[Federal Register Volume 71, Number 64 (Tuesday, April 4, 2006)]
[Rules and Regulations]
[Pages 16862-16915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2690]
[[Page 16861]]
-----------------------------------------------------------------------
Part II
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Parts 260, 261 et al.
Resource Conservation and Recovery Act Burden Reduction Initiative;
Final Rule
Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules
and Regulations
[[Page 16862]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 264, 265, 266, 268, 270, and 271
[RCRA-2001-0039: FRL-8047-3]
RIN 2050-AE50
Resource Conservation and Recovery Act Burden Reduction
Initiative
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA), in accordance with
the goals of the Paperwork Reduction Act (PRA), is promulgating changes
to the regulatory requirements of the Resource Conservation and
Recovery Act (RCRA) hazardous waste program to reduce the paperwork
burden these requirements impose on the states, EPA, and the regulated
community. EPA has estimated that the total annual hour savings under
the final rule ranges from 22,000 hours to 37,500 hours per year. The
total annual cost savings under the final rule ranges from
approximately $2 million to $3 million. This rulemaking will streamline
our information collection requirements, ensuring that only the
information that is actually needed and used to implement the RCRA
program is collected and the goals of protection of human health and
the environment are retained.
DATES: This final rule is effective on May 4, 2006.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-RCRA-1999-0031. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC,
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the RCRA
docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT: Elaine Eby, Waste Minimization Branch,
Hazardous Waste Minimization and Management Division, Office of Solid
Waste (5302W), Environmental Protection Agency, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460; telephone number: (703) 308-8449, fax
number: (703) 308-8443, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
General Information
A. Does This Action Apply to Me?
This rule applies to entities regulated under the Resource
Conservation and Recovery Act, including manufacturing, transportation,
utilities, the waste treatment industry, and the mineral processing
industry. This list is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be affected
by this action. To determine whether your facility, company, or
business is regulated by this action, you should carefully examine 40
CFR parts 260 through 273. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. Table of Contents
I. Statutory Authority
II. Background, Purpose, and Summary of Today's Action
III. What Burden Reduction Changes Are We Making?
A. Changes to the Amount of Time Records Must Be Kept
1. We Are Reducing the Retention Time for Certain Information
Kept in a Facility's Operating Record
2. We Are Increasing the Retention Time for Certain Information
Kept in an Interim Status Facility's Operating Record
3. We Are Establishing a Five Year Record Retention Time for
Information Kept on the Operation of Incinerators, Boilers, and
Industrial Furnaces
B. Changes to the Professional Engineer Certification
Requirements
1. We Are Removing the ``Independent and ``Registered''
Requirements for Selected Certifications
2. We Are Also Changing the Closure and Post-Closure
Certification Requirements
C. Owners and Operators of Hazardous Waste Treatment, Storage,
and Disposal Facilities Have an Option of Following the Integrated
Contingency Plan Guidance
D. Owners and Operators of Hazardous Waste Treatment, Storage,
and Disposal Facilities Have an Option to Follow the RCRA or
Equivalent Occupational Safety and Health Administration (OSHA)
Standard for Emergency Response Training
E. We Are Clarifying Selected Requirements Under RCRA's Land
Disposal Restrictions and Eliminating Obsolete Regulatory Language
1. We Are Clarifying the Regulatory Language on the Land
Disposal Restrictions Generator Waste Determination
2. We Are Clarifying the Regulatory Language on the Land
Disposal Restrictions Characteristic Waste Determination
3. We Are Removing Obsolete Regulatory Language
F. We Are Eliminating Selected Recordkeeping and Reporting
Requirements That We Believe Provide Duplicative Information to EPA
1. We Are Eliminating the Requirement for Facilities To Notify
That They Are in Compliance After a Release
2. We Are Eliminating the Requirement for Facilities To Notify
of Their Intent to Burn F020, F021, F022, F023, F026, and F027
Wastes
3. We Are Eliminating the Requirement for Facilities to Notify
if They Employ or Discontinue Use of the Alternative Valve Standard
4. We Are Eliminating the Requirement for Facilities To Notify
If They Are Using Alternative Valve Work Practices.
G. We Are Permitting Decreased Inspection Frequency for Certain
Hazardous Waste Management Units
1. We Are Establishing Weekly Inspections for Certain Hazardous
Waste Tank Systems at Permitted and Interim Status Facilities, and
at Large Quantity Generator Sites
2. We Are Establishing Weekly Inspections for SQG Hazardous
Waste Tanks Systems With Secondary Containment
3. We Are Allowing Members of the National Environmental
Performance Track Program To Apply for an Adjustment to the
Frequency of Their Inspections for Certain Hazardous Waste
Management Units and Areas.
a. Performance Track: Reduced Inspection Frequency for Areas
Subject to Spills.
b. Performance Track: Reduced Inspection Frequency for
Containers.
c. Performance Track: Reduced Inspection Frequency for Tank
Systems.
d. Performance Track: Reduced Inspection Frequency for
Containment Buildings
H. We Are Making Selected Changes to the Requirements for Record
Retention and Submittal of Records
1. We Are Removing the Requirement To Submit a One-time
Notification for Recycled Wood Wastewater and Spent Wood-Preserving
Solutions and Clarifying an Unintentional Elimination Made in the
Proposal
2. We Are Eliminating the Requirement for Interim Status
Facilities To Submit Specific Ground-Water Monitoring Plans and
Ground-Water Assessment Reports
3. We Are Eliminating the Requirement for Interim Status Surface
Impoundments, Waste Piles, and Landfills To Submit a Response Action
Plan
4. We Are Eliminating the Requirement for Facilities To Submit a
Tank System Certification of Completion of Major Repairs
[[Page 16863]]
5. We Are Eliminating the Requirement for a Recycler To Submit a
Notification and Certification
6. We Are Eliminating the Requirement To Submit an LDR
Notification and Certification
I. We Are Making Selected Changes To the Requirements for
Document Submittal
1. We Are Streamlining the Procedure for Obtaining a Variance
From Classification as a Solid Waste
2. We Are Streamlining the Requirements for Treatability Study
Reports for Testing Facilities
3. We Are Streamlining the Requirements for Ground-Water
Monitoring
J. We Are Making Selected Changes to the Requirements for Semi-
Annual Reports to Annual Reports
1. We Are Changing the Requirement for a Semi-Annual Report
Detailing the Effectiveness of the Corrective Action Program
2. We Are Changing the Requirement for a Semi-Annual Report
Detailing the Progress of the Corrective Action Program
IV. What Regulatory Requirements Will Remain in the CFR?
V. We Will Implement this Rule via the Class I Permit Modification
Process Without Prior Approval
VI. How Will Today's Regulatory Changes Be Administered and Enforced
in the States?
A. Applicability of Federal Rules in Authorized States
B. Authorization of States for Today's Rule
VII. Statutory and Executive Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
VIII. Regulatory Language
I. Statutory Authority
The U.S. Environmental Protection Agency (EPA) regulates the
generation and management of hazardous waste under 40 CFR parts 260
through 273 using the authority of the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6901 et seq.
II. Background, Purpose, and Summary of Today's Action
As part of its hazardous waste regulations, EPA has established
recordkeeping and reporting requirements that allow the Agency to
enforce and ensure compliance with these regulations. In the Paperwork
Reduction Act (PRA) 44 U.S.C. 3501, et seq, Congress directs all
federal agencies to become more responsible and publicly accountable
for reducing the burden of federal paperwork on the public. ``Burden''
is defined as the total time, effort, or financial resources expended
by persons to generate, maintain, retain, or disclose or provide
information to or for a federal agency (44 U.S.C. 3502(2))t
Over the past five years, EPA has continued to assess and evaluate
the need for the many recordkeeping and reporting requirements found in
the RCRA hazardous waste program. In the course of this effort, we have
identified numerous opportunities to eliminate or streamline RCRA
requirements, while continuing to fulfill our mission of protecting
human health and the environment.
Today's final rule changes a number of the regulatory requirements
found in 40 CFR parts 260 through 271. These changes will bring about
burden reductions to both the regulated community and the regulators
and is a direct result of our consultations with a number of state
experts on potential burden reduction ideas, as well as public input
through two Notices of Data Availability and a Proposed Rulemaking.\1\
---------------------------------------------------------------------------
\1\ The Notices of Data Availability were published in the
Federal Register on June 18, 1999 (64 FR 32859) and October 29, 2003
(68 FR 61662). The Proposed Rulemaking was published in the Federal
Register on January 17, 2002 (67 FR 2518).
---------------------------------------------------------------------------
The regulatory changes contained in the Burden Reduction final rule
will have no practical impact on the many protections that EPA has
established over the years for human health and the environment. At the
same time, this rule strives to relieve stakeholders of the burden of
nonessential paperwork. The final rule clarifies certain requirements
and eliminates or simplifies other requirements. We have eliminated
paperwork requirements if they entail information that is obscure,
inconsequential, or infrequently submitted to or used by regulators.
Note, however, that the final rule does not curtail the right of
regulatory agencies to request any information desired. Waste handlers
must continue to keep on-site records of their waste management
activities and make them available to regulators when requested. As
such, the rule does not limit regulators' or the public's ability to
learn what is happening at a facility.
To effectively present the large number of regulatory changes we
are finalizing, we have divided these changes into ten categories or
groups of changes; they are: (1) The amount of time records must be
kept; (2) certification by a professional engineer; (3) option to
follow the Integrated Contingency Plan Guidance; (4) option to follow
the Occupational Safety and Health Administration (OSHA) regulations
for emergency training; (5) clarifications and elimination of obsolete
regulatory language; (6) elimination of selected recordkeeping and
reporting requirements; (7) decreased self-inspection frequency for
selected hazardous waste management units; (8) selected changes to the
requirements for record retention and submittal of records; (9) changes
to the requirements for document submittal; and (10) reduced frequency
for report submittals. A summary of the major components of the final
rule is presented in Table 1.
The preamble discussion follows the set of categories presented
above (see also Table 1, ``Summary of the Major Components and a
Description of the Regulatory Changes Being Promulgated in Today's
Burden Reduction Final Rule''). Within each category, we present the
changes we are promulgating, along with a discussion of the comments
received and our resolution of the major issues or concerns. At the
conclusion of each section, we present comparative tables showing both
the current regulatory requirement and the new requirement for the
affected group, i.e., generators; permitted hazardous waste treatment,
storage, and disposal facilities; and interim status treatment,
storage, and disposal facilities. Interim status regulations at 40 CFR
Part 265 provide for the continued operation of an existing facility
that meets certain conditions until final administrative disposition of
the owner and operator permit application is made. Regulations for
permit applications are found in 40 CFR part 270 and general standards
for permitted facilities are found in 40 CFR part 264.
[[Page 16864]]
Table 1.--Summary of the Major Components and a Description of the
Regulatory Changes Being Promulgated in Today's Burden Reduction Final
Rule
------------------------------------------------------------------------
Description of regulatory
Regulatory change change
------------------------------------------------------------------------
The amount of time records must be kept Many of the recordkeeping
requirements for treatment,
storage and disposal
facilities (TSDFs) mandate
record retention for the life
of the facility. In this final
rule, we have reduced the
length of time waste handlers
must retain certain records on
site to three years or five
years for hazardous waste
combustion units (e.g.,
operating record requirements
at 40 CFR 264.73 and 265.73).
We have also increased the
record retention time for a
selected number of documents
for interim status facilities
in cases where the
notification requirement has
been eliminated.
Certification by a professional Numerous regulations require
engineer. generators and TSDFs to obtain
an independent, qualified,
registered, professional
engineer's certification, as
specified. We have changed
certain RCRA certification
requirements by taking out the
terms ``independent'' and
``registered.''
Option to follow the Integrated Large Quantity Generators
Contingency Plan Guidance. (LQGs) and TSDFs must have
contingency plans to minimize
hazards to human health and
the environment from fires,
explosions, or any unplanned
release of hazardous waste to
the environment. We have
modified our RCRA regulations
to indicate that these waste
handlers may consider
developing one comprehensive
contingency plan based on the
Integrated Contingency
Guidance. This guidance
provides a mechanism for
consolidating the multiple
contingency plans that waste
handlers have to prepare to
comply with various government
regulations.
Option to follow Occuputional Safety LQGs and TSDFs must train their
and Health Administration (OSHA) employees in emergency
regulations for emergency training. procedures. We have modified
the RCRA regulations to allow
waste handlers to have the
option of complying with
either the RCRA or OSHA
requirements for emergency
response procedures.
Clarifications and elimination of We are modifying specified
obsolete regulatory language. regulatory language by and
eliminating obsolete terms and/
or rewording language to make
it clearer. We are also
providing regulatory
clarifications to several LDR
requirements.
Elimination of selected recordkeeping We have eliminated certain
and reporting requirements. recordkeeping and reporting
requirements in the RCRA
regulations in order to
eliminate submission of
duplicative information and/or
reporting unnecessary burden
to waste handlers.
Decreased inspection frequency for Under many RCRA inspection
hazardous waste management units. requirements, we specify a
frequency at which waste
handlers must inspect their
frequency for facility and
equipment. We have reduced the
self-inspection frequency for
hazardous waste tank systems
from daily to weekly, under
certain conditions. In
addition, EPA is allowing
facilities in the National
Performance Track Program to
reduce their inspection
frequencies, under certain
conditions, up to monthly, on
a case-by-case basis, for tank
systems, containers,
containment buildings, and
areas subject to spills.
Selected changes to the requirements We are modifying certain
for record retention and submittal of requirements under which waste
records. handlers must keep records on-
site and submit these same
records to EPA. We are
specifying certain records
that waste handlers need to
keep only on-site.
Changes to the requirements for We have eliminated several
document submittal. requirements to reduce the
number of documents that are
submitted to the Agency
document for review.
Reduced frequency for report submittal. We have reduced the submittal
frequency of certain documents
(e.g., from semi-annual to
annual).
------------------------------------------------------------------------
III. What Burden Reduction Changes Are We Making?
A. Changes to the Amount of Time Records Must Be Kept
As a precautionary measure in promulgating the hazardous waste
requirements in 1980, we mandated the retention of many kinds of
records until facility closure, resulting in a tremendous volume of
stored paperwork. Our experience in implementing the RCRA program has
shown that this retention time is excessive, and a priority item for
reduction.
1. We Are Reducing the Retention Time for Certain Information Kept in a
Facility's Operating Record
We are changing a number of the operating record requirements under
Sec. Sec. 264.73 and 265.73 to reduce the record retention time to
three years. Among other things, we are modifying the retention time
limit for records on waste analyses; certain monitoring, testing and
analytical data; waste determinations; selected certifications; and
notifications.
We believe that these changes establish a more reasonable record
retention time than the requirement to keep this information until
closure of the facility.\2\ The three-year record retention period is
sufficient to enable regulators to monitor industry compliance and take
enforcement actions as needed. In any event,
[[Page 16865]]
Sec. Sec. 264.74(b) and 265.74(b) require the retention period of any
records to be extended automatically during the course of any
unresolved enforcement action regarding the facility, or as requested
by the Administrator.
---------------------------------------------------------------------------
\2\ Record retention times for all Agency programs vary, but in
numerous instances have retention times shorter than the life of the
facility. For example, the National Primary Drinking Water
Regulations require records retention times of one, five, and twelve
years (depending on the record). The National Emission Standards for
Hazardous Air Pollutants, Subpart FF--National Emission Standards
for Benzene Waste Operations requires a two-year records retention
time.
---------------------------------------------------------------------------
We are not modifying the retention limit for records that contain
the following information: (1) Description and quantity of each
hazardous waste received and what was done with it; (2) location of
each hazardous waste; (3) closure estimates; or (4) quantities of waste
placed in land disposal units under an extension to the effective date
of any land disposal restriction. The retention of this information is
necessary to ensure protection of human health and the environment
through the life of the facility, and until closure of the facility.
We believe that these changes will not affect the government's or
the public's ability to know what is happening at a hazardous waste
facility because a basic set of compliance information will still be
available in the facility's records. The Agency will have access to the
facility's operating record, which will contain many of the documents
previously submitted to the Agency. Although the public does not
generally have access to the facility's operating record, the Agency
Director can require permitted facilities to establish and maintain a
publicly accessible information repository at any time (see Sec.
270.30 (m)). Similarly, facilities that are applying for permits may be
required to establish and maintain an information repository. (See
124.33.)
In today's rule, we are also amending the regulatory language
proposed for maintaining these records. In the proposed rule, we used
the language, ``maintain for three years after entry into the operating
record.'' A commenter pointed out that some records, such as laboratory
analytical results, stand alone in the laboratory records and are not
actually ``entered into the operating record.'' We recognize that this
is an important distinction and are changing the regulatory language
from the proposal to say ``maintain for three years'' instead of
``maintain for three years after entry into the operating record.''
Also, a commenter pointed out that since monitoring and ground-water
clean up is a multi-year or multi-decade task, these records should be
kept until closure of the facilities. We agree, and are changing Sec.
264.73(b)(6) and Sec. 265.73(b)(6) accordingly.
We also received comments stating that we should not reduce our
record retention requirements, because any particular record might be
useful at some future point. This could be said of any requirement. In
the Paperwork Reduction Act, Congress instructed us to set a higher
standard for imposing an information collection requirement. We believe
that information must have a demonstrable value. Based on our
experience, we believe that we have identified those records that have
the greatest potential impact on the protection of human health and the
environment. Such records must be maintained until closure of the
facility.
We also received questions in response to the proposed rule asking
whether facilities must keep existing records, once generated and
stored, until the date that was initially established for their
disposal, even though we are changing that date with this rule. It
would be burdensome for facilities to have two different sets of
recordkeeping requirements, and difficult for EPA and the states to
enforce a phase-out of recordkeeping. Therefore, we believe it is
appropriate to maintain consistency and retain records until the date
established by today's rule (or if the date is unchanged by this rule,
to the original date (i.e., until closure of the facility)). Therefore,
facilities may dispose of existing records consistent with today's
rule, once the retention date established by today's rule becomes
effective.
2. We Are Increasing the Retention Time for Certain Information Kept in
an Interim Status Facility's Operating Record
In response to comments received, EPA is amending Sec.
265.73(b)(6) and creating a new Sec. 265.73(b)(15) to require
retention in the operating record until closure of the facility, the
ground-water quality assessment plans required under Sec. 265.90 and
Sec. 265.93(d)(2), and ground-water quality assessment reports
required under Sec. 265.93(d)(5). Under today's rule, these plans are
no longer required to be submitted to the Regional Administrator.
Accordingly, EPA has decided that, in order to ensure protection of
health and the environment, these records need to be available and,
therefore, has amended the regulation to require that the information
be maintained in the operating record until closure of the facility.
EPA believes today's changes would result in no more burden to facility
owners or operators for storage, since it is likely that any report
submitted to the Agency would also be kept on-site by the facility. In
other words, there would be no increase in burden over what is already
being done.
3. We Are Establishing a Five-Year Record Retention Time for
Information Kept on the Operation of Incinerators, Boilers, and
Industrial Furnaces
Owners and/or operators of boilers and industrial furnaces (BIFs)
are subject to compliance-related recordkeeping regulations. For
example, BIFs must conduct emission tests to demonstrate compliance
with the RCRA emission standards (such as certification of compliance
tests), performance tests for their continuous emissions monitors, and
retain these test reports on-site until closure of the facility. As a
result of the emissions tests, BIFs also establish enforceable
operating limits that must be achieved on a daily basis (such as hourly
rolling average feed rate limits). BIFs are also required to record the
daily operating data in their operating record for compliance purposes
and make them available for inspection.
In the October 29, 2003 NODA (68 FR 61662), we solicited comment on
amending the current record retention requirement for incinerator
monitoring, testing and analytical data, from ``for the life of the
facility'' to three years. We took this action because we had
overlooked incinerators in the original proposal and maintain that
their record retention requirements should be consistent with those for
BIFs. This change for incinerators was supported by a majority of the
commenters; however, some pointed out that the recordkeeping
requirements for incinerators and BIFs should be consistent with those
that the Agency promulgated on October 12, 2005 (70 FR 59402) for
incinerators and the majority of BIFs under the Clean Air Act (CAA).\3\
---------------------------------------------------------------------------
\3\ The Clean Air Act requires the Agency to develop rules to
reduce Hazardous Air Pollutant emissions. The rules require the
application of strict air emission controls based on performance of
best technologies, the overall approach usually being referred to as
maximum achievable control technology, or MACT.
---------------------------------------------------------------------------
We agree with these commenters and have decided for reasons of
consistency with the CAA requirements, to finalize a five year record
retention time for incinerators and BIFs. We are also promulgating the
five year record retention time for BIFs (such as sulfur recovery
furnaces) that will not be subject to the recently promulgated MACT
standards.
One commenter that opposed any change to the record retention time
stated that incinerators should keep all their data points for the life
of the facility. The commenter asserted that the only information that
a state inspector has to use during a violation are the data on the
incinerator's parametric monitoring. They argued
[[Page 16866]]
that, in no case, should record retention be reduced if there are
outstanding enforcement, non-compliance or legal issues pending.
For reasons cited earlier, we believe that modifying the record
retention period for incinerators and BIFs to five years is
appropriate. Regarding the commenter's point that records should be
retained if there is an outstanding enforcement, non-compliance or
legal action pending, the regulations already provide for this and
nothing in today's rule would amend this provision. See Sec. Sec.
264.74 and 265.74 which state:
The record retention period for all records required under this
part is extended automatically during the course of any unresolved
enforcement action regarding the facility or as requested by the
Administrator.
The following tables show the new retention times by facility for
selected records. We have also included the recordkeeping requirements
found in: (1) Section 264.73, Operating record; (2) Section 264.347,
Monitoring and inspections; (3) Section 265.73, Operating record; (4)
Section 266.102(e)(10), Permit standards for burners; and (5) Section
266.103(d) and (k), Interim status standards for burners.
Table 2.--Revised Record Retention Times for Permitted Treatment,
Storage, and Disposal Facilities
------------------------------------------------------------------------
Current retention
time
---------------------
CFR section Record summary New retention time
as amended by the
burden reduction
rule
------------------------------------------------------------------------
264.73(b)(1)................ Description and Maintain until
quantity of each closure of the
hazardous waste facility.
received and the No change in
method(s) and regulatory
date(s) of its requirement.
treatment, storage
or disposal at the
facility.
264.73(b)(2)................ The location of each Maintain until
hazardous waste closure of the
within the facility facility.
and the quantity at No change in
each location. regulatory
requirement.
264.73(b)(3)................ Records and results Maintain until
of waste analyses closure of the
and waste facility.
determinations. Maintain for three
years.
264.73(b)(4)................ Summary reports and Maintain until
details of all closure of the
incidents that facility.
require Maintain for three
implementing the years.
contingency plan.
264.73(b)(5)................ Records and results Maintain for three
of inspections. years.
No change in
requirement.
264.73(b)(6)................ Monitoring, testing, Maintain until
or analytical data closure of the
corrective action. facility.
Maintain for three
years, except for
records and results
pertaining to
ground-water
monitoring and
cleanup, which must
be maintained until
closure of the
facility.
264.73(b)(7)................ For off-site Maintain until
facilities, notices closure of the
to generators as facility.
specified in Sec. Maintain for three
264.12(b). years.
264.73(b)(8)................ All closure cost Maintain until
estimates for closure of the
disposal facility.
facilities, all No change in
post-closure cost regulatory
estimates. requirement.
264.73(b)(9)................ Waste minimization Maintain until
certification. closure of the
facility.
Maintain for three
years.
264.73(b)(10)............... Records of the Maintain until
quantities and date closure of the
of placement for facility.
each shipment of No change in
hazardous waste regulatory
place in land requirement.
disposal units
under an extension
to the effective
date of any land
disposal
restriction granted.
264.73(b)(11)............... For off-site Maintain until
treatment facility, closure of the
notices and facility.
certifications from Maintain for three
generator. years.
264.73(b)(12)............... For on-site Maintain until
treatment facility, closure of the
notices and facility.
certifications. Maintain for three
years.
264.73(b)(13)............... For off-site land Maintain until
disposal facility, closure of the
notices and facility.
certifications from Maintain for three
generator. years.
264.73(b)(14)............... For on-site land Maintain until
disposal facility, closure of the
notices and facility.
certifications. Maintain for three
years.
264.73(b)(15)............... For off-site storage Maintain until
facility, notices closure of the
and certifications facility.
from generator. Maintain for three
years.
264.73(b)(16)............... For on-site storage Maintain until
facility, notices closure of the
and certifications. facility.
Maintain for three
years.
264.73(b)(17)............... Records required Maintain until
under Sec. closure of the
264.1(j)(13). facility.
Maintain for three
years.
264.73(b)(18)............... Monitoring, testing Maintain until
or analytical data closure of the
where required by facility.
Sec. 264.347. Maintain for five
years.
264.73(b)(19)............... Certification as No specified
required by Sec. requirement.
264.196(f). Maintain until
closure of the
facility.
264.347(d).................. For incinerators: Maintain until
monitoring and closure of the
inspection data. facility.
Maintain for five
years.
266.102(e)(10).............. For burners: Maintain until
recordkeeping. closure of the
facility.
Maintain for five
years.
------------------------------------------------------------------------
[[Page 16867]]
Table 3.--Revised Record Retention Times for Interim Status Treatment,
Storage, and Disposal Facilities
------------------------------------------------------------------------
Current retention
time
----------------------
CFR section Summary record New retention time as
amended by the burden
reduction rule
------------------------------------------------------------------------
265.73(b)(1).................. Description and Maintain until
quantity of each closure of the
hazardous waste facility.
received and the No change in
method(s) and regulatory
date(s) of its requirement.
treatment,
storage or
disposal at the
facility.
265.73(b)(2).................. The location of Maintain until
each hazardous closure of the
waste within the facility.
facility and the No change in
quantity at each regulatory
location. requirement.
265.73(b)(3).................. Records and Maintain until
results of waste closure of the
analyses and facility.
waste Maintain for three
determinations. years.
265.73(b)(4).................. Summary reports Maintain until
and details of closure of the
all incidents facility.
that require Maintain for three
implementing the years.
contingency plan.
265.73(b)(5).................. Records and Maintain for three
results of years.
inspections. No change in
regulatory
requirement.
265.73(b)(6).................. Monitoring, Maintain until
testing, or closure of the
analytical data facility.
and corrective Maintain for three
action. years, except for
records and results
pertaining to ground-
water monitoring and
cleanup, and
response action
plans for surface
impoundments, waste
piles, and landfills
which must be
maintained until
closure of the
facility.
265.73(b)(7).................. All closure cost Maintain until
estimates for closure of the
disposal facility.
facilities, all No change in
post-closure regulatory
cost estimates. requirement.
265.73(b)(8).................. Records of the Maintain until
quantities and closure of the
date of facility.
placement for No change in
each shipment of regulatory
the hazardous requirement.
waste place in
land disposal
units under an
extension to the
effective date
of any land
disposal
restriction
granted.
265.73(b)(9).................. For off-site Maintain until
treatment closure of the
facility, facility.
notices and Maintain for three
certifications years.
from generator.
265.73(b)(10)................. For on-site Maintain until
treatment closure of the
facility, facility.
notices and Maintain for three
certifications. years.
265.73(b)(11)................. For off-site land Maintain until
disposal closure of the
facility, facility.
notices and Maintain for three
certifications years.
from the
generator.
265.73(b)(12)................. For on-site land Maintain until
disposal closure of the
facility, facility.
notices and Maintain for three
certifications. years.
265.73(b)(13)................. For off-site Maintain until
storage closure of the
facility, facility.
notices and Maintain for three
certifications years.
from generator.
265.73(b)(14)................. For on-site Maintain until
storage closure of the
facility, facility.
notices and Maintain for three
certifications. years.
265.73(b)(15)................. Monitoring, Maintain until
testing, or closure of the
analytical data, facility.
and corrective No change in
action where regulatory
required by Sec. requirement.
Sec. 265.90,
265.93(d)(2),
and 265.93(d)(5)
of this part and
certifications
as required by
Sec.
265.196(f).
266.103(d).................... Periodic Every three years.
Recertifications Every five years.
. The owner or
operator must
conduct
compliance
testing and
submit to the
Director a
recertification
of compliance
under provisions
of paragraph (c)
of this section
within five
years from
submitting the
previous
certification or
recertification.
If the owner or
operator seeks
to recertify
compliance under
new operating
conditions, he/
she must comply
with the
requirements of
paragraph (c)(8)
of this section.
266.103(k).................... Interim status Maintain until
standards for closure of the
burners: facility.
recordkeeping. Maintain for five
years.
------------------------------------------------------------------------
B. Changes to the Professional Engineer Certification Requirements
Throughout the RCRA regulations, there are various requirements for
the services of an independent, qualified, registered, professional
engineer to certify the effectiveness of the design and operation of
various hazardous waste management units. We proposed to add Certified
Hazardous Materials Managers (CHMMs) as professionals qualified to make
selected certifications. This proposed change was a result of comments
received on our June 18, 1999 NODA (64 FR 32859). In response to this
proposal, the Agency received significant comment, primarily requesting
that we expand the category of persons allowed to provide the various
certifications. Commenters argued that we were being arbitrary in
proposing to allow only two professional disciplines (i.e., CHMMs and
professional engineers) to certify hazardous waste management
operations. Conversely, professional engineers strongly opposed the
proposed change in the regulatory requirements. They suggested that
[[Page 16868]]
CHMMs were not qualified to certify the design, construction, and
structural integrity of hazardous waste management units.
In addition, numerous states opposed the change on the grounds that
their state laws allow only licensed engineers to make these
certifications. State comments also pointed out that state licensing
boards can investigate complaints of negligence or incompetence, on the
part of professional engineers, and may impose fines and other
disciplinary actions such as cease-and-desist orders or license
revocation. According to commenters, similar controls do not exist for
other professions. This personal liability of the professional engineer
is one of the reasons why state commenters supported the idea that RCRA
certifications should only be done by licensed professional engineers.
Other commenters suggested that, rather than deciding which
professions are qualified to make certifications, we should establish
an environmental professional performance standard based on membership
in a recognized professional organization. In response to these
comments, we solicited comment in our October 29, 2003 NODA to allow
professionals accredited by organizations meeting the American Society
for Testing and Materials (ASTM) E1929-98, Standard Practice for the
Assessment of Certification Programs for Environmental Engineers:
Accreditation Criteria to conduct a limited number of certifications,
including: (1) Section 264.573(a)(4)(ii)(g), Drip Pads, Design and
operating requirements; (2) Section 265.443(a)(4)(ii)(g), Drip Pads,
Design and operating requirements; (3) Section 264.574(a), Drip Pads,
Inspections; (4) Section 265.444(a), Drip Pads, Inspections; and (5)
Section 266.111(e)(2), Boilers and Industrial Furnaces, Direct transfer
equipment--requirements prior to meeting secondary containment
requirements.\4\
---------------------------------------------------------------------------
\4\ After publication of the October 29, 2003 NODA, (see 68 FR
61662), EPA determined that the certification required by Sec.
266.111(e)(2) had to be made by August 21, 1992. As such the Agency
is not pursuing a change to this requirement in today's rulemaking,
obviously because the date has passed.
---------------------------------------------------------------------------
Comments to the change described in the NODA were mixed. Some
commenters supported this change in qualifications for selected
certifications, while a number of states and professional organizations
still strongly opposed allowing anyone other than a professional
engineer to perform these certifications. While the Agency believes
that added flexibility to the RCRA regulations is a goal worth
pursuing, in this case, we are persuaded by the arguments presented by
states with regard to these certifications and are not going forward
with these changes at this time. Certifications for drip pads involve
certifying engineering designs, drawings, plans and other engineering
details, involving structural and hydraulic and other functions. As
such, we believe that while there may be professionals other than
professional engineers qualified to make these certifications, it is
imperative that the goals of human health and the environmental
protection are maintained. In reviewing the comments, we are not
convinced that all environmental professionals certified by the ASTM
standard would be qualified to perform these engineering evaluations.
To this end, we are not going forward with allowing the changes to the
drip pad certification requirements that would allow environmental
professionals recognized by a certification program that is compliant
with ASTM E-1929-98 Standard Practice for the Assessment of
Certification Programs for Environmental Professionals: Accreditation
Criteria.
Although the Agency was not persuaded that ASTM board certified
environmental professionals, including CHMMs, should be allowed to make
the required RCRA certifications that were the subject of this
rulemaking, the Agency wants to make it clear that facilities are still
permitted to utilize qualified professionals who may not be
professional engineers in performing the analyses that underlie these
certifications. Facilities can potentially lower their costs by
utilizing the flexibility to employ others as part of the certification
requirement. For example, as part of the closure and post closure
requirements, some CHMMs may be qualified to make certain
determinations associated with these certifications to determine
whether operations at the site will minimize hazards.
