determine that these terms and conditions are necessary to protect human health and the environment and cannot be imposed, you must tentatively deny coverage under the standardized permit. 108 ( 2) If the facility is not eligible for the standardized permit, you must tentatively deny coverage under the standardized permit. Cause for ineligibility may include, but is not limited to, the following:

( i) failure of owner or operator to submit all the information required under § 270.275 ( ii) information submitted that is required under § 270.275 is determined to be inadequate ( iii) facility does not meet the eligibility requirements ( activities are outside the scope of the standardized permit)

( iv) demonstrated history of significant non compliance with applicable requirements ( v) permit conditions cannot ensure protection of human health and the environment ( c) You must prepare your draft permit decision within 120 days after receiving the Notice of Intent and supporting documents from a facility owner or operator. Your tentative determination under this section to deny or grant coverage under the standardized permit, including any proposed site specific conditions in a supplemental portion, constitutes a draft permit decision.

You are allowed a one time extension of 30 days to prepare the draft permit decision. When the use of the 30 day extension is anticipated, you should inform the permit applicant during the initial 120 day review period. Reasons for an extension may include, but is not limited to, needing to complete review of submissions with the Notice of Intent ( e. g., closure plans, waste analysis plans,

for facilities seeking to manage hazardous waste generated off site).

( d) Many requirements in subpart A of this part apply to processing the standardized permit application and preparing your draft permit decision. For example, your draft permit decision must be accompanied by a statement of basis or fact sheet and must be based on the administrative record. In preparing your draft permit decision, the following provisions of subpart A of this part apply ( subject to the following modifications):

( 1) Section 124.1 Purpose and Scope. All paragraphs.

( 2) Section 124.2 Definitions. All paragraphs.

( 3) Section 124.3 Application for a permit. All paragraphs, except paragraphs ( c), ( d), ( f) and ( g) of this section apply. 109 ( 4) Section 124.4 Consolidation of permit processing. All paragraphs apply; however, in the context of the RCRA standardized permit, the reference to the public comment period is § 124.208 instead of § 124.10.

( 5) Section 124.5 Modification, revocation and re issuance, or termination of permits. Not applicable.

( 6) Section 124.6 Draft permits. This section does not apply to the RCRA standardized permit;

procedures in this subpart apply instead.

( 7) Section 124.7 Statement of basis. The entire section applies.

( 8) Section 124.8 Fact sheet. All paragraphs apply; however, in the context of the RCRA standardized permit, the reference to the public comment period is § 124.208 instead of § 124.10.

( 9) Section 124.9 Administrative record for draft permits when EPA is the permitting authority.

All paragraphs apply; however, in the context of the RCRA standardized permit, the reference to draft permits is § 24.204( c) instead of § 124.6.

( 10) Section 124.10 Public notice of permit actions and public comment period. Only § § 124.10( c)( 1)( ix) and ( c)( 1)( x)( A) apply to the RCRA standardized permit. Most of § 124.10 does not apply to the RCRA standardized permit; § § 124.207, 124.208, and 124.209 apply instead.

§ 124.205 What must I do as the Director of the regulatory agency to prepare a final standardized permit?

As Director of the regulatory agency, you must consider all comments received during the public comment period ( see § 124.208) in making your final permit decision. In addition, many requirements in subpart A of this part apply to the public comment period, public hearings, and preparation of your final permit decision. In preparing a final permit decision, the following provisions of subpart A of this part apply ( subject to the following modifications):

( a) Section 124.1 Purpose and Scope. All paragraphs.

( b) Section 124.2 Definitions. All paragraphs.

( c) Section 124.11 Public comments and requests for public hearings. This section does not apply to the RCRA standardized permit; the procedures in § 124.208 apply instead. 110 ( d) Section 124.12 Public hearings. Paragraphs ( b), ( c), and ( d) apply.

( e) Section 124.13 Obligation to raise issues and provide information during the public comment period. The entire section applies; however, in the context of the RCRA standardized permit, the reference to the public comment period is § 124.208 instead of § 124.10.

( f) Section124.14 Reopening of the public comment period. All paragraphs apply; however, in the context of the RCRA standardized permit, use the following reference: in § 124.14( b)( 1) use reference to § 124.204 instead of § 124.6; in § 124.14( b)( 3) use reference to § 124.208 instead of § 124.10; in § 124.14( c) use reference to § 124.207 instead of § 124.10.

