Virginia Administrative Code
Title 9 - ENVIRONMENT
Agency 20 - VIRGINIA WASTE MANAGEMENT BOARD
Chapter 60 - VIRGINIA HAZARDOUS WASTE MANAGEMENT REGULATIONS
Part III - Incorporation of Federal Regulations by Reference
Section 9VAC20-60-264 - Adoption of 40 CFR Part 264 by reference
Universal Citation: 9 VA Admin Code 20-60-264
Current through Register Vol. 41, No. 3, September 23, 2024
A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 264 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 40 CFR Part 264 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.
B. In all locations in these regulations where 40 CFR Part 264 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:
1. Sections
40 CFR
264.1(d), 40 CFR 264.1(f),
40 CFR
264.149, 40 CFR 264.150,
40 CFR
264.301(l), and Appendix VI
are not included in the incorporation of 40 CFR Part 264 by reference and are
not a part of the Virginia Hazardous Waste Management Regulations.
2. In
40 CFR
264.1(g)(11) and wherever
elsewhere in Title 40 of the Code of Federal Regulations there is a listing of
universal wastes or a listing of hazardous wastes that are the subject of
provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended
by addition of the following sentence: "In addition to the hazardous wastes
listed here, the term "universal waste" and all lists of universal waste or
waste subject to provisions of 40 CFR Part 273 shall include those hazardous
wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous
Waste Management Regulations as universal wastes, in accordance with the terms
and requirements described."
3. In
40 CFR
264.12(a), the term
"Regional Administrator" shall mean the Regional Administrator of Region III of
the United States Environmental Protection Agency or his designee.
4. In
40 CFR
264.33, the following sentence shall be added
to the end of the paragraph: "A record of tests or inspections will be
maintained on a log at that facility or other reasonably accessible and
convenient location."
5. In
addition to the notifications required by
40 CFR
264.56(d)(2), notification
shall be made to the on-scene coordinator, the National Response Center, and
the Virginia Department of Emergency Management, Emergency Operations Center.
In the associated report filed under
40 CFR
264.56(i), the owner or
operator shall include such other information specifically requested by the
director, which is reasonably necessary and relevant to the purpose of an
operating record.
6. In
40 CFR
264.93, "hazardous constituents" shall
include constituents identified in 40 CFR Part 264 Appendix IX in addition to
those in 40 CFR Part 261 Appendix VIII.
7. The federal text at
40 CFR
264.94(a)(2) is not
incorporated by reference. The following text shall be substituted for
40 CFR
264.94(a)(2): "For any of
the constituents for which the USEPA has established a Maximum Contaminant
Level (MCL) under the National Primary Drinking Water Regulation, 40 CFR Part
141 (regulations under the Safe Drinking Water Act), the concentration must not
exceed the value of the MCL; or."
8. The owner or operator must submit the
detailed, written closure cost estimate described in
40 CFR
264.142 upon the written request of the
director.
9. In
40 CFR
264.143(b)(1), 40 CFR
264.143(c)(1),
40 CFR
264.145(b)(1), and 40 CFR
264.145(c)(1), any surety company issuing surety bonds to guarantee payment or
performance must be licensed pursuant to Chapter 10 (§
38.2-1000
et seq.) of Title 38.2 of the Code of Virginia.
10. In
40 CFR
264.143(b), 40 CFR
264.143(c),
40 CFR
264.145(b), and 40 CFR
264.145(c), any owner or operator demonstrating financial assurance for closure
or post-closure care using a surety bond shall submit with the surety bond a
copy of the deed book page documenting that the power of attorney of the
attorney-in-fact executing the bond has been recorded pursuant to §
38.2-2416
of the Code of Virginia.
11. Where
in
40 CFR
264.143(c)(5) the phrase
"final administrative determination pursuant to section 3008 of RCRA" appears,
it shall be replaced with "final determination pursuant to Chapter 40 (§
2.2-4000 et
seq.) of Title 2.2 of the Code of Virginia."
12. The following text shall be substituted
for
40 CFR
264.143(d)(8): "Following a
final administrative determination pursuant to Chapter 40 (§
2.2-4000 et
seq.) of Title 2.2 of the Code of Virginia that the owner or operator has
failed to perform final closure in accordance with the approved closure plan,
the applicable regulations or other permit requirements when required to do so,
the director may draw on the letter of credit."
