Resource Conservation and Recovery Act Burden Reduction Initiative, 16862-16915 [06-2690]

Download as PDF 16862 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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: eby.elaine@epa.gov. 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 sroberts on PROD1PC70 with RULES 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 https://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 https://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, 18:59 Apr 03, 2006 Jkt 208001 General Information A. Does This Action Apply to Me? Agency. ACTION: Final rule. VerDate Aug<31>2005 SUPPLEMENTARY INFORMATION: 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations sroberts on PROD1PC70 with RULES 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 1 The Notices of Data Availability were published in the Federal Register on June 18, 1999 (64 FR VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 (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 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 32859) and October 29, 2003 (68 FR 61662). The PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 16863 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. Proposed Rulemaking was published in the Federal Register on January 17, 2002 (67 FR 2518). E:\FR\FM\04APR2.SGM 04APR2 16864 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations TABLE 1.—SUMMARY OF THE MAJOR COMPONENTS AND A DESCRIPTION OF THE REGULATORY CHANGES BEING PROMULGATED IN TODAY’S BURDEN REDUCTION FINAL RULE Regulatory change Description of regulatory 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. Numerous regulations require 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.’’ Large Quantity Generators (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. LQGs and TSDFs must train their employees in emergency 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. We are modifying specified 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. We have eliminated certain recordkeeping and reporting requirements in the RCRA regulations in order to eliminate submission of duplicative information and/or reporting unnecessary burden to waste handlers. Under many RCRA inspection 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. We are modifying certain requirements under which waste 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. We have eliminated several requirements to reduce the number of documents that are submitted to the Agency document for review. We have reduced the submittal frequency of certain documents (e.g., from semi-annual to annual). Certification by a professional engineer ................................................... Option to follow the Integrated Contingency Plan Guidance ................... Option to follow Occuputional Safety and Health Administration (OSHA) regulations for emergency training. Clarifications and elimination of obsolete regulatory language ............... Elimination of selected recordkeeping and reporting requirements ......... Decreased inspection frequency for hazardous waste management units. Selected changes to the requirements for record retention and submittal of records. Changes to the requirements for document submittal ............................. Reduced frequency for report submittal ................................................... 1. We Are Reducing the Retention Time for Certain Information Kept in a Facility’s Operating Record III. What Burden Reduction Changes Are We Making? sroberts on PROD1PC70 with RULES 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. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 We are changing a number of the operating record requirements under §§ 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 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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, 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. E:\FR\FM\04APR2.SGM 04APR2 sroberts on PROD1PC70 with RULES Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations §§ 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. 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 § 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 § 264.73(b)(6) and § 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 § 265.73(b)(6) and creating a new § 265.73(b)(15) to require retention in the operating record until closure of the facility, the ground-water quality assessment plans required under § 265.90 and § 265.93(d)(2), and groundwater quality assessment reports required under § 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. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 16865 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 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 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. E:\FR\FM\04APR2.SGM 04APR2 16866 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 §§ 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 264.73(b)(1) ......................... 264.73(b)(5) ......................... Description and quantity of each hazardous waste received and the method(s) and date(s) of its treatment, storage or disposal at the facility. The location of each hazardous waste within the facility and the quantity at each location. Records and results of waste analyses and waste determinations. Summary reports and details of all incidents that require implementing the contingency plan. Records and results of inspections ................................. 264.73(b)(6) ......................... Monitoring, testing, or analytical data corrective action 264.73(b)(7) ......................... For off-site facilities, notices to generators as specified in § 264.12(b). All closure cost estimates for disposal facilities, all postclosure cost estimates. Waste minimization certification ...................................... 264.73(b)(2) ......................... 264.73(b)(3) ......................... 264.73(b)(4) ......................... 264.73(b)(8) ......................... 264.73(b)(9) ......................... 264.73(b)(10) ....................... 264.73(b)(11) ....................... 264.73(b)(12) ....................... 264.73(b)(13) ....................... New retention time as amended by the burden reduction rule Records of the quantities and date of placement for each shipment of hazardous waste place in land disposal units under an extension to the effective date of any land disposal restriction granted. For off-site treatment facility, notices and certifications from generator. For on-site treatment facility, notices and certifications 264.73(b)(16) ....................... For off-site land disposal facility, notices and certifications from generator. For on-site land disposal facility, notices and certifications. For off-site storage facility, notices and certifications from generator. For on-site storage facility, notices and certifications ..... 264.73(b)(17) ....................... Records required under § 264.1(j)(13) ............................ 264.73(b)(18) ....................... 264.73(b)(19) ....................... Monitoring, testing or analytical data where required by § 264.347. Certification as required by § 264.196(f) ......................... 264.347(d) ............................ For incinerators: monitoring and inspection data ........... 266.102(e)(10) ..................... For burners: recordkeeping ............................................. 264.73(b)(14) ....................... sroberts on PROD1PC70 with RULES 264.73(b)(15) ....................... VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Maintain until closure of the facility. No change in regulatory requirement. Maintain until closure of the facility. No change in regulatory requirement. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. Maintain for three years. Maintain for three years. No change in requirement. Maintain until closure of the 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. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. No change in regulatory requirement. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. No change in regulatory requirement. Maintain until closure of the Maintain for three years. Maintain until closure of the Maintain for three years. Maintain until closure of the Maintain for three years. Maintain until closure of the Maintain for three years. Maintain until closure of the Maintain for three years. Maintain until closure of the Maintain for three years. Maintain until closure of the Maintain for three years. Maintain until closure of the Maintain for five years. No specified requirement. Maintain until closure of the Maintain until closure of the Maintain for five years. Maintain until closure of the Maintain for five years. E:\FR\FM\04APR2.SGM 04APR2 facility. facility. facility. facility. facility. facility. facility. facility. facility. facility. facility. Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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) .............................. 265.73(b)(2) .............................. 265.73(b)(3) .............................. 265.73(b)(4) .............................. 265.73(b)(5) .............................. Description and quantity of each hazardous waste received and the method(s) and date(s) of its treatment, storage or disposal at the facility. The location of each hazardous waste within the facility and the quantity at each location. Records and results of waste analyses and waste determinations. Summary reports and details of all incidents that require implementing the contingency plan. Records and results of inspections .................. 265.73(b)(6) .............................. Monitoring, testing, or analytical data and corrective action. 265.73(b)(7) .............................. All closure cost estimates for disposal facilities, all post-closure cost estimates. Records of the quantities and date of placement for each shipment of the hazardous waste place in land disposal units under an extension to the effective date of any land disposal restriction granted. For off-site treatment facility, notices and certifications from generator. For on-site treatment facility, notices and certifications. For off-site land disposal facility, notices and certifications from the generator. For on-site land disposal facility, notices and certifications. For off-site storage facility, notices and certifications from generator. For on-site storage facility, notices and certifications. Monitoring, testing, or analytical data, and corrective action where required by §§ 265.90, 265.93(d)(2), and 265.93(d)(5) of this part and certifications as required by § 265.196(f). 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. Interim status standards for burners: recordkeeping. 265.73(b)(8) .............................. 265.73(b)(9) .............................. 265.73(b)(10) ............................ 265.73(b)(11) ............................ 265.73(b)(12) ............................ 265.73(b)(13) ............................ 265.73(b)(14) ............................ 265.73(b)(15) ............................ 266.103(d) ................................. 266.103(k) ................................. sroberts on PROD1PC70 with RULES 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 Maintain until closure of the facility. No change in regulatory requirement. Maintain until closure of the facility. No change in regulatory requirement. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. Maintain for three years. Maintain for three years. No change in regulatory requirement. Maintain until closure of the facility. Maintain 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 until closure of the facility. Maintain until closure of the facility. No change in regulatory requirement. Maintain until closure of the facility. No change in regulatory requirement. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. Maintain for three years. Maintain until closure of the facility. No change in regulatory requirement. Every three years. Every five years. Maintain until closure of the facility. Maintain for five years. 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 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 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 E:\FR\FM\04APR2.SGM 04APR2 16868 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations sroberts on PROD1PC70 with RULES 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 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 4 After publication of the October 29, 2003 NODA, (see 68 FR 61662), EPA determined that the certification required by § 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. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 environmental professionals, EPA may re-examine this issue in the future.5 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 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). E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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: sroberts on PROD1PC70 with RULES 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 16869 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 postclosure 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, § 265.280(e) Land Treatment, Closure and postclosure care, and six cross-reference citations to the original closure and post-closure certifications. These crossreferences 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 E:\FR\FM\04APR2.SGM 04APR2 16870 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 postclosure 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 TABLE 4.—PERMITTED TREATMENT, STORAGE, AND DISPOSAL FACILITIES NEEDING RCRA CERTIFICATIONS BY A QUALIFIED PROFESSIONAL ENGINEER New RCRA certification requirement (i.e., dropping ‘‘registered’’) CFR section 264.115 ................................ 264.120 ................................ 264.143(i) ............................. 264.145(i) ............................. 264.147(e) ............................ 264.191(a), (b)(5)(ii) ............. 264.192(a), (b) ..................... 264.193(h)(4)(i)(2) ................ 264.196(f) ............................. 264.280(b) ............................ 264.554(c)(2) ........................ 264.571(a),(b),(c) ................. 264.573(a)(4)(ii) .................... 264.573(g) ............................ 264.574(a) ............................ 264.1101(c)(2) ...................... 270.14(a) .............................. 270.16(a) .............................. 270.26(c)(15) ........................ Closure and Post-Closure. Certification of closure. Closure and Post-Closure. Certification of completion of post-closure care. Financial Assurance for Closure. Release of the owner or operator from the requirements of this section. Financial Assurance for Post-Closure. Release of the owner or operator from the requirements of this section. Liability Requirements. Period of coverage. Tank Systems. Assessment of existing tank system’s integrity. Tank Systems. Design and installation of new tank systems or components. Tank Systems. Containment and detection of releases. Tank systems. Response to leaks or spills and disposition of leaking or unfit-for-use tank systems. Land Treatment. Closure and post closure care. Staging Piles. Drip Pads. Assessment of existing drip pad integrity. Drip Pads. Design and Operating Requirements. Drip Pads. Design and Operating Requirements. Drip Pads. Inspections. Containment Buildings. Design and operating standards. Permit Application. Content of part B. General requirements. Permit Application. Specific part B information requirements for tank systems. 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 (i.e., dropping ‘‘registered’’) CFR section sroberts on PROD1PC70 with RULES 265.115 ................................ 265.120 ................................ 265.143(h) ............................ 265.145(h) ............................ 265.147(e) ............................ 265.191(a), (b)(5)(ii) ............. 265.192(a), (b) ..................... 265.193(h)(5)(i)(2) ................ 265.196(f) ............................. 265.280(e) ............................ 265.441(a), (b),(c) ................ 265.443(a)(4)(ii) .................... 265.443(g) ............................ 265.444(a) ............................ 265.1101(c)(2) ...................... 270.14(a) .............................. 270.16(a) .............................. 270.26(c)(15) ........................ Closure and Post-Closure. Certification of closure. Closure and Post-Closure. Certification of completion of post-closure care. Financial Assurance for Closure. Release of the owner or operator from the requirements of this section. Financial Assurance for Post-Closure. Release of the owner or operator from the requirements of this section. Liability Requirements. Period of coverage. Tank Systems. Assessment of existing tank system’s integrity. Tank Systems. Design and installation of new tank systems or components. Tank Systems. Containment and detection of releases. Tank Systems. Response to leaks or spills and disposition of leaking or unfit-for-use tank systems. Land Treatment. Closure and post closure care. Drip Pads. Assessment of existing drip pad integrity. Drip Pads. Design and Operating Requirements. Drip Pads. Design and Operating Requirements. Drip Pads. Inspections. Containment Buildings. Design and operating standards. Permit Application. Content of part B. General requirements. Permit Application. Specific part B information requirements for tank systems. Permit Application. Special part B information requirements for drip pads. 6 In §§ 264.192(b) and 265.192(b), certifications may also be done by an independent, qualified VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 installation inspector. Similarly, in § 264.280(b), this certification may be done by an independent, PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 qualified soil scientist, in lieu of a qualified professional engineer. E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 §§ 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. Today’s rule clarifies our regulations (see §§ 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. sroberts on PROD1PC70 with RULES 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 §§ 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 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 https://yosemite.epa.gov/oswer/ ceppoweb.nsf/content/serc-lepc-publications.htm. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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. 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 cutoff 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 §§ 264.16(a)(1) and 265.16(a)(1), which state: ‘‘Facility personnel must successfully complete a program of classroom instruction or onthe-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 § 261.5 and small quantity generators under § 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 §§ 264.16 and 265.16. 8 Formerly the United States General Accounting Office. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 16871 E:\FR\FM\04APR2.SGM 04APR2 16872 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 sroberts on PROD1PC70 with RULES We proposed eliminating § 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 § 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, § 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 § 268.7(a)(1) to § 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 § 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 requirement under § 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 § 268.7(a)(1). Thus, today’s rule, rather than eliminating paragraph § 268.7(a)(1), amends paragraph § 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 § 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 (§ 268.9(a)) for generators of characteristic hazardous wastes under the land disposal restrictions, in order to parallel the proposed changes to § 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 § 268.9(a) to § 262.11, in order to clarify that these two generator waste analysis functions can be PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 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 § 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 § 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 § 268.9(a). Thus, today’s rule, rather than eliminating paragraph § 268.9(a), amends paragraph § 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 §§ 264.193(a) and 265.193(a), arguing that the language was obsolete. However, the proposal inadvertently deleted paragraphs (1) and (5) of §§ 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 §§ 264.193 (a)(2),(3), and (4) and 265.193(a)(2), (3), and (4) and clarifying the requirements in §§ 264.193(a)(5) and 265.193(a)(5). Tables 6, 7, and 8 summarize the changes being finalized today. E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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) ............................ 268.7(a)(2) ............................ sroberts on PROD1PC70 with RULES 268.9(a) ................................ VerDate Aug<31>2005 18:59 Apr 03, 2006 (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 § 268.40, § 268.45, or § 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 § 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 § 268.40, and are described in detail in § 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 § 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 § 268.40, § 268.45, or § 268.49. This determination can be made concurrently with the hazardous waste determination required in § 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 § 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 § 264.13 of this chapter and § 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 § 268.40, and are described in detail in § 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 § 268.9 of this part in addition to any applicable requirements in this section. 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. (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 § 268.42, Table 1), the generator must determine the underlying hazardous constituents (as defined at § 268.2(i)) in the characteristic waste. Jkt 208001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 16874 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations TABLE 6.—REGULATORY CLARIFICATION BEING MADE FOR LAND DISPOSAL RESTRICTIONS TESTING, TRACKING, AND RECORDKEEPING REQUIREMENTS FOR GENERATORS, TREATERS, AND DISPOSAL FACILITIES—Continued Current regulatory language CFR section New regulatory language as amended by the Burden Reduction Rule (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 § 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 § 268.42, Table 1), the generator must determine the underlying hazardous constituents (as defined at § 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 Tank Systems: Containment and detection of releases. 264.193(a)(3) ............. Tank Systems: Containment and detection of releases. 264.193(a)(4) ............. Tank Systems: Containment and detection of releases. 264.251(c) ................. Waste Piles: Design and operating requirements. 264.314(a) ................. Land fills: Special requirements for bulk and containerized liquids. 264.314(b) ................. Landfills: Special requirements for bulk and containerized liquids. 264.314(f) .................. Land Fills: Special requirements for bulk and containerized liquids. 264.1100 .................... sroberts on PROD1PC70 with RULES 264.193(a)(2) ............. Containment Buildings. Applicability. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 For all existing tank systems used to store or treat EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, and F027, within two years after January 12, 1987. Section 264.193(a)(2) is being deleted. For those existing tank systems of known and documented age, within two years after January 12, 1987 or when the tank system has reached 15 years of age, whichever comes later. Section 264.193(a)(3) is being deleted. For those existing tank systems for which the age cannot be documented, within eight years of 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. The owner or operator of each new waste pile 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. Bulk or non-containerized liquid waste or waste containing free liquids may be placed in a landfill prior to May 8, 1985. Section 264.314(a) is being deleted. Effective May 8, 1995, 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. 