[Federal Register Volume 68, Number 209 (Wednesday, October 29, 2003)]
[Notices]
[Pages 61662-61669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27270]


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ENVIRONMENTAL PROTECTION AGENCY

[RCRA-1999-0031; FRL-7580-3]


RCRA Burden Reduction Initiative; Notice of Data Availability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of data availability.

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SUMMARY: The Environmental Protection Agency (EPA) is requesting 
additional comment on ideas for reducing the recordkeeping and 
reporting burden imposed on the states, the public, and the regulated 
community under the Subtitle C hazardous waste regulations of the 
Resource Conservation and Recovery Act (RCRA). The burden reduction 
ideas in today's notice were suggested by commenters on our Proposed 
Rulemaking, published in the Federal Register on January 17, 2002. This 
notice provides EPA with the opportunity to receive public input on 
these ideas before we issue a final burden reduction rule. EPA is only 
taking comment on the ideas discussed in today's notice. We are not 
reopening for comment any of the other ideas discussed in the proposed 
rule.

DATES: Submit comments on or before December 15, 2003.

ADDRESSES: Comments may be submitted by mail to: EPA Docket Center, 
Mailcode: 5305T, Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460, Attention Docket ID Number RCRA-1999-
0031. Comments may also be submitted electronically, by facsimile, or 
through hand delivery/courier. Follow the detailed instructions as 
provided in Section 1.B. of the Supplementary Information section.

FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA 
Call

[[Page 61663]]

Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). 
Callers within the Washington Metropolitan Area must dial (703) 412-
9810 or TDD (703) 412-3323 (hearing impaired). For more information on 
specific aspects of this NODA, contact Robert Burchard at (703) 308-
8450, [email protected], or write him at EPA Office of Solid 
Waste (5302W), 1200 Pennsylvania Ave., NW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

1. Docket
    EPA has established an official public docket for this action under 
Docket ID No. RCRA-1999-0031. The official public docket consists of 
the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the OSWER Docket in the EPA Docket Center at 1301 Constitution Avenue, 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The phone number for the Reading Room is (202) 566-1744. 
Copies cost $0.15/page.

2. Electronic Access

    You may access this Federal Register document electronically 
through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr/, and you can make comments on this notice at the 
federal e-rulemaking portal, http://www.regulations.gov.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket or to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Docket, 
although they will be part of the rulemaking record. Information 
claimed as CBI and other information whose disclosure is restricted by 
statute, which is not included in the official public docket, will not 
be available for public viewing in EPA's electronic public docket. 
EPA's policy is that copyrighted material will not be placed in EPA's 
electronic public docket but will be available only in printed, paper 
form in the official public docket. To the extent feasible, publicly 
available docket materials will be made available in EPA's electronic 
public docket. When a document is selected from the index list in EPA 
Dockets, the system will identify whether the document is available for 
viewing in EPA's electronic public docket. Although not all docket 
materials may be available electronically, you may still access any of 
the publicly available docket materials through the docket facility 
identified in Unit I.A.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
1. Electronically
    If you submit an electronic comment as prescribed below, EPA 
recommends that you include your name, mailing address, and an e-mail 
address or other contact information in the body of your comment. Also 
include this contact information on the outside of any disk or CD-ROM 
you submit, and in any cover letter accompanying the disk or CD-ROM. 
This ensures that you can be identified as the submitter of the comment 
and allows EPA to contact you in case EPA cannot read your comment due 
to technical difficulties or needs further information on the substance 
of your comment. EPA's policy is that EPA will not edit your comment, 
and any identifying or contact information provided in the body of a 
comment will be included as part of the comment that is placed in the 
official public docket, and made available in EPA's electronic public 
docket. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment.
    a. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID Number 
RCRA-1999-0031. The system is an ``anonymous access'' system, which 
means EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    b. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID Number RCRA-1999-0031. 
In contrast to EPA's electronic public docket, EPA's e-mail system is 
not an ``anonymous access'' system. If you send an e-mail comment 
directly to the Docket without going through EPA's electronic public 
docket, EPA's e-mail system automatically captures your e-mail address. 
E-mail addresses that are automatically captured by EPA's e-mail system 
are included as part of the comment that is placed in the official 
public docket, and made available in EPA's electronic public docket.
    c. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that