The Agency is sympathetic to the large number of comments by the
CHMMs and other environmental professionals about unnecessary
restrictions in the marketplace. However, EPA is retaining the
professional engineering certification, in part, to allay state
concerns about the need to monitor and control the activities of
personnel that are now subject to state licensure control. Given,
however, additional experience by the Agency with the utilization of
other environmental professionals, EPA may re-examine this issue in the
future.\5\
---------------------------------------------------------------------------
\5\ For example, in the All Appropriate Inquiries (AAI) rule
published on November 1, 2005, (70 CFR 66070) EPA sets standards for
CERCLA liability protection by establishing criteria that
prospective property owners must use in the inquiries they conduct
into the previous ownership, uses, and environmental conditions of a
property prior to acquiring the property. The AAI rule differs from
the RCRA burden reduction rule in that AAI does not in any way
require the environmental professional to render any judgment or
opinion regarding RCRA or CERCLA compliance or liability. AAI
requirements include research activities and a site investigation
similar to a Phase I environmental site assessment. It does not
include compliance evaluation or an assessment of engineering or
technical requirements (which may inherently require the expertise
of an engineer or geologist).
---------------------------------------------------------------------------
1. We Are Removing the ``Independent'' and ``Registered'' Requirements
for Selected Certifications
Some commenters to the proposed rule suggested that we change the
certification requirements by amending the qualifications required for
the certification from ``independent, qualified, registered,
professional engineer'' to ``qualified professional engineer.'' That
is, the commenters suggested it was not necessary for the professional
engineer to be independent or registered. Commenters argued that the
term ``qualified professional engineer'' retains the most important
components of the requirement: (1) That the engineer be qualified to
perform the task; and (2) that she or he be a professional engineer
(following a code of ethics and the potential of losing his/her license
for negligence).
In the October 29, 2003 NODA (68 FR 61662), EPA also solicited
comment on changing the qualifications for who can certify the design,
operation and closure of specific hazardous waste management units from
``independent, qualified, registered, professional engineer'' to
``qualified professional engineer.'' We solicited comment on
eliminating the requirement that the certifier be ``independent,''
reasoning that we could rely on the professional standards of the
certifier to ensure accurate certifications. This could potentially
save expenses for companies with in-house engineers, since they would
not have to hire outside consultants. State commenters strongly argued
that the word ``independent'' should be retained because an independent
review and certification avoids any potential of conflict of interest.
Commenters stated that an employee of a facility would more likely have
a biased approach to review and certification, and that state agencies
would have less confidence in the accuracy and quality of review and
[[Page 16869]]
certification. Furthermore, the commenters argued that the public would
have reduced confidence in the accuracy and meaning of the engineering
review and certification if it was conducted by an employee of the
facility. The public would more likely suspect a conflict of interest
and demand a more rigorous review by state agencies. Commenters also
noted that a similar change, regarding whether to retain the term
``independent'' for professional engineers certifying closure, was
proposed by EPA on March 19, 1985 (50 FR 11074). After receiving public
comment, a final rule was issued on May 2,1986 with the term
``independent'' retained. In the preamble to the May 2, 1986 final
rule, we stated that, because certification of final closure is the
final step in the closure process and triggers the release of the owner
or operator from financial responsibility requirements for closure and
third party liability coverage requirements, we believed that the
certification should be made by a person who is least subject to
pressures to certify to the adequacy of a closure that, in fact, is not
in accordance with the approved closure plan. Commenters also noted
that in the October 9, 1991 Federal Register, EPA addressed concerns
regarding proposed language that would have allowed a ``qualified
party'' to perform closure and post closure certification. In that FR
notice, we stated on page 51103:
The Agency agrees with commenters that objective closure and
post-closure certifications are essential for avoiding any potential
conflicts of interest and ensuring protection of human health and
the environment and that more specific requirements concerning the
qualification of the certifying party are necessary to ensure the
adequacy of the certification. We, therefore, are requiring in this
final rule that certifications be obtained from independent,
registered, professional engineers (i.e., registered professional
engineers not in the employ of the owner or operator), consistent
with requirements under subtitle C and other federally mandated
certification programs (e.g., Clean Water Act grants).
Upon further analysis and reflection, we have decided to delete the
independent qualification for certification made by a professional
engineer. EPA continues to believe that this proposed modification
retains the most important requirements: That the engineer is qualified
to perform the task and is a professional engineer (i.e., licensed to
practice engineering under the title Professional Engineer.) We believe
that a professional engineer, regardless of whether he/she is
independent is able to give fair and technical review because of the
programs established by the state licensing boards. It is not clear to
us that an in-house engineer faces a greater economic temptation than
an independent engineer seeking to cultivate an ongoing relationship
with a client. This is a central mission of state licensing boards. If
certifications are provided when the facts do not warrant
certification, the professional engineer is subject to penalties,
including the loss of license and the possibility of fines.
Furthermore, we are convinced that the change to the certification
requirements will allow facilities to reduce burden without
compromising environmental safety by using in-house expertise.
Professional engineers employed by a facility are more familiar with
its own particular situation and are in a position to provide more on-
site review and oversight of the activity being certified.
We also solicited comment on removing the term ``registered,''
explaining that based on our understanding of the term ``registered''
(one who is licensed by a state) the terms ``registered,'' ``licensed''
and ``professional'' mean the same thing in the case of certifying the
design, operation and closure of hazardous waste management units.
Thus, using the terms ``registered'' and ``professional'' when defining
the qualification of an engineer, in this context, is redundant. While
the majority of the comments supported the change, agreeing that the
term ``registered'' appears to be redundant and could be removed,
several commenters were opposed to making the change. These commenters
argued that the word ``registered'' is necessary to prevent confusion
in the field, particularly among generators, that a license or
registration is required. The Agency is unconvinced by this argument
and maintains that the use of ``registered'' and ``professional'' as
qualifications for engineers making these certifications is redundant
and should be simplified.
As a final matter, we unintentionally failed to identify eight
additional certification requirements that are part of this regulatory
change, i.e., each contains one or a combination of the terms:
independent, registered and/or professional when describing the
qualifications of the engineer. These certifications include: (1)
Section 264.193(h)(4)(i)(2), Tank Systems, Containment and detection of
releases; (2) Section 265.193(h)(5)(i)(2), Tank Systems, Containment
and detection of releases; (3) Section 264.554(c)(2), Staging Piles;
(4) Section 264.1101(c)(2), Containment Buildings, Design and operating
standards; (5) Section 265.1101(c)(2), Containment Buildings, Design
and operating standards; (6) Section 270.14(a), Permit Application,
Content of part B. General requirements; (7) Section 270.17(d) Permit
Application, Specific part B information requirements for surface
impoundments; and (8) Section 270.26(c)(15), Permit Application,
Special part B information requirements for drip pads. EPA believes
today's changes provide consistency to the certification requirements,
i.e., removing the terms independent and registered. As such, we are
finalizing these eight additional certification changes.
2. We Are Also Changing the Closure and Post-Closure Certification
Requirements
In the October 29, 2003 NODA (68 FR 61662), we also solicited
comment on amending the qualifications for selected closure and post-
closure certifications to ``qualified professional engineer.'' These
certifications included: (1) Section 264.115, Closure and Post-Closure,
Certification of closure; (2) Section 265.115, Closure and Post-
Closure, Certification of closure; (3) Section 264.120, Closure and
Post-Closure, Certification of completion of post-closure care; (4)
Section 265.120, Closure and Post-Closure, Certification of completion
of post-closure care; and (5) Section 264.280(b), Land Treatment,
Closure and post-closure care.
During the development of today's final rule, we discovered that we
incorrectly stated the required qualifications for engineers providing
the closure and post-closure certifications, and we failed to identify
one additional certification, Sec. 265.280(e) Land Treatment, Closure
and post-closure care, and six cross-reference citations to the
original closure and post-closure certifications. These cross-
references are: (1) Section 264.143(i), Financial Assurance for
Closure, Release of the owner or operator from the requirements of this
section; (2) Section 265.143(h), Financial Assurance for Closure,
Release of the owner or operator from the requirements of this section;
(3) Section 264.145(i), Financial Assurance for Post-Closure, Release
of the owner or operator from the requirements of this section; (4)
Section 265.145(h), Financial Assurance for Post-Closure, Release of
the owner or operator from the requirements of this section; (5)
Section 264.147(e), Liability Requirements, Period of coverage; and (6)
Section 265.147(e), Liability Requirements, Period of coverage.
We incorrectly stated, in both the proposed rule and the October
29, 2003
[[Page 16870]]
NODA (68 FR 61662), the regulatory requirements for these
certifications. In both these notices, we stated that the regulatory
language for closure and post-closure certifications require an
``independent, qualified, registered, professional engineer'' to make
the certifications. This is incorrect. The regulatory language for
these certifications does not include the word ``qualified;'' the
certifications language states that the certification must be made by
an ``independent, registered, professional engineer.'' Hence our
proposed regulatory change to ``qualified professional engineer'' for
these certifications was inaccurate and inconsistent with our other
proposed certification requirements. In our view, this error was minor
and does not change our position regarding the redundancy of using both
``registered'' and ``professional,'' when defining the necessary
certification qualifications. This error also does not change our
position that all certifications should be conducted by a ``qualified
professional engineer'' i.e., one that is qualified to perform the task
and is a professional engineer (licensed/registered by the state and
following a code of ethics and the potential of losing his/her license
for negligence). As such, we are today amending all the closure and
post-closure certification requirements to require qualified
professional engineers to certify closure and post-closure.
Tables 4 and 5 identify the certifications that we are amending in
today's rule for permitted and interim status treatment, storage and
disposal facilities as needing a qualified (as in ``qualified to
perform the task'') professional engineer.\6\
---------------------------------------------------------------------------
\6\ In Sec. Sec. 264.192(b) and 265.192(b), certifications may
also be done by an independent, qualified installation inspector.
Similarly, in Sec. 264.280(b), this certification may be done by an
independent, qualified soil scientist, in lieu of a qualified
professional engineer.
Table 4.--Permitted Treatment, Storage, and Disposal Facilities Needing
RCRA Certifications by a Qualified Professional Engineer
------------------------------------------------------------------------
New RCRA certification requirement
CFR section (i.e., dropping ``registered'')
------------------------------------------------------------------------
264.115...................... Closure and Post-Closure. Certification
of closure.
264.120...................... Closure and Post-Closure. Certification
of completion of post-closure care.
264.143(i)................... Financial Assurance for Closure. Release
of the owner or operator from the
requirements of this section.
264.145(i)................... Financial Assurance for Post-Closure.
Release of the owner or operator from
the requirements of this section.
264.147(e)................... Liability Requirements. Period of
coverage.
264.191(a), (b)(5)(ii)....... Tank Systems. Assessment of existing tank
system's integrity.
264.192(a), (b).............. Tank Systems. Design and installation of
new tank systems or components.
264.193(h)(4)(i)(2).......... Tank Systems. Containment and detection
of releases.
264.196(f)................... Tank systems. Response to leaks or spills
and disposition of leaking or unfit-for-
use tank systems.
264.280(b)................... Land Treatment. Closure and post closure
care.
264.554(c)(2)................ Staging Piles.
264.571(a),(b),(c)........... Drip Pads. Assessment of existing drip
pad integrity.
264.573(a)(4)(ii)............ Drip Pads. Design and Operating
Requirements.
264.573(g)................... Drip Pads. Design and Operating
Requirements.
264.574(a)................... Drip Pads. Inspections.
264.1101(c)(2)............... Containment Buildings. Design and
operating standards.
270.14(a).................... Permit Application. Content of part B.
General requirements.
270.16(a).................... Permit Application. Specific part B
information requirements for tank
systems.
270.26(c)(15)................ Permit Application. Specific part B
information requirements for drip pads.
------------------------------------------------------------------------
Table 5.--Interim Status Treatment, Storage and Disposal Facilities
Needing RCRA Certifications by a Qualified Professional Engineer
------------------------------------------------------------------------
New RCRA certification requirement
CFR section (i.e., dropping ``registered'')
------------------------------------------------------------------------
265.115...................... Closure and Post-Closure. Certification
of closure.
265.120...................... Closure and Post-Closure. Certification
of completion of post-closure care.
265.143(h)................... Financial Assurance for Closure. Release
of the owner or operator from the
requirements of this section.
265.145(h)................... Financial Assurance for Post-Closure.
Release of the owner or operator from
the requirements of this section.
265.147(e)................... Liability Requirements. Period of
coverage.
265.191(a), (b)(5)(ii)....... Tank Systems. Assessment of existing tank
system's integrity.
265.192(a), (b).............. Tank Systems. Design and installation of
new tank systems or components.
265.193(h)(5)(i)(2).......... Tank Systems. Containment and detection
of releases.
265.196(f)................... Tank Systems. Response to leaks or spills
and disposition of leaking or unfit-for-
use tank systems.
265.280(e)................... Land Treatment. Closure and post closure
care.
265.441(a), (b),(c).......... Drip Pads. Assessment of existing drip
pad integrity.
265.443(a)(4)(ii)............ Drip Pads. Design and Operating
Requirements.
265.443(g)................... Drip Pads. Design and Operating
Requirements.
265.444(a)................... Drip Pads. Inspections.
265.1101(c)(2)............... Containment Buildings. Design and
operating standards.
270.14(a).................... Permit Application. Content of part B.
General requirements.
270.16(a).................... Permit Application. Specific part B
information requirements for tank
systems.
270.26(c)(15)................ Permit Application. Special part B
information requirements for drip pads.
------------------------------------------------------------------------
[[Page 16871]]
C. Owners and Operators of Hazardous Waste Treatment, Storage, and
Disposal Facilities Have an Option of Following the Integrated
Contingency Plan Guidance
We are amending Sec. Sec. 264.52(b) and 265.52(b) of the RCRA
regulations to provide owners and operators of hazardous waste
treatment, storage, and disposal facilities the option of developing
one contingency plan. EPA recommends that the plan be based on the
integrated contingency plan guidance.\7\ This guidance provides an
excellent set of considerations for consolidating the multiple
contingency plans that facilities have to prepare to comply with
various government regulations. The use of a single plan per facility
will eliminate the confusion for facilities that must decide which of
the contingency plans is applicable to a particular emergency. In
addition, a single plan will provide ``first responders'' (e.g.,
firemen) with a mechanism for complying with multiple regulatory
requirements. The adoption of a standard plan should ease the burden of
coordination with local emergency planning committees.
---------------------------------------------------------------------------
\7\ In 1996, EPA, in conjunction with the Department of
Transportation, the Department of the Interior, and the Department
of Labor, issued the Integrated Contingency Plan Guidance. This
guidance provides a mechanism for consolidating the multiple
contingency plans that facilities have to prepare to comply with
various government regulations. Owners and operators of hazardous
waste facilities can develop one contingency plan based on this
Guidance. The Integrated Contingency Plan can be found at 61 FR
28641, June 5, 1996 or on the Internet at http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/serc-lepc-publications.htm.
---------------------------------------------------------------------------
Today's rule clarifies our regulations (see Sec. Sec. 264.52 and
265.52) by specifically authorizing combined plans, as well as
clarifying that when modifications are made to non-RCRA provisions in
an integrated contingency plan, the changes do not trigger the need for
a RCRA permit modification.
D. Owners and Operators of Hazardous Waste Treatment, Storage, and
Disposal Facilities Have an Option To Follow the RCRA or the
Occupational Safety and Health Administration (OSHA) Standards for
Emergency Response Training
We are revising Sec. Sec. 264.16 and 265.16 to eliminate redundant
emergency response training requirements under OSHA and RCRA
regulations while still ensuring protectiveness.
EPA and the Occupational Safety and Health Administration (OSHA)
have both promulgated regulations addressing worker activities and
training at hazardous waste management facilities. While EPA's
hazardous waste regulations focus on facility operations, worker
training, OSHA focuses on worker safety. Both agencies require worker
training.
While we were conducting our own review of potential overlaps
between EPA and OSHA regulations, the Government Accountability Office
\8\ published in October 2000 a study on the issue. GAO suggested that
the overlap in emergency training requirements diminishes the
efficiency of the facility and creates unnecessary compliance costs.
The GAO study pointed out that OSHA's regulations have specific
training requirements for RCRA-permitted facilities to teach hazardous
waste workers how to respond to emergencies under 29 CFR 1910.120(p).
With the support of the GAO findings, EPA proposed to eliminate the
RCRA emergency response training requirements in favor of the OSHA
requirements.
---------------------------------------------------------------------------
\8\ Formerly the United States General Accounting Office.
---------------------------------------------------------------------------
While we received comments in support of the proposal, other
commenters expressed particular concern that two of the RCRA emergency
response training requirements are not covered in OSHA's requirements.
(1) understanding key parameters for automatic waste feed cut-off
systems; and (2) how to respond to ground-water contamination
incidents. These commenters believe that the deletion of these two
requirements would endanger the environment and human health in the
area of RCRA facilities, in that adhering only to the OSHA requirements
would mean that workers would not be trained in these areas.
This, however, is not EPA's intention. The final rule has been
written to ensure that RCRA facilities are not required to provide
separate training. We also note that facilities exempted from RCRA
emergency response training would still have to comply with Sec. Sec.
264.16(a)(1) and 265.16(a)(1), which state: ``Facility personnel must
successfully complete a program of classroom instruction or on-the-job-
training that teaches them to perform their duties in a way that
ensures the facility's compliance with the requirements of this part.''
OSHA's 29 CFR 1910.120 regulations require that employees
understand and be able to perform the standard operating procedures
that are part of their daily work. OSHA's 29 CFR 1910.38 Emergency
Action Plan requirements include mandated training in procedures to be
followed by employees who operate critical plant operations (such as
responding to ground-water contamination incidents) during a spill or
other emergency.
Other commenters opposed the proposal because OSHA's 29 CFR 1910
requirements are not as comprehensive as the RCRA requirements
regarding the universe of facilities. Specifically, they stated that
OSHA's regulations are not required for all hazardous waste generators
(e.g., conditionally exempt small quantity generators under Sec. 261.5
and small quantity generators under Sec. 262.34) and certain
treatment, storage, disposal facilities (e.g., municipal, state and
federal owned and operated facilities.) We agree, and facilities not
subject to OSHA training requirements would have to comply with the
RCRA training requirements.
To ensure that all facilities are covered and that there are no
gaps in the emergency response training requirements, we are providing
flexibility by allowing facilities to eliminate redundant emergency
response training requirements under RCRA and OSHA requirements (as
opposed to the proposed rule's approach of requiring facilities to
follow only the OSHA regulations). For example, if a facility can meet
all of the RCRA emergency response training requirements through an
OSHA training course, we would consider the facility in compliance with
the regulation. On the other hand, if a facility cannot meet the
emergency response training requirements through an OSHA training
course, then it would be incumbent upon that facility to address any
gaps (for example, if OSHA did not include automatic waste feed cut-off
training, there would not be a problem as long as appropriate training
occurs, such as combustor staff receives this training as part of its
RCRA training.) Facilities not subject to OSHA training requirements
would have to comply with the RCRA training requirements. We believe
that this is a reasonable accommodation for all facilities.
Generators and owners/operators of treatment, storage, and disposal
facilities should work with the appropriate permitting and/or
enforcement authority to ensure that the approach they take in
developing an emergency response training program is in compliance with
the requirements of Sec. Sec. 264.16 and 265.16.
[[Page 16872]]
E. We Are Clarifying Selected Requirements Under RCRA's Land Disposal
Restrictions and Eliminating Obsolete Regulatory Language
1. We Are Clarifying the Regulatory Language on the Land Disposal
Restrictions Generator Waste Determination
We proposed eliminating Sec. 268.7(a)(1) that requires, among
other things, that generators conduct a waste determination for
purposes of complying with the Land Disposal Restrictions (LDRs).
Section 268.7(a)(1) requires generators to determine if hazardous waste
must be treated prior to land disposal. This determination can be made
either through testing or using the generator's knowledge of the
waste's properties and constituents. We suggested that a combination of
two other requirements provided the same safeguards as Sec.
268.7(a)(1), making it redundant. First, a determination of whether a
waste is hazardous is required by 40 CFR 262.11, which says that
generators of solid waste must determine whether a waste is hazardous.
Second, Sec. 264.13(a)(1) requires treatment, storage, and disposal
facilities (TSDFs) to perform a general waste analysis to determine
``all of the information which must be known to treat, store, or
dispose of the waste in accordance with this Part and Part 268 of this
chapter''. We suggested that these other determinations are sufficient
to assure that a waste is properly characterized for achieving
compliance with the LDRs.
Some commenters supported deleting this waste analysis requirement,
stating, generally, that they supported the Agency's efforts to reduce
redundant testing requirements. We agree with these comments with
respect to reducing redundant testing requirements and are adding a
cross reference in Sec. 268.7(a)(1) to Sec. 262.11, in order to
clarify that these two generator waste analysis functions can be
performed concurrently, thus avoiding redundant waste analysis.
Commenters who opposed deleting the generator LDR waste analysis
requirement, however, were persuasive in their argument that the
deletion of Sec. 268.7(a)(1) would not really result in burden
reduction. Rather, it would merely shift the burden from the generator
to the TSDF. While TSDFs have a separate LDR waste analysis requirement
under Sec. 264.13(a)(1), they often rely--at least in part--on
determinations or information provided by the generator.
Commenters further asserted that if TSDFs have to assume full
responsibility for the LDR waste analysis requirement, it would be more
expensive overall, because generators can use their knowledge of the
waste in determining how LDRs apply to a waste, while the TSDF would
not have that background and would have to perform much more extensive
waste analysis.
We agree with these comments, and have determined that we need to
maintain the LDR generator waste analysis requirement of Sec.
268.7(a)(1). Thus, today's rule, rather than eliminating paragraph
Sec. 268.7(a)(1), amends paragraph Sec. 268.7(a)(1), to avoid
duplication and clarify that the two generator waste analysis functions
can be performed concurrently. However, in order to provide maximum
flexibility to generators, we also are clarifying that if a generator
does not want to determine, based on waste analysis or knowledge of the
waste, whether the waste must be treated, he may assume that he is
subject to the full array of LDR requirements. The generator then must
send the waste to a RCRA-permitted hazardous waste treatment facility
where the treatment facility must make the determination when the waste
has met the treatment standards of LDR (possibly even upon receipt as
generated.) A conforming change is also being made to the notification
in Sec. 268.7(a)(2) for such cases.
2. We Are Clarifying the Regulatory Language on the Land Disposal
Restrictions Characteristic Waste Determination Requirement
We proposed to eliminate the separate waste analysis requirement
(Sec. 268.9(a)) for generators of characteristic hazardous wastes
under the land disposal restrictions, in order to parallel the proposed
changes to Sec. 268.7(a)(1) that are discussed above.
Some commenters supported deleting this waste analysis requirement,
stating, generally, that they supported the Agency's efforts to reduce
redundant testing requirements. We agree with these comments with
respect to reducing redundant testing requirements and are adding a
cross reference in Sec. 268.9(a) to Sec. 262.11, in order to clarify
that these two generator waste analysis functions can be performed
concurrently, thus avoiding redundant waste analysis.
Commenters who opposed deleting the generator LDR waste analysis
requirement, however, were persuasive in their argument that the
deletion of Sec. 268.9(a) would not really result in burden reduction.
Rather, it would merely shift the burden from the generator to the
TSDF. While TSDFs have a separate LDR waste analysis requirement under
Sec. 264.13(a)(1), they often rely--at least in part--on
determinations or information provided by the generator. Commenters
further asserted that if TSDFs have to assume full responsibility for
the LDR waste analysis requirement, it would be more expensive overall,
because generators can use their knowledge of the waste in determining
how LDRs apply to a waste, while the TSDF would not have that
background and would have to perform much more extensive waste
analysis. We agree with these comments, and have determined that we
need to maintain the LDR generator waste analysis requirement of Sec.
268.9(a). Thus, today's rule, rather than eliminating paragraph Sec.
268.9(a), amends paragraph Sec. 268.9(a), to avoid duplication and
clarify that the two generator waste analysis functions can be
performed concurrently.
3. We Are Removing Obsolete Regulatory Language
We are deleting seventeen RCRA requirements because they are no
longer applicable or have an expiration date that has passed. Except as
noted below, we received no negative comments on these proposed
changes.
In the proposed rule, we suggested amending Sec. Sec. 264.193(a)
and 265.193(a), arguing that the language was obsolete. However, the
proposal inadvertently deleted paragraphs (1) and (5) of Sec. Sec.
264.193(a) and 265.193(a). These paragraphs specify what tanks are
required to have secondary containment, and in the case of tanks
managing newly regulated waste, how soon secondary containment must be
provided. We are correcting this mistake by finalizing the deletion of
only Sec. Sec. 264.193 (a)(2),(3), and (4) and 265.193(a)(2), (3), and
(4) and clarifying the requirements in Sec. Sec. 264.193(a)(5) and
265.193(a)(5). Tables 6, 7, and 8 summarize the changes being finalized
today.
[[Page 16873]]
Table 6.--Regulatory Clarification Being Made for Land Disposal
Restrictions Testing, Tracking, and Recordkeeping Requirements for
Generators, Treaters, and Disposal Facilities
------------------------------------------------------------------------
Current regulatory language
------------------------------------------
CFR section New regulatory language as amended by the
Burden Reduction Rule
------------------------------------------------------------------------
268.7(a)(1).................. (a) Requirements for generators: (1) A
generator of hazardous waste must
determine if the waste has to be treated
before it can be land disposed. This is
done by determining if the hazardous
waste meets the treatment standards in
Sec. 268.40, Sec. 268.45, or Sec.
268.49. This determination can be made
in either of two ways: testing the waste
or using knowledge of the waste. If the
generator tests the waste, testing would
normally determine the total
concentration of hazardous constituents,
or the concentration of hazardous
constituents in an extract of the waste
obtained using test method 1311 in
``Test Methods of Evaluating Solid
Waste, Physical/Chemical Methods,'' EPA
Publication SW-846, as referenced in
Sec. 260.11 of this chapter, depending
on whether the treatment standard for
the waste is expressed as a total
concentration or concentration of
hazardous constituent in the waste's
extract. In addition, some hazardous
wastes must be treated by particular
treatment methods before they can be
land disposed and some soils are
contaminated by such hazardous wastes.
These treatment standards are also found
in Sec. 268.40, and are described in
detail in Sec. 268.42, Table 1. These
wastes, and solids contaminated with
such wastes, do not need to be tested
(however, if they are in a waste
mixture, other wastes with concentration
level treatment standards would have to
be tested). If a generator determines
they are managing a waste or soil
contamination with a waste, that
displays a hazardous characteristic of
ignitability, corrosivity, reactivity,
or toxicity, they must comply with the
special requirements of Sec. 268.9 of
this part in addition to any applicable
requirements in this section.
(a) Requirements for generators: (1) A
generator of hazardous waste must
determine if the waste has to be treated
before it can be land disposed. This is
done by determining if the hazardous
waste meets the treatment standards in
Sec. 268.40, Sec. 268.45, or Sec.
268.49. This determination can be made
concurrently with the hazardous waste
determination required in Sec. 262.11
of this chapter, in either of two ways:
testing the waste or using knowledge of
the waste. If the generator tests the
waste, testing would normally determine
the total concentration of hazardous
constituents, or the concentration of
hazardous constituents in an extract of
the waste obtained using test method
1311 in ``Test Methods of Evaluating
Solid Waste, Physical/Chemical
Methods,'' EPA Publication SW-846,
incorporated by reference (see Sec.
260.11 of this chapter), depending on
whether the treatment standard for the
waste is expressed as a total
concentration or concentration of
hazardous constituent in the waste's
extract. (Alternatively, the generator
must send the waste to a RCRA-permitted
hazardous waste treatment facility,
where the waste treatment facility must
comply with the requirements of Sec.
264.13 of this chapter and Sec.
268.7(b) of this part.) In addition,
some hazardous wastes must be treated by
particular treatment methods before they
can be land disposed and some soils are
contaminated by such hazardous wastes.
These treatment standards are also found
in Sec. 268.40, and are described in
detail in Sec. 268.42, Table 1. These
wastes, and solids contaminated with
such wastes, do not need to be tested
(however, if they are in a waste
mixture, other wastes with concentration
level treatment standards would have to
be tested). If a generator determines
they are managing a waste or soil with a
waste, that displays a hazardous
characteristic of ignitability,
corrosivity, reactivity, or toxicity,
they must comply with the special
requirements of Sec. 268.9 of this
part in addition to any applicable
requirements in this section.
268.7(a)(2).................. If the waste or contaminated soil does
not meet the treatment standards: With
the initial shipment of waste to each
treatment or storage facility, the
generator must send a one-time written
notice to each treatment or storage
facility receiving the waste, and place
a copy in the file. The notice must
include the information in column
``268.7(a)(2)'' of the Generator
Paperwork Requirements Table in
268.7(a)(4). No further notification is
necessary until such time that the waste
or facility change, in which case a new
notification must be sent and a copy
placed in the generator's file.
If the waste or contaminated soil does
not meet the treatment standards, or if
the generator chooses not to make the
determination of whether his waste must
be treated, with the initial shipment of
waste to each treatment or storage
facility, the generator must send a one-
time written notice to each treatment or
storage facility receiving the waste,
and place a copy in the file. The notice
must include the information in column
``268.7(a)(2)'' of the Generator
Paperwork Requirements Table in
268.7(a)(4). (Alternatively, if the
generator chooses not to make the
determination of whether the waste must
be treated, the notification must
include the EPA Hazardous Waste Numbers
and Manifest Number of the first
shipment and must state ``This hazardous
waste may or may not be subject to the
LDR treatment standards. The treatment
facility must make the determination.'')
No further notification is necessary
until such time that the waste or
facility change, in which case a new
notification must be sent and a copy
placed in the generator's file.
268.9(a)..................... (a) The initial generator of a solid
waste must determine each EPA Hazardous
Waste Number (waste code) applicable to
the waste in order to determine the
applicable treatment standards under
subpart D of this part. For purposes of
part 268, the waste will carry the waste
code for any applicable listed waste
(Part 261, Subpart D). In addition,
where the waste exhibits a
characteristic, the waste will carry one
or more of the characteristic waste
codes (Part 261, Subpart C), except when
the treatment standard for the listed
waste operates in lieu of the treatment
standard for the characteristic waste,
as specified in paragraph (b) of this
section. If the generator determines
that their waste displays a hazardous
characteristic (and is not D001
nonwastewaters treated by CMBST, RORGS,
OR POLYM of Sec. 268.42, Table 1), the
generator must determine the underlying
hazardous constituents (as defined at
Sec. 268.2(i)) in the characteristic
waste.
[[Page 16874]]
(a) The initial generator of a solid
waste must determine each EPA Hazardous
Waste Number (waste code) applicable to
the waste in order to determine the
applicable treatment standards under
subpart D of this part. This
determination may be made concurrently
with the hazardous waste determination
required in Sec. 262.11 of this
chapter. For purposes of part 268, the
waste will carry the waste code for any
applicable listed waste (Part 261,
Subpart D). In addition, where the waste
exhibits a characteristic, the waste
will carry one or more of the
characteristic waste codes (Part 261,
Subpart C), except when the treatment
standard for the listed waste operates
in lieu of the treatment standard for
the characteristic waste, as specified
in paragraph (b) of this section. If the
generator determines that their waste
displays a hazardous characteristic (and
is not D001 nonwastewaters treated by
CMBST, RORGS, OR POLYM of Sec. 268.42,
Table 1), the generator must determine
the underlying hazardous constituents
(as defined at Sec. 268.2(i)) in the
characteristic waste.
------------------------------------------------------------------------
Table 7.--Obsolete Regulatory Language Being Deleted for Permitted Treatment, Storage, and Disposal Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory requirement as amended by the
Burden Reduction Rule
----------------------------------------------------------------------------------------------------------------
264.193(a)(2)........................ Tank Systems: For all existing tank systems used to store or
Containment and treat EPA Hazardous Waste Nos. F020, F021,
detection of releases. F022, F023, F026, and F027, within two years
after January 12, 1987.
Section 264.193(a)(2) is being deleted.
264.193(a)(3)........................ Tank Systems: For those existing tank systems of known and
Containment and documented age, within two years after January
detection of releases. 12, 1987 or when the tank system has reached 15
years of age, whichever comes later.
Section 264.193(a)(3) is being deleted.
264.193(a)(4)........................ Tank Systems: For those existing tank systems for which the
Containment and age cannot be documented, within eight years of
detection of releases. January 12, 1987; but if the age of the
facility is greater than seven years, secondary
containment must be provided by the time the
facility reaches 15 years of age, or within two
years of January 12, 1987, whichever comes
later.
Section 264.193(a)(4) is being deleted.
264.251(c)........................... Waste Piles: Design and The owner or operator of each new waste pile
operating requirements. unit on which construction operating commences
after January 29, 1992, each lateral expansion
of a waste pile unit on which construction
commences after July 29, 1992, and each
replacement of an existing waste pile unit that
is to commence reuse after July 29, 1992 must
install two or more liners and a leachate
collection and removal system above and between
such liners. ``Construction commences'' is as
defined in section 260.10 under ``existing
facility''.