( g) Section 124.15 Issuance and effective date of permit. All paragraphs apply, however, in the context of the RCRA standardized permit, the reference to the public comment period is § 124.208 instead of § 124.10.

( h) Section 124.16 Stays of contested permit conditions. All paragraphs apply.

( i) Section 124.17 Response to comments. This section does not apply to the RCRA standardized permit; procedures in § 124.209 apply instead.

( j) Section 124.18 Administrative record for final permit when EPA is the permitting authority.

All paragraphs apply, however, use reference to § 124.209 instead of § 124.17.

( k) Section 124.19 Appeal of RCRA, UIC, NPDES, and PSD permits. All paragraphs apply.

( l) Section 124.20 Computation of time. All paragraphs apply.

§ 124.206 In what situations may I require a facility owner or operator to apply for an individual permit?

( a) Cases where you may determine that a facility is not eligible for the standardized permit include, but are not limited to, the following:

( 1) The facility does not meet the criteria in § 124.201.

( 2) The facility has a demonstrated history of significant non compliance with regulations or permit conditions.

( 3) The facility has a demonstrated history of submitting incomplete or deficient permit application information.

( 4) The facility has submitted an incomplete or inadequate materials with the Notice of Intent. 111 ( b) If you determine that a facility is not eligible for the standardized permit, you must inform the facility owner or operator that they must apply for an individual permit.

( c) You may require any facility that has a standardized permit to apply for and obtain an individual RCRA permit. Any interested person may petition you to take action under this paragraph. Cases where you may require an individual RCRA permit include, but are not limited to, the following:

( 1) The facility is not in compliance with the terms and conditions of the standardized RCRA permit.

( 2) Circumstances have changed since the time the facility owner or operator applied for the standardized permit, so that the facility's hazardous waste management practices are no longer appropriately controlled under the standardized permit.

( d) You may require any facility authorized by a standardized permit to apply for an individual RCRA permit only if you have notified the facility owner or operator in writing that an individual permit application is required. You must include in this notice a brief statement of the reasons for your decision, a statement setting a deadline for the owner or operator to file the application, and a statement that, on the effective date of the individual RCRA permit, the facility's standardized permit automatically terminates. You may grant additional time upon request from the facility owner or operator.

( e) When you issue an individual RCRA permit to an owner or operator otherwise subject to a standardized RCRA permit, the standardized permit for their facility will automatically cease to apply on the effective date of the individual permit.

Opportunities for Public Involvement in the Standardized Permit Process § 124.207 What are the requirements for public notices? 112 ( a) You, as the Director, must provide public notice of your draft permit decision and must provide an opportunity for the public to submit comments and request a hearing on that decision.

You must provide the public notice to:

( 1) The applicant;

( 2) Any other agency which you know has issued or is required to issue a RCRA permit for the same facility or activity ( including EPA when the draft permit is prepared by the State);

( 3) Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, including any affected States;

( 4) To everyone on the facility mailing list developed according to the requirements in § 124.10( c)( 1)( ix); and ( 5) To any units of local government having jurisdiction over the area where the facility is proposed to be located and to each State agency having any authority under State law with respect to the construction or operation of the facility.

( b) You must issue the public notice according to the following methods:

( 1) Publication in a daily or weekly major local newspaper of general circulation and broadcast over local radio stations;

( 2) When the program is being administered by an approved State, in a manner constituting legal notice to the public under State law; and ( 3) Any other method reasonably calculated to give actual notice of the draft permit decision to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

( c) You must include the following information in the public notice:

( 1) The name and telephone number of the contact person at the facility.

( 2) The name and telephone number of your contact office, and a mailing address to which people may direct comments, information, opinions, or inquiries.

( 3) An address to which people may write to be put on the facility mailing list.

( 4) The location where people may view and make copies of the draft standardized permit and the Notice of Intent and supporting documents. 113 ( 5) A brief description of the facility and proposed operations, including the address or a map ( for example, a sketched or copied street map) of the facility location on the front page of the notice.

( 6) The date that the facility owner or operator submitted the Notice of Intent and supporting documents.