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. Effective November 8, 1985, 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: 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: The requirements of ths subpart apply to owners or operators who store or treat hazardous waste in units designed and operated under § 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 § 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 § 264.1101 of this subpart. The owner or operator is not subject to the definition of land disposal in RCRA § 3004(k) provided that the unit: Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 16875 TABLE 7.—OBSOLETE REGULATORY LANGUAGE BEING DELETED FOR PERMITTED TREATMENT, STORAGE, AND DISPOSAL FACILITIES—Continued Current regulatory language CFR section Regulatory requirement New regulatory requirement as amended by the Burden Reduction Rule 264.1101(c)(2) ........... Containment Buildings. Design and Operating Standards. Obtain certification by a qualified registered professional engineer that the containment 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 Tank Systems: Containment and detection of releases. 265.193(a)(3) ............. Tank Systems: Containment and detection of releases. 265.193(a)(4) ............. Tank Systems: Containment and detection of releases. 265.314(a) ................. Land Fills: Special requirements for bulk and containerized liquids. 265.314(b) ................. Land Fills: Special requirements for bulk and containerized liquids. 265.314(g) ................. Land Fills: Special requirements for bulk and containerized liquids. 265.1100 .................... Containment Buildings. Applicability. 265.1101(c)(2) ........... sroberts on PROD1PC70 with RULES 265.193(a)(2) ............. Containment Buildings. Design and Operating Standards. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 For all existing tank systems used to and store or treat EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, and F027, within two years after January 12, 1987. Section 265.193(a)(2) is being deleted. For those existing tank systems of known and documentable age, within two years after 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. For those existing tank systems for which the age cannot be documented, within eight years of 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. Bulk or non-containerized liquid waste or waste containing free liquids may be placed in a landfill prior to May 8, 1985. Section 265.314(a) is being deleted. Effective May 8, 1995, 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. 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. Effective November 8, 1985, 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: 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: The requirements of ths subpart apply to owners or operators who store or treat hazardous waste in units designed and operated under § 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 § 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 § 265.1101 of this subpart. The owner or operator is not subject to the definition of land disposal in RCRA § 3004(k) provided that the unit: Obtain certification by a qualified registered professional engineer that the containment 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. Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 16876 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations TABLE 8.—OBSOLETE REGULATORY LANGUAGE BEING DELETED FOR INTERIM STATUS TREATMENT, STORAGE, AND DISPOSAL FACILITIES—Continued Current regulatory language CFR section Regulatory requirement New regulatory requirement as amended by the Burden Reduction Rule 265.221(a) ................. Surface Impoundments: Design and operating requirements. 265.301(a) ................. Land Fills: Design and operating requirements. F. We Are Eliminating Selected Recordkeeping and Reporting Requirements That We Believe Provide Duplicative Information to EPA sroberts on PROD1PC70 with RULES 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 §§ 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 §§ 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 The owner or operator of each new surface impoundment unit on which construction 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 § 264.221(c), unless exempted under § 264.221 (d), (e), or (f) of this chapter. ‘‘Construction commences’’ is as defined in § 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 § 264.221(c), unless exempted under § 264.221(d), (e), or (f) of this chapter. The owner or operator of each new and operating 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 § 264.301 (d), (e), or (f) of this chapter. ‘‘Construction commences’’ is as defined in § 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 § 264.301 (d), (e), or (f) of this chapter. 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 §§ 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. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 §§ 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 §§ 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 §§ 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 16877 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 § 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 ................ 264.56(i) ............................... Contingency Plan and Emergency Procedures. Emergency Procedures. Notify Regional Administrator that facility is in compliance with § 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. Incinerators. Performance standards. Submit notification of intent to burn hazardous wastes F020, F021, F022, F023, F026, and F027. 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. Submit notification to implement the alternative valve standard Submit notification to discontinue the alternative valve standard. 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. Submit notification to implement alternative work practices for valves. Deletion to 264.343 .............. 264.343(a)(2) ........................ Deletions to 264.1061 .......... 264.1061(b)(1) ...................... 264.1061(d) .......................... Deletion to 264.1062 ............ 264.1062(a)(2) ...................... TABLE 10.—RECORDKEEPING AND REPORTING REQUIREMENTS BEING DELETED FOR INTERIM STATUS TREATMENT, STORAGE, AND DISPOSAL FACILITIES CFR section Regulatory requirement Deletion to 265.56 ................ 265.56(i) ............................... Contingency Plan and Emergency Procedures. Emergency Procedures. Notify Regional Administrator that facility is in compliance with § 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. 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. Submit notification to implement the alternative valve standard. Submit notification to discontinue the alternative valve standard. 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. Submit notification to implement alternative work practices for valves. sroberts on PROD1PC70 with RULES Deletions to 265.1061 .......... 265.1061(b)(1) ...................... 265.1061(d) .......................... Deletion to 265.1062 ............ 265.1062(a)(2) ...................... VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 sroberts on PROD1PC70 with RULES 16878 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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-bycase 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 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 §§ 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 § 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 §§ 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 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 https:// www.epa.gov/performancetrack. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 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 § 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 §§ 264 and 265, subpart J. Daily inspections enable tank systems, subject to subpart J, to comply with the §§ 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 §§ 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 E:\FR\FM\04APR2.SGM 04APR2 sroberts on PROD1PC70 with RULES Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 §§ 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 §§ 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.’’ VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 § 264.196, upon detection of a leak, either through PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 16879 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 § 264.195(a)(2) and § 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 § 264.193(c) and § 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 §§ 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 §§ 264.195 and 265.195 were finalized, the existing provisions in §§ 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 §§ 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 §§ 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, E:\FR\FM\04APR2.SGM 04APR2 16880 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 §§ 264.194(d) and 265.195(c) to say that ancillary equipment that is not provided with secondary containment, as described in §§ 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). sroberts on PROD1PC70 with RULES 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 for SQG tanks are found in 40 CFR 265.201(b).10 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 § 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 selfinspection frequency to include tanks located at small quantity generator sites (see § 265.201(c)) and ancillary 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 § 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 offsite facilities.’’ (51 FR 10149). PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 equipment (see § 265.193(f)11). This change would affect only three of the five SQG inspection requirements: for discharge control equipment (§ 265.201(c)(1)); data gathered from monitoring equipment (§ 265.201(c)(2)); and monitoring the level of waste in the tank (§ 265.201(c)(3)), since the last two inspection requirements (§§ 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. 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 §§ 264.15 and 265.15 and are not required to maintain a schedule or a record of inspections. We agree that § 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 11 While the Agency solicited comment on reducing the inspection frequency for ancillary equipment for SQGs, the referenced regulation, § 265.193(f) does not apply to tank systems at SQG sites, only the requirements found in § 265.201(c) apply to SQG tank systems. Therefore, the Agency is not pursuing changes to § 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. E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations sroberts on PROD1PC70 with RULES 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 §§ 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 Performance Track Program, as well as extending reduced inspection frequencies, granted on a case-by-case basis, to areas subject to spills (see § 264.15(b)(4)). In today’s rule we are finalizing this provision—the ability to file a case-bycase application for further reduced selfinspection 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 12 In the proposed rule (67 FR at 2527), the Agency made reference to a commenter’s suggestion that inspection frequency changes should be selfimplementing. 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. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 16881 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. 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. 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 13 For more information on the Independent Assessment Criteria for EMSs, see https:// www.epa.gov/performancetrack/ indlassessment.htm. E:\FR\FM\04APR2.SGM 04APR2 sroberts on PROD1PC70 with RULES 16882 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 §§ 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. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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-bycase 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-bycase 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 §§ 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 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 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 selfinspection 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). 