The owner or operator of each new waste pile
unit, each lateral expansion of a waste pile
unit, and each replacement of an existing waste
pile unit must install two or more liners and a
leachate collection and removal system above
and between such liners.
264.314(a)........................... Land fills: Special Bulk or non-containerized liquid waste or waste
requirements for bulk containing free liquids may be placed in a
and containerized landfill prior to May 8, 1985.
liquids.
Section 264.314(a) is being deleted.
264.314(b)........................... Landfills: Special Effective May 8, 1995, the placement of bulk or
requirements for bulk non-containerized liquid hazardous waste or
and containerized hazardous waste containing free liquids
liquids. (whether or not sorbents have been added) in
any landfill is prohibited.
The placement of bulk or non-containerized
liquid hazardous waste or hazardous waste
containing free liquids (whether or not
sorbents have been added) in any landfill is
prohibited.
264.314(f)........................... Land Fills: Special Effective November 8, 1985, the placement of any
requirements for bulk liquid which is not a hazardous waste in a
and containerized landfill is prohibited unless the owner or
liquids. operator of such landfill demonstrates to the
Regional Administrator, or the Regional
Administrator determines that:
The placement of any liquid which is not a
hazardous waste in a landfill is prohibited
unless the owner or operator of such landfill
demonstrates to the Regional Administrator, or
the Regional Administrator determines that:
264.1100............................. Containment Buildings. The requirements of ths subpart apply to owners
Applicability. or operators who store or treat hazardous waste
in units designed and operated under Sec.
264.1101 of this subpart. These provisions will
become effective on February 18, 1993, although
owner or operator may notify the Regional
Administrator of his intent to be bound by this
subpart at an earlier time. The owner or
operator is not subject to the definition of
land disposal in RCRA Sec. 3004(k) provided
that the unit:
The requirements of this subpart apply to owners
or operators who store or treat hazardous waste
in units designed and operated under Sec.
264.1101 of this subpart. The owner or operator
is not subject to the definition of land
disposal in RCRA Sec. 3004(k) provided that
the unit:
[[Page 16875]]
264.1101(c)(2)....................... Containment Buildings. Obtain certification by a qualified registered
Design and Operating professional engineer that the containment
Standards. building design meets the requirements of
paragraphs (a) through (c) of this section. For
units placed into operation prior to February
18, 1993, this certification must be placed in
the facility's operating record (on-site files
for generators who are not formally required to
have operating records) no later than 60 days
after the date of initial operation of the
unit. After February 18, 1993, PE certification
will be required prior to operation of the
unit.
Obtain and keep on-site a certification by a
qualified professional engineer that the
containment building design meets the
requirements of paragraphs (a), (b), and (c) of
this section.
----------------------------------------------------------------------------------------------------------------
Table 8.--Obsolete Regulatory Language Being Deleted for Interim Status Treatment, Storage, and Disposal
Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory requirement as amended by the
Burden Reduction Rule
----------------------------------------------------------------------------------------------------------------
265.193(a)(2)........................ Tank Systems: For all existing tank systems used to and store
Containment and or treat EPA Hazardous Waste Nos. F020, F021,
detection of releases. F022, F023, F026, and F027, within two years
after January 12, 1987.
Section 265.193(a)(2) is being deleted.
265.193(a)(3)........................ Tank Systems: For those existing tank systems of known and
Containment and documentable age, within two years after
detection of releases. January 12, 1987, or when the tank system has
reached 15 years of age, whichever comes later.
Section 265.193(a)(3) is being deleted.
265.193(a)(4)........................ Tank Systems: For those existing tank systems for which the
Containment and age cannot be documented, within eight years of
detection of releases. January 12, 1987; but if the age of the
facility is greater than seven years, secondary
containment must be provided by the time the
facility reaches 15 years of age, or within two
years of January 12, 1987, whichever comes
later.
Section 265.193(a)(4) is being deleted.
265.314(a)........................... Land Fills: Special Bulk or non-containerized liquid waste or waste
requirements for bulk containing free liquids may be placed in a
and containerized landfill prior to May 8, 1985.
liquids.
Section 265.314(a) is being deleted.
265.314(b)........................... Land Fills: Special Effective May 8, 1995, the placement of bulk or
requirements for bulk non-containerized liquid hazardous waste or
and containerized hazardous waste containing free liquids
liquids. (whether or not sorbents have been added) in
any landfill is prohibited.
The placement of bulk or non-containerized
liquid hazardous waste or hazardous waste
containing free liquids (whether or not
sorbents have been added) in any landfill is
prohibited.
265.314(g)........................... Land Fills: Special Effective November 8, 1985, the placement of any
requirements for bulk liquid which is not a hazardous waste in a
and containerized landfill is prohibited unless the owner or
liquids. operator of such landfill demonstrates to the
Regional Administrator, or the Regional
Administrator determines that:
The placement of any liquid which is not a
hazardous waste in a landfill is prohibited
unless the owner or operator of such landfill
demonstrates to the Regional Administrator, or
the Regional Administrator determines that:
265.1100............................. Containment Buildings. The requirements of ths subpart apply to owners
Applicability. or operators who store or treat hazardous waste
in units designed and operated under Sec.
265.1101 of this subpart. These provisions will
become effective on February 18, 1993, although
owner or operator may notify the Regional
Administrator of his intent to be bound by this
subpart at an earlier time. The owner or
operator is not subject to the definition of
land disposal in RCRA Sec. 3004(k) provided
that the unit:
The requirements of this subpart apply to owners
or operators who store or treat hazardous waste
in units designed and operated under Sec.
265.1101 of this subpart. The owner or operator
is not subject to the definition of land
disposal in RCRA Sec. 3004(k) provided that
the unit:
265.1101(c)(2)....................... Containment Buildings. Obtain certification by a qualified registered
Design and Operating professional engineer that the containment
Standards. building design meets the requirements of
paragraphs (a) through (c) of this section. For
units placed into operation prior to February
18, 1993, this certification must be placed in
the facility's operating record (on-site files
for generators who are not formally required to
have operating records) no later than 60 days
after the date of initial operation of the
unit. After February 18, 1993, PE certification
will be required prior to operation of the
unit.
Obtain and keep on-site a certification by a
qualified professional engineer that the
containment building design meets the
requirements of paragraphs (a), (b), and (c) of
this section.
[[Page 16876]]
265.221(a)........................... Surface Impoundments: The owner or operator of each new surface
Design and operating impoundment unit on which construction
requirements. commences after January operating 29, 1992,
each lateral expansion of a surface impoundment
unit on which construction commences after July
29, 1992, and each replacement of an existing
surface impoundment unit that is to commence
reuse after July 29, 1992 must install two or
more liners and a leachate collection and
removal system above and between such liners,
and operate the leachate collection and removal
systems, in accordance with Sec. 264.221(c),
unless exempted under Sec. 264.221 (d), (e),
or (f) of this chapter. ``Construction
commences'' is as defined in Sec. 260.10
under ``existing facility''.
The owner or operator of each new surface
impoundment unit, each lateral expansion of a
surface impoundment unit, and each replacement
of an existing surface impoundment unit must
install two or more liners and a leachate
collection and removal system above and between
such liners, and operate the leachate
collection and removal systems, in accordance
with Sec. 264.221(c), unless exempted under
Sec. 264.221(d), (e), or (f) of this chapter.
265.301(a)........................... Land Fills: Design and The owner or operator of each new and operating
operating requirements. landfill unit on which construction commences
after January 29, 1992, each lateral expansion
of a landfill unit on which construction
commences after July 29, 1992, and each
replacement of an existing landfill unit that
is to commence reuse after July 29, 1992 must
install two or more liners and a leachate
collection and removal system above and between
such liners, and operate the leachate
collection and removal systems, in accordance
with Sec. 264.301 (d), (e), or (f) of this
chapter. ``Construction commences'' is as
defined in Sec. 260.10 under ``existing
facility.''
The owner or operator of each new landfill unit,
each lateral expansion of a landfill unit, and
each replacement of an existing landfill unit
must install two or more liners and a leachate
collection and removal system above and between
such liners, and operate the leachate
collection and removal system, in accordance
with Sec. 264.301 (d), (e), or (f) of this
chapter.
----------------------------------------------------------------------------------------------------------------
F. We Are Eliminating Selected Recordkeeping and Reporting Requirements
That We Believe Provide Duplicative Information to EPA
1. We Are Eliminating the Requirement for Facilities To Notify That
They Are in Compliance After a Release
We received comments that both supported and opposed the
elimination of the notifications required by Sec. Sec. 264.56(i) and
265.56(i). These notifications require the facility owner or operator
to notify the Regional Administrator and appropriate state and local
authorities after an emergency action has taken place, and that the
facility is in compliance with Sec. Sec. 264.56(h) and 265.56(h),
respectively. Sections 264.56(h) and 265.56(h) require the facility
emergency coordinator to ensure that no wastes that may be incompatible
with the released material is treated, stored, or disposed of until
cleanup procedures are completed, and that emergency equipment listed
in the contingency plan is cleaned and fit for its intended use before
operations are resumed. Several commenters generally supported the
elimination of these notification provisions. Other commenters were
opposed to eliminating these provisions because they thought that it
was prudent for the regulatory agency to receive notification that a
facility was ready to again manage hazardous waste after emergency
measures were implemented and releases were cleaned up.
We have decided to finalize the elimination of this notification
provision. The Regional Administrator and appropriate state and local
authorities will still be getting a report 15 days after the emergency
incident (as required in Sec. Sec. 264.56(j) and 265.56(j)). This
report will specify the details of the incident that required
implementation of the contingency plan. In most cases, the incident is
likely to be relatively minor, and operations may even be ready for
resumption with the 15 days. The actions to be taken (i.e., not
handling incompatible waste and cleaning emergency equipment) are
straightforward and it is not clear what value a simple notification
would add. On the other hand, in major incidents the state would likely
send personnel on-site and would be in a position to ensure that an
appropriate response was taken before operations resumed. Therefore, we
have decided to eliminate this notification requirement.
2. We Are Eliminating the Requirement for Facilities To Notify of Their
Intent To Burn F020, F021, F022, F023, F026, and F027 Wastes
We proposed to eliminate the notification of intent to burn
hazardous dioxin/furan wastes listed as F020, F021, F022, F023, F026
and F027. We viewed this as an unnecessary requirement because the
facility is already permitted to burn these wastes, and there are
already regulatory standards governing how the waste is burned.
Commenters generally supported our proposed change. Therefore, we
are removing the notification requirement.
We inadvertently proposed to remove the entire paragraph (a)(2) of
Sec. 264.343. We are merely removing the last sentence that referred
to the notification of intent to burn listed dioxin/furan wastes.
3. We Are Eliminating the Requirement for Facilities To Notify if They
Employ or Discontinue Use of the Alternative Valve Standard
The regulations in Subpart BB of RCRA deal with air emission
standards for equipment leaks. They apply to owners and operators of
facilities that treat, store, or dispose of hazardous waste with
equipment that contains or
[[Page 16877]]
contacts hazardous waste with organic concentrations of at least 10
percent by weight. We proposed to eliminate the requirement for
submitting notifications to the Regional Administrator with regard to
the implementation of the alternative standards for valves in gas/vapor
service or in light liquid service. Under the current regulations in
Sec. Sec. 264.1061(b)(1), (d) and 265.1061(b)(1) and (d), if an owner
or operator decides to either: (1) Implement the alternative standard
or (2) discontinue the use of the alternative standard, a written
notification must be sent to the Regional Administrator. In the
proposed rule, we stated that these notifications were an unnecessary
requirement because Sec. Sec. 264.1061(b)(2) and 265.1061(b)(2)
require performance tests to be conducted (upon designation, annually,
and as requested by the Regional Administrator) and their results kept
on site once a decision is made to use the alternative valve standard.
Several commenters disagreed with our position and suggested that
facilities need to notify regulators when they elect to use alternative
standards. Commenters further stated that without knowledge of the
specification that facilities are using, regulators may not be able to
effectively administer the standards and that this information may be
required for regulators to address various permitting, compliance and
enforcement actions at the facility. We remain unconvinced that these
notifications are an essential element in our regulatory compliance
regime. While we understand the commenters concerns, we believe that
sufficient information and data will be available to the regulatory
authority to monitor compliance with an alternative standard without
these notifications.
4. We Are Eliminating the Requirement for Facilities To Notify if They
Are Using Alternative Valve Work Practices
We proposed to eliminate the requirement to submit a notification
to the Regional Administrator before implementing one of the
alternative work practices specified in Sec. Sec. 264.1062(b)(2) and
(3) and 265.1062(b)(2) and (3). Under the current regulations, an owner
or operator may elect to comply with one of two alternative work
practices specified in the regulations. These alternatives are: (1)
After two consecutive quarterly leak detection periods with the
percentage of valves leaking equal to or less than 2 percent, an owner
or operator may begin to skip one of the quarterly leak detection
periods (i.e., monitor for leaks once every six months) for the valves;
or (2) after five consecutive quarterly leak detection periods with the
percentage of valves leaking equal to or less than 2 percent, an owner
or operator may be begin to skip three of the quarterly leak detection
periods ( i.e., monitor for leaks once every year) for the valves.
The majority of the commenters agreed with the proposal. One
commenter, however, argued that some technical review by the Agency
should be warranted to approve this alternative standard. Upon review
of the comment, we are unconvinced that the implementation of this
alternative work practice needs technical review or oversight by the
regulated authority. The alternative work practices described in the
regulations are straightforward and the results of the leak detection
periods will be maintained in the facility files as required under the
recordkeeping requirements found in Sec. 264.1064. Therefore, we are
eliminating the need for these notifications.
Table 9.--Recordkeeping and Reporting Requirements Being Deleted for
Permitted Treatment, Storage, and Disposal, Facilities
------------------------------------------------------------------------
CFR section Regulatory requirement
------------------------------------------------------------------------
Deletion to 264.56........... Contingency Plan and Emergency
Procedures. Emergency Procedures.
264.56(i).................... Notify Regional Administrator that
facility is in compliance with Sec.
265.56(h) (which requires that no waste
that may be incompatible with the
released material will be treated,
stored, or disposed until cleanup is
completed, and emergency equipment is
made ready for use again) before
resuming operations.
Deletion to 264.343.......... Incinerators. Performance standards.
264.343(a)(2)................ Submit notification of intent to burn
hazardous wastes F020, F021, F022, F023,
F026, and F027.
Deletions to 264.1061........ Air Emission Standards for Equipment
Leaks. Alternative standards for valves
in gas/vapor service or in light liquid
service: percentage of valves allowed to
leak.
264.1061(b)(1)............... Submit notification to implement the
alternative valve standard
264.1061(d).................. Submit notification to discontinue the
alternative valve standard.
Deletion to 264.1062......... Air Emission Standards for Equipment
Leaks. Alternative standards for valves
in gas/vapor service or in light liquid
service; skip period leak detection and
repair.
264.1062(a)(2)............... Submit notification to implement
alternative work practices for valves.
------------------------------------------------------------------------
Table 10.--Recordkeeping and Reporting Requirements Being Deleted for
Interim Status Treatment, Storage, and Disposal Facilities
------------------------------------------------------------------------
CFR section Regulatory requirement
------------------------------------------------------------------------
Deletion to 265.56........... Contingency Plan and Emergency
Procedures. Emergency Procedures.
265.56(i).................... Notify Regional Administrator that
facility is in compliance with Sec.
265.56(h) (which requires that no waste
that may be incompatible with the
released material will be treated,
stored, or disposed until cleanup is
completed, and emergency equipment is
made ready for use again) before
resuming operations.
Deletions to 265.1061........ Air Emission Standards for Equipment
Leaks. Alternative standards for valves
in gas/vapor service or in light liquid
service: percentage of valves allowed to
leak.
265.1061(b)(1)............... Submit notification to implement the
alternative valve standard.
265.1061(d).................. Submit notification to discontinue the
alternative valve standard.
Deletion to 265.1062......... Air Emission Standards for Equipment
Leaks. Alternative standards for valves
in gas/vapor service or in light liquid
service; skip period leak detection and
repair.
265.1062(a)(2)............... Submit notification to implement
alternative work practices for valves.
------------------------------------------------------------------------
[[Page 16878]]
G. We Are Permitting Decreased Inspection Frequency for Certain
Hazardous Waste Management Units
RCRA regulations require generators and treatment, storage and
disposal facilities to self-inspect their facilities to ensure that
they are in compliance. The regulations include both facility-wide and
unit- and equipment-specific inspection standards. Some of RCRA's
regulations specify the inspection frequency.
Self-inspections are a vital component of an effective regulatory
system. We recognize however, that the frequency of inspections has
been a concern, and that in most cases (particularly where alternative
approaches are employed) facilities are able to carry out formal
inspections less frequently without sacrificing human health and
environmental protection.
The Agency proposed a reduction in tank self-inspection frequency
from daily to weekly for large quantity generator tanks and treatment,
storage and disposal facilities. We also solicited comment on allowing
further reduced inspection frequencies, on a case-by-case basis (as
approved by the Regional Administrator or the state Director, as the
context requires, or an authorized representative), for containers,
containment buildings, and tanks. However, this proposal required that
these inspections occur at least monthly. In proposing these changes,
we suggested that decreased inspection frequencies should be based on
factors such as: (1) A demonstrated commitment by facility management
to sound environmental practices; (2) achievement of good management
practices over the history of the facility--that is, having a record of
sustained compliance with environmental laws and permit requirements;
(3) a demonstrated commitment to continued environmental improvement;
(4) a demonstrated commitment to public outreach and performance
reporting; (5) the installation of automatic monitoring devices at the
facility; and (6) the risk posed by the waste managed in the unit.
Many commenters supported the change from a daily to weekly
inspection frequency for tanks. Commenters pointed out that the
integrity and safety of hazardous waste tanks would not be compromised
by reducing the daily inspection requirement to a weekly frequency.
Several other commenters pointed out that hazardous waste storage
tanks, which have secondary containment, are even more protectively
designed than process tanks which handle the same chemicals. Other
commenters, however, did not support any decrease in inspection
frequency because of concerns that if inspection frequencies were
decreased, the amount of time between a leak and its discovery would
increase.
With regard to extending even further the inspection frequency, to
at least once each month on a case-by-case basis, we received comments
from the states expressing concern over the added administrative burden
in implementing case-by-case changes to inspection frequencies.
Based on the comments from the proposed rule, we reconsidered
whether to make case-by-case reduced inspections available to all
generators because of the burden it might impose on authorized states
to evaluate compliance with the criteria. In the October 29, 2003 NODA
(68 FR 61662), we proposed reduced inspection frequencies, granted on a
case-by-case basis, only for members of the National Environmental
Performance Track Program, stating that, at a minimum, we believe that
providing relief is appropriate for companies that are demonstrated
``good performers.'' \9\
---------------------------------------------------------------------------
\9\ The National Environmental Performance Track Program is a
voluntary EPA program that recognizes and rewards private and public
facilities that demonstrate strong environmental performance beyond
current requirements. The program is based on the premise that
government should complement its existing programs and regulations
with new tools and strategies that not only protect people and the
environment, but also capture opportunities for reducing cost and
spurring innovation. For more information and a closer look at the
activities and accomplishments of Performance Track members to date,
as well as member's goals for future achievements, please refer to
the program Web site at http://www.epa.gov/performancetrack.
---------------------------------------------------------------------------
In the NODA, we also clarified that the reduced inspection
frequency for tanks was intended to apply not just to the tanks, but to
the complete tank systems, which include piping, pumps, valves and
other associated equipment, also known as ancillary equipment (see
Sec. Sec. 264.193(f) and 265.193(f)). We also asked for comment on
expanding the change to include tanks, not only at large quantity
generator sites, but small quantity generator sites as well (see Sec.
265.201(c)). Furthermore, we solicited comment on extending the reduced
inspection frequencies, granted on a case-by-case basis, to areas
subject to spills (see Sec. Sec. 264.15(b)(4) and 265.15(b)(4)). We
solicited comment on whether to grant this relief only to members of
the National Environmental Performance Track Program in that we believe
the risk from this change would be minimal at facilities that have met
the requirements to be accepted into this program.
1. We Are Establishing Weekly Inspections for Certain Hazardous Waste
Tank Systems at Permitted and Interim Status Facilities and at Large
Quantity Generator Sites
We are changing the self-inspection frequencies for tank systems
from daily to weekly at permitted and interim status treatment, storage
and disposal facilities, as well as for large quantity generator (LQG)
tank systems that are operated under certain conditions. Changing
inspections for small quantity generator (SQG) tanks is discussed in
section III.G.2 of this preamble. Tank system, as defined in Sec.
260.10, means a hazardous waste storage or treatment tank and its
associated ancillary equipment and containment system. The requirements
for permitted, interim status, and LQG tank systems appear in
Sec. Sec. 264 and 265, subpart J. Daily inspections enable tank
systems, subject to subpart J, to comply with the Sec. Sec. 264.193(c)
and 265.193(c) requirements to detect leaks and spills within 24 hours.
Our rule reduces inspections for: (1) Above ground portions of the
tank system, if any, to detect corrosion or releases of waste; and (2)
the construction materials and the area immediately surrounding the
externally accessible portion of the tank system, including the
secondary containment system (e.g., dikes) to detect erosion or signs
of releases of hazardous waste (e.g., wet spots, dead vegetation).
Reduced inspections will be allowed when either of two conditions are
met: (1) Tank owners and operators employ leak detection equipment; or
(2) in the absence of leak detection equipment, tank owners and
operators employ established workplace practices that ensure that when
any leaks or spills occur, they will be promptly identified, and
promptly remediated. Owners and operators choosing one of these options
to reduce inspection frequencies should document the option selected in
their operating record. If the option selected is ``established
workplace practices,'' the owner and/or operator should document those
practices in the facility's operating record.
Leak detection equipment must meet the respective requirements of
Sec. Sec. 264.193(c)(3) and 265.193(c)(3). It should be designed to
alert facility personnel promptly to the presence of any leaks or
spills (e.g., alarm systems) so that emergency and/or remedial action
can be taken. (The existing subpart J tank regulations require
secondary containment systems to be
[[Page 16879]]
designed and operated to detect releases within 24 hours.) Leak
detection systems were described in the proposed rule (67 FR 2527).
But, while subpart J requires releases to be detected within 24 hours,
the regulations do not specify the method of leak detection systems
that must be used. For example, some facilities use daily visual
inspections as a method of leak detection for their aboveground tanks,
which is an acceptable practice. However, under the current tank system
regulations, absent daily visual inspections, leak detection equipment
that promptly notifies facility personnel of leaks or spills, must be
used.
In the absence of leak detection equipment, established workplace
practices must ensure that when any leaks or spills occur, they will be
promptly identified and promptly remediated in compliance with
Sec. Sec. 264.193(c)(3) and (4) and 265.193(c)(3) and (4). When we say
``established workplace practices,'' we mean practices that are
documented and that describe how the facility is operated. (An example
of established workplace practices could be the presence of an
Environmental Management System that includes plans and practices to
ensure that any releases are promptly identified, contained, and
cleaned up.) Established workplace practices will most likely be put in
place in situations, like that described by a state commenter, where
aboveground tanks without leak detection exist and daily visual
monitoring is the most common method of leak detection used. In cases
such as these, lacking leak detection equipment, owners or operators
would need to use workplace practices to identify releases, if they
choose to reduce their inspection frequency.
A number of commenters noted that reducing inspection frequencies
of Sec. Sec. 264.195 and 265.195 should only be done if secondary
containment is equipped with leak detection that notifies response
personnel if releases occur. We partially agree with the commenters;
however, as noted earlier, the rule also allows the facility operator
to institute work practices to ensure prompt detection of a release.
For example, if the tank system is in an area frequented by employees,
where releases will be immediately obvious, all employees might be
trained to watch for releases and report them. In other situations, an
employee might be assigned to check secondary containment on a daily
basis without conducting a full tank system ``inspection.''
We received several comments from industry that the current daily
inspection requirements are a large burden for the regulated community,
and that weekly inspections would provide welcome relief. One commenter
noted that the majority of printers that have tanks for collecting
hazardous waste have small tanks and they are generally located
indoors. Any release from the tank would be detected almost immediately
and the extension of mandatory inspection frequency would greatly
reduce the administrative burden associated with using these types of
collection tanks. In this case, the facility might not have leak
detection equipment, but standard work practices might require all
employees to notify appropriate facility personnel if they observe a
release from the tanks. Given the nature of the facility described by
the commenter, this would likely constitute a work practice sufficient
to ensure prompt detection of a release. Conversely, we also received
other industry comments suggesting that while they liked the
flexibility of the reduced inspections, they offered that they probably
would not reduce their own inspection frequency.
A state commenter argued that a basic principle of RCRA is
prevention, including preventing a major release from a waste
management unit and that the proposed rule appears primarily guided by
a desire to project an image of providing a ``burden reduction'' for
the regulated community, while disregarding prevention mechanisms. The
commenter further stated that the chance of a release occurring and
going undetected is greatly increased by allowing for weekly
inspections of tank systems. The commenter believes the current
requirement for daily inspections of tank systems provides a reasonable
means to detect and minimize release of hazardous waste in a timely
manner and the commenter further stated that the requirement for daily
inspection of tank systems has not been a significant burden on the
regulated community. We question this commenter's conclusion. By
requiring owners and operators who wish to change the self-inspection
frequencies for tanks, to use either leak detection or work place
practices, we believe it is unlikely that releases from tanks will go
undetected. The use of either leak detection systems or established
workplace practices should assure that releases are promptly detected,
and that the appropriate personnel are notified so that releases can be
stopped and cleaned up. According to Sec. 264.196, upon detection of a
leak, either through the leak detection system or visual observation,
the owner or operator of the tank system must immediately stop the flow
of hazardous waste, determine and rectify the cause of the leak, remove
the waste, and contain releases to the environment.
It is important to note that we are not changing the existing
requirement, found in Sec. 264.195(a)(2) and Sec. 265.195(a)(3)),
that data gathered from monitoring and leak detection equipment (e.g.,
pressure or temperature gauges, monitoring wells) must be inspected at
least once each operating day to ensure that the tank system is being
operated according to its design. We believe that this requirement is
necessary in order to ensure compliance with Sec. 264.193(c) and Sec.
265.193(c), which require the detection of leaks and spills within 24
hours. In addition, keeping this requirement supports the new reduced
inspection requirements that we are putting in place today, by
providing further information about any releases that may occur.
As a final matter, several commenters to the proposed rule
suggested changing the inspection frequencies for ancillary equipment,
specifically citing Sec. Sec. 264.193(f) and 265.193(f). (These
requirements specify that ancillary equipment must have secondary
containment, except in four instances, each involving daily visual
inspections for leaks.) While most commenters provided little
information to support making the change, one commenter did argue that
if the proposed changes to Sec. Sec. 264.195 and 265.195 were
finalized, the existing provisions in Sec. Sec. 264.193(f) and
265.193(f), if not also changed, would be inconsistent.
As background, the October 29, 2003 NODA requested comment on
expanding the proposed rule to include ancillary equipment at LQG and
SQG sites. The NODA referenced the regulations at Sec. Sec. 264.193(f)
and 265.193(f), suggesting making the change would be consistent with
our intent, as discussed in the proposed rule. Because today's rule
changes the inspection frequencies for tank systems provided with
secondary containment, where leak detection equipment or workplace
practices are used, as discussed previously, any ancillary equipment
associated with such tank systems would, therefore, be eligible for
reduced inspections.
We considered allowing ancillary equipment without secondary
containment, as described at Sec. Sec. 264.193(f)(1)-(4) and
265.193(f)(1)-(4), to be visually inspected weekly instead of daily.
While most of the commenters supported this change,
[[Page 16880]]
upon further analysis we now conclude that expanding the rule to
include ancillary equipment without secondary containment is not
consistent with how the final rule addresses reduced inspection
frequency for tank systems. The proposed rule discussed reducing
inspection frequencies for tanks and tank systems because of, among
other reasons, the presence of secondary containment. Allowing
ancillary equipment without secondary containment to change from daily
visual inspections to weekly visual inspections would not be consistent
with our approach. We are including regulatory language in Sec. Sec.
264.194(d) and 265.195(c) to say that ancillary equipment that is not
provided with secondary containment, as described in Sec. Sec.
264.193(f)(1)-(4), must be inspected at least once each operating day.
We would like to note that there are instances where tanks and
tanks systems are located within buildings, and where the building
itself provides secondary containment. In cases where ancillary
equipment is located inside a building that has been determined to
provide secondary containment, and either leak detection systems or
established workplace practices exist to identify leaks and spills,
then the regulatory criteria are met and that ancillary equipment may
be inspected weekly. For example, in a case where ancillary equipment
inside a building does not have double walls or leak detection, this
ancillary equipment would still be eligible for weekly inspections if
the building serves as secondary containment, and if the area is
frequented by employees whereby releases will be immediately obvious
and the employees will promptly identify and remediate leaks and
spills.
In cases involving buildings serving as secondary containment,
authorized states necessarily have the ultimate authority to make the
determination that secondary containment requirements are met (taking
into account all relevant site-specific considerations).
2. We Are Establishing Weekly Inspections for SQG Hazardous Waste Tank
Systems With Secondary Containment
While the previous discussion addressed changes in the inspection
frequency for certain tank systems at permitted and interim status
facilities, and LQG sites, today's rule also changes the inspection
frequency for certain tank systems at SQG sites. The requirements for
SQG tanks are found in 40 CFR 265.201(b).\10\
---------------------------------------------------------------------------
\10\ The requirements for SQG tanks were finalized on March 24,
1986 (51 FR 10146), and with the July 14, 1986 final tank
regulations (51 FR 25422), codified at Sec. 265.201. Discussion in
the March 1986 rule explains how the SQG requirements were
developed, as distinct from the requirements for tanks at LQG sites.
The rule states: ``Congress anticipated reducing administrative
requirements, such as reporting and recordkeeping, as a means to
reduce impacts on the 100-1000 kg/mo generators. Thus, EPA proposed
to relieve these generators of some Part 262 standards that are
administrative in nature, while retaining all existing technical
standards. The relief was only provided to generators who accumulate
on-site for the statutorily prescribed periods, because, given that
the amount of waste accumulated would necessarily be limited, the
relative risk from releases of such waste would be less than that
from the unlimited amounts of waste accumulated by off-site
facilities.'' (51 FR 10149).
---------------------------------------------------------------------------
Under the current regulations, generators of between 100 and 1,000
kg/mo accumulating hazardous waste in tanks must inspect at least once
each operating day, if applicable; (1) discharge control equipment
(e.g., waste feed cutoff systems, by-pass systems, and drainage
systems); (2) data gathered from monitoring equipment (e.g., pressure
and temperature gauges); and (3) the level of waste in the tank. In
addition, at least weekly, generators must also inspect: (1) The
construction materials of the tank to detect corrosion or leaking of
fixtures or seams; and (2) the construction materials of, and the area
immediately surrounding, discharge confinement structures (e.g., dikes)
to detect erosion or obvious signs of leakage (e.g., wet spots or dead
vegetation).
While Sec. 265.201 does not require SQGs to be equipped with
secondary containment, nor leak detection, under today's rule, SQG tank
system owners and operators who wish to reduce their inspection
frequency may do so if these tank systems are provided with secondary
containment with either leak detection equipment or established
workplace practices that ensure prompt detection of releases, as
described above for other tank systems. Owners and operators choosing
one of these options to reduce inspection frequencies should document
the option selected in their operating record. If the option selected
is ``established workplace practices,'' the owner and/or operator
should document those practices in the facility's operating record.
In the proposal, we received comments suggesting that we expand the
proposed reduction in tank self-inspection frequency to include tanks
located at small quantity generator sites (see Sec. 265.201(c)) and
ancillary equipment (see Sec. 265.193(f)\11\). This change would
affect only three of the five SQG inspection requirements: for
discharge control equipment (Sec. 265.201(c)(1)); data gathered from
monitoring equipment (Sec. 265.201(c)(2)); and monitoring the level of
waste in the tank (Sec. 265.201(c)(3)), since the last two inspection
requirements (Sec. Sec. 265.201(c)(4) and (c)(5)) are already done on
a weekly basis. We stated in the NODA that changing these inspection
frequencies would be consistent with our intent to establish weekly
inspections for all tank systems.
---------------------------------------------------------------------------
\11\ While the Agency solicited comment on reducing the
inspection frequency for ancillary equipment for SQGs, the
referenced regulation, Sec. 265.193(f) does not apply to tank
systems at SQG sites, only the requirements found in Sec.
265.201(c) apply to SQG tank systems. Therefore, the Agency is not
pursuing changes to Sec. 265.193(f) that would affect SQGs. As
discussed above, the regulatory changes we are making today apply to
SQG tank systems, which include ancillary equipment.
---------------------------------------------------------------------------
One state commenter argued that tanks can and frequently do fail
abruptly and with little or no warning, losing most or all of their
contents in a very short period of time and if the rule were
promulgated as proposed, it might be a week or longer before leaks of
any size were discovered and remediation begun. The commenter further
reasoned that for those tanks without secondary containment (e.g.,
SQGs), waiting such a long time for remediation efforts may lead to
extensive environmental damage. We acknowledge the commenter's concerns
and support the rapid remediation of leaks; we believe that the
controls we are promulgating today will adequately prevent such an
occurrence, even for SQGs.