13. The following text shall be substituted
for
40 CFR
264.143(e)(1): "An owner or
operator may satisfy the requirements of this section by obtaining closure
insurance which conforms to the requirements of this paragraph and submitting a
certificate of such insurance, along with a complete copy of the insurance
policy, to the department. An owner or operator of a new facility must submit
the certificate of insurance along with a complete copy of the insurance policy
to the department at least 60 days before the date on which the hazardous waste
is first received for treatment, storage or disposal. The insurance must be
effective before this initial receipt of hazardous waste. At a minimum, the
insurer must be licensed pursuant to Chapter 10 (§
38.2-1000
et seq.) of Title 38.2 of the Code of Virginia."
14. The following text shall be substituted
for
40 CFR
264.143(f)(3)(ii), 40 CFR
264.145(f)(3)(ii), and
40 CFR
264.147(f)(3)(ii): "A copy
of the owner's or operator's audited financial statements for the latest
completed fiscal year; including a copy of the independent certified public
accountant's report on examination of the owner's or operator's financial
statements for the latest completed fiscal year; and"
15. In addition to the other requirements in
40 CFR
264.143(f)(3), 40 CFR
264.145(f)(3) and
40 CFR
264.147(f)(3), an owner or
operator must submit confirmation from the rating service that the owner or
operator has a current rating for its most recent bond issuance of AAA, AA, A,
or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by
Moody's if the owner or operator passes the financial test with a bond rating
as provided in
40 CFR
264.143(f)(1)(ii)(A).
16. The following text shall be substituted
for
40 CFR
264.143(h) and 40 CFR
264.145(h): "An owner or operator may use a financial assurance mechanism
specified in this section to meet the requirements of this section for more
than one facility in Virginia. Evidence of financial assurance submitted to the
department must include a list showing, for each facility, the EPA
Identification Number, name, address, and the amount of funds for closure or
post-closure assured by the mechanism. The amount of funds available through
the mechanism must be no less than the sum of funds that would be available if
a separate mechanism had been established and maintained for each facility. In
directing funds available through the mechanism for closure or post-closure
care of any of the facilities covered by the mechanism, the director may direct
only the amount of funds designated for that facility, unless the owner or
operator agrees to the use of additional funds available under the
mechanism."
17. In addition to the
requirements of
40 CFR
264.144, "the owner or operator must submit a
detailed, written post-closure cost estimate upon the written request of the
director."
18. The following text
shall be substituted for
40 CFR
264.144(b): "During the
active life of the facility and the post-closure period, the owner or operator
must adjust the post-closure cost estimate for inflation within 60 days prior
to the anniversary date of the establishment of the financial instruments used
to comply with
40 CFR
264.145. For owners or operators using the
financial test or corporate guarantee, the post-closure cost estimate must be
updated for inflation within 30 days after the close of the firm's fiscal year
and before the submission of updated information to the department as specified
in
40 CFR
264.145(f)(5). The
adjustment may be made by recalculating the post-closure cost estimate in
current dollars or by using an inflation factor derived from the most recent
Implicit Price Deflator for Gross National Product published by the U.S.
Department of Commerce in its Survey of Current Business as specified in
40 CFR 264.142(b)(1) and
(2). The inflation factor is the result of
dividing the latest published annual Deflator by the Deflator for the previous
year.
a. The first adjustment is made by
multiplying the post-closure cost estimate by the inflation factor. The result
is the adjusted post-closure cost estimate.
b. Subsequent adjustments are made by
multiplying the latest adjusted post-closure cost estimate by the latest
inflation factor."
19.
The following text shall be substituted for
40 CFR
264.144(c): "During the
active life of the facility and the post-closure period, the owner or operator
must revise the post-closure cost estimate within 30 days after the director
has approved the request to modify the post-closure plan, if the change in the
post-closure plan increases the cost of post-closure care. The revised
post-closure cost estimate must be adjusted for inflation as specified in
264.144(b)."
20. Where in
40 CFR
264.145(c)(5) the phrase
"final administrative determination pursuant to section 3008 of RCRA" appears,
it shall be replaced with "final determination pursuant to Chapter 40 (§
2.2-4000 et
seq.) of Title 2.2 of the Code of Virginia."
