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



[[Page 16861]]

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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 http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, 
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Elaine Eby, Waste Minimization Branch, 
Hazardous Waste Minimization and Management Division, Office of Solid 
Waste (5302W), Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460; telephone number: (703) 308-8449, fax 
number: (703) 308-8443, e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

General Information

A. Does This Action Apply to Me?

    This rule applies to entities regulated under the Resource 
Conservation and Recovery Act, including manufacturing, transportation, 
utilities, the waste treatment industry, and the mineral processing 
industry. This list is not intended to be exhaustive, but rather 
provides a guide for readers regarding entities likely to be affected 
by this action. To determine whether your facility, company, or 
business is regulated by this action, you should carefully examine 40 
CFR parts 260 through 273. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. Table of Contents

I. Statutory Authority
II. Background, Purpose, and Summary of Today's Action
III. What Burden Reduction Changes Are We Making?
    A. Changes to the Amount of Time Records Must Be Kept
    1. We Are Reducing the Retention Time for Certain Information 
Kept in a Facility's Operating Record
    2. We Are Increasing the Retention Time for Certain Information 
Kept in an Interim Status Facility's Operating Record
    3. We Are Establishing a Five Year Record Retention Time for 
Information Kept on the Operation of Incinerators, Boilers, and 
Industrial Furnaces
    B. Changes to the Professional Engineer Certification 
Requirements
    1. We Are Removing the ``Independent and ``Registered'' 
Requirements for Selected Certifications
    2. We Are Also Changing the Closure and Post-Closure 
Certification Requirements
    C. Owners and Operators of Hazardous Waste Treatment, Storage, 
and Disposal Facilities Have an Option of Following the Integrated 
Contingency Plan Guidance
    D. Owners and Operators of Hazardous Waste Treatment, Storage, 
and Disposal Facilities Have an Option to Follow the RCRA or 
Equivalent Occupational Safety and Health Administration (OSHA) 
Standard for Emergency Response Training
    E. We Are Clarifying Selected Requirements Under RCRA's Land 
Disposal Restrictions and Eliminating Obsolete Regulatory Language
    1. We Are Clarifying the Regulatory Language on the Land 
Disposal Restrictions Generator Waste Determination
    2. We Are Clarifying the Regulatory Language on the Land 
Disposal Restrictions Characteristic Waste Determination
    3. We Are Removing Obsolete Regulatory Language
    F. We Are Eliminating Selected Recordkeeping and Reporting 
Requirements That We Believe Provide Duplicative Information to EPA
    1. We Are Eliminating the Requirement for Facilities To Notify 
That They Are in Compliance After a Release
    2. We Are Eliminating the Requirement for Facilities To Notify 
of Their Intent to Burn F020, F021, F022, F023, F026, and F027 
Wastes
    3. We Are Eliminating the Requirement for Facilities to Notify 
if They Employ or Discontinue Use of the Alternative Valve Standard
    4. We Are Eliminating the Requirement for Facilities To Notify 
If They Are Using Alternative Valve Work Practices.
    G. We Are Permitting Decreased Inspection Frequency for Certain 
Hazardous Waste Management Units
    1. We Are Establishing Weekly Inspections for Certain Hazardous 
Waste Tank Systems at Permitted and Interim Status Facilities, and 
at Large Quantity Generator Sites
    2. We Are Establishing Weekly Inspections for SQG Hazardous 
Waste Tanks Systems With Secondary Containment
    3. We Are Allowing Members of the National Environmental 
Performance Track Program To Apply for an Adjustment to the 
Frequency of Their Inspections for Certain Hazardous Waste 
Management Units and Areas.
    a. Performance Track: Reduced Inspection Frequency for Areas 
Subject to Spills.
    b. Performance Track: Reduced Inspection Frequency for 
Containers.
    c. Performance Track: Reduced Inspection Frequency for Tank 
Systems.
    d. Performance Track: Reduced Inspection Frequency for 
Containment Buildings
    H. We Are Making Selected Changes to the Requirements for Record 
Retention and Submittal of Records
    1. We Are Removing the Requirement To Submit a One-time 
Notification for Recycled Wood Wastewater and Spent Wood-Preserving 
Solutions and Clarifying an Unintentional Elimination Made in the 
Proposal
    2. We Are Eliminating the Requirement for Interim Status 
Facilities To Submit Specific Ground-Water Monitoring Plans and 
Ground-Water Assessment Reports
    3. We Are Eliminating the Requirement for Interim Status Surface 
Impoundments, Waste Piles, and Landfills To Submit a Response Action 
Plan
    4. We Are Eliminating the Requirement for Facilities To Submit a 
Tank System Certification of Completion of Major Repairs

[[Page 16863]]

    5. We Are Eliminating the Requirement for a Recycler To Submit a 
Notification and Certification
    6. We Are Eliminating the Requirement To Submit an LDR 
Notification and Certification
    I. We Are Making Selected Changes To the Requirements for 
Document Submittal
    1. We Are Streamlining the Procedure for Obtaining a Variance 
From Classification as a Solid Waste
    2. We Are Streamlining the Requirements for Treatability Study 
Reports for Testing Facilities
    3. We Are Streamlining the Requirements for Ground-Water 
Monitoring
    J. We Are Making Selected Changes to the Requirements for Semi-
Annual Reports to Annual Reports
    1. We Are Changing the Requirement for a Semi-Annual Report 
Detailing the Effectiveness of the Corrective Action Program
    2. We Are Changing the Requirement for a Semi-Annual Report 
Detailing the Progress of the Corrective Action Program
IV. What Regulatory Requirements Will Remain in the CFR?
V. We Will Implement this Rule via the Class I Permit Modification 
Process Without Prior Approval
VI. How Will Today's Regulatory Changes Be Administered and Enforced 
in the States?
    A. Applicability of Federal Rules in Authorized States
    B. Authorization of States for Today's Rule
VII. Statutory and Executive Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act of 1995
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
VIII. Regulatory Language

I. Statutory Authority

    The U.S. Environmental Protection Agency (EPA) regulates the 
generation and management of hazardous waste under 40 CFR parts 260 
through 273 using the authority of the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6901 et seq.

II. Background, Purpose, and Summary of Today's Action

    As part of its hazardous waste regulations, EPA has established 
recordkeeping and reporting requirements that allow the Agency to 
enforce and ensure compliance with these regulations. In the Paperwork 
Reduction Act (PRA) 44 U.S.C. 3501, et seq, Congress directs all 
federal agencies to become more responsible and publicly accountable 
for reducing the burden of federal paperwork on the public. ``Burden'' 
is defined as the total time, effort, or financial resources expended 
by persons to generate, maintain, retain, or disclose or provide 
information to or for a federal agency (44 U.S.C. 3502(2))t
    Over the past five years, EPA has continued to assess and evaluate 
the need for the many recordkeeping and reporting requirements found in 
the RCRA hazardous waste program. In the course of this effort, we have 
identified numerous opportunities to eliminate or streamline RCRA 
requirements, while continuing to fulfill our mission of protecting 
human health and the environment.
    Today's final rule changes a number of the regulatory requirements 
found in 40 CFR parts 260 through 271. These changes will bring about 
burden reductions to both the regulated community and the regulators 
and is a direct result of our consultations with a number of state 
experts on potential burden reduction ideas, as well as public input 
through two Notices of Data Availability and a Proposed Rulemaking.\1\
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    \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).
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    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.

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   Table 1.--Summary of the Major Components and a Description of the
 Regulatory Changes Being Promulgated in Today's Burden Reduction Final
                                  Rule
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                                            Description of regulatory
           Regulatory change                          change
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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.
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    \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.
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    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\
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    \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.
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    We agree with these commenters and have decided for reasons of 
consistency with the CAA requirements, to finalize a five year record 
retention time for incinerators and BIFs. We are also promulgating the 
five year record retention time for BIFs (such as sulfur recovery 
furnaces) that will not be subject to the recently promulgated MACT 
standards.
    One commenter that opposed any change to the record retention time 
stated that incinerators should keep all their data points for the life 
of the facility. The commenter asserted that the only information that 
a state inspector has to use during a violation are the data on the 
incinerator's parametric monitoring. They argued

[[Page 16866]]

that, in no case, should record retention be reduced if there are 
outstanding enforcement, non-compliance or legal issues pending.
    For reasons cited earlier, we believe that modifying the record 
retention period for incinerators and BIFs to five years is 
appropriate. Regarding the commenter's point that records should be 
retained if there is an outstanding enforcement, non-compliance or 
legal action pending, the regulations already provide for this and 
nothing in today's rule would amend this provision. See Sec. Sec.  
264.74 and 265.74 which state:

    The record retention period for all records required under this 
part is extended automatically during the course of any unresolved 
enforcement action regarding the facility or as requested by the 
Administrator.

    The following tables show the new retention times by facility for 
selected records. We have also included the recordkeeping requirements 
found in: (1) Section 264.73, Operating record; (2) Section 264.347, 
Monitoring and inspections; (3) Section 265.73, Operating record; (4) 
Section 266.102(e)(10), Permit standards for burners; and (5) Section 
266.103(d) and (k), Interim status standards for burners.

    Table 2.--Revised Record Retention Times for Permitted Treatment,
                    Storage, and Disposal Facilities
------------------------------------------------------------------------
                                                      Current retention
                                                            time
                                                   ---------------------
         CFR section             Record summary      New retention time
                                                      as amended by the
                                                      burden reduction
                                                            rule
------------------------------------------------------------------------
264.73(b)(1)................  Description and       Maintain until
                               quantity of each      closure of the
                               hazardous waste       facility.
                               received and the     No change in
                               method(s) and         regulatory
                               date(s) of its        requirement.
                               treatment, storage
                               or disposal at the
                               facility.
264.73(b)(2)................  The location of each  Maintain until
                               hazardous waste       closure of the
                               within the facility   facility.
                               and the quantity at  No change in
                               each location.        regulatory
                                                     requirement.
264.73(b)(3)................  Records and results   Maintain until
                               of waste analyses     closure of the
                               and waste             facility.
                               determinations.      Maintain for three
                                                     years.
264.73(b)(4)................  Summary reports and   Maintain until
                               details of all        closure of the
                               incidents that        facility.
                               require              Maintain for three
                               implementing the      years.
                               contingency plan.
264.73(b)(5)................  Records and results   Maintain for three
                               of inspections.       years.
                                                    No change in
                                                     requirement.
264.73(b)(6)................  Monitoring, testing,  Maintain until
                               or analytical data    closure of the
                               corrective action.    facility.
                                                    Maintain for three
                                                     years, except for
                                                     records and results
                                                     pertaining to
                                                     ground-water
                                                     monitoring and
                                                     cleanup, which must
                                                     be maintained until
                                                     closure of the
                                                     facility.
264.73(b)(7)................  For off-site          Maintain until
                               facilities, notices   closure of the
                               to generators as      facility.
                               specified in Sec.    Maintain for three
                               264.12(b).            years.
264.73(b)(8)................  All closure cost      Maintain until
                               estimates for         closure of the
                               disposal              facility.
                               facilities, all      No change in
                               post-closure cost     regulatory
                               estimates.            requirement.
264.73(b)(9)................  Waste minimization    Maintain until
                               certification.        closure of the
                                                     facility.
                                                    Maintain for three
                                                     years.
264.73(b)(10)...............  Records of the        Maintain until
                               quantities and date   closure of the
                               of placement for      facility.
                               each shipment of     No change in
                               hazardous waste       regulatory
                               place in land         requirement.
                               disposal units
                               under an extension
                               to the effective
                               date of any land
                               disposal
                               restriction granted.
264.73(b)(11)...............  For off-site          Maintain until
                               treatment facility,   closure of the
                               notices and           facility.
                               certifications from  Maintain for three
                               generator.            years.
264.73(b)(12)...............  For on-site           Maintain until
                               treatment facility,   closure of the
                               notices and           facility.
                               certifications.      Maintain for three
                                                     years.
264.73(b)(13)...............  For off-site land     Maintain until
                               disposal facility,    closure of the
                               notices and           facility.
                               certifications from  Maintain for three
                               generator.            years.
264.73(b)(14)...............  For on-site land      Maintain until
                               disposal facility,    closure of the
                               notices and           facility.
                               certifications.      Maintain for three
                                                     years.
264.73(b)(15)...............  For off-site storage  Maintain until
                               facility, notices     closure of the
                               and certifications    facility.
                               from generator.      Maintain for three
                                                     years.
264.73(b)(16)...............  For on-site storage   Maintain until
                               facility, notices     closure of the
                               and certifications.   facility.
                                                    Maintain for three
                                                     years.
264.73(b)(17)...............  Records required      Maintain until
                               under Sec.            closure of the
                               264.1(j)(13).         facility.
                                                    Maintain for three
                                                     years.
264.73(b)(18)...............  Monitoring, testing   Maintain until
                               or analytical data    closure of the
                               where required by     facility.
                               Sec.   264.347.      Maintain for five
                                                     years.
264.73(b)(19)...............  Certification as      No specified
                               required by Sec.      requirement.
                               264.196(f).          Maintain until
                                                     closure of the
                                                     facility.
264.347(d)..................  For incinerators:     Maintain until
                               monitoring and        closure of the
                               inspection data.      facility.
                                                    Maintain for five
                                                     years.
266.102(e)(10)..............  For burners:          Maintain until
                               recordkeeping.        closure of the
                                                     facility.
                                                    Maintain for five
                                                     years.
------------------------------------------------------------------------


[[Page 16867]]


 Table 3.--Revised Record Retention Times for Interim Status Treatment,
                    Storage, and Disposal Facilities
------------------------------------------------------------------------
                                                     Current retention
                                                            time
                                                  ----------------------
          CFR section             Summary record   New retention time as
                                                   amended by the burden
                                                       reduction rule
------------------------------------------------------------------------
265.73(b)(1)..................  Description and    Maintain until
                                 quantity of each   closure of the
                                 hazardous waste    facility.
                                 received and the  No change in
                                 method(s) and      regulatory
                                 date(s) of its     requirement.
                                 treatment,
                                 storage or
                                 disposal at the
                                 facility.
265.73(b)(2)..................  The location of    Maintain until
                                 each hazardous     closure of the
                                 waste within the   facility.
                                 facility and the  No change in
                                 quantity at each   regulatory
                                 location.          requirement.
265.73(b)(3)..................  Records and        Maintain until
                                 results of waste   closure of the
                                 analyses and       facility.
                                 waste             Maintain for three
                                 determinations.    years.
265.73(b)(4)..................  Summary reports    Maintain until
                                 and details of     closure of the
                                 all incidents      facility.
                                 that require      Maintain for three
                                 implementing the   years.
                                 contingency plan.
265.73(b)(5)..................  Records and        Maintain for three
                                 results of         years.
                                 inspections.      No change in
                                                    regulatory
                                                    requirement.
265.73(b)(6)..................  Monitoring,        Maintain until
                                 testing, or        closure of the
                                 analytical data    facility.
                                 and corrective    Maintain for three
                                 action.            years, except for
                                                    records and results
                                                    pertaining to ground-
                                                    water monitoring and
                                                    cleanup, and
                                                    response action
                                                    plans for surface
                                                    impoundments, waste
                                                    piles, and landfills
                                                    which must be
                                                    maintained until
                                                    closure of the
                                                    facility.
265.73(b)(7)..................  All closure cost   Maintain until
                                 estimates for      closure of the
                                 disposal           facility.
                                 facilities, all   No change in
                                 post-closure       regulatory
                                 cost estimates.    requirement.
265.73(b)(8)..................  Records of the     Maintain until
                                 quantities and     closure of the
                                 date of            facility.
                                 placement for     No change in
                                 each shipment of   regulatory
                                 the hazardous      requirement.
                                 waste place in
                                 land disposal
                                 units under an
                                 extension to the
                                 effective date
                                 of any land
                                 disposal
                                 restriction
                                 granted.
265.73(b)(9)..................  For off-site       Maintain until
                                 treatment          closure of the
                                 facility,          facility.
                                 notices and       Maintain for three
                                 certifications     years.
                                 from generator.
265.73(b)(10).................  For on-site        Maintain until
                                 treatment          closure of the
                                 facility,          facility.
                                 notices and       Maintain for three
                                 certifications.    years.
265.73(b)(11).................  For off-site land  Maintain until
                                 disposal           closure of the
                                 facility,          facility.
                                 notices and       Maintain for three
                                 certifications     years.
                                 from the
                                 generator.
265.73(b)(12).................  For on-site land   Maintain until
                                 disposal           closure of the
                                 facility,          facility.
                                 notices and       Maintain for three
                                 certifications.    years.
265.73(b)(13).................  For off-site       Maintain until
                                 storage            closure of the
                                 facility,          facility.
                                 notices and       Maintain for three
                                 certifications     years.
                                 from generator.
265.73(b)(14).................  For on-site        Maintain until
                                 storage            closure of the
                                 facility,          facility.
                                 notices and       Maintain for three
                                 certifications.    years.
265.73(b)(15).................  Monitoring,        Maintain until
                                 testing, or        closure of the
                                 analytical data,   facility.
                                 and corrective    No change in
                                 action where       regulatory
                                 required by Sec.   requirement.
                                  Sec.   265.90,
                                 265.93(d)(2),
                                 and 265.93(d)(5)
                                 of this part and
                                 certifications
                                 as required by
                                 Sec.
                                 265.196(f).
266.103(d)....................  Periodic           Every three years.
                                 Recertifications  Every five years.
                                 . The owner or
                                 operator must
                                 conduct
                                 compliance
                                 testing and
                                 submit to the
                                 Director a
                                 recertification
                                 of compliance
                                 under provisions
                                 of paragraph (c)
                                 of this section
                                 within five
                                 years from
                                 submitting the
                                 previous
                                 certification or
                                 recertification.
                                 If the owner or
                                 operator seeks
                                 to recertify
                                 compliance under
                                 new operating
                                 conditions, he/
                                 she must comply
                                 with the
                                 requirements of
                                 paragraph (c)(8)
                                 of this section.
266.103(k)....................  Interim status     Maintain until
                                 standards for      closure of the
                                 burners:           facility.
                                 recordkeeping.    Maintain for five
                                                    years.
------------------------------------------------------------------------

