Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63417

Instrument Approach Procedures

(TERPS). In developing these SIAPs, the

TERPS criteria were applied to the

conditions existing or anticipated at the

affected airports.

The FAA has determined through

testing that current non-localizer type,

non-precision instrument approaches

developed using the TERPS criteria can

be flown by aircraft equipped with

Global Positioning System (GPS)

equipment. In consideration of the

above, the applicable Standard

Instrument Approach Procedures

(SIAPs) will be altered to include ‘‘or

GPS’’ in the title without otherwise

reviewing or modifying the procedure.

(Once a stand alone GPS procedure is

developed, the procedure title will be

altered to remove ‘‘or GPS’’ from these

non-localizer, non-precision instrument

approach procedure titles.) Because of

the close and immediate relationship

between these SIAPs and safety in air

commerce, I find that notice and public

procedure before adopting these SIAPs

are impracticable and contrary to the

public interest and, where applicable,

that good cause exists for making some

SIAPs effective in less than 30 days.

The FAA has determined that this

regulation only involves an established

body of technical regulations for which

frequent and routine amendments are

necessary to keep them operationally

current. It, therefore—(1) is not a

‘‘significant regulatory action’’ under

Executive Order 12866; (2) is not a

‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

regulatory evaluation as the anticipated

impact is so minimal. For the same

reason, the FAA certifies that this

amendment will not have a significant

economic impact on a substantial

number of small entities under the

criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air Traffic Control, Airports,

Navigation (Air).

Issued in Washington, DC on December 1,

1995.

Thomas C. Accardi,

Director, Flight Standards Service.

Adoption of the Amendment

Accordingly, pursuant to the

authority delegated to me, part 97 of the

Federal Aviation Regulations (14 CFR

part 97) is amended by establishing,

amending, suspending, or revoking

Standard Instrument Approach

Procedures, effective at 0901 UTC on

the dates specified, as follows:

PART 97—STANDARD INSTRUMENT

APPROACH PROCEDURES

1. The authority citation for part 97 is

revised to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,

40120, 44701; and 14 CFR 11.49(b)(2).

2. Part 97 is amended to read as

follows:

§§ 97.23, 97.27, 97.33, 97.35 [Amended]

By amending: § 97.23 VOR, VOR/

DME, VOR or TACAN, and VOR/DME

or TACAN; § 97.27 NDB, NDB/DME;

§ 97.33 RNAV SIAPs; and § 97.35

COPTER SIAPs, identified as follows:

***Effective JAN 04, 1996

Madera, CA Madera Muni, VOR or GPS RWY

30, Amdt 9 CANCELLED

Madera, CA Madera Muni, VOR RWY 30,

Amdt 9

Webster City, IA, Webster City Muni, NDB or

GPS RWY 32, Amdt 7 CANCELLED

Webster City, IA, Webster City Muni, NDB

RWY 32, Amdt 8

Augusta, KS, Augusta Muni, VOR/DME

RNAV or GPS RWY 36, Orig-A

CANCELLED

Augusta, KS, Augusta Muni, VOR/DME

RNAV RWY 36, Orig-A

Olathe, KS, Johnson County Executive, VOR

or GPS RWY 35, Amdt 10 CANCELLED

Olathe, KS, Johnson County Executive, VOR

RWY 35, Amdt 10

Eastport, ME, Eastport Muni, NDB or GPS

RWY 15, Orig CANCELLED

Eastport, ME, Eastport Muni, NDB RWY 15,

Orig

Harrisonville, MO, Lawrence Smith

Memorial, VOR/DME or GPS RWY 35, Orig

CANCELLED

Harrisonville, MO, Lawrence Smith

Memorial, VOR/DME RWY 35, Orig

Omaha, NE, Millard, VOR/DME RNAV or

GPS RWY 12, Amdt 6 CANCELLED

Omaha, NE, Millard, VOR/DME RNAV RWY

12, Amdt 6

Sidney, NE, Sidney Muni, VOR/DME OR

TACAN or GPS RWY 30 Amdt 4

CANCELLED

Sidney, NE, Sidney Muni, VOR/DME OR

TACAN RWY 30 Amdt 4

Clinton, OK, Clinton-Sherman, NDB or GPS

RWY 17R, Amdt 10 CANCELLED

Clinton, OK, Clinton-Sherman, NDB RWY

17R, Amdt 10

Pauls Valley, OK, Pauls Valley Muni, NDB or

GPS RWY 35, Amdt 2 CANCELLED

Pauls Valley, OK, Pauls Valley Muni, NDB

RWY 35, Amdt 3

Gainesville, TX, Gainesville Muni, NDB or

GPS RWY 17, Amdt 8 CANCELLED

Gainesville, TX, Gainesville Muni, NDB RWY

17, Amdt 8

[FR Doc. 95–30098 Filed 12–8–95; 8:45 am]

BILLING CODE 4910–33–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 9, 124 and 270

[FRL–5319–4 RIN 2050–AD97]

RCRA Expanded Public Participation

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is issuing new regulations

under the Resource Conservation and

Recovery Act (RCRA). The new

regulations will improve the process for

permitting facilities that store, treat, or

dispose of hazardous wastes by

providing earlier opportunities for

public involvement in the process and

expanding public access to information

throughout the permitting process and

the operational lives of facilities.

EFFECTIVE DATE: June 11, 1996.

ADDRESSES: Supporting materials are

available for viewing in the RCRA

Information Center (RIC) located at 1235

Jefferson Davis Highway, Arlington VA.

The Docket Identification Number is F–

95–PPCF–FFFFF (the docket number for

the proposed rule is F–94–PPCP–

FFFFF). The RIC is open from 9 a.m. to

4 p.m., Monday through Friday,

excluding federal holidays. To review

docket materials, the public must make

an appointment by calling (703) 603–

9230. The public may copy a maximum

of 100 pages from any regulatory docket

at no charge. Additional copies cost

$.15/page. The index and some

supporting materials are available

electronically. See the SUPPLEMENTARY

INFORMATION section for information on

accessing them.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at 1–800–424–9346 or TDD 1–

800–553–7672 (hearing impaired). In

the Washington metropolitan area, call

703–412–9810 or TDD 703–412–3323.

For more detailed information on

specific aspects of this rulemaking,

contact Patricia Buzzell, Office of Solid

Waste (5303W), U.S. Environmental

Protection Agency, 401 M Street, SW.,

Washington, DC 20460, (703) 308–8632,

email address

buzzell.tricia@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

Internet Access

An abstract and fact sheet on this rule

are available on the Internet. Follow

these instructions to access the

information electronically:

Gopher: gopher.epa.gov

WWW: http://www.epa.gov
63418 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

Dial-up: (919) 558–0335.

From the main EPA Gopher menu,

select: EPA Offices and Regions/Office

of Solid Waste and Emergency Response

(OSWER)/Office of Solid Waste (RCRA)/

Hazardous Waste/Permits and

Permitting.

FTP: ftp.epa.gov

Login: anonymous

Password: Your Internet address

Files are located in /pub/gopher/

OSWRCRA

Preamble Outline

I. Statutory Authority

II. Background

A. Overview of the RCRA Permitting

Program

B. Shortcomings of the Current Program

C. How Today’s Rule will Improve the

Program

D. The Rule: From Proposal to Final

III. Applicability of Today’s Rule

IV. Review of Public Comments, Responses,

and Changes from the Proposed Rule

A. Equitable Public Participation and

Environmental Justice

B. Pre-Application Meeting and Notice

C. Notice at Application Submittal

D. Information Repository

E. Trial Burn Notices

V. State Authority

A. Applicability of Today’s Rule in

Authorized States

B. Schedules and Requirements for

Authorization

VI. Permits Improvement Team

VII. Regulatory Assessment Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act

E. Enhancing the Intergovernmental

Partnership

I. Statutory Authority

EPA is issuing these regulations under

the authority of sections 2002, 3004,

3005 and 7004(b) of the Solid Waste

Disposal Act, as amended by the

Resource Conservation and Recovery

Act (RCRA), as amended by the

Hazardous and Solid Waste

Amendments of 1984 (HSWA).

II. Background

A. Overview of the RCRA Permitting

Program

In RCRA, Congress gave EPA the

authority to write regulations, or

‘‘rules,’’ to govern, among other things,

the permitting of hazardous waste

management facilities. EPA is issuing

today’s regulations to enhance public

participation in the hazardous waste

facility permitting process.

Under RCRA, EPA is responsible for

regulating the ‘‘cradle to grave’’

management of hazardous wastes.

Hazardous wastes come in many shapes

and forms. They may be liquids, solids,

or sludges. They may be the by-products

of manufacturing processes, or simply

commercial products—such as

household cleaning fluids or battery

acid—that have been discarded. EPA

determines if wastes are hazardous by

judging, among other things, the

characteristics of the wastes and their

potential to cause harm to human health

and the environment when not properly

managed. RCRA regulations identify

hazardous wastes based on their

characteristics and also provide a list of

specific hazardous wastes (refer to 40

CFR 261 for more information). To

manage hazardous waste in an

environmentally sound manner,

companies often need to store it, treat it

(for instance, by burning it or mixing it

with stabilizing chemicals), and/or

dispose of it into specially built

landfills. In most cases, a business that

stores, treats, or disposes of hazardous

waste, needs a permit under RCRA.

Section 3004 of RCRA requires

owners and operators of facilities that

treat, store, or dispose of hazardous

wastes to comply with standards that

are ‘‘necessary to protect human health

and the environment.’’ EPA or EPAauthorized States implement these

standards by issuing RCRA permits to

facilities that treat, store, or dispose of

hazardous wastes. In some

circumstances, existing facilities may

continue to operate without a full RCRA

permit under the ‘‘interim status’’

provision of RCRA § 3005(e). In RCRA,

Congress gave EPA broad authority to

provide for public participation in the

RCRA permitting process. Section

7004(b) of RCRA requires EPA to

provide for, encourage, and assist public

participation in the development,

revision, implementation, and

enforcement of any regulation,

guideline, information, or program

under the Act.

Under RCRA section 3006, States may

seek EPA authorization to administer

and enforce the RCRA program in lieu

of EPA. Once a State adopts today’s rule

and receives EPA authorization for the

rule, the State will become the primary

implementor of the rule (see Section V.

below for more information). In today’s

preamble, we refer to the primary

implementing agency for this rule as

‘‘the permitting agency’’ or ‘‘the

agency.’’ ‘‘The Director’’ refers to the

head of the primary implementing

agency. We refer to EPA as ‘‘EPA’’ or

‘‘the Agency.’’

B. Shortcomings of the Current Program

Many stakeholders have expressed the

concern that the current RCRA

permitting process does not involve the

public at an early stage in the process,

does not provide adequate information,

and does not provide an equitable

opportunity to participate. EPA is

responding to these concerns in today’s

rule. In fact, EPA has emphasized the

need for more public involvement in all

its activities. The Agency’s Hazardous

Waste Minimization and Combustion

Strategy calls for the development of

mechanisms to ensure that local

communities are fully informed about

the RCRA decision-making process and

have an opportunity to participate in

that process. Recommendations from

the National Performance Review, the

RCRA Implementation Study, and the

Permits Improvement Team have all

emphasized the need for expanded

public participation in permitting. A

number of sources outside the Agency

(e.g., environmental groups, and

business trade associations) have also

supported enhanced public

participation.

C. How Today’s Rule Will Improve the

Program

Today’s final rule will require a

prospective applicant to hold an

informal public meeting before

submitting an application for a RCRA

permit. Also, the regulations will

require the applicant to advertise the

meeting in the newspaper, through a

broadcast announcement (e.g., by radio

or television), and on a sign posted at or

near the property. This meeting will

provide a chance for the community to

interact with and provide input to a

facility owner or operator before the

owner or operator submits a permit

application. The rule also directs the

permitting agency to mail a notice to

interested people when the facility

submits its application. The notice will

tell members of the public where they

can examine the application at the same

time that the agency reviews it.

In some cases, RCRA permits can be

the subject of intense debate. When

permits raise a lot of public interest, the

public’s demand for information

increases. Today’s rule will give the

permitting agency the authority to

require a facility owner or operator to

set up an information repository at any

time during the permitting process or

the permit life. We anticipate that

agencies will use this authority only in

those permitting cases that raise a lot of

public interest, or in other cases where

the public needs more access to

information. The repository will hold all

information and documents that the

permitting agency decides are necessary

to fulfill the purposes for which the

repository was established. Finally,

today’s rule will require combustion

facilities (i.e., incinerators and other
Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63419

1The owner or operator of a combustion unit

must conduct a trial burn as part of the permitting

process for a combustion unit. The trial burn is a

demonstration period held by the owner or operator

of a combustion unit to test the unit’s ability to

meet the regulatory performance standards for

treatment of hazardous wastes. The permitting

agency uses the results of the trial burn to establish

operating conditions in the RCRA permit.

facilities that burn hazardous wastes) to

notify the public before they hold a trial

burn.1

EPA anticipates that these regulations

will provide an opportunity for the

public to participate earlier in the

permitting process. In addition, the rule

will give the public increased access to

facility and permitting information.