One commenter did state that, although he did not object to
allowing small quantity generators reduced tank inspection frequencies,
he noted that reducing inspection frequencies will not provide any
additional reduction in the recordkeeping/reporting burden for small
quantity generators who are not subject to Sec. Sec. 264.15 and 265.15
and are not required to maintain a schedule or a record of inspections.
We agree that Sec. 265.201 does not require SQGs to record
inspections. Burden reduction would come from the time saved (person-
hours) from reduced inspections.
Several states were not in favor of reduced inspection frequency
for small quantity generators. One commenter stated that EPA has not
provided any data that suggest that the reduced frequency of tank
inspections is as protective as the intent of the current standard
which as stated in 51 FR 25454, July 14, 1986 is to ``* * * enable the
detection of releases or potential
[[Page 16881]]
releases at the earliest possible time.'' Another commenter further
argued that reduced tank inspection frequency should not be afforded to
small quantity generators unless their tank systems are upgraded to
meet additional standards and that currently SQGs only have to inspect
their tank systems for proper operations controls daily. SQGs are not
required to do any type of additional leak detection, except for the
weekly requirements already in place. Since SQGs are not required to
provide secondary containment, the operating day inspections assist in
protecting from a release or potential release. Other commenters argued
that if SQGs wish to receive this reduced inspection frequency, they
should comply with the same secondary containment requirements as large
quantity generators and install an automated leak detection equipment
that alerts a person designated to respond. We agree, in part, with the
commenters. SQG tanks historically have less stringent requirements
than LQGs, permitted, and interim status tanks. But, while existing SQG
tanks are not required to have secondary containment, in order to enjoy
reduced inspection frequencies under today's rule, tanks must have
secondary containment with leak detection, or have secondary
containment and workplace practices in use that promptly identify leaks
and spills.
3. We Are Allowing Members of the National Environmental Performance
Track Program To Apply for an Adjustment to the Frequency of
Inspections for Certain Hazardous Waste Units and Areas
In addition to allowing a change in the inspection frequency for
selected tank systems, we also proposed to allow on a case-by-case
basis, less frequent self-inspections for tank systems, container
storage areas, and containment buildings. Under our current
regulations, container storage areas and containment buildings must be
inspected weekly. (See Sec. Sec. 264.174, 265.174, 264.1101(c)(4), and
265.1101(c)(4).)
Based on comments received on the proposal, we reconsidered whether
to make such a change available to all generators because of the burden
it would impose on authorized states to evaluate compliance with the
criteria. As stated in the October 29, 2003 NODA (68 FR 61662), we
believe that providing relief is appropriate for companies that are
demonstrated ``good performers'' and we solicited comment on limiting
this provision to member companies of the National Environmental
Performance Track Program, as well as extending reduced inspection
frequencies, granted on a case-by-case basis, to areas subject to
spills (see Sec. 264.15(b)(4)).
In today's rule we are finalizing this provision--the ability to
file a case-by-case application for further reduced self-inspection
frequencies--to facilities that are members of the National
Environmental Performance Track Program. Performance Track member
facilities are provided the opportunity to reduce self-inspections of
tank systems, containers, containment buildings, and areas subject to
spills to a frequency of at least once each month.
Performance Track members must apply to the regulatory agency for
approval before implementing a reduced inspection frequency
schedule.\12\ The Performance Track facility must submit an application
to the regulatory authority identifying itself as a member of the
National Environmental Performance Track Program and request a
reduction in self inspection frequency. For those members that are also
permitted treatment, storage and disposal facilities, the application
must be in the form of a Class 1 permit modification with prior
approval. The Performance Track member facility must request reduced
inspections, for no less than once each month, for any of the waste
management units identified in today's rule (including tank systems,
containers, containment buildings, and areas subject to spills). (Only
one application per Performance Track member facility is required.)
After the application is received, the Director has 60 days to approve
or deny the application, in writing. The Director also may choose to
extend this 60 day deadline, if more time is needed to review the
application (e.g., in the case where an on-site inspection is needed or
a more in-depth analysis of the application is warranted.) If the
application is approved, the notification will identify the management
units approved for reduced frequency of inspections, as well as the
time interval between inspections (at a minimum of one inspection each
month.) This notice must be placed in the facility's operating record.
---------------------------------------------------------------------------
\12\ In the proposed rule (67 FR at 2527), the Agency made
reference to a commenter's suggestion that inspection frequency
changes should be self-implementing. The example given by the
commenter outlined an option where an inspection schedule should be
deemed approved if EPA does not specifically deny the request in
writing within 30 days. At that time, we stated that one of our
principle objectives for this burden reduction change, was to ensure
that the regulatory agencies made the decision to decrease
inspection frequencies and as such, we were not considering self-
implementing alternatives. While we still maintain that regulatory
agencies should make these decisions on a case-by-case basis, upon
further consideration, we believe it is also important to streamline
the application process by establishing a timetable for application/
permit modification review.
---------------------------------------------------------------------------
The Performance Track member facility should consider the
application approved after 60 days if the Director does not: (1) Deny
the application, in writing; or (2) notify, in writing, the Performance
Track member facility of an extension to the 60-day deadline. In these
situations, the Performance Track member facility must adhere to the
revised inspection schedule outlined in their application and keep a
copy of the application in the facility's operating record.
It is expected that Performance Track facilities would have an EMS
providing sufficient oversight to prevent and detect leaks and spills.
In addition, facilities that applied for Performance Track would have
conducted an Environmental Management System (EMS) Independent
Assessment.\13\ The assessment must determine whether the facility
regularly monitors and measures its key operations that can have a
significant impact on the environment, and records this information.
Therefore, through the use of EMSs and workplace practices, we would
expect Performance Track facilities to be able to prevent and detect
leaks and spills. Providing Performance Track member facilities with
the option for reduced inspection frequencies does not mean we are
reducing the requirements for the owner or operator to detect leaks and
spills; providing reduced inspection for Performance Track member
facilities acknowledges that these facilities have established controls
and procedures to prevent releases and to respond promptly if and when
they occur. The Agency believes it is important to recognize the
difference in the need for oversight of facilities that are top
environmental performers which have developed comprehensive
environmental management systems and who have a track record of
effective self-oversight.
---------------------------------------------------------------------------
\13\ For more information on the Independent Assessment Criteria
for EMSs, see http://www.epa.gov/performancetrack/ind_assessment.htm.
---------------------------------------------------------------------------
Any Performance Track member facility that discontinues its
membership in Performance Track or is terminated from the program must
immediately notify the Director, in writing of its change in status
(i.e., they are no longer a Performance Track member facility). These
facilities must revert back to the ``non-Performance
[[Page 16882]]
Track member'' inspection frequency within seven calendar days. The
facility must place in their operating record a dated copy of this
notification. In cases where the Performance Track member is a
permitted TSDF, the Agency is requiring that the permit modification to
allow the reduced inspection frequency contain a ``sunset'' clause, in
case the facility's membership in Performance Track ends. If written
without a ``sunset'' clause, an approved permit modification allowing a
reduced inspection frequency could otherwise ``shield'' the facility
from violation if it ceases to be a Performance Track member.
Therefore, we are requiring that the Class 1 modification request
contain specific language stating that the reduced frequency is for as
long as the facility remains a Performance Track member. The language
must say that if the facility ceases to be a Performance Track member
facility, it must revert to the ``non-Performance Track'' inspection
frequency within seven calendar days after membership in Performance
Track ends.
Sections a. through d. below discuss in more detail the Agency's
basis for decisions on inspection frequency for areas subject to
spills, containers, tank systems, and containment buildings at
Performance Track member facilities.
a. Performance Track: Reduced Inspection Frequency for Areas
Subject to Spills. The general inspection requirements of Sec. Sec.
264.15 and 265.14, require that areas subject to spills, such as
loading and unloading areas, must be inspected daily, while in use.
These inspections are to identify malfunctions and deterioration,
operator errors, and discharges which may be causing--or be leading
to--(1) a release of hazardous waste constituents to the environment,
or (2) a threat to human health. In response to a comment in the 2002
proposal, the October 29, 2003 NODA (68 FR 61662) considered reducing
inspection frequencies, granted on a case-by-case basis, for areas
subject to spills. We also solicited comment on whether to grant this
relief only to Performance Track member facilities, stating that the
risk from this change is minimal at facilities that have met the
requirements to be accepted into the Performance Track Program. We
received two comments on this issue; one commenter supported the
proposal, and one did not . The commenter that opposed the proposal
provided no explanation or justification for its position. The
supporting commenter stated that activities that may cause spills
``usually allow for the spills to be easily detected and quickly
cleaned up. More frequent inspections are unlikely to result in quicker
spill detection.''
In general, we do not believe that such a change to the regulation
is appropriate for all facilities, for the reasons laid out above.
However, we believe the risk from this change is minimal at facilities
that have met the requirements to be accepted into the National
Environmental Performance Track Program. Therefore, we have decided to
extend inspection frequencies for no less than once each month, at
areas subject to spills, but only for facilities that are members of
the National Environmental Performance Track Program that have received
prior approval from the regulatory agency.
b. Performance Track: Reduced Inspection Frequency for Containers.
Sections 264.174 and 265.174 require owners or operators to
inspect, at least weekly, areas where containers holding hazardous
waste are stored, looking for leaking containers and for deterioration
of containers and the containment system caused by corrosion or other
factors. We proposed to allow case-by-case decreased inspection
frequencies for containers.
The October 29, 2003 NODA (68 FR 61662) addressed comments received
on the 2002 proposal. Based on the comments from the proposal, the NODA
reconsidered whether to make case-by-case reduced self-inspections
available to all generators because of the burden it might impose on
authorized states to evaluate compliance with the criteria. That is,
making such a change available to all generators would likely impose a
substantial burden on the states or EPA in order to evaluate whether an
applicant facility met the criteria. Such a burden is clearly in
opposition to the intent of today's rule. Finally, the Agency stated
clearly that ``at a minimum, we believe that providing relief is
appropriate for companies that are demonstrated good performers.'' (68
FR 61665.)
The Agency received comments on this issue that supported the
application of this provision to Performance Track members. Other
comments stated that this provision should be made available to all
facilities with a demonstrated record of good compliance, with some
type of demonstrated top performance, or by meeting the proposed
criteria.
The Agency considered all comments received on this issue and has
decided to finalize a reduced self-inspection requirement to Sec. Sec.
264.174 and 265.174 available only to members of the National
Environmental Performance Track Program. The reason for this decision
is that case-by-case determinations for all hazardous waste facilities
would significantly increase the burden associated with providing this
benefit to all facilities. Performance Track member facilities may
apply to their regulatory agency for a reduction in self-inspection
frequency, for no less thanonce each month, for containers and for
areas where containers holding hazardous waste are stored.
c. Performance Track: Reduced Inspection Frequency for Tank
Systems. Today, we are changing the self-inspection frequencies for
tank systems from daily to no less than once each month for tank
systems, granted on a case-by-case basis, for members of the National
Environmental Performance Track Program when operating under certain
conditions.\14\ This includes Performance Track member facilities that
are either permitted TSDFs, interim status TSDFs, large quantity
generators (LQGs), and/or small quantity generators (SQGs).
---------------------------------------------------------------------------
\14\ As previously discussed, we intended to include a broad
applicability for tank systems in our proposed rule; however, the
proposal did not clearly address the point. We clarified in the
October 29, 2003 NODA (68 FR 61662) that the proposal was meant to
apply not just to the tanks, but to the complete tank systems (i.e.,
ancillary equipment). Complete tank systems were defined as
including piping, pumps, valves and other associated equipment.
Commenters were generally supportive of this change. Therefore, we
are applying this provision to complete tank systems, except to
ancillary equipment without secondary containment as described at
Sec. Sec. 264.193(f)(1)-(4) and 265.193(f)(1)-(4).
---------------------------------------------------------------------------
Today's rule allows Performance Track member facilities to apply to
the regulatory agency for reduced tank system self-inspection
frequency, of no less than once each month when either of two
conditions are met: (1) When tank owners and operators employ leak
detection equipment, or (2) when in the absence of leak detection
equipment, owners and operators of tank systems employ workplace
practices that ensure that when any leaks or spills occur, they will be
promptly identified and remediated. Performance Track member facilities
choosing one of these options to reduce inspection frequencies, should
identify the option selected as part of its application to the
regulatory agency.
Small quantity generator (SQG) tank systems are subject to separate
requirements, found in 40 CFR 265.201. Today's rulemaking also allows
National Environmental Performance Track members to apply to the
regulatory agency for reduced self-inspection frequencies for SQG tank
systems under Sec. 265.201(b) when they meet either one of the two
conditions described above.
d. Performance Track: Reduced Inspection Frequency for Containment
[[Page 16883]]
Buildings. We proposed to allow case-by-case decreased inspection
frequencies for containment buildings. As stated generally above, the
intent was to offer this provision only to the safest and best
performing facilities. In the October 29, 2003 NODA (68 FR 61662), we
solicited comment on whether to limit the reduced inspection frequency
for containment buildings to member facilities of the National
Environmental Performance Track Program. Again, for the same reasons
stated above, we decided to limit Sec. Sec. 264.1101 and 265.1101 to
Performance Track member facilities.
Table 11.--Decreased Inspection Frequencies for Hazardous Waste Management Units at Permitted Hazardous Waste
Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the Burden
Reduction Rule
----------------------------------------------------------------------------------------------------------------
260.10............................... Hazardous Waste No regulatory definition currently exists.
Management System: Performance Track member facility means a
Definitions. facility which has been accepted by EPA for
membership in the National Environmental
Performance Track Program and is still a member
of the Program. The National Environmental
Performance Track Program is a voluntary,
facility based, program for top environmental
performers. Facility members must demonstrate a
good record of compliance, past success in
achieving environmental goals, and commit to
future specific quantified environmental goals,
environmental management systems, local
community outreach, and annual reporting of
measurable results.
264.15(b)(4)......................... General Facility The frequency of inspection may vary for the
Standards: General items on the schedule. However, the frequency
Inspection should be based on the rate of deterioration of
Requirements. the equipment and the probability of an
environmental or human health incident if the
deterioration, malfunction, or any operator
error goes undetected between inspections.
Areas subject to spills, such as loading and
unloading areas, must be inspected daily when
in use. At a minimum, the inspection schedule
must include the items and frequencies called
for in Sec. Sec. 264.174, 264.193, 264.195,
264.226, 264.254, 264.278, 264.303, 264.347,
264.602, 264.1033, 264.1052, 264.1053,
264.1058, and 264.1083 through 264.1089 of this
part, where applicable.
The frequency of inspection may vary for the
items on the schedule. However, the frequency
should be based on the rate of deterioration of
the equipment and the probability of an
environmental or human health incident if the
deterioration, malfunction, or operator error
goes undetected between inspections. Areas
subject to spills, such as loading and
unloading areas, must be inspected daily when
in use, except for Performance Track member
facilities, that may inspect at least once each
month, upon approval by the Director, as
described in paragraph (b)(5) of this section.
At a minimum, the inspection schedule must
include the items and frequencies called for in
Sec. Sec. 264.174, 264.193, 264.195,
264.226, 264.254, 264.278, 264.303, 264.347,
264.602, 264.1033, 264.1052, 264.1053,
264.1058, and 264.1083 through 264.1089 of this
part, where applicable.
264.15(b)(5)......................... General Facility No regulatory language currently exists.
Standards: General Performance Track member facilities that choose
Inspection to reduce their inspection frequency must:
Requirements.
(i) Submit a request for a Class I permit
modification with prior approval to the
Director. The modification request must
identify the facility as a member of the
National Environmental Performance Track
Program and identify the management units for
reduced inspections and the proposed frequency
of inspections. The modification request must
also specify, in writing, that the reduced
inspection frequency will apply for as long as
the facility is a Performance Track member
facility, and that within seven calendar days
of ceasing to be a Performance Track member,
the facility will revert to the non-Performance
Track inspection frequency. Inspections must be
conducted at least once each month.
(ii) Within 60 days, the Director will notify
the Performance Track member facility, in
writing, if the request is approved, denied, or
if an extension to the 60-day deadline is
needed. This notice must be placed in the
facility's operating record. The Performance
Track member facility should consider the
application approved if the Director does not:
(1) deny the application; or (2) notify the
Performance Track member facility of an
extension to the 60 day deadline. In these
situations, the Performance Track member
facility must adhere to the revised inspection
schedule outlined in its request for a Class I
permit modification and keep a copy of the
application in the facility's operating record.
(iii) Any Performance Track member facility that
discontinues its membership or is terminated
from the program must immediately notify the
Director of its change in status. The facility
must place in the operating record a dated copy
of this notification and revert back to the non-
Performance Track inspection frequencies within
seven calendar days.
264.174.............................. Use and Management of At least weekly, the owner or operator must
Containers: inspect areas where containers are stored,
Inspections. looking for leaking containers, and for
deterioration of containers and the containment
system caused by corrosion or other factors.
[[Page 16884]]
At least weekly, the owner or operator must
inspect areas where containers are stored,
except for Performance Track member facilities,
that may conduct inspections at least once each
month, upon approval by the Director. To apply
for reduced inspection frequencies, the
Performance Track member facility must follow
the procedures described in Sec. 264.15(b)(5)
of this part. The owner or operator must look
for leaking containers and for deterioration of
containers and the containment system caused
corrosion or other factors.
264.195.............................. Tank Systems: (b) The owner or operator must inspect at least
Inspections. once each operating day:
(1) Above ground portions of the tank system, if
any to detect corrosion or releases of waste:
(2) Data gathered from monitoring and leak
detection equipment (e.g., pressure or
temperature gauges, monitoring wells) to ensure
that the tank system is being operated
according to its design; and
(3) The construction materials and the area
immediately surrounding the externally
accessible portion of the tank system,
including the secondary containment system
(e.g., dikes) to detect erosion or signs of
releases of hazardous waste (e.g., wet spots,
dead vegetation).
[Note: Section 264.15(c) requires the owner or
operator to remedy any deterioration or
malfunction he finds. Section 264.196 requires
the owner or operator to notify the Regional
Administrator within 24 hours of confirming a
leak. Also, 40 CFR part 302 may require the
owner or operator to notify the National
Response Center of a release.]
(b) The owner or operator must inspect at least
once each operating day data gathered from
monitoring and leak detection equipment (e.g.,
pressure or temperature gauges, monitoring
wells) to ensure that the tank system is being
operated according to its design;
(c) In addition, except as noted under paragraph
(d) of this section, the owner or operator must
inspect at least once each operating day:
(1) Above ground portions of the tank system, if
any to detect corrosion or releases of waste:
(2) The construction materials and the area
immediately surrounding the externally
accessible portion of the tank system,
including the secondary containment system
(e.g., dikes) to detect erosion or signs of
releases of hazardous waste (e.g., wetspots,
dead vegetation).
(d) Owners or operators of tank systems that
either use leak detection equipment to alert
facility personnel to leaks, or implement
established workplace practices to ensure leaks
are promptly identified, must inspect at least
weekly those areas described in paragraphs
(c)(1) and (c)(2) of this section. Use of the
alternate inspection schedule must be
documented in the facility's operating record.
This documentation must include a description
of the established workplace practices at the
facility.
(e) Performance Track member facilities may
inspect on a less frequent basis, upon approval
by the Director, but must inspect at least once
each month. To apply for a less than weekly
inspection frequency, the Performance Track
member facility must follow the procedures
described in Sec. 264.15(b)(5).
(f) Ancillary equipment that is not provided
with secondary containment, as described in
Sec. 264.193(f)(1)-(4), must be inspected at
least once each operating day.
[Note: Section 264.15(c) requires the owner or
operator to remedy any deterioration or
malfunction he finds. Section 264.196 requires
the owner or operator to notify the Regional
Administrator within 24 hours of confirming a
leak. Also, 40 CFR part 302 may require the
owner or operator to notify the National
Response Center of a release.]
264.1101(c)(4)....................... Containment Buildings: Inspect and record in the facility's operating
Design and Operating record, at least once every seven days, data
Standards. gathered from monitoring and leak detection
equipment as well as the containment building
and the area immediately surrounding the
containment building to detect signs of
releases of hazardous waste.
Inspect and record in the facility's operating
record, at least once every seven days, except
for Performance Track member facilities that
must inspect at least once each month, upon
approval by the Director, data gathered from
monitoring and leak detection equipment as well
as the containment building and the area
immediately surrounding the containment
building to detect signs of releases of
hazardous waste. To apply for reduced
inspection frequency, the Performance Track
member facility must follow the procedures
described in Sec. 264.15(b)(5) of this part.
----------------------------------------------------------------------------------------------------------------
[[Page 16885]]
Table 12.--Decreased Inspection Frequencies for Hazardous Waste Management Units at Interim Status Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the Burden
Reduction Rule
----------------------------------------------------------------------------------------------------------------
260.10............................... Hazardous Waste No regulatory definition currently exists.
Management System: Performance Track member facility means a
Definitions. facility that has been accepted by EPA for
membership in the National Environmental
Performance Track Program and is still a member
of the Program. The National Environmental
Performance Track Program is a voluntary,
facility based, program for top environmental
performers. Facility members must demonstrate a
good record of compliance, past success in
achieving environmental goals, and commit to
future specific quantified environmental goals,
environmental management systems, local
community outreach, and annual reporting of
measurable results.
265.15(b)(4)......................... General Facility The frequency of inspection may vary for the
Standards: General items on the schedule. However, the frequency
Inspection should be based on the rate of deterioration of
Requirements. the equipment and the probability of an
environmental or human health incident if the
deterioration, malfunction, or any operator
error goes undetected between inspections.
Areas subject to spills, such as loading and
unloading areas, must be inspected daily when
in use. At a minimum, the inspection schedule
must include the items and frequencies called
for in Sec. Sec. 265.174, 265.193, 265.195,
265.226, 265.260, 265.278, 265.304, 265.347,
265.377, 265.403, 265.1033, 265.1052, 265.1053,
265.1058 and 265.1084 through 265.1090 of this
part, where applicable.
The frequency of inspection may vary for the
items on the schedule. However, the frequency
should be based on the rate of deterioration of
the equipment and the probability of an
environmental or human health incident if the
deterioration, malfunction, or operator error
goes undetected between inspections. Areas
subject to spills, such as loading and
unloading areas, must be inspected daily when
in use, except for Performance Track member
facilities, that must inspect at least once
each month, upon approval by the Director, as
described in paragraph (b)(5) of this section.
At a minimum, the inspection schedule must
include the items and frequencies called for in
Sec. Sec. 265.174, 265.193, 265.195,
265.226, 265.260, 265.278, 265.304, 265.347,
265.377, 265.403, 265.1033, 265.1052, 265.1053,
265.1058 and 265.1084 through 265.1090 of this
part, where applicable.
265.15(b)(5)......................... General Facility No regulatory language currently exists.
Standards: General Performance Track member facilities that choose
Inspection to reduce their inspection frequency must:
Requirements.. (i) Submit an application to the Director. The
application must identify the facility as a
member of the National Environmental
Performance Track Program and identify the
management units for reduced inspections and
the proposed frequency of inspections.
Inspections must be conducted at least once
each month.
(ii) Within 60 days, the Director will notify
the Performance Track member facility, in
writing, if the application is approved,
denied, or if an extension to the 60-day
deadline is needed. This notice must be placed
in the facility's operating record. The
Performance Track member facility should
consider the application approved if the
Director does not: (1) deny the application; or
(2) notify the Performance Track member
facility of an extension to the 60-day
deadline. In these situations, the Performance
Track member facility must adhere to the
revised inspection schedule outlined in its
application and keep a copy of the application
in the facility's operating record.
(iii) Any Performance Track member facility that
discontinues its membership or is terminated
from the program must immediately notify the
Director of its change in status. The facility
must place in the operating record a dated copy
of this notification and revert back to the non-
Performance Track inspection frequencies within
seven calender days.
265.174.............................. Use and Management of The owner or operator must inspect areas where
Containers: containers are stored, at least weekly, looking
Inspections. for leaks and for deterioration caused by
corrosion or other factors.
At least weekly, the owner or operator must
inspect areas where containers are stored,
except Performance Track member facilities,
that must conduct inspections at least once
each month, upon approval by the Director. To
apply for reduced inspection frequency, the
Performance Track member facility must follow
the procedures described in Sec. 265.15(b)(5)
of this part. The owner or operator must look
for leaking containers and for deterioration of
containers and the containment system caused by
corrosion or other factors.
265.195.............................. Tank Systems: (a) The owner or operator must inspect, where
Inspections.. present, at least once each operating day:
(1) Overfill/spill control equipment (e.g.,
waste-feed cutoff systems, bypass systems, and
drainage systems) to ensure that it is in good
working order;
(2) Above ground portions of the tank system, if
any to detect corrosion or releases of waste;
(3) Data gathered from monitoring and leak
detection equipment (e.g., pressure or
temperature gauges, monitoring wells) to ensure
that the tank system is being operated
according to its design; and
[[Page 16886]]
(4) The construction materials and the area
immediately surrounding the externally
accessible portion of the tanks system,
including the secondary containment system
(e.g., dikes) to detect erosion or signs of
releases of hazardous waste (e.g., wet spots,
dead vegetation).
Note: Section 265.15(c) requires the owner or
operator to remedy any deterioration or
malfunction he finds. Section 265.196 requires
the owner or operator to notify the Regional
Administrator within 24 hours of confirming a
release. Also, 40 CFR part 302 may require the
owner or operator to notify the National
Response Center of a release.
(a) The owner or operator must inspect, where
present, at least once each operating day, data
gathered from monitoring and leak detection
equipment (e.g., pressure or temperature
gauges, monitoring wells) to ensure that the
tank system is being operated according to its
design.
(b) Except as noted under paragraph (c) of this
section, the owner or operator must inspect at
least once each operating day:
(1) Overfill/spill control equipment (e.g.,
waste-feed cutoff systems, bypass systems, and
drainage systems) to ensure that it is in good
working order;
(2) Above ground portions of the tank system, if
any, to detect corrosion or releases of waste;
and
(3) The construction materials and the area
immediately surrounding the externally
accessible portion of the tank system,
including the secondary containment system
(e.g., dikes) to detect erosion or signs of
releases of hazardous waste (e.g., wet spots,
dead vegetation).
(c) Owners or operators of tank systems that
either use leak detection equipment to alert
facility personnel to leaks, or implement
established workplace practices to ensure leaks
are promptly identified, must inspect at least
weekly those areas described in paragraphs
(b)(1)-(3) of this section. Use of the
alternate inspection schedule must be
documented in the facility's operating record.
This documentation must include a description
of the established workplace practices at the
facility.
(d) Performance Track member facilities may
inspect on a less frequent basis, upon approval
by the Director, but must inspect at least once
each month. To apply for a less than weekly
inspection frequency, the Performance Track
member facility must follow the procedures
described in Sec. 265.15(b)(5).
(e) Ancillary equipment that is not provided
with secondary containment, as described in
Sec. 265.193(f)(1)-(4), must be inspected at
least once each operating day.
Note: Section 265.15(c) requires the owner or
operator to remedy any deterioration or
malfunction he finds. Section 265.196 requires
the owner or operator to notify the Regional
Administrator within 24 hours of confirming a
release. Also, 40 CFR part 302 may require the
owner or operator to notify the National
Response Center of a release.
265.1101(c)(4)....................... Containment Buildings: Inspect and record in the facility's operating
Design and Operating record, at least once every seven days, data
Standards. gathered from monitoring and leak detection
equipment as well as the containment building
and the area immediately surrounding the
containment building to detect signs of
releases of hazardous waste.
Inspect and record in the facility's operating
record, at least once every seven days, except
for Performance Track member facilities, that
must inspect at least once each month, upon
approval by the Director, data gathered from
monitoring and leak detection equipment as well
as the containment building and the area
immediately surrounding the containment
building to detect signs of releases of
hazardous waste. To apply for reduced
inspection frequency, the Performance Track
member facility must follow the procedures
described in Sec. 265.15(b)(5).
----------------------------------------------------------------------------------------------------------------
Table 13.--Decreased Inspection Frequencies for Small Quantity Generator Hazardous Waste Management Units
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the
Burden Reduction Rule
----------------------------------------------------------------------------------------------------------------
265.201(c)........................... Tank Systems: Special (c) Generators of between 100 and 1,000 kg/mo of
requirements for hazardous waste in tanks must inspect, where
generators of between present:
100 and 1,000 kg/mo (1) Discharge control equipment (e.g., waste
that accumulate feed cutoff systems, by-pass systems, and
hazardous waste in drainage systems) at least once each operating
tanks. day, to ensure that it is in good working
order;
(2) Data gathered from monitoring equipment
(e.g., pressure and temperature gauges) at
least once each operating day, to ensure that
the tank is being operated according to its
design;
[[Page 16887]]
(3) The level of waste in the tank at least once
each operating day to ensure compliance with
Sec. 265.201(b)(3);
(4) The construction materials of the tank at
least weekly to detect corrosion or leaking of
fixtures or seams; and
(5) The construction materials of, and the area
immediately surrounding, discharge confinement
structures (e.g., dikes) at least weekly to
detect erosion or obvious signs of leakage
(e.g., wet spots or dead vegetation).
(c) Except as noted in paragraph (d) of this
section, generators who accumulate between 100
and 1,000 kg/mo of hazardous waste in tanks
must inspect, where present:
(1) Discharge control equipment (e.g., waste
feed cutoff systems, by-pass systems, and
drainage systems) at least once each operating
day, to ensure that it is in good working
order;
(2) Data gathered from monitoring equipment
(e.g., pressure and temperature gauges) at
least once each operating day, to ensure that
the tank is being operated according to its
design;
(3) The level of waste in the tank at least once
each operating day to ensure compliance with
Sec. 265.201(b)(3);
(4) The construction materials of the tank at
least weekly to detect corrosion or leaking of
fixtures or seams; and
(5) The construction materials of, and the area
immediately surrounding, discharge confinement
structures (e.g., dikes) at least weekly to
detect erosion or obvious signs of leakage
(e.g., wet spots or dead vegetation).
(d) Generators who accumulate between 100 and
1,000 kg/mo of hazardous waste in tanks or tank
systems that have full secondary containment
and that either use leak detection equipment to
alert facility personnel to leaks, or implement
established workplace practices to ensure leaks
are promptly identified, must inspect at least
weekly, where applicable, the areas identified
in paragraphs (c)(1)-(5) of this section. Use
of the alternate inspection schedule must be
documented in the facility's operating record.
This documentation must include a description
of the established workplace practices at the
facility.
(e) Performance Track member facilities may
inspect on a less frequent basis, upon approval
by the Director, but must inspect at least once
each month. To apply for a less than weekly
inspection frequency, the Performance Track
member facility must follow the procedures
described in Sec. 265.15(b)(5).
----------------------------------------------------------------------------------------------------------------
H. We Are Making Selected Changes to the Requirements for Record
Retention and Submittal of Records
EPA is modifying certain requirements for hazardous waste handlers
who keep records on site and submit these same records to EPA. We will
now require waste handlers only to keep these selected records on site.
EPA believes that many of the various notices required do not add
much in protection and some are simply redundant. We believe that
reporting to EPA on the majority of the day-to-day functions of a
facility does not need to occur. Because a basic set of compliance
information will still be kept in the facility's operating record, we
believe the regulatory agency has an ample opportunity for effective
oversight.
1. We Are Removing the Requirement To Submit a One-Time Notification
for Recycled Wood Wastewaters and Spent Wood-Preserving Solutions and
Clarifying an Unintentional Elimination Made in the Proposal
Currently under 40 CFR 261.4(a)(9), spent wood preserving solutions
and wastewaters from wood preserving processes are excluded from
classification as a solid waste if they are reclaimed and reused for
their original intended purpose, and if five conditions specified in
subparagraphs (iii)(A) through (iii)(E) are met. Paragraph (E) required
that the plant owner or operator submit a one-time notification that
the plant intends to claim the exclusion.\15\ Paragraph (E) also
requires the owner or operator to maintain a copy of the notification
on-site for no less than three years. Finally, paragraph (E) explains
that the exclusion applies only so long as the plant meets all of the
conditions, and sets forth procedures for what to do to retain the
exclusion if the facility goes out of compliance with a condition.
---------------------------------------------------------------------------
\15\ The four other conditions found in 40 CFR
261.4(a)(9)(iii)(A)-(D) are: (A) The wood preserving wastewaters and
spent wood preserving solutions are reused on-site at water borne
plants in the production process for their original intended
purpose; (B) Prior to reuse, the wastewaters and spent wood
preserving solutions are managed to prevent release to either land
or groundwater or both; (C) Any unit used to manage wastewaters and/
or spent wood preserving solutions prior to reuse can be visually or
otherwise be determined to prevent such releases; and (D) Any drip
pad used to manage the wastewaters and/or spent wood preserving
solutions prior to reuse complies with the standard in part 265,
subpart W of this chapter, regardless of whether the plant generates
a total of less than 100 kg/month of hazardous waste.