B. Changes to the Professional Engineer Certification Requirements

    Throughout the RCRA regulations, there are various requirements for 
the services of an independent, qualified, registered, professional 
engineer to certify the effectiveness of the design and operation of 
various hazardous waste management units. We proposed to add Certified 
Hazardous Materials Managers (CHMMs) as professionals qualified to make 
selected certifications. This proposed change was a result of comments 
received on our June 18, 1999 NODA (64 FR 32859). In response to this 
proposal, the Agency received significant comment, primarily requesting 
that we expand the category of persons allowed to provide the various 
certifications. Commenters argued that we were being arbitrary in 
proposing to allow only two professional disciplines (i.e., CHMMs and 
professional engineers) to certify hazardous waste management 
operations. Conversely, professional engineers strongly opposed the 
proposed change in the regulatory requirements. They suggested that

[[Page 16868]]

CHMMs were not qualified to certify the design, construction, and 
structural integrity of hazardous waste management units.
    In addition, numerous states opposed the change on the grounds that 
their state laws allow only licensed engineers to make these 
certifications. State comments also pointed out that state licensing 
boards can investigate complaints of negligence or incompetence, on the 
part of professional engineers, and may impose fines and other 
disciplinary actions such as cease-and-desist orders or license 
revocation. According to commenters, similar controls do not exist for 
other professions. This personal liability of the professional engineer 
is one of the reasons why state commenters supported the idea that RCRA 
certifications should only be done by licensed professional engineers.
    Other commenters suggested that, rather than deciding which 
professions are qualified to make certifications, we should establish 
an environmental professional performance standard based on membership 
in a recognized professional organization. In response to these 
comments, we solicited comment in our October 29, 2003 NODA to allow 
professionals accredited by organizations meeting the American Society 
for Testing and Materials (ASTM) E1929-98, Standard Practice for the 
Assessment of Certification Programs for Environmental Engineers: 
Accreditation Criteria to conduct a limited number of certifications, 
including: (1) Section 264.573(a)(4)(ii)(g), Drip Pads, Design and 
operating requirements; (2) Section 265.443(a)(4)(ii)(g), Drip Pads, 
Design and operating requirements; (3) Section 264.574(a), Drip Pads, 
Inspections; (4) Section 265.444(a), Drip Pads, Inspections; and (5) 
Section 266.111(e)(2), Boilers and Industrial Furnaces, Direct transfer 
equipment--requirements prior to meeting secondary containment 
requirements.\4\
---------------------------------------------------------------------------

    \4\ After publication of the October 29, 2003 NODA, (see 68 FR 
61662), EPA determined that the certification required by Sec.  
266.111(e)(2) had to be made by August 21, 1992. As such the Agency 
is not pursuing a change to this requirement in today's rulemaking, 
obviously because the date has passed.
---------------------------------------------------------------------------

    Comments to the change described in the NODA were mixed. Some 
commenters supported this change in qualifications for selected 
certifications, while a number of states and professional organizations 
still strongly opposed allowing anyone other than a professional 
engineer to perform these certifications. While the Agency believes 
that added flexibility to the RCRA regulations is a goal worth 
pursuing, in this case, we are persuaded by the arguments presented by 
states with regard to these certifications and are not going forward 
with these changes at this time. Certifications for drip pads involve 
certifying engineering designs, drawings, plans and other engineering 
details, involving structural and hydraulic and other functions. As 
such, we believe that while there may be professionals other than 
professional engineers qualified to make these certifications, it is 
imperative that the goals of human health and the environmental 
protection are maintained. In reviewing the comments, we are not 
convinced that all environmental professionals certified by the ASTM 
standard would be qualified to perform these engineering evaluations. 
To this end, we are not going forward with allowing the changes to the 
drip pad certification requirements that would allow environmental 
professionals recognized by a certification program that is compliant 
with ASTM E-1929-98 Standard Practice for the Assessment of 
Certification Programs for Environmental Professionals: Accreditation 
Criteria.
    Although the Agency was not persuaded that ASTM board certified 
environmental professionals, including CHMMs, should be allowed to make 
the required RCRA certifications that were the subject of this 
rulemaking, the Agency wants to make it clear that facilities are still 
permitted to utilize qualified professionals who may not be 
professional engineers in performing the analyses that underlie these 
certifications. Facilities can potentially lower their costs by 
utilizing the flexibility to employ others as part of the certification 
requirement. For example, as part of the closure and post closure 
requirements, some CHMMs may be qualified to make certain 
determinations associated with these certifications to determine 
whether operations at the site will minimize hazards.
    The Agency is sympathetic to the large number of comments by the 
CHMMs and other environmental professionals about unnecessary 
restrictions in the marketplace. However, EPA is retaining the 
professional engineering certification, in part, to allay state 
concerns about the need to monitor and control the activities of 
personnel that are now subject to state licensure control. Given, 
however, additional experience by the Agency with the utilization of 
other environmental professionals, EPA may re-examine this issue in the 
future.\5\
---------------------------------------------------------------------------

    \5\ For example, in the All Appropriate Inquiries (AAI) rule 
published on November 1, 2005, (70 CFR 66070) EPA sets standards for 
CERCLA liability protection by establishing criteria that 
prospective property owners must use in the inquiries they conduct 
into the previous ownership, uses, and environmental conditions of a 
property prior to acquiring the property. The AAI rule differs from 
the RCRA burden reduction rule in that AAI does not in any way 
require the environmental professional to render any judgment or 
opinion regarding RCRA or CERCLA compliance or liability. AAI 
requirements include research activities and a site investigation 
similar to a Phase I environmental site assessment. It does not 
include compliance evaluation or an assessment of engineering or 
technical requirements (which may inherently require the expertise 
of an engineer or geologist).
---------------------------------------------------------------------------

1. We Are Removing the ``Independent'' and ``Registered'' Requirements 
for Selected Certifications
    Some commenters to the proposed rule suggested that we change the 
certification requirements by amending the qualifications required for 
the certification from ``independent, qualified, registered, 
professional engineer'' to ``qualified professional engineer.'' That 
is, the commenters suggested it was not necessary for the professional 
engineer to be independent or registered. Commenters argued that the 
term ``qualified professional engineer'' retains the most important 
components of the requirement: (1) That the engineer be qualified to 
perform the task; and (2) that she or he be a professional engineer 
(following a code of ethics and the potential of losing his/her license 
for negligence).
    In the October 29, 2003 NODA (68 FR 61662), EPA also solicited 
comment on changing the qualifications for who can certify the design, 
operation and closure of specific hazardous waste management units from 
``independent, qualified, registered, professional engineer'' to 
``qualified professional engineer.'' We solicited comment on 
eliminating the requirement that the certifier be ``independent,'' 
reasoning that we could rely on the professional standards of the 
certifier to ensure accurate certifications. This could potentially 
save expenses for companies with in-house engineers, since they would 
not have to hire outside consultants. State commenters strongly argued 
that the word ``independent'' should be retained because an independent 
review and certification avoids any potential of conflict of interest. 
Commenters stated that an employee of a facility would more likely have 
a biased approach to review and certification, and that state agencies 
would have less confidence in the accuracy and quality of review and

[[Page 16869]]

certification. Furthermore, the commenters argued that the public would 
have reduced confidence in the accuracy and meaning of the engineering 
review and certification if it was conducted by an employee of the 
facility. The public would more likely suspect a conflict of interest 
and demand a more rigorous review by state agencies. Commenters also 
noted that a similar change, regarding whether to retain the term 
``independent'' for professional engineers certifying closure, was 
proposed by EPA on March 19, 1985 (50 FR 11074). After receiving public 
comment, a final rule was issued on May 2,1986 with the term 
``independent'' retained. In the preamble to the May 2, 1986 final 
rule, we stated that, because certification of final closure is the 
final step in the closure process and triggers the release of the owner 
or operator from financial responsibility requirements for closure and 
third party liability coverage requirements, we believed that the 
certification should be made by a person who is least subject to 
pressures to certify to the adequacy of a closure that, in fact, is not 
in accordance with the approved closure plan. Commenters also noted 
that in the October 9, 1991 Federal Register, EPA addressed concerns 
regarding proposed language that would have allowed a ``qualified 
party'' to perform closure and post closure certification. In that FR 
notice, we stated on page 51103:

    The Agency agrees with commenters that objective closure and 
post-closure certifications are essential for avoiding any potential 
conflicts of interest and ensuring protection of human health and 
the environment and that more specific requirements concerning the 
qualification of the certifying party are necessary to ensure the 
adequacy of the certification. We, therefore, are requiring in this 
final rule that certifications be obtained from independent, 
registered, professional engineers (i.e., registered professional 
engineers not in the employ of the owner or operator), consistent 
with requirements under subtitle C and other federally mandated 
certification programs (e.g., Clean Water Act grants).

    Upon further analysis and reflection, we have decided to delete the 
independent qualification for certification made by a professional 
engineer. EPA continues to believe that this proposed modification 
retains the most important requirements: That the engineer is qualified 
to perform the task and is a professional engineer (i.e., licensed to 
practice engineering under the title Professional Engineer.) We believe 
that a professional engineer, regardless of whether he/she is 
independent is able to give fair and technical review because of the 
programs established by the state licensing boards. It is not clear to 
us that an in-house engineer faces a greater economic temptation than 
an independent engineer seeking to cultivate an ongoing relationship 
with a client. This is a central mission of state licensing boards. If 
certifications are provided when the facts do not warrant 
certification, the professional engineer is subject to penalties, 
including the loss of license and the possibility of fines. 
Furthermore, we are convinced that the change to the certification 
requirements will allow facilities to reduce burden without 
compromising environmental safety by using in-house expertise. 
Professional engineers employed by a facility are more familiar with 
its own particular situation and are in a position to provide more on-
site review and oversight of the activity being certified.
    We also solicited comment on removing the term ``registered,'' 
explaining that based on our understanding of the term ``registered'' 
(one who is licensed by a state) the terms ``registered,'' ``licensed'' 
and ``professional'' mean the same thing in the case of certifying the 
design, operation and closure of hazardous waste management units. 
Thus, using the terms ``registered'' and ``professional'' when defining 
the qualification of an engineer, in this context, is redundant. While 
the majority of the comments supported the change, agreeing that the 
term ``registered'' appears to be redundant and could be removed, 
several commenters were opposed to making the change. These commenters 
argued that the word ``registered'' is necessary to prevent confusion 
in the field, particularly among generators, that a license or 
registration is required. The Agency is unconvinced by this argument 
and maintains that the use of ``registered'' and ``professional'' as 
qualifications for engineers making these certifications is redundant 
and should be simplified.
    As a final matter, we unintentionally failed to identify eight 
additional certification requirements that are part of this regulatory 
change, i.e., each contains one or a combination of the terms: 
independent, registered and/or professional when describing the 
qualifications of the engineer. These certifications include: (1) 
Section 264.193(h)(4)(i)(2), Tank Systems, Containment and detection of 
releases; (2) Section 265.193(h)(5)(i)(2), Tank Systems, Containment 
and detection of releases; (3) Section 264.554(c)(2), Staging Piles; 
(4) Section 264.1101(c)(2), Containment Buildings, Design and operating 
standards; (5) Section 265.1101(c)(2), Containment Buildings, Design 
and operating standards; (6) Section 270.14(a), Permit Application, 
Content of part B. General requirements; (7) Section 270.17(d) Permit 
Application, Specific part B information requirements for surface 
impoundments; and (8) Section 270.26(c)(15), Permit Application, 
Special part B information requirements for drip pads. EPA believes 
today's changes provide consistency to the certification requirements, 
i.e., removing the terms independent and registered. As such, we are 
finalizing these eight additional certification changes.
2. We Are Also Changing the Closure and Post-Closure Certification 
Requirements
    In the October 29, 2003 NODA (68 FR 61662), we also solicited 
comment on amending the qualifications for selected closure and post-
closure certifications to ``qualified professional engineer.'' These 
certifications included: (1) Section 264.115, Closure and Post-Closure, 
Certification of closure; (2) Section 265.115, Closure and Post-
Closure, Certification of closure; (3) Section 264.120, Closure and 
Post-Closure, Certification of completion of post-closure care; (4) 
Section 265.120, Closure and Post-Closure, Certification of completion 
of post-closure care; and (5) Section 264.280(b), Land Treatment, 
Closure and post-closure care.
    During the development of today's final rule, we discovered that we 
incorrectly stated the required qualifications for engineers providing 
the closure and post-closure certifications, and we failed to identify 
one additional certification, Sec.  265.280(e) Land Treatment, Closure 
and post-closure care, and six cross-reference citations to the 
original closure and post-closure certifications. These cross-
references are: (1) Section 264.143(i), Financial Assurance for 
Closure, Release of the owner or operator from the requirements of this 
section; (2) Section 265.143(h), Financial Assurance for Closure, 
Release of the owner or operator from the requirements of this section; 
(3) Section 264.145(i), Financial Assurance for Post-Closure, Release 
of the owner or operator from the requirements of this section; (4) 
Section 265.145(h), Financial Assurance for Post-Closure, Release of 
the owner or operator from the requirements of this section; (5) 
Section 264.147(e), Liability Requirements, Period of coverage; and (6) 
Section 265.147(e), Liability Requirements, Period of coverage.
    We incorrectly stated, in both the proposed rule and the October 
29, 2003

[[Page 16870]]

NODA (68 FR 61662), the regulatory requirements for these 
certifications. In both these notices, we stated that the regulatory 
language for closure and post-closure certifications require an 
``independent, qualified, registered, professional engineer'' to make 
the certifications. This is incorrect. The regulatory language for 
these certifications does not include the word ``qualified;'' the 
certifications language states that the certification must be made by 
an ``independent, registered, professional engineer.'' Hence our 
proposed regulatory change to ``qualified professional engineer'' for 
these certifications was inaccurate and inconsistent with our other 
proposed certification requirements. In our view, this error was minor 
and does not change our position regarding the redundancy of using both 
``registered'' and ``professional,'' when defining the necessary 
certification qualifications. This error also does not change our 
position that all certifications should be conducted by a ``qualified 
professional engineer'' i.e., one that is qualified to perform the task 
and is a professional engineer (licensed/registered by the state and 
following a code of ethics and the potential of losing his/her license 
for negligence). As such, we are today amending all the closure and 
post-closure certification requirements to require qualified 
professional engineers to certify closure and post-closure.
    Tables 4 and 5 identify the certifications that we are amending in 
today's rule for permitted and interim status treatment, storage and 
disposal facilities as needing a qualified (as in ``qualified to 
perform the task'') professional engineer.\6\
---------------------------------------------------------------------------

    \6\ In Sec. Sec.  264.192(b) and 265.192(b), certifications may 
also be done by an independent, qualified installation inspector. 
Similarly, in Sec.  264.280(b), this certification may be done by an 
independent, qualified soil scientist, in lieu of a qualified 
professional engineer.