Finally, we hope that the rule will help

people become involved in the

permitting process and increase

understanding of hazardous waste

management facilities.

D. The Rule: From Proposal to Final

EPA proposed the RCRA Expanded

Public Participation and Revisions to

Combustion Permitting Procedures rule

on June 2, 1994 (59 FR 28680–28711).

The proposed rule contained changes

and additions to the RCRA public

participation regulations (40 CFR 124)

and RCRA Subtitle C permitting

regulations (40 CFR 270).

Today, EPA is finalizing the public

participation portion of the proposal

(with a number of changes in response

to comments received by the Agency

during the comment period for the

proposed rule—see Section IV below),

which includes changes to both Parts

124 and 270. The Agency is not

finalizing the proposed revisions to

combustion permitting procedures at

this time.

EPA decided to separate the two

portions for a number of reasons. First,

the public comments on the proposed

rule were more favorable towards the

public participation changes. On the

other hand, the commenters were less

satisfied with the proposed combustion

permitting changes, particularly those

changes regarding the trial burn. The

Agency is currently considering and

addressing the commenters’ concerns on

the proposed combustion permitting

changes. In the meantime, EPA sees no

reason to delay the important changes to

the public participation provisions.

Moreover, EPA is committed to

issuing comprehensive emissions

standards for combustion facilities

under RCRA and the Clean Air Act. The

Agency anticipates issuing a proposed

rule on these standards in the fall of

1995. Due to potential overlap between

the procedures in the emissions

standards proposed rule and the

combustion permitting procedures in

the June 2, 1994 proposed rule, EPA has

decided to take more time to consider

the permitting provisions in the June 2

proposal. We intend to find the best

possible solution to coordinate these

two rulemakings.

Finally, EPA realized that the

proposed rule may have caused some

confusion. A few commenters pointed

to the different character of the public

participation changes and the

combustion permitting changes. The

commenters expressed concern over

combining these two dissimilar portions

in the same rule. Moreover, a number of

commenters seemed to be confused over

the applicability of the rule. In

particular, since the combustion

permitting provisions would apply only

to combustion facilities, and the

proposed rule was an outgrowth of the

Combustion Strategy, a number of

commenters seemed confused over the

applicability of the public participation

procedures to all RCRA TSDFs.

III. Applicability of Today’s Rule

Today’s rule promulgates changes and

additions to Parts 124 and 270 in the

Code of Federal Regulations (CFR). The

Part 124 changes, which include new

and earlier public involvement steps

and procedures, apply to every facility

that has or is seeking a RCRA subtitle C

permit to treat, store, or dispose of

hazardous waste, unless exempted

under a specific section. The changes to

Part 270, in §§ 270.2, 270.14, and

270.30, also apply to every facility. The

changes to §§ 270.62 and 270.66,

however, apply only to combustion

facilities.

The rule does not require RCRA

facilities that are already involved in the

permitting process to step back in the

process to comply with the new

requirements. Instead, the rule will

apply to a facility according to what

stage of the process the facility is in

when the rule becomes effective. For

instance, if a facility has submitted its

part B permit application before the

effective date of this rule, then the rule

does not require the facility to hold a

pre-application meeting under § 124.31.

This facility would, however, have to

comply with all requirements relating to

steps in the permitting process that it

has not yet undertaken.

IV. Review of Public Comments,

Responses, and Changes From the

Proposed Rule

The following (IV. A through E) is a

section-by-section summary of the most

significant comments on the proposed

rule, EPA’s responses to those

comments, and an explanation of any

changes from the proposed rule to the

final. All of the public comments and

EPA’s comprehensive response to

comments document on this rulemaking

are available through the RCRA Docket

(see the paragraph entitled ADDRESSES,

above).

The most significant changes in the

final rule involve our decision to use

guidance, instead of rule language, to

encourage facilities to strive toward

some of the important goals in the

proposed rule. EPA recognized in the

proposal that some of the proposed

regulatory provisions were very general

and requested comment on how they

could be effectively implemented (see,

e.g., 59 FR 28702). In response,

commenters argued that several portions

of the proposed regulatory language

were vague and would spawn disputes,

controversy, and litigation. The

commenters suggested that EPA relocate

some of the proposed regulatory text to

the preamble as guidance.

EPA found these comments

persuasive in certain instances. The

development of today’s rule has, from

the start, involved a balance between

promoting broader, more equitable

public participation while maintaining

the flexibility for individual permit

writers, facilities, and communities to

adopt the most appropriate, site-specific

approach consistent with the principles

of fairness and openness. Some of the

principles underlying the proposed and

final rules are inherently difficult to

prescribe through regulation. For

example, it is possible to require an

applicant to hold a meeting; it is much

more difficult to require through

regulation that the meeting be

conducted in an equitable fashion, since

the steps required to accomplish this

objective will necessarily vary from

situation to situation. Although the final

rule retains most of the proposed

regulatory changes, EPA concluded that,

in certain instances, the need to

maintain flexibility is inconsistent with

a national regulatory approach. In these

instances, as explained more fully in the

sections below, EPA has decided to

proceed by using guidance, rather than

regulations, to encourage facilities to

adopt and strive towards a number of

the goals in the proposed rule. The

Agency will provide some guidance in

today’s preamble; however, we also

anticipate releasing a guidance

document, in the near future, to help

permitting agencies and facilities to

implement today’s rule.

The Agency believes that facility

owners, State environmental agencies,

tribes, and private citizens are often in

the best position to determine what

modes of communication and
63420 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

participation will work best in their

communities. The final rule provides

the flexibility necessary to find the best

local solutions to ensure equal

opportunities for all members of the

community.

A. Equitable Public Participation and

Environmental Justice

Proposed § 124.30 and Preamble. In

section 124.30 of the proposed rule,

entitled ‘‘Equitable Public

Participation,’’ EPA proposed to require

facilities and permitting agencies to

‘‘make all reasonable efforts’’ to ensure

equal opportunity for the public to

participate in the permitting process.

The proposed rule language defined

‘‘reasonable efforts’’ as including the use

of multilingual fact sheets and

interpreters at meetings and hearings,

when the ‘‘affected community contains

a significant non-English speaking

population.’’

In the preamble to the proposed rule

(see 59 FR 28686), EPA solicited

comments on several key environmental

justice issues for the RCRA permitting

program: (1) The siting of hazardous

waste facilities; (2) the manner in which

EPA should respond when confronted

with a challenge to a RCRA permit

based on environmental justice issues;

(3) environmental justice concerns in

corrective action cleanups; and (4) how

EPA programs can take account of

‘‘cumulative risk’’ and ‘‘cumulative

effects’’ associated with the siting of a

hazardous waste management facility.

The Agency noted that, while it did not

expect to address these issues in this

rulemaking, public input on these topics

would be helpful.

Synopsis of Major Comments on

§ 124.30 and Preamble. The major

comments on this section of the

proposal involved definitions.

Commenters asked the Agency to define

many of the terms in § 124.30, including

‘‘all reasonable efforts,’’ ‘‘significant,’’

‘‘non-English speaking’’ and ‘‘affected

community.’’ The commenters were

concerned about the disputes,

controversy, and litigation that could

arise from these undefined terms. Other

commenters supported the concept of

equitable public participation,

particularly as an approach to

addressing any environmental justice

concerns that might be present.

The Agency received a number of

comments supporting expanded public

participation as an effective approach to

addressing environmental justice issues.

Commenters stated that additional

opportunities for public involvement

and access to information will increase

the probability that all communities will

have input into the permitting process,

and should strengthen involvement of

those who have felt disenfranchised

from the process. Some commenters

urged EPA to avoid a one-size-fits-all

approach and allow flexibility for State,

local, and facility leadership to make

suitable determinations about how to

address environmental justice issues.

EPA’s Response to Commenters. EPA

is committed to the principles of

equitable public participation and equal

treatment of all people under our

environmental statutes and regulations.

The regulatory changes we are making

today will enhance the RCRA public

participation process for all citizens. We

urge all permitting agencies, permit

holders, and applicants, to make all

reasonable efforts to provide equal

access to information and participation

in the RCRA permitting process.

While we continue to promote

equitable public participation, we have

decided to address the objectives of

§ 124.30 in guidance rather than through

regulatory language. In response to the

concerns expressed by many

commenters, we are not including

§ 124.30 in the final rule. The Agency

agrees with the commenters who

expressed concern that the language in

the proposal was ambiguous, making

compliance with the requirements

difficult to evaluate and enforce, and

could engender disputes and litigation

without advancing the objectives of

today’s rulemaking.

As we noted earlier, EPA continues to

support the principles embodied in

§ 124.30 of the proposed rule. We

encourage permitting agencies and

facilities to follow the spirit of that

section and use all reasonable means to

ensure that all segments of the

population have an equal opportunity to

participate in the permitting process

and have equal access to information in

the process. These means may include,

but are not limited to, multilingual

notices and fact sheets, as well as

translators, in areas where the affected

community contains significant

numbers of people who do not speak

English as a first language.

In lieu of a regulation, the Agency

will take additional steps to encourage

equitable public participation in RCRA

permitting. In the near future, EPA will

issue further guidance to assist facilities,

permitting agencies, and communities

in implementing the expanded public

participation requirements in today’s

rule. In this guidance document, EPA

plans to discuss additional options for

increasing public participation by going

beyond the regulatory requirements.

The guidance document will address, in

more detail, the approaches to equitable

public participation that we are

emphasizing in this preamble.

EPA believes that this rule presents

significant opportunities to be

responsive to environmental justice

concerns in the context of public

involvement. Prior to the promulgation

of today’s rule, the permitting process

did not formally involve the public until

the permitting agency issued a draft

permit or an intent to deny a permit. In

many cases, communities around RCRA

facilities felt that the draft permit stage

was too late to enter the process, that

the facility and the permitting agency

had already made all the major

decisions by that point, and any

comments the public offered would

have no real effect. Insufficient

opportunity for communities to become

involved in environmental decisionmaking is a contributing factor to

environmental justice concerns. The

provisions in today’s rule will address

many of these concerns by expanding

public participation and access to

permitting information.

EPA continues to see public

participation as an important activity

that empowers communities to become

actively involved in local waste

management activities. The Agency

believes that this rulemaking is an

important step in empowering all

communities, including communities of

color and low-income communities.

EPA agrees with the commenters who

stated that the expanded public

participation requirements in today’s

rule will be useful tools for addressing

environmental justice concerns. Today’s

rule provides all communities with a

greater voice in decision making and a

stronger opportunity to influence permit

decisions early in the process. EPA also

agrees with the commenters who stated

that environmental justice issues should

be addressed at a local level and on a

site-specific basis. Local agencies and

leaders have an important role to play

in addressing environmental justice

concerns. States and EPA Regional

offices are the principal implementors

of the RCRA permitting program, and

have been directed to develop

mechanisms that respond effectively to

environmental justice concerns during

permitting activities (RCRA

Implementation Plan (RIP), 1995). In the

RIP, EPA asked RCRA implementing

agencies to continue their commitment

to seek opportunities to address patterns

of disproportionately high and adverse

environmental effects and human health

impacts on low-income communities

and communities of color that may

result from hazardous waste

management activities. The States and

Regions have been involved in
Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63421

environmental justice pilot projects,

which have included, among other

activities, increasing public

involvement by tailoring outreach

activities to affected communities.

EPA and its Office of Solid Waste and

Emergency Response (OSWER) also

remain committed to addressing

environmental justice concerns beyond

those related to public participation.

The preamble to the proposed rule (see

59 FR 28686) discussed OSWER’s

environmental justice efforts. Elliott P.

Laws, OSWER Assistant Administrator,

formed the OSWER Environmental

Justice Task Force (‘‘EJ Task Force’’) to

begin addressing many of these issues.

EPA released the ‘‘OSWER

Environmental Justice Task Force Draft

Final Report’’ (OSWER 9200.3–16 Draft)

and its separate executive summary

(OSWER 9200.3–16–1 Draft) on April

25, 1994. Since that time, the EPA

Regional offices and the OSWER

program offices have been

implementing the recommendations

outlined in the EJ Task Force’s draft

final report. The report was distributed

to the National Environmental Justice

Advisory Council (NEJAC) for comment.

In June 1995, after careful consideration

of all comments, EPA released the

‘‘OSWER Environmental Justice Action

Agenda.’’ The Action Agenda provides

a concise summary of OSWER’s current

strategy and describes the

implementation process for ensuring

that major issues, identified by the

NEJAC and others, continue to be

recognized and addressed. A full report

on implementation progress and

accomplishments, entitled ‘‘Waste

Programs Environmental Justice

Accomplishments Report,’’ was released

concurrently with the Action Agenda.