---------------------------------------------------------------------------
The proposed rule (see 67 FR 2521) was to reduce the burden on wood
preservers/treaters by eliminating the requirement to submit the one-
time notification. The proposal stated that the requirement is
unnecessary and has limited use for regulators. However, the change to
the regulations specified in the regulatory text of the proposal
unintentionally eliminated the entire paragraph (E) of 40 CFR
261.4(a)(9),(iii)
[[Page 16888]]
thus eliminating the one-time notification requirement and also
eliminating the two other requirements in that paragraph: (1) The
requirement to maintain the notification on-site for three years, and
(2) the implementation discussion for compliance with the conditions.
Three state commenters did not agree with the proposal. These
commenters argued that the notification is useful for identifying
facilities that are claiming the exclusion, identifying potential
problems before they occur, allowing the regulating agency to verify
compliance, and workload planning. Several state commenters, however,
agreed with the proposal to eliminate the requirement to submit the
notification. Based on their comments, these commenters appeared to
understand that only the requirement to submit the one-time
notification was proposed for elimination. None mentioned the
requirement to retain the notification on-site or the compliance
implementation procedures.
While we understand the concern of some of the commenters, we still
do not believe that arguments put forth were sufficient to change the
proposed approach. We believe that the submittal of this notification
is unnecessary because the facilities are engaged in limited activities
to return materials to their intended use in the wood treating
industry. Many comparable activities occur without notification,
including direct reuse of the same material. These activities will
occur at generator sites subject to EPA or state inspection (and in
some case at treatment, storage, and disposal facilities), so EPA or
the state will have an opportunity to review the activity. Note that in
the final change to the regulatory text, we are only eliminating the
requirement to submit the one-time notification; we are not eliminating
the requirement to keep the document on-site, or the discussion of
compliance implementation procedures.
2. We Are Eliminating the Requirement for Interim Status Facilities To
Submit Specific Ground-Water Monitoring Plans and Ground-Water
Assessment Reports
In today's final rule, we are reducing some of the burden on
interim status facilities by eliminating the need to submit specific
ground-water monitoring plans and ground-water assessment reports to
the Regional Administrator. These reports include: (1) Plans for an
alternative ground-water monitoring system under Sec. 265.90(d)(1)
that are implemented when the owner or operator assumes (or knows) that
ground-water monitoring of indicator parameters in accordance with
Sec. Sec. 265.91 and 265.92 would show statistically significant
increases when evaluated under Sec. 265.93(b); (2) records of the
analyses and evaluations specified in the plan under Sec.
265.93(d)(2); and (3) ground-water quality assessment reports required
under Sec. 265.93(d)(5). These plans are not being eliminated, but are
to be placed in the facility's operating record until closure of the
facility. We consider today's changes to be a common sense approach to
reducing burden at regulated facilities without compromising
environmental protection.
Numerous states objected to these proposed changes to the interim
status reporting and recordkeeping requirements, asserting that the
regulatory agency should continue to receive a copy of these reports to
assess the effectiveness and appropriateness of the ground-water
monitoring system. Other states asserted that EPA's approach places an
undue burden on the regulatory authority and makes it difficult for
states to fully evaluate ground water across the state.
We believe that self-implementing ground-water monitoring plans for
interim status facilities can be protective of human health and the
environment; we disagree with the assertion that our rationale places a
burden on the regulating authority. These reports must be kept in the
facility's operating record until closure of the facility and will be
available for inspection when the state or EPA visits the facility.
Nothing in today's rulemaking prevents the regulating authority from
requesting reports from interim status facilities for ground-water
quality assessment or indicator parameter concentrations.
EPA is retaining many requirements for interim status facilities.
For example, we are not changing the ground-water reporting
requirements of Sec. Sec. 265.93(c)(1), (d)(1), (e) and (f) and
265.94(a)(2)(i), (ii) and (iii), that deal with submitting
notifications of increased indicator parameter concentrations and the
development and submittal of: (1) Ground-water quality assessment
reports; (2) preparation and submittal of quarterly reports on drinking
water suitability parameters; indicator parameter concentrations and
evaluations; and (3) ground-water surface elevations. Stakeholders have
convinced us of the importance of this information. Without the
knowledge of the status of the facility ground-water monitoring system,
it may be difficult for regulators to conduct effective inspections,
address compliance issues, and address enforcement issues regarding the
ground water at interim status facilities.
3. We Are Eliminating the Requirement for Interim Status Surface
Impoundments, Waste Piles, and Landfills To Submit a Response Action
Plan
Response action plans are generated by the owner or operator of a
specified hazardous waste management unit (e.g., surface impoundment,
waste pile, and/or landfill), and document actions to be taken if the
action leakage rate in the unit's leak detection system has been
exceeded.\16\ These actions are listed in Sec. Sec. 265.223, 265.259
and 265.303.\17\ The Agency proposed eliminating the need to submit to
the Regional Administrator response action plans for interim status
surface impoundments, waste piles, and landfills. We are eliminating
the submission of the response action plan to the Regional
Administrator. The facility must still prepare and retain these plans
on-site.
---------------------------------------------------------------------------
\16\ The action leakage rate is the maximum design flow rate
that the leak detection system (LDS) can remove without the fluid
head on the bottom liner exceeding one foot. The action leakage rate
must include an adequate margin of safety to allow for uncertainties
in the design (e.g., slope, hydraulic conductivity, thickness of
drainage material), construction, operation, and location of the
LDS, waste and leachate characteristics, likelihood and amounts of
other sources of liquids in the LDS, and proposed response actions
(e.g., the action leakage rate must consider decreases in the flow
capacity of the system over time resulting from siltation and
clogging, rib layover and creep of synthetic components of the
system, overburden pressures, etc.).
\17\ In the CFR there are two sections identified as Sec.
265.223, the first titled ``Containment system'' and the second
titled ``Response actions''. In today's rule we are redesignating
Sec. 265.223 titled ``Response actions'' as Sec. 265.224.
---------------------------------------------------------------------------
Several state commenters agreed with the proposal; however, several
others did not. One commenter argued that a release from a land-based
unit is a significant noncompliance and could pose serious impacts to
the people and the environment, and it is important for the facility to
have a clear plan in advance to respond to releases. Because of the
importance of controlling these releases, it is appropriate for the
response action plan to be submitted to EPA or the state permit agency.
While we agree with the commenter that any release from a land-based
unit is a serious matter, and that controlling these releases is of the
utmost importance, we are not convinced that these plans need to be
submitted to the regulatory agency. EPA is retaining all requirements
to submit notices to the regulatory authority when an action leakage
rate is exceeded (see Sec. Sec. 265.224(b)(2) and (6); 265.259(b)(2)
and (6); and 265.303(b)(2) and (6)); we
[[Page 16889]]
believe that the need to submit the response action plan which merely
reiterates these requirements is an overly burdensome requirement that
can be removed.
4. We Are Eliminating the Requirement for Facilities To Submit a Tank
System Certification of Completion of Major Repairs
We are amending the requirement for submitting to the Regional
Administrator a certification of completion of major repairs to a tank
system by an independent, qualified, professional engineer. This
certification need only be kept on-site in the operating record through
the intended life of the system. This change will eliminate the
submission of duplicative information to the regulatory authority.
Sections 264.196(d) and 265.196(d) already require that certain
notifications be submitted that include descriptions of response
actions taken or planned.
Several commenters did not support the proposed change, noting that
submission of the certification helps to ensure that the regulatory
authority is made aware of any potentially significant repairs that
were conducted. One commenter argued that the elimination of these
notices or notations in the operating record will adversely affect
oversight. Another commenter argued that, while supportive of the
proposed change, the certification of major repairs must be kept with
the facility record, and be available for review by regulatory
inspectors. We believe that information provided by the certification
of major repairs is already provided through the notification
mechanisms described in Sec. Sec. 264.196(d) and 265.196(d), which
require notification when releases occur, and a description of response
actions taken or planned. While we are not eliminating the
certification, we are requiring the certification be kept on site in
the operating record, and we are requiring the certification be signed
by a qualified professional engineer.
5. We Are Eliminating the Requirement for a Recycler To Submit a
Notification and Certification
Under 40 CFR 268.7(b)(3), a treatment facility must send a one-time
notice to the receiving land disposal facility with the initial
shipment of waste or contaminated soil. Also, in Sec. 268.7(b)(4), the
treatment facility must submit a one-time certification with the
initial shipment of waste or contaminated soil to the land disposal
facility.
Under Sec. 268.7(b)(6), however, if the wastes are recyclable
materials used in a manner constituting disposal, the owner or operator
of the treatment facility (i.e., the recycler) is not required to send
the one-time (b)(3) notice to the receiving facility. For each
shipment, however, the owner or operator of the treatment facility
(i.e., recycler) must submit a (b)(4) certification and a notice with
the information listed in (b)(3) to the Regional Administrator. These
notifications and certifications are to assure and document that
treatment standards are being met. The preamble to the proposed rule
described a proposal that would reduce burden on the regulated industry
by eliminating the requirement to send the notifications and
certifications to EPA, and instead require that the treatment facility
(i.e., recycler) place these documents in its on-site files.
Five commenters, including three states, agreed that notifying the
regulatory agency is not necessary as long as the information is
maintained at the facility. Only one commenter did not support the
elimination of the requirement. This commenter argued that it is
important to track hazardous wastes used in the manufacture of
fertilizers because it believes there are problems with compliance in
this industry. It believes that notification to the regulatory agency
allows such tracking. We, however, do not agree with this commenter,
for the reasons presented below.
Based on the majority of comments received, we are amending Sec.
268.7(b)(6) to eliminate the requirement to submit notifications and
certifications to EPA, and instead require that the information be
placed in the treating/recycling facility's on-site files. All but one
commenter confirmed that maintaining these records on-site provides
sufficient documentation of waste treatment in these cases. We also
point out that regulating agencies have a great deal of information
about these facilities already since, in most cases, they would be
permitted facilities. Retaining these notices on-site does not
eliminate the regulating agency's knowledge of the existence of the
facility. We also note that if a state has concerns about compliance in
a particular use constituting disposal industry in their state, they
may choose to be more stringent than the federal program, and choose to
retain these notifications.
It should be noted that the preamble to the proposal incorrectly
indicated that the current regulations only require one-time
notifications and certifications for these materials. This is not
accurate. As discussed earlier, the existing regulations actually
require that certifications and notifications be sent to the regulating
agency with each shipment. One commenter suggested that we change the
requirement so that these notifications and certifications are only
required to be prepared once and maintained in the facility's records,
unless there are changes to the treatment process. The commenter
pointed out that it would greatly reduce the burden for the facility if
they were only required to prepare these documents once, and then again
any time the treatment process changes. We agree with this commenter's
point. As long as these notifications and certifications are required
to be maintained in the facility's files and be available for
inspection, there is no reason for the facility to prepare and maintain
multiple copies for each shipment. The information will be available
for inspection at all times. Whereas the proposal did address the
burden of sending notifications and certifications to the regulatory
agency, it did not address the burden associated with the requirement
to send those documents with each waste shipment. This final rule
corrects that omission. Thus, this final rule only requires facilities
(i.e., recyclers) to prepare and maintain notifications and
certifications with the initial shipment of waste, and then to prepare
new documentation only if the waste, the treatment process, or the
receiving facility changes.
6. We Are Eliminating the Requirement to Submit an LDR Notification and
Certification
Under Sec. 268.9(d), once a characteristic waste is treated so it
is no longer characteristic, a one-time notification and certification
of this fact have to be placed in the generator's or treater's files,
and also sent to EPA or the authorized state. We proposed to eliminate
the requirement to submit the notification to EPA or the authorized
state (the notification and certification would continue to be required
to be kept in the facility's files).
Almost all commenters supported the proposal to delete the one-time
requirement that the Sec. 268.9(d) notification and certification be
sent to EPA or the authorized state. This is because the notification
and the certification must be placed in the on-site files and would
thus be available for inspection. However, a few commenters opposed the
deletion of these submittals, stating that this information is
valuable. While we agree that the information is valuable, we do not
believe that submitting these documents to the regulatory agency is
necessary to protect human health and the environment. For a number of
years, other LDR notifications and
[[Page 16890]]
certifications have not been required to be submitted to the regulatory
agency, but are available for inspection in the facility's on-site
files. Therefore, we believe that this system of recordkeeping is
sufficient and are deleting the notification and certification
submission requirement as proposed.
Table 14.--Changes to the Requirements for Record Retention and Submittal of Records for Permitted Treatment,
Storage, and Disposal Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the Burden
Reduction Rule
----------------------------------------------------------------------------------------------------------------
264.196(f)........................... Tank Systems. Response Certification of major repairs. If the owner/
to leaks or spills and operator has repaired a tank system in
disposition of leaking accordance with paragraph (e) of this section,
or unfit-for-use tank and the repair has been extensive (e.g.,
systems. installation of an internal liner; repair of a
ruptured primary containment or secondary
containment vessel), the tank system must not
be returned to service unless the owner/
operator has obtained a certification by an
independent, qualified, registered,
professional engineer in accordance with Sec.
270.11(d) that the repaired system is capable
of handling hazardous wastes without release
for the intended life of the system. This
certification must be submitted to the Regional
Administrator within seven days after returning
the tank system to use.
Certification of major repairs. If the owner/
operator has repaired a tank system in
accordance with paragraph (e) of this section,
and the repair has been extensive (e.g.,
installation of an internal liner; repair of a
ruptured primary containment or secondary
containment vessel), the tank system must not
be returned to service unless the owner/
operator has obtained a certification by a
qualified professional engineer in accordance
with Sec. 270.11(d) that the repaired system
is capable of handling hazardous wastes without
release for the intended life of the system.
This certification must be placed in the
operating record and maintained until closure
of the facility.\18\
----------------------------------------------------------------------------------------------------------------
\18\ The reader is referred to Section III. B. of today's preamble for a discussion of the change from
``independent, qualified, registered, professional'' to ``qualified professional engineer''.
Table 15.--Changes to the Requirements for Record Retention and Submittal of Records for Interim Status
Treatment, Storage, and Disposal Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the Burden
Reduction Rule
----------------------------------------------------------------------------------------------------------------
265.90(d)(1)......................... Ground-Water Within one year after the effective date of
Monitoring. these regulations, submit to the Regional
Applicability. Administrator a specific plan, certified by a
qualified geologist or geotechnical engineer,
which satisfies the requirements of Sec.
265.93(d)(3), for an alternate ground-water
monitoring system.
Within one year after the effective date of
these regulations, develop a specific plan,
certified by a qualified geologist or
geotechnical engineer, which satisfies the
requirements of Sec. 265.93(d)(3), for an
alternate ground-water monitoring system. This
plan is to be placed in the facility's
operating record and maintained until closure
of the facility.
265.90(d)(3)......................... Ground-Water Prepare and submit a written report in
Monitoring. accordance with Sec. 265.93(d)(5).
Applicability.
Prepare a report in accordance with Sec.
265.93(d)(5) and place it in the facility's
operating record and maintain until closure of
the facility.
265.93(d)(2)......................... Ground-Water Within 15 days after the notification under
Monitoring. paragraph (d)(1) of this section, the owner or
Preparation, operator must develop and submit to the
evaluation, and Regional Administrator a specific plan, based
response. on the outline required under paragraph (a) of
this section and certified by a qualified
geologist or geotechnical engineer, for a
ground-water quality assessment at the
facility.
Within 15 days after the notification under
paragraph (d)(1) of this section, the owner or
operator must develop a specific plan, based on
the outline required under paragraph (a) of
this section and certified by a qualified
geologist or geotechnical engineer, for a
ground-water quality assessment at the
facility. This plan must be placed in the
facility operating record and be maintained
until closure of the facility.
265.93(d)(5)......................... Ground-Water The owner or operator must make his first
Monitoring. determination under paragraph (d)(4) of this
Preparation, section, as soon as technically feasible, and,
evaluation, and within 15 days after that determination, submit
response. to the Regional Administrator a written report
containing an assessment of the ground-water
quality.
The owner or operator must make his first
determination under paragraph (d)(4) of this
section as soon as technically feasible, and
prepare a report containing an assessment of
the ground-water quality. This report must be
placed in the facility operating record and be
maintained until closure of the facility.
[[Page 16891]]
265.196(f)........................... Tank Systems. Response Certification of major repairs. If the owner/
to leaks or spills and operator has repaired a tank system in
disposition of leaking accordance with paragraph (e) of this section,
or unfit-for-use tank and the repair has been extensive (e.g.,
systems. installation of an internal liner; repair of a
ruptured primary containment or secondary
containment vessel), the tank system must not
be returned to service unless the owner/
operator has obtained a certification by an
independent, qualified, registered,
professional engineer in accordance with Sec.
270.11(d) that the repaired system is capable
of handling hazardous wastes without release
for the intended life of the system. This
certification must be submitted to the Regional
Administrator within seven days after returning
the tank system to use.
Certification of major repairs. If the owner/
operator has repaired a tank system in
accordance with paragraph (e) of this section,
and the repair has been extensive (e.g.,
installation of an internal liner; repair of a
ruptured primary containment or secondary
containment vessel), the tank system must not
be returned to service unless the owner/
operator has obtained a certification by a
qualified professional engineer in accordance
with Sec. 270.11(d) that the repaired system
is capable of handling hazardous wastes without
release for the intended life of the system.
This certification must be placed in the
operating record until closure of the
facility.\19\
265.223(a)........................... Surface Impoundments. The owner or operator of surface impoundment
Response actions. units subject to Sec. 265.221(a) must submit
a response action plan to the Regional
Administrator when submitting the proposed
action leakage rate under Sec. 265.222. The
response action plan must set forth the actions
to be taken if the action leakage rate has been
exceeded. At a minimum, the response action
plan must describe the actions specified in
paragraph (b) of this section.
(Now Sec. 265.224(a)) The owner or operator of
surface impoundment units subject to Sec.
265.221(a) must develop and keep on-site until
closure of the facility a response action plan.
The response action plan must set forth the
actions to be taken if the action leakage rate
has been exceeded. At a minimum, the response
action plan must describe the actions specified
in paragraph (b) of this section.
265.259(a)........................... Waste Piles. Response The owner or operator of waste pile units
actions. subject to Sec. 265.254 must submit a
response action plan to the Regional
Administrator when submitting the proposed
action leakage rate under Sec. 265.255. The
response action plan must set forth the actions
to be taken if the action leakage rate has been
exceeded. At a minimum, the response action
plan must describe the action specified in
paragraph (b) of this section.
The owner or operator of waste pile units
subject to Sec. 265.254 must develop and keep
on-site until closure of the facility a
response action plan. The response action plan
must set forth the actions to be taken if the
action leakage rate has been exceeded. At a
minimum, the response action plan must describe
the actions specified in paragraph (b) of this
section.
265.303(a)........................... Landfills. Response The owner or operator of landfill units subject
actions. to Sec. 265.301(a) must submit a response
action plan to the Regional Administrator when
submitting the proposed action leakage rate
under Sec. 265.302. The response action plan
must set forth the actions to be taken if the
action leakage rate has been exceeded. At a
minimum, the response action plan must describe
the action specified in paragraph (b) of this
section.
The owner or operator of landfill units subject
to Sec. 265.301(a) must develop and keep on-
site until closure of the facility a response
action plan. The response action plan must set
forth the actions to be taken if the action
leakage rate has been exceeded. At a minimum,
the response action plan must describe the
actions specified in paragraph (b) of this
section.
----------------------------------------------------------------------------------------------------------------
\19\ The reader is referred to today's preamble for a discussion of the change from ``independent, qualified,
registered, professional engineer'' to ``qualified professional engineer.'' We are also requiring that this
certification be retained in the operating record until closure of the facility.
[[Page 16892]]
Table 16.--Changes to the Requirements for Record Retention and Submittal of Records for Hazardous Waste
Generators
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the
Burden Reduction Rule
----------------------------------------------------------------------------------------------------------------
261.4(a)(9)(iii)(E).................. General. Exclusions. Prior to operating pursuant to this exclusion,
Materials which are the plant owner or operator submits to the
not solid wastes. appropriate Regional Administrator or state
Director a one-time notification stating that
the plant intends to claim the exclusion,
giving the date on which the plant intends to
begin operating under the exclusion, and
containing the following language: ``I have
read the applicable regulation establishing an
exclusion for wood preserving wastewaters and
spent wood preserving wastewater and spent wood
preserving solutions and understand it requires
me to comply at all times with the conditions
set out in the regulation.'' The plant must
maintain a copy of that document in its on-site
records for a period of no less than 3 years
from the date specified in the notice. The
exclusion applies only so long as the plant
meets all of the conditions. If the plant goes
out of compliance with any condition, it may
apply to the appropriate Regional Administrator
or state Director for reinstatement The
Regional Administrator or state Director may
reinstate the exclusion upon finding that the
plant has returned to compliance with all
conditions and that violations are not likely
to recur.
Prior to operating pursuant to this exclusion,
the plant owner or operator prepares a one-time
notification stating that the plant intends to
claim the exclusion, giving the date on which
the plant intends to begin operating under the
exclusion, and containing the following
language: ``I have read the applicable
regulation establishing an exclusion for wood
preserving wastewaters and spent wood
preserving solutions and understand it requires
me to comply at all times with the conditions
set out in the regulation.'' The plant must
maintain a copy of that document in its on-site
records until closure of the facility. The
exclusion applies only so long as the plant
meets all of the conditions. If the plant goes
out of compliance with any condition, it may
apply to the appropriate Regional Administrator
or state Director for reinstatement. The
Regional Administrator or state Director may
reinstate the exclusion upon finding that the
plant has returned to compliance with all
conditions and that violations are not likely
to recur.
268.7(b)(6).......................... Land Disposal Where the wastes are recyclable materials used
Restrictions. Testing, in a manner constituting disposal subject to
tracking, and the and provisions of Sec. 268.20(b)
recordkeeping regarding requirements for treatment standards
requirements for and prohibition levels, the owner or operator
generators, treaters, of a treatment facility (i.e., the recycler) is
and disposal not required to notify the receiving facility,
facilities. pursuant to paragraph (b)(3) of this section.
With each shipment of such wastes, the owner or
operator of the recycling facility must submit
a certification described in paragraph (b)(4)
of this section, and a notice which includes
the information listed in paragraph (b)(3) of
this section (except the manifest number) to
the Regional Administrator, or his delegated
representative. The recycling facility also
must keep records of the name and location of
each entity receiving the hazardous waste-
derived product.
Where the wastes are recyclable materials used
in a manner constituting disposal subject to
the provisions of Sec. 266.20(b) \20\ of this
chapter regarding treatment standards and
prohibition levels, the owner or operator of a
treatment facility (i.e., the recycler) must,
for the initial shipment of waste, prepare a
one-time certification described in paragraph
(b)(4) of this section, and a one-time notice
which includes the information in paragraph
(b)(3) of this section (except the manifest
number). The certification and notification
must be placed in the facility's on-site files.
If the waste or the receiving facility changes,
a new certification and notification must be
prepared and placed in the on-site files. In
addition, the recycling facility must also keep
records of the name and location of each entity
receiving the hazardous waste-derived product.
268.9(d)............................. Land Disposal Wastes that exhibit a characteristic are also
Restrictions. Special subject to Sec. 268.7 requirements, except
rules regarding wastes that once the waste is no longer hazardous, a
that exhibit a one-time notification and certification must be
characteristic. placed in the generators or treaters files and
sent to the EPA region or authorized state. The
notification and certification that is placed
in the generators or treaters files must be
updated if the process or operation generating
the waste changes and/or if the subtitle D
facility receiving the waste changes. However,
the generator or treater need only notify the
EPA region or an authorized state on an annual
basis if such changes occur. Such notification
and certification should be sent to the EPA
region or authorized state by the end of the
calendar year, but no later than December 31.
Wastes that exhibit a characteristic are also
subject to Sec. 268.7 requirements, except
that once the waste is no longer hazardous, a
one-time notification and certification must be
placed in the generator's or treater's files.
The notification and certification must be
updated if the process or operation generating
the waste changes and/or if the subtitle D
facility receiving the waste changes.
----------------------------------------------------------------------------------------------------------------
\20\ In the previous regulatory language, the citation referred to Sec. 268.20(b), however, this was an error.
In today's rule, we are correcting this error by referring to the correct citation which is Sec. 266.20(b).
[[Page 16893]]
I. We Are Making Selected Changes to the Requirements for Document
Submittal
1. We Are Streamlining the Procedure for Obtaining a Variance From
Classification as a Solid Waste
A regulatory agency may grant a variance from classification as a
solid waste for materials that are reclaimed and then reused as
feedstock within the original production process in which the materials
were generated. The regulation lists eight criteria that are to be used
in determining if the request for a variance is to be granted. One of
the criteria is a requirement to demonstrate the prevalence of the
practice on an industry-wide basis.
The proposed rule described a proposal to eliminate the requirement
that applicants for this variance submit information on the prevalence
of the practice on an industry-wide basis. The Agency found that this
information was less important in making the decision than the other
factors and could be difficult for a facility to provide.
Four commenters agreed with the proposal to eliminate the
requirement. One pointed out the difficulty of obtaining such
information, particularly in the batch and speciality chemical
industry. Three states also supported eliminating the requirement.
Three other commenters opposed eliminating the requirement, arguing
that the information is important in determining whether the
reclamation process is an essential part of the production process.
While the Agency believes that this information can be useful in
some cases, we also believe that such industry-wide information about
these practices is not critical in demonstrating or determining that
reclamation is an essential part of production. We believe that a
successful demonstration can be made without this information. We also
acknowledge that this information may be very difficult, and in some
cases, impossible for one company to obtain. We are, therefore,
eliminating the requirement in Sec. 260.31(b)(2) that applicants
provide industry-wide information.
2. We Are Streamlining the Requirements for Treatability Study Reports
for Testing Facilities
Treatability studies are studies at laboratories and testing
facilities in which hazardous waste is tested to evaluate the
effectiveness of a treatment process. (See definition in 40 CFR 260.)
Facilities conducting treatability studies are excluded from the
standard hazardous waste management requirements if they comply with
certain requirements described in Sec. 261.4(f). Paragraph (9)
requires the facility to submit to the regulatory agency an annual
report that includes: (1) An estimate of the number of studies and the
amount of waste expected to be used in treatability studies during the
current year; and (2) information on the treatability studies conducted
during the previous year.
We proposed to reduce burden by eliminating the requirement to
submit an estimate of the number of treatability studies and amount of
waste expected to be used in treatability studies in the upcoming year.
The proposal explained that the requirement is duplicative because the
same information is submitted in the annual report at a later date.
However, the change to the regulations specified in the regulatory text
of the proposal unintentionally eliminated the entire paragraph (9) of
Sec. 261.4(f), thus proposing to eliminate both the requirement to
submit estimates for the current year, as well as information for the
previous year.
The majority of commenters (seven) supported elimination of the
estimates. They did so with the apparent understanding that only the
requirement to provide estimates for the coming year was to be
eliminated, and that the requirement to submit information for the
previous year would remain in place. Most agreed with the proposal to
eliminate the estimates based on the rationale in the preamble that the
information would be provided at a later date. Two commenters did point
out that eliminating all of Sec. 261.4(f)(9) also eliminates the
requirement for providing any report, including the submittal of
information from the previous year.
We agree with commenters that the estimate of upcoming activities
are unnecessary since the same information will be provided later in
the annual report, and the information provided on past activities will
be more accurate than estimates of the future. We are, therefore,
eliminating the requirement in Sec. 261.4(f)(9) to submit estimates of
the number of studies and the amount of waste to be used in
treatability studies for the current year, but are retaining the
requirement for preparing and submitting an annual report providing
information for the previous year.
3. We Are Streamlining the Requirements for Ground-Water Monitoring
As previously discussed in the October 29, 2003 NODA (68 FR 61662),
hazardous waste treatment, storage, and disposal facilities must
implement ground-water monitoring as a condition for receiving a RCRA
permit. EPA requires a phased approach to ground-water monitoring
(detection monitoring, compliance monitoring, corrective action).
Ground-water monitoring systems must consist of a sufficient number of
wells, properly located and constructed, and capable of ensuring that
the ground-water impacts of a treatment, storage, or disposal unit can
be determined. Sampling and analysis procedures must also be capable of
determining both background quality of ground water and quality at the
point of compliance.
If hazardous constituents are detected in ground water, more
detailed monitoring may be required. In this case, a facility would
need additional wells, sampling, and analysis to determine the extent
and rate of contaminant migration, to determine if the ground-water
protection standard is violated, and to indicate the need for, or
effectiveness of, corrective action.
Detection monitoring is the first phase of ground-water monitoring,
and is designed to detect a change in ground-water quality in wells
surrounding a regulated unit. A potential release from the unit, or
impacts from activities up gradient of the unit, may cause this change.
For detection monitoring, ground-water monitoring wells are installed
up-gradient of the unit and at the point of compliance. Facilities then
monitor for each indicator parameter or hazardous constituent specified
in the permit.
Compliance monitoring occurs when hazardous waste constituents are
detected down-gradient of the unit. The permitting authority will
establish hazardous constituent standards for facilities undergoing
compliance monitoring.
The third phase of ground-water monitoring, corrective action, is
required when hazardous constituents exceed the ground-water protection
standards at the point of compliance. Once this has occurred, the owner
or operator must remedy the situation by removing the hazardous
constituents or treating them in place.
We are modifying the Sec. 264.99(g) requirement that facilities
performing compliance monitoring conduct an annual 40 CFR Part 264
Appendix IX (the ground-water monitoring chemical list) analysis of all
monitoring wells. We are allowing, on a case-by-case basis, as
authorized by a permit authority, sampling from a subset of the wells.
Appendix IX analyses are costly at large facilities, and analyzing all
wells does not necessarily contribute to protection of human health and
the environment. This is especially the case if there are
[[Page 16894]]
multiple units and wells at a facility, and only one unit shows signs
of contamination.
In addition, monitoring for constituents that are not likely to be
found at a site is wasteful and does not increase the protection of
monitoring programs. We, therefore, are also modifying Sec.
264.98(g)(2) to give the Regional Administrator discretion on a case-
by-case basis to allow sampling for a subset of the Appendix IX
constituents. While this change was proposed for Sec. 264.98(c), upon
re-evaluation, we decided it is more appropriate to amend Sec.
264.98(g)(2) and leave Sec. 264.98(c) unchanged. Decisions on what
constituents must be sampled will be based on the regulatory agencies'
judgment of what amount of sampling supports the protection of human
health and the environment, as well as the level of knowledge of what
contaminants could be present at a site. As a commenter pointed out,
this subsection prior to today did not require that all samples must be
analyzed for every chemical parameter and hazardous constituent listed
in Appendix IX. Today's rule eliminates ambiguity by specifically
confirming that sampling for a site-specific subset of constituents is
allowable.
Based on a comment we received, we also are revising Sec.
264.98(d) to allow for alternative sampling procedures as provided in
Sec. 264.97(g)(2). Under Sec. 264.98(d), a facility must collect at
least four samples from each well at least semi-annually. This
provision has resulted in sites being required to sample four times
within a single monitoring event, despite the contradiction with Sec.
264.97(g)(2) which allows for an alternate sampling procedure. To
reduce some of the burden related to this sampling and reporting, we
are removing the last sentence from Sec. 264.98(d) (requiring a
facility to collect at least four samples from each well at least semi-
annually). We are also eliminating the last sentence in Sec. 264.99(f)
(requiring a facility to collect at least four samples from each well
at least semi-annually). These changes will prevent Sec. 264.98(d) and
Sec. 264.99(f) from unintentionally trumping the flexibility granted
by Sec. 264.97(g)(2).
Finally, based on another comment received, we are also changing
the re-sampling requirements in Sec. 264.98(g)(3) and Sec. 264.99(g)
from ``may resample within one month'' to ``may resample within one
month or at an alternative site-specific time frame approved by the
Administrator.'' This change allows for sampling to be based on site-
specific hydrogeologic conditions. It also can be burdensome for
facilities to resample wells within 30 days, because this time frame
can allow, in some circumstances, insufficient time to evaluate the
original data set, perform quality assurance evaluations, and re-
mobilize the sampling team.
Table 17.--Changes to the Requirements for Document Submittal for Variances From Classification as a Solid Waste
and for Testing Facilities Regarding Treatability Study Reports
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the Burden
Reduction Rule
----------------------------------------------------------------------------------------------------------------
260.31(b)(2)......................... Rulemaking Petitions. The prevalence of the practice on an industry-
Standards and criteria wide basis.
for variances from
classification as a
solid waste.
Section 260.31(b)(2) has been deleted from the
regulatory text.