[[Page 61664]]

you mail to the mailing address identified in this section. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
2. By Mail
    Send your comments to: OSWER Docket, EPA Docket Center, Mailcode: 
5305T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention Docket ID Number RCRA-1999-0031.
3. By Hand Delivery or Courier
    Deliver your comments to: Environmental Protection Agency, EPA 
Docket Center, Room B102, 1301 Constitution Avenue, NW., Washington, 
DC, Attention Docket ID Number RCRA-1999-0031. Such deliveries are only 
accepted during the Docket's normal hours of operation as identified 
above.
4. By Facsimile.
    Fax your comments to: (202) 566-0272, Attention Docket ID Number 
RCRA-1999-0031.

C. How Should I Submit Confidential Business Information (CBI) to the 
Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. 
Send or deliver information identified as CBI only to the following 
address: RCRA CBI Document Control Officer, Office of Solid Waste 
(5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
Attention Docket ID No. RCRA-1999-0031. You may claim information that 
you submit to EPA as CBI by marking any part or all of that information 
as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the 
disk or CD-ROM as CBI and then identify electronically within the disk 
or CD-ROM the specific information that is CBI). Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD-ROM, mark the outside 
of the disk or CD-ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. Background

A. What Is the Resource Conservation and Recovery Act (RCRA) Burden 
Reduction Initiative?

    The RCRA Burden Reduction Initiative is the Office of Solid Waste's 
effort to reduce recordkeeping and reporting burden, while maintaining 
the protections the Agency has in place to safeguard human health and 
the environment. This notice seeks additional comment on ideas to 
reduce burden imposed by the reporting and recordkeeping requirements 
under the RCRA Subtitle C hazardous waste regulations at 40 CFR, 
Chapter I (Environmental Protection Agency), Subchapter I [``Eye''] 
(``Solid Wastes''). For more information on this Initiative, as well as 
the definition of burden, how burden is estimated and the baseline 
burden estimates for the RCRA hazardous waste program, see the proposed 
rule published in the Federal Register on January 17, 2002 (67 FR 
2518).

B. What Are the Recordkeeping and Reporting Requirements for Generators 
and Treatment, Storage and Disposal Facilities (TSDFs)?

1. What Are the Existing Reporting and Recordkeeping Requirements?
    The existing hazardous waste regulations require the submittal of 
334 notifications, reports, certifications, demonstrations, and plans 
from generators and TSDFs to demonstrate compliance with the RCRA 
regulations. We also ask for this information as part of applications 
for extensions, permits, variances, and exemptions. In addition, the 
regulations require generators and facility owners and operators to 
keep certain records on-site.
2. Why Do We Collect This Information?
    When we promulgated the hazardous waste regulations, we decided to 
collect as much information as we thought was necessary about facility 
operations. Without prior experience as a guide, our philosophy was 
that it was better to collect information in all cases, knowing that we 
could eliminate information requirements later if they turned out to 
not be useful.
    We are using what we have learned during our 25-year operating 
history in RCRA to reevaluate this all-encompassing information 
collection approach, and we are moving towards collecting only the 
information that has actually proven useful to the RCRA hazardous waste 
program. This is consistent with the President's Management Agenda, 
which directs federal agencies to show that their programs actually 
accomplish their goals. Requiring facilities to collect and submit 
information that is seldom or never used is not only wasteful, but it 
diverts available environmental protection resources away from the RCRA 
goals of protecting human health and the environment to generating 
unnecessary paperwork.
C. How Have We Identified Burden Reduction?
    The RCRA Burden Reduction Initiative has weighed the RCRA reporting 
and recordkeeping requirements versus the burden they impose to answer 
the question ``Which recordkeeping and reporting requirements can be 
eliminated or modified without compromising protection of human health 
and the environment.'' We obtained input from program offices at EPA 
Headquarters and Regions, the States, the regulated community, and 
public interest groups in this process. To answer this question, we 
asked the following specific