All of these documents are ‘‘living

documents’’ and, as such, are a part of

the process of continuously addressing

environmental justice concerns. This

process represents OSWER’s

commitment to adhere to the principles

of Executive Order 12898, in which the

President directed federal agencies to

identify and address the environmental

concerns and issues of minority and

low-income communities. Furthermore,

in an effort to make environmental

justice an integral part of the way we do

business, the Agency issued a policy

directive, in September 1994 (OSWER

9200.3–17), that requires all future

OSWER policy and guidance documents

to consider environmental justice

issues.

During the public comment period on

the proposed rule, EPA received a large

number of comments on preliminary

recommendations that the EJ Task Force

had developed regarding several other

(i.e., beyond today’s public involvement

rule) key environmental justice issues

facing the RCRA permitting program.

The comments ranged from general

observations to more detailed

suggestions, particularly with regard to

siting criteria, cumulative risk

assessments, and the need to base

decisions on sound science.

We are disseminating the comments

that deal with these environmental

justice issues in the following manner:

(1) We are forwarding the comments on

RCRA facility siting to the Office of

Solid Waste’s (OSW) RCRA Siting

Workgroup and to the NEJAC’s Waste

and Facility Siting Subcommittee’s

Siting Workgroup; (2) we are forwarding

the comments on issues affecting RCRA

corrective action to the RCRA Subpart S

Workgroup, which is developing a rule

to establish corrective action

requirements for releases of hazardous

wastes or hazardous waste constituents

to any environmental medium,

including ground water, from any solid

waste management unit, including

regulated units; (3) we are sharing the

comments on cumulative risk, multiple

exposure, and synergistic effects with

the EPA Science Policy Council, the

group actively working to address these

issues; and (4) the comments on how

EPA should respond to RCRA permit

challenges based on environmental

justice issues are being addressed by

OSWER with assistance from the Office

of General Counsel, Office of Civil

Rights, and any other appropriate party.

EPA also received several comments

that did not approve of the Agency’s

decision to discuss and solicit

comments on the more technical

environmental justice issues in the

context of a RCRA public involvement

rule. Many commenters argued that

these issues are broad, far-reaching, and

impact a much larger constituency than

the intended audience for the public

participation rulemaking.

EPA acknowledges the breadth of

these issues. The preamble to the

proposed rule has not been the only

forum for discussing these issues. As we

discussed above, EPA has received and

considered comments from additional

stakeholders, including States, the

NEJAC, environmental groups,

environmental justice groups, and

regulated industries in developing the

‘‘OSWER Environmental Justice Action

Agenda.’’ Furthermore, since the Action

Agenda is a living document, OSWER

will continue to seek external

comments, suggestions and experiences

as we strive to ensure environmental

justice in all our programs.

B. Pre-Application Meeting and Notice

1. Applicability (Proposed

§ 124.31(d)). EPA proposed to exempt

permit modifications, permit renewals,

and permit applications submitted for

the sole purpose of conducting postclosure activities from the requirements

in § 124.31.

Synopsis of Major Comments on

§ 124.31(d). A number of commenters

stated that the rule should require

facilities seeking permit renewals to

hold a pre-application meeting. Other

commenters recommended that the preapplication meeting requirements apply

to facilities making significant changes

during the renewal process, or that the

permitting agency should have

discretion in applying the requirement

to renewals. Opposing these

commenters, several commenters

supported the requirement as proposed

and urged EPA to keep the exemption

for renewals since many renewal

applications simply continue ‘‘business

as usual.’’ In these cases, said the

commenters, the community will have

adequate opportunity to participate in

the renewal process; for instance, at the

draft permit stage.

EPA’s Response to Commenters. EPA

has decided to expand § 124.31 to cover

facilities that make a significant change

at permit renewal. For the purposes of

§ 124.31, a ‘‘significant’’ change in

facility operations is a change that is

equivalent to a class 3 modification in

§ 270.42, e.g., operating conditions

change significantly.

The Agency believes that this

approach is a common sense

compromise that will ensure adequate

public participation in the necessary

cases. At the same time, the regulated

community will have the assurance that

facilities undergoing minor changes will

be spared unnecessary administrative

burden.

EPA will continue the exemption for

facilities that submit permits for the

purpose of conducting post-closure

activities. As we stated in the proposed

rule, the goals of the pre-application

meeting (e.g., establishing an early

dialogue between the facility and the

public) do not apply at most postclosure facilities. EPA’s experience is

that the public has usually been

concerned with permit decisions

relating to active hazardous waste

management operations, as opposed to

decisions relating to closed facilities. In

addition, most post-closure activities are

mandatory (e.g., maintenance of a

closed unit) and involve fewer

discretionary judgments than are

involved in issuing an operating permit.

The existing public participation
63422 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

requirements in Part 124 (e.g., the notice

and comment period at the draft permit

stage) will continue to apply. Since

closure and post-closure plans are

included in the permit application, and

become part of the permit, they will be

available for public review and

comment along with the application and

the draft permit. Any changes to these

plans after permit issuance will follow

the modification procedures in § 270.42,

which also have public notice

requirements. We think that the existing

process provides sufficient public

involvement in post-closure permitting.

While we are retaining the exemption

for post-closure permit applications in

the final rule, we have tried to clarify

our intent in the applicability

requirements. Specifically, we have

clarified that the exemption applies to

facilities seeking permits solely to

conduct post-closure activities, as well

as to facilities seeking permits to

conduct post-closure activities along

with corrective action. Our intent in the

proposal, which remains our intent in

the final rule, was to distinguish postclosure facilities from facilities with

operating units. However, someone

could have read the proposed rule as

not providing an exemption for postclosure facilities with remaining

corrective action obligations (which

post-closure facilities often have).

Because the rationale for exempting

post-closure activities applies whether

or not the facility is also performing

corrective action, EPA has added

language to §§ 124.31(a) and 124.33(a) to

clarify our intent.

2. Meeting Requirements (Proposed

§ 124.31(a)–(b)). In these two

paragraphs, EPA proposed to require the

permit applicant to hold at least one

meeting with the public before

submitting the part B permit

application. The proposed rule listed

topics that the applicant must cover and

required the applicant to submit a

record of the meeting and a list of

attendees.

Synopsis of the Major Comments on

§ 124.31(a)–(b). The commenters

generally expressed support for the preapplication meeting. Few commenters

opposed EPA’s proposal to have a

meeting early in the process, though

many suggested changes to the proposed

rule itself.

Several commenters thought that the

pre-application stage is too early for a

public meeting. Some commenters

stated that neither the applicant nor the

agency could provide the public with

accurate and complete information

about the facility at such an early stage.

Moreover, they noted, the application

could change dramatically between the

pre-application meeting and application

submittal.

Some commenters asked EPA to

clarify the record-keeping requirements

in the final rule. A number of

commenters opposed the requirement,

with some commenters opposing the

term ‘‘record’’ because it would qualify

the meeting summary as an official

document and make it subject to

litigation. Other commenters opposed

the rule’s requirement that the applicant

submit the record as a component of the

part B permit application.

Concerning whether the permitting

agency should conduct, or even attend,

the meeting, the comments varied. Some

commenters supported agency

attendance because the agency would

provide the meeting with credibility and

a source of accurate information. Other

commenters expressed concern that

agency attendance would interfere with

the ‘‘open and informal dialogue’’

between the facility owner and the

public.

Finally, many commenters supported

alternatives to the pre-application

meeting. Numerous commenters backed

the idea of combining pre-application

meetings with the siting meetings that

many States already require. A few

commenters noted that EPA should

allow such a combination only where

the State meeting fulfills all the

requirements of the pre-application

meeting. Another group of commenters

supported other options, such as using

an Intent-to-Submit form in place of the

meeting or holding the meeting after

application submittal.

EPA’s Response to Commenters.

Section 124.31(b) of the final rule

requires the facility to hold a meeting

prior to submitting the part B permit

application; however, the rule language

no longer lists specific topics that the

facility must cover in the meeting,

requiring instead that the facility solicit

questions from the community and

inform the community about proposed

hazardous waste management activities.

After the meeting, the facility must

prepare a ‘‘summary’’ of the meeting

and submit it as a component of the part

B permit application. The agency

should use its judgement in deciding

whether to attend the meeting.

EPA disagrees with the commenters

who stated that the pre-application stage

is too early to hold a meeting with the

public. The most important goal we

hope to achieve from the preapplication meeting requirement is the

opening of a dialogue between the

permit applicant and the community.

We believe that the applicant should

open this dialogue at the beginning of

the process. The meeting will give the

public direct input to facility owners or

operators; at the same time, facility

owners or operators can gain an

understanding of public expectations

and attempt to address public concerns

in their permit applications (see the

discussion two paragraphs below). We

hope that this requirement will help

address the public concern that public

involvement occurs too late in the

RCRA permitting process. Although the

Agency agrees with the commenters that

the early timing of the meeting may

prevent the agency and the applicant

from having complete information, we

believe that the benefits of early public

involvement and early access to

information outweigh the drawbacks of

incomplete information.

In any case, EPA does not intend for

the pre-application meeting to be a

forum for examining technical aspects

of the permit application in extensive

detail; such technical examination is

more suited to the draft permit stage.

Instead, the pre-application meeting

should provide an open, flexible, and

informal occasion for the applicant and

the public to discuss various aspects of

a hazardous waste management

facility’s operations. We anticipate that

the applicant and the public will share

ideas, educate each other, and start

building the framework for a solid

working relationship. Of course, the

public retains the opportunity to submit

comments throughout the process.

EPA has also revised the preapplication meeting requirements in the

final rule to make them more

straightforward and more flexible than

the requirements in the proposed rule.

The Agency is trying to provide

flexibility in the way that permit

applicants hold pre-application

meetings. To this end, we have removed

the list of required discussion topics,

proposed in § 124.31(a). In addition, we

have removed from the rule provisions

that the commenters considered vague,

including the requirement that the

applicant describe the facility ‘‘in

sufficient detail to allow the community

to understand the nature of the

operations to be conducted at the

facility and the implications for human

health and the environment.’’ We agree

with commenters that such a

requirement would be difficult to

implement and enforce.

While we have removed such

requirements from the final rule, we

expect permit applicants to follow the

spirit of the proposed requirements. For

instance, we encourage permit

applicants to address, at the level of

detail that is practical at the time of the

meeting, the topics we identified in

§ 124.31(a) of the proposed rule: the
Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63423

type of facility, the location, the general

processes involved, the types of wastes

generated and managed, and

implementation of waste minimization

and pollution control measures. The

discussions may also include such

topics as the transportation routes to be

used by waste transporters and planned

procedures and equipment for

preventing or responding to accidents or

releases. These are examples of the

types of issues that might be of

particular concern to a community and

about which the community might be

able to provide useful suggestions to the

applicant. The applicant might then be

able to incorporate that information into

the proposed facility design or

operations, either as part of the initial

application, if time allows, or at

subsequent stages in the process (e.g., in

submitting revisions to its application,

or in responding to a Notice of

Deficiency issued by the permitting

agency). By learning about and

addressing public concerns up front, the

applicant may be able to prevent

misunderstanding from escalating into

community opposition.

Moreover, the applicant should make

a good faith effort to provide the public

with sufficient information about the

proposed facility operations. While we

do not expect applicants to go into

extensive detail at the pre-application

stage, they should provide the public

with enough information to understand

the facility operations and the potential

impacts on human health and the

environment. In addition, as we

emphasized in the preamble to the

proposed rule (59 FR 28691), the permit

applicant should encourage full and

equitable public participation by

selecting a meeting date, time, and place

that are convenient to the public.

The final rule requires the applicant

to submit a ‘‘summary’’ of the preapplication meeting as a component of

the part B permit application. EPA

shares the concern of several

commenters that ‘‘the record’’ could be

subject to litigation, for instance, on the

basis of inaccuracy. EPA’s intent in this

rule is to foster communication and

mutual understanding, not to create

divisiveness and additional points of

dispute in the permitting process. Thus,

we have deleted the word ‘‘record’’ and

replaced it with ‘‘summary’’ in the final

rule. We do not intend for the meeting

summary to be a verbatim account of the

meeting; the Agency is aware of how

difficult it is to keep a word-for-word

record of a public meeting. Applicants

should make a good faith effort to

provide an accurate summary of the

meeting and a list of all attendees who

wish to identify themselves (see

§ 124.31(b) of the final rule).

In accordance with our intent in the

proposed rule, we are requiring the

permit applicant, in the final rule, to

submit the summary as a component of

the part B permit application. Since the

part B application is available for review

by the public, requiring the meeting

summary to be part of the application

assures that people who are unable to

attend the meeting will have an

opportunity to learn what transpired at

the meeting. In the proposed rule,

however, the Agency neglected to add

the summary to the list of part B

requirements in § 270.14(b). We have

added this reference in the final rule.