( d) At the same time that you issue the public notice under this section, you must place the draft standardized permit ( including both the uniform portion and the supplemental portion, if any), the Notice of Intent and supporting documents, and the statement of basis or fact sheet in a location accessible to the public in the vicinity of the facility or at your office.

§ 124.208 What are the opportunities for public comments and hearings on draft permit decisions?

( a) The public notice that you issue under § 124.207 must allow at least 45 days for people to submit written comments on your draft permit decision. This time is referred to as the public comment period. You must automatically extend the public comment period to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.

( b) During the public comment period, any interested person may submit written comments on the draft permit and may request a public hearing. If someone wants to request a public hearing,

they must submit their request in writing to you. Their request must state the nature of the issues they propose to raise during the hearing.

( c) You must hold a public hearing whenever you receive a written notice of opposition to a standardized permit and a request for a hearing within the public comment period under paragraph ( a) of this section. You may also hold a public hearing at your discretion, whenever, for instance,

such a hearing might clarify one or more issues involved in the permit decision.

( d) Whenever possible, you must schedule a hearing under this section at a location convenient to the nearest population center to the facility. You must give public notice of the hearing at least 30 days before the date set for the hearing. ( You may give the public notice of the hearing at the same time you provide public notice of the draft permit, and you may combine the two notices.) 114 ( e) You must give public notice of the hearing according to the methods in § 124.207( a) and ( b).

The hearing must be conducted according to the procedures in § 124.12( b), ( c), and ( d).

( f) In their written comments and during the public hearing, if held, interested parties may provide comments on the draft permit decision. These comments may include, but are not limited to, the facility's eligibility for the standardized permit, the tentative supplemental conditions you proposed, and the need for additional supplemental conditions.

§ 124.209 What are the requirements for responding to comments?

( a) At the time you issue a final standardized permit, you must also respond to comments received during the public comment period on the draft permit. Your response must:

( 1) Specify which additional conditions ( i. e., those in the supplemental portion), if any, you changed in the final permit, and the reasons for the change.

( 2) Briefly describe and respond to all significant comments on the facility's ability to meet the general requirements ( i. e., those terms and conditions in the uniform portion) and on any additional conditions necessary to protect human health and the environment raised during the public comment period or during the hearing.

( 3) Make the comments and responses accessible to the public ( b) You may request additional information from the facility owner or operator or inspect the facility if you need additional information to adequately respond to significant comments or to make decisions about conditions you may need to add to the supplemental portion of the standardized permit.

( c) If you are the Director of an EPA permitting agency, you must include in the administrative record for your final permit decision any documents cited in the response to comments. If new points are raised or new material supplied during the public comment period, you may document your response to those matters by adding new materials to the administrative record.

§ 124.210 May I, as an interested party in the permit process, appeal a final standardized permit? 115 You may petition for administrative review of the Director's final permit decision, including his or her decision that the facility is eligible for the standardized permit, according to the procedures of § 124.19. However, the terms and conditions of the uniform portion of the standardized permit are not subject to administrative review under this provision.

Maintaining a Standardized Permit § 124.211 What types of changes may I make to my standardized permit?

You may make both routine changes, routine changes with prior Agency approval, and significant changes. For the purposes of this section:

( a) " Routine changes" are any changes to the standardized permit that qualify as a class 1 permit modification ( without prior Agency approval) under 40 CFR 270.42, Appendix I, and ( b) " Routine changes with prior Agency approval" are for those changes to the standardized permit that would qualify as a class 1 modification with prior agency approval, or a class 2 permit modification under 40 CFR 270.42, Appendix I, and ( c) " Significant changes" are any changes to the standardized permit that ( 1) Qualify as a class 3 permit modification under 40 CFR 270.42, Appendix I,

( 2) Are not explicitly identified in 40 CFR 270.42, Appendix I, or ( 3) Amend any terms or conditions in the supplemental portion of your standardized permit.

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

( a) You can make routine changes to the standardized permit 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.

( b) If the routine changes you make amend the information you submitted under 40 CFR 270.275 with your Notice of Intent to operate under the standardized permit, then before you make the routine changes you must: 116 ( 1) Submit to the Director the revised information pursuant to 40 CFR 270.275( a), and ( 2) Provide notice of the changes to the facility mailing list and to state and local governments in accordance with the procedures in § 124.10( c)( 1)( ix) and ( x).