[[Page 61665]]

questions: who uses the hazardous waste information?; why do they need 
it?; is the information useful as it is currently collected?; and how 
can the quality and timeliness of the information be improved?
    Our ideas were announced for comment in a June 18, 1999, Federal 
Register ``Notice of Data Availability'' (64 FR 32859). In the 
``Notice'' and background documents (see http://www.epa.gov/epaoswer/hazwaste/data/index.htm#burden), we included every burden reduction 
idea we considered. Based on comments we received on the ``Notice,'' we 
eliminated ideas when a practical use for the information was 
demonstrated, or information was presented showing how eliminating/
modifying a requirement would negatively impact protection of human 
health and the environment. Based on these comments, we added ideas 
which appeared in our January 17, 2002, ``Proposed Rulemaking'' (67 FR 
2518). Today's notice seeks comment on some additional ideas that were 
suggested by commenters or are outgrowths of the Proposed Rule, based 
on our evaluation of those comments.

III. Discussion of Additional Items for Comment

A. Small Quantity Generator Tanks and Tank Ancillary Equipment 
Inspection Frequencies

    In the Proposed Rule, we requested comment on changing the tank 
self-inspection frequencies from daily to weekly for large quantity 
generators. We received comments suggesting that we expand this change 
to include tanks located at small quantity generator sites (see Sec.  
265.201(c)) and ancillary equipment at small and large quantity 
generator facilities (see Sec.  264.193(f) and Sec.  265.193(f)). 
Changing these inspection frequencies would be consistent with our 
intent, as discussed in the 1999 ``Notice of Data Availability,'' the 
Proposed Rule, and background documents to establish weekly tank 
inspections for all tanks and tank systems. The estimated burden hour 
savings from extending to weekly the inspection frequency for tanks 
located at small quantity generator sites ranges from 200,000-600,000 
burden hours (depending on the percentage of small quantity generators 
assumed to have tanks). We consider this to be substantial savings. We 
request comment on the merits of this change.

B. Further Reduced Inspection Frequencies for Performance Track 
Facilities

    In addition to allowing weekly inspection frequency for tanks, we 
also proposed to allow, on a case-by-case basis, decreased inspection 
frequencies for tanks, containers, and containment buildings (from the 
frequency currently required by regulation). In all cases, inspections 
would have to occur at least monthly and would be established on a 
site-specific basis by authorized States or by EPA in States that do 
not have a delegated program. In proposing this change, 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) demonstrations of good management 
practices over the years--that is, having a record of sustained 
compliance with environmental laws and 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 chemical and physical characteristics of the waste being managed in 
the unit.
    Based on comments received on the proposal, the Agency is 
reconsidering whether to make such a change available to all generators 
because of the burden it might impose on authorized States to evaluate 
compliance with the criteria. However, at a minimum, we believe that 
providing relief is appropriate for companies that are demonstrated 
``good performers.'' Therefore, the Agency is soliciting comment on 
whether to limit this provision--the ability to file a case-by-case 
application for reduced self-inspection frequencies--to member 
companies of the National Performance Track Program. The National 
Environmental Performance Track Program recognizes and encourages top 
environmental performance among private and public facilities in the 
United States. Performance Track facilities go beyond compliance with 
regulatory requirements to achieve environmental excellence. Currently, 
the program has approximately 300 members. See the following Web site 
for information about the National Performance Track Program: http://www.epa.gov/performancetrack. Today, we also are clarifying that this 
provision was meant to apply not just to the tanks, but to the complete 
tank systems. This includes piping, pumps, valves and other associated 
equipment.
    We also received a comment suggesting that we extend reduced 
inspection frequencies, granted on a case-by-case basis, to areas 
subject to spills (see Sec.  264.15(b)(4)). While the Agency is 
considering this comment as a general matter, we also solicit comment 
on whether to grant relief only to companies that are National 
Performance Track members. We think the risk from this change is 
minimal at facilities that have met the requirements to be accepted 
into the National Performance Track Program. Again, the Agency believes 
it is important to recognize the difference in the need for oversight 
of companies that are top environmental performers and, therefore, 
believes that such a change may be appropriate.