 Table 4.--Permitted Treatment, Storage, and Disposal Facilities Needing
        RCRA Certifications by a Qualified Professional Engineer
------------------------------------------------------------------------
                                   New RCRA certification requirement
         CFR section                (i.e., dropping ``registered'')
------------------------------------------------------------------------
264.115......................  Closure and Post-Closure. Certification
                                of closure.
264.120......................  Closure and Post-Closure. Certification
                                of completion of post-closure care.
264.143(i)...................  Financial Assurance for Closure. Release
                                of the owner or operator from the
                                requirements of this section.
264.145(i)...................  Financial Assurance for Post-Closure.
                                Release of the owner or operator from
                                the requirements of this section.
264.147(e)...................  Liability Requirements. Period of
                                coverage.
264.191(a), (b)(5)(ii).......  Tank Systems. Assessment of existing tank
                                system's integrity.
264.192(a), (b)..............  Tank Systems. Design and installation of
                                new tank systems or components.
264.193(h)(4)(i)(2)..........  Tank Systems. Containment and detection
                                of releases.
264.196(f)...................  Tank systems. Response to leaks or spills
                                and disposition of leaking or unfit-for-
                                use tank systems.
264.280(b)...................  Land Treatment. Closure and post closure
                                care.
264.554(c)(2)................  Staging Piles.
264.571(a),(b),(c)...........  Drip Pads. Assessment of existing drip
                                pad integrity.
264.573(a)(4)(ii)............  Drip Pads. Design and Operating
                                Requirements.
264.573(g)...................  Drip Pads. Design and Operating
                                Requirements.
264.574(a)...................  Drip Pads. Inspections.
264.1101(c)(2)...............  Containment Buildings. Design and
                                operating standards.
270.14(a)....................  Permit Application. Content of part B.
                                General requirements.
270.16(a)....................  Permit Application. Specific part B
                                information requirements for tank
                                systems.
270.26(c)(15)................  Permit Application. Specific part B
                                information requirements for drip pads.
------------------------------------------------------------------------


   Table 5.--Interim Status Treatment, Storage and Disposal Facilities
    Needing RCRA Certifications by a Qualified Professional Engineer
------------------------------------------------------------------------
                                   New RCRA certification requirement
         CFR section                (i.e., dropping ``registered'')
------------------------------------------------------------------------
265.115......................  Closure and Post-Closure. Certification
                                of closure.
265.120......................  Closure and Post-Closure. Certification
                                of completion of post-closure care.
265.143(h)...................  Financial Assurance for Closure. Release
                                of the owner or operator from the
                                requirements of this section.
265.145(h)...................  Financial Assurance for Post-Closure.
                                Release of the owner or operator from
                                the requirements of this section.
265.147(e)...................  Liability Requirements. Period of
                                coverage.
265.191(a), (b)(5)(ii).......  Tank Systems. Assessment of existing tank
                                system's integrity.
265.192(a), (b)..............  Tank Systems. Design and installation of
                                new tank systems or components.
265.193(h)(5)(i)(2)..........  Tank Systems. Containment and detection
                                of releases.
265.196(f)...................  Tank Systems. Response to leaks or spills
                                and disposition of leaking or unfit-for-
                                use tank systems.
265.280(e)...................  Land Treatment. Closure and post closure
                                care.
265.441(a), (b),(c)..........  Drip Pads. Assessment of existing drip
                                pad integrity.
265.443(a)(4)(ii)............  Drip Pads. Design and Operating
                                Requirements.
265.443(g)...................  Drip Pads. Design and Operating
                                Requirements.
265.444(a)...................  Drip Pads. Inspections.
265.1101(c)(2)...............  Containment Buildings. Design and
                                operating standards.
270.14(a)....................  Permit Application. Content of part B.
                                General requirements.
270.16(a)....................  Permit Application. Specific part B
                                information requirements for tank
                                systems.
270.26(c)(15)................  Permit Application. Special part B
                                information requirements for drip pads.
------------------------------------------------------------------------


[[Page 16871]]

C. Owners and Operators of Hazardous Waste Treatment, Storage, and 
Disposal Facilities Have an Option of Following the Integrated 
Contingency Plan Guidance

    We are amending Sec. Sec.  264.52(b) and 265.52(b) of the RCRA 
regulations to provide owners and operators of hazardous waste 
treatment, storage, and disposal facilities the option of developing 
one contingency plan. EPA recommends that the plan be based on the 
integrated contingency plan guidance.\7\ This guidance provides an 
excellent set of considerations for consolidating the multiple 
contingency plans that facilities have to prepare to comply with 
various government regulations. The use of a single plan per facility 
will eliminate the confusion for facilities that must decide which of 
the contingency plans is applicable to a particular emergency. In 
addition, a single plan will provide ``first responders'' (e.g., 
firemen) with a mechanism for complying with multiple regulatory 
requirements. The adoption of a standard plan should ease the burden of 
coordination with local emergency planning committees.
---------------------------------------------------------------------------

    \7\ In 1996, EPA, in conjunction with the Department of 
Transportation, the Department of the Interior, and the Department 
of Labor, issued the Integrated Contingency Plan Guidance. This 
guidance provides a mechanism for consolidating the multiple 
contingency plans that facilities have to prepare to comply with 
various government regulations. Owners and operators of hazardous 
waste facilities can develop one contingency plan based on this 
Guidance. The Integrated Contingency Plan can be found at 61 FR 
28641, June 5, 1996 or on the Internet at http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/serc-lepc-publications.htm.
---------------------------------------------------------------------------

    Today's rule clarifies our regulations (see Sec. Sec.  264.52 and 
265.52) by specifically authorizing combined plans, as well as 
clarifying that when modifications are made to non-RCRA provisions in 
an integrated contingency plan, the changes do not trigger the need for 
a RCRA permit modification.

D. Owners and Operators of Hazardous Waste Treatment, Storage, and 
Disposal Facilities Have an Option To Follow the RCRA or the 
Occupational Safety and Health Administration (OSHA) Standards for 
Emergency Response Training

    We are revising Sec. Sec.  264.16 and 265.16 to eliminate redundant 
emergency response training requirements under OSHA and RCRA 
regulations while still ensuring protectiveness.
    EPA and the Occupational Safety and Health Administration (OSHA) 
have both promulgated regulations addressing worker activities and 
training at hazardous waste management facilities. While EPA's 
hazardous waste regulations focus on facility operations, worker 
training, OSHA focuses on worker safety. Both agencies require worker 
training.
    While we were conducting our own review of potential overlaps 
between EPA and OSHA regulations, the Government Accountability Office 
\8\ published in October 2000 a study on the issue. GAO suggested that 
the overlap in emergency training requirements diminishes the 
efficiency of the facility and creates unnecessary compliance costs. 
The GAO study pointed out that OSHA's regulations have specific 
training requirements for RCRA-permitted facilities to teach hazardous 
waste workers how to respond to emergencies under 29 CFR 1910.120(p). 
With the support of the GAO findings, EPA proposed to eliminate the 
RCRA emergency response training requirements in favor of the OSHA 
requirements.
---------------------------------------------------------------------------

    \8\ Formerly the United States General Accounting Office.
---------------------------------------------------------------------------

    While we received comments in support of the proposal, other 
commenters expressed particular concern that two of the RCRA emergency 
response training requirements are not covered in OSHA's requirements. 
(1) understanding key parameters for automatic waste feed cut-off 
systems; and (2) how to respond to ground-water contamination 
incidents. These commenters believe that the deletion of these two 
requirements would endanger the environment and human health in the 
area of RCRA facilities, in that adhering only to the OSHA requirements 
would mean that workers would not be trained in these areas.
    This, however, is not EPA's intention. The final rule has been 
written to ensure that RCRA facilities are not required to provide 
separate training. We also note that facilities exempted from RCRA 
emergency response training would still have to comply with Sec. Sec.  
264.16(a)(1) and 265.16(a)(1), which state: ``Facility personnel must 
successfully complete a program of classroom instruction or on-the-job-
training that teaches them to perform their duties in a way that 
ensures the facility's compliance with the requirements of this part.''
    OSHA's 29 CFR 1910.120 regulations require that employees 
understand and be able to perform the standard operating procedures 
that are part of their daily work. OSHA's 29 CFR 1910.38 Emergency 
Action Plan requirements include mandated training in procedures to be 
followed by employees who operate critical plant operations (such as 
responding to ground-water contamination incidents) during a spill or 
other emergency.
    Other commenters opposed the proposal because OSHA's 29 CFR 1910 
requirements are not as comprehensive as the RCRA requirements 
regarding the universe of facilities. Specifically, they stated that 
OSHA's regulations are not required for all hazardous waste generators 
(e.g., conditionally exempt small quantity generators under Sec.  261.5 
and small quantity generators under Sec.  262.34) and certain 
treatment, storage, disposal facilities (e.g., municipal, state and 
federal owned and operated facilities.) We agree, and facilities not 
subject to OSHA training requirements would have to comply with the 
RCRA training requirements.
    To ensure that all facilities are covered and that there are no 
gaps in the emergency response training requirements, we are providing 
flexibility by allowing facilities to eliminate redundant emergency 
response training requirements under RCRA and OSHA requirements (as 
opposed to the proposed rule's approach of requiring facilities to 
follow only the OSHA regulations). For example, if a facility can meet 
all of the RCRA emergency response training requirements through an 
OSHA training course, we would consider the facility in compliance with 
the regulation. On the other hand, if a facility cannot meet the 
emergency response training requirements through an OSHA training 
course, then it would be incumbent upon that facility to address any 
gaps (for example, if OSHA did not include automatic waste feed cut-off 
training, there would not be a problem as long as appropriate training 
occurs, such as combustor staff receives this training as part of its 
RCRA training.) Facilities not subject to OSHA training requirements 
would have to comply with the RCRA training requirements. We believe 
that this is a reasonable accommodation for all facilities.
    Generators and owners/operators of treatment, storage, and disposal 
facilities should work with the appropriate permitting and/or 
enforcement authority to ensure that the approach they take in 
developing an emergency response training program is in compliance with 
the requirements of Sec. Sec.  264.16 and 265.16.

[[Page 16872]]

E. We Are Clarifying Selected Requirements Under RCRA's Land Disposal 
Restrictions and Eliminating Obsolete Regulatory Language

1. We Are Clarifying the Regulatory Language on the Land Disposal 
Restrictions Generator Waste Determination
    We proposed eliminating Sec.  268.7(a)(1) that requires, among 
other things, that generators conduct a waste determination for 
purposes of complying with the Land Disposal Restrictions (LDRs). 
Section 268.7(a)(1) requires generators to determine if hazardous waste 
must be treated prior to land disposal. This determination can be made 
either through testing or using the generator's knowledge of the 
waste's properties and constituents. We suggested that a combination of 
two other requirements provided the same safeguards as Sec.  
268.7(a)(1), making it redundant. First, a determination of whether a 
waste is hazardous is required by 40 CFR 262.11, which says that 
generators of solid waste must determine whether a waste is hazardous. 
Second, Sec.  264.13(a)(1) requires treatment, storage, and disposal 
facilities (TSDFs) to perform a general waste analysis to determine 
``all of the information which must be known to treat, store, or 
dispose of the waste in accordance with this Part and Part 268 of this 
chapter''. We suggested that these other determinations are sufficient 
to assure that a waste is properly characterized for achieving 
compliance with the LDRs.
    Some commenters supported deleting this waste analysis requirement, 
stating, generally, that they supported the Agency's efforts to reduce 
redundant testing requirements. We agree with these comments with 
respect to reducing redundant testing requirements and are adding a 
cross reference in Sec.  268.7(a)(1) to Sec.  262.11, in order to 
clarify that these two generator waste analysis functions can be 
performed concurrently, thus avoiding redundant waste analysis.
    Commenters who opposed deleting the generator LDR waste analysis 
requirement, however, were persuasive in their argument that the 
deletion of Sec.  268.7(a)(1) would not really result in burden 
reduction. Rather, it would merely shift the burden from the generator 
to the TSDF. While TSDFs have a separate LDR waste analysis requirement 
under Sec.  264.13(a)(1), they often rely--at least in part--on 
determinations or information provided by the generator.
    Commenters further asserted that if TSDFs have to assume full 
responsibility for the LDR waste analysis requirement, it would be more 
expensive overall, because generators can use their knowledge of the 
waste in determining how LDRs apply to a waste, while the TSDF would 
not have that background and would have to perform much more extensive 
waste analysis.
    We agree with these comments, and have determined that we need to 
maintain the LDR generator waste analysis requirement of Sec.  
268.7(a)(1). Thus, today's rule, rather than eliminating paragraph 
Sec.  268.7(a)(1), amends paragraph Sec.  268.7(a)(1), to avoid 
duplication and clarify that the two generator waste analysis functions 
can be performed concurrently. However, in order to provide maximum 
flexibility to generators, we also are clarifying that if a generator 
does not want to determine, based on waste analysis or knowledge of the 
waste, whether the waste must be treated, he may assume that he is 
subject to the full array of LDR requirements. The generator then must 
send the waste to a RCRA-permitted hazardous waste treatment facility 
where the treatment facility must make the determination when the waste 
has met the treatment standards of LDR (possibly even upon receipt as 
generated.) A conforming change is also being made to the notification 
in Sec.  268.7(a)(2) for such cases.
2. We Are Clarifying the Regulatory Language on the Land Disposal 
Restrictions Characteristic Waste Determination Requirement
    We proposed to eliminate the separate waste analysis requirement 
(Sec.  268.9(a)) for generators of characteristic hazardous wastes 
under the land disposal restrictions, in order to parallel the proposed 
changes to Sec.  268.7(a)(1) that are discussed above.
    Some commenters supported deleting this waste analysis requirement, 
stating, generally, that they supported the Agency's efforts to reduce 
redundant testing requirements. We agree with these comments with 
respect to reducing redundant testing requirements and are adding a 
cross reference in Sec.  268.9(a) to Sec.  262.11, in order to clarify 
that these two generator waste analysis functions can be performed 
concurrently, thus avoiding redundant waste analysis.
    Commenters who opposed deleting the generator LDR waste analysis 
requirement, however, were persuasive in their argument that the 
deletion of Sec.  268.9(a) would not really result in burden reduction. 
Rather, it would merely shift the burden from the generator to the 
TSDF. While TSDFs have a separate LDR waste analysis requirement under 
Sec.  264.13(a)(1), they often rely--at least in part--on 
determinations or information provided by the generator. Commenters 
further asserted that if TSDFs have to assume full responsibility for 
the LDR waste analysis requirement, it would be more expensive overall, 
because generators can use their knowledge of the waste in determining 
how LDRs apply to a waste, while the TSDF would not have that 
background and would have to perform much more extensive waste 
analysis. We agree with these comments, and have determined that we 
need to maintain the LDR generator waste analysis requirement of Sec.  
268.9(a). Thus, today's rule, rather than eliminating paragraph Sec.  
268.9(a), amends paragraph Sec.  268.9(a), to avoid duplication and 
clarify that the two generator waste analysis functions can be 
performed concurrently.
3. We Are Removing Obsolete Regulatory Language
    We are deleting seventeen RCRA requirements because they are no 
longer applicable or have an expiration date that has passed. Except as 
noted below, we received no negative comments on these proposed 
changes.
    In the proposed rule, we suggested amending Sec. Sec.  264.193(a) 
and 265.193(a), arguing that the language was obsolete. However, the 
proposal inadvertently deleted paragraphs (1) and (5) of Sec. Sec.  
264.193(a) and 265.193(a). These paragraphs specify what tanks are 
required to have secondary containment, and in the case of tanks 
managing newly regulated waste, how soon secondary containment must be 
provided. We are correcting this mistake by finalizing the deletion of 
only Sec. Sec.  264.193 (a)(2),(3), and (4) and 265.193(a)(2), (3), and 
(4) and clarifying the requirements in Sec. Sec.  264.193(a)(5) and 
265.193(a)(5). Tables 6, 7, and 8 summarize the changes being finalized 
today.