The pre-application meeting summary

will be useful to the permitting agency.

The summary will alert the agency to

important community concerns, areas of

potential conflict, and other issues that

may be relevant to agency permitting

decisions. In addition, the meeting

attendee list will help generate a

mailing list of interested citizens. (The

permitting agency is responsible for

developing a representative mailing list

for public notices under § 124.10). The

list of attendees from the preapplication meeting will assist the

permitting agency in identifying people

or organizations to include on the

mailing list so that it represents

everyone who demonstrates an interest

in the facility and the permit process. It

has been EPA’s experience that mailing

lists often are not fully developed until

the permitting agency issues the draft

permit for public comment. Since EPA

seeks to increase public participation

earlier in the process, generation of a

mailing list should precede such

activities. A mailing list developed

pursuant to § 124.10 could also be

available to enhance public

participation in other Agency or

community-based initiatives.

The actual timing of the meeting is

flexible in the final rule. The Agency

believes that flexibility is necessary

because the optimal timing for the

meeting will vary depending on a

number of factors, including the nature

of the facility and the public’s

familiarity with the proposed project

and its owner/operator.

In today’s rule, we require the facility

to conduct the pre-application meeting.

We believe that the applicant should

conduct the meeting in an effort to

establish a dialogue with the

community. We encourage permitting

agencies to attend pre-application

meetings, in appropriate circumstances,

but the agency should not run the preapplication meeting. Although agency

attendance may, at times, be useful in

gaining a better understanding of public

perceptions and issues for a particular

facility, it may undercut some of the

main purposes of the meeting, such as

opening a dialogue between the facility

and the community, and clarifying for

the public the role of the applicant in

the permitting process.

In the proposed rule, EPA solicited

comments (see 59 FR 28702) on the

option of allowing a State siting meeting

to substitute for the pre-application

meeting. EPA is not including this

option in the final rule, because doing

so would defeat some of the purposes of

the pre-application meeting (e.g.,

establishing an open dialogue on a range

of RCRA permitting issues that may

differ from siting issues). Some

commenters suggested that siting

meetings and pre-application meetings

be combined. There is nothing in

today’s rule to preclude States and

permit applicants from working together

to combine these meetings. EPA

encourages them to do so, provided that

the combined meetings fulfill the preapplication meeting requirements in

today’s rule.

3. Notice of the Pre-Application

Meeting (§ 124.31(c)). Paragraph (c) of

proposed § 124.31 required the facility

to give notice of the pre-application

meeting at least 30 days prior to the

meeting ‘‘in a manner that is likely to

reach all affected members of the

community.’’ EPA proposed to require

the facility to give the notice in three

ways: as a display advertisement in a

newspaper of general circulation; as a

clearly-marked sign on the facility

property; and as a radio broadcast. Each

of these notices had to include the date,

time and location of the meeting, a brief

description of the purpose, a brief

description of the facility, and a

statement asking people who need

special access to notify the applicant in

advance.

Synopsis of the Major Comments on

§ 124.31(c). Most commenters expressed

general support for the expanded notice

requirements, but questioned specific

aspects of the proposal. The

commenters also asked for flexibility in

choosing the types of notice that would

best reach different communities.

The newspaper advertisement

requirement brought up the most

controversy. Some commenters

challenged as vague the provision that

the facility publish the notice in the

local paper and also in papers of

adjacent counties.

A number of commenters pointed out

problems with requiring a large sign at

the facility. Some commenters

mentioned that nobody would pass near

enough to some rural facilities to see the
63424 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

sign. Other commenters reminded EPA

that some communities have ordinances

that ban large signs. The commenters

urged that the rule be more flexible and

allow applicants to place signs at nearby

intersections or on town bulletin boards.

Other commenters recommended that

the agency approve the sign or grant

waivers where communities ban signs.

The commenters did not express

many objections to the radio

requirement, but asked for overall

flexibility in the notice requirements.

EPA’s Response to Commenters. In

response to these comments, EPA has

enhanced the flexibility of the final rule.

Instead of requiring the applicant to

provide three specific types of public

notice, as in the proposed rule, the final

rule specifies only one type of notice

(i.e., the display advertisement). The

other notices must fall within broader

categories—one must be a broadcast

announcement and one must be a sign—

but are otherwise flexible.

We have decided to retain the display

ad requirement because of the expanded

public notice it will provide; at the same

time, we have increased the flexibility

of the requirement by moving some of

the proposed rule’s more general

provisions out of rule language and into

guidance, both in today’s preamble (see

below) and in the future guidance

document for implementing this rule.

Section 124.31(d) requires the

applicant to keep documentation of the

public notice and provide the

documentation to the permitting agency

upon request. The reason for this

requirement is to provide proof of the

public notice that can be verified by the

permitting agency. We do not want this

requirement to be burdensome for the

facility. Instead, we encourage the

facility to keep a simple file for the

notice requirements. Items for inclusion

in the file may include: copies of the

newspaper announcement, a receipt or

affidavit of the radio announcement, a

photograph of the sign, or a receipt of

purchase for the sign.

The Agency expects that applicants

and permit holders will make a good

faith effort to announce the preapplication meeting to as many

members of the affected community as

possible.

• The newspaper advertisement. The

applicant must print a display

advertisement in a newspaper of general

circulation in the community. The

display ad should be located at a spot

in the paper calculated to give effective

notice to the general public. The ad

should be large enough to be seen easily

by the reader. In addition to the display

ad, we also encourage facilities to place

advertisements in free newspapers and

community bulletins.

In some cases, potential interest in the

facility may extend beyond the host

community. Under these circumstances,

we encourage the applicant either to

publish the display ad so that it reaches

neighboring communities or to place

additional ads in the newspapers of

those communities.

• The visible and accessible sign. The

final rule requires the applicant to post

the notice on a clearly-marked sign at or

near the facility. If the applicant places

the sign on the facility property, then

the sign must be large enough to be

readable from the nearest point where

the public would pass, on foot or by

vehicle, by the site. The Agency

anticipates that the signs will be similar

in size to zoning notice signs required

by local zoning boards. If a sign on the

facility grounds is not practical or

useful—for instance, if the facility is in

a remote area—then the applicant

should choose a suitable alternative,

such as placing the sign at a nearby

point of significant vehicular or

pedestrian traffic. In the case that local

zoning restrictions prohibit the use of

such a sign in the immediate vicinity of

the facility, the facility should pursue

other available options, such as placing

notices on a community bulletin board

or a sign at the town hall or community

center. EPA intends the requirement

that the sign be posted ‘‘at or near’’ the

facility to be interpreted flexibly, in

view of local circumstances and our

intent to inform the public about the

meeting. In addition to the requirements

of § 124.31, we encourage the applicant

to place additional signs in nearby

commercial, residential, or downtown

areas.

• The broadcast media

announcement. The final rule requires

the applicant to broadcast the notice at

least once on at least one local radio or

television station. EPA expects that the

applicant will broadcast the notice at a

time and on a station that will

effectively disseminate the notice. The

applicant may employ another medium

with prior approval of the Director. We

encourage the applicant to consult the

preamble to the proposed rule (59 FR

28690) for recommendations on

choosing the best circumstances for the

broadcast announcement.

EPA will soon issue a guidance

document to assist facilities and

agencies in implementing the expanded

public participation requirements. The

guidance document will include more

detailed discussions on the approaches

to broad and equitable public notice that

we are emphasizing in today’s

preamble.

C. Notice at Application Submittal

(§ 124.32)

1. Applicability (Proposed

§ 124.32(c)). The proposed rule required

the permitting agency to send a notice

to the facility mailing list upon receipt

of a permit application. EPA proposed

that the rule apply to all new and

interim status facilities, but not to

permit modifications or applications

submitted for the sole purpose of

conducting post-closure activities.

Synopsis of Major Comments on

Proposed § 124.32(c). The commenters

generally supported this provision of

the proposed rule. A few commenters

recommended that EPA apply the

provision to modifications, post-closure

permits, and interim status facilities.

EPA’s Response to Commenters. The

final rule retains the applicability

standards of the proposed rule. We

continue to believe that the notice at

application submittal is an effective

means to let the community know that

the permitting agency has received a

permit application. The notice allows

members of the community to keep

track of new or existing facilities and to

review, concurrently with the

permitting agency, the permit

application, which will be available for

review at a location specified by the

permitting agency (either in the vicinity

of the facility or at the permitting

agency’s office). We suggest that the

permitting agency consult the public

when choosing a suitable location to

place the application materials for

public review.

The notice requirement does not

apply to permit modifications or permit

applications submitted for the sole

purpose of conducting post-closure

activities or post-closure activities and

corrective action at a facility. The

permit modification requirements in

§ 270.42 already include provisions for

providing public notice of modification

requests. We explain the exemption for

post-closure activities in section B.1.

above.

2. Responsibility and Timing

(Proposed § 124.32(a) and (b)). The

proposed rule directed the permitting

agency to give the notice ‘‘within a

reasonable period of time after the

application is received by the Director.’’

The proposed rule also listed the

information that must go in the notice.

Synopsis of Major Comments on

Proposed § 124.32(a) and (b). Many of

the commenters provided suggestions

on who should be responsible for the

notice at application submittal. The

majority of these commenters supported

EPA’s proposal, agreeing that the

Director should issue the notice. A few

commenters expressed concern over the
Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63425

timing of the notice. They suggested that

EPA rewrite the rule to require the

Director to issue the notice within 30

days of application submittal.

EPA’s Response to Commenters.

These provisions have not changed from

the proposed rule to the final rule. EPA

maintains its position that the

permitting agency should be responsible

for providing the public notice at

application submittal. Providing the

notice will demonstrate clearly that the

permitting agency’s role in the process

has begun.

We anticipate that the permitting

agencies will issue timely notices and,

thus, we have decided not to prescribe

a time frame for agency issuance of the

notice at permit application.

D. Information Repository

1. Applicability/Use/Responsibility

(Proposed §§ 124.33(a) and 270.30(m)).

EPA proposed to give the Director the

authority to require the facility to

establish and maintain an information

repository during the permitting process

(§ 124.33(a)) or during the life of a

permit (§ 270.30(m)). The purpose of the

repository, as proposed, was to make

information available to the public

during the permit issuance process and

during the life of a permit.

Synopsis of Comments on Proposed

§§ 124.33(a) and 270.30(m). A number

of the comments asked EPA for

exemptions from the repository

‘‘requirement,’’ especially for boilers

and industrial furnaces (BIFs) and

federal facilities that must fulfill similar

standards under other rules. Many

commenters asked for flexibility,

suggesting that EPA allow the Director

to decide when to require a repository.

Some commenters suggested that the

Director use this authority only in cases

where the community shows true need

or public interest when the facility is

high. Making a contrary point, a group

of commenters argued that the

repository should be mandatory for all

facilities. Another group of commenters

insisted that the permitting agency

should be responsible for the repository,

or at least split the responsibility with

the facility.

EPA’s Response to Commenters. In

the final rule, EPA has rewritten

§§ 124.33(a) and 270.30(m) to better

reflect our original intent in proposing

the information repository requirement.

Our intent was for permitting agencies

to use the information repository

requirement sparingly. We anticipate

that the Director will require such a

repository only in special cases where a

significant amount of public concern

has surfaced or where the community

has unique information needs.

Many commenters suggested

exemptions from the ‘‘information

repository requirement.’’ However, the

information repository is not a

requirement that applies to a predetermined group of facilities. Instead,

the information repository is a public

involvement tool that today’s rule

makes available to permitting agencies

for use on a case-by-case basis.

Accordingly, there is no need for

exemptions from §§ 124.33 or

270.30(m).

Some of the confusion over this

section may be the result of the language

in the proposed rule. We have reworded

§§ 124.33 and 270.30(m) in the final rule

to make clear that the Director shall

assess a variety of factors, including the

status of existing repositories and the

community’s proximity to a copy of the

administrative record, when considering

whether or not to require a repository at

any facility. So, for instance, if the

Director determines that public interest

warrants a repository at hypothetical

Facility X, but finds that a BIF

repository already existing at the facility

is responsive to the public interest, then

the Director may determine that the

facility has no need for a repository

under §§ 124.33 or 270.30(m). Or, if the

existing repository does not completely

satisfy the need that the Director

identified, then the Director may specify

additional steps that the facility must

take to make the repository meet the

public need. At Facility X, for instance,

the Director may require the facility to

make available more information on the

general permitting standards, or on the

permit application and technical

standards for the other units on site,

aside from the BIF unit. The facility

could then add this information to the

existing repository if the repository

meets the requirements of §§ 124.33 or

270.30(m).

