Modernizing Public Notice for RCRA Hazardous Waste Permitting

By: George Colvin  CPG, CHMM

Public involvement is a cornerstone of the Resource Conservation and Recovery Act (RCRA) hazardous waste permitting process.  Section 7004(b)(2) of RCRA states “before the issuing of a permit… for the treatment, storage, or disposal of hazardous waste… the Administrator shall cause to be published in a major local newspaper of general circulation….”  Unfortunately, many areas of the country no longer have newspapers that traditionally might be considered local and even where available many Americans are no longer obtaining news from printed newspaper.  According to a study by the University of North Carolina Hussman School of Media and Journalism, total newspaper circulation nationally decreased by 55 million between 2004 and the end of 2019.  An estimated “half of newspaper readers have vanished over the past 15 years.”

In response, and in view of these trends, the EPA, on December 16, 2021, provided notice and invited public comment on allowing modern alternatives for public notification in implementing RCRA hazardous waste permitting activities.  Through a Federal Register notice, EPA:

  1. Communicated its current interpretation that the RCRA and EPA regulatory provisions requiring newspaper notices for certain actions (e.g.., permit issuance and renewals) can be satisfied using qualifying online newspapers, as well as print newspapers, and requested comments on this interpretation
  2. Explained the EPA’s view that, for actions other than initial permit issuance and renewals (permit modifications for example), which are not governed by section 7004(b)(2), the EPA in appropriate cases can authorize state regulations that provide for notice mechanisms other than newspaper publication, even where EPA regulations require the agency, the permittee, or state to provide notice of such actions through newspaper publication, as long as the notice is equivalent to and no less stringent than the federal program.
  3. Requests comment on whether online mechanisms that might not typically be viewed as “newspapers,” such as bulletins or newsletters published online by state (or EPA) agencies, could also satisfy RCRA section 7004(b)(2)’s public notice requirement and regulatory newspaper notice requirements.
  4. Requests comment on whether EPA should modify its RCRA hazardous waste regulations that require newspaper notices, in order to allow the Agency more flexibility for notices of permit actions that are not governed by section 7004(b)(2) (permit modifications for example).

As discussed in the Federal Register notice, EPA interprets the “issuance” of permits through Section 7004(b)(2) to apply to both the initial permit issuance and renewals, since each RCRA permit has an expiration date, which by statute cannot extend beyond 10 years from the date of issuance.  However, the EPA does not view other permit actions – for example, a permit modification – as the issuance of permits, because they do not replace the existing permit and do not establish another permit term.  Authorized states, however, have flexibility to adopt and seek authorization for other public notice approaches that are equivalent to and at least as stringent as the EPA regulatory requirements, when undertaking actions other than permit issuance, and according to the Federal Register notice, “EPA would generally not view that as creating an issue as to the equivalence of the state program as long as they provide for notice that is likely to be as or more effective than the notice provided by the federal regulations.”

Comments must be received on or before February 14, 2022.  Comments can be submitted to the docket (Docket no: EPA-HQ-OLEM-2021-0348), following instructions in the Federal Register notice.

Published in the Focus on the Environment, February 2022


George H. Colvin is a hydrogeologist with over 30 years of consulting experience. Much of his experience has focused on RCRA Corrective Action, RCRA closure, and groundwater investigation, monitoring, and cleanup. He holds a BS in Geology from Ohio University and MS in geology and hydrology from Vanderbilt University. He is a Certified Professional Geologist with the American Institute of Professional Geologists, a registered geologist in Kentucky, Pennsylvania, and Tennessee, and a Certified Hazardous Materials Manager.