C. RCRA/OSHA Overlap in Emergency Response Training

    EPA and the Occupational Safety and Health Administration (OSHA) 
have both promulgated regulations to ensure the safety and health of 
workers at hazardous waste facilities. While RCRA Subtitle C includes 
requirements to provide protection to workers, worker safety and health 
are not its primary goal. This is the goal of OSHA, the Federal agency 
responsible for enforcing the safety and health of workers at 
facilities producing, using, storing, transporting, and disposing of 
hazardous materials.
    In a study by the General Accounting Office (GAO) published in 
October 2000, OSHA and EPA worker training requirements in emergency 
response procedures were found to be duplicative. GAO concluded that 
this overlap in training requirements creates an unnecessary burden by 
confusing the regulated community, diminishes the efficiency of the 
facility (which could jeopardize worker safety), and wastes funds.
    Hazardous waste treatment, storage and disposal facility (TSDF) 
workers are required to receive OSHA training, including training for 
emergency response, under 29 CFR 1910.120(p). OSHA's regulations have 
specific training requirements for RCRA-permitted facilities to teach 
hazardous waste workers how to respond to emergencies.
    Based primarily on the GAO findings, EPA proposed to eliminate the 
RCRA emergency response training requirements in favor of the OSHA 
requirements. Unfortunately, there has been some confusion about what 
we proposed. We did not propose to eliminate the entire RCRA personnel 
training requirements, only the emergency response training

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requirements located at Sec.  264.16(a)(3) and Sec.  265.16(a)(3).
    While many of the commenters supported the proposal, we received a 
number of comments expressing concern that two of the RCRA emergency 
response training requirements are not covered in OSHA's requirements, 
which could lead to gaps in workplace safety and health. After 
consultation with OSHA, we determined that the two requirements 
identified in comments (key parameters for automatic waste feed cut-off 
systems and response to ground-water contamination incidents) would be 
captured under the OSHA performance standard that employees must be 
trained in the safe use of engineering controls and equipment on the 
site, and the OSHA requirement that a site safety and health plan must 
contain a spill containment program. Moreover, the RCRA requirements 
are duplicated elsewhere in the RCRA regulations, where we establish 
requirements for safe facility operations. For example, Sec.  
266.102(e)(7)(ii) establishes automatic waste feed cutoff requirements 
for combustors, Sec.  264.194(b)(2) establishes controls for tanks, and 
Sec.  264.193 requires groundwater release training. Thus, we do not 
find any gaps between the two programs on the subject of emergency 
response training.
    Deferring to the standards of other organizations whose expertise 
is greater than ours has precedent in the RCRA regulations. An example 
is Sec.  264.198(b), which establishes special requirements for 
ignitable or reactive wastes. We require facilities storing or treating 
these wastes to comply with the standards of the National Fire 
Protection Association, a non-profit organization that develops 
consensus codes and standards to protect the public against fire 
dangers.
    However, a number of commenters suggested that the Agency provide 
additional flexibility to this change by allowing the facility owner/
operator to determine whether to follow the RCRA or OSHA requirements 
(as opposed to the proposed rule's approach of requiring facilities to 
follow the OSHA regulations), especially for those facilities which are 
not otherwise required to comply with OSHA training requirements. This 
seems a reasonable accommodation to facilities, that, for any of a 
number of reasons, have elected to comply with the RCRA regulation and 
would be burdened by the need to demonstrate compliance under the OSHA 
rule. Therefore, we request comment on this approach.