2. Contents (Proposed § 124.33(b) and

(e)). The proposed rule language

required the repository to contain all

‘‘documents, reports, data, and other

information deemed sufficient by the

Director for public understanding,’’ as

well as information on public

involvement activities and how to get

on the facility mailing list.

Synopsis of the Major Comments on

Proposed § 124.33(b) and (e). A number

of commenters recommended specific

documents and types of documents

(e.g., the permit application, all relevant

fact sheets) that EPA should require in

the information repository provisions.

Some commenters insisted that the

content requirements in the proposed

rule were too vague. Other commenters

thought that EPA should ban certain

materials (e.g., public relations

literature) from the information

repository.

EPA’s Response to Commenters. We

have changed the repository content

requirements in the final rule. The new

provision requires the repository to hold

‘‘all documents, reports, data, and

information deemed necessary by the

Director to fulfill the purposes for which

the repository is established.’’ We have

tried to be as flexible as possible in this

section since the permitting agency

could require a facility to establish a

repository at any stage during any

permit process or for any time during

the life of the facility. Moreover, the

requirement to establish a repository

will be imposed by the Director on a

case-by-case basis; after taking into

account the site-specific factors in each

case, the Director will decide what

materials are appropriate for the

repository.

The final rule gives the Director the

authority to limit the contents of the

repository. While the rule creates no

outright bans on materials, EPA

anticipates that the Director will use his

or her discretion to ensure that

repository materials are relevant to

permitting activities and to prevent

parties from placing inappropriate

materials in the repository. We

encourage permitting agencies, in the

spirit of equitable public participation

and access to information, to consult the

public regarding what materials would

be most useful to members of the

surrounding community.

3. Location (Proposed § 124.33(c)).

The proposed rule stated that the

facility should choose the location for

the repository in a place with suitable

public access. If the Director opposed

the site, then the Director could choose

a more appropriate location. The

proposed rule also required the

repository to be open during reasonable

hours and to give the public access to

photocopy service (or an alternative

means for people to obtain copies).

Synopsis of Public Comments on

§ 124.33(c). Several commenters

expressed concern over the geographic

location of the repository. Other

commenters asked that EPA rewrite the

rule to allow for on-site repositories.

EPA’s Response to Commenters. EPA

has tried to be flexible in revising the

final rule. While we expect that the

Director will only infrequently require a

repository, we anticipate that those

situations will all be different. For this

reason, we have avoided writing narrow

prescriptions for the location of the

repository. Instead, § 124.33(d) of the

final rule retains the provision allowing

the facility to choose the location. We

encourage facilities, in the spirit of
63426 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

equitable public participation and

access to information, to involve the

public when suggesting a location for

the repository. The Director has the

discretion to choose a more suitable

location if he or she finds that the one

chosen by the facility is unsuitable

based on access, location, hours of

availability, or other relevant criteria.

The Director should exercise this

authority sparingly; we are anticipating

that, in the great majority of cases, the

facility will choose a suitable location.

EPA encourages facilities to establish

repositories off-site (i.e., within the

community where the facility is located)

whenever an off-site repository is

feasible and would be more readily

accessible to the public. Today’s rule

does not, however, preclude the use of

on-site repositories.

4. Timing and Duration (Proposed

§ 124.33(f)). The proposed rule required

the facility to maintain and update the

repository for a time period determined

by the Director. The proposal also stated

that the Director could require the

repository at any time during the

application process for a RCRA permit

or during the active life of a facility.

Synopsis of the Major Comments on

Proposed § 124.33(f). The commenters

submitted a variety of comments

concerning the timing and duration of

the repository. Some commenters

thought that permitting agencies need

flexibility in applying the repository

requirement. Others thought that EPA

should require the repository to open

and close at specific points during the

permitting process. One group of

commenters insisted that EPA include a

provision in the rule to allow for

automatic closure of the repository once

the permit is issued, denied, or

appealed.

EPA’s Response to Commenters. In

the final rule, EPA clarifies its intent

that the Director have the discretion to

apply the repository requirement at any

time during the permitting process or

the life of a facility. Given that it is

within the Director’s discretion whether

to establish a repository at all, we

believe that it would be inappropriate to

prescribe specific timing and duration

requirements that are triggered by the

creation of a repository; rather, the

Director should decide on questions of

timing and duration on a case-by-case

basis. The final rule continues the

proposed rule’s provision that the

Director determine the duration of the

repository. The final rule provides that

the Director can close the repository,

based on the same standards (found in

paragraph (a)) that the Director uses

when assessing the need for a

repository.

E. Trial Burn Notices

1. Notice of the Trial Burn for

Permitted Combustion Facilities

(Proposed §§ 270.62(b)(6) and

270.66(d)(3)). Permits for new

hazardous waste combustion facilities

must include a plan, approved by the

permitting agency as part of the permit,

that describes how the facility will

conduct the trial burn. However,

because construction of a new facility

may take a considerable period of time,

the trial burn itself might not take place

until several years after permit issuance.

The proposed rule required the

permitting agency to give public notice

of the impending trial burn for

permitted incinerators and BIFs. Under

the proposed rule, the permitting agency

would send a notice to the facility

mailing list and appropriate units of

State and local governments announcing

the scheduled commencement and

completion dates for the trial burn. The

notice would also provide the public

with contact information at the

permitting agency and the facility and a

location where members of the public

could review the approved trial burn

plan. The proposal required the

permitting agency to mail the notice

within a reasonable time period prior to

the trial burn.

Synopsis of the Major Comments on

Proposed §§ 270.62(b)(6) and

270.66(d)(3). We received both positive

and negative comments on the proposed

notice of trial burn for permitted

combustion facilities. The supporters

noted the importance of informing the

public of the anticipated time period for

conducting the burn, because a

significant amount of time may elapse

between issuing the permit and

conducting the trial burn.

Those who opposed the trial burn

notice asked what benefit would accrue

from public notice of an impending,

scheduled trial burn for a new

(permitted) facility. One commenter

asked EPA to discuss the purpose for

requiring this notice from a new facility,

considering that the schedule is set out

in the permit and the trial burn plan is

already open for public comment as part

of the draft permit. Some commenters

thought that the other permitting events

already provide sufficient opportunity

for public comment. Other commenters

opposed the requirement that the

permitting agency give the trial burn

notice, claiming that delays would

ensue when the agency could not

publish the notice on time.

EPA’s Response to Commenters. EPA

has decided to finalize the trial burn

notice provisions for permitted facilities

as proposed. The Agency agrees with

the commenters who noted the

importance of keeping the community

up to date on permitting activities at the

facility. Several years may pass between

the approval of the trial burn plan and

the actual date of the trial burn. During

the intervening time, the public may not

necessarily remain up to date on

activities at the facility. The trial burn

is a significant step in the process of a

combustor moving toward full

operation; experience has shown that

the public is often interested in knowing

when the burn will occur so that

citizens can review the trial burn

results. Thus, we remain committed to

giving notice of the impending trial

burn at permitted facilities.

The final rule requires the permitting

agency to send the notice to the facility

mailing list. While we do not specify a

time period during which the permitting

agency should send out the notice, we

anticipate that permitting agencies will

typically notify the public at least 30

days before the trial burn.

The final rule does not provide for a

comment period after the permitting

agency gives notice of the trial burn

dates. A number of commenters asked

EPA what the purpose of such a notice

would be, if not to open a comment

period. Other commenters asked the

Agency to make clear whether or not the

rule would require a comment period

during the trial burn stage. EPA decided

that a comment period during the trial

burn phase would not be necessary or

appropriate. The public has already had

the opportunity to be involved with,

and comment on, the trial burn plan

during the draft permit stage. Our intent

in providing for the notice at this stage

is to make the public aware of an

impending trial burn. The notice will

serve as an update, rather than the

opening of a comment period.

Finally, EPA has clarified in

§§ 270.62(b)(6) and 270.66(d)(3) that a

new hazardous waste combustion

facility applying for a permit may not

commence its trial burn until after the

permitting agency has issued the

required notice. It was clear from the

proposal that we intended for the

permitting agency to issue the notice

before the trial burn. However, the

proposed rule language did not

explicitly state the obvious corollary,

which was that the facility may not

commence the trial burn until after the

notice.

EPA does not believe that the notice

requirement established by today’s rule

will delay trial burns. The notice

requirement is straightforward and easy

to implement; we do not anticipate that

permitting agencies will fail to issue the

required notices in a timely fashion.
Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63427

Because the notice is purely

informational, EPA will be flexible in

interpreting the requirement that the

notice be mailed a reasonable time

before the commencement of the trial

burn. Ideally, the Agency anticipates

that permitting agencies will mail the

notice at least thirty days before the trial

burn. However, as long as the notice is

mailed sufficiently in advance of the

scheduled trial burn so that the

recipients would be expected to receive

the notice prior to the commencement

date, EPA would consider the notice

timely.

It is EPA’s intent that the trial burn

notice requirements in §§ 270.62(b)(6)

and 270.66(d)(3) apply only to initial

trial burns, and not to subsequent trial

burns that may be conducted as part of

the permit modification procedures.

EPA believes that the trial burn notices

required by today’s rule are not

necessary in these latter circumstances,

since the amount of time between

modification approval and the

subsequent trial burn is typically much

shorter than the amount of time that

may elapse between permit issuance

and the initial trial burn. Moreover, the

modification procedures in § 270.42

include provisions for involving the

public throughout the modification

submittal and approval process (e.g.,

through notices or public meetings). Of

course, if there are substantial

unforeseen delays between the approval

of the modification request and the trial

burn, EPA suggests that the permitting

agency issue a notice in accordance

with the procedures set forth in today’s

rule.

2. Notice of Planned Trial Burn Plan

Approval for Interim Status Combustion

Facilities (Proposed § 270.74(b) and

(c)(3)). Trial burns at interim status

facilities generally take place before

permit issuance so that the permitting

agency can set operating conditions in

the permit based on the results of the

trial burn. The proposed rule required

the permitting agency to give public

notice of the tentative approval of a trial

burn plan for interim status incinerators

and BIFs. The notice requirements are

the same as those proposed for

permitted incinerators and BIFs, except

for an additional provision that the

notice contain a schedule of activities

that are required prior to permit

issuance, including the permitting

agency’s anticipated schedule for trial

burn plan approval and the actual trial

burn.

Synopsis of Major Comments on

§ 270.74(b) and (c)(3). Many of the

comments described in section E.1.

above with regard to the trial burn

notice for permitted incinerators and

BIFs also are relevant to the trial burn

notice for interim status incinerators

and BIFs (e.g., comments on the timing

of the notice). A number of commenters

raised the issue of a comment period on

the trial burn plan for interim status

facilities. A few commenters supported

the idea, some opposed it, and several

more asked EPA to clarify whether or

not we would require a comment period

on the tentatively approved trial burn

plan. One commenter noted that this

additional information was critical for

interim status facilities where the public

has not yet had an opportunity for

involvement.

EPA’s Response to Commenters. EPA

has decided to finalize the provisions

for interim status facilities with two

slight changes from the proposal. First,

the final rule provides for notice of the

Director’s intention to approve a trial

burn plan, rather than his or her

‘‘tentative approval.’’ In response to

commenter concerns that the notice

could be an extra time-consuming step

in the process, EPA has changed the

language to better reflect its intent that

the notice occurs in the final stages of

review, rather than being a separate step

following completion of review.

Second, we proposed to place the

notice requirements in a newly created

§ 270.74, which contained interim status

combustion permitting requirements.

However, since EPA is not finalizing the

combustion permitting sections of the

proposed rule at this time, we have

integrated the notice requirements with

the regulations for the permitting of

interim status combustion facilities, i.e.,

§ 270.62(d) for incinerators and

§ 270.66(g) for BIFs.

Although the Agency has not changed

the trial burn plan notice requirements

for interim status combustors in the

final rule, the requirements are in a

different format than in the proposal.

First, the notice requirements are now

located in the centers of the paragraphs

(§ 270.62(d) for incinerators and

§ 270.66(g) for BIFs) along with other

permitting requirements. Since the

notice contents for interim status

facilities differ from the contents for

permitted facilities with regard to

announcing planned approval of the

trial burn plan, we are amending

§§ 270.62(d) and 270.66(g) to list the

specific information that the permitting

agency must include in the notices for

interim status combustors. Second, we

do not list the timing and distribution

requirements for the notice for interim

status facilities, as we did in the

proposed rule. Instead, each of these

paragraphs refers the reader to another

paragraph (§ 270.62(b) and § 270.66(d),

respectively) that covers the notice of

the trial burn for permitted facilities.