261.4(f)(9).......................... General. Exclusions. The facility prepares and submits a report to
Samples undergoing the Regional Administrator, or state Director
treatability studies (if located in an authorized state), by March
at laboratories and 15 of each year that estimates the number of
testing facilities. studies at studies and the amount of waste
laboratories and expected to be used in
treatability testing studies during the current
year, and facilities. includes the following
information for the previous calendar year:
The facility prepares and submits a report to
the Regional Administrator, or state Director
(if located in an authorized state), by March
15 of each year, that includes the following
information for the previous calendar year:
----------------------------------------------------------------------------------------------------------------
Table 18.--Changes to the Requirements for Document Submittal for Permitted Treatment, Storage and Disposal
Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the Burden
Reduction Rule
----------------------------------------------------------------------------------------------------------------
264.98(d)............................ Releases from Solid The Regional Administrator will specify the
Waste Management frequencies for collecting samples and
Units. Detection conducting statistical tests to determine
monitoring program. whether there is statistically significant
evidence of contamination for any parameter or
hazardous constituent specified in the permit
under paragraph (a) of this section in
accordance with Sec. 264.97(g). A sequence of
at least four samples from each well
(background and compliance wells) must be
collected at least semi-annually during
detection monitoring.
The Regional Administrator will specify the
frequencies for collecting samples and
conducting statistical tests to determine
whether there is statistically significant
evidence of contamination for any parameter or
hazardous constituent specified in the permit
conditions under paragraph (a) of this section
in accordance with Sec. 264.97(g).
264.98(g)(2)......................... Releases from Solid Immediately sample the ground water in all
Waste Management monitoring wells and determine whether
Units. Detection constituents in the list of appendix IX of part
monitoring program. 264 are present, and if so, in what
concentration.
[[Page 16895]]
Immediately sample the ground water in all
monitoring wells and determine whether
constituents in the list of appendix IX of part
264 are present, and if so, in what
concentration. However, the Regional
Administrator, on a discretionary basis, may
allow sampling for a site-specific subset of
constituents from the Appendix IX list of this
part and other representative/related waste
constituents.
264.98(g)(3)......................... Releases from Solid For any appendix IX compounds found in the
Waste Management analysis pursuant to paragraph (g)(2) of this
Units. Detection section, the owner or operator may resample
monitoring program. within one month and repeat the analysis for
those compounds detected. If the results of the
second analysis confirm the initial results,
then these constituents will form the basis for
compliance monitoring. If the owner or operator
does not resample for the compounds found
pursuant to paragraph (g)(2) of this section,
the hazardous constituents found during this
initial appendix IX analysis will form the
basis for compliance monitoring.
For any appendix IX compounds found in the
analysis pursuant to paragraph (g)(2) of this
section, the owner or operator may resample
within one month or at an alternative site-
specific schedule approved by the Administrator
and repeat the analysis for those compounds
detected. If the results of the second analysis
confirm the initial results, then these
constituents will form the basis for compliance
monitoring. If the owner or operator does not
resample for the compounds in paragraph (g)(2)
of this section, the hazardous constituents
found during this initial appendix IX analysis
will form the basis for compliance monitoring.
264.99(f)............................ Releases from Solid The Regional Administrator will specify the
Waste Management frequencies for collecting samples and
Units. Compliance conducting statistical tests to determine
monitoring program. statistically significant evidence of increased
contamination in accordance with Sec.
264.97(g). A sequence of at least four samples
from each well (background and compliance
wells) must be collected at least semi-annually
during the compliance period of the facility.
The Regional Administrator will specify the
frequencies for collecting samples and
conducting statistical tests to determine
statistically significant evidence of increased
contamination in accordance with Sec.
264.97(g).
264.99(g)............................ Releases from Solid The owner or operator must analyze samples from
Waste Management all monitoring wells at the compliance point
Units. Compliance for all constituents contained in appendix IX
monitoring program. of part 264 at least annually to determine
whether additional hazardous constituents are
present in the uppermost aquifer and, if so at
what concentrations, pursuant to procedures in
Sec. 264.98(f). If the owner or operator
finds appendix IX constituents in the ground
water that are not already identified in the
permit as monitoring constituents, the owner or
operator may resample within one month and
repeat the appendix IX analysis. If the second
analysis confirms the presence of new
constituents, the owner or operator must report
the concentration of these additional
constituents to the Regional Administrator
within seven days after the completion of the
second analysis and add them to the monitoring
list. If the owner or operator chooses not to
resample, then he or she must report the
concentrations of these additional constituents
to the Regional Administrator within seven days
after completion of the initial analysis and
add them to the monitoring list.
Annually, the owner or operator must determine
whether additional hazardous constituents from
appendix IX of this 264, which could possibly
be present but are not on the detection
monitoring list in the permit, are actually
present in the uppermost aquifer and, if so, at
what concentration, pursuant to procedures in
Sec. 264.98(f). To accomplish this, the owner
or operator must consult with the Regional
Administrator to determine on a case-by-case
basis: (1) Which sample collection event during
the year will involve enhanced sampling; (2)
the number of monitoring wells at the
compliance point to undergo enhanced sampling;
(3) the number of samples to be collected from
each of these monitoring wells; and, (4) the
specific constituents from Appendix IX of this
264 for which these samples must be analyzed.
If the enhanced sampling event indicates that
appendix IX constituents are present in the
ground water that are not already identified in
the permit as monitoring constituents, the
owner or operator may resample within one month
or at an alternative site-specific schedule
approved by the Regional Administrator, and
repeat the analysis. If the second analysis
confirms the presence of new constituents, the
owner or operator must report the concentration
of these additional constituents to the
Regional Administrator within seven days after
the completion of the second analysis and add
them to the monitoring list. If the owner or
operator chooses not to resample, then he or
she must report the concentrations of these
additional constituents to the Regional
Administrator within seven days after
completion of the initial analysis, and add
them to the monitoring list.
----------------------------------------------------------------------------------------------------------------
[[Page 16896]]
J. We Are Making Selected Changes to the Requirements for Semi-Annual
Reports to Annual Reports
1. We Are Changing the Requirement for a Semi-Annual Report Detailing
the Effectiveness of the Corrective Action Program
Section 264.100(g) requires the owner or operator of a permitted
facility to report in writing to the Regional Administrator on the
effectiveness of the corrective action program. These reports must be
submitted semi-annually. We are now requiring an annual report instead
of a semi-annual report. While this change was not in the proposed
rule, it was identified in the comments received and was discussed in
the October 29, 2003 NODA (68 FR 61668). It is a change that conforms
to the change we are making to Sec. 264.113(e)(5) and was supported by
a majority of the commenters.
2. We Are Changing the Requirement for a Semi-Annual Report Describing
the Progress of the Corrective Action Program
We proposed lengthening the reporting frequency for corrective
action effectiveness reports required by Sec. Sec. 264.113(e)(5) and
265.113(e)(5). These reports are currently required to be submitted
semi-annually and include a description of the progress of the
corrective action program, all ground-water monitoring data, and an
evaluation of the effect of the continued receipt of non-hazardous
wastes on the effectiveness of the corrective action. We received
comments, mainly from the states, on this proposed regulatory change.
Several states suggested giving the regulatory agency the flexibility
of establishing report submittals on a case-by-case basis. Other states
suggested the reports be submitted at least annually. Still another
state suggested that the semi-annual submittal of reports is preferred
because it allows the state to identify inadequate monitoring systems
earlier, which in turn, could save the facilities needless ground-water
monitoring expenses.
After reviewing the comments submitted, we have decided to
promulgate the changes as proposed. Ground-water cleanup is generally a
multi-year effort. Thus, we believe that annual submittal of these
reports will not jeopardize the protection of human health and the
environment.
Table 19.--Reduced Frequency for Submittal of Reports for Permitted Treatment, Storage and Disposal Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the Burden
Reduction Rule
----------------------------------------------------------------------------------------------------------------
264.100(g)........................... Releases from Solid The owner or operator must report in writing to
Waste Management the Regional Administrator on the effectiveness
Units. Corrective of the corrective action program. The owner or
action program. operator must submit these reports semi-
annually.
The owner or operator must report in writing to
the Regional Administrator on the effectiveness
of the corrective action program. The owner or
operator must submit these reports annually.
264.113(e)(5)........................ Closure and Post- During the period of corrective action, the
Closure. Closure; time owner or operator shall provide semi-annual
allowed for closure. reports to the Regional Administrator that
describe the progress of the corrective action
program, compile all ground-water monitoring
data, and evaluate the effect of the continued
receipt of non-hazardous wastes on the
effectiveness of the corrective action.
During the period of corrective action, the
owner or operator shall provide annual reports
to the Regional Administrator describing the
progress of the corrective action program,
compile all ground-water monitoring data, and
evaluate the effect of the continued receipt of
non-hazardous wastes on the effectiveness of
the corrective action.
----------------------------------------------------------------------------------------------------------------
Table 20.--Reduced Frequency for Submittal of Reports for Interim Status Treatment, Storage and Disposal
Facilities
----------------------------------------------------------------------------------------------------------------
Current regulatory language
-------------------------------------------------
CFR section Regulatory requirement New regulatory language as amended by the Burden
Reduction Rule
----------------------------------------------------------------------------------------------------------------
265.113(e)(5)........................ Closure and Post- During the period of corrective action, the
Closure. Closure; time owner or operator shall provide semi-annual
allowed for closure. reports to the Regional Administrator that
describe the progress of the corrective action
program, compile all ground-water monitoring
data, and evaluate the effect of the continued
receipt of non-hazardous wastes on the
effectiveness of the corrective action.
During the period of corrective action, the
owner or operator shall provide annual reports
to the Regional Administrator describing the
progress of the corrective action program,
compile all ground-water monitoring data, and
evaluate the effect of the continued receipt of
non-hazardous wastes on the effectiveness of
the corrective action.
----------------------------------------------------------------------------------------------------------------
IV. What Regulatory Requirements Will Remain in the CFR?
Commenters opposed a number of the burden reduction changes that we
either proposed or noticed in our October 29, 2003 NODA. After thorough
analysis of the comments, and in consultation with state
representatives, we have decided (at least for the present time) to
retain these regulatory requirements. Stakeholders persuaded us that
these changes could delete important recordkeeping and reporting
requirements that were necessary in order to protect human health and
the environment. Stakeholders, particularly the states, also provided
arguments as to
[[Page 16897]]
the importance of retaining their oversight role when dealing with
leaks and spills of hazardous waste. Table 21--Regulatory Requirements
That Will Remain in the CFR, identifies those proposed regulatory
sections that we are not promulgating in today's rule.
For information on what commenters said regarding particular
provisions and the Agency's response, the reader is referred to the
following document, Response to Comments Background Document that can
be found in the rulemaking docket.
Table 21.--Regulatory Requirements That Will Remain in the CFR
------------------------------------------------------------------------
CFR section Regulatory requirement
------------------------------------------------------------------------
261.38....................... Lists of Hazardous Wastes. Comparable/
syngas fuel exclusion.
261.38(c)(1)(i)(A)........... Submit a one-time comparable/syngas fuel
notice to the permitting agency.
264/5.16..................... General Facility Standards. Personnel
training.
264/5.16(d)(1)............... Record the job title.
264/5.16(d)(2)............... Record job description.
264/5.16(d)(3)............... Record type and amount of training
employees will be provided.
264.90....................... Releases From Solid Waste Management
Units. Applicability.
264.90(a)(2)................. Comply with the requirements of 264.101
with exceptions for surface
impoundments, waste piles, land
treatment unit, or landfills.
264/5.98..................... Releases From Solid Waste Management
Units. Detection monitoring program.
264.98(c).................... Conduct and maintain ground-water
monitoring.
264.98(g)(1)................. Prepare and submit a notification of
contamination.
264.98(g)(5)(ii)............. Prepare and submit an engineering
feasibility plan for corrective action.
264.98(g)(6)(i)-(ii)......... Prepare and submit a notification of
intent to make a demonstration.
264.99....................... Releases From Solid Waste Management
Units. Compliance monitoring program.
264.99(h)(1)................. Prepare and submit a notification of
exceeded concentration limits.
264.99(i)(1)-(2)............. Prepare and submit a notification of
intent to make a demonstration.
264/5.174.................... Use and Management of Containers.
Inspections.
264/5.174.................... Inspect containers weekly.
264/5.193.................... Tank Systems. Leak detection systems for
tanks.
264.193(c)(3)................ Demonstration.
264.193 (c)(4)............... Demonstration.
264/5.193(e)(3)(iii)......... Demonstrate to EPA that technology and
site conditions do not allow detection
of release within 24 hours.
264/5.193(g)................. Variance from leak detection systems for
tanks.
264/5.193(h)................. Variance from leak detection systems for
tanks.
264.196...................... Tank Systems. Response to leaks or spills
and disposition of leaking or unfit-to
use tank systems.
264.196(d)(1)................ Notify EPA of release.
264.196(d)(2)................ Notify EPA of release.
264.196(d)(3)................ Submit report describing release.
264/5.223.................... Surface Impoundments. Response actions.
264/5.223(b)(1).............. Notify EPA in writing if flow rate
exceeds Action Leakage Rate for any sump
within 7 days.
264/5.223(b)(2).............. Submit a written assessment to the
Regional Administrator within 14 days of
determination of leakage.
264/5.223(b)(6).............. Compile and submit information to EPA
each month the Action Leakage Rate is
exceeded.
264.253...................... Waste Piles. Response actions.
264.253(b)(1)................ Notify EPA in writing of the exceedence
within 7 days of the determination.
264.253(b)(2)................ Submit a written assessment to the
Regional Administrator within 14 days of
determining leakage.
264.253(b)(6)................ Compile and submit information to the EPA
each month that the Action Leakage Rate
is exceeded.
264.278...................... Land Treatment. Unsaturated zone
monitoring.
264.278(g)(1)................ Prepare and submit a notice of
statistically significant increases in
hazardous constituents below treatment
zone.
264.278(h)(1)-(2)............ Prepare and submit a notice of intent to
make a demonstration that other sources
or error led to increases below
treatment zone.
264.304...................... Landfills. Response actions.
264.304(b)(1)................ Notify EPA if Action Leakage Rate is
exceeded within 7 days of determination.
264.304(b)(2)................ Submit a written assessment to the
Regional Administrator within 14 days of
determination of leakage.
264.304(b)(6)................ Submit information to EPA each month the
Action Leakage Rate is exceeded.
264.573...................... Drip Pads. Design and operating
standards.
264.573(m)(1)(iv)............ Notify EPA in writing of release.
264.573(m)(2)................ Regional Administrator will make a
determination and will notify owner/
operator of the determination.
264.573(m)(3)................ Notify EPA and certify completion of
repairs.
264.1036..................... Air Emission Standards for Process Vents.
Reporting requirements.
264.1036(a).................. Notify EPA semi-annually of exceedences.
264.1065..................... Air Emission Standards for Equipment
Leaks. Reporting requirements.
264.1065(a).................. Notify EPA semi-annually of exceedences.
264/5.1101................... Containment Buildings. Design and
operating standards.
265.1101(c)(2)............... Certify by qualified professional
engineer.
264/5.1101(c)(3)(i)(D)....... Notify EPA in writing of release.
264/5.1101(c)(3)(ii)-(iii)... Notify EPA and verify in writing that the
cleanup and repairs have been completed
after a release.
264/5.1101(c)(4)............. Inspection frequency.
265.1(b)..................... Purpose, scope, and applicability.
265.93....................... Ground-Water Monitoring. Preparation,
evaluation, and response.
265.93(c)(1)................. Notify of increased indicator parameter
concentrations.
265.93(d)(1)................. Notify of increased indicator parameter
concentrations.
265.93(e).................... Any ground-water assessment to satisfy
the requirements of Sec. 265.93(d)(4)
which is initiated prior to final
closure must be completed and reported
in accordance with Sec. 265.93(d)(5).
[[Page 16898]]
265.93(f).................... Evaluate data and if Sec. 265.91(a) are
not satisfied, immediately modify the
number, location, or depth of the
monitoring wells.
265.94....................... Ground-Water Monitoring. Recordkeeping
and reporting.
265.94(a)(2)(i).............. Prepare and submit a quarterly report of
concentrations of values of the drinking
water suitability parameters.
265.94(a)(2)(ii)............. Prepare and submit a report on indicator
parameter concentrations and
evaluations.
265.94(a)(2)(iii)............ Prepare and submit a report on ground-
water surface elevations.
265.94(b)(2)................. Prepare and submit a report on the
results of the ground-water quality
assessment program.
265.259...................... Waste Piles. Response actions.
265.259(b)(1)................ Notify EPA in writing within 7 days of
determination.
265.259(b)(2)................ Submit a written assessment to the
Regional Administrator within 14 days of
determination of leakage.
265.259(b)(6)................ Submit information to EPA each month that
the Action Leakage Rate is exceeded.
265.276...................... Land Treatment. Food-chain crops.
265.276(a)................... Submit notification for food-chain crops
at land treatment facility.
265.303...................... Landfills. Response actions.
265.303(b)(1)................ Notify EPA if Action Leakage Rate is
exceeded within 7 days of determination.
265.303(b)(2)................ Submit a written assessment to the
Regional Administrator within 14 days of
determination of leakage.
265.303(b)(6)................ Submit information to EPA each month the
Action Leakage Rate is exceeded.
265.443...................... Drip Pads. Design and operating
requirements.
265.443(m)(1)(iv)(2)......... Notify EPA of release and provide written
notice of procedures and schedule for
cleanup.
265.443(m)(2)................ Regional Administrator will make a
determination and notify the owner/
operator of the determination.
265.443(m)(3)................ Notify Regional Administrator and certify
completion of repairs.
266.103...................... Hazardous Waste Burned in Boilers and
Industrial Furnaces. Interim status
standards for burners.
266.103(b)(2)(ii)(D)......... Certification of pre-compliance.
268.7........................ Land Disposal Restrictions. General.
Testing, tracking, and recordkeeping
requirements for generators, treaters,
and disposal facilities.
268.7(a)(6).................. Requirement to keep in the facility's
files all supporting data and waste
analysis data for ``knowledge of the
waste'' determinations and for testing
determinations.
268.7(d)(1).................. Requirement to submit to the regulatory
authority one-time notifications that
hazardous debris is excluded form the
definition of hazardous waste.
270.17(d).................... Permit Application. Specific part B
information requirements for surface
impoundments.
------------------------------------------------------------------------
V. We Will Implement This Rule Via the Class I Permit Modification
Process Without Prior Approval
Several comments on the proposed rule pointed out that implementing
many of the changes in the proposal would require a Class 2 Permit
modification for facilities with permits (see the following Web site
for information about Permit modifications: http://www.epa.gov/epaoswer/hotline/training/perm.pdf). Obtaining a Class 2 Permit
modification requires a substantial effort on the part of a regulated
facility, which is contrary to the intent of today's rule. We believe
the changes in this rule will provide no significant risk to human
health or the environment, and thus, we prefer that these changes
become effective as quickly as possible so that the paperwork reduction
benefits from the rule can be realized.
Therefore, in our October 29, 2003 NODA, we requested comment on
allowing permitted facilities to use the Class 1 permit modification
procedure, with prior Agency approval, to implement the changes arising
from this rulemaking. We also requested comment on whether the Class 1
permit modifications should be without prior Agency approval.
States represented by the Association of State and Territorial
Solid Waste Management Officials (ASTSWMO) requested that we use the
Class 1 permit modification procedure with prior Agency approval. They
expressed an interest in retaining oversight in the implementation of
our burden reductions. After weighing this interest against the
interest in achieving savings as soon as possible, we have decided in
favor of not delaying the benefits of this rule. This is based on our
judgment that, in general, the risks associated with these changes are
negligible. We will allow the changes in today's rule to be implemented
as Class 1 permit modifications without prior approval, except for a
permit modification for reduced inspection frequency for Performance
Track member facilities which will be implemented as a Class 1 permit
modification with prior approval. To implement this approach, we are
adding regulatory language and an entry to the permit modification
classification table in Appendix I to 270.42, denoting modifications
pursuant to the burden reduction rule. However, we wish to point out
that, unless state law prevents it, states can be more stringent than
the EPA rules if there are specific concerns with the consequences of
these changes in any state. All states also can use the omnibus
authority of RCRA Section 3005(c) for specific facilities where they
believe there is risk due to site-specific circumstances not identified
in our rulemaking process. This will allow states to retain oversight
where they choose to do so.
VI. How Will Today's Regulatory Changes Be Administered and Enforced in
the States?
A. Applicability of Federal Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified states to
administer their own hazardous waste programs in lieu of the federal
program within the state. Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
Part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a state with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
federal program in that state. The federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
issue RCRA permits. When new, more stringent federal
[[Page 16899]]
requirements were promulgated, the state was obligated to enact
equivalent authorities within specified time frames. However, the new
federal requirements did not take effect in an authorized state until
the state adopted the federal requirements as state law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
including the issuance of permits, until the state is granted
authorization to do so. While states must still adopt HSWA related
provisions as state law to retain final authorization, EPA implements
the HSWA provisions in authorized states until the states do so.
Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than existing federal requirements. RCRA section 3009 allows the
states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
B. Authorization of States for Today's Rule
Today's rule affects many aspects of the RCRA program and is
promulgated pursuant to both HSWA and non-HSWA statutory authority.
Today's rule amends a number of provisions in the RCRA regulations
which were promulgated pursuant to HSWA. These provisions include,
among others, the land disposal restrictions and the regulation of air
emissions from hazardous waste facilities, which were promulgated
pursuant to authority in sections 3004(m) and (o) respectively, of
RCRA. Therefore, the Agency is adding the rule to Table 1 in 40 CFR
271.1(j), which identifies the Federal program requirements that are
promulgated pursuant to the statutory authority that was added by HSWA.
Other sections of today's rule are being promulgated pursuant to
non-HSWA authority. All of the HSWA and non-HSWA requirements in
today's rulemaking are equivalent to, or less stringent than, the
existing provisions in the Federal regulations which they would amend.
Authorized states are required to modify their program only when EPA
promulgates Federal regulations that are more stringent or broader in
scope than the authorized state regulations. For those changes that are
less stringent or reduce the scope of the Federal program, states are
not required to modify their program. This is a result of section 3009
of RCRA, which allows states to impose more stringent regulations than
the Federal program. Therefore, states are not required to adopt and
seek authorization for this rulemaking. EPA will implement this
rulemaking only in those states which are not authorized for the RCRA
program, and will implement provisions promulgated pursuant to HSWA
only in those states which have not received authorization for the HSWA
provision that is amended today.
Nevertheless, this rule will provide significant benefits to EPA,
states, and the regulated community, without compromising human health
or environmental protection. Because this rulemaking will not become
effective in authorized states until they have adopted and are
authorized for it, we strongly encourage states to amend their programs
and seek authorization for today's rule. EPA will try to act promptly
on any such requests for authorization.
VII. Statutory and Executive Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is significant and
therefore subject to OMB review and the requirements of the Executive
Order. 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 a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Although this rule clarifies inconsistencies in the regulations and
decreases burden, it is still considered a significant regulatory
action under the terms of Executive Order 12866 since it addresses one
of the President's priorities of reducing burden.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This rule is promulgating changes to the regulatory requirements of the
RCRA hazardous waste program to reduce the paperwork burden certain
requirements impose on the States, EPA, and the regulated community.
EPA estimates that the reporting and recordkeeping hour burden
reduction for this rule ranges from 22,000 hours to 37,500 hours. EPA
also estimates that the reporting and recordkeeping cost burden
reduction for this rule ranges from approximately $2 million to $3
million. The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations 40 CFR parts 260, 261, 264, 265, 266, 268, 270,
and 271, under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. The burden reduction resulting from this rulemaking will
affect the following seven existing Information Collection Requests
(ICRs): OMB control number 2050-0033, Facility Groundwater Monitoring
Requirements, EPA ICR number 0959.12; OMB control number 2050-0035,
Hazardous Waste Generator Standards, EPA ICR number 0820.09; OMB
control number 2050-0050, Hazardous Waste Specific Unit Requirements
and Special Waste Processes and Types, EPA ICR number 1572.06; OMB
control number 2050-0053, Identification, Listing and Rulemaking
Petitions, EPA ICR number 1189.14; OMB control number 2050-0073,
Boilers and Industrial Furnaces: General Hazardous Waste Facility
Standards, Specific Unit Requirements and Part B Permit Application and
Modifications Requirements, EPA ICR number 1361.10; OMB control number
2050-0085, Land Disposal Restrictions, EPA ICR number 1442.18; OMB
control number 2050-0120, General Hazardous Waste Facility Standards,
EPA ICR number 1571.07. A copy of these OMB approved Information
Collection Requests (ICR) may be obtained from Susan Auby, Collection
Strategies Division; U.S. Environmental Protection Agency (2822T); 1200
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop,
[[Page 16900]]
acquire, install, and utilize technology and systems for the purposes
of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the final rule on small
entities, a ``small entity'' is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
The final rule is specifically intended to reduce, not increase,
the paperwork and related burdens of the RCRA hazardous waste program.
For businesses in general, including all small businesses, the
regulatory changes will reduce the labor time and other costs of
preparing, keeping records of, and submitting reports to the Agency.
The final rule, for example, reduces the frequency by which businesses
must conduct specified recordkeeping and reporting activities (e.g.,
decreased inspection frequency for hazardous waste tanks from daily to
weekly). It also eliminates certain recordkeeping and reporting
requirements altogether, i.e., in cases where the documents are little
used by the public or regulators. In addition, the rule eliminates
redundancies between the RCRA regulations and other regulatory programs
(e.g., RCRA and OSHA requirements for personnel training), thereby
streamlining facilities' compliance activities. Finally, the rule
provides increased flexibility in how waste handlers may comply with
the regulations (e.g., establishment of decreased inspection
frequencies for facilities in the National Performance Track Program).
We have therefore concluded that today's final rule will relieve
regulatory burden for all affected small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on state, local, and tribal governments and
the private sector. Under Section 202 of the UMRA, EPA must prepare a
written statement for rules with Federal mandates that may result in
the expenditure by state, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year. Before promulgating a rule for which a written statement is
needed, Section 205 of the UMRA requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of Section 205 do
not apply when they are inconsistent with applicable law. Moreover,
Section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed, under Section 203 of the UMRA, a
small government agency plan. The plan must provide for notifying
potentially affected small governments; enabling officials of affected
small governments to provide meaningful and timely input in the
development of EPA regulatory proposals with significant federal
intergovernmental mandates; and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that the final rule does not contain a federal
mandate that may result in expenditures of $100 million or more by
State, local, and tribal governments, in the aggregate, or by the
private sector, in any one year. In addition, the rule contains no
regulatory requirements for small governments. Thus, the final rule is
not subject to the requirements of Sections 202, 203, and 205 of the
UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132 requires EPA to develop an accountable
process to ensure ``meaningful and timely input by state and local
officials in the development of regulatory policies that have
Federalism implications.'' As defined in Executive Order 13132,
``policies that have Federalism implications'' include regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on the
states, on the relationship between the National Government and the
states, or on the distribution of power and responsibilities among the
various levels of government.
Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal Government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or EPA
consults with state and local officials early in the process of
developing the proposed regulation. EPA may not issue a regulation that
has federalism implications and that preempts state law, unless the
Agency consults with state and local officials early in the process of
developing the proposed regulation.
The final rule does not have federalism implications. It will not
have
[[Page 16901]]
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it will not impose any
requirements on states or any other level of government. As explained
above, the final rule eliminates or relaxes many of the paperwork
requirements in the regulations. Because these changes are equivalent
to or less stringent than the existing federal program, states will not
be required to adopt and seek authorization for them. Thus, the
requirements of Section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 requires EPA to develop an accountable
process to ensure ``meaningful and timely input by Tribal officials in
the development of regulatory policies that have Tribal implications.''
As defined in Executive Order 13175, ``policies that have Tribal
implications'' include regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes.
The final rule does not have tribal implications. It will not have
substantial direct effects on Tribal governments, on the relationship
between the Federal Government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian Tribes, as specified in Executive Order 13175. As
explained above, the final rule eliminates or relaxes many of the
paperwork requirements in the regulations. Thus, Executive Order 13175
does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045 applies to any rule that may: (1) Be
``economically significant'under Executive Order 12866 (i.e., a
rulemaking that has an annual effect on the economy of $100 million or
more or would 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), and (2) concern an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children. If the regulatory action meets both criteria, the Agency must
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
EPA has determined that the final rule is not subject to Executive
Order 13045 because it is not an ``economically significant'' rule as
defined by Executive Order 12866. EPA also expects the rule does not
have a disproportionate effect on children's health. The basic reason
for this finding is that the rule modifies or eliminates paperwork
requirements that were deemed unnecessary or infrequently used by
regulators. However, the rule preserves the technical requirements
underlying these paperwork requirements. In addition, regulators
continue to have access to all facility paperwork held on site, should
the need arise.
In addition, EPA has reduced the inspection frequency of tank
systems from each operating day to at least weekly, provided that the
tank systems have full secondary containment with leak detection
equipment or established workplace practices that will alert facility
personnel. SQG tank systems are required to have secondary containment
with leak detection equipment or established workplace practices to
adopt the weekly inspections.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
Executive Order 13211 requires EPA to prepare and submit a
Statement of Energy Effects to OMB for those matters identified as
significant energy actions. As defined in Executive Order 13211, a
``significant energy action'' is any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking that: (1) Is a significant regulatory action
under Executive Order 12866 or any successor order and is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (2) is designated by OMB as a significant energy action.
The final rule does not involve the supply, distribution, or use of
energy. Thus, Executive Order 13211 does not apply to this rule.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures) that are developed
or adopted by voluntary consensus standards bodies. The NTTAA also
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable voluntary consensus
standards.
The final rule does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Under Executive Order 12898, as well as through EPA's April 1995
``Environmental Justice Strategy, OSWER Environmental Justice Task
Force Action Agency Report'' and National Environmental Justice
Advisory Council, EPA has undertaken to incorporate environmental
justice into its policies and programs. EPA is committed to addressing
environmental justice concerns, and is assuming a leadership role in
environmental justice initiatives to enhance environmental quality for
all residents of the U.S. The Agency's goals are to ensure that no
segment of the population, regardless of race, color, national origin,
or income, bears disproportionately high and adverse human health and
environmental effects as a result of EPA's policies, programs, and
activities.
EPA has considered the impacts of the final rule on low-income
populations and minority populations and concluded that there are no
disproportionately high impacts under the rule. The basic reason for
this finding is that the rule modifies or eliminates paperwork
requirements that were deemed unnecessary or infrequently used by
regulators. However, the rule preserves the technical requirements
underlying these paperwork requirements. In addition, regulators
continue to have access to all facility paperwork held on site, should
the need arise.
[[Page 16902]]
In addition, EPA has reduced the inspection frequency of tank
systems from each operating day to at least weekly, provided that the
tank systems have full secondary containment with leak detection
equipment or workplace practices that will alert facility personnel.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective May 4, 2006.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste Reporting and
recordkeeping requirements.
40 CFR Part 261
Excluded hazardous waste, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 264
Air pollution control, Hazardous waste, Insurance, Packaging and
containers, Reporting and recordkeeping requirements, Security
measures, Surety bonds.
40 CFR Part 265
Air pollution control, Hazardous waste, Insurance, Packaging and
containers, Reporting and recordkeeping requirements, Security
measures, Surety bonds, Water supply.
40 CFR Part 266
Energy, Hazardous waste, Recycling, Reporting and recordkeeping
requirements.
40 CFR Part 268
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 270
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
40 CFR Part 271
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Indians-lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Dated: March 15, 2006.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40 of the Code of
Federal Regulations is amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
1. The authority citation for part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
Subpart B--Definitions
0
2. Section 260.10 is amended by adding in alphabetical order the
definition of ``Performance Track member facility'' to read as follows:
Sec. 260.10 Definitions.
* * * * *
Performance Track member facility means a facility that has been
accepted by EPA for membership in the National Environmental
Performance Track Program and is still a member of the Program. The
National Environmental Performance Track Program is a voluntary,
facility based, program for top environmental performers. Facility
members must demonstrate a good record of compliance, past success in
achieving environmental goals, and commit to future specific quantified
environmental goals, environmental management systems, local community
outreach, and annual reporting of measurable results.
* * * * *
Subpart C--Rulemaking Petitions
Sec. 260.31 [Amended]
0
3. Section 260.31 is amended by removing paragraph (b)(2) and
redesignating paragraphs (b)(3) through (b)(8) as (b)(2) through
(b)(7).
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
4. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
Subpart A--General
0
5. Section 261.4 is amended by revising paragraphs (a)(9)(iii)(E) and
(f)(9) introductory text to read as follows:
Sec. 261.4 Exclusions.
(a) * * *
(9) * * *
(iii) * * *
(E) Prior to operating pursuant to this exclusion, the plant owner
or operator prepares a one-time notification stating that the plant
intends to claim the exclusion, giving the date on which the plant
intends to begin operating under the exclusion, and containing the
following language: ``I have read the applicable regulation
establishing an exclusion for wood preserving wastewaters and spent
wood preserving solutions and understand it requires me to comply at
all times with the conditions set out in the regulation.'' The plant
must maintain a copy of that document in its on-site records until
closure of the facility. The exclusion applies so long as the plant
meets all of the conditions. If the plant goes out of compliance with
any condition, it may apply to the appropriate Regional Administrator
or state Director for reinstatement. The Regional Administrator or
state Director may reinstate the exclusion upon finding that the plant
has returned to compliance with all conditions and that the violations
are not likely to recur.