[[Page 16873]]



     Table 6.--Regulatory Clarification Being Made for Land Disposal
   Restrictions Testing, Tracking, and Recordkeeping Requirements for
              Generators, Treaters, and Disposal Facilities
------------------------------------------------------------------------
                                      Current regulatory language
                              ------------------------------------------
         CFR section           New regulatory language as amended by the
                                         Burden Reduction Rule
------------------------------------------------------------------------
268.7(a)(1)..................  (a) Requirements for generators: (1) A
                                generator of hazardous waste must
                                determine if the waste has to be treated
                                before it can be land disposed. This is
                                done by determining if the hazardous
                                waste meets the treatment standards in
                                Sec.   268.40, Sec.   268.45, or Sec.
                                268.49. This determination can be made
                                in either of two ways: testing the waste
                                or using knowledge of the waste. If the
                                generator tests the waste, testing would
                                normally determine the total
                                concentration of hazardous constituents,
                                or the concentration of hazardous
                                constituents in an extract of the waste
                                obtained using test method 1311 in
                                ``Test Methods of Evaluating Solid
                                Waste, Physical/Chemical Methods,'' EPA
                                Publication SW-846, as referenced in
                                Sec.   260.11 of this chapter, depending
                                on whether the treatment standard for
                                the waste is expressed as a total
                                concentration or concentration of
                                hazardous constituent in the waste's
                                extract. In addition, some hazardous
                                wastes must be treated by particular
                                treatment methods before they can be
                                land disposed and some soils are
                                contaminated by such hazardous wastes.
                                These treatment standards are also found
                                in Sec.   268.40, and are described in
                                detail in Sec.   268.42, Table 1. These
                                wastes, and solids contaminated with
                                such wastes, do not need to be tested
                                (however, if they are in a waste
                                mixture, other wastes with concentration
                                level treatment standards would have to
                                be tested). If a generator determines
                                they are managing a waste or soil
                                contamination with a waste, that
                                displays a hazardous characteristic of
                                ignitability, corrosivity, reactivity,
                                or toxicity, they must comply with the
                                special requirements of Sec.   268.9 of
                                this part in addition to any applicable
                                requirements in this section.
                               (a) Requirements for generators: (1) A
                                generator of hazardous waste must
                                determine if the waste has to be treated
                                before it can be land disposed. This is
                                done by determining if the hazardous
                                waste meets the treatment standards in
                                Sec.   268.40, Sec.   268.45, or Sec.
                                268.49. This determination can be made
                                concurrently with the hazardous waste
                                determination required in Sec.   262.11
                                of this chapter, in either of two ways:
                                testing the waste or using knowledge of
                                the waste. If the generator tests the
                                waste, testing would normally determine
                                the total concentration of hazardous
                                constituents, or the concentration of
                                hazardous constituents in an extract of
                                the waste obtained using test method
                                1311 in ``Test Methods of Evaluating
                                Solid Waste, Physical/Chemical
                                Methods,'' EPA Publication SW-846,
                                incorporated by reference (see Sec.
                                260.11 of this chapter), depending on
                                whether the treatment standard for the
                                waste is expressed as a total
                                concentration or concentration of
                                hazardous constituent in the waste's
                                extract. (Alternatively, the generator
                                must send the waste to a RCRA-permitted
                                hazardous waste treatment facility,
                                where the waste treatment facility must
                                comply with the requirements of Sec.
                                264.13 of this chapter and Sec.
                                268.7(b) of this part.) In addition,
                                some hazardous wastes must be treated by
                                particular treatment methods before they
                                can be land disposed and some soils are
                                contaminated by such hazardous wastes.
                                These treatment standards are also found
                                in Sec.   268.40, and are described in
                                detail in Sec.   268.42, Table 1. These
                                wastes, and solids contaminated with
                                such wastes, do not need to be tested
                                (however, if they are in a waste
                                mixture, other wastes with concentration
                                level treatment standards would have to
                                be tested). If a generator determines
                                they are managing a waste or soil with a
                                waste, that displays a hazardous
                                characteristic of ignitability,
                                corrosivity, reactivity, or toxicity,
                                they must comply with the special
                                requirements of Sec.   268.9 of this
                                part in addition to any applicable
                                requirements in this section.
268.7(a)(2)..................  If the waste or contaminated soil does
                                not meet the treatment standards: With
                                the initial shipment of waste to each
                                treatment or storage facility, the
                                generator must send a one-time written
                                notice to each treatment or storage
                                facility receiving the waste, and place
                                a copy in the file. The notice must
                                include the information in column
                                ``268.7(a)(2)'' of the Generator
                                Paperwork Requirements Table in
                                268.7(a)(4). No further notification is
                                necessary until such time that the waste
                                or facility change, in which case a new
                                notification must be sent and a copy
                                placed in the generator's file.
                               If the waste or contaminated soil does
                                not meet the treatment standards, or if
                                the generator chooses not to make the
                                determination of whether his waste must
                                be treated, with the initial shipment of
                                waste to each treatment or storage
                                facility, the generator must send a one-
                                time written notice to each treatment or
                                storage facility receiving the waste,
                                and place a copy in the file. The notice
                                must include the information in column
                                ``268.7(a)(2)'' of the Generator
                                Paperwork Requirements Table in
                                268.7(a)(4). (Alternatively, if the
                                generator chooses not to make the
                                determination of whether the waste must
                                be treated, the notification must
                                include the EPA Hazardous Waste Numbers
                                and Manifest Number of the first
                                shipment and must state ``This hazardous
                                waste may or may not be subject to the
                                LDR treatment standards. The treatment
                                facility must make the determination.'')
                                No further notification is necessary
                                until such time that the waste or
                                facility change, in which case a new
                                notification must be sent and a copy
                                placed in the generator's file.
268.9(a).....................  (a) The initial generator of a solid
                                waste must determine each EPA Hazardous
                                Waste Number (waste code) applicable to
                                the waste in order to determine the
                                applicable treatment standards under
                                subpart D of this part. For purposes of
                                part 268, the waste will carry the waste
                                code for any applicable listed waste
                                (Part 261, Subpart D). In addition,
                                where the waste exhibits a
                                characteristic, the waste will carry one
                                or more of the characteristic waste
                                codes (Part 261, Subpart C), except when
                                the treatment standard for the listed
                                waste operates in lieu of the treatment
                                standard for the characteristic waste,
                                as specified in paragraph (b) of this
                                section. If the generator determines
                                that their waste displays a hazardous
                                characteristic (and is not D001
                                nonwastewaters treated by CMBST, RORGS,
                                OR POLYM of Sec.   268.42, Table 1), the
                                generator must determine the underlying
                                hazardous constituents (as defined at
                                Sec.   268.2(i)) in the characteristic
                                waste.

[[Page 16874]]

 
                               (a) The initial generator of a solid
                                waste must determine each EPA Hazardous
                                Waste Number (waste code) applicable to
                                the waste in order to determine the
                                applicable treatment standards under
                                subpart D of this part. This
                                determination may be made concurrently
                                with the hazardous waste determination
                                required in Sec.   262.11 of this
                                chapter. For purposes of part 268, the
                                waste will carry the waste code for any
                                applicable listed waste (Part 261,
                                Subpart D). In addition, where the waste
                                exhibits a characteristic, the waste
                                will carry one or more of the
                                characteristic waste codes (Part 261,
                                Subpart C), except when the treatment
                                standard for the listed waste operates
                                in lieu of the treatment standard for
                                the characteristic waste, as specified
                                in paragraph (b) of this section. If the
                                generator determines that their waste
                                displays a hazardous characteristic (and
                                is not D001 nonwastewaters treated by
                                CMBST, RORGS, OR POLYM of Sec.   268.42,
                                Table 1), the generator must determine
                                the underlying hazardous constituents
                                (as defined at Sec.   268.2(i)) in the
                                characteristic waste.
------------------------------------------------------------------------


 Table 7.--Obsolete Regulatory Language Being Deleted for Permitted Treatment, Storage, and Disposal Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement    New regulatory requirement as amended by the
                                                                              Burden Reduction Rule
----------------------------------------------------------------------------------------------------------------
264.193(a)(2)........................  Tank Systems:            For all existing tank systems used to store or
                                        Containment and          treat EPA Hazardous Waste Nos. F020, F021,
                                        detection of releases.   F022, F023, F026, and F027, within two years
                                                                 after January 12, 1987.
                                                                Section 264.193(a)(2) is being deleted.
264.193(a)(3)........................  Tank Systems:            For those existing tank systems of known and
                                        Containment and          documented age, within two years after January
                                        detection of releases.   12, 1987 or when the tank system has reached 15
                                                                 years of age, whichever comes later.
                                                                Section 264.193(a)(3) is being deleted.
264.193(a)(4)........................  Tank Systems:            For those existing tank systems for which the
                                        Containment and          age cannot be documented, within eight years of
                                        detection of releases.   January 12, 1987; but if the age of the
                                                                 facility is greater than seven years, secondary
                                                                 containment must be provided by the time the
                                                                 facility reaches 15 years of age, or within two
                                                                 years of January 12, 1987, whichever comes
                                                                 later.
                                                                Section 264.193(a)(4) is being deleted.
264.251(c)...........................  Waste Piles: Design and  The owner or operator of each new waste pile
                                        operating requirements.  unit on which construction operating commences
                                                                 after January 29, 1992, each lateral expansion
                                                                 of a waste pile unit on which construction
                                                                 commences after July 29, 1992, and each
                                                                 replacement of an existing waste pile unit that
                                                                 is to commence reuse after July 29, 1992 must
                                                                 install two or more liners and a leachate
                                                                 collection and removal system above and between
                                                                 such liners. ``Construction commences'' is as
                                                                 defined in section 260.10 under ``existing
                                                                 facility''.
                                                                The owner or operator of each new waste pile
                                                                 unit, each lateral expansion of a waste pile
                                                                 unit, and each replacement of an existing waste
                                                                 pile unit must install two or more liners and a
                                                                 leachate collection and removal system above
                                                                 and between such liners.
264.314(a)...........................  Land fills: Special      Bulk or non-containerized liquid waste or waste
                                        requirements for bulk    containing free liquids may be placed in a
                                        and containerized        landfill prior to May 8, 1985.
                                        liquids.
                                                                Section 264.314(a) is being deleted.
264.314(b)...........................  Landfills: Special       Effective May 8, 1995, the placement of bulk or
                                        requirements for bulk    non-containerized liquid hazardous waste or
                                        and containerized        hazardous waste containing free liquids
                                        liquids.                 (whether or not sorbents have been added) in
                                                                 any landfill is prohibited.
                                                                The placement of bulk or non-containerized
                                                                 liquid hazardous waste or hazardous waste
                                                                 containing free liquids (whether or not
                                                                 sorbents have been added) in any landfill is
                                                                 prohibited.
264.314(f)...........................  Land Fills: Special      Effective November 8, 1985, the placement of any
                                        requirements for bulk    liquid which is not a hazardous waste in a
                                        and containerized        landfill is prohibited unless the owner or
                                        liquids.                 operator of such landfill demonstrates to the
                                                                 Regional Administrator, or the Regional
                                                                 Administrator determines that:
                                                                The placement of any liquid which is not a
                                                                 hazardous waste in a landfill is prohibited
                                                                 unless the owner or operator of such landfill
                                                                 demonstrates to the Regional Administrator, or
                                                                 the Regional Administrator determines that:
264.1100.............................  Containment Buildings.   The requirements of ths subpart apply to owners
                                        Applicability.           or operators who store or treat hazardous waste
                                                                 in units designed and operated under Sec.
                                                                 264.1101 of this subpart. These provisions will
                                                                 become effective on February 18, 1993, although
                                                                 owner or operator may notify the Regional
                                                                 Administrator of his intent to be bound by this
                                                                 subpart at an earlier time. The owner or
                                                                 operator is not subject to the definition of
                                                                 land disposal in RCRA Sec.   3004(k) provided
                                                                 that the unit:
                                                                The requirements of this subpart apply to owners
                                                                 or operators who store or treat hazardous waste
                                                                 in units designed and operated under Sec.
                                                                 264.1101 of this subpart. The owner or operator
                                                                 is not subject to the definition of land
                                                                 disposal in RCRA Sec.   3004(k) provided that
                                                                 the unit:

[[Page 16875]]

 
264.1101(c)(2).......................  Containment Buildings.   Obtain certification by a qualified registered
                                        Design and Operating     professional engineer that the containment
                                        Standards.               building design meets the requirements of
                                                                 paragraphs (a) through (c) of this section. For
                                                                 units placed into operation prior to February
                                                                 18, 1993, this certification must be placed in
                                                                 the facility's operating record (on-site files
                                                                 for generators who are not formally required to
                                                                 have operating records) no later than 60 days
                                                                 after the date of initial operation of the
                                                                 unit. After February 18, 1993, PE certification
                                                                 will be required prior to operation of the
                                                                 unit.
                                                                Obtain and keep on-site a certification by a
                                                                 qualified professional engineer that the
                                                                 containment building design meets the
                                                                 requirements of paragraphs (a), (b), and (c) of
                                                                 this section.
----------------------------------------------------------------------------------------------------------------


    Table 8.--Obsolete Regulatory Language Being Deleted for Interim Status Treatment, Storage, and Disposal
                                                   Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement    New regulatory requirement as amended by the
                                                                              Burden Reduction Rule
----------------------------------------------------------------------------------------------------------------
265.193(a)(2)........................  Tank Systems:            For all existing tank systems used to and store
                                        Containment and          or treat EPA Hazardous Waste Nos. F020, F021,
                                        detection of releases.   F022, F023, F026, and F027, within two years
                                                                 after January 12, 1987.
                                                                Section 265.193(a)(2) is being deleted.
265.193(a)(3)........................  Tank Systems:            For those existing tank systems of known and
                                        Containment and          documentable age, within two years after
                                        detection of releases.   January 12, 1987, or when the tank system has
                                                                 reached 15 years of age, whichever comes later.
                                                                Section 265.193(a)(3) is being deleted.
265.193(a)(4)........................  Tank Systems:            For those existing tank systems for which the
                                        Containment and          age cannot be documented, within eight years of
                                        detection of releases.   January 12, 1987; but if the age of the
                                                                 facility is greater than seven years, secondary
                                                                 containment must be provided by the time the
                                                                 facility reaches 15 years of age, or within two
                                                                 years of January 12, 1987, whichever comes
                                                                 later.
                                                                Section 265.193(a)(4) is being deleted.
265.314(a)...........................  Land Fills: Special      Bulk or non-containerized liquid waste or waste
                                        requirements for bulk    containing free liquids may be placed in a
                                        and containerized        landfill prior to May 8, 1985.
                                        liquids.
                                                                Section 265.314(a) is being deleted.
265.314(b)...........................  Land Fills: Special      Effective May 8, 1995, the placement of bulk or
                                        requirements for bulk    non-containerized liquid hazardous waste or
                                        and containerized        hazardous waste containing free liquids
                                        liquids.                 (whether or not sorbents have been added) in
                                                                 any landfill is prohibited.
                                                                The placement of bulk or non-containerized
                                                                 liquid hazardous waste or hazardous waste
                                                                 containing free liquids (whether or not
                                                                 sorbents have been added) in any landfill is
                                                                 prohibited.
265.314(g)...........................  Land Fills: Special      Effective November 8, 1985, the placement of any
                                        requirements for bulk    liquid which is not a hazardous waste in a
                                        and containerized        landfill is prohibited unless the owner or
                                        liquids.                 operator of such landfill demonstrates to the
                                                                 Regional Administrator, or the Regional
                                                                 Administrator determines that:
                                                                The placement of any liquid which is not a
                                                                 hazardous waste in a landfill is prohibited
                                                                 unless the owner or operator of such landfill
                                                                 demonstrates to the Regional Administrator, or
                                                                 the Regional Administrator determines that:
265.1100.............................  Containment Buildings.   The requirements of ths subpart apply to owners
                                        Applicability.           or operators who store or treat hazardous waste
                                                                 in units designed and operated under Sec.
                                                                 265.1101 of this subpart. These provisions will
                                                                 become effective on February 18, 1993, although
                                                                 owner or operator may notify the Regional
                                                                 Administrator of his intent to be bound by this
                                                                 subpart at an earlier time. The owner or
                                                                 operator is not subject to the definition of
                                                                 land disposal in RCRA Sec.   3004(k) provided
                                                                 that the unit:
                                                                The requirements of this subpart apply to owners
                                                                 or operators who store or treat hazardous waste
                                                                 in units designed and operated under Sec.
                                                                 265.1101 of this subpart. The owner or operator
                                                                 is not subject to the definition of land
                                                                 disposal in RCRA Sec.   3004(k) provided that
                                                                 the unit:
265.1101(c)(2).......................  Containment Buildings.   Obtain certification by a qualified registered
                                        Design and Operating     professional engineer that the containment
                                        Standards.               building design meets the requirements of
                                                                 paragraphs (a) through (c) of this section. For
                                                                 units placed into operation prior to February
                                                                 18, 1993, this certification must be placed in
                                                                 the facility's operating record (on-site files
                                                                 for generators who are not formally required to
                                                                 have operating records) no later than 60 days
                                                                 after the date of initial operation of the
                                                                 unit. After February 18, 1993, PE certification
                                                                 will be required prior to operation of the
                                                                 unit.
                                                                Obtain and keep on-site a certification by a
                                                                 qualified professional engineer that the
                                                                 containment building design meets the
                                                                 requirements of paragraphs (a), (b), and (c) of
                                                                 this section.