For instance, § 270.62(d) states that the

agency shall issue the notice ‘‘in

accordance with the timing and

distribution requirements of (b)(6) of

this section.’’ The requirements in (b)(6)

are the new notice requirements that we

are issuing today for permitted

combustion facilities (see section E.1.

above). In following the standards in

(b)(6), the permitting agency will send

the notice to the facility mailing list and

the appropriate units of State and local

government within a reasonable period

of time before the trial burn. Section

270.66(g) takes the same approach for

BIFs by referring to paragraph (d) of that

section.

For permitted combustion facilities,

EPA has clarified in §§ 270.62(b)(6) and

270.66(d)(3) that a facility applying for

a permit may not commence its trial

burn until after the permitting agency

has issued the required notice. EPA

does not believe that comparable

clarifying language is necessary in

§§ 270.62(d) or 270.66(g) for the notice

of planned approval of a trial burn plan

for an interim status facility. EPA

believes it is clear under these

provisions that the permitting agency

will not approve a plan and,

consequently, the facility cannot

commence its trial burn, until issuance

of the required notice.

The role of the notice for interim

status BIFs and incinerators is much the

same as the notice for permitted

facilities, i.e., to keep the public

informed throughout the trial burn

stage. The final rule does not require a

comment period after the permitting

agency gives notice of the planned

approval of the trial burn plan and the

trial burn dates for interim status

facilities. The trial burn notice, like the

other notices required by this rule, is

primarily intended to keep the

community informed while not slowing

down the permitting process. Since

interim status facilities are already

operating, and continue to operate while

the permitting agency evaluates the

permit application, EPA does not

believe it would generally be in the

public interest to delay the evaluation

process in order to provide a formal

response to comments on the trial burn

plan. However, if members of the public

submit significant information or views

relating to the trial burn plan, the

Director should consider this

information, and may choose to respond

in writing at the time of plan approval.

In addition, a formal comment period

will, of course, still take place after draft

permit issuance.

EPA believes that the final rule strikes

the appropriate balance between public
63428 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

2EPA is not including similar limiting language,

like the language in §§ 124.31, 124.32, and 124.33,

in the other provisions of today’s rule. With respect

to § 270.14, the requirement to submit the summary

of the pre-application meeting with the Part B

permit application expressly references § 124.31.

Accordingly, where the regulations do not require

a meeting, it is clear that the applicant does not

need to provide a meeting summary. With respect

to the information repository requirement of

§ 270.30(m), EPA will follow the general principles

applicable to the inclusion of the § 270.30

‘‘boilerplate’’ provisions in HSWA portions of

RCRA permits (see, e.g., In re General Motors Corp.,

RCRA Appeal Nos. 90–24, 90–25, at 23 (EAB Nov.

6, 1992)). Finally, §§ 270.62 and 270.66 apply only

where EPA has permit issuance authority over

incinerators and BIFs, respectively, so there is no

need to limit the applicability of the specific

requirements added to these sections today.

involvement and the efficiency of the

permitting process. The notice alerts the

public of the impending trial burn, and

of the opportunity to review the trial

burn plan. Since EPA is not yet

finalizing the other revisions to

combustion permitting procedures

proposed in § 270.74, trial burn plans

for interim status combustors may not

always be available for review with the

rest of the application. Through today’s

notice requirement, the public will still

have an opportunity to stay informed

and to review the plan before the

Director approves it.

EPA is currently considering and

addressing the comments it received on

the revised combustion permitting

procedures. If those procedures are

finalized and go into effect as proposed,

including the provision requiring

facilities to submit trial burn plans with

permit applications, the public will

have the opportunity to review and

submit opinions or suggestions on the

proposed trial burn plan at any time

after the facility submits the application.

At that time, EPA will have the

opportunity to consider any such

submissions in the process of reviewing

the plan. Accordingly, EPA is not

requiring a comment period for the

planned trial burn plan approval in this

rule, since such a requirement could

likely be rendered unnecessary in the

future.

V. State Authority

A. Applicability of Today’s Rule in

Authorized States

The overall effect of today’s final rule

is to increase the stringency of the

RCRA permitting process. Therefore,

States that are authorized to administer

and enforce the RCRA program in lieu

of EPA under section 3006 of RCRA are

required to modify their programs by

adopting equivalent requirements if

necessary (see § 271.21(e)). States must

submit their proposed program

modifications to EPA for approval

according to the schedules set forth in

section V.B. below.

EPA is promulgating today’s rule

pursuant to statutory authority that

existed prior to the Hazardous and Solid

Waste Amendments (HSWA) of 1984.

As we explained in more detail in the

proposed rule (59 FR 28703–04), EPA

will implement §§ 124.31 (the preapplication meeting), 124.32 (the notice

at application submittal), and 124.33

(the information repository) of this rule

in authorized States only when EPA is

processing permit applications for

hazardous waste management units over

which it has the basic permit issuance

authority (e.g., BIFs in States not yet

authorized to issue BIF permits). EPA

has added language to §§ 124.31(a),

124.32(a), and 124.33(a) of the final rule

to clarify that EPA will implement these

sections only for such applications. For

all other permit applications in

authorized States, the requirements of

these sections will not take effect until

the States adopt and become authorized

for this rule.2

Under this approach, EPA will be

implementing §§ 124.31, 124.32, and

124.33 only where it is the basic

permitting authority for the unit. EPA

will, of course, implement these

sections in non-authorized States. EPA

will also implement these sections in

authorized States when the permit

application in question contains one or

more hazardous waste management

units for which the State is not

authorized to issue RCRA permits and,

thus, EPA has basic permit issuance

authority. For example, EPA will

implement today’s rule when processing

an application that includes a BIF if the

State is not authorized to issue BIF

permits. The facility with the BIF unit

will be subject to all the applicable

requirements in today’s rule.

However, if the State is authorized to

issue RCRA permits for all of the

hazardous waste management units in

an application, then EPA will not

implement the requirements in

§§ 124.31, 124.32, and 124.33. EPA will

not implement those provisions in such

a case, even though EPA may retain

authority to issue a HSWA ‘‘rider’’

relating to the units in the application

(e.g., authority to control air emissions

from certain units under 40 CFR Part

264 Subparts AA, BB, and CC), or

relating to the facility as a whole (e.g.,

corrective action authority under 40

CFR § 264.101). For example, EPA will

not implement §§ 124.31, 124.32, and

124.33 when processing the corrective

action portion of a tank storage permit

application in an authorized State.

The Agency believes that this

arrangement best implements the intent

of today’s rule. EPA designed the preapplication meeting, the notice at

application submittal, and repository

requirements to enhance

communication and understanding

between the public, the facility owners

and operators, and the permitting

agency. These requirements will foster a

dialogue between facilities and

communities with a focus on

fundamental permitting issues. EPA

believes that these interactions are

properly part of the application process

for the basic permit to conduct

hazardous waste management

operations, and not part of the process

to evaluate and issue additional

conditions through a HSWA rider.

Accordingly, and consistent with the

proposal, we have explicitly tied these

requirements to the basic permit

issuance authority for hazardous waste

management units.

For most units in most States, the

basic permit issuance authority rests

with the State. Accordingly, EPA

strongly urges authorized States to

adopt this rule in an expeditious

manner. Specifically, EPA encourages

States that have not yet adopted the BIF

rule to adopt the new public

participation procedures concurrently

with their BIF rules, rather than

deferring adoption to the somewhat

later deadline that applies to today’s

rule.

In adopting today’s rule, authorized

States should not include in their

approved regulations the limiting

language added to the final applicability

sections of §§ 124.31, 124.32 and

124.33. This language includes both the

limitation of the sections’ applicability

to ‘‘all applications seeking RCRA

permits for hazardous waste

management units over which EPA has

permit issuance authority’’ and the

definition of the phrase ‘‘hazardous

waste management units over which

EPA has permit issuance authority.’’

Obviously, the reference to EPA would

be inappropriate in a State rule.

Moreover, even if the State changed the

language to refer to the State

environmental agency, the provision

would be unnecessary because

authorized States process RCRA permit

applications and administer RCRA

permits only at facilities with units over

which they have permit issuance

authority. Accordingly, EPA

recommends that States not include in

their regulations limiting language

similar to that in today’s final

rulemaking.
Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63429

B. Schedules and Requirements for

Authorization

40 CFR 271.21(e) requires States with

final authorization to modify their

programs to reflect federal program

changes and submit the modifications to

EPA for approval. The deadlines for

State modifications are set out in

§ 271.21(e)(2) and depend upon the date

of promulgation of final rules by EPA.

Thus, because EPA has promulgated

today’s rule before June 30, 1996, States

must modify their programs, if

necessary, to adopt this rule before July

1, 1997 (or July 1, 1998 if a State

statutory change is needed). States then

must submit these program

modifications to EPA according to the

schedules in § 271.21(e)(4). Once EPA

approves the modifications, the State

requirements become RCRA Subtitle C

requirements.

States with authorized RCRA

programs may already have

requirements similar to those we are

proposing today. EPA has not assessed

these State regulations against the final

federal regulations to determine

whether they meet the tests for

authorization. Thus, similar provisions

of State law are not authorized to

operate in lieu of today’s RCRA

requirements until the State submits

them to EPA, who then evaluates them

against the final EPA regulations. Of

course, States may continue to

administer and enforce their existing

standards in the meantime.

In developing today’s final rule, EPA

considered impacts on existing State

programs. The public participation

requirements may be viewed as

performance objectives the Agency

wants States to meet in their own

authorized programs. It is not EPA’s

intent to restrict States from conducting

similar activities that accomplish the

same objectives. Therefore, EPA intends

to be flexible in reviewing State program

submissions and evaluating them

against the requirements for

authorization.

VI. Permits Improvement Team

In July 1994, EPA created a group of

EPA, State, Tribal and local government

officials (Permits Improvement Team) to

examine and propose improvements to

EPA’s permit programs. As part of its

efforts, the Permits Improvement Team

is examining ways to streamline the

permitting process, exploring possible

alternatives to individual permits, and

evaluating ways to enhance public

involvement in the permitting process.

The Team plans to develop

recommendations in each of these areas,

discuss them with stakeholders, and

submit them to Agency management for

consideration.

The public participation requirements

that EPA is promulgating in today’s rule

are appropriate for the RCRA permitting

program as it currently exists. If,

however, the nature of the RCRA

permitting program changes as a result

of the Permits Improvement Team’s

efforts, then the Agency may amend

these procedures, or develop additional

procedures. For example, the Team is

considering recommending several

alternatives to individual permits, such

as establishing general permits for

RCRA non-commercial storage and

treatment units. The process of issuing

general permits is very different from

the current RCRA permitting process;

thus, different approaches for involving

the public may be appropriate.

VII. Regulatory Assessment

Requirements

A. Executive Order 12866

Under Executive Order 12866, (58 FR

51735, October 4, 1993) the Agency

must determine whether a regulatory

action is ‘‘significant’’ and, therefore,

subject to review by the Office of

Management and Budget (OMB) and to

the requirements of the Executive Order,

which include assessing the costs and

benefits anticipated as a result of the

regulatory action.

The Order defines ‘‘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

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.

The Agency has determined that this

rule is not a significant rule under

Executive Order 12866. Pursuant to the

terms of Executive Order 12866, this

section of the preamble summarizes the

potential economic impacts of the RCRA

Expanded Public Participation rule.

Based upon the economic impact

analysis for today’s rule, the Agency’s

best estimate is that the expanded

public participation requirements

would result in an incremental national

annual cost of $180,000 to $500,000.

A complete discussion of the

economic impact analysis is available in

the regulatory docket for today’s rule in

a report entitled ‘‘Economic Impact

Analysis for the RCRA Expanded Public

Participation Rule.’’

Cost Analysis. Today’s rule includes

several requirements that would result

in direct costs to facilities submitting

initial permit applications or submitting

permit renewal applications that

propose a significant change for facility

operations (see § 124.31). The analysis

estimates the costs to all affected

facilities of (1) preparing a public notice

announcing the intention to hold a

public meeting; (2) disseminating the

public notice in a local newspaper, over

a broadcast medium, and by posting a

sign; and (3) holding a public meeting

and preparing a meeting summary.

In addition, the rule gives the Director

the discretion to require a facility to set

up an information repository, based on

the level of public interest or other

factors. This requirement can apply

anywhere in the permitting process or at

any time during the active life of a

facility.

The total cost per facility of the above

requirements is approximately $5,000 to

$14,000. Over the next ten years, EPA

estimates that between 300 to 450

facilities will incur these costs. The

resulting total national annual cost,

assuming a discount rate of 7% is

estimated to be between $180,000 to

$500,000 per year.

Summary of Benefits. The RCRA

permitting program was developed to

protect human health and the

environment from the risks posed by the

treatment, storage, and disposal of

hazardous waste. By improving and

clarifying the permitting process,

today’s rule produces environmental

benefits that result from a more efficient

permitting process. The following is an

explanation of how each of the

provisions of today’s rule provides

benefits.