D. Professional Certifications

    Currently, the RCRA regulations require an independent, qualified, 
registered professional engineer (or registered geologists for some 
requirements) to certify the effectiveness of the design and operation 
of certain hazardous waste treatment units. We received a comment on 
our ``Notice of Data Availability'' dated June 18, 1999 (64 FR 32859) 
from the Certified Hazardous Materials Managers' organization asking 
that their members also be allowed to make certifications. Based on our 
review of the qualifications of Certified Hazardous Materials Managers, 
it appeared to the Agency that these certified professionals were 
qualified to provide the certifications, increasing marketplace 
competition and potentially reducing the cost of those certifications. 
As a result, the Agency proposed to add Certified Hazardous Materials 
Managers as professionals qualified to make these certifications. We 
did not receive similar requests from other professional organizations.
    In response to this proposal, the Agency received about 1,900 
comments, mostly requesting that we expand the list of individuals who 
can do such certifications to include other kinds of professionals, 
such as expanding the list of certifications to registered geologists. 
These commenters believe that the Agency was being arbitrary in 
allowing only two disciplines to certify operations.
    On the other hand, professional engineers were strongly opposed to 
the proposal. They suggested that Certified Hazardous Materials 
Managers are not qualified to certify the design, construction, and 
structural integrity of hazardous waste management units.
    States likewise suggested that the certifications we proposed to 
modify involve the design, installation, and assessment of structures, 
and that their laws allow only licensed engineers to make these kinds 
of certifications. The States also indicated that their licensing 
boards can investigate complaints of negligence or incompetence, and 
may impose fines and other disciplinary actions such as cease-and-
desist orders or license revocation. This personal liability of the 
professional engineer is one of the reasons why the States believe that 
RCRA certifications should only be done by state-licensed professional 
engineers.
    Other commenters suggested that, rather than deciding which 
professions are qualified to make certifications, we should instead 
establish an environmental professional performance standard based on 
membership in a recognized professional organization. This would be 
consistent with our principle of allowing the regulated community to 
meet our standards at the lowest possible cost. The challenge we faced 
in developing a performance standard was determining which professional 
organizations are legitimate. Commenters helped by offering the 
suggestion that we recognize only the organizations which meet the 
criteria for assessing certification programs for environmental 
professionals established by the American Society for Testing and 
Materials (ASTM). ASTM is a nonprofit organization that provides a 
forum for the development and publication of voluntary, consensus 
standards for materials, products, systems, and services. The advantage 
of an ASTM standard is that it is developed by individuals with a 
diversity of backgrounds, expertise, and knowledge. Through a consensus 
approach, the standards that are developed reflect the needs of all the 
stakeholders.
    ASTM E1929-98, Standard Practice for the Assessment of 
Certification Programs for Environmental Engineers: Accreditation 
Criteria assesses the credibility of certification programs for 
environmental professionals. Under these standards, the certifying body 
must have a program to evaluate individual competence for certification 
that is objective and based on the knowledge, skills, and abilities 
needed to function in the specialty area. Applicants must document 
their level of education, supply reference materials, sign and abide by 
a code of ethics established by the certifying body, and pass a 
comprehensive examination. The ASTM standard also requires that 
environmental certification programs be accredited by an independent 
entity. This ASTM standard is available for review at the OSWER Docket 
in the EPA Docket Center.
    Therefore, we are considering allowing only professionals certified 
by organizations meeting the ASTM standard to conduct a limited number 
of the certifications. Under this standard, anyone who certifies the 
operation of facilities must (a) be licensed to practice in the state 
where the facility is located or recognized by a certification program 
that is compliant with ASTM E1929-98 Standard Practice for the 
Assessment of Certification Programs for Environmental Professionals: 
Accreditation Criteria, and (b) have the knowledge and experience to 
undertake the tasks required for the certification. Based on comments 
from and extensive discussions with the States, we may

[[Page 61667]]