* * * * *
(f) * * *
(9) The facility prepares and submits a report to the Regional
Administrator, or state Director (if located in an authorized state),
by March 15 of each year, that includes the following information for
the previous calendar year:
* * * * *
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
0
6. The authority citation for part 264 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
[[Page 16903]]
Subpart B--General Facility Standards
0
7. Section 264.15 is amended by revising paragraph (b)(4) (the comment
to paragraph (b)(4) is unchanged), and adding paragraph (b)(5) to read
as follows:
Sec. 264.15 General inspection requirements.
* * * * *
(b) * * *
(4) The frequency of inspection may vary for the items on the
schedule. However, the frequency should be based on the rate of
deterioration of the equipment and the probability of an environmental
or human health incident if the deterioration, malfunction, or operator
error goes undetected between inspections. Areas subject to spills,
such as loading and unloading areas, must be inspected daily when in
use, except for Performance Track member facilities, that must inspect
at least once each month, upon approval by the Director, as described
in paragraph (b)(5) of this section. At a minimum, the inspection
schedule must include the items and frequencies called for in
Sec. Sec. 264.174, 264.193, 264.195, 264.226, 264.254, 264.278,
264.303, 264.347, 264.602, 264.1033, 264.1052, 264.1053, 264.1058, and
264.1083 through 264.1089 of this part, where applicable.
* * * * *
(5) Performance Track member facilities that choose to reduce their
inspection frequency must:
(i) Submit a request for a Class I permit modification with prior
approval to the Director. The modification request must identify the
facility as a member of the National Environmental Performance Track
Program and identify the management units for reduced inspections and
the proposed frequency of inspections. The modification request must
also specify, in writing, that the reduced inspection frequency will
apply for as long as the facility is a Performance Track member
facility, and that within seven calendar days of ceasing to be a
Performance Track member, the facility will revert to the non-
Performance Track inspection frequency. Inspections must be conducted
at least once each month.
(ii) Within 60 days, the Director will notify the Performance Track
member facility, in writing, if the request is approved, denied, or if
an extension to the 60-day deadline is needed. This notice must be
placed in the facility's operating record. The Performance Track member
facility should consider the application approved if the Director does
not: deny the application; or notify the Performance Track member
facility of an extension to the 60-day deadline. In these situations,
the Performance Track member facility must adhere to the revised
inspection schedule outlined in its request for a Class 1 permit
modification and keep a copy of the application in the facility's
operating record.
(iii) Any Performance Track member facility that discontinues their
membership or is terminated from the program must immediately notify
the Director of their change in status. The facility must place in its
operating record a dated copy of this notification and revert back to
the non-Performance Track inspection frequencies within seven calendar
days.
* * * * *
0
8. Section 264.16 is amended by adding new paragraph (a)(4) to read as
follows:
Sec. 264.16 Personnel training.
(a)(1) * * *
(4) For facility employees that receive emergency response training
pursuant to Occupational Safety and Health Administration (OSHA)
regulations 29 CFR 1910.120(p)(8) and 1910.120(q), the facility is not
required to provide separate emergency response training pursuant to
this section, provided that the overall facility training meets all the
requirements of this section.
* * * * *
Subpart D--Contingency Plan and Emergency Procedures
0
9. Section 264.52 is amended by revising paragraph (b) to read as
follows:
Sec. 264.52 Content of contingency plan.
* * * * *
(b) If the owner or operator has already prepared a Spill
Prevention, Control, and Countermeasures (SPCC) Plan in accordance with
part 112 of this chapter, or part 1510 of chapter V, or some other
emergency or contingency plan, he need only amend that plan to
incorporate hazardous waste management provisions that are sufficient
to comply with the requirements of this part. The owner or operator may
develop one contingency plan which meets all regulatory requirements.
EPA recommends that the plan be based on the National Response Team's
Integrated Contingency Plan Guidance (``One Plan''). When modifications
are made to non-RCRA provisions in an integrated contingency plan, the
changes do not trigger the need for a RCRA permit modification.
* * * * *
Sec. 264.56 [Amended]
0
10. Section 264.56 is amended by removing paragraph (i) and
redesignating paragraph (j) as paragraph (i).
Subpart E--Manifest System, Recordkeeping, and Reporting
0
11. Section 264.73 is amended by revising paragraphs (b) introductory
text, (b)(1), (b)(2) (the comment to (b)(2) remains unchanged), (b)(6),
(b)(8), and (b)(10), and by adding paragraphs (b)(18) and (b)(19) to
read as follows:
Sec. 264.73 Operating record.
* * * * *
(b) The following information must be recorded, as it becomes
available, and maintained in the operating record for three years
unless noted as follows:
(1) A description and the quantity of each hazardous waste
received, and the method(s) and date(s) of its treatment, storage, or
disposal at the facility as required by appendix I of this part. This
information must be maintained in the operating record until closure of
the facility;
(2) The location of each hazardous waste within the facility and
the quantity at each location. For disposal facilities, the location
and quantity of each hazardous waste must be recorded on a map or
diagram that shows each cell or disposal area. For all facilities, this
information must include cross-references to manifest document numbers
if the waste was accompanied by a manifest. This information must be
maintained in the operating record until closure of the facility.
* * * * *
(6) Monitoring, testing or analytical data, and corrective action
where required by subpart F of this part and Sec. Sec. 264.19,
264.191, 264.193, 264.195, 264.222, 264.223, 264.226, 264.252-264.254,
264.276, 264.278, 264.280, 264.302-264.304, 264.309, 264.602,
264.1034(c)-264.1034(f), 264.1035, 264.1063(d)-264.1063(i), 264.1064,
and 264.1082 through 264.1090 of this part. Maintain in the operating
record for three years, except for records and results pertaining to
ground-water monitoring and cleanup which must be maintained in the
operating record until closure of the facility.
* * * * *
(8) All closure cost estimates under Sec. 264.142, and for
disposal facilities, all post-closure cost estimates under Sec.
264.144 of this part. This information must be maintained in the
operating record until closure of the facility.
* * * * *
[[Page 16904]]
(10) Records of the quantities and date of placement for each
shipment of hazardous waste placed in land disposal units under an
extension to the effective date of any land disposal restriction
granted pursuant to Sec. 268.5 of this chapter, a petition pursuant to
Sec. 268.6 of this chapter, or a certification under Sec. 268.8 of
this chapter, and the applicable notice required by a generator under
Sec. 268.7(a) of this chapter. This information must be maintained in
the operating record until closure of the facility.
* * * * *
(18) Monitoring, testing or analytical data where required by Sec.
264.347 must be maintained in the operating record for five years.
(19) Certifications as required by Sec. 264.196(f) must be
maintained in the operating record until closure of the facility.
Subpart F--Releases From Solid Waste Management Units
0
12. Section 264.98 is amended by revising paragraphs (d), (g)(2), and
(g)(3) to read as follows:
Sec. 264.98 Detection monitoring program.
* * * * *
(d) The Regional Administrator will specify the frequencies for
collecting samples and conducting statistical tests to determine
whether there is statistically significant evidence of contamination
for any parameter or hazardous constituent specified in the permit
conditions under paragraph (a) of this section in accordance with Sec.
264.97(g).
* * * * *
(g) * * *
(2) Immediately sample the ground water in all monitoring wells and
determine whether constituents in the list of appendix IX of this part
are present, and if so, in what concentration. However, the Regional
Administrator, on a discretionary basis, may allow sampling for a site-
specific subset of constituents from the Appendix IX list of this part
and other representative/related waste constituents.
(3) For any appendix IX compounds found in the analysis pursuant to
paragraph (g)(2) of this section, the owner or operator may resample
within one month or at an alternative site-specific schedule approved
by the Administrator and repeat the analysis for those compounds
detected. If the results of the second analysis confirm the initial
results, then these constituents will form the basis for compliance
monitoring. If the owner or operator does not resample for the
compounds in paragraph (g)(2) of this section, the hazardous
constituents found during this initial appendix IX analysis will form
the basis for compliance monitoring.
* * * * *
0
13. Section 264.99 is amended by revising paragraphs (f) and (g) to
read as follows:
Sec. 264.99 Compliance monitoring program.
* * * * *
(f) The Regional Administrator will specify the frequencies for
collecting samples and conducting statistical tests to determine
statistically significant evidence of increased contamination in
accordance with Sec. 264.97(g).
(g) Annually, the owner or operator must determine whether
additional hazardous constituents from Appendix IX of this part, which
could possibly be present but are not on the detection monitoring list
in the permit, are actually present in the uppermost aquifer and, if
so, at what concentration, pursuant to procedures in Sec. 264.98(f).
To accomplish this, the owner or operator must consult with the
Regional Administrator to determine on a case-by-case basis: which
sample collection event during the year will involve enhanced sampling;
the number of monitoring wells at the compliance point to undergo
enhanced sampling; the number of samples to be collected from each of
these monitoring wells; and, the specific constituents from Appendix IX
of this part for which these samples must be analyzed. If the enhanced
sampling event indicates that Appendix IX constituents are present in
the ground water that are not already identified in the permit as
monitoring constituents, the owner or operator may resample within one
month or at an alternative site-specific schedule approved by the
Regional Administrator, and repeat the analysis. If the second analysis
confirms the presence of new constituents, the owner or operator must
report the concentration of these additional constituents to the
Regional Administrator within seven days after the completion of the
second analysis and add them to the monitoring list. If the owner or
operator chooses not to resample, then he or she must report the
concentrations of these additional constituents to the Regional
Administrator within seven days after completion of the initial
analysis, and add them to the monitoring list.
* * * * *
0
14. Section 264.100 is amended by revising paragraph (g) to read as
follows:
Sec. 264.100 Corrective action program.
* * * * *
(g) The owner or operator must report in writing to the Regional
Administrator on the effectiveness of the corrective action program.
The owner or operator must submit these reports annually.
* * * * *
Subpart G--Closure and Post-Closure
0
15. Section 264.113 is amended by revising paragraph (e)(5) to read as
follows:
Sec. 264.113 Closure; time allowed for closure.
* * * * *
(e) * * *
(5) During the period of corrective action, the owner or operator
shall provide annual reports to the Regional Administrator describing
the progress of the corrective action program, compile all ground-water
monitoring data, and evaluate the effect of the continued receipt of
non-hazardous wastes on the effectiveness of the corrective action.
* * * * *
0
16. Section 264.115 is revised to read as follows:
Sec. 264.115 Certification of closure.
Within 60 days of completion of closure of each hazardous waste
surface impoundment, waste pile, land treatment, and landfill unit, and
within 60 days of the completion of final closure, the owner or
operator must submit to the Regional Administrator, by registered mail,
a certification that the hazardous waste management unit or facility,
as applicable, has been closed in accordance with the specifications in
the approved closure plan.. The certification must be signed by the
owner or operator and by a qualified Professional Engineer.
Documentation supporting the Professional Engineer's certification must
be furnished to the Regional Administrator upon request until he
releases the owner or operator from the financial assurance
requirements for closure under Sec. 264.143(i).
0
17. Section 264.120 is revised to read as follows:
Sec. 264.120 Certification of completion of post-closure care.
No later than 60 days after completion of the established post-
closure care period for each hazardous waste disposal unit, the owner
or operator must submit to the Regional Administrator, by registered
mail, a certification that the post-closure care period for the
hazardous waste disposal unit was performed in accordance with
[[Page 16905]]
the specifications in the approved post-closure plan. The certification
must be signed by the owner or operator and a qualified Professional
Engineer. Documentation supporting the Professional Engineer's
certification must be furnished to the Regional Administrator upon
request until he releases the owner or operator from the financial
assurance requirements for post-closure care under Sec. 264.145(i).
Subpart H--Financial Requirements
0
18. Section 264.143 is amended by revising paragraph (i) to read as
follows:
Sec. 264.143 Financial assurance for closure.
* * * * *
(i) Release of the owner or operator from the requirements of this
section. Within 60 days after receiving certifications from the owner
or operator and a qualified Professional Engineer that final closure
has been completed in accordance with the approved closure plan, the
Regional Administrator will notify the owner or operator in writing
that he is no longer required by this section to maintain financial
assurance for final closure of the facility, unless the Regional
Administrator has reason to believe that final closure has not been in
accordance with the approved closure plan. The Regional Administrator
shall provide the owner or operator a detailed written statement of any
such reason to believe that closure has not been in accordance with the
approved closure plan.
0
19. Section 264.145 is amended by revising paragraph (i) to read as
follows:
Sec. 264.145 Financial assurance for post-closure care.
* * * * *
(i) Release of the owner or operator from the requirements of this
section. Within 60 days after receiving certifications from the owner
or operator and a qualified Professional Engineer that the post-closure
care period has been completed for a hazardous waste disposal unit in
accordance with the approved plan, the Regional Administrator will
notify the owner or operator that he is no longer required to maintain
financial assurance for post-closure of that unit, unless the Regional
Administrator has reason to believe that post-closure care has not been
in accordance with the approved post-closure plan. The Regional
Administrator shall provide the owner or operator a detailed written
statement of any such reason to believe that post-closure care has not
been in accordance with the approved post-closure plan.
0
20. Section 264.147 is amended by revising paragraph (e) to read as
follows:
Sec. 264.147 Liability requirements.
* * * * *
(e) Period of coverage. Within 60 days after receiving
certifications from the owner or operator and a qualified Professional
Engineer that final closure has been completed in accordance with the
approved closure plan, the Regional Administrator will notify the owner
or operator in writing that he is no longer required by this section to
maintain liability coverage for that facility, unless the Regional
Administrator has reason to believe that closure has not been in
accordance with the approved closure plan.
* * * * *
Subpart I--Use and Management of Containers
0
21. Section 264.174 is revised to read as follows:
Sec. 264.174 Inspections.
At least weekly, the owner or operator must inspect areas where
containers are stored, except for Performance Track member facilities,
that may conduct inspections at least once each month, upon approval by
the Director. To apply for reduced inspection frequencies, the
Performance Track member facility must follow the procedures identified
in Sec. 264.15(b)(5) of this part. The owner or operator must look for
leaking containers and for deterioration of containers and the
containment system caused by corrosion or other factors.
[Comment: See Sec. Sec. 264.15(c) and 264.171 for remedial action
required if deterioration or leaks are detected.]
Subpart J--Tank Systems
0
22. Section 264.191 is amended by revising paragraphs (a) and
(b)(5)(ii) (the note to paragraph (b)(5)(ii) is unchanged) to read as
follows:
Sec. 264.191 Assessment of existing tank system's integrity.
(a) For each existing tank system that does not have secondary
containment meeting the requirements of Sec. 264.193, the owner or
operator must determine that the tank system is not leaking or is unfit
for use. Except as provided in paragraph (c) of this section, the owner
or operator must obtain and keep on file at the facility a written
assessment reviewed and certified by a qualified Professional Engineer,
in accordance with Sec. 270.11(d) of this chapter, that attests to the
tank system's integrity by January 12, 1988.
(b) * * *
(5) * * *
(ii) For other than non-enterable underground tanks and for
ancillary equipment, this assessment must include either a leak test,
as described above, or other integrity examination that is certified by
a qualified Professional Engineer in accordance with Sec. 270.11(d) of
this chapter, that addresses cracks, leaks, corrosion, and erosion.
* * * * *
0
23. Section 264.192 is amended by revising paragraph (a) introductory
text and paragraph (b) introductory text to read as follows:
Sec. 264.192 Design and installation of new tank systems or
components.
(a) Owners or operators of new tank systems or components must
obtain and submit to the Regional Administrator, at time of submittal
of part B information, a written assessment, reviewed and certified by
a qualified Professional Engineer, in accordance with Sec. 270.11(d)
of this chapter, attesting that the tank system has sufficient
structural integrity and is acceptable for the storing and treating of
hazardous waste. The assessment must show that the foundation,
structural support, seams, connections, and pressure controls (if
applicable) are adequately designed and that the tank system has
sufficient structural strength, compatibility with the waste(s) to be
stored or treated, and corrosion protection to ensure that it will not
collapse, rupture, or fail. This assessment, which will be used by the
Regional Administrator to review and approve or disapprove the
acceptability of the tank system design, must include, at a minimum,
the following information:
* * * * *
(b) The owner or operator of a new tank system must ensure that
proper handling procedures are adhered to in order to prevent damage to
the system during installation. Prior to covering, enclosing, or
placing a new tank system or component in use, an independent,
qualified, installation inspector or a qualified Professional Engineer,
either of whom is trained and experienced in the proper installation of
tanks systems or components, must inspect the system for the presence
of any of the following items:
* * * * *
0
24. Section 264.193 is amended by:
0
a. Removing paragraphs (a)(2) through (a)(4);
0
b. Redesignating (a)(5) as (a)(2);
0
c. Revising paragraphs (a)(1), newly designated (a)(2), and (i)(2) to
read as follows:
[[Page 16906]]
Sec. 264.193 Containment and detection of releases.
(a) * * *
(1) For all new and existing tank systems or components, prior to
their being put into service.
(2) For tank systems that store or treat materials that become
hazardous wastes, within two years of the hazardous waste listing, or
when the tank system has reached 15 years of age, whichever comes
later.
* * * * *
(h) * * *
(4) * * *
(i) * * *
(2) For other than non-enterable underground tanks, the owner or
operator must either conduct a leak test as in paragraph (i)(1) of this
section or develop a schedule and procedure for an assessment of the
overall condition of the tank system by a qualified Professional
Engineer. The schedule and procedure must be adequate to detect obvious
cracks, leaks, and corrosion or erosion that may lead to cracks and
leaks. The owner or operator must remove the stored waste from the
tank, if necessary, to allow the condition of all internal tank
surfaces to be assessed. The frequency of these assessments must be
based on the material of construction of the tank and its ancillary
equipment, the age of the system, the type of corrosion or erosion
protection used, the rate of corrosion or erosion observed during the
previous inspection, and the characteristics of the waste being stored
or treated.
* * * * *
0
25. Section 264.195 is amended by:
0
a. Revising paragraph (b) (the note to paragraph (b) is unchanged);
0
b. Redesignating existing paragraphs (c) and (d), as paragraphs (g) and
(h), respectively;
0
c. Adding new paragraphs (c) through (f), to read as follows:
Sec. 264.195 Inspections.
* * * * *
(b) The owner or operator must inspect at least once each operating
day data gathered from monitoring and leak detection equipment (e.g.,
pressure or temperature gauges, monitoring wells) to ensure that the
tank system is being operated according to its design.
* * * * *
(c) In addition, except as noted under paragraph (d) of this
section, the owner or operator must inspect at least once each
operating day:
(1) Above ground portions of the tank system, if any, to detect
corrosion or releases of waste.
(2) The construction materials and the area immediately surrounding
the externally accessible portion of the tank system, including the
secondary containment system (e.g., dikes) to detect erosion or signs
of releases of hazardous waste (e.g., wet spots, dead vegetation).
(d) Owners or operators of tank systems that either use leak
detection systems to alert facility personnel to leaks, or implement
established workplace practices to ensure leaks are promptly
identified, must inspect at least weekly those areas described in
paragraphs (c)(1) and (c)(2) of this section. Use of the alternate
inspection schedule must be documented in the facility's operating
record. This documentation must include a description of the
established workplace practices at the facility.
(e) Performance Track member facilities may inspect on a less
frequent basis, upon approval by the Director, but must inspect at
least once each month. To apply for a less than weekly inspection
frequency, the Performance Track member facility must follow the
procedures described in Sec. 264.15(b)(5).
(f) Ancillary equipment that is not provided with secondary
containment, as described in Sec. 264.193(f)(1) through (4), must be
inspected at least once each operating day.
* * * * *
0
26. Section 264.196 is amended by revising paragraph (f) (the notes to
paragraph (f) are unchanged) to read as follows:
Sec. 264.196 Response to leaks or spills and disposition of leaking
or unfit-for-use tank systems.
* * * * *
(f) Certification of major repairs. If the owner/operator has
repaired a tank system in accordance with paragraph (e) of this
section, and the repair has been extensive (e.g., installation of an
internal liner; repair of a ruptured primary containment or secondary
containment vessel), the tank system must not be returned to service
unless the owner/operator has obtained a certification by a qualified
Professional Engineer in accordance with Sec. 270.11(d) of this
chapter that the repaired system is capable of handling hazardous
wastes without release for the intended life of the system. This
certification must be placed in the operating record and maintained
until closure of the facility.
* * * * *
Subpart L--Waste Piles
0
27. Section 264.251 is amended by revising the introductory text to
paragraph (c) to read as follows:
Sec. 264.251 Design and operating requirements.
* * * * *
(c) The owner or operator of each new waste pile unit, each lateral
expansion of a waste pile unit, and each replacement of an existing
waste pile unit must install two or more liners and a leachate
collection and removal system above and between such liners.
* * * * *
Subpart M--Land Treatment
0
28. Section 264.280 is amended by revising paragraph (b) to read as
follows:
Sec. 264.280 Closure and post-closure care.
* * * * *
(b) For the purpose of complying with Sec. 264.115 of this
chapter, when closure is completed the owner or operator may submit to
the Regional Administrator certification by an independent, qualified
soil scientist, in lieu of a qualified Professional Engineer, that the
facility has been closed in accordance with the specifications in the
approved closure plan.
* * * * *
Subpart N--Landfills
0
29. Section 264.314 is amended by:
0
a. Removing paragraph (a);
0
b. Redesignating paragraphs (b) through (f) as paragraphs (a) through
(e); and,
0
c. Revising newly designated paragraphs (a) and newly designated
paragraph (e) introductory text to read as follows:
Sec. 264.314 Special requirements for bulk and containerized liquids.
(a) The placement of bulk or non-containerized liquid hazardous
waste or hazardous waste containing free liquids (whether or not
sorbents have been added) in any landfill is prohibited.
* * * * *
(e) The placement of any liquid which is not a hazardous waste in a
landfill is prohibited unless the owner or operator of such landfill
demonstrates to the Regional Administrator, or the Regional
Administrator determines that:
* * * * *
Subpart O--Incinerators
0
30. Section 264.343 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 264.343 Performance standards.
* * * * *
(a)(1) * * *
(2) An incinerator burning hazardous wastes FO20, FO21, FO22, FO23,
FO26,
[[Page 16907]]
or FO27 must achieve a destruction and removal efficiency (DRE) of
99.9999% for each principal organic hazardous constituent (POHC)
designated (under Sec. 264.342) in its permit. This performance must
be demonstrated on POHCs that are more difficult to incinerate than
tetra-, penta-, and hexachlorodibenzo-p-dioxins and dibenzofurans. DRE
is determined for each POHC from the equation in Sec. 264.343(a)(1).
* * * * *
0
31. Section 264.347 is amended by revising paragraph (d) to read as
follows:
Sec. 264.347 Monitoring and inspections.
* * * * *
(d) This monitoring and inspection data must be recorded and the
records must be placed in the operating record required by Sec. 264.73
of this part and maintained in the operating record for five years.
Subpart S--Special Provisions for Cleanup
0
32. Section 264.554 is amended by revising paragraph (c)(2) to read as
follows:
Sec. 264.554 Staging piles.
* * * * *
(c) * * *
(2) Certification by a qualified Professional Engineer for
technical data, such as design drawings and specifications, and
engineering studies, unless the Director determines, based on
information that you provide, that this certification is not necessary
to ensure that a staging pile will protect human health and the
environment; and
* * * * *
Subpart W--Drip Pads
0
33. Section 264.571 is amended by revising paragraphs (a), (b), and (c)
to read as follows:
Sec. 264.571 Assessment of existing drip pad integrity.
(a) For each existing drip pad as defined in Sec. 264.570 of this
subpart, the owner or operator must evaluate the drip pad and determine
whether it meets all of the requirements of this subpart, except the
requirements for liners and leak detection systems of Sec. 264.573(b).
No later than the effective date of this rule, the owner or operator
must obtain and keep on file at the facility a written assessment of
the drip pad, reviewed and certified by a qualified Professional
Engineer that attests to the results of the evaluation. The assessment
must be reviewed, updated and re-certified annually until all upgrades,
repairs, or modifications necessary to achieve compliance with all the
standards of Sec. 264.573 are complete. The evaluation must document
the extent to which the drip pad meets each of the design and operating
standards of Sec. 264.573, except the standards for liners and leak
detection systems, specified in Sec. 264.573(b).
(b) The owner or operator must develop a written plan for
upgrading, repairing, and modifying the drip pad to meet the
requirements of Sec. 264.573(b) and submit the plan to the Regional
Administrator no later than 2 years before the date that all repairs,
upgrades, and modifications are complete. This written plan must
describe all changes to be made to the drip pad in sufficient detail to
document compliance with all the requirements of Sec. 264.573. The
plan must be reviewed and certified by a qualified Professional
Engineer.
(c) Upon completion of all upgrades, repairs, and modifications,
the owner or operator must submit to the Regional Administrator or
state Director, the as-built drawings for the drip pad together with a
certification by a qualified Professional Engineer attesting that the
drip pad conforms to the drawings.
* * * * *
0
34. Section 264.573 is amended by revising paragraphs (a)(4)(ii) and
(g) to read as follows:
Sec. 264.573 Design and operating requirements.
(a) * * *
(4) * * *
(ii) The owner or operator must obtain and keep on file at the
facility a written assessment of the drip pad, reviewed and certified
by a qualified Professional Engineer that attests to the results of the
evaluation. The assessment must be reviewed, updated and recertified
annually. The evaluation must document the extent to which the drip pad
meets the design and operating standards of this section, except for
paragraph (b) of this section.
* * * * *
(g) The drip pad must be evaluated to determine that it meets the
requirements of paragraphs (a) through (f) of this section and the
owner or operator must obtain a statement from a qualified Professional
Engineer certifying that the drip pad design meets the requirements of
this section.
* * * * *
0
35. Section 264.574 is amended by revising paragraph (a) to read as
follows:
Sec. 264.574 Inspections.
(a) During construction or installation, liners and cover systems
(e.g., membranes, sheets, or coatings) must be inspected for
uniformity, damage and imperfections (e.g., holes, cracks, thin spots,
or foreign materials). Immediately after construction or installation,
liners must be inspected and certified as meeting the requirements in
Sec. 264.573 of this subpart by a qualified Professional Engineer.
This certification must be maintained at the facility as part of the
facility operating record. After installation, liners and covers must
be inspected to ensure tight seams and joints and the absence of tears,
punctures, or blisters.
* * * * *
Subpart BB--Air Emission Standards for Equipment Leaks
Sec. 264.1061 [Amended]
0
36. Section 264.1061 is amended by:
0
a. Removing paragraphs (b)(1) and (d); and,
0
b. Redesignating paragraphs (b)(2) and (b)(3) as paragraphs (b)(1) and
(b)(2).
Sec. 264.1062 [Amended]
0
37. Section 264.1062 is amended by removing paragraph (a)(2) and
redesignating paragraph (a)(1) as paragraph (a).
Subpart DD--Containment Buildings
0
38. Section 264.1100 is amended by revising the introductory text to
read as follows:
Sec. 264.1100 Applicability.
The requirements of this subpart apply to owners or operators who
store or treat hazardous waste in units designed and operated under
Sec. 264.1101 of this subpart. The owner or operator is not subject to
the definition of land disposal in RCRA section 3004(k) provided that
the unit:
* * * * *
0
39. Section 264.1101 is amended by revising paragraphs (c)(2) and
(c)(4) to read as follows:
Sec. 264.1101 Design and operating standards.
* * * * *
(c) * * *
(2) Obtain and keep on-site a certification by a qualified
Professional Engineer that the containment building design meets the
requirements of paragraphs (a), (b), and (c) of this section.
* * * * *
(4) Inspect and record in the facility's operating record, at least
once every
[[Page 16908]]
seven days, except for Performance Track member facilities that must
inspect at least once each month, upon approval by the Director, data
gathered from monitoring and leak detection equipment as well as the
containment building and the area immediately surrounding the
containment building to detect signs of releases of hazardous waste. To
apply for reduced inspection frequency, the Performance Track member
facility must follow the procedures described in Sec. 264.15(b)(5).
* * * * *
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
0
40. The authority citation for part 265 continues to read as follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937, unless otherwise noted.
Subpart B--General Facility Standards
0
41. Section 265.15 is amended by revising paragraph (b)(4) and adding
paragraph (b)(5) to read as follows:
Sec. 265.15 General inspection requirements.
* * * * *
(b) * * *
(4) The frequency of inspection may vary for the items on the
schedule. However, the frequency should be based on the rate of
deterioration of the equipment and the probability of an environmental
or human health incident if the deterioration, malfunction, or operator
error goes undetected between inspections. Areas subject to spills,
such as loading and unloading areas, must be inspected daily when in
use, except for Performance Track member facilities, that must inspect
at least once each month, upon approval by the Director, as described
in paragraph (b)(5) of this section. At a minimum, the inspection
schedule must include the items and frequencies called for in
Sec. Sec. 265.174, 265.193, 265.195, 265.226, 265.260, 265.278,
265.304, 265.347, 265.377, 265.403, 265.1033, 265.1052, 265.1053,
265.1058, and 265.1084 through 265.1090, where applicable.
(5) Performance Track member facilities that choose to reduce
inspection frequencies must:
(i) Submit an application to the Director. The application must
identify the facility as a member of the National Environmental
Performance Track Program and identify the management units for reduced
inspections and the proposed frequency of inspections. Inspections must
be conducted at least once each month.
(ii) Within 60 days, the Director will notify the Performance Track
member facility, in writing, if the application is approved, denied, or
if an extension to the 60-day deadline is needed. This notice must be
placed in the facility's operating record. The Performance Track member
facility should consider the application approved if the Director does
not: (1) Deny the application; or (2) notify the Performance Track
member facility of an extension to the 60-day deadline. In these
situations, the Performance Track member facility must adhere to the
revised inspection schedule outlined in its application and maintain a
copy of the application in the facility's operating record.
(iii) Any Performance Track member facility that discontinues its
membership or is terminated from the program must immediately notify
the Director of its change in status. The facility must place in its
operating record a dated copy of this notification and revert back to
the non-Performance Track inspection frequencies within seven calendar
days.
* * * * *
0
42. Section 265.16 is amended by adding new paragraph (a)(4) to read as
follows:
Sec. 265.16 Personnel training.
(a) * * *
(4) For facility employees that receive emergency response training
pursuant to Occupational Safety and Health Administration (OSHA)
regulations 29 CFR 1910.120(p)(8) and 1910.120(q), the facility is not
required to provide separate emergency response training pursuant to
this section, provided that the overall facility training meets all the
requirements of this section.
* * * * *
Subpart D--Contingency Plans and Emergency Procedures
0
43. Section 265.52 is amended by revising paragraph (b) to read as
follows:
Sec. 265.52 Content of contingency plan.
* * * * *
(b) If the owner or operator has already prepared a Spill
Prevention, Control, and Countermeasures (SPCC) Plan in accordance with
Part 112 of this chapter, or Part 1510 of chapter V, or some other
emergency or contingency plan, he need only amend that plan to
incorporate hazardous waste management provisions that are sufficient
to comply with the requirements of this Part. The owner or operator may
develop one contingency plan which meets all regulatory requirements.
EPA recommends that the plan be based on the National Response Team's
Integrated Contingency Plan Guidance (``One Plan''). When modifications
are made to non-RCRA provisions in an integrated contingency plan, the
changes do not trigger the need for a RCRA permit modification.
* * * * *
Sec. 265.56 [Amended]
0
44. Section 265.56 is amended by removing paragraph (i) and
redesignating paragraph (j) as paragraph (i).
Subpart E--Manifest System, Recordkeeping, and Reporting
0
45. Section 265.73 is amended by revising the introductory text to
paragraph (b), (b)(1), (b)(2) (the comment to paragraph (b)(2) is
unchanged), (b)(6) (the comment to paragraph (b)(6) is unchanged),
(b)(7), and (b)(8) and adding a new (b)(15) to read as follows:
Sec. 265.73 Operating record.
* * * * *
(b) The following information must be recorded, as it becomes
available, and maintained in the operating record for three years
unless noted below:
(1) A description and the quantity of each hazardous waste
received, and the method(s) and date(s) of its treatment, storage, or
disposal at the facility as required by Appendix I to part 265. This
information must be maintained in the operating record until closure of
the facility;
(2) The location of each hazardous waste within the facility and
the quantity at each location. For disposal facilities, the location
and quantity of each hazardous waste must be recorded on a map or
diagram of each cell or disposal area. For all facilities, this
information must include cross-references to manifest document numbers
if the waste was accompanied by a manifest. This information must be
maintained in the operating record until closure of the facility;
* * * * *
(6) Monitoring, testing or analytical data, and corrective action
where required by subpart F of this part and by Sec. Sec. 265.19,
265.94, 265.191, 265.193, 265.195, 265.224, 265.226, 265.255, 265.260,
265.276, 265.278, 265.280(d)(1), 265.302, 265.304, 265.347, 265.377,
265.1034(c) through 265.1034(f), 265.1035, 265.1063(d) through 265.