The main benefit of the expanded

public participation requirements of

today’s rule is to provide earlier

opportunities for public involvement

and expand public access to information

throughout the permitting process and

the operational lives of facilities. EPA

believes that these requirements will

give applicants and permitting agencies

a better opportunity to address public

concerns in making decisions about the

facility and in subsequent permitting

activities.

Providing the public with an

expanded role in the permit process, by

promoting community participation and
63430 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

input throughout the permitting

process, will also help foster continued

community involvement after facilities

become permitted.

In addition, expanding public

involvement opportunities could, in

some cases, streamline the permitting

process, since the public will raise

issues, and the applicant can address

the issues, at an earlier stage in the

process. Currently, the public is not

formally involved in the permitting

process until the draft permit stage,

which occurs after the permitting

agency and the permit applicant have

discussed crucial parts of the part B

permit application. The Agency

anticipates that the earlier participation

provided in this rule will address the

public concern that major permit

decisions may be made before the

public has the opportunity to get

involved in the process. This earlier

involvement may well reduce costs

associated with delays, litigation, and

other products of disputes.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

of 1980 requires federal agencies to

consider ‘‘small entities’’ throughout the

regulatory process. Section 603 of the

RFA requires agencies to perform an

initial screening analysis to determine

whether small entities will be adversely

affected by the regulation. If the analysis

identifies affected small entities, then

the agency must consider regulatory

alternatives to mitigate the potential

impacts. Small entities as described in

the Act are only those ‘‘businesses,

organizations and governmental

jurisdictions subject to regulation.’’

In developing today’s rule for

expanding public involvement in the

RCRA permitting process, EPA was

sensitive to the needs and concerns of

small businesses. The provisions set

forth the minimum requirements

necessary to fulfill the public

involvement objectives in this rule.

Additional examples of activities that

facilities may choose to conduct are

provided in the preamble for the

proposed rule (59 FR 28680) and will be

included in a future guidance

document, rather than in this rule.

EPA’s intent is to provide flexibility for

a facility to determine, in view of the

facility-specific circumstances, the

appropriate level of public involvement

activities. In addition, EPA recognizes

that, in some situations, an information

repository could become resourceintensive for a facility or for the local

community. EPA has addressed this

concern by clarifying, in the final rule,

that the information repository is not

mandatory for all facilities. The rule

makes clear our intent that the Director

reserve the use of the information

repository option only for the limited

number of facilities that raise high

levels of public interest or whose

communities have a special need for

more access to information.

EPA conducted a small entity impact

screening analysis for the proposed rule

and determined that there were no small

entities significantly impacted (see 59

FR 28680–28711, Section VI.C.).

Because the public participation

requirements have not increased since

the proposal, EPA has determined that

the final rule also does not significantly

impact small entities.

C. 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 2050–0149.

This collection of information is

estimated to have a public reporting

burden averaging 89.60 hours per

response, and to require 34.60 hours per

recordkeeper annually. This total

includes time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

necessary data, and completing and

reviewing the collection of information.

Send comments regarding the burden

estimate or any other aspect of this

collection of information, including

suggestions for reducing this burden to

Chief, Information Policy Branch (2136),

U.S. Environmental Protection Agency,

401 M St., SW., Washington, DC 20460;

and to the Office of Information and

Regulatory Affairs, Office of

Management and Budget, Washington,

DC 20503, marked ‘‘Attention: Desk

Officer for EPA.’’

Display of OMB Control Numbers.

EPA is also amending the table of

currently approved information

collection request (ICR) control numbers

issued by OMB for various regulations.

This amendment updates the table to

accurately display those information

requirements contained in this final

rule. This display of the OMB control

number and its subsequent codification

in the Code of Federal Regulations

satisfies the requirements of the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.) and OMB’s implementing

regulations at 5 CFR 1320.

The ICR was previously subject to

public notice and comment prior to

OMB approval. As a result, EPA finds

that there is ‘‘good cause’’ under section

553(b)(B) of the Administrative

Procedure Act (5 U.S.C. 553(b)(B)) to

amend this table without prior notice

and comment. Due to the technical

nature of the table, further notice and

comment would be unnecessary.

D. Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995 (the

UMRA), P.L. 104–4, EPA generally must

prepare a written statement, including a

cost-benefit analysis, for 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. When such a statement

is required for EPA rules, under section

205 of the UMRA, EPA must identify

and consider alternatives, including the

least costly, most cost-effective, or least

burdensome alternative that achieves

the objectives of the rule. EPA must

select that alternative, unless the

Administrator explains in the final rule

why it was not selected or it is

inconsistent with law. Before EPA

establishes regulatory requirements that

may significantly or uniquely affect

small governments, including Tribal

governments, it must develop, under

section 203 of the UMRA, a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, giving them

meaningful and timely input in the

development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising them

about compliance with the regulatory

requirements.

For the reasons explained in Section

VI.A. above, EPA has determined that

this rule does not contain a federal

mandate that may result in expenditures

of $100 million or more for State, local,

and Tribal governments, in the

aggregate, or the private sector in any

one year. Rather, EPA projects the total

annual costs imposed by today’s rule to

be less than $500,000. Thus, today’s rule

is not subject to the requirements of

sections 202 and 205 of the UMRA.

In addition, EPA has determined that

this rule contains no regulatory

requirements that might significantly or

uniquely affect small governments. As

stated above, the total costs of the rule

are very low. These minimal costs will

be incurred by owners and operators of

hazardous waste treatment, storage and

disposal facilities, which are principally

private entities, and federal government

agencies. Accordingly, this rule does not

impose any requirements that might

significantly or uniquely affect small

governments.
Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63431

E. Enhancing the Intergovernmental

Partnership

Executive Order 12875. Executive

Order 12875 on enhancing the

intergovernmental partnership charges

federal agencies with establishing

meaningful consultation and

collaboration with State and local

governments on matters that affect

them. In most cases, State governments

are the level of government that

regulates hazardous waste.

EPA has consulted with State officials

to develop today’s rule. EPA invited

several States, representing various

parts of the country, to participate in

this rulemaking process. These States

reviewed and provided feedback on the

draft proposal over a period of eight

months, and the draft final rule over a

period of five months. In addition, these

States participated in monthly

workgroup meetings via conference call.

Their participation and immediate

feedback in the workgroup process

added considerable value to the

rulemaking effort.

EPA contacted additional States in an

effort to receive their specific feedback

on general permitting and public

involvement techniques. EPA solicited

State input during a session of the 3rd

Annual RCRA Public Involvement

National Conference, in which sixteen

State representatives participated. The

State participants provided numerous

helpful suggestions and ideas. In

addition, the Agency utilized existing

State groups, such as the Association of

State and Territorial Solid Waste

Management Officials (ASTSWMO), to

solicit input on the proposed rule at

various stages in the development

process. State personnel at the

Commissioner level provided input to

EPA at bi-monthly meetings of the EPAState Task Force on Hazardous Waste

Management. Through early

involvement in the process, State

representatives made valuable

contributions to the development of

today’s rule. EPA also received

comments from several States following

publication of the proposed rule. Many

of the States’ concerns are addressed by

the final rule.

The Relationship of Today’s Rule

with Indian Policy. Currently, EPA has

the responsibility for ensuring the

implementation and enforcement of the

Subtitle C hazardous waste regulatory

program on Indian lands. This

responsibility includes the issuance of

hazardous waste permits. However,

consistent with EPA’s Indian Policy of

1984, the Agency will look directly to,

and work with, Tribal governments in

determining the best way to implement

the public involvement requirements in

Indian country. This Indian policy

recognizes the sovereignty of federallyrecognized Tribes and commits EPA to

a government-to-government

relationship with the Tribes.

List of Subjects

40 CFR Part 9

Reporting and recordkeeping

requirements.

40 CFR Part 124

Administrative practice and

procedure, Hazardous Waste, Reporting

and recordkeeping requirements.

40 CFR Part 270

Administrative practice and

procedure, Hazardous waste, Reporting

and recordkeeping requirements, Permit

application requirements, Waste

treatment and disposal.

Dated: October 18, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I, of the Code

of Federal Regulations, is amended as

follows:

PART 9—OMB APPROVALS UNDER

THE PAPERWORK REDUCTION ACT

1. The authority citation for part 9

continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136–136y;

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671;

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321,

1326, 1330, 1344, 1345 (d) and (e), 1361; E.O.

11735, 38 FR 21243, 3 CFR, 1971–1975

Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246,

300f, 300g, 300g–1, 300g–2, 300g–3, 300g–4,

300g–5, 300g–6, 300j–1, 300j–2, 300j–3, 300j–

4, 300j–9, 1857 et seq., 6901–6992k, 7401–

7671q, 7542, 9601–9657, 11023, 11048.

2. Section 9.1 is amended by adding

the new entries to the table to read as

follows:

§ 9.1 OMB approvals under the Paperwork

Reduction Act.

* * * * *

40 CFR Citation OMB Control

No.

* * * * *

PART 124—PROCEDURES FOR

DECISIONMAKING

124.31 ................................... 2050–0149

124.32 ................................... 2050–0149

124.33 ................................... 2050–0149

PART 270—EPA-ADMINISTERED PERMIT

PROGRAMS: THE HAZARDOUS WASTE

PERMIT PROGRAM

270.62 ................................... 2050–0149

270.66 ................................... 2050–0149

40 CFR Citation OMB Control

No.

* * * * *

PART 124—PROCEDURES FOR

DECISIONMAKING

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. Subpart B is amended by adding

text to read as follows:

Subpart B—Specific Procedures Applicable

to RCRA Permits

Sec.

124.31 Pre-application public notice and

meeting.

124.32 Public notice requirements at the

application stage.

124.33 Information repository.

Subpart B—Specific Procedure Applicable

to RCRA Permits

§ 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 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,

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
63432 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

opportunity for attendees to provide

their names and addresses.

(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).

(d) The applicant must provide public

notice of the pre-application meeting at

least 30 days prior to the meeting. The

applicant must maintain, and provide to

the permitting agency upon request,

documentation of the notice.

(1) The applicant shall provide public

notice in all of the following forms:

(i) A newspaper advertisement. The

applicant shall publish a notice,

fulfilling the requirements in paragraph

(d)(2) of this section, in a newspaper of

general circulation in the county or

equivalent jurisdiction that hosts the

proposed location of the facility. In

addition, the Director shall instruct the

applicant to publish the notice in

newspapers of general circulation in

adjacent counties or equivalent

jurisdictions, where the Director

determines that such publication is

necessary to inform the affected public.

The notice must be published as a

display advertisement.

(ii) A visible and accessible sign. The

applicant shall post a notice on a clearly

marked sign at or near the facility,

fulfilling the requirements in paragraph

(d)(2) of this section. If the applicant

places the sign on the facility property,

then the sign must be large enough to be

readable from the nearest point where

the public would pass by the site.

(iii) A broadcast media

announcement. The applicant shall

broadcast a notice, fulfilling the

requirements in paragraph (d)(2) of this

section, at least once on at least one

local radio station or television station.

The applicant may employ another

medium with prior approval of the

Director.

(iv) A notice to the permitting agency.

The applicant shall send a copy of the

newspaper notice to the permitting

agency and to the appropriate units of

State and local government, in

accordance with § 124.10(c)(1)(x).

(2) The notices required under

paragraph (d)(1) of this section must

include:

(i) The date, time, and location of the

meeting;

(ii) A brief description of the purpose

of the meeting;

(iii) A brief description of the facility

and proposed operations, including the

address or a map (e.g., a sketched or

copied street map) of the facility

location;

(iv) A statement encouraging people

to contact the facility at least 72 hours

before the meeting if they need special

access to participate in the meeting; and

(v) The name, address, and telephone

number of a contact person for the

applicant.

§ 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 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.

(b) Notification at application

submittal.

(1) The Director shall provide public

notice as set forth in § 124.10(c)(1)(ix),

and notice to appropriate units of State

and local government as set forth in

§ 124.10(c)(1)(x), that a part B permit

application has been submitted to the

Agency and is available for review.

(2) The notice shall be published

within a reasonable period of time after

the application is received by the

Director. The notice must include:

(i) The name and telephone number of

the applicant’s contact person;

(ii) The name and telephone number

of the permitting agency’s contact office,

and a mailing address to which

information, opinions, and inquiries

may be directed throughout the permit

review process;

(iii) An address to which people can

write in order to be put on the facility

mailing list;

(iv) The location where copies of the

permit application and any supporting

documents can be viewed and copied;

(v) A brief description of the facility

and proposed operations, including the

address or a map (e.g., a sketched or

copied street map) of the facility

location on the front page of the notice;

and

(vi) The date that the application was

submitted.

(c) Concurrent with the notice

required under § 124.32(b) of this

subpart, the Director must place the

permit application and any supporting

documents in a location accessible to

the public in the vicinity of the facility

or at the permitting agency’s office.