limit the flexibility to use persons meeting the criteria of the new 
performance standard to three certifications:
Subject to New Performance Standard
    264.573(a)(4)(ii),(g); 265.443(a)(4)(ii),(g) Drip pads--evaluate 
drip pads.
    264.574(a); 265.444(a) Drip pads--inspections.
    266.111(e)(2) BIF Direct transfer equipment--assessment of 
equipment.
    At the same time, EPA is persuaded by commenters--particularly the 
States--who suggested that the remaining RCRA certifications are 
inherently ``engineering'' activities and should only be conducted by a 
qualified professional engineer. We solicit comment on this revised 
approach.
    Some commenters further suggested that we streamline the existing 
professional engineer requirement by changing it from ``independent, 
qualified, registered professional engineer'' to ``qualified 
professional engineer.'' They believe that this retains the most 
important requirements--that the engineer be qualified to perform the 
task, and that she or he be a professional (following a code of ethics 
and the potential of losing his/her license for negligence) engineer. 
The professional engineers who commented, as well as the professional 
engineer advocacy organizations, emphasized the importance of the 
``professional'' part of the engineering requirement, rather than the 
``independent'' part. Making this change in the RCRA regulations would 
allow certifications to be done by a professional engineer employed by 
the facility. Commenters believe that this would save facilities money 
without compromising environmental safety. This would also be 
consistent with the approach we have taken in some newer requirements 
for certifications. See the 265.1101(c)(2) containment building design 
certification, and the 266.103(b)(2)(ii)(D) evaluation of data for 
boilers and industrial furnaces, which allow for certification by 
``qualified, registered professional engineers.''
    As a point of reference to check the reasonableness of this change, 
we examined the certification requirements of another federal 
regulatory agency responsible for ensuring the safety of the public, 
the Department of Transportation's Federal Highway Administration. The 
Federal Highway Administration (FHA) recently proposed revisions and 
improvements to its National Bridge Inspection Standards (68 FR 53063). 
These standards ensure the safety of the traveling public by 
establishing proper safety inspection and evaluation requirements for 
highway bridges. The standards apply to publicly-owned bridges, and are 
strongly advised for privately-owned bridges. FHA points out in their 
preamble discussion that it is extremely important that privately owned 
highway bridges be inspected to a nationally-recognized standard, for 
at a minimum, private bridge owners that do not inspect their highway 
bridges to the standards can open themselves to liability for deaths or 
injuries because of possible highway bridge failure. The standards 
currently require the person responsible for inspecting bridges to be a 
professional engineer. Interestingly, FHA's proposed rule's preamble 
discussion on the professional engineer requirement covers the 
necessity of these professional engineers having adequate experience to 
do the job, which is emphasized in today's notice--and FHA does not 
require, nor does it discuss in its proposal for improving the 
standards, the need for the professional engineer be ``independent.''
    The Occupational Safety and Health Administration (OSHA) Safety and 
Health Regulations for Construction; Specific Requirements for 
Excavation (see 29 CFR 1926.651) provide another example of a federal 
regulatory agency requiring certification by professional engineers, 
but not requiring that the engineers be ``independent.'' Under these 
regulations, OSHA requires structural ramps that are used to access or 
exit excavations to be designed by a ``competent person'' qualified in 
structural design. OSHA also requires professional engineers to ensure 
the stability of structures adjacent to excavations.
    In addition, our understanding of what it means to be 
``registered'' is that it means one who is licensed by a State. Since 
only States license professional engineers and geologists, we believe 
that ``registered'' and ``professional'' mean the same thing in the 
context of ``registered professional engineer or geologist.'' Thus, 
``registered'' appears to be a redundant requirement. We request 
comment on whether to make this conforming change to provide 
consistency to our rules, which sometimes include the term 
``registered'' and in other cases do not.
    In summary, we have identified the following certifications as 
needing a qualified professional engineer:
Only Qualified Professional Engineers
    264/265.115 Certification of closure.
    264/265.120 Certification of post-closure care.
    264/265.191(a), (b)(5)(ii) Assessment of tank system's integrity.
    264/265.192(a), (b) Assessment of new tank system and components 
(also may be done by a qualified installation inspector).
    264/265.196(f) Tank systems--submit certification of completion of 
major repairs.
    264.280(b) Land treatment units, certification of closure (also may 
be done by a qualified soil scientist).
    264.571(a), (b), (c); 265.441(a), (b), (c) Drip pads--submit 
written plan, as-built drawings, and certification for upgrading, 
repairing and modifying the drip pad.
    265.1101(c)(2) Containment building design certification.
    266.103(b)(2)(ii)(D) BIFs--Evaluation of data.
    270.16(a) Assessment of tank system structural integrity.
    270.17(d) Assessment of surface impoundment structural integrity.
    The Agency solicits comments on whether the ASTM standard is 
appropriate; whether the Agency made the right choices in determining 
which certifications must be conducted by qualified professional 
engineers, as opposed to persons that are accredited by programs 
meeting the ASTM standard; and whether the Agency should modify the 
requirement to allow ``qualified professional engineers'' to conduct 
the certification instead of ``independent, qualified, registered 
professional engineers.''