[[Page 16876]]

 
265.221(a)...........................  Surface Impoundments:    The owner or operator of each new surface
                                        Design and operating     impoundment unit on which construction
                                        requirements.            commences after January operating 29, 1992,
                                                                 each lateral expansion of a surface impoundment
                                                                 unit on which construction commences after July
                                                                 29, 1992, and each replacement of an existing
                                                                 surface impoundment unit that is to commence
                                                                 reuse after July 29, 1992 must install two or
                                                                 more liners and a leachate collection and
                                                                 removal system above and between such liners,
                                                                 and operate the leachate collection and removal
                                                                 systems, in accordance with Sec.   264.221(c),
                                                                 unless exempted under Sec.   264.221 (d), (e),
                                                                 or (f) of this chapter. ``Construction
                                                                 commences'' is as defined in Sec.   260.10
                                                                 under ``existing facility''.
                                                                The owner or operator of each new surface
                                                                 impoundment unit, each lateral expansion of a
                                                                 surface impoundment unit, and each replacement
                                                                 of an existing surface impoundment unit must
                                                                 install two or more liners and a leachate
                                                                 collection and removal system above and between
                                                                 such liners, and operate the leachate
                                                                 collection and removal systems, in accordance
                                                                 with Sec.   264.221(c), unless exempted under
                                                                 Sec.   264.221(d), (e), or (f) of this chapter.
265.301(a)...........................  Land Fills: Design and   The owner or operator of each new and operating
                                        operating requirements.  landfill unit on which construction commences
                                                                 after January 29, 1992, each lateral expansion
                                                                 of a landfill unit on which construction
                                                                 commences after July 29, 1992, and each
                                                                 replacement of an existing landfill unit that
                                                                 is to commence reuse after July 29, 1992 must
                                                                 install two or more liners and a leachate
                                                                 collection and removal system above and between
                                                                 such liners, and operate the leachate
                                                                 collection and removal systems, in accordance
                                                                 with Sec.   264.301 (d), (e), or (f) of this
                                                                 chapter. ``Construction commences'' is as
                                                                 defined in Sec.   260.10 under ``existing
                                                                 facility.''
                                                                The owner or operator of each new landfill unit,
                                                                 each lateral expansion of a landfill unit, and
                                                                 each replacement of an existing landfill unit
                                                                 must install two or more liners and a leachate
                                                                 collection and removal system above and between
                                                                 such liners, and operate the leachate
                                                                 collection and removal system, in accordance
                                                                 with Sec.   264.301 (d), (e), or (f) of this
                                                                 chapter.
----------------------------------------------------------------------------------------------------------------

F. We Are Eliminating Selected Recordkeeping and Reporting Requirements 
That We Believe Provide Duplicative Information to EPA

1. We Are Eliminating the Requirement for Facilities To Notify That 
They Are in Compliance After a Release
    We received comments that both supported and opposed the 
elimination of the notifications required by Sec. Sec.  264.56(i) and 
265.56(i). These notifications require the facility owner or operator 
to notify the Regional Administrator and appropriate state and local 
authorities after an emergency action has taken place, and that the 
facility is in compliance with Sec. Sec.  264.56(h) and 265.56(h), 
respectively. Sections 264.56(h) and 265.56(h) require the facility 
emergency coordinator to ensure that no wastes that may be incompatible 
with the released material is treated, stored, or disposed of until 
cleanup procedures are completed, and that emergency equipment listed 
in the contingency plan is cleaned and fit for its intended use before 
operations are resumed. Several commenters generally supported the 
elimination of these notification provisions. Other commenters were 
opposed to eliminating these provisions because they thought that it 
was prudent for the regulatory agency to receive notification that a 
facility was ready to again manage hazardous waste after emergency 
measures were implemented and releases were cleaned up.
    We have decided to finalize the elimination of this notification 
provision. The Regional Administrator and appropriate state and local 
authorities will still be getting a report 15 days after the emergency 
incident (as required in Sec. Sec.  264.56(j) and 265.56(j)). This 
report will specify the details of the incident that required 
implementation of the contingency plan. In most cases, the incident is 
likely to be relatively minor, and operations may even be ready for 
resumption with the 15 days. The actions to be taken (i.e., not 
handling incompatible waste and cleaning emergency equipment) are 
straightforward and it is not clear what value a simple notification 
would add. On the other hand, in major incidents the state would likely 
send personnel on-site and would be in a position to ensure that an 
appropriate response was taken before operations resumed. Therefore, we 
have decided to eliminate this notification requirement.
2. We Are Eliminating the Requirement for Facilities To Notify of Their 
Intent To Burn F020, F021, F022, F023, F026, and F027 Wastes
    We proposed to eliminate the notification of intent to burn 
hazardous dioxin/furan wastes listed as F020, F021, F022, F023, F026 
and F027. We viewed this as an unnecessary requirement because the 
facility is already permitted to burn these wastes, and there are 
already regulatory standards governing how the waste is burned.
    Commenters generally supported our proposed change. Therefore, we 
are removing the notification requirement.
    We inadvertently proposed to remove the entire paragraph (a)(2) of 
Sec.  264.343. We are merely removing the last sentence that referred 
to the notification of intent to burn listed dioxin/furan wastes.
3. We Are Eliminating the Requirement for Facilities To Notify if They 
Employ or Discontinue Use of the Alternative Valve Standard
    The regulations in Subpart BB of RCRA deal with air emission 
standards for equipment leaks. They apply to owners and operators of 
facilities that treat, store, or dispose of hazardous waste with 
equipment that contains or

[[Page 16877]]

contacts hazardous waste with organic concentrations of at least 10 
percent by weight. We proposed to eliminate the requirement for 
submitting notifications to the Regional Administrator with regard to 
the implementation of the alternative standards for valves in gas/vapor 
service or in light liquid service. Under the current regulations in 
Sec. Sec.  264.1061(b)(1), (d) and 265.1061(b)(1) and (d), if an owner 
or operator decides to either: (1) Implement the alternative standard 
or (2) discontinue the use of the alternative standard, a written 
notification must be sent to the Regional Administrator. In the 
proposed rule, we stated that these notifications were an unnecessary 
requirement because Sec. Sec.  264.1061(b)(2) and 265.1061(b)(2) 
require performance tests to be conducted (upon designation, annually, 
and as requested by the Regional Administrator) and their results kept 
on site once a decision is made to use the alternative valve standard. 
Several commenters disagreed with our position and suggested that 
facilities need to notify regulators when they elect to use alternative 
standards. Commenters further stated that without knowledge of the 
specification that facilities are using, regulators may not be able to 
effectively administer the standards and that this information may be 
required for regulators to address various permitting, compliance and 
enforcement actions at the facility. We remain unconvinced that these 
notifications are an essential element in our regulatory compliance 
regime. While we understand the commenters concerns, we believe that 
sufficient information and data will be available to the regulatory 
authority to monitor compliance with an alternative standard without 
these notifications.
4. We Are Eliminating the Requirement for Facilities To Notify if They 
Are Using Alternative Valve Work Practices
    We proposed to eliminate the requirement to submit a notification 
to the Regional Administrator before implementing one of the 
alternative work practices specified in Sec. Sec.  264.1062(b)(2) and 
(3) and 265.1062(b)(2) and (3). Under the current regulations, an owner 
or operator may elect to comply with one of two alternative work 
practices specified in the regulations. These alternatives are: (1) 
After two consecutive quarterly leak detection periods with the 
percentage of valves leaking equal to or less than 2 percent, an owner 
or operator may begin to skip one of the quarterly leak detection 
periods (i.e., monitor for leaks once every six months) for the valves; 
or (2) after five consecutive quarterly leak detection periods with the 
percentage of valves leaking equal to or less than 2 percent, an owner 
or operator may be begin to skip three of the quarterly leak detection 
periods ( i.e., monitor for leaks once every year) for the valves.
    The majority of the commenters agreed with the proposal. One 
commenter, however, argued that some technical review by the Agency 
should be warranted to approve this alternative standard. Upon review 
of the comment, we are unconvinced that the implementation of this 
alternative work practice needs technical review or oversight by the 
regulated authority. The alternative work practices described in the 
regulations are straightforward and the results of the leak detection 
periods will be maintained in the facility files as required under the 
recordkeeping requirements found in Sec.  264.1064. Therefore, we are 
eliminating the need for these notifications.

  Table 9.--Recordkeeping and Reporting Requirements Being Deleted for
         Permitted Treatment, Storage, and Disposal, Facilities
------------------------------------------------------------------------
         CFR section                     Regulatory requirement
------------------------------------------------------------------------
Deletion to 264.56...........  Contingency Plan and Emergency
                                Procedures. Emergency Procedures.
264.56(i)....................  Notify Regional Administrator that
                                facility is in compliance with Sec.
                                265.56(h) (which requires that no waste
                                that may be incompatible with the
                                released material will be treated,
                                stored, or disposed until cleanup is
                                completed, and emergency equipment is
                                made ready for use again) before
                                resuming operations.
Deletion to 264.343..........  Incinerators. Performance standards.
264.343(a)(2)................  Submit notification of intent to burn
                                hazardous wastes F020, F021, F022, F023,
                                F026, and F027.
Deletions to 264.1061........  Air Emission Standards for Equipment
                                Leaks. Alternative standards for valves
                                in gas/vapor service or in light liquid
                                service: percentage of valves allowed to
                                leak.
264.1061(b)(1)...............  Submit notification to implement the
                                alternative valve standard
264.1061(d)..................  Submit notification to discontinue the
                                alternative valve standard.
Deletion to 264.1062.........  Air Emission Standards for Equipment
                                Leaks. Alternative standards for valves
                                in gas/vapor service or in light liquid
                                service; skip period leak detection and
                                repair.
264.1062(a)(2)...............  Submit notification to implement
                                alternative work practices for valves.
------------------------------------------------------------------------


  Table 10.--Recordkeeping and Reporting Requirements Being Deleted for
       Interim Status Treatment, Storage, and Disposal Facilities
------------------------------------------------------------------------
         CFR section                     Regulatory requirement
------------------------------------------------------------------------
Deletion to 265.56...........  Contingency Plan and Emergency
                                Procedures. Emergency Procedures.
265.56(i)....................  Notify Regional Administrator that
                                facility is in compliance with Sec.
                                265.56(h) (which requires that no waste
                                that may be incompatible with the
                                released material will be treated,
                                stored, or disposed until cleanup is
                                completed, and emergency equipment is
                                made ready for use again) before
                                resuming operations.
Deletions to 265.1061........  Air Emission Standards for Equipment
                                Leaks. Alternative standards for valves
                                in gas/vapor service or in light liquid
                                service: percentage of valves allowed to
                                leak.
265.1061(b)(1)...............  Submit notification to implement the
                                alternative valve standard.
265.1061(d)..................  Submit notification to discontinue the
                                alternative valve standard.
Deletion to 265.1062.........  Air Emission Standards for Equipment
                                Leaks. Alternative standards for valves
                                in gas/vapor service or in light liquid
                                service; skip period leak detection and
                                repair.
265.1062(a)(2)...............  Submit notification to implement
                                alternative work practices for valves.
------------------------------------------------------------------------


[[Page 16878]]

G. We Are Permitting Decreased Inspection Frequency for Certain 
Hazardous Waste Management Units

    RCRA regulations require generators and treatment, storage and 
disposal facilities to self-inspect their facilities to ensure that 
they are in compliance. The regulations include both facility-wide and 
unit- and equipment-specific inspection standards. Some of RCRA's 
regulations specify the inspection frequency.
    Self-inspections are a vital component of an effective regulatory 
system. We recognize however, that the frequency of inspections has 
been a concern, and that in most cases (particularly where alternative 
approaches are employed) facilities are able to carry out formal 
inspections less frequently without sacrificing human health and 
environmental protection.
    The Agency proposed a reduction in tank self-inspection frequency 
from daily to weekly for large quantity generator tanks and treatment, 
storage and disposal facilities. We also solicited comment on allowing 
further reduced inspection frequencies, on a case-by-case basis (as 
approved by the Regional Administrator or the state Director, as the 
context requires, or an authorized representative), for containers, 
containment buildings, and tanks. However, this proposal required that 
these inspections occur at least monthly. In proposing these changes, 
we suggested that decreased inspection frequencies should be based on 
factors such as: (1) A demonstrated commitment by facility management 
to sound environmental practices; (2) achievement of good management 
practices over the history of the facility--that is, having a record of 
sustained compliance with environmental laws and permit requirements; 
(3) a demonstrated commitment to continued environmental improvement; 
(4) a demonstrated commitment to public outreach and performance 
reporting; (5) the installation of automatic monitoring devices at the 
facility; and (6) the risk posed by the waste managed in the unit.
    Many commenters supported the change from a daily to weekly 
inspection frequency for tanks. Commenters pointed out that the 
integrity and safety of hazardous waste tanks would not be compromised 
by reducing the daily inspection requirement to a weekly frequency. 
Several other commenters pointed out that hazardous waste storage 
tanks, which have secondary containment, are even more protectively 
designed than process tanks which handle the same chemicals. Other 
commenters, however, did not support any decrease in inspection 
frequency because of concerns that if inspection frequencies were 
decreased, the amount of time between a leak and its discovery would 
increase.
    With regard to extending even further the inspection frequency, to 
at least once each month on a case-by-case basis, we received comments 
from the states expressing concern over the added administrative burden 
in implementing case-by-case changes to inspection frequencies.
    Based on the comments from the proposed rule, we reconsidered 
whether to make case-by-case reduced inspections available to all 
generators because of the burden it might impose on authorized states 
to evaluate compliance with the criteria. In the October 29, 2003 NODA 
(68 FR 61662), we proposed reduced inspection frequencies, granted on a 
case-by-case basis, only for members of the National Environmental 
Performance Track Program, stating that, at a minimum, we believe that 
providing relief is appropriate for companies that are demonstrated 
``good performers.'' \9\
---------------------------------------------------------------------------

    \9\ The National Environmental Performance Track Program is a 
voluntary EPA program that recognizes and rewards private and public 
facilities that demonstrate strong environmental performance beyond 
current requirements. The program is based on the premise that 
government should complement its existing programs and regulations 
with new tools and strategies that not only protect people and the 
environment, but also capture opportunities for reducing cost and 
spurring innovation. For more information and a closer look at the 
activities and accomplishments of Performance Track members to date, 
as well as member's goals for future achievements, please refer to 
the program Web site at http://www.epa.gov/performancetrack.
---------------------------------------------------------------------------

    In the NODA, we also clarified that the reduced inspection 
frequency for tanks was intended to apply not just to the tanks, but to 
the complete tank systems, which include piping, pumps, valves and 
other associated equipment, also known as ancillary equipment (see 
Sec. Sec.  264.193(f) and 265.193(f)). We also asked for comment on 
expanding the change to include tanks, not only at large quantity 
generator sites, but small quantity generator sites as well (see Sec.  
265.201(c)). Furthermore, we solicited comment on extending the reduced 
inspection frequencies, granted on a case-by-case basis, to areas 
subject to spills (see Sec. Sec.  264.15(b)(4) and 265.15(b)(4)). We 
solicited comment on whether to grant this relief only to members of 
the National Environmental Performance Track Program in that we believe 
the risk from this change would be minimal at facilities that have met 
the requirements to be accepted into this program.
1. We Are Establishing Weekly Inspections for Certain Hazardous Waste 
Tank Systems at Permitted and Interim Status Facilities and at Large 
Quantity Generator Sites
    We are changing the self-inspection frequencies for tank systems 
from daily to weekly at permitted and interim status treatment, storage 
and disposal facilities, as well as for large quantity generator (LQG) 
tank systems that are operated under certain conditions. Changing 
inspections for small quantity generator (SQG) tanks is discussed in 
section III.G.2 of this preamble. Tank system, as defined in Sec.  
260.10, means a hazardous waste storage or treatment tank and its 
associated ancillary equipment and containment system. The requirements 
for permitted, interim status, and LQG tank systems appear in 
Sec. Sec.  264 and 265, subpart J. Daily inspections enable tank 
systems, subject to subpart J, to comply with the Sec. Sec.  264.193(c) 
and 265.193(c) requirements to detect leaks and spills within 24 hours.
    Our rule reduces inspections for: (1) Above ground portions of the 
tank system, if any, to detect corrosion or releases of waste; and (2) 
the construction materials and the area immediately surrounding the 
externally accessible portion of the tank system, including the 
secondary containment system (e.g., dikes) to detect erosion or signs 
of releases of hazardous waste (e.g., wet spots, dead vegetation). 
Reduced inspections will be allowed when either of two conditions are 
met: (1) Tank owners and operators employ leak detection equipment; or 
(2) in the absence of leak detection equipment, tank owners and 
operators employ established workplace practices that ensure that when 
any leaks or spills occur, they will be promptly identified, and 
promptly remediated. Owners and operators choosing one of these options 
to reduce inspection frequencies should document the option selected in 
their operating record. If the option selected is ``established 
workplace practices,'' the owner and/or operator should document those 
practices in the facility's operating record.
    Leak detection equipment must meet the respective requirements of 
Sec. Sec.  264.193(c)(3) and 265.193(c)(3). It should be designed to 
alert facility personnel promptly to the presence of any leaks or 
spills (e.g., alarm systems) so that emergency and/or remedial action 
can be taken. (The existing subpart J tank regulations require 
secondary containment systems to be