21. The following text shall be substituted
for
40 CFR
264.145(d)(9): "Following a
final administrative determination pursuant to Chapter 40 (§
2.2-4000 et
seq.) of Title 2.2 of the Code of Virginia that the owner or operator has
failed to perform post-closure in accordance with the approved post-closure
plan, the applicable regulations, or other permit requirements when required to
do so, the director may draw on the letter of credit."
22. The following text shall be substituted
for
40 CFR
264.145(e)(1): "An owner or
operator may satisfy the requirements of this section by obtaining post-closure
insurance which conforms to the requirements of this paragraph and submitting a
certificate of such insurance to the department. An owner or operator of a new
facility must submit the certificate of insurance along with a complete copy of
the insurance policy to the department at least 60 days before the date on
which the hazardous waste is first received for treatment, storage or disposal.
The insurance must be effective before this initial receipt of hazardous waste.
At a minimum, the insurer must be licensed pursuant to Chapter 10 (§
38.2-1000
et seq.) of Title 38.2 of the Code of Virginia."
23. In
40 CFR
264.147(a)(1)(ii), 40 CFR
264.147(b)(1)(ii),
40 CFR
264.147(g)(2), and 40 CFR
264.147(i)(4), the term "Virginia" shall not be substituted for the term
"State" or "States."
24. In
40 CFR
264.191(a), the compliance
date of January 12, 1988, applies only for HSWA tanks. For non-HSWA tanks, the
compliance date is November 2, 1997, instead of January 12, 1997.
25. In
40 CFR
264.191(c), the reference to
July 14, 1986, applies only to HSWA tanks. For non-HSWA tanks, the applicable
date is November 2, 1987, instead of July 14, 1986.
26. In
40 CFR
264.193, the federal effective dates apply
only to HSWA tanks. For non-HSWA tanks, the applicable date is November 2,
1997, instead of January 12, 1997.
27. A copy of all reports made in accordance
with
40
CFR 264.196(d) shall be sent
to the director and to the chief administrative officer of the local government
of the jurisdiction in which the event occurs. The sentence in
40
CFR 264.196(d)(1), "If the
release has been reported pursuant to 40 CFR Part 302, that report will satisfy
this requirement." is not incorporated by reference into these regulations and
is not a part of the Virginia Hazardous Waste Management Regulations.
28. The following text shall be substituted
for
40
CFR 264.570(a): "The
requirements of this subpart apply to owners and operators of facilities that
use new or existing drip pads to convey wood drippage, precipitation and/or
surface water run-off to an associated collection system. Existing HSWA drip
pads are those constructed before December 6, 1990, and those for which the
owner or operator has a design and has entered into a binding financial or
other agreement for construction prior to December 6, 1990. Existing non-HSWA
drip pads are those constructed before January 14, 1993, and those for which
the owner or operator has a design and has entered into a binding financial or
other agreements for construction prior to January 14, 1993. All other drip
pads are new drip pads. The requirement at
40 CFR
264.573(b)(3) to install a
leak collection system applies only to those HSWA drip pads that are
constructed after December 24, 1992, except for those constructed after
December 24, 1992, for which the owner or operator has a design and has entered
into a binding financial or other agreement for construction prior to December
24, 1992. For non-HSWA drip pads, the requirement at
40 CFR
264.573(b)(3) to install a
leak collection system applies only to those non-HSWA drip pads that are
constructed after September 8, 1993, except for those constructed after
September 8, 1993, for which the owner or operator has a design and has entered
into a binding financial or other agreement for construction prior to September
8, 1993."
29. In
40
CFR 264.1030(c), the
reference to
40 CFR
124.15 shall be replaced by a reference to
40
CFR 124.5.
30. The underground injection of hazardous
waste for treatment, storage or disposal shall be prohibited throughout the
Commonwealth of Virginia.