§ 124.213 What procedures must I follow to make routine changes with prior Agency approval?

( a) Routine changes to the standardized permit with prior Agency approval may only be made with the prior written approval of the Director.

( b) You must also follow the procedures in § 124.212( b)( 1)  ( 2)

§ 124.214 What procedures must I follow to make significant changes?

( a) You must first provide notice of and conduct a public meeting.

( 1) Public Meeting. You must hold a meeting with the public to solicit questions from the community and inform the community of your proposed modifications to your hazardous waste management activities. You must post a sign in sheet or otherwise provide a voluntary opportunity for people attending the meeting to provide their names and addresses.

( 2) Public Notice. At least 30 days before you plan to hold the meeting, you must issue a public notice in accordance with the requirements of § 124.31( d).

( b) After holding the public meeting, you must submit a modification request to the Director that:

( 1) Describes the exact change( s) you want and whether they are changes to information you provided under 40 CFR 270.275 or to terms and conditions in the supplemental portion of your standardized permit;

( 2) Explain why the modification is needed, and ( 3) Includes a summary of the public meeting under paragraph ( a) of this section, along with the list of attendees and their addresses and copies of any written comments or materials they submitted at the meeting. 117 ( c) Once the Director receives your modification request, he or she must make a tentative determination within 120 days to approve or disapprove your request. You are allowed a one time extension of 30 days to prepare the draft permit decision. When the use of the 30 day extension is anticipated, you should inform the permit applicant during the initial 120 day review period.

( d) After the Director makes this tentative determination, the procedures in § 124.205 and § § 124.207 through 124.210 for processing an initial request for coverage under the standardized permit apply to making the final determination on the modification request. 118 PART 260 HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL 8. The authority citation for Part 260 continues to read as follows:

Authority: 42 U. S. C. 6905, 6912( a), 6921 6927, 6930, 6934, 6935, 6937, and 6974.

9. In Section 260.10, the first sentence of paragraph ( 2) of the definition of " facility" is revised to read as follows:

Section 260.10 Definitions * * * * *

Facility * * *

( 2) For the purpose of implementing corrective action under 40 CFR 264.101 or 267.101, all contiguous property under the control of the owner or operator seeking a permit under subtitle C of RCRA. * * *

* * * * *

PART 261   IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 10. The authority citation for Part 261 continues to read as follows:

Authority: 42 U. S. C. 6905, 6912( a), 6921, 6922, 6924( y), and 6938.

11. In Section 261.7( a)( 1), the first sentence is revised to read as follows:

Section 261.7 Residues of hazardous waste in empty containers * * * * *

( a)( 1) Any hazardous waste remaining in either ( i) an empty container or ( ii) an inner liner removed from an empty container, as defined in paragraph ( b) of this section, is not subject to regulation under parts 261 through 265, 267, 268, 270, or 124 this chapter or to the notification requirements of section 3010 of RCRA.

* * * * * 119 12. The authority citation for Part 267 will read as follows:

Authority: 42 U. S. C. 6902, 6912( a), 6924  6926, and 6930.

13. Part 267 is added to read as follows:

PART 267 STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE FACILITIES OPERATING UNDER A STANDARDIZED PERMIT Subpart A General Section 267.1 What are the purpose, scope and applicability of this part?

267.2 What is the relationship to interim status standards?

267.3 How does this part affect an imminent hazard action?

Subpart B General Facility Standards 267.10 Does this subpart apply to me?

267.11 What must I do to comply with this subpart?

267.12 How do I obtain an identification number?

267.13 What are my waste analysis requirements?

267.14 What are my security requirements?

267.15 What are my general inspection requirements?

267.16 What training must my employees have?

267.17 What are the requirements for managing ignitable, reactive, or incompatible wastes?

267.18 What are the standards for selecting the location of my facility?

Subpart C Preparedness and Prevention 267.30 Does this subpart apply to me?

267.31 What are the general design and operation standards?

267.32 What equipment am I required to have?

267.33 What are the testing and maintenance requirements for the equipment?

267.34 When must personnel have access to communication equipment or an alarm system?

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

267.36 What arrangements must I make with local authorities for emergencies?

Subpart D Contingency Plan and Emergency Procedures 267.50 Does this subpart apply to me? 120 267.51 What is the purpose of the contingency plan and how do I use it?