[[Page 16879]]

designed and operated to detect releases within 24 hours.) Leak 
detection systems were described in the proposed rule (67 FR 2527). 
But, while subpart J requires releases to be detected within 24 hours, 
the regulations do not specify the method of leak detection systems 
that must be used. For example, some facilities use daily visual 
inspections as a method of leak detection for their aboveground tanks, 
which is an acceptable practice. However, under the current tank system 
regulations, absent daily visual inspections, leak detection equipment 
that promptly notifies facility personnel of leaks or spills, must be 
used.
    In the absence of leak detection equipment, established workplace 
practices must ensure that when any leaks or spills occur, they will be 
promptly identified and promptly remediated in compliance with 
Sec. Sec.  264.193(c)(3) and (4) and 265.193(c)(3) and (4). When we say 
``established workplace practices,'' we mean practices that are 
documented and that describe how the facility is operated. (An example 
of established workplace practices could be the presence of an 
Environmental Management System that includes plans and practices to 
ensure that any releases are promptly identified, contained, and 
cleaned up.) Established workplace practices will most likely be put in 
place in situations, like that described by a state commenter, where 
aboveground tanks without leak detection exist and daily visual 
monitoring is the most common method of leak detection used. In cases 
such as these, lacking leak detection equipment, owners or operators 
would need to use workplace practices to identify releases, if they 
choose to reduce their inspection frequency.
    A number of commenters noted that reducing inspection frequencies 
of Sec. Sec.  264.195 and 265.195 should only be done if secondary 
containment is equipped with leak detection that notifies response 
personnel if releases occur. We partially agree with the commenters; 
however, as noted earlier, the rule also allows the facility operator 
to institute work practices to ensure prompt detection of a release. 
For example, if the tank system is in an area frequented by employees, 
where releases will be immediately obvious, all employees might be 
trained to watch for releases and report them. In other situations, an 
employee might be assigned to check secondary containment on a daily 
basis without conducting a full tank system ``inspection.''
    We received several comments from industry that the current daily 
inspection requirements are a large burden for the regulated community, 
and that weekly inspections would provide welcome relief. One commenter 
noted that the majority of printers that have tanks for collecting 
hazardous waste have small tanks and they are generally located 
indoors. Any release from the tank would be detected almost immediately 
and the extension of mandatory inspection frequency would greatly 
reduce the administrative burden associated with using these types of 
collection tanks. In this case, the facility might not have leak 
detection equipment, but standard work practices might require all 
employees to notify appropriate facility personnel if they observe a 
release from the tanks. Given the nature of the facility described by 
the commenter, this would likely constitute a work practice sufficient 
to ensure prompt detection of a release. Conversely, we also received 
other industry comments suggesting that while they liked the 
flexibility of the reduced inspections, they offered that they probably 
would not reduce their own inspection frequency.
    A state commenter argued that a basic principle of RCRA is 
prevention, including preventing a major release from a waste 
management unit and that the proposed rule appears primarily guided by 
a desire to project an image of providing a ``burden reduction'' for 
the regulated community, while disregarding prevention mechanisms. The 
commenter further stated that the chance of a release occurring and 
going undetected is greatly increased by allowing for weekly 
inspections of tank systems. The commenter believes the current 
requirement for daily inspections of tank systems provides a reasonable 
means to detect and minimize release of hazardous waste in a timely 
manner and the commenter further stated that the requirement for daily 
inspection of tank systems has not been a significant burden on the 
regulated community. We question this commenter's conclusion. By 
requiring owners and operators who wish to change the self-inspection 
frequencies for tanks, to use either leak detection or work place 
practices, we believe it is unlikely that releases from tanks will go 
undetected. The use of either leak detection systems or established 
workplace practices should assure that releases are promptly detected, 
and that the appropriate personnel are notified so that releases can be 
stopped and cleaned up. According to Sec.  264.196, upon detection of a 
leak, either through the leak detection system or visual observation, 
the owner or operator of the tank system must immediately stop the flow 
of hazardous waste, determine and rectify the cause of the leak, remove 
the waste, and contain releases to the environment.
    It is important to note that we are not changing the existing 
requirement, found in Sec.  264.195(a)(2) and Sec.  265.195(a)(3)), 
that data gathered from monitoring and leak detection equipment (e.g., 
pressure or temperature gauges, monitoring wells) must be inspected at 
least once each operating day to ensure that the tank system is being 
operated according to its design. We believe that this requirement is 
necessary in order to ensure compliance with Sec.  264.193(c) and Sec.  
265.193(c), which require the detection of leaks and spills within 24 
hours. In addition, keeping this requirement supports the new reduced 
inspection requirements that we are putting in place today, by 
providing further information about any releases that may occur.
    As a final matter, several commenters to the proposed rule 
suggested changing the inspection frequencies for ancillary equipment, 
specifically citing Sec. Sec.  264.193(f) and 265.193(f). (These 
requirements specify that ancillary equipment must have secondary 
containment, except in four instances, each involving daily visual 
inspections for leaks.) While most commenters provided little 
information to support making the change, one commenter did argue that 
if the proposed changes to Sec. Sec.  264.195 and 265.195 were 
finalized, the existing provisions in Sec. Sec.  264.193(f) and 
265.193(f), if not also changed, would be inconsistent.
    As background, the October 29, 2003 NODA requested comment on 
expanding the proposed rule to include ancillary equipment at LQG and 
SQG sites. The NODA referenced the regulations at Sec. Sec.  264.193(f) 
and 265.193(f), suggesting making the change would be consistent with 
our intent, as discussed in the proposed rule. Because today's rule 
changes the inspection frequencies for tank systems provided with 
secondary containment, where leak detection equipment or workplace 
practices are used, as discussed previously, any ancillary equipment 
associated with such tank systems would, therefore, be eligible for 
reduced inspections.
    We considered allowing ancillary equipment without secondary 
containment, as described at Sec. Sec.  264.193(f)(1)-(4) and 
265.193(f)(1)-(4), to be visually inspected weekly instead of daily. 
While most of the commenters supported this change,

[[Page 16880]]

upon further analysis we now conclude that expanding the rule to 
include ancillary equipment without secondary containment is not 
consistent with how the final rule addresses reduced inspection 
frequency for tank systems. The proposed rule discussed reducing 
inspection frequencies for tanks and tank systems because of, among 
other reasons, the presence of secondary containment. Allowing 
ancillary equipment without secondary containment to change from daily 
visual inspections to weekly visual inspections would not be consistent 
with our approach. We are including regulatory language in Sec. Sec.  
264.194(d) and 265.195(c) to say that ancillary equipment that is not 
provided with secondary containment, as described in Sec. Sec.  
264.193(f)(1)-(4), must be inspected at least once each operating day.
    We would like to note that there are instances where tanks and 
tanks systems are located within buildings, and where the building 
itself provides secondary containment. In cases where ancillary 
equipment is located inside a building that has been determined to 
provide secondary containment, and either leak detection systems or 
established workplace practices exist to identify leaks and spills, 
then the regulatory criteria are met and that ancillary equipment may 
be inspected weekly. For example, in a case where ancillary equipment 
inside a building does not have double walls or leak detection, this 
ancillary equipment would still be eligible for weekly inspections if 
the building serves as secondary containment, and if the area is 
frequented by employees whereby releases will be immediately obvious 
and the employees will promptly identify and remediate leaks and 
spills.
    In cases involving buildings serving as secondary containment, 
authorized states necessarily have the ultimate authority to make the 
determination that secondary containment requirements are met (taking 
into account all relevant site-specific considerations).
2. We Are Establishing Weekly Inspections for SQG Hazardous Waste Tank 
Systems With Secondary Containment
    While the previous discussion addressed changes in the inspection 
frequency for certain tank systems at permitted and interim status 
facilities, and LQG sites, today's rule also changes the inspection 
frequency for certain tank systems at SQG sites. The requirements for 
SQG tanks are found in 40 CFR 265.201(b).\10\
---------------------------------------------------------------------------

    \10\ The requirements for SQG tanks were finalized on March 24, 
1986 (51 FR 10146), and with the July 14, 1986 final tank 
regulations (51 FR 25422), codified at Sec.  265.201. Discussion in 
the March 1986 rule explains how the SQG requirements were 
developed, as distinct from the requirements for tanks at LQG sites. 
The rule states: ``Congress anticipated reducing administrative 
requirements, such as reporting and recordkeeping, as a means to 
reduce impacts on the 100-1000 kg/mo generators. Thus, EPA proposed 
to relieve these generators of some Part 262 standards that are 
administrative in nature, while retaining all existing technical 
standards. The relief was only provided to generators who accumulate 
on-site for the statutorily prescribed periods, because, given that 
the amount of waste accumulated would necessarily be limited, the 
relative risk from releases of such waste would be less than that 
from the unlimited amounts of waste accumulated by off-site 
facilities.'' (51 FR 10149).
---------------------------------------------------------------------------

    Under the current regulations, generators of between 100 and 1,000 
kg/mo accumulating hazardous waste in tanks must inspect at least once 
each operating day, if applicable; (1) discharge control equipment 
(e.g., waste feed cutoff systems, by-pass systems, and drainage 
systems); (2) data gathered from monitoring equipment (e.g., pressure 
and temperature gauges); and (3) the level of waste in the tank. In 
addition, at least weekly, generators must also inspect: (1) The 
construction materials of the tank to detect corrosion or leaking of 
fixtures or seams; and (2) the construction materials of, and the area 
immediately surrounding, discharge confinement structures (e.g., dikes) 
to detect erosion or obvious signs of leakage (e.g., wet spots or dead 
vegetation).
    While Sec.  265.201 does not require SQGs to be equipped with 
secondary containment, nor leak detection, under today's rule, SQG tank 
system owners and operators who wish to reduce their inspection 
frequency may do so if these tank systems are provided with secondary 
containment with either leak detection equipment or established 
workplace practices that ensure prompt detection of releases, as 
described above for other tank systems. Owners and operators choosing 
one of these options to reduce inspection frequencies should document 
the option selected in their operating record. If the option selected 
is ``established workplace practices,'' the owner and/or operator 
should document those practices in the facility's operating record.
    In the proposal, we received comments suggesting that we expand the 
proposed reduction in tank self-inspection frequency to include tanks 
located at small quantity generator sites (see Sec.  265.201(c)) and 
ancillary equipment (see Sec.  265.193(f)\11\). This change would 
affect only three of the five SQG inspection requirements: for 
discharge control equipment (Sec.  265.201(c)(1)); data gathered from 
monitoring equipment (Sec.  265.201(c)(2)); and monitoring the level of 
waste in the tank (Sec.  265.201(c)(3)), since the last two inspection 
requirements (Sec. Sec.  265.201(c)(4) and (c)(5)) are already done on 
a weekly basis. We stated in the NODA that changing these inspection 
frequencies would be consistent with our intent to establish weekly 
inspections for all tank systems.
---------------------------------------------------------------------------

    \11\ While the Agency solicited comment on reducing the 
inspection frequency for ancillary equipment for SQGs, the 
referenced regulation, Sec.  265.193(f) does not apply to tank 
systems at SQG sites, only the requirements found in Sec.  
265.201(c) apply to SQG tank systems. Therefore, the Agency is not 
pursuing changes to Sec.  265.193(f) that would affect SQGs. As 
discussed above, the regulatory changes we are making today apply to 
SQG tank systems, which include ancillary equipment.
---------------------------------------------------------------------------

    One state commenter argued that tanks can and frequently do fail 
abruptly and with little or no warning, losing most or all of their 
contents in a very short period of time and if the rule were 
promulgated as proposed, it might be a week or longer before leaks of 
any size were discovered and remediation begun. The commenter further 
reasoned that for those tanks without secondary containment (e.g., 
SQGs), waiting such a long time for remediation efforts may lead to 
extensive environmental damage. We acknowledge the commenter's concerns 
and support the rapid remediation of leaks; we believe that the 
controls we are promulgating today will adequately prevent such an 
occurrence, even for SQGs.
    One commenter did state that, although he did not object to 
allowing small quantity generators reduced tank inspection frequencies, 
he noted that reducing inspection frequencies will not provide any 
additional reduction in the recordkeeping/reporting burden for small 
quantity generators who are not subject to Sec. Sec.  264.15 and 265.15 
and are not required to maintain a schedule or a record of inspections. 
We agree that Sec.  265.201 does not require SQGs to record 
inspections. Burden reduction would come from the time saved (person-
hours) from reduced inspections.
    Several states were not in favor of reduced inspection frequency 
for small quantity generators. One commenter stated that EPA has not 
provided any data that suggest that the reduced frequency of tank 
inspections is as protective as the intent of the current standard 
which as stated in 51 FR 25454, July 14, 1986 is to ``* * * enable the 
detection of releases or potential

[[Page 16881]]

releases at the earliest possible time.'' Another commenter further 
argued that reduced tank inspection frequency should not be afforded to 
small quantity generators unless their tank systems are upgraded to 
meet additional standards and that currently SQGs only have to inspect 
their tank systems for proper operations controls daily. SQGs are not 
required to do any type of additional leak detection, except for the 
weekly requirements already in place. Since SQGs are not required to 
provide secondary containment, the operating day inspections assist in 
protecting from a release or potential release. Other commenters argued 
that if SQGs wish to receive this reduced inspection frequency, they 
should comply with the same secondary containment requirements as large 
quantity generators and install an automated leak detection equipment 
that alerts a person designated to respond. We agree, in part, with the 
commenters. SQG tanks historically have less stringent requirements 
than LQGs, permitted, and interim status tanks. But, while existing SQG 
tanks are not required to have secondary containment, in order to enjoy 
reduced inspection frequencies under today's rule, tanks must have 
secondary containment with leak detection, or have secondary 
containment and workplace practices in use that promptly identify leaks 
and spills.
3. We Are Allowing Members of the National Environmental Performance 
Track Program To Apply for an Adjustment to the Frequency of 
Inspections for Certain Hazardous Waste Units and Areas
    In addition to allowing a change in the inspection frequency for 
selected tank systems, we also proposed to allow on a case-by-case 
basis, less frequent self-inspections for tank systems, container 
storage areas, and containment buildings. Under our current 
regulations, container storage areas and containment buildings must be 
inspected weekly. (See Sec. Sec.  264.174, 265.174, 264.1101(c)(4), and 
265.1101(c)(4).)
    Based on comments received on the proposal, we reconsidered whether 
to make such a change available to all generators because of the burden 
it would impose on authorized states to evaluate compliance with the 
criteria. As stated in the October 29, 2003 NODA (68 FR 61662), we 
believe that providing relief is appropriate for companies that are 
demonstrated ``good performers'' and we solicited comment on limiting 
this provision to member companies of the National Environmental 
Performance Track Program, as well as extending reduced inspection 
frequencies, granted on a case-by-case basis, to areas subject to 
spills (see Sec.  264.15(b)(4)).
    In today's rule we are finalizing this provision--the ability to 
file a case-by-case application for further reduced self-inspection 
frequencies--to facilities that are members of the National 
Environmental Performance Track Program. Performance Track member 
facilities are provided the opportunity to reduce self-inspections of 
tank systems, containers, containment buildings, and areas subject to 
spills to a frequency of at least once each month.
    Performance Track members must apply to the regulatory agency for 
approval before implementing a reduced inspection frequency 
schedule.\12\ The Performance Track facility must submit an application 
to the regulatory authority identifying itself as a member of the 
National Environmental Performance Track Program and request a 
reduction in self inspection frequency. For those members that are also 
permitted treatment, storage and disposal facilities, the application 
must be in the form of a Class 1 permit modification with prior 
approval. The Performance Track member facility must request reduced 
inspections, for no less than once each month, for any of the waste 
management units identified in today's rule (including tank systems, 
containers, containment buildings, and areas subject to spills). (Only 
one application per Performance Track member facility is required.) 
After the application is received, the Director has 60 days to approve 
or deny the application, in writing. The Director also may choose to 
extend this 60 day deadline, if more time is needed to review the 
application (e.g., in the case where an on-site inspection is needed or 
a more in-depth analysis of the application is warranted.) If the 
application is approved, the notification will identify the management 
units approved for reduced frequency of inspections, as well as the 
time interval between inspections (at a minimum of one inspection each 
month.) This notice must be placed in the facility's operating record.
---------------------------------------------------------------------------