E. General Facility Standards

    When the Agency promulgated the operating record requirements in 
the hazardous waste regulations, we believed that records should 
routinely be kept for the life of the facility. Our rationale for this 
position was that if an issue or problem came up about an earlier 
practice at a facility, the records would be available.
    After many years of experience in implementing the RCRA hazardous 
waste rules, we are better able to distinguish those records that must 
be kept for the life of the facility from those which can be discarded 
after some period of time without affecting protections of human health 
and the environment.
    As discussed in the Proposed rule, information about which wastes 
are disposed of at a facility and where the disposed waste is located 
must be kept for the life of the facility. More routine information, 
such as whether certain notices were filed and records of inspections, 
can be discarded after three years. In the RCRA regulations, we have 
generally settled on three years as a

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reasonable time frame for keeping records. This is consistent with 
other Agency programs, such as the Toxics Substance Control Act and the 
Toxic Chemical Release Reporting Community Right to Know programs, that 
impose a three year record retention time in their regulations. 
Therefore, we proposed to modify the Sec. Sec.  264.73 and 265.73 
operating record requirements to require only a three-year limit for 
keeping certain information.
    In response to this proposal, we received a comment that for 
Sec. Sec.  264.73(b)(8) and 265.73(b)(8) closure and post-closure cost 
estimates, we should only require current estimates to be kept at the 
facility. In fact, the commenter argues that 264.142(d) and 264.144(d) 
only requires the facility to ``keep .* * * at the facility during the 
operating life of the facility (t)he latest'' closure and post-closure 
cost estimates. We agree with the commenter that there is an apparent 
inconsistency in the rules and thus request comment on the merits of 
this change.
    We also received a request for clarification of the operating 
record requirements for incinerators. The commenter pointed out that 
for incinerators, voluminous data is produced and is required to be 
kept for the life of the facility, which is burdensome to maintain. 
Specifically, data that is required to be collected and maintained 
include continuous monitoring of combustion temperature, waste feed 
rate, the indicator of combustion gas velocity specified in the 
facility permit, and other operating parameters. At the commenter's 
facilities, monitoring is done at 75 points, some instantaneously 
(every 15 seconds), but all requiring maintenance of 15-second data, 
minute averages and rolling hourly averages. This is a large volume of 
data that is generated annually. We are requesting comment on requiring 
a three year retention for these records instead of for the life of the 
facility.

F. Groundwater Monitoring Requirements

    Treatment, storage, and disposal facilities must implement a 
groundwater monitoring system for hazardous waste land disposal units 
to detect the presence of contaminants in groundwater. If contamination 
is detected, more extensive monitoring must be performed. If the level 
of contamination exceeds the groundwater protection standard, 
corrective action must be undertaken.
    We proposed allowing owners/operators of facilities to report on 
the effectiveness of corrective action on an annual basis instead of 
the current semi-annual basis. In combination with other forms of 
oversight by regulatory agencies, we suggested that annual reporting 
will provide adequate information to ensure compliance.
    In addition, we proposed modifying the Sec.  264.99(g) requirement 
that facilities who are undertaking compliance monitoring also conduct 
an annual Appendix IX analysis of all monitoring wells. Specifically, 
we proposed allowing, on a case-by-case basis, sampling in a subset of 
the wells.
    We received a comment asking that we clarify an inconsistency in 
our groundwater regulations. Specifically, we were asked to revise the 
Sec.  264.98(d) detection monitoring requirements, which say that a 
facility must collect at least four samples from each well at least 
semi-annually. Elsewhere in our groundwater regulations--Sec.  
264.97(g)(2) (the general groundwater monitoring requirements) we allow 
facilities to propose (with the Regional Administrator's approval) 
alternate sampling procedures. The commenter would like us to extend 
this flexibility to the detection monitoring requirements. This appears 
to be a reasonable request.
    Another commenter suggested that we provide flexibility in another 
part of both the groundwater detection and compliance monitoring 
requirements. Currently, facilities that find appendix IX compounds in 
the groundwater may resample within a month to check again for the 
compounds. If found again, the constituents will form the basis for 
compliance monitoring (and for detection monitoring, any new 
constituents that are found are added to the monitoring list). The 
commenter asked that we add language saying that the resampling may 
occur within a different time frame, upon approval by the State or EPA. 
This also appears to be a reasonable request. This change would 
increase the flexibility facilities have in complying with our 
regulations, without impacting protections for human health and the 
environment.
    Finally, we received a comment asking us to change Sec.  264.100(g) 
to maintain consistency with our change to 264.113(e)(5)--requiring an 
annual instead of semi-annual corrective action report. We 
inadvertently omitted this change despite it being consistent with our 
preamble discussion. We solicit comment on the merits of this change.