31. In
addition to the notices required in Subpart B and others parts of 40 CFR Part
264, the following notices are also required:
a. The owner or operator of a facility that
has arranged to receive hazardous waste from a foreign source (a source located
outside of the United States of America) shall notify the department and
administrator in writing at least four weeks in advance of the date the waste
is expected to arrive at the facility. Notice of subsequent shipments of the
same waste from the same foreign source is not required.
b. The owner or operator of a facility that
receives hazardous waste from an off-site source (except where the owner or
operator of the facility is also the generator of this waste) shall inform the
generator in writing that he has appropriate permits for, and will accept, the
waste that the generator is shipping. The owner or operator shall keep a copy
of this written notice as part of the operating record.
c. Before transferring ownership or operation
of a facility during its operating life, or of a disposal facility during the
post-closure care period, the owner or operator shall notify the new owner or
operator in writing of the requirements contained in this section and
9VAC20-60-270. An owner or operator's failure to notify the new owner or
operator of the requirements in this section and 9VAC20-60-270 in no way
relieves the new owner or operator of his obligation to comply with all
applicable requirements.
d. Any
person responsible for the release of a hazardous substance from the facility
that poses an immediate or imminent threat to public health and who is required
by law to notify the National Response Center shall notify the department and
the chief administrative officer of the local government of the jurisdiction in
which the release occurs or their designees. In cases when the released
hazardous substances are hazardous wastes or hazardous waste constituents
additional requirements are prescribed by Subpart D of 40 CFR Part
264.
32. In
40 CFR
264.71, the terms "EPA" and "Environmental
Protection Agency" shall mean the United States Environmental Protection
Agency, and the reference to "system" means the United States Environmental
Protection Agency's national electronic manifest system.
33. Subpart FF of 40 CFR Part 264 shall not
be incorporated into this chapter.
34. Requirements for mercury-containing lamp
recycling facilities. The following requirements apply to all facilities that
recover or reclaim mercury from lamps.
a. All
owners and operators of mercury-containing lamp recycling facilities shall:
(1) Have established markets for the
utilization of reclaimed materials and be able to identify these markets to the
department;
(2) Only introduce into
the processing equipment lamps or devices for which the equipment was
specifically designed to process and operate and maintain processing equipment
consistent with the equipment manufacturer's specifications; and
(3) Not speculatively accumulate the
materials.
b. If a
mercury-containing lamp recycling facility's processed materials are to be
delivered to a facility other than a mercury reclamation facility, the owner or
operator shall:
(1) Demonstrate proper
equipment operation and efficiency by sampling and analytical testing of the
processed materials. The testing shall ensure that such processed materials (i)
have less than three parts per million of "average mercury" during each
consecutive 12-week time period of operations ("average mercury" shall be
calculated pursuant to subdivision 34 b (3) of this subsection); (ii) have less
than five parts per million of total mercury as reported in the "weekly
composite sample of process operations" ("weekly composite sample of process
operations" shall be calculated pursuant to subdivision 34 b (3) of this
subsection); (iii) are not a hazardous waste; and (iv) comply with 40 CFR Part
268, if applicable.
(2) Retest,
reprocess, or deliver to a mercury reclamation facility processed materials
that are in excess of the allowable levels of mercury specified in subdivision
34 b (1) of this subsection.
(3)
Sample and perform analytical testing of the processed material for total
mercury as follows:
(a) Facility operators
shall take daily physical samples of the mercury-containing materials at the
point at which they exit the processing equipment. These samples shall be
representative of the materials processed during that day.
(b) At the beginning of each week, the prior
week's daily samples shall be consolidated into one weekly sample, which shall
be submitted for chemical analysis of total mercury content using an approved
EPA methodology. At least three separate daily samples shall be taken in order
to obtain a weekly sample. When a facility is not operating at least three days
during a week, that week will be dropped out of the 12-week rolling average as
calculated under subdivision 34 b (3) (c) of this subsection. However, all
daily samples that are in a week that has been dropped out shall be counted
towards the very next weekly sample that is included in a 12-week rolling
average. The result of this analysis shall be considered the "weekly composite
sample of process operations."
(c)
The "average mercury" value calculation shall be the rolling average of weekly
composite sample results from samples taken during the most recent 12-week time
period with each new weekly composite sample result replacing the oldest sample
result that was used in the previous 12-week period.
c. Mercury-containing lamp
recycling facilities shall ensure that the separated materials that are
generated from their operations are suitable and safe for their intended end
use and shall bear the burden of responsibility for the safety of these
materials sold or delivered from the operations. Facilities shall notify in
writing receiving sources, other than mercury reclamation facilities, of the
amount and type of hazardous substances present in the processed materials as
demonstrated by laboratory analysis.
d. Operating requirements. Mercury-containing
lamp recycling facilities shall be operated in accordance with the following
requirements:
(1) Mercury-containing lamp
recycling facilities shall control mercury emissions through the use of a
single air handling system with redundant mercury controls and comply with the
following:
(a) The owner or operator shall
operate, monitor, and maintain an air handling system with redundant air
pollution control equipment in order to reduce the mercury content of the air
collected during the volume reduction and mercury recovery and reclamation
processes.