§ 124.33 Information repository.

(a) Applicability. The requirements of

this section apply to all applications

seeking RCRA permits for hazardous

waste management units over which

EPA has permit issuance authority. 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.

(b) The Director may assess the need,

on a case-by-case basis, for an

information repository. When assessing

the need for an information repository,

the Director shall consider a variety of

factors, including: the level of public

interest; the type of facility; the

presence of an existing repository; and

the proximity to the nearest copy of the

administrative record. If the Director

determines, at any time after submittal

of a permit application, that there is a

need for a repository, then the Director

shall notify the facility that it must

establish and maintain an information

repository. (See 40 CFR 270.30(m) for

similar provisions relating to the

information repository during the life of

a permit).

(c) The information repository shall

contain all documents, reports, data,

and information deemed necessary by

the Director to fulfill the purposes for

which the repository is established. The

Director shall have the discretion to

limit the contents of the repository.

(d) The information repository shall

be located and maintained at a site

chosen by the facility. If the Director

finds the site unsuitable for the

purposes and persons for which it was

established, due to problems with the

location, hours of availability, access, or

other relevant considerations, then the

Director shall specify a more

appropriate site.

(e) The Director shall specify

requirements for informing the public

about the information repository. At a

minimum, the Director shall require the

facility to provide a written notice about

the information repository to all

individuals on the facility mailing list.

(f) The facility owner/operator shall

be responsible for maintaining and
Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations 63433

updating the repository with

appropriate information throughout a

time period specified by the Director.

The Director may close the repository at

his or her discretion, based on the

factors in paragraph (b) of this section.

PART 270—EPA ADMINISTERED

PERMIT PROGRAMS: THE

HAZARDOUS WASTE PERMIT

PROGRAM

1. The authority citation for part 270

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912, 6924,

6925, 6927, 6939, and 6974.

2. Section 270.2 is amended by

revising the definition for ‘‘Facility

mailing list’’ to read as follows:

§ 270.2 Definitions.

* * * * *

Facility mailing list means the mailing

list for a facility maintained by EPA in

accordance with 40 CFR

124.10(c)(1)(ix).

* * * * *

3. Section 270.14 is amended by

adding paragraph (b)(22) to read as

follows:

§ 270.14 Contents of part B: General

requirements.

* * * * *

(b) * * *

(22) A summary of the pre-application

meeting, along with a list of attendees

and their addresses, and copies of any

written comments or materials

submitted at the meeting, as required

under § 124.31(c).

4. Section 270.30 is amended by

adding paragraph (m) to read as follows:

§ 270.30 Conditions applicable to all

permits.

* * * * *

(m) Information repository. The

Director may require the permittee to

establish and maintain an information

repository at any time, based on the

factors set forth in 40 CFR 124.33(b).

The information repository will be

governed by the provisions in 40 CFR

124.33(c) through (f).

5. Section 270.61(b)(5) introductory

text is amended by removing the

reference § 124.11(b) and adding in its

place § 124.10(b).

* * * * *

6. In § 270.62, paragraphs (b)(6)

through (10) are redesignated as

paragraphs (b)(7) through (11), and new

paragraph (b)(6) is added as follows:

§ 270.62 Hazardous waste incinerator

permits.

* * * * *

(b) * * *

(6) The Director must send a notice to

all persons on the facility mailing list as

set forth in 40 CFR 124.10(c)(1)(ix) and

to the appropriate units of State and

local government as set forth in 40 CFR

124.10(c)(1)(x) announcing the

scheduled commencement and

completion dates for the trial burn. The

applicant may not commence the trial

burn until after the Director has issued

such notice.

(i) This notice must be mailed within

a reasonable time period before the

scheduled trial burn. An additional

notice is not required if the trial burn is

delayed due to circumstances beyond

the control of the facility or the

permitting agency.

(ii) This notice must contain:

(A) The name and telephone number

of the applicant’s contact person;

(B) The name and telephone number

of the permitting agency’s contact office;

(C) The location where the approved

trial burn plan and any supporting

documents can be reviewed and copied;

and

(D) An expected time period for

commencement and completion of the

trial burn.

* * * * *

7. Paragraph (d) of § 270.62 is revised

as follows:

§ 270.62 Hazardous waste incinerator

permits.

* * * * *

(d) For the purpose of determining

feasibility of compliance with the

performance standards of § 264.343 of

this chapter and of determining

adequate operating conditions under

§ 264.345 of this chapter, the applicant

for a permit for an existing hazardous

waste incinerator must prepare and

submit a trial burn plan and perform a

trial burn in accordance with § 270.19(b)

and paragraphs (b)(2) through (b)(5) and

(b)(7) through (b)(10) of this section or,

instead, submit other information as

specified in § 270.19(c). The Director

must announce his or her intention to

approve the trial burn plan in

accordance with the timing and

distribution requirements of paragraph

(b)(6) of this section. The contents of the

notice must include: the name and

telephone number of a contact person at

the facility; the name and telephone

number of a contact office at the

permitting agency; the location where

the trial burn plan and any supporting

documents can be reviewed and copied;

and a schedule of the activities that are

required prior to permit issuance,

including the anticipated time schedule

for agency approval of the plan and the

time period during which the trial burn

would be conducted. Applicants

submitting information under

§ 270.19(a) are exempt from compliance

with 40 CFR 264.343 and 264.345 and,

therefore, are exempt from the

requirement to conduct a trial burn.

Applicants who submit trial burn plans

and receive approval before submission

of a permit application must complete

the trial burn and submit the results,

specified in paragraph (b)(7) of this

section, with part B of the permit

application. If completion of this

process conflicts with the date set for

submission of the part B application, the

applicant must contact the Director to

establish a later date for submission of

the part B application or the trial burn

results. Trial burn results must be

submitted prior to issuance of the

permit. When the applicant submits a

trial burn plan with part B of the permit

application, the Director will specify a

time period prior to permit issuance in

which the trial burn must be conducted

and the results submitted.

8. In § 270.66, paragraphs (d) (3)

through (5) are redesignated as

paragraphs (d) (4) through (6), and new

paragraph (d)(3) is added to read as

follows:

§ 270.66 Permits for boilers and industrial

furnaces burning hazardous waste.

* * * * *

(d) * * *

(3) The Director must send a notice to

all persons on the facility mailing list as

set forth in 40 CFR 124.10(c)(1)(ix) and

to the appropriate units of State and

local government as set forth in 40 CFR

124.10(c)(1)(x) announcing the

scheduled commencement and

completion dates for the trial burn. The

applicant may not commence the trial

burn until after the Director has issued

such notice.

(i) This notice must be mailed within

a reasonable time period before the trial

burn. An additional notice is not

required if the trial burn is delayed due

to circumstances beyond the control of

the facility or the permitting agency.

(ii) This notice must contain:

(A) The name and telephone number

of applicant’s contact person;

(B) The name and telephone number

of the permitting agency contact office;

(C) The location where the approved

trial burn plan and any supporting

documents can be reviewed and copied;

and

(D) An expected time period for

commencement and completion of the

trial burn.

* * * * *

9. Paragraph (g) of § 270.66 is revised

as follows:
63434 Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / Rules and Regulations

§ 270.66 Permits for boilers and industrial

furnaces burning hazardous waste.

* * * * *

(g) Interim status boilers and

industrial furnaces. For the purpose of

determining feasibility of compliance

with the performance standards of

§ 266.104 through 266.107 of this

chapter and of determining adequate

operating conditions under § 266.103 of

this chapter, applicants owning or

operating existing boilers or industrial

furnaces operated under the interim

status standards of § 266.103 of this

chapter must either prepare and submit

a trial burn plan and perform a trial

burn in accordance with the

requirements of this section or submit

other information as specified in

§ 270.22(a)(6). The Director must

announce his or her intention to

approve of the trial burn plan in

accordance with the timing and

distribution requirements of paragraph

(d)(3) of this section. The contents of the

notice must include: the name and

telephone number of a contact person at

the facility; the name and telephone

number of a contact office at the

permitting agency; the location where

the trial burn plan and any supporting

documents can be reviewed and copied;

and a schedule of the activities that are

required prior to permit issuance,

including the anticipated time schedule

for agency approval of the plan and the

time periods during which the trial burn

would be conducted. Applicants who

submit a trial burn plan and receive

approval before submission of the part

B permit application must complete the

trial burn and submit the results

specified in paragraph (f) of this section

with the part B permit application. If

completion of this process conflicts

with the date set for submission of the

part B application, the applicant must

contact the Director to establish a later

date for submission of the part B

application or the trial burn results. If

the applicant submits a trial burn plan

with part B of the permit application,

the trial burn must be conducted and

the results submitted within a time

period prior to permit issuance to be

specified by the Director.

[FR Doc. 95–29896 Filed 12–8–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[SC–029–1–7177a; FRL–5316–5]

Approval and Promulgation of

Implementation Plans: Approval of

Revisions to the South Carolina State

Implementation Plan (SIP)

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving a revision to

the South Carolina State

Implementation Plan (SIP) to

incorporate new permitting regulations

and to allow the State of South Carolina

to issue Federally enforceable state

construction and operating permits

(FESCOP). On July 12, 1995, the State of

South Carolina through the Department

of Health and Environmental Control

(DHEC) submitted a SIP revision which

updates the procedural rules governing

the issuance of air permits in South

Carolina and fulfills the requirements

necessary for a state FESCOP program to

become Federally enforceable. In order

to extend the Federal enforceability of

South Carolina’s FESCOP program to

hazardous air pollutants (HAPs), EPA is

also approving South Carolina’s

FESCOP program pursuant to section

112 of the Clean Air Act as amended in

1990 (CAA) so that South Carolina may

issue Federally enforceable construction

and operating permits for HAPs.

DATES: This final rule will be effective

February 11, 1996, unless adverse or

critical comments are received by

January 10, 1996. If the effective date is

delayed, timely notice will be published

in the Federal Register.

ADDRESSES: Written comments should

be addressed to Scott Miller at the EPA

Regional office listed below. Copies of

the documents relative to this action are

available for public inspection during

normal business hours at the following

locations. The interested persons

wanting to examine these documents

should make an appointment with the

appropriate office at least 24 hours

before the visiting day.

Air and Radiation Docket and

Information Center (Air Docket 6102),

U.S. Environmental Protection

Agency, 401 M Street SW.,

Washington, DC 20460.

Environmental Protection Agency,

Region 4 Air Programs Branch, 345

Courtland Street NE., Atlanta, Georgia

30365.

South Carolina Department of Health

and Environmental Control, 2600 Bull

Street, Columbia, South Carolina

29201.

FOR FURTHER INFORMATION CONTACT:

Scott Miller, Air Programs Branch, Air,

Pesticides & Toxics Management

Division, Region 4 Environmental

Protection Agency, 345 Courtland Street

NE., Atlanta, Georgia 30365. The

telephone number is (404) 347–3555

extension 4153. Reference file SC029.

SUPPLEMENTARY INFORMATION: On July

12, 1995, the State of South Carolina

through the DHEC submitted a SIP

revision designed to allow South

Carolina to issue FESCOP which

conform to EPA requirements for

Federal enforceability as specified in a

Federal Register notice, ‘‘Requirements

for the preparation, adoption, and

submittal of implementation plans; air

quality, new source review; final rules.’’

(See 54 FR 22274, June 28, 1989). This

voluntary SIP revision allows EPA and

citizens under the Act to enforce terms

and conditions of state-issued minor

source construction and operating

permits. Construction and operating

permits that are issued under the State’s

minor source construction and

operating permit program that is

approved into the State SIP and under

section 112(l) will provide Federally

enforceable limits to an air pollution

source’s potential to emit. Limiting of a

source’s potential to emit through

Federally enforceable construction and

operating permits can affect a source’s

applicability to Federal regulations such

as title V operating permits, New Source

Review (NSR) preconstruction permits,

Prevention of Significant Deterioration

(PSD) preconstruction permits for

criteria pollutants and Federal air toxics

requirements. EPA notes that the State

will continue to issue construction and

operating permits that are not intended

to be Federally enforceable under

regulations found at South Carolina Air

Pollution Control Regulation (SCAPCR)

61–62.1 Section II.A and Section II.B.

In the aforementioned June 28, 1989,

Federal Register document, EPA listed

five criteria necessary to make a state

agency’s minor source construction and

operating permit program Federally

enforceable and, therefore, approvable

into the SIP. This revision satisfies the

five criteria for Federal enforceability of

the State’s minor source construction

and operating permit program.

The first criterion for a State’s

construction and operating permit

program to become Federally

enforceable is EPA’s approval of the

permit program into the SIP. On July 12,

1995, the State of South Carolina

submitted through the DHEC a SIP

revision designed to meet the five

criteria for Federal enforceability. This

action will approve these regulations