    \12\ In the proposed rule (67 FR at 2527), the Agency made 
reference to a commenter's suggestion that inspection frequency 
changes should be self-implementing. The example given by the 
commenter outlined an option where an inspection schedule should be 
deemed approved if EPA does not specifically deny the request in 
writing within 30 days. At that time, we stated that one of our 
principle objectives for this burden reduction change, was to ensure 
that the regulatory agencies made the decision to decrease 
inspection frequencies and as such, we were not considering self-
implementing alternatives. While we still maintain that regulatory 
agencies should make these decisions on a case-by-case basis, upon 
further consideration, we believe it is also important to streamline 
the application process by establishing a timetable for application/
permit modification review.
---------------------------------------------------------------------------

    The Performance Track member facility should consider the 
application approved after 60 days if the Director does not: (1) Deny 
the application, in writing; or (2) notify, in writing, the Performance 
Track member facility of an extension to the 60-day deadline. In these 
situations, the Performance Track member facility must adhere to the 
revised inspection schedule outlined in their application and keep a 
copy of the application in the facility's operating record.
    It is expected that Performance Track facilities would have an EMS 
providing sufficient oversight to prevent and detect leaks and spills. 
In addition, facilities that applied for Performance Track would have 
conducted an Environmental Management System (EMS) Independent 
Assessment.\13\ The assessment must determine whether the facility 
regularly monitors and measures its key operations that can have a 
significant impact on the environment, and records this information. 
Therefore, through the use of EMSs and workplace practices, we would 
expect Performance Track facilities to be able to prevent and detect 
leaks and spills. Providing Performance Track member facilities with 
the option for reduced inspection frequencies does not mean we are 
reducing the requirements for the owner or operator to detect leaks and 
spills; providing reduced inspection for Performance Track member 
facilities acknowledges that these facilities have established controls 
and procedures to prevent releases and to respond promptly if and when 
they occur. The Agency believes it is important to recognize the 
difference in the need for oversight of facilities that are top 
environmental performers which have developed comprehensive 
environmental management systems and who have a track record of 
effective self-oversight.
---------------------------------------------------------------------------

    \13\ For more information on the Independent Assessment Criteria 
for EMSs, see http://www.epa.gov/performancetrack/ind_assessment.htm.
---------------------------------------------------------------------------

    Any Performance Track member facility that discontinues its 
membership in Performance Track or is terminated from the program must 
immediately notify the Director, in writing of its change in status 
(i.e., they are no longer a Performance Track member facility). These 
facilities must revert back to the ``non-Performance

[[Page 16882]]

Track member'' inspection frequency within seven calendar days. The 
facility must place in their operating record a dated copy of this 
notification. In cases where the Performance Track member is a 
permitted TSDF, the Agency is requiring that the permit modification to 
allow the reduced inspection frequency contain a ``sunset'' clause, in 
case the facility's membership in Performance Track ends. If written 
without a ``sunset'' clause, an approved permit modification allowing a 
reduced inspection frequency could otherwise ``shield'' the facility 
from violation if it ceases to be a Performance Track member. 
Therefore, we are requiring that the Class 1 modification request 
contain specific language stating that the reduced frequency is for as 
long as the facility remains a Performance Track member. The language 
must say that if the facility ceases to be a Performance Track member 
facility, it must revert to the ``non-Performance Track'' inspection 
frequency within seven calendar days after membership in Performance 
Track ends.
    Sections a. through d. below discuss in more detail the Agency's 
basis for decisions on inspection frequency for areas subject to 
spills, containers, tank systems, and containment buildings at 
Performance Track member facilities.
    a. Performance Track: Reduced Inspection Frequency for Areas 
Subject to Spills. The general inspection requirements of Sec. Sec.  
264.15 and 265.14, require that areas subject to spills, such as 
loading and unloading areas, must be inspected daily, while in use. 
These inspections are to identify malfunctions and deterioration, 
operator errors, and discharges which may be causing--or be leading 
to--(1) a release of hazardous waste constituents to the environment, 
or (2) a threat to human health. In response to a comment in the 2002 
proposal, the October 29, 2003 NODA (68 FR 61662) considered reducing 
inspection frequencies, granted on a case-by-case basis, for areas 
subject to spills. We also solicited comment on whether to grant this 
relief only to Performance Track member facilities, stating that the 
risk from this change is minimal at facilities that have met the 
requirements to be accepted into the Performance Track Program. We 
received two comments on this issue; one commenter supported the 
proposal, and one did not . The commenter that opposed the proposal 
provided no explanation or justification for its position. The 
supporting commenter stated that activities that may cause spills 
``usually allow for the spills to be easily detected and quickly 
cleaned up. More frequent inspections are unlikely to result in quicker 
spill detection.''
    In general, we do not believe that such a change to the regulation 
is appropriate for all facilities, for the reasons laid out above. 
However, we believe the risk from this change is minimal at facilities 
that have met the requirements to be accepted into the National 
Environmental Performance Track Program. Therefore, we have decided to 
extend inspection frequencies for no less than once each month, at 
areas subject to spills, but only for facilities that are members of 
the National Environmental Performance Track Program that have received 
prior approval from the regulatory agency.
    b. Performance Track: Reduced Inspection Frequency for Containers.
    Sections 264.174 and 265.174 require owners or operators to 
inspect, at least weekly, areas where containers holding hazardous 
waste are stored, looking for leaking containers and for deterioration 
of containers and the containment system caused by corrosion or other 
factors. We proposed to allow case-by-case decreased inspection 
frequencies for containers.
    The October 29, 2003 NODA (68 FR 61662) addressed comments received 
on the 2002 proposal. Based on the comments from the proposal, the NODA 
reconsidered whether to make case-by-case reduced self-inspections 
available to all generators because of the burden it might impose on 
authorized states to evaluate compliance with the criteria. That is, 
making such a change available to all generators would likely impose a 
substantial burden on the states or EPA in order to evaluate whether an 
applicant facility met the criteria. Such a burden is clearly in 
opposition to the intent of today's rule. Finally, the Agency stated 
clearly that ``at a minimum, we believe that providing relief is 
appropriate for companies that are demonstrated good performers.'' (68 
FR 61665.)
    The Agency received comments on this issue that supported the 
application of this provision to Performance Track members. Other 
comments stated that this provision should be made available to all 
facilities with a demonstrated record of good compliance, with some 
type of demonstrated top performance, or by meeting the proposed 
criteria.
    The Agency considered all comments received on this issue and has 
decided to finalize a reduced self-inspection requirement to Sec. Sec.  
264.174 and 265.174 available only to members of the National 
Environmental Performance Track Program. The reason for this decision 
is that case-by-case determinations for all hazardous waste facilities 
would significantly increase the burden associated with providing this 
benefit to all facilities. Performance Track member facilities may 
apply to their regulatory agency for a reduction in self-inspection 
frequency, for no less thanonce each month, for containers and for 
areas where containers holding hazardous waste are stored.
    c. Performance Track: Reduced Inspection Frequency for Tank 
Systems. Today, we are changing the self-inspection frequencies for 
tank systems from daily to no less than once each month for tank 
systems, granted on a case-by-case basis, for members of the National 
Environmental Performance Track Program when operating under certain 
conditions.\14\ This includes Performance Track member facilities that 
are either permitted TSDFs, interim status TSDFs, large quantity 
generators (LQGs), and/or small quantity generators (SQGs).
---------------------------------------------------------------------------

    \14\ As previously discussed, we intended to include a broad 
applicability for tank systems in our proposed rule; however, the 
proposal did not clearly address the point. We clarified in the 
October 29, 2003 NODA (68 FR 61662) that the proposal was meant to 
apply not just to the tanks, but to the complete tank systems (i.e., 
ancillary equipment). Complete tank systems were defined as 
including piping, pumps, valves and other associated equipment. 
Commenters were generally supportive of this change. Therefore, we 
are applying this provision to complete tank systems, except to 
ancillary equipment without secondary containment as described at 
Sec. Sec.  264.193(f)(1)-(4) and 265.193(f)(1)-(4).
---------------------------------------------------------------------------

    Today's rule allows Performance Track member facilities to apply to 
the regulatory agency for reduced tank system self-inspection 
frequency, of no less than once each month when either of two 
conditions are met: (1) When tank owners and operators employ leak 
detection equipment, or (2) when in the absence of leak detection 
equipment, owners and operators of tank systems employ workplace 
practices that ensure that when any leaks or spills occur, they will be 
promptly identified and remediated. Performance Track member facilities 
choosing one of these options to reduce inspection frequencies, should 
identify the option selected as part of its application to the 
regulatory agency.
    Small quantity generator (SQG) tank systems are subject to separate 
requirements, found in 40 CFR 265.201. Today's rulemaking also allows 
National Environmental Performance Track members to apply to the 
regulatory agency for reduced self-inspection frequencies for SQG tank 
systems under Sec.  265.201(b) when they meet either one of the two 
conditions described above.
    d. Performance Track: Reduced Inspection Frequency for Containment

[[Page 16883]]

Buildings. We proposed to allow case-by-case decreased inspection 
frequencies for containment buildings. As stated generally above, the 
intent was to offer this provision only to the safest and best 
performing facilities. In the October 29, 2003 NODA (68 FR 61662), we 
solicited comment on whether to limit the reduced inspection frequency 
for containment buildings to member facilities of the National 
Environmental Performance Track Program. Again, for the same reasons 
stated above, we decided to limit Sec. Sec.  264.1101 and 265.1101 to 
Performance Track member facilities.

  Table 11.--Decreased Inspection Frequencies for Hazardous Waste Management Units at Permitted Hazardous Waste
                                                   Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement  New regulatory language as amended by the Burden
                                                                                 Reduction Rule
----------------------------------------------------------------------------------------------------------------
260.10...............................  Hazardous Waste          No regulatory definition currently exists.
                                        Management System:      Performance Track member facility means a
                                        Definitions.             facility which has been accepted by EPA for
                                                                 membership in the National Environmental
                                                                 Performance Track Program and is still a member
                                                                 of the Program. The National Environmental
                                                                 Performance Track Program is a voluntary,
                                                                 facility based, program for top environmental
                                                                 performers. Facility members must demonstrate a
                                                                 good record of compliance, past success in
                                                                 achieving environmental goals, and commit to
                                                                 future specific quantified environmental goals,
                                                                 environmental management systems, local
                                                                 community outreach, and annual reporting of
                                                                 measurable results.
264.15(b)(4).........................  General Facility         The frequency of inspection may vary for the
                                        Standards: General       items on the schedule. However, the frequency
                                        Inspection               should be based on the rate of deterioration of
                                        Requirements.            the equipment and the probability of an
                                                                 environmental or human health incident if the
                                                                 deterioration, malfunction, or any operator
                                                                 error goes undetected between inspections.
                                                                 Areas subject to spills, such as loading and
                                                                 unloading areas, must be inspected daily when
                                                                 in use. At a minimum, the inspection schedule
                                                                 must include the items and frequencies called
                                                                 for in Sec.  Sec.   264.174, 264.193, 264.195,
                                                                 264.226, 264.254, 264.278, 264.303, 264.347,
                                                                 264.602, 264.1033, 264.1052, 264.1053,
                                                                 264.1058, and 264.1083 through 264.1089 of this
                                                                 part, where applicable.
                                                                The frequency of inspection may vary for the
                                                                 items on the schedule. However, the frequency
                                                                 should be based on the rate of deterioration of
                                                                 the equipment and the probability of an
                                                                 environmental or human health incident if the
                                                                 deterioration, malfunction, or operator error
                                                                 goes undetected between inspections. Areas
                                                                 subject to spills, such as loading and
                                                                 unloading areas, must be inspected daily when
                                                                 in use, except for Performance Track member
                                                                 facilities, that may inspect at least once each
                                                                 month, upon approval by the Director, as
                                                                 described in paragraph (b)(5) of this section.
                                                                 At a minimum, the inspection schedule must
                                                                 include the items and frequencies called for in
                                                                 Sec.  Sec.   264.174, 264.193, 264.195,
                                                                 264.226, 264.254, 264.278, 264.303, 264.347,
                                                                 264.602, 264.1033, 264.1052, 264.1053,
                                                                 264.1058, and 264.1083 through 264.1089 of this
                                                                 part, where applicable.
264.15(b)(5).........................  General Facility         No regulatory language currently exists.
                                        Standards: General      Performance Track member facilities that choose
                                        Inspection               to reduce their inspection frequency must:
                                        Requirements.
                                                                (i) Submit a request for a Class I permit
                                                                 modification with prior approval to the
                                                                 Director. The modification request must
                                                                 identify the facility as a member of the
                                                                 National Environmental Performance Track
                                                                 Program and identify the management units for
                                                                 reduced inspections and the proposed frequency
                                                                 of inspections. The modification request must
                                                                 also specify, in writing, that the reduced
                                                                 inspection frequency will apply for as long as
                                                                 the facility is a Performance Track member
                                                                 facility, and that within seven calendar days
                                                                 of ceasing to be a Performance Track member,
                                                                 the facility will revert to the non-Performance
                                                                 Track inspection frequency. Inspections must be
                                                                 conducted at least once each month.
                                                                (ii) Within 60 days, the Director will notify
                                                                 the Performance Track member facility, in
                                                                 writing, if the request is approved, denied, or
                                                                 if an extension to the 60-day deadline is
                                                                 needed. This notice must be placed in the
                                                                 facility's operating record. The Performance
                                                                 Track member facility should consider the
                                                                 application approved if the Director does not:
                                                                 (1) deny the application; or (2) notify the
                                                                 Performance Track member facility of an
                                                                 extension to the 60 day deadline. In these
                                                                 situations, the Performance Track member
                                                                 facility must adhere to the revised inspection
                                                                 schedule outlined in its request for a Class I
                                                                 permit modification and keep a copy of the
                                                                 application in the facility's operating record.
                                                                (iii) Any Performance Track member facility that
                                                                 discontinues its membership or is terminated
                                                                 from the program must immediately notify the
                                                                 Director of its change in status. The facility
                                                                 must place in the operating record a dated copy
                                                                 of this notification and revert back to the non-
                                                                 Performance Track inspection frequencies within
                                                                 seven calendar days.
264.174..............................  Use and Management of    At least weekly, the owner or operator must
                                        Containers:              inspect areas where containers are stored,
                                        Inspections.             looking for leaking containers, and for
                                                                 deterioration of containers and the containment
                                                                 system caused by corrosion or other factors.