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 selfinspection frequencies for SQG tank systems under § 265.201(b) when they meet either one of the two conditions described above. d. Performance Track: Reduced Inspection Frequency for Containment 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 §§ 264.193(f)(1)–(4) and 265.193(f)(1)–(4). E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations Buildings. We proposed to allow caseby-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 16883 Program. Again, for the same reasons stated above, we decided to limit §§ 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 Hazardous Waste Management System: Definitions. 264.15(b)(4) ............... General Facility Standards: General Inspection Requirements. 264.15(b)(5) ............... sroberts on PROD1PC70 with RULES 260.10 ........................ General Facility Standards: General Inspection Requirements. 264.174 ...................... Use and Management of Containers: Inspections. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 No regulatory definition currently exists. Performance Track member facility means a 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. 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 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 §§ 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 §§ 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. No regulatory language currently exists. 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: (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. At least weekly, the owner or operator must inspect areas where containers are stored, looking for leaking containers, and for deterioration of containers and the containment system caused by corrosion or other factors. Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 16884 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations TABLE 11.—DECREASED INSPECTION FREQUENCIES FOR HAZARDOUS WASTE MANAGEMENT UNITS AT PERMITTED HAZARDOUS WASTE FACILITIES—Continued Current regulatory language CFR section Regulatory requirement New regulatory language as amended by the Burden Reduction Rule Tank Systems: Inspections ....... 264.1101(c)(4) ........... sroberts on PROD1PC70 with RULES 264.195 ...................... Containment Buildings: Design and Operating Standards. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 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 § 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. (b) 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) 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 § 264.15(b)(5). (f) Ancillary equipment that is not provided with secondary containment, as described in § 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.] Inspect and record in the facility’s operating record, at least once every seven days, 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. 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 § 264.15(b)(5) of this part. Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 Hazardous Waste Management System: Definitions. 265.15(b)(4) ............... General Facility Standards: General Inspection Requirements. 265.15(b)(5) ............... General Facility Standards: General Inspection Requirements.. 265.174 ...................... Use and Management of Containers: Inspections. 265.195 ...................... sroberts on PROD1PC70 with RULES 260.10 ........................ Tank Systems: Inspections. ...... VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 No regulatory definition currently exists. 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. 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 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 §§ 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 §§ 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. No regulatory language currently exists. Performance Track member facilities that choose to reduce their inspection frequency 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 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. The owner or operator must inspect areas where containers are stored, at least weekly, looking 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 § 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. (a) The owner or operator must inspect, where 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 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 16886 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations TABLE 12.—DECREASED INSPECTION FREQUENCIES FOR HAZARDOUS WASTE MANAGEMENT UNITS AT INTERIM STATUS FACILITIES—Continued Current regulatory language CFR section Regulatory requirement New regulatory language as amended by the Burden Reduction Rule 265.1101(c)(4) ........... Containment Buildings: Design and Operating Standards. (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 § 265.15(b)(5). (e) Ancillary equipment that is not provided with secondary containment, as described in § 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. Inspect and record in the facility’s operating record, at least once every seven days, 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. 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 § 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 sroberts on PROD1PC70 with RULES 265.201(c) ................. VerDate Aug<31>2005 Tank Systems: Special requirements for generators of between 100 and 1,000 kg/mo that accumulate hazardous waste in tanks. 18:59 Apr 03, 2006 Jkt 208001 PO 00000 (c) Generators of 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; Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 16887 TABLE 13.—DECREASED INSPECTION FREQUENCIES FOR SMALL QUANTITY GENERATOR HAZARDOUS WASTE MANAGEMENT UNITS—Continued Current regulatory language CFR section Regulatory requirement New regulatory language as amended by the Burden Reduction Rule (3) The level of waste in the tank at least once each operating day to ensure compliance with § 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 § 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 § 265.15(b)(5). H. We Are Making Selected Changes to the Requirements for Record Retention and Submittal of Records sroberts on PROD1PC70 with RULES 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. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 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/ PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 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. 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) 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. E:\FR\FM\04APR2.SGM 04APR2 16888 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations sroberts on PROD1PC70 with RULES 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 § 265.90(d)(1) that are implemented when the owner or operator assumes (or knows) that ground-water monitoring of indicator VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 parameters in accordance with §§ 265.91 and 265.92 would show statistically significant increases when evaluated under § 265.93(b); (2) records of the analyses and evaluations specified in the plan under § 265.93(d)(2); and (3) ground-water quality assessment reports required under § 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 §§ 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 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 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 §§ 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. 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 §§ 265.224(b)(2) and (6); 265.259(b)(2) and (6); and 265.303(b)(2) and (6)); we 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 § 265.223, the first titled ‘‘Containment system’’ and the second titled ‘‘Response actions’’. In today’s rule we are redesignating § 265.223 titled ‘‘Response actions’’ as § 265.224. E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations believe that the need to submit the response action plan which merely reiterates these requirements is an overly burdensome requirement that can be removed. sroberts on PROD1PC70 with RULES 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 §§ 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 § 268.7(b)(4), the treatment facility must submit a onetime certification with the initial shipment of waste or contaminated soil to the land disposal facility. Under § 268.7(b)(6), however, if the wastes are recyclable materials used in a manner constituting disposal, the VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 § 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 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 16889 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 § 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 § 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 onsite 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 E:\FR\FM\04APR2.SGM 04APR2 16890 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 to leaks or spills and disposition of leaking or unfit-for-use tank systems. 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 an independent, qualified, registered, professional engineer in accordance with § 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 § 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 Monitoring. Applicability. 265.90(d)(3) ............... Ground-Water Monitoring. Applicability. Ground-Water Monitoring. Preparation, evaluation, and response. 265.93(d)(5) ............... sroberts on PROD1PC70 with RULES 265.93(d)(2) ............... Ground-Water Monitoring. Preparation, evaluation, and response. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 Within one year after the effective date of these regulations, submit to the Regional Administrator a specific plan, certified by a qualified geologist or geotechnical engineer, which satisfies the requirements of § 265.93(d)(3), for an alternate groundwater 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 § 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. Prepare and submit a written report in accordance with § 265.93(d)(5). Prepare a report in accordance with § 265.93(d)(5) and place it in the facility’s operating record and maintain until closure of the facility. Within 15 days after the notification under paragraph (d)(1) of this section, the owner or operator must develop and submit to the Regional Administrator 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. 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. The owner or operator must make his first determination under paragraph (d)(4) of this section, as soon as technically feasible, and, within 15 days after that determination, submit 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. Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 16891 TABLE 15.—CHANGES TO THE REQUIREMENTS FOR RECORD RETENTION AND SUBMITTAL OF RECORDS FOR INTERIM STATUS TREATMENT, STORAGE, AND DISPOSAL FACILITIES—Continued Current regulatory language CFR section Regulatory requirement New regulatory language as amended by the Burden Reduction Rule 265.196(f) .................. Tank Systems. Response to leaks or spills and disposition of leaking or unfit-for-use tank systems. 265.223(a) ................. Surface Impoundments. sponse actions. 265.259(a) ................. Waste Piles. Response actions 265.303(a) ................. Landfills. Response actions ...... Re- 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 an independent, qualified, registered, professional engineer in accordance with § 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 § 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 The owner or operator of surface impoundment units subject to § 265.221(a) must submit a response action plan to the Regional Administrator when submitting the proposed action leakage rate under § 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 § 265.224(a)) The owner or operator of surface impoundment units subject to § 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. The owner or operator of waste pile units subject to § 265.254 must submit a response action plan to the Regional Administrator when submitting the proposed action leakage rate under § 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 § 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. The owner or operator of landfill units subject to § 265.301(a) must submit a response action plan to the Regional Administrator when submitting the proposed action leakage rate under § 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 § 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. sroberts on PROD1PC70 with RULES 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. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 16892 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 General. Exclusions. Materials which are not solid wastes. 268.7(b)(6) ................. Land Disposal Restrictions. Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities. 268.9(d) ..................... sroberts on PROD1PC70 with RULES 261.4(a)(9)(iii)(E) ....... Land Disposal Restrictions. Special rules regarding wastes that exhibit a characteristic. Prior to operating pursuant to this exclusion, the plant owner or operator submits to the 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. Where the wastes are recyclable materials used in a manner constituting disposal subject to the and provisions of § 268.20(b) regarding requirements for treatment standards and prohibition levels, the owner or operator of a treatment facility (i.e., the recycler) is not required to notify the receiving facility, 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 § 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. Wastes that exhibit a characteristic are also subject to § 268.7 requirements, except that once the waste is no longer hazardous, a one-time notification and certification must be 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 § 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 § 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 § 266.20(b). VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations I. We Are Making Selected Changes to the Requirements for Document Submittal sroberts on PROD1PC70 with RULES 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 § 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 § 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 § 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 § 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 § 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 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 16893 for receiving a RCRA permit. EPA requires a phased approach to groundwater 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 groundwater 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 § 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 E:\FR\FM\04APR2.SGM 04APR2 16894 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 § 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 § 264.98(c), upon reevaluation, we decided it is more appropriate to amend § 264.98(g)(2) and leave § 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 § 264.98(d) to allow for alternative sampling procedures as provided in § 264.97(g)(2). Under § 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 § 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 § 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 § 264.99(f) (requiring a facility to collect at least four samples from each well at least semi-annually). These changes will prevent § 264.98(d) and § 264.99(f) from unintentionally trumping the flexibility granted by § 264.97(g)(2). Finally, based on another comment received, we are also changing the resampling requirements in § 264.98(g)(3) and § 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. Standards and criteria for variances from classification as a solid waste. 261.4(f)(9) .................. General. Exclusions. Samples undergoing treatability studies at laboratories and testing facilities. The prevalence of the practice on an industry-wide basis. Section 260.31(b)(2) has been deleted from the regulatory text. 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 estimates the number of 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 sroberts on PROD1PC70 with RULES 264.98(d) ................... Releases from Solid Waste Management Units. Detection monitoring program. 264.98(g)(2) ............... Releases from Solid Waste Management Units. Detection monitoring program. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 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 under paragraph (a) of this section in accordance with § 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 § 264.97(g). 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. Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 16895 TABLE 18.—CHANGES TO THE REQUIREMENTS FOR DOCUMENT SUBMITTAL FOR PERMITTED TREATMENT, STORAGE AND DISPOSAL FACILITIES—Continued Current regulatory language CFR section Regulatory requirement New regulatory language as amended by the Burden Reduction Rule Releases from Solid Waste Management Units. Detection monitoring program. 264.99(f) .................... Releases from Solid Waste Management Units. Compliance monitoring program. 264.99(g) ................... sroberts on PROD1PC70 with RULES 264.98(g)(3) ............... Releases from Solid Waste Management Units. Compliance monitoring program. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 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. 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 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. 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 § 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 § 264.97(g). The owner or operator must analyze samples from all monitoring wells at the compliance point for all constituents contained in appendix IX 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 § 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 § 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. Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 16896 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations J. We Are Making Selected Changes to the Requirements for Semi-Annual Reports to Annual Reports the change we are making to § 264.113(e)(5) and was supported by a majority of the commenters. 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 Describing the Progress 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 semiannually. 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 We proposed lengthening the reporting frequency for corrective action effectiveness reports required by §§ 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 groundwater 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 caseby-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 Waste Management Units. Corrective action program. 264.113(e)(5) ............. Closure and Post-Closure. Closure; time allowed for closure. 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 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. During the period of corrective action, the owner or operator shall provide semi-annual 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 sroberts on PROD1PC70 with RULES 265.113(e)(5) ............. Closure and Post-Closure. Closure; time allowed for closure. 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, VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 During the period of corrective action, the owner or operator shall provide semi-annual 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. 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 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 16897 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 ...................................... 261.38(c)(1)(i)(A) ..................... 264/5.16 ................................... 264/5.16(d)(1) .......................... 264/5.16(d)(2) .......................... 264/5.16(d)(3) .......................... 264.90 ...................................... 264.90(a)(2) ............................. Lists of Hazardous Wastes. Comparable/syngas fuel exclusion. Submit a one-time comparable/syngas fuel notice to the permitting agency. General Facility Standards. Personnel training. Record the job title. Record job description. Record type and amount of training employees will be provided. Releases From Solid Waste Management Units. Applicability. Comply with the requirements of 264.101 with exceptions for surface impoundments, waste piles, land treatment unit, or landfills. Releases From Solid Waste Management Units. Detection monitoring program. Conduct and maintain ground-water monitoring. Prepare and submit a notification of contamination. Prepare and submit an engineering feasibility plan for corrective action. Prepare and submit a notification of intent to make a demonstration. Releases From Solid Waste Management Units. Compliance monitoring program. Prepare and submit a notification of exceeded concentration limits. Prepare and submit a notification of intent to make a demonstration. Use and Management of Containers. Inspections. Inspect containers weekly. Tank Systems. Leak detection systems for tanks. Demonstration. Demonstration. Demonstrate to EPA that technology and site conditions do not allow detection of release within 24 hours. Variance from leak detection systems for tanks. Variance from leak detection systems for tanks. Tank Systems. Response to leaks or spills and disposition of leaking or unfit-to use tank systems. Notify EPA of release. Notify EPA of release. Submit report describing release. Surface Impoundments. Response actions. Notify EPA in writing if flow rate exceeds Action Leakage Rate for any sump within 7 days. Submit a written assessment to the Regional Administrator within 14 days of determination of leakage. Compile and submit information to EPA each month the Action Leakage Rate is exceeded. Waste Piles. Response actions. Notify EPA in writing of the exceedence within 7 days of the determination. Submit a written assessment to the Regional Administrator within 14 days of determining leakage. Compile and submit information to the EPA each month that the Action Leakage Rate is exceeded. Land Treatment. Unsaturated zone monitoring. Prepare and submit a notice of statistically significant increases in hazardous constituents below treatment zone. Prepare and submit a notice of intent to make a demonstration that other sources or error led to increases below treatment zone. Landfills. Response actions. Notify EPA if Action Leakage Rate is exceeded within 7 days of determination. Submit a written assessment to the Regional Administrator within 14 days of determination of leakage. Submit information to EPA each month the Action Leakage Rate is exceeded. Drip Pads. Design and operating standards. Notify EPA in writing of release. Regional Administrator will make a determination and will notify owner/operator of the determination. Notify EPA and certify completion of repairs. Air Emission Standards for Process Vents. Reporting requirements. Notify EPA semi-annually of exceedences. Air Emission Standards for Equipment Leaks. Reporting requirements. Notify EPA semi-annually of exceedences. Containment Buildings. Design and operating standards. Certify by qualified professional engineer. Notify EPA in writing of release. Notify EPA and verify in writing that the cleanup and repairs have been completed after a release. Inspection frequency. Purpose, scope, and applicability. Ground-Water Monitoring. Preparation, evaluation, and response. Notify of increased indicator parameter concentrations. Notify of increased indicator parameter concentrations. Any ground-water assessment to satisfy the requirements of § 265.93(d)(4) which is initiated prior to final closure must be completed and reported in accordance with § 265.93(d)(5). 264/5.98 ................................... 264.98(c) .................................. 264.98(g)(1) ............................. 264.98(g)(5)(ii) ......................... 264.98(g)(6)(i)–(ii) .................... 264.99 ...................................... 264.99(h)(1) ............................. 264.99(i)(1)–(2) ........................ 264/5.174 ................................. 264/5.174 ................................. 264/5.193 ................................. 264.193(c)(3) ........................... 264.193 (c)(4) .......................... 264/5.193(e)(3)(iii) ................... 264/5.193(g) ............................. 264/5.193(h) ............................. 264.196 .................................... 264.196(d)(1) ........................... 264.196(d)(2) ........................... 264.196(d)(3) ........................... 264/5.223 ................................. 264/5.223(b)(1) ........................ 