267.52 What must be in the contingency plan?

267.53 Who must have copies of the contingency plan?

267.54 When must I amend the contingency plan?

267.55 What is the role of the emergency coordinator?

267.56 What are the required emergency procedures for the emergency coordinator?

267.57 What must the emergency coordinator do after an emergency?

267.58 What notification and recordkeeping must I do after an emergency?

Subpart E Manifest System, Recordkeeping, Reporting, and Notifying 267.70 Does this subpart apply to me?

267.71 Use of the manifest system 267.72 Manifest discrepancies 267.73 What information must I keep?

267.74 Who sees the records?

267.75 What reports must I prepare and to whom do I send them?

267.76 What notifications must I make?

Subpart F Releases from Solid Waste Management Units 267.90 Who must comply with this section?

267.91 267.100 [ Reserved]

267.101 What must I do to address corrective action for solid waste management units?

Subpart G Closure 267.110 Does this subpart apply to me?

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

267.112 What procedures must I follow?

267.113 Will the public have the opportunity to comment on the plan?

267.114 What happens if the plan is not approved?

267.115 After I stop operating, how long until I must close?

267.116 What must I do with contaminated equipment, structure, and soils?

267.117 How do I certify closure?

Subpart H Financial Requirements 267.140 Who must comply with this subpart, and briefly, what do they have to do?

267.141 Definitions of terms as used in this subpart. 121 267.142 Cost estimate for closure.

267.143 Financial assurance for closure.

267.147 Liability requirements.

267.148 Incapacity of owners or operators, guarantors, or financial institutions.

267.150 State assumption of responsibility.

267.151 Wording of the instruments Subpart I Use and Management of Containers 267.170 Does this subpart apply to me?

267.171 What standards apply to the containers?

267.172 What are the inspection requirements?

267.173 What standards apply to the container storage areas?

267.174 What special requirements must I meet for ignitable or reactive waste?

267.175 What special requirements must I meet for incompatible wastes?

267.176 What must I do when I want to stop using the containers?

267.177 What air emission standards apply?

Subpart J Tank Systems 267.190 Does this subpart apply to me?

267.191 What are the required design and construction standards for new tank systems or components?

267.192 What handling and inspection procedures must I follow during installation of new tank systems?

267.193 What testing must I do?

267.194 What installation requirements must I follow?

267.195 What are the secondary containment requirements?

267.196 What are the required devices for secondary containment and what are their design,

operating and installation requirements?

267.197 What are the requirements for ancillary equipment?

267.198 What are the general operating requirements for my tank systems?

267.199 What inspection requirements must I meet?

267.200 What must I do in case of a leak or a spill?

267.201 What must I do when I stop operating the tank system?

267.202 What special requirements must I meet for ignitable or reactive wastes? 122 267.203 What special requirements must I meet for incompatible wastes?

267.204 What air emission standards apply?

Subparts K Through CC [ Reserved]

Subpart DD Containment buildings 267.1100 Does this subpart apply to me?

267.1101 What design and operating standards must my containment building meet?

267.1102 What other requirements must I meet to prevent releases?

267.1103 What additional design and operating standards apply if liquids will be in my containment building?

267.1104 How may I obtain a waiver from secondary containment requirements?

267.1105 What do I do if my containment building contains areas both with and without secondary containment?

267.1106 What do I do if I detect a release?

267.1107 Can a containment building itself be considered secondary containment?

267.1108 What must I do when I stop operating the containment building?

Authority: 42 U. S. C. 6902, 6912( a), 6924 6926, and 6930.

Subpart A General Section 267.1 What are the purpose, scope and applicability of this part?

( a) The purpose of this part is to establish minimum national standards which define the acceptable management of hazardous waste under a 40 CFR part 270, subpart J standardized permit.

( b) This part applies to owners and operators of facilities who treat or store hazardous waste under a 40 CFR part 270, subpart J standardized permit, except as provided otherwise in 40 CFR part 261, subpart A, or 40 CFR 264.1( f) and ( g).

Section 267.2 What is the relationship to interim status standards?

If you are a facility owner or operator who has fully complied with the requirements for interim status as defined in section 3005( e) of RCRA and regulations under 40 CFR 270.70 you must 123 comply with the regulations specified in 40 CFR part 265 instead of the regulations in this part,