(b) Redundant air
pollution control equipment shall incorporate at least two carbon filters or
equivalent technology arranged in a series so that the air passes through both
filters before being released. In the event of a single filter failure, each
filter shall be designed to ensure compliance with the risk-based
protectiveness standards for mercury vapor provided in subdivision 34 e of this
subsection.
(c) A sample of air
shall be collected after the first carbon filter (or equivalent technology) and
upstream of the second once each operating day while mercury-containing lamps
or devices are being processed. The mercury content of the sample shall be
determined for comparison with the risk-based protectiveness standards provided
in subdivision 34 e of this subsection.
(d) The owner or operator shall operate,
monitor, and maintain the air pollution control equipment in such a manner as
not to exceed the risk-based protectiveness standards under subdivision 34 e of
this subsection for mercury vapor downstream of the first carbon filter (or
equivalent technology) and upstream of the second carbon filter.
(2) The area in which the
processing equipment is located shall be fully enclosed and kept under negative
pressure while processing mercury-containing lamps or devices.
e. Testing for mercury releases
from lamp crushing units shall be performed using a mercury vapor analyzer that
has been approved for the application by the U.S. Occupational Safety and
Health Administration or the Virginia Department of Labor and Industry or a
comparable device that has been calibrated by the manufacturer or laboratory
providing the equipment. Mercury vapor monitors used for testing must be
capable of detecting mercury at the applicable concentrations provided below or
lower in air and must be equipped with a data recording device to provide a
record of measurements taken. Mercury monitoring data shall be documented and
available for inspection in accordance with subdivision 34 g of this
subsection. The acute exposure protectiveness standard is 300
µg/m3 for a 10-minute exposure with the
understanding that the acute exposure protectiveness standard is considered a
ceiling value and at no time during bulb crushing operation will the air
concentrations of mercury exceed 300 µg/m3.
The following are risk-based protectiveness standards at a distance of five
feet from the bulb crushing unit:
|
Monthly Bulb Crushing Duration (X Hours/Month)* |
Chronic Exposure Air Emission Limit (µg/m3) |
Acute Exposure Air Emission Limit (µg/m3) |
|
X = 32 |
1.314skin µg/m3 |
300 µg/m3 |
|
8 < X < 32 |
6.317 skin µg/m3 |
300 µg/m3 |
|
X = 8 |
27.375 skin µg/m3 |
300 µg/m3 |
|
*Monthly crushing duration is determined based on the maximum number of hours that bulb crushing occurred in any one month over the last 12-month period. |
||
f.
Closure. Mercury-containing lamp recycling facilities must prepare and maintain
a closure plan conforming to the requirements of 40 CFR Part 264, Subpart G as
adopted by reference in this section. Financial assurance shall be provided to
the department in accordance with 40 CFR Part 264, Subpart H as adopted by
reference in this section.
g.
Recordkeeping requirements. The owner or operator of a mercury-containing lamp
recycling facility shall maintain records of monitoring information that (i)
specify the date, place, and time of measurement; (ii) provide the methodology
used; and (iii) list the analytical results. The records maintained shall
include all calibration and maintenance records of monitoring equipment. The
owner or operator shall retain records of all monitoring data and supporting
information available for department inspection for a period of at least three
years from the date of collection.
35. The following additional information is
required from owners or operators of facilities that store or treat hazardous
waste in waste piles if an exemption is sought to Subpart F of 40 CFR Part 264
and
40 CFR
264.251 as provided in
40
CFR 264.250(c) and 40 CFR
264.90(b)(2):
a. An explanation of how the
standards of
40
CFR 264.250(c) will be
complied with; and
b. Detailed
plans and an engineering report describing how the requirements of
40
CFR 264.90(b)(2) will be
met.
Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.
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