264/5.223(b)(2) ........................ 264/5.223(b)(6) ........................ 264.253 .................................... 264.253(b)(1) ........................... 264.253(b)(2) ........................... 264.253(b)(6) ........................... 264.278 .................................... 264.278(g)(1) ........................... sroberts on PROD1PC70 with RULES 264.278(h)(1)–(2) ..................... 264.304 .................................... 264.304(b)(1) ........................... 264.304(b)(2) ........................... 264.304(b)(6) ........................... 264.573 .................................... 264.573(m)(1)(iv) ..................... 264.573(m)(2) .......................... 264.573(m)(3) .......................... 264.1036 .................................. 264.1036(a) .............................. 264.1065 .................................. 264.1065(a) .............................. 264/5.1101 ............................... 265.1101(c)(2) ......................... 264/5.1101(c)(3)(i)(D) .............. 264/5.1101(c)(3)(ii)–(iii) ............ 264/5.1101(c)(4) ...................... 265.1(b) .................................... 265.93 ...................................... 265.93(c)(1) ............................. 265.93(d)(1) ............................. 265.93(e) .................................. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 16898 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations TABLE 21.—REGULATORY REQUIREMENTS THAT WILL REMAIN IN THE CFR—Continued CFR section Regulatory requirement 265.93(f) ................................... Evaluate data and if § 265.91(a) are not satisfied, immediately modify the number, location, or depth of the monitoring wells. Ground-Water Monitoring. Recordkeeping and reporting. Prepare and submit a quarterly report of concentrations of values of the drinking water suitability parameters. Prepare and submit a report on indicator parameter concentrations and evaluations. Prepare and submit a report on ground-water surface elevations. Prepare and submit a report on the results of the ground-water quality assessment program. Waste Piles. Response actions. Notify EPA in writing within 7 days of determination. Submit a written assessment to the Regional Administrator within 14 days of determination of leakage. Submit information to EPA each month that the Action Leakage Rate is exceeded. Land Treatment. Food-chain crops. Submit notification for food-chain crops at land treatment facility. Landfills. Response actions. Notify EPA if Action Leakage Rate is exceeded within 7 days of determination. Submit a written assessment to the Regional Administrator within 14 days of determination of leakage. Submit information to EPA each month the Action Leakage Rate is exceeded. Drip Pads. Design and operating requirements. Notify EPA of release and provide written notice of procedures and schedule for cleanup. Regional Administrator will make a determination and notify the owner/operator of the determination. Notify Regional Administrator and certify completion of repairs. Hazardous Waste Burned in Boilers and Industrial Furnaces. Interim status standards for burners. Certification of pre-compliance. Land Disposal Restrictions. General. Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities. 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. Requirement to submit to the regulatory authority one-time notifications that hazardous debris is excluded form the definition of hazardous waste. Permit Application. Specific part B information requirements for surface impoundments. 265.94 ...................................... 265.94(a)(2)(i) .......................... 265.94(a)(2)(ii) ......................... 265.94(a)(2)(iii) ........................ 265.94(b)(2) ............................. 265.259 .................................... 265.259(b)(1) ........................... 265.259(b)(2) ........................... 265.259(b)(6) ........................... 265.276 .................................... 265.276(a) ................................ 265.303 .................................... 265.303(b)(1) ........................... 265.303(b)(2) ........................... 265.303(b)(6) ........................... 265.443 .................................... 265.443(m)(1)(iv)(2) ................. 265.443(m)(2) .......................... 265.443(m)(3) .......................... 266.103 .................................... 266.103(b)(2)(ii)(D) .................. 268.7 ........................................ 268.7(a)(6) ............................... 268.7(d)(1) ............................... sroberts on PROD1PC70 with RULES 270.17(d) .................................. 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: https://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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations sroberts on PROD1PC70 with RULES 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 nonHSWA, 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 nonHSWA 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 16899 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, E:\FR\FM\04APR2.SGM 04APR2 16900 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations sroberts on PROD1PC70 with RULES 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-forprofit 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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. sroberts on PROD1PC70 with RULES 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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. PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 16901 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. E:\FR\FM\04APR2.SGM 04APR2 16902 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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. 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. K. Congressional Review Act 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. 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. Dated: March 15, 2006. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40 of the Code of Federal Regulations is amended as follows: I PART 260—HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL 1. The authority citation for part 260 continues to read as follows: I Authority: 42 U.S.C. 6905, 6912(a), 6921– 6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974. Subpart B—Definitions 2. Section 260.10 is amended by adding in alphabetical order the definition of ‘‘Performance Track member facility’’ to read as follows: I 40 CFR Part 261 § 260.10 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. sroberts on PROD1PC70 with RULES 40 CFR Part 266 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. * * * * * Energy, Hazardous waste, Recycling, Reporting and recordkeeping requirements. Subpart C—Rulemaking Petitions 40 CFR Part 268 I Hazardous waste, Reporting and recordkeeping requirements. VerDate Aug<31>2005 20:28 Apr 03, 2006 Jkt 208001 § 260.31 [Amended] 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). PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 4. The authority citation for part 261 continues to read as follows: I Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938. Subpart A—General 5. Section 261.4 is amended by revising paragraphs (a)(9)(iii)(E) and (f)(9) introductory text to read as follows: I § 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 6. The authority citation for part 264 continues to read as follows: I Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925. E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations Subpart B—General Facility Standards 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: I § 264.15 General inspection requirements. sroberts on PROD1PC70 with RULES * * * * * (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 §§ 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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. * * * * * 8. Section 264.16 is amended by adding new paragraph (a)(4) to read as follows: I § 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 9. Section 264.52 is amended by revising paragraph (b) to read as follows: I § 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. * * * * * PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 § 264.56 16903 [Amended] 10. Section 264.56 is amended by removing paragraph (i) and redesignating paragraph (j) as paragraph (i). I Subpart E—Manifest System, Recordkeeping, and Reporting 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: I § 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 crossreferences 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 §§ 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 § 264.142, and for disposal facilities, all post-closure cost estimates under § 264.144 of this part. This information must be maintained in the operating record until closure of the facility. * * * * * E:\FR\FM\04APR2.SGM 04APR2 16904 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations (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 § 268.5 of this chapter, a petition pursuant to § 268.6 of this chapter, or a certification under § 268.8 of this chapter, and the applicable notice required by a generator under § 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 § 264.347 must be maintained in the operating record for five years. (19) Certifications as required by § 264.196(f) must be maintained in the operating record until closure of the facility. Subpart F—Releases From Solid Waste Management Units 12. Section 264.98 is amended by revising paragraphs (d), (g)(2), and (g)(3) to read as follows: I § 264.98 Detection monitoring program. sroberts on PROD1PC70 with RULES * * * * * (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 § 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 sitespecific 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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. * * * * * I 13. Section 264.99 is amended by revising paragraphs (f) and (g) to read as follows: § 264.100 § 264.99 I 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 § 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 § 264.98(f). To accomplish this, the owner or operator must consult with the Regional Administrator to determine on a caseby-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. * * * * * I 14. Section 264.100 is amended by revising paragraph (g) to read as follows: PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 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 15. Section 264.113 is amended by revising paragraph (e)(5) to read as follows: § 264.113 closure. Closure; time allowed for * * * * * (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. * * * * * I 16. Section 264.115 is revised to read as follows: § 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 § 264.143(i). I 17. Section 264.120 is revised to read as follows: § 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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations the specifications in the approved postclosure 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 § 264.145(i). Subpart H—Financial Requirements 18. Section 264.143 is amended by revising paragraph (i) to read as follows: I § 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. 19. Section 264.145 is amended by revising paragraph (i) to read as follows: I § 264.145 Financial assurance for postclosure care. sroberts on PROD1PC70 with RULES * * * * * (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 postclosure of that unit, unless the Regional Administrator has reason to believe that post-closure care has not been in accordance with the approved postclosure plan. The Regional Administrator shall provide the owner or operator a detailed written statement of any such reason to believe that postclosure care has not been in accordance with the approved post-closure plan. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 20. Section 264.147 is amended by revising paragraph (e) to read as follows: I § 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 21. Section 264.174 is revised to read as follows: I § 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 § 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 §§ 264.15(c) and 264.171 for remedial action required if deterioration or leaks are detected.] Subpart J—Tank Systems 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: I § 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 § 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 § 270.11(d) of this chapter, that attests to the tank system’s integrity by January 12, 1988. (b) * * * PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 16905 (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 § 270.11(d) of this chapter, that addresses cracks, leaks, corrosion, and erosion. * * * * * I 23. Section 264.192 is amended by revising paragraph (a) introductory text and paragraph (b) introductory text to read as follows: § 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 § 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: * * * * * I 24. Section 264.193 is amended by: I a. Removing paragraphs (a)(2) through (a)(4); I b. Redesignating (a)(5) as (a)(2); I c. Revising paragraphs (a)(1), newly designated (a)(2), and (i)(2) to read as follows: E:\FR\FM\04APR2.SGM 04APR2 16906 § 264.193 releases. Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations Containment and detection of (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. * * * * * I 25. Section 264.195 is amended by: I a. Revising paragraph (b) (the note to paragraph (b) is unchanged); I b. Redesignating existing paragraphs (c) and (d), as paragraphs (g) and (h), respectively; I c. Adding new paragraphs (c) through (f), to read as follows: § 264.195 Inspections. sroberts on PROD1PC70 with RULES * * * * * (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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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 § 264.15(b)(5). (f) Ancillary equipment that is not provided with secondary containment, as described in § 264.193(f)(1) through (4), must be inspected at least once each operating day. * * * * * I 26. Section 264.196 is amended by revising paragraph (f) (the notes to paragraph (f) are unchanged) to read as follows: § 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 § 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. * * * * * § 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 28. Section 264.280 is amended by revising paragraph (b) to read as follows: I § 264.280 * * * * (b) For the purpose of complying with § 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 29. Section 264.314 is amended by: a. Removing paragraph (a); b. Redesignating paragraphs (b) through (f) as paragraphs (a) through (e); and, I c. Revising newly designated paragraphs (a) and newly designated paragraph (e) introductory text to read as follows: I I I § 264.314 Special requirements for bulk and containerized liquids. (a) The placement of bulk or noncontainerized 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 30. Section 264.343 is amended by revising paragraph (a)(2) to read as follows: I § 264.343 Subpart L—Waste Piles Closure and post-closure care. * Performance standards. * 27. Section 264.251 is amended by revising the introductory text to paragraph (c) to read as follows: I PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 * * * * (a)(1) * * * (2) An incinerator burning hazardous wastes FO20, FO21, FO22, FO23, FO26, E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations or FO27 must achieve a destruction and removal efficiency (DRE) of 99.9999% for each principal organic hazardous constituent (POHC) designated (under § 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 § 264.343(a)(1). * * * * * I 31. Section 264.347 is amended by revising paragraph (d) to read as follows: § 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 § 264.73 of this part and maintained in the operating record for five years. Subpart S—Special Provisions for Cleanup 32. Section 264.554 is amended by revising paragraph (c)(2) to read as follows: I § 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 33. Section 264.571 is amended by revising paragraphs (a), (b), and (c) to read as follows: I sroberts on PROD1PC70 with RULES § 264.571 integrity. Assessment of existing drip pad (a) For each existing drip pad as defined in § 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 § 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, VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 updated and re-certified annually until all upgrades, repairs, or modifications necessary to achieve compliance with all the standards of § 264.573 are complete. The evaluation must document the extent to which the drip pad meets each of the design and operating standards of § 264.573, except the standards for liners and leak detection systems, specified in § 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 § 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 § 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 asbuilt drawings for the drip pad together with a certification by a qualified Professional Engineer attesting that the drip pad conforms to the drawings. * * * * * I 34. Section 264.573 is amended by revising paragraphs (a)(4)(ii) and (g) to read as follows: § 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. * * * * * I 35. Section 264.574 is amended by revising paragraph (a) to read as follows: PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 § 264.574 16907 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 § 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 § 264.1061 [Amended] 36. Section 264.1061 is amended by: a. Removing paragraphs (b)(1) and (d); and, I b. Redesignating paragraphs (b)(2) and (b)(3) as paragraphs (b)(1) and (b)(2). I I § 264.1062 [Amended] 37. Section 264.1062 is amended by removing paragraph (a)(2) and redesignating paragraph (a)(1) as paragraph (a). I Subpart DD—Containment Buildings 38. Section 264.1100 is amended by revising the introductory text to read as follows: I § 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 § 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: * * * * * I 39. Section 264.1101 is amended by revising paragraphs (c)(2) and (c)(4) to read as follows: § 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 E:\FR\FM\04APR2.SGM 04APR2 16908 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 § 264.15(b)(5). * * * * * PART 265—INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES 40. The authority citation for part 265 continues to read as follows: I Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937, unless otherwise noted. Subpart B—General Facility Standards 41. Section 265.15 is amended by revising paragraph (b)(4) and adding paragraph (b)(5) to read as follows: I § 265.15 General inspection requirements. sroberts on PROD1PC70 with RULES * * * * * (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 §§ 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 VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 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. * * * * * I 42. Section 265.16 is amended by adding new paragraph (a)(4) to read as follows: § 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 43. Section 265.52 is amended by revising paragraph (b) to read as follows: I § 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 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 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. * * * * * § 265.56 [Amended] 44. Section 265.56 is amended by removing paragraph (i) and redesignating paragraph (j) as paragraph (i). I Subpart E—Manifest System, Recordkeeping, and Reporting 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: I § 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 crossreferences 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 §§ 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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 § 265.142 and, for disposal facilities, all post-closure cost estimates under § 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 § 268.5 of this chapter, monitoring data required pursuant to a petition under § 268.6 of this chapter, or a certification under § 268.8 of this chapter, and the applicable notice required by a generator under § 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 §§ 265.90, 265.93(d)(2), and 265.93(d)(5), and the certification as required by § 265.196(f) must be maintained in the operating record until closure of the facility. Subpart F—Ground-Water Monitoring 46. Section 265.90 is amended by revising paragraphs (d)(1) and (d)(3) to read as follows: I § 265.90 Applicability. sroberts on PROD1PC70 with RULES * * * * * (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 § 265.93(d)(3), for an alternate groundwater 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 § 265.93(d)(5) and place it in the facility’s operating record and maintain until closure of the facility. * * * * * I 47. Section 265.93 is amended by revising paragraphs (d)(2) and (d)(5) to read as follows: VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 § 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 48. Section 265.113 is amended by revising paragraph (e)(5) to read as follows: I § 265.113 closure. Closure; time allowed for * * * * * (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. * * * * * I 49. Section 265.115 is revised to read as follows: § 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 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 16909 until he releases the owner or operator from the financial assurance requirements for closure under § 265.143(h). I 50. Section 265.120 is revised to read as follows: § 265.120 Certification of completion of post-closure care. No later than 60 days after the completion of the established postclosure 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 postclosure 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 § 265.145(h). Subpart H—Financial Requirements 51. Section 265.143 is amended by revising paragraph (h) to read as follows: I § 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. I 52. Section 265.145 is amended by revising paragraph (h) to read as follows: § 265.145 Financial assurance for postclosure care. * * * * * (h) Release of the owner or operator from the requirements of this section. Within 60 days after receiving E:\FR\FM\04APR2.SGM 04APR2 16910 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 postclosure care has not been in accordance with the approved post-closure plan. I 53. Section 265.147 is amended by revising paragraph (e) to read as follows: § 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 54. Section 265.174 is revised to read as follows: I sroberts on PROD1PC70 with RULES § 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 § 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 § 265.171 for remedial action required if deterioration or leaks are detected.] Subpart J—Tank Systems 55. Section 265.191 is amended by revising paragraphs (a) and (b)(5)(ii) (the I VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 note to paragraph (b)(5)(ii) is unchanged) to read as follows: § 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 § 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 § 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 § 270.11(d) of this chapter that addresses cracks, leaks, corrosion, and erosion. * * * * * I 56. Section 265.192 is amended by revising paragraphs (a) introductory text and (b) introductory text to read as follows: § 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 § 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 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 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: * * * * * I 56. Section 265.193 is amended by: I a. Removing paragraphs (a)(2) through (a)(4); I b. Redesignating (a)(5) as (a)(2); I c. Revising paragraphs (a)(1), newly designated (a)(2) and (i)(2) (the note to (i)(2) is unchanged) to read as follows. § 265.193 releases. Containment and detection of (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. * * * * * I 58. Section 265.195 is amended by: I a. Revising paragraph (a) (the note to paragraph (a) is unchanged); I b. Redesignating existing paragraphs (b) and (c), as paragraphs (f) and (g), respectively; and, I c. Adding new paragraphs (b) through (e). § 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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 § 265.15(b)(5). (e) Ancillary equipment that is not provided with secondary containment, as described in § 265.193(f)(1) through (4), must be inspected at least once each operating day. * * * * * I 59. Section 265.196 is amended by revising paragraph (f) (the notes to paragraph (f) are unchanged) to read as follows: I I § 265.196 Response to leaks or spills and disposition of leaking or unfit-for-use tank systems. Subpart K—Surface Impoundments sroberts on PROD1PC70 with RULES * * * * * (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 § 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. * * * * * VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 60. Section 265.201 is amended by: a. Revising the paragraph (c) introductory text; I b. Redesignating paragraph (d) through (f), as paragraphs (f) through (h), respectively; and, I c. Adding new paragraphs (d) and (e). § 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 § 265.15(b)(5). * * * * * 61. Section 265.221 is amended by revising paragraph (a) to read as follows: I § 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 § 264.221(c), unless exempted under § 264.221(d), (e), or (f) of this Chapter. * * * * * § 265.223 [Redesignated as § 265.224] I 62. Section 265.223 titled ‘‘Response actions’’ is redesignated as § 265.224 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 16911 and the newly designated § 265.224 is amended by revising paragraph (a) to read as follows: § 265.224 Response actions. (a) The owner or operator of surface impoundment units subject to § 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 63. Section 265.259 is amended by revising the first sentence of paragraph (a) to read as follows: I § 265.259 Response actions. (a) The owner or operator of waste pile units subject to § 265.254 must develop and keep on-site until closure of the facility a response action plan. * * * * * * * * Subpart M—Land Treatment 64. Section 265.280 is amended by revising paragraph (e) to read as follows: I § 265.280 Closure and post-closure. * * * * * (e) For the purpose of complying with § 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 65. Section 265.301 is amended by revising paragraph (a) to read as follows: I § 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 § 264.301(d), (e), or (f) of this chapter. * * * * * E:\FR\FM\04APR2.SGM 04APR2 16912 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 66. Section 265.303 is amended by revising paragraph (a) to read as follows: I § 265.303 Response actions. (a) The owner or operator of landfill units subject to § 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. * * * * * I 67. Section 265.314 is amended by: I a. Removing paragraph (a); I b. Redesignating paragraphs (b) through (g) as paragraphs (a) through (f); and, I c. Revising newly designated paragraph (a), and the introductory text of newly designated paragraph (f) to read as follows: § 265.314 Special requirements for bulk and containerized liquids. (a) The placement of bulk or noncontainerized 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 68. Section 265.441 is amended by revising paragraphs (a), (b), and (c) to read as follows: I sroberts on PROD1PC70 with RULES § 265.441 integrity. Assessment of existing drip pad (a) For each existing drip pad as defined in § 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 § 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 § 265.443 are complete. The evaluation must document the extent to which the VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 drip pad meets each of the design and operating standards of § 265.443, except the standards for liners and leak detection systems, specified in § 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 § 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 § 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 asbuilt drawings for the drip pad together with a certification by a qualified Professional Engineer attesting that the drip pad conforms to the drawings. * * * * * I 69. Section 265.443 is amended by revising paragraphs (a)(4)(ii) and (g) to read as follows: § 265.1061 § 265.443 Design and operating requirements. § 265.1100 (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. * * * * * I 70. Section 265.444 is amended by revising paragraph (a) to read as follows: § 265.1101 Design and operating standards. § 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 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 spots, or foreign materials). Immediately after construction or installation, liners must be inspected and certified as meeting the requirements of § 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 [Amended] 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). I § 265.1062 [Amended] 72. Section 265.1062 is amended by removing paragraph (a)(2) and redesignating paragraph (a)(1) as paragraph (a). I Subpart DD—Containment Buildings 73. Section 265.1100 is amended by revising the introductory text to read as follows: I Applicability. The requirements of this subpart apply to owners or operators who store or treat hazardous waste in units designed and operated under § 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: * * * * * I 74. Section 265.1101 is amended revising paragraphs (c)(2) and (c)(4) to read as follows: * * * * * (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 E:\FR\FM\04APR2.SGM 04APR2 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 § 265.15(b)(5). * * * * * PART 266—STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES 75. The authority citation for part 266 continues to read as follows: I 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 76. Section 266.102 is amended by revising paragraph (e)(10) to read as follows: I § 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. * * * * * I 77. Section 266.103 is amended by revising paragraphs (d) and (k) to read as follows: § 266.103 burners. Interim status standards for * * * * (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. * * * * * sroberts on PROD1PC70 with RULES * PART 268—LAND DISPOSAL RESTRICTIONS 78. The authority citation for part 268 continues to read as follows: I Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 Subpart A—General 79. Section 268.7 is amended by revising paragraphs (a)(1), (a)(2), and (b)(6) to read as follows: I § 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 § 268.40, 268.45, or § 268.49. This determination can be made concurrently with the hazardous waste determination required in § 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 § 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 § 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 § 268.40, and are described in detail in § 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 § 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 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 16913 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 § 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. * * * * * I 80. Section 268.9 is amended by revising paragraphs (a) and (d) introductory text to read as follows: § 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 § 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 E:\FR\FM\04APR2.SGM 04APR2 16914 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations 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 § 268.42, Table 1), the generator must determine the underlying hazardous constituents (as defined at § 268.2(i)) in the characteristic waste. * * * * * (d) Wastes that exhibit a characteristic are also subject to § 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 § 270.26 Special part B information requirements for drip pads. (a) Part B of the permit application consists of the general information requirements of this section, and the specific information requirements in §§ 0.14 through 270.29 applicable to the facility. The part B information requirements presented in §§ 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 § 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 § 270.28 is required in part B of the permit application. * * * * * I 83. Section 270.16 is amended by revising paragraph (a) to read as follows: * § 270.16 Specific part B information requirements for tank systems. * 81. The authority citation for part 270 continues to read as follows: I Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 6974. Subpart B—Permit Application 82. Section 270.14 is amended by revising paragraph (a) to read as follows: I § 270.14 Contents of part B: General requirements. * * * * (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 §§ 264.191 and 264.192 of this chapter; * * * * * I 84. Section 270.26 is amended by revising paragraph (c)(15) to read as follows: * * * * (c) * * * (15) A certification signed by a qualified Professional Engineer, stating that the drip pad design meets the requirements of paragraphs (a) through(f) § 264.573 of this chapter. * * * * * Subpart D—Changes to Permits 85. Section 270.42 is amended by adding new paragraph (l) and by adding new entry O to the table in Appendix I to § 270.42. to read as follows: I § 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 § 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 § 270.42—Classification of Permit Modification sroberts on PROD1PC70 with RULES Modifications Class * * * * * * * O. Burden Reduction 1. Approval of reduced inspection frequency for Performance Track member facilities for: a. Tanks systems pursuant to § 264.195 ............................................................................................................................................ b. Containers pursuant to § 264.174 ................................................................................................................................................... c. Containment buildings pursuant to § 264.1101(c)(4) ...................................................................................................................... d. Areas subject to spills pursuant to § 264.15(b)(4) .......................................................................................................................... 2. Development of one contingency plan based on Integrated Contingency Plan Guidance pursuant to § 264.52(b) ............................ 3. Changes to recordkeeping and reporting requirements pursuant to: §§ 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 to § 264.195(b) ...................................................................................... 5. Changes to detection and compliance monitoring program pursuant to §§ 264.98(d), (g)(2), and (g)(3), 264.99(f), and (g) .............. 1 Class 1 modifications requiring prior Agency approval. VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 11 11 11 11 1 1 1 1 16915 Federal Register / Vol. 71, No. 64 / Tuesday, April 4, 2006 / Rules and Regulations Authority: 42 U.S.C. 6905, 6912(a) and 6926. PART 271—REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS 87. Section 271.1(j) is amended by adding the following entries to Table 1 in chronological order by date of § 271.1 I 86. The authority citation for part 271 continues to read as follows: I publication in the Federal Register, to read as follows: * Purpose and scope. * * (j) * * * * * TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 Promulgation date Title of regulation Federal Register reference * * * * * * May 4, 2006 ........................... Office of Solid Waste Burden Reduction Project .................... [Insert FR page numbers] ...... * * * * * * [FR Doc. 06–2690 Filed 4–3–06; 8:45 am] sroberts on PROD1PC70 with RULES BILLING CODE 6560–50–P VerDate Aug<31>2005 18:59 Apr 03, 2006 Jkt 208001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\04APR2.SGM 04APR2 Effective date * May 4, 2006. *

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 64 (Tuesday, April 4, 2006)]
[Rules and Regulations]
[Pages 16862-16915]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2690]



[[Page 16861]]

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Part II





Environmental Protection Agency





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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]]


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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.

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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 https://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 
https://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: eby.elaine@epa.gov.

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 th

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