265.1063(i), 265.1064, and 265.1083 through 265.1090. Maintain in
[[Page 16909]]
the operating record for three years, except for records and results
pertaining to ground-water monitoring and cleanup, and response action
plans for surface impoundments, waste piles, and landfills, which must
be maintained in the operating record until closure of the facility.
* * * * *
(7) All closure cost estimates under Sec. 265.142 and, for
disposal facilities, all post-closure cost estimates under Sec.
265.144 must be maintained in the operating record until closure of the
facility.
(8) Records of the quantities (and date of placement) for each
shipment of hazardous waste placed in land disposal units under an
extension to the effective date of any land disposal restriction
granted pursuant to Sec. 268.5 of this chapter, monitoring data
required pursuant to a petition under Sec. 268.6 of this chapter, or a
certification under Sec. 268.8 of this chapter, and the applicable
notice required by a generator under Sec. 268.7(a) of this chapter.
All of this information must be maintained in the operating record
until closure of the facility.
* * * * *
(15) Monitoring, testing or analytical data, and corrective action
where required by Sec. Sec. 265.90, 265.93(d)(2), and 265.93(d)(5),
and the certification as required by Sec. 265.196(f) must be
maintained in the operating record until closure of the facility.
Subpart F--Ground-Water Monitoring
0
46. Section 265.90 is amended by revising paragraphs (d)(1) and (d)(3)
to read as follows:
Sec. 265.90 Applicability.
* * * * *
(d) * * *
(1) Within one year after the effective date of these regulations,
develop a specific plan, certified by a qualified geologist or
geotechnical engineer, which satisfies the requirements of Sec.
265.93(d)(3), for an alternate ground-water monitoring system. This
plan is to be placed in the facility's operating record and maintained
until closure of the facility.
* * * * *
(3) Prepare a report in accordance with Sec. 265.93(d)(5) and
place it in the facility's operating record and maintain until closure
of the facility.
* * * * *
0
47. Section 265.93 is amended by revising paragraphs (d)(2) and (d)(5)
to read as follows:
Sec. 265.93 Preparation, evaluation, and response.
* * * * *
(d)(1) * * *
(2) Within 15 days after the notification under paragraph (d)(1) of
this section, the owner or operator must develop a specific plan, based
on the outline required under paragraph (a) of this section and
certified by a qualified geologist or geotechnical engineer, for a
ground-water quality assessment at the facility. This plan must be
placed in the facility operating record and be maintained until closure
of the facility.
* * * * *
(5) The owner or operator must make his first determination under
paragraph (d)(4) of this section, as soon as technically feasible, and
prepare a report containing an assessment of ground-water quality. This
report must be placed in the facility operating record and be
maintained until closure of the facility.
* * * * *
Subpart G--Closure and Post-Closure
0
48. Section 265.113 is amended by revising paragraph (e)(5) to read as
follows:
Sec. 265.113 Closure; time allowed for closure.
* * * * *
(e) * * *
(5) During the period of corrective action, the owner or operator
shall provide annual reports to the Regional Administrator describing
the progress of the corrective action program, compile all ground-water
monitoring data, and evaluate the effect of the continued receipt of
non-hazardous wastes on the effectiveness of the corrective action.
* * * * *
0
49. Section 265.115 is revised to read as follows:
Sec. 265.115 Certification of closure.
Within 60 days of completion of closure of each hazardous waste
surface impoundment, waste pile, land treatment, and landfill unit, and
within 60 days of completion of final closure, the owner or operator
must submit to the Regional Administrator, by registered mail, a
certification that the hazardous waste management unit or facility, as
applicable, has been closed in accordance with the specifications in
the approved closure plan. The certification must be signed by the
owner or operator and by a qualified Professional Engineer.
Documentation supporting the Professional Engineer's certification must
be furnished to the Regional Administrator upon request until he
releases the owner or operator from the financial assurance
requirements for closure under Sec. 265.143(h).
0
50. Section 265.120 is revised to read as follows:
Sec. 265.120 Certification of completion of post-closure care.
No later than 60 days after the completion of the established post-
closure care period for each hazardous waste disposal unit, the owner
or operator must submit to the Regional Administrator, by registered
mail, a certification that the post-closure care period for the
hazardous waste disposal unit was performed in accordance with the
specifications in the approved post-closure plan. The certification
must be signed by the owner or operator and a qualified Professional
Engineer. Documentation supporting the Professional Engineer's
certification must be furnished to the Regional Administrator upon
request until he releases the owner or operator from the financial
assurance requirements for post-closure care under Sec. 265.145(h).
Subpart H--Financial Requirements
0
51. Section 265.143 is amended by revising paragraph (h) to read as
follows:
Sec. 265.143 Financial assurance for closure.
* * * * *
(h) Release of the owner or operator from the requirements of this
section. Within 60 days after receiving certifications from the owner
or operator and a qualified Professional Engineer that final closure
has been completed in accordance with the approved closure plan, the
Regional Administrator will notify the owner or operator in writing
that he is no longer required by this section to maintain financial
assurance for final closure of the facility, unless the Regional
Administrator has reason to believe that final closure has not been in
accordance with the approved closure plan. The Regional Administrator
shall provide the owner or operator a detailed written statement of any
such reason to believe that closure has not been in accordance with the
approved closure plan.
0
52. Section 265.145 is amended by revising paragraph (h) to read as
follows:
Sec. 265.145 Financial assurance for post-closure care.
* * * * *
(h) Release of the owner or operator from the requirements of this
section. Within 60 days after receiving
[[Page 16910]]
certifications from the owner or operator and a qualified Professional
Engineer that the post-closure care period has been completed for a
hazardous waste disposal unit in accordance with the approved plan, the
Regional Administrator will notify the owner or operator in writing
that he is no longer required to maintain financial assurance for post-
closure care of that unit, unless the Regional Administrator has reason
to believe that post-closure care has not been in accordance with the
approved post-closure plan. The Regional Administrator shall provide
the owner or operator a detailed written statement of any such reason
to believe that post-closure care has not been in accordance with the
approved post-closure plan.
0
53. Section 265.147 is amended by revising paragraph (e) to read as
follows:
Sec. 265.147 Liability requirements.
* * * * *
(e) Period of coverage. Within 60 days after receiving
certifications from the owner or operator and a qualified Professional
Engineer that final closure has been completed in accordance with the
approved closure plan, the Regional Administrator will notify the owner
or operator in writing that he is no longer required by this section to
maintain liability coverage for that facility, unless the Regional
Administrator has reason to believe that closure has not been in
accordance with the approved closure plan.
* * * * *
Subpart I--Use and Management of Containers
0
54. Section 265.174 is revised to read as follows:
Sec. 265.174 Inspections.
At least weekly, the owner or operator must inspect areas where
containers are stored, except for Performance Track member facilities,
that must conduct inspections at least once each month, upon approval
by the Director. To apply for reduced inspection frequency, the
Performance Track member facility must follow the procedures described
in Sec. 265.15(b)(5) of this part. The owner or operator must look for
leaking containers and for deterioration of containers and the
containment system caused by corrosion or other factors.
[Comment: See Sec. 265.171 for remedial action required if
deterioration or leaks are detected.]
Subpart J--Tank Systems
0
55. Section 265.191 is amended by revising paragraphs (a) and
(b)(5)(ii) (the note to paragraph (b)(5)(ii) is unchanged) to read as
follows:
Sec. 265.191 Assessment of existing tank system's integrity.
(a) For each existing tank system that does not have secondary
containment meeting the requirements of Sec. 265.193, the owner or
operator must determine that the tank system is not leaking or is unfit
for use. Except as provided in paragraph (c) of this section, the owner
or operator must obtain and keep on file at the facility a written
assessment reviewed and certified by a qualified Professional Engineer
in accordance with Sec. 270.11(d) of this chapter, that attests to the
tank system's integrity by January 12, 1988.
(b) * * *
(5) * * *
(ii) For other than non-enterable underground tanks and for
ancillary equipment, this assessment must be either a leak test, as
described above, or an internal inspection and/or other tank integrity
examination certified by a qualified Professional Engineer in
accordance with Sec. 270.11(d) of this chapter that addresses cracks,
leaks, corrosion, and erosion.
* * * * *
0
56. Section 265.192 is amended by revising paragraphs (a) introductory
text and (b) introductory text to read as follows:
Sec. 265.192 Design and installation of new tank systems or
components.
(a) Owners or operators of new tank systems or components must
ensure that the foundation, structural support, seams, connections, and
pressure controls (if applicable) are adequately designed and that the
tank system has sufficient structural strength, compatibility with the
waste(s) to be stored or treated, and corrosion protection so that it
will not collapse, rupture, or fail. The owner or operator must obtain
a written assessment reviewed and certified by a qualified Professional
Engineer in accordance with Sec. 270.11(d) of this chapter attesting
that the system has sufficient structural integrity and is acceptable
for the storing and treating of hazardous waste. This assessment must
include the following information:
* * * * *
(b) The owner or operator of a new tank system must ensure that
proper handling procedures are adhered to in order to prevent damage to
the system during installation. Prior to covering, enclosing, or
placing a new tank system or component in use, an independent,
qualified installation inspector or a qualified Professional Engineer,
either of whom is trained and experienced in the proper installation of
tank systems, must inspect the system or component for the presence of
any of the following items:
* * * * *
0
56. Section 265.193 is amended by:
0
a. Removing paragraphs (a)(2) through (a)(4);
0
b. Redesignating (a)(5) as (a)(2);
0
c. Revising paragraphs (a)(1), newly designated (a)(2) and (i)(2) (the
note to (i)(2) is unchanged) to read as follows.
Sec. 265.193 Containment and detection of releases.
(a) * * *
(1) For all new and existing tank systems or components, prior to
their being put into service.
(2) For tank systems that store or treat materials that become
hazardous wastes, within 2 years of the hazardous waste listing, or
when the tank system has reached 15 years of age, whichever comes
later.
* * * * *
(i) * * *
(2) For other than non-enterable underground tanks, and for all
ancillary equipment, the owner or operator must either conduct a leak
test as in paragraph (i)(1) of this section or an internal inspection
or other tank integrity examination by a qualified Professional
Engineer that addresses cracks, leaks, and corrosion or erosion at
least annually. The owner or operator must remove the stored waste from
the tank, if necessary, to allow the condition of all internal tanks
surfaces to be assessed.
* * * * *
0
58. Section 265.195 is amended by:
0
a. Revising paragraph (a) (the note to paragraph (a) is unchanged);
0
b. Redesignating existing paragraphs (b) and (c), as paragraphs (f) and
(g), respectively; and,
0
c. Adding new paragraphs (b) through (e).
Sec. 265.195 Inspections.
(a) The owner or operator must inspect, where present, at least
once each operating day, data gathered from monitoring and leak
detection equipment (e.g., pressure or temperature gauges, monitoring
wells) to ensure that the tank system is being operated according to
its design.
* * * * *
(b) Except as noted under the paragraph (c) of this section, the
owner or operator must inspect at least once each operating day:
(1) Overfill/spill control equipment (e.g., waste-feed cutoff
systems, bypass
[[Page 16911]]
systems, and drainage systems) to ensure that it is in good working
order;
(2) Above ground portions of the tank system, if any, to detect
corrosion or releases of waste; and
(3) The construction materials and the area immediately surrounding
the externally accessible portion of the tank system, including the
secondary containment system (e.g., dikes) to detect erosion or signs
of releases of hazardous waste (e.g., wet spots, dead vegetation).
(c) Owners or operators of tank systems that either use leak
detection equipment to alert facility personnel to leaks, or implement
established workplace practices to ensure leaks are promptly
identified, must inspect at least weekly those areas described in
paragraphs (b)(1) through (3) of this section. Use of the alternate
inspection schedule must be documented in the facility's operating
record. This documentation must include a description of the
established workplace practices at the facility.
(d) Performance Track member facilities may inspect on a less
frequent basis, upon approval by the Director, but must inspect at
least once each month. To apply for a less than weekly inspection
frequency, the Performance Track member facility must follow the
procedures described in Sec. 265.15(b)(5).
(e) Ancillary equipment that is not provided with secondary
containment, as described in Sec. 265.193(f)(1) through (4), must be
inspected at least once each operating day.
* * * * *
0
59. Section 265.196 is amended by revising paragraph (f) (the notes to
paragraph (f) are unchanged) to read as follows:
Sec. 265.196 Response to leaks or spills and disposition of leaking
or unfit-for-use tank systems.
* * * * *
(f) Certification of major repairs. If the owner/operator has
repaired a tank system in accordance with paragraph (e) of this
section, and the repair has been extensive (e.g., installation of an
internal liner; repair of a ruptured primary containment or secondary
containment vessel), the tank system must not be returned to service
unless the owner/operator has obtained a certification by a qualified
Professional Engineer in accordance with Sec. 270.11(d) that the
repaired system is capable of handling hazardous wastes without release
for the intended life of the system. This certification is to be placed
in the operating record and maintained until closure of the facility.
* * * * *
0
60. Section 265.201 is amended by:
0
a. Revising the paragraph (c) introductory text;
0
b. Redesignating paragraph (d) through (f), as paragraphs (f) through
(h), respectively; and,
0
c. Adding new paragraphs (d) and (e).
Sec. 265.201 Special requirements for generators of between 100 and
1,000 kg/mo. that accumulate hazardous waste in tanks.
* * * * *
(c) Except as noted in paragraph (d) of this section, generators
who accumulate between 100 and 1,000 kg/mo of hazardous in tanks must
inspect, where present:
* * * * *
(d) Generators who accumulate between 100 and 1,000 kg/mo of
hazardous waste in tanks or tank systems that have full secondary
containment and that either use leak detection equipment to alert
facility personnel to leaks, or implement established workplace
practices to ensure leaks are promptly identified, must inspect at
least weekly, where applicable, the areas identified in paragraphs
(c)(1) through (5) of this section. Use of the alternate inspection
schedule must be documented in the facility's operating record. This
documentation must include a description of the established workplace
practices at the facility.
(e) Performance Track member facilities may inspect on a less
frequent basis, upon approval by the Director, but must inspect at
least once each month. To apply for a less than weekly inspection
frequency, the Performance Track member facility must follow the
procedures described in Sec. 265.15(b)(5).
* * * * *
Subpart K--Surface Impoundments
0
61. Section 265.221 is amended by revising paragraph (a) to read as
follows:
Sec. 265.221 Design and operating requirements.
(a) The owner or operator of each new surface impoundment unit,
each lateral expansion of a surface impoundment unit, and each
replacement of an existing surface impoundment unit must install two or
more liners, and a leachate collection and removal system above and
between the liners, and operate the leachate collection and removal
system, in accordance with Sec. 264.221(c), unless exempted under
Sec. 264.221(d), (e), or (f) of this Chapter.
* * * * *
Sec. 265.223 [Redesignated as Sec. 265.224]
0
62. Section 265.223 titled ``Response actions'' is redesignated as
Sec. 265.224 and the newly designated Sec. 265.224 is amended by
revising paragraph (a) to read as follows:
Sec. 265.224 Response actions.
(a) The owner or operator of surface impoundment units subject to
Sec. 265.221(a) must develop and keep on site until closure of the
facility a response action plan. The response action plan must set
forth the actions to be taken if the action leakage rate has been
exceeded. At a minimum, the response action plan must describe the
actions specified in paragraph (b) of this section.
* * * * *
Subpart L--Waste Piles
0
63. Section 265.259 is amended by revising the first sentence of
paragraph (a) to read as follows:
Sec. 265.259 Response actions.
(a) The owner or operator of waste pile units subject to Sec.
265.254 must develop and keep on-site until closure of the facility a
response action plan. * * *
* * * * *
Subpart M--Land Treatment
0
64. Section 265.280 is amended by revising paragraph (e) to read as
follows:
Sec. 265.280 Closure and post-closure.
* * * * *
(e) For the purpose of complying with Sec. 265.115, when closure
is completed the owner or operator may submit to the Regional
Administrator certification both by the owner or operator and by an
independent, qualified soil scientist, in lieu of a qualified
Professional Engineer, that the facility has been closed in accordance
with the specifications in the approved closure plan.
* * * * *
Subpart N--Landfills
0
65. Section 265.301 is amended by revising paragraph (a) to read as
follows:
Sec. 265.301 Design and operating requirements.
(a) The owner or operator of each new landfill unit, each lateral
expansion of a landfill unit, and each replacement of an existing
landfill unit must install two or more liners and a leachate collection
and removal system above and between such liners, and operate the
leachate collection and removal system, in accordance with Sec.
264.301(d), (e), or (f) of this chapter.
* * * * *
[[Page 16912]]
0
66. Section 265.303 is amended by revising paragraph (a) to read as
follows:
Sec. 265.303 Response actions.
(a) The owner or operator of landfill units subject to Sec.
265.301(a) must develop and keep on site until closure of the facility
a response action plan. The response action plan must set forth the
actions to be taken if the action leakage rate has been exceeded. At a
minimum, the response action plan must describe the actions specified
in paragraph (b) of this section.
* * * * *
0
67. Section 265.314 is amended by:
0
a. Removing paragraph (a);
0
b. Redesignating paragraphs (b) through (g) as paragraphs (a) through
(f); and,
0
c. Revising newly designated paragraph (a), and the introductory text
of newly designated paragraph (f) to read as follows:
Sec. 265.314 Special requirements for bulk and containerized liquids.
(a) The placement of bulk or non-containerized liquid hazardous
waste or hazardous waste containing free liquids (whether or not
sorbents have been added) in any landfill is prohibited.
* * * * *
(f) The placement of any liquid which is not a hazardous waste in a
landfill is prohibited unless the owner or operator of such landfill
demonstrates to the Regional Administrator or the Regional
Administrator determines that:
* * * * *
Subpart W--Drip Pads
0
68. Section 265.441 is amended by revising paragraphs (a), (b), and (c)
to read as follows:
Sec. 265.441 Assessment of existing drip pad integrity.
(a) For each existing drip pad as defined in Sec. 265.440, the
owner or operator must evaluate the drip pad and determine that it
meets all of the requirements of this subpart, except the requirements
for liners and leak detection systems of Sec. 265.443(b). No later
than the effective date of this rule, the owner or operator must obtain
and keep on file at the facility a written assessment of the drip pad,
reviewed and certified by a qualified Professional Engineer that
attests to the results of the evaluation. The assessment must be
reviewed, updated, and re-certified annually until all upgrades,
repairs, or modifications necessary to achieve compliance with all the
standards of Sec. 265.443 are complete. The evaluation must document
the extent to which the drip pad meets each of the design and operating
standards of Sec. 265.443, except the standards for liners and leak
detection systems, specified in Sec. 265.443(b).
(b) The owner or operator must develop a written plan for
upgrading, repairing, and modifying the drip pad to meet the
requirements of Sec. 265.443(b), and submit the plan to the Regional
Administrator no later than 2 years before the date that all repairs,
upgrades, and modifications are complete. This written plan must
describe all changes to be made to the drip pad in sufficient detail to
document compliance with all the requirements of Sec. 265.443. The
plan must be reviewed and certified by a qualified Professional
Engineer.
(c) Upon completion of all repairs and modifications, the owner or
operator must submit to the Regional Administrator or state Director,
the as-built drawings for the drip pad together with a certification by
a qualified Professional Engineer attesting that the drip pad conforms
to the drawings.
* * * * *
0
69. Section 265.443 is amended by revising paragraphs (a)(4)(ii) and
(g) to read as follows:
Sec. 265.443 Design and operating requirements.
(a) * * *
(4)(i) * * *
(ii) The owner or operator must obtain and keep on file at the
facility a written assessment of the drip pad, reviewed and certified
by a qualified Professional Engineer that attests to the results of the
evaluation. The assessment must be reviewed, updated and recertified
annually. The evaluation must document the extent to which the drip pad
meets the design and operating standards of this section, except for
paragraph (b) of this section.
* * * * *
(g) The drip pad must be evaluated to determine that it meets the
requirements of paragraphs (a) through (f) of this section and the
owner or operator must obtain a statement from a qualified Professional
Engineer certifying that the drip pad design meets the requirements of
this section.
* * * * *
0
70. Section 265.444 is amended by revising paragraph (a) to read as
follows:
Sec. 265.444 Inspections.
(a) During construction or installation, liners and cover systems
(e.g., membranes, sheets, or coatings) must be inspected for
uniformity, damage and imperfections (e.g., holes, cracks, thin spots,
or foreign materials). Immediately after construction or installation,
liners must be inspected and certified as meeting the requirements of
Sec. 265.443 by a qualified Professional Engineer. This certification
must be maintained at the facility as part of the facility operating
record. After installation, liners and covers must be inspected to
ensure tight seams and joints and the absence of tears, punctures, or
blisters.
* * * * *
Subpart BB--Air Emission Standards for Equipment Leaks
Sec. 265.1061 [Amended]
0
71. Section 265.1061 is amended by removing paragraphs (b)(1) and (d),
and redesignating paragraphs (b)(2) and (b)(3) as paragraphs (b)(1) and
(b)(2).
Sec. 265.1062 [Amended]
0
72. Section 265.1062 is amended by removing paragraph (a)(2) and
redesignating paragraph (a)(1) as paragraph (a).
Subpart DD--Containment Buildings
0
73. Section 265.1100 is amended by revising the introductory text to
read as follows:
Sec. 265.1100 Applicability.
The requirements of this subpart apply to owners or operators who
store or treat hazardous waste in units designed and operated under
Sec. 265.1101 of this subpart. The owner or operator is not subject to
the definition of land disposal in RCRA section 3004(k) provided that
the unit:
* * * * *
0
74. Section 265.1101 is amended revising paragraphs (c)(2) and (c)(4)
to read as follows:
Sec. 265.1101 Design and operating standards.
* * * * *
(c) * * *
(2) Obtain and keep on-site a certification by a qualified
Professional Engineer that the containment building design meets the
requirements of paragraphs (a), (b), and (c) of this section.
* * * * *
(4) Inspect and record in the facility's operating record at least
once every seven days, except for Performance Track member facilities,
that must inspect up to once each month, upon approval of the director,
data gathered from monitoring and leak detection equipment as well as
the containment building and the area immediately surrounding the
containment building
[[Page 16913]]
to detect signs of releases of hazardous waste. To apply for reduced
inspection frequency, the Performance Track member facility must follow
the procedures described in Sec. 265.15(b)(5).
* * * * *
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
0
75. The authority citation for part 266 continues to read as follows:
Authority: 42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 6905, 6906,
6912, 6921, 6922, 6924-6927, 6934, and 6937.
Subpart H--Hazardous Waste Burned in Boilers and Industrial
Furnaces
0
76. Section 266.102 is amended by revising paragraph (e)(10) to read as
follows:
Sec. 266.102 Permit standards for burners.
* * * * *
(e) * * *
(10) Recordkeeping. The owner or operator must maintain in the
operating record of the facility all information and data required by
this section for five years.
* * * * *
0
77. Section 266.103 is amended by revising paragraphs (d) and (k) to
read as follows:
Sec. 266.103 Interim status standards for burners.
* * * * *
(d) Periodic Recertifications. The owner or operator must conduct
compliance testing and submit to the Director a recertification of
compliance under provisions of paragraph (c) of this section within
five years from submitting the previous certification or
recertification. If the owner or operator seeks to recertify compliance
under new operating conditions, he/she must comply with the
requirements of paragraph (c)(8) of this section.
* * * * *
(k) Recordkeeping. The owner or operator must keep in the operating
record of the facility all information and data required by this
section for five years.
* * * * *
PART 268--LAND DISPOSAL RESTRICTIONS
0
78. The authority citation for part 268 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
Subpart A--General
0
79. Section 268.7 is amended by revising paragraphs (a)(1), (a)(2), and
(b)(6) to read as follows:
Sec. 268.7 Testing, tracking and recordkeeping requirements for
generators, treaters, and disposal facilities.
(a) Requirements for generators: (1) A generator of hazardous waste
must determine if the waste has to be treated before it can be land
disposed. This is done by determining if the hazardous waste meets the
treatment standards in Sec. 268.40, 268.45, or Sec. 268.49. This
determination can be made concurrently with the hazardous waste
determination required in Sec. 262.11 of this chapter, in either of
two ways: testing the waste or using knowledge of the waste. If the
generator tests the waste, testing would normally determine the total
concentration of hazardous constituents, or the concentration of
hazardous constituents in an extract of the waste obtained using test
method 1311 in ``Test Methods of Evaluating Solid Waste, Physical/
Chemical Methods,'' EPA Publication SW-846, (incorporated by reference,
see Sec. 260.11 of this chapter), depending on whether the treatment
standard for the waste is expressed as a total concentration or
concentration of hazardous constituent in the waste's extract.
(Alternatively, the generator must send the waste to a RCRA-permitted
hazardous waste treatment facility, where the waste treatment facility
must comply with the requirements of Sec. 264.13 of this chapter and
paragraph (b) of this section. In addition, some hazardous wastes must
be treated by particular treatment methods before they can be land
disposed and some soils are contaminated by such hazardous wastes.
These treatment standards are also found in Sec. 268.40, and are
described in detail in Sec. 268.42, Table 1. These wastes, and solids
contaminated with such wastes, do not need to be tested (however, if
they are in a waste mixture, other wastes with concentration level
treatment standards would have to be tested). If a generator determines
they are managing a waste or soil contaminated with a waste, that
displays a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity, they must comply with the special requirements
of Sec. 268.9 of this part in addition to any applicable requirements
in this section.
(2) If the waste or contaminated soil does not meet the treatment
standards, or if the generator chooses not to make the determination of
whether his waste must be treated, with the initial shipment of waste
to each treatment or storage facility, the generator must send a one-
time written notice to each treatment or storage facility receiving the
waste, and place a copy in the file. The notice must include the
information in column ``268.7(a)(2)'' of the Generator Paperwork
Requirements Table in paragraph (a)(4) of this section. (Alternatively,
if the generator chooses not to make the determination of whether the
waste must be treated, the notification must include the EPA Hazardous
Waste Numbers and Manifest Number of the first shipment and must state
``This hazardous waste may or may not be subject to the LDR treatment
standards. The treatment facility must make the determination.'') No
further notification is necessary until such time that the waste or
facility change, in which case a new notification must be sent and a
copy placed in the generator's file.
* * * * *
(b) * * *
(6) Where the wastes are recyclable materials used in a manner
constituting disposal subject to the provisions of Sec. 266.20(b) of
this chapter regarding treatment standards and prohibition levels, the
owner or operator of a treatment facility (i.e., the recycler) must,
for the initial shipment of waste, prepare a one-time certification
described in paragraph (b)(4) of this section, and a one-time notice
which includes the information in paragraph (b)(3) of this section
(except the manifest number). The certification and notification must
be placed in the facility's on-site files. If the waste or the
receiving facility changes, a new certification and notification must
be prepared and placed in the on site files. In addition, the recycling
facility must also keep records of the name and location of each entity
receiving the hazardous waste-derived product.
* * * * *
0
80. Section 268.9 is amended by revising paragraphs (a) and (d)
introductory text to read as follows:
Sec. 268.9 Special rules regarding wastes that exhibit a
characteristic.
(a) The initial generator of a solid waste must determine each EPA
Hazardous Waste Number (waste code) applicable to the waste in order to
determine the applicable treatment standards under subpart D of this
part. This determination may be made concurrently with the hazardous
waste determination required in Sec. 262.11 of this chapter. For
purposes of part 268, the waste will carry the waste code for any
applicable listed waste (40 CFR part
[[Page 16914]]
261, subpart D). In addition, where the waste exhibits a
characteristic, the waste will carry one or more of the characteristic
waste codes (40 CFR part 261, subpart C), except when the treatment
standard for the listed waste operates in lieu of the treatment
standard for the characteristic waste, as specified in paragraph (b) of
this section. If the generator determines that their waste displays a
hazardous characteristic (and is not D001 nonwastewaters treated by
CMBST, RORGS, OR POLYM of Sec. 268.42, Table 1), the generator must
determine the underlying hazardous constituents (as defined at Sec.
268.2(i)) in the characteristic waste.
* * * * *
(d) Wastes that exhibit a characteristic are also subject to Sec.
268.7 requirements, except that once the waste is no longer hazardous,
a one-time notification and certification must be placed in the
generator's or treater's on-site files. The notification and
certification must be updated if the process or operation generating
the waste changes and/or if the subtitle D facility receiving the waste
changes.
* * * * *
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
0
81. The authority citation for part 270 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
Subpart B--Permit Application
0
82. Section 270.14 is amended by revising paragraph (a) to read as
follows:
Sec. 270.14 Contents of part B: General requirements.
(a) Part B of the permit application consists of the general
information requirements of this section, and the specific information
requirements in Sec. Sec. 0.14 through 270.29 applicable to the
facility. The part B information requirements presented in Sec. Sec.
270.14 through 270.29 reflect the standards promulgated in 40 CFR part
264. These information requirements are necessary in order for EPA to
determine compliance with the part 264 standards. If owners and
operators of HWM facilities can demonstrate that the information
prescribed in part B can not be provided to the extent required, the
Director may make allowance for submission of such information on a
case-by-case basis. Information required in part B shall be submitted
to the Director and signed in accordance with the requirements in Sec.
270.11. Certain technical data, such as design drawings and
specification, and engineering studies shall be certified by a
qualified Professional Engineer. For post-closure permits, only the
information specified in Sec. 270.28 is required in part B of the
permit application.
* * * * *
0
83. Section 270.16 is amended by revising paragraph (a) to read as
follows:
Sec. 270.16 Specific part B information requirements for tank
systems.
* * * * *
(a) A written assessment that is reviewed and certified by a
qualified Professional Engineer as to the structural integrity and
suitability for handling hazardous waste of each tank system, as
required under Sec. Sec. 264.191 and 264.192 of this chapter;
* * * * *
0
84. Section 270.26 is amended by revising paragraph (c)(15) to read as
follows:
Sec. 270.26 Special part B information requirements for drip pads.
* * * * *
(c) * * *
(15) A certification signed by a qualified Professional Engineer,
stating that the drip pad design meets the requirements of paragraphs
(a) through(f) Sec. 264.573 of this chapter.
* * * * *
Subpart D--Changes to Permits
0
85. Section 270.42 is amended by adding new paragraph (l) and by adding
new entry O to the table in Appendix I to Sec. 270.42. to read as
follows:
Sec. 270.42 Permit modification at the request of the permittee.
* * * * *
(l) Performance Track member facilities. The following procedures
apply to Performance Track member facilities that request a permit
modification under Appendix I of this section, section O(1).
(1) Performance Track member facilities must have complied with the
requirements of Sec. 264.15(b)(5) in order to request a permit
modification under this section.
(2) The Performance Track member facility should consider the
application approved if the Director does not: deny the application, in
writing; or notify the Performance Track member facility, in writing,
of an extension to the 60-day deadline within 60 days of receiving the
request. In these situations, the Performance Track member facility
must adhere to the revised inspection schedule outlined in its
application and maintain a copy of the application in the facility's
operating record.
* * * * *
Appendix 1 To Sec. 270.42--Classification of Permit Modification
------------------------------------------------------------------------
Modifications Class
------------------------------------------------------------------------
* * * * * * *
O. Burden Reduction
1. Approval of reduced inspection frequency for Performance
Track member facilities for:
a. Tanks systems pursuant to Sec. 264.195............. \1\ 1
b. Containers pursuant to Sec. 264.174................ \1\ 1
c. Containment buildings pursuant to Sec. \1\ 1
264.1101(c)(4).........................................
d. Areas subject to spills pursuant to Sec. \1\ 1
264.15(b)(4)...........................................
2. Development of one contingency plan based on Integrated 1
Contingency Plan Guidance pursuant to Sec. 264.52(b).....
3. Changes to recordkeeping and reporting requirements 1
pursuant to: Sec. Sec. 264.56(i), 264.343(a)(2),
264.1061(b)(1),(d), 264.1062(a)(2), 264.196(f), 264.100(g),
and 264.113(e)(5)..........................................
4. Changes to inspection frequency for tank systems pursuant 1
to Sec. 264.195(b).......................................
5. Changes to detection and compliance monitoring program 1
pursuant to Sec. Sec. 264.98(d), (g)(2), and (g)(3),
264.99(f), and (g).........................................
------------------------------------------------------------------------
\1\ Class 1 modifications requiring prior Agency approval.
[[Page 16915]]
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
0
86. The authority citation for part 271 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a) and 6926.
0
87. Section 271.1(j) is amended by adding the following entries to
Table 1 in chronological order by date of publication in the Federal
Register, to read as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(j) * * *
Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Promulgation date Title of regulation reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
May 4, 2006....................... Office of Solid Waste [Insert FR page May 4, 2006.
Burden Reduction Project. numbers].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 06-2690 Filed 4-3-06; 8:45 am]
BILLING CODE 6560-50-P