G. Military Munitions

    We currently require conditionally exempt munitions to be 
transported under shipping controls specified in Sec.  266.203(c). This 
section (266.203(c)) requires all shipments to be accompanied by 5 
specific forms (the regulations currently lists the name of each form, 
as well as the accompanying form identification number). The problem, 
according to a commenter, is that every time the name of one of these 
forms, or the form identification number changes, the Department of 
Defense must publish a Federal Register notice announcing the change. 
It was not our intent for this type of minor, administrative action to 
require public notification. We believe that reasonable streamlining 
can be achieved by eliminating the requirement for a Federal Register 
notice and replacing it with a requirement for written notification to 
the Director of EPA's Office of Federal Facilities Enforcement. We 
request comment on this potential change.

H. Permit Modifications

    Several commenters pointed out that implementing many of the 
changes in the proposed rule will require a Class 2 Permit modification 
for facilities with permits (see the following Web site for information 
about Permit modifications: http://www.epa.gov/epaoswer/hotline/training/perm.pdf). We believe the changes represented in this notice 
will provide no significant threat to human health or the environment. 
Therefore, our intention is to allow these changes, if finalized, to be 
made as quickly as possible as opposed to making a change on paper, but 
not being able to implement it quickly. Because of the magnitude of the 
savings represented by these changes, delaying implementation would be 
costly for no apparent gain in environmental protection. Due to an 
oversight on our part, we did not address this issue in the proposed 
rule. Therefore, we are requesting comment today on allowing permitted 
facilities to use the Class 1 permit modification procedure, with prior 
Agency approval, to implement the changes arising from this rulemaking. 
However, we also request comment on whether the Class 1 permit 
modifications should be without prior Agency approval. Where States 
have an authorized RCRA program, the ``Agency approval'' refers to 
approval by the State.

IV. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    The 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

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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 today's notice on small 
entities, small entity is defined as: (1) A small business; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's notice on small 
entities, we are certifying 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 proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on small entities subject to the rule. Today's notice 
is specifically intended to be de-regulatory and to reduce, not 
increase, the paperwork and related burdens of the RCRA hazardous waste 
program. For businesses in general, including all small businesses, the 
changes would reduce the labor time and other costs of preparing, 
keeping records of, and submitting reports to the agency. The notice 
also reduces the frequency by which businesses must conduct specified 
recordkeeping and reporting activities. It also eliminates 
recordkeeping and reporting requirements, thereby streamlining 
facilities' compliance activities. Finally, the rule increases 
flexibility in how waste handlers may comply with the regulations. We 
therefore conclude that today's notice relieves regulatory burden for 
small entities. We continue to be interested in the potential impacts 
of the notice on small entities and welcome comments on issues related 
to such impacts.

    Dated: October 17, 2003.
Robert Springer,
Director, Office of Solid Waste.
[FR Doc. 03-27270 Filed 10-28-03; 8:45 am]
BILLING CODE 6560-50-P