[[Page 16884]]

 
                                                                At least weekly, the owner or operator must
                                                                 inspect areas where containers are stored,
                                                                 except for Performance Track member facilities,
                                                                 that may conduct inspections at least once each
                                                                 month, upon approval by the Director. To apply
                                                                 for reduced inspection frequencies, the
                                                                 Performance Track member facility must follow
                                                                 the procedures described in Sec.   264.15(b)(5)
                                                                 of this part. The owner or operator must look
                                                                 for leaking containers and for deterioration of
                                                                 containers and the containment system caused
                                                                 corrosion or other factors.
264.195..............................  Tank Systems:            (b) The owner or operator must inspect at least
                                        Inspections.             once each operating day:
                                                                (1) Above ground portions of the tank system, if
                                                                 any to detect corrosion or releases of waste:
                                                                (2) Data gathered from monitoring and leak
                                                                 detection equipment (e.g., pressure or
                                                                 temperature gauges, monitoring wells) to ensure
                                                                 that the tank system is being operated
                                                                 according to its design; and
                                                                (3) The construction materials and the area
                                                                 immediately surrounding the externally
                                                                 accessible portion of the tank system,
                                                                 including the secondary containment system
                                                                 (e.g., dikes) to detect erosion or signs of
                                                                 releases of hazardous waste (e.g., wet spots,
                                                                 dead vegetation).
                                                                [Note: Section 264.15(c) requires the owner or
                                                                 operator to remedy any deterioration or
                                                                 malfunction he finds. Section 264.196 requires
                                                                 the owner or operator to notify the Regional
                                                                 Administrator within 24 hours of confirming a
                                                                 leak. Also, 40 CFR part 302 may require the
                                                                 owner or operator to notify the National
                                                                 Response Center of a release.]
                                                                (b) The owner or operator must inspect at least
                                                                 once each operating day data gathered from
                                                                 monitoring and leak detection equipment (e.g.,
                                                                 pressure or temperature gauges, monitoring
                                                                 wells) to ensure that the tank system is being
                                                                 operated according to its design;
                                                                (c) In addition, except as noted under paragraph
                                                                 (d) of this section, the owner or operator must
                                                                 inspect at least once each operating day:
                                                                (1) Above ground portions of the tank system, if
                                                                 any to detect corrosion or releases of waste:
                                                                (2) The construction materials and the area
                                                                 immediately surrounding the externally
                                                                 accessible portion of the tank system,
                                                                 including the secondary containment system
                                                                 (e.g., dikes) to detect erosion or signs of
                                                                 releases of hazardous waste (e.g., wetspots,
                                                                 dead vegetation).
                                                                (d) Owners or operators of tank systems that
                                                                 either use leak detection equipment to alert
                                                                 facility personnel to leaks, or implement
                                                                 established workplace practices to ensure leaks
                                                                 are promptly identified, must inspect at least
                                                                 weekly those areas described in paragraphs
                                                                 (c)(1) and (c)(2) of this section. Use of the
                                                                 alternate inspection schedule must be
                                                                 documented in the facility's operating record.
                                                                 This documentation must include a description
                                                                 of the established workplace practices at the
                                                                 facility.
                                                                (e) Performance Track member facilities may
                                                                 inspect on a less frequent basis, upon approval
                                                                 by the Director, but must inspect at least once
                                                                 each month. To apply for a less than weekly
                                                                 inspection frequency, the Performance Track
                                                                 member facility must follow the procedures
                                                                 described in Sec.   264.15(b)(5).
                                                                (f) Ancillary equipment that is not provided
                                                                 with secondary containment, as described in
                                                                 Sec.   264.193(f)(1)-(4), must be inspected at
                                                                 least once each operating day.
 
                                                                [Note: Section 264.15(c) requires the owner or
                                                                 operator to remedy any deterioration or
                                                                 malfunction he finds. Section 264.196 requires
                                                                 the owner or operator to notify the Regional
                                                                 Administrator within 24 hours of confirming a
                                                                 leak. Also, 40 CFR part 302 may require the
                                                                 owner or operator to notify the National
                                                                 Response Center of a release.]
 
264.1101(c)(4).......................  Containment Buildings:   Inspect and record in the facility's operating
                                        Design and Operating     record, at least once every seven days, data
                                        Standards.               gathered from monitoring and leak detection
                                                                 equipment as well as the containment building
                                                                 and the area immediately surrounding the
                                                                 containment building to detect signs of
                                                                 releases of hazardous waste.
                                                                Inspect and record in the facility's operating
                                                                 record, at least once every seven days, except
                                                                 for Performance Track member facilities that
                                                                 must inspect at least once each month, upon
                                                                 approval by the Director, data gathered from
                                                                 monitoring and leak detection equipment as well
                                                                 as the containment building and the area
                                                                 immediately surrounding the containment
                                                                 building to detect signs of releases of
                                                                 hazardous waste. To apply for reduced
                                                                 inspection frequency, the Performance Track
                                                                 member facility must follow the procedures
                                                                 described in Sec.   264.15(b)(5) of this part.
----------------------------------------------------------------------------------------------------------------


[[Page 16885]]


  Table 12.--Decreased Inspection Frequencies for Hazardous Waste Management Units at Interim Status Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement  New regulatory language as amended by the Burden
                                                                                 Reduction Rule
----------------------------------------------------------------------------------------------------------------
260.10...............................  Hazardous Waste          No regulatory definition currently exists.
                                        Management System:      Performance Track member facility means a
                                        Definitions.             facility that has been accepted by EPA for
                                                                 membership in the National Environmental
                                                                 Performance Track Program and is still a member
                                                                 of the Program. The National Environmental
                                                                 Performance Track Program is a voluntary,
                                                                 facility based, program for top environmental
                                                                 performers. Facility members must demonstrate a
                                                                 good record of compliance, past success in
                                                                 achieving environmental goals, and commit to
                                                                 future specific quantified environmental goals,
                                                                 environmental management systems, local
                                                                 community outreach, and annual reporting of
                                                                 measurable results.
265.15(b)(4).........................  General Facility         The frequency of inspection may vary for the
                                        Standards: General       items on the schedule. However, the frequency
                                        Inspection               should be based on the rate of deterioration of
                                        Requirements.            the equipment and the probability of an
                                                                 environmental or human health incident if the
                                                                 deterioration, malfunction, or any operator
                                                                 error goes undetected between inspections.
                                                                 Areas subject to spills, such as loading and
                                                                 unloading areas, must be inspected daily when
                                                                 in use. At a minimum, the inspection schedule
                                                                 must include the items and frequencies called
                                                                 for in Sec.  Sec.   265.174, 265.193, 265.195,
                                                                 265.226, 265.260, 265.278, 265.304, 265.347,
                                                                 265.377, 265.403, 265.1033, 265.1052, 265.1053,
                                                                 265.1058 and 265.1084 through 265.1090 of this
                                                                 part, where applicable.
                                                                The frequency of inspection may vary for the
                                                                 items on the schedule. However, the frequency
                                                                 should be based on the rate of deterioration of
                                                                 the equipment and the probability of an
                                                                 environmental or human health incident if the
                                                                 deterioration, malfunction, or operator error
                                                                 goes undetected between inspections. Areas
                                                                 subject to spills, such as loading and
                                                                 unloading areas, must be inspected daily when
                                                                 in use, except for Performance Track member
                                                                 facilities, that must inspect at least once
                                                                 each month, upon approval by the Director, as
                                                                 described in paragraph (b)(5) of this section.
                                                                 At a minimum, the inspection schedule must
                                                                 include the items and frequencies called for in
                                                                 Sec.  Sec.   265.174, 265.193, 265.195,
                                                                 265.226, 265.260, 265.278, 265.304, 265.347,
                                                                 265.377, 265.403, 265.1033, 265.1052, 265.1053,
                                                                 265.1058 and 265.1084 through 265.1090 of this
                                                                 part, where applicable.
265.15(b)(5).........................  General Facility         No regulatory language currently exists.
                                        Standards: General      Performance Track member facilities that choose
                                        Inspection               to reduce their inspection frequency must:
                                        Requirements..          (i) Submit an application to the Director. The
                                                                 application must identify the facility as a
                                                                 member of the National Environmental
                                                                 Performance Track Program and identify the
                                                                 management units for reduced inspections and
                                                                 the proposed frequency of inspections.
                                                                 Inspections must be conducted at least once
                                                                 each month.
                                                                (ii) Within 60 days, the Director will notify
                                                                 the Performance Track member facility, in
                                                                 writing, if the application is approved,
                                                                 denied, or if an extension to the 60-day
                                                                 deadline is needed. This notice must be placed
                                                                 in the facility's operating record. The
                                                                 Performance Track member facility should
                                                                 consider the application approved if the
                                                                 Director does not: (1) deny the application; or
                                                                 (2) notify the Performance Track member
                                                                 facility of an extension to the 60-day
                                                                 deadline. In these situations, the Performance
                                                                 Track member facility must adhere to the
                                                                 revised inspection schedule outlined in its
                                                                 application and keep a copy of the application
                                                                 in the facility's operating record.
                                                                (iii) Any Performance Track member facility that
                                                                 discontinues its membership or is terminated
                                                                 from the program must immediately notify the
                                                                 Director of its change in status. The facility
                                                                 must place in the operating record a dated copy
                                                                 of this notification and revert back to the non-
                                                                 Performance Track inspection frequencies within
                                                                 seven calender days.
265.174..............................  Use and Management of    The owner or operator must inspect areas where
                                        Containers:              containers are stored, at least weekly, looking
                                        Inspections.             for leaks and for deterioration caused by
                                                                 corrosion or other factors.
                                                                At least weekly, the owner or operator must
                                                                 inspect areas where containers are stored,
                                                                 except Performance Track member facilities,
                                                                 that must conduct inspections at least once
                                                                 each month, upon approval by the Director. To
                                                                 apply for reduced inspection frequency, the
                                                                 Performance Track member facility must follow
                                                                 the procedures described in Sec.   265.15(b)(5)
                                                                 of this part. The owner or operator must look
                                                                 for leaking containers and for deterioration of
                                                                 containers and the containment system caused by
                                                                 corrosion or other factors.
265.195..............................  Tank Systems:            (a) The owner or operator must inspect, where
                                        Inspections..            present, at least once each operating day:
                                                                (1) Overfill/spill control equipment (e.g.,
                                                                 waste-feed cutoff systems, bypass systems, and
                                                                 drainage systems) to ensure that it is in good
                                                                 working order;
                                                                (2) Above ground portions of the tank system, if
                                                                 any to detect corrosion or releases of waste;
                                                                (3) Data gathered from monitoring and leak
                                                                 detection equipment (e.g., pressure or
                                                                 temperature gauges, monitoring wells) to ensure
                                                                 that the tank system is being operated
                                                                 according to its design; and

[[Page 16886]]

 
                                                                (4) The construction materials and the area
                                                                 immediately surrounding the externally
                                                                 accessible portion of the tanks system,
                                                                 including the secondary containment system
                                                                 (e.g., dikes) to detect erosion or signs of
                                                                 releases of hazardous waste (e.g., wet spots,
                                                                 dead vegetation).
 
                                                                Note: Section 265.15(c) requires the owner or
                                                                 operator to remedy any deterioration or
                                                                 malfunction he finds. Section 265.196 requires
                                                                 the owner or operator to notify the Regional
                                                                 Administrator within 24 hours of confirming a
                                                                 release. Also, 40 CFR part 302 may require the
                                                                 owner or operator to notify the National
                                                                 Response Center of a release.
 
                                                                (a) The owner or operator must inspect, where
                                                                 present, at least once each operating day, data
                                                                 gathered from monitoring and leak detection
                                                                 equipment (e.g., pressure or temperature
                                                                 gauges, monitoring wells) to ensure that the
                                                                 tank system is being operated according to its
                                                                 design.
                                                                (b) Except as noted under paragraph (c) of this
                                                                 section, the owner or operator must inspect at
                                                                 least once each operating day:
                                                                (1) Overfill/spill control equipment (e.g.,
                                                                 waste-feed cutoff systems, bypass systems, and
                                                                 drainage systems) to ensure that it is in good
                                                                 working order;
                                                                (2) Above ground portions of the tank system, if
                                                                 any, to detect corrosion or releases of waste;
                                                                 and
                                                                (3) The construction materials and the area
                                                                 immediately surrounding the externally
                                                                 accessible portion of the tank system,
                                                                 including the secondary containment system
                                                                 (e.g., dikes) to detect erosion or signs of
                                                                 releases of hazardous waste (e.g., wet spots,
                                                                 dead vegetation).
                                                                (c) Owners or operators of tank systems that
                                                                 either use leak detection equipment to alert
                                                                 facility personnel to leaks, or implement
                                                                 established workplace practices to ensure leaks
                                                                 are promptly identified, must inspect at least
                                                                 weekly those areas described in paragraphs
                                                                 (b)(1)-(3) of this section. Use of the
                                                                 alternate inspection schedule must be
                                                                 documented in the facility's operating record.
                                                                 This documentation must include a description
                                                                 of the established workplace practices at the
                                                                 facility.
                                                                (d) Performance Track member facilities may
                                                                 inspect on a less frequent basis, upon approval
                                                                 by the Director, but must inspect at least once
                                                                 each month. To apply for a less than weekly
                                                                 inspection frequency, the Performance Track
                                                                 member facility must follow the procedures
                                                                 described in Sec.   265.15(b)(5).
                                                                (e) Ancillary equipment that is not provided
                                                                 with secondary containment, as described in
                                                                 Sec.   265.193(f)(1)-(4), must be inspected at
                                                                 least once each operating day.
 
                                                                Note: Section 265.15(c) requires the owner or
                                                                 operator to remedy any deterioration or
                                                                 malfunction he finds. Section 265.196 requires
                                                                 the owner or operator to notify the Regional
                                                                 Administrator within 24 hours of confirming a
                                                                 release. Also, 40 CFR part 302 may require the
                                                                 owner or operator to notify the National
                                                                 Response Center of a release.
 
265.1101(c)(4).......................  Containment Buildings:   Inspect and record in the facility's operating
                                        Design and Operating     record, at least once every seven days, data
                                        Standards.               gathered from monitoring and leak detection
                                                                 equipment as well as the containment building
                                                                 and the area immediately surrounding the
                                                                 containment building to detect signs of
                                                                 releases of hazardous waste.
                                                                Inspect and record in the facility's operating
                                                                 record, at least once every seven days, except
                                                                 for Performance Track member facilities, that
                                                                 must inspect at least once each month, upon
                                                                 approval by the Director, data gathered from
                                                                 monitoring and leak detection equipment as well
                                                                 as the containment building and the area
                                                                 immediately surrounding the containment
                                                                 building to detect signs of releases of
                                                                 hazardous waste. To apply for reduced
                                                                 inspection frequency, the Performance Track
                                                                 member facility must follow the procedures
                                                                 described in Sec.   265.15(b)(5).
----------------------------------------------------------------------------------------------------------------


    Table 13.--Decreased Inspection Frequencies for Small Quantity Generator Hazardous Waste Management Units
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement      New regulatory language as amended by the
                                                                              Burden Reduction Rule
----------------------------------------------------------------------------------------------------------------
265.201(c)...........................  Tank Systems: Special    (c) Generators of between 100 and 1,000 kg/mo of
                                        requirements for         hazardous waste in tanks must inspect, where
                                        generators of between    present:
                                        100 and 1,000 kg/mo     (1) Discharge control equipment (e.g., waste
                                        that accumulate          feed cutoff systems, by-pass systems, and
                                        hazardous waste in       drainage systems) at least once each operating
                                        tanks.                   day, to ensure that it is in good working
                                                                 order;
                                                                (2) Data gathered from monitoring equipment
                                                                 (e.g., pressure and temperature gauges) at
                                                                 least once each operating day, to ensure that
                                                                 the tank is being operated according to its
                                                                 design;

[[Page 16887]]

 
                                                                (3) The level of waste in the tank at least once
                                                                 each operating day to ensure compliance with
                                                                 Sec.   265.201(b)(3);
                                                                (4) The construction materials of the tank at
                                                                 least weekly to detect corrosion or leaking of
                                                                 fixtures or seams; and
                                                                (5) The construction materials of, and the area
                                                                 immediately surrounding, discharge confinement
                                                                 structures (e.g., dikes) at least weekly to
                                                                 detect erosion or obvious signs of leakage
                                                                 (e.g., wet spots or dead vegetation).
                                                                (c) Except as noted in paragraph (d) of this
                                                                 section, generators who accumulate between 100
                                                                 and 1,000 kg/mo of hazardous waste in tanks
                                                                 must inspect, where present:
                                                                (1) Discharge control equipment (e.g., waste
                                                                 feed cutoff systems, by-pass systems, and
                                                                 drainage systems) at least once each operating
                                                                 day, to ensure that it is in good working
                                                                 order;
                                                                (2) Data gathered from monitoring equipment
                                                                 (e.g., pressure and temperature gauges) at
                                                                 least once each operating day, to ensure that
                                                                 the tank is being operated according to its
                                                                 design;
                                                                (3) The level of waste in the tank at least once
                                                                 each operating day to ensure compliance with
                                                                 Sec.   265.201(b)(3);
                                                                (4) The construction materials of the tank at
                                                                 least weekly to detect corrosion or leaking of
                                                                 fixtures or seams; and
                                                                (5) The construction materials of, and the area
                                                                 immediately surrounding, discharge confinement
                                                                 structures (e.g., dikes) at least weekly to
                                                                 detect erosion or obvious signs of leakage
                                                                 (e.g., wet spots or dead vegetation).
                                                                (d) Generators who accumulate between 100 and
                                                                 1,000 kg/mo of hazardous waste in tanks or tank
                                                                 systems that have full secondary containment
                                                                 and that either use leak detection equipment to
                                                                 alert facility personnel to leaks, or implement
                                                                 established workplace practices to ensure leaks
                                                                 are promptly identified, must inspect at least
                                                                 weekly, where applicable, the areas identified
                                                                 in paragraphs (c)(1)-(5) of this section. Use
                                                                 of the alternate inspection schedule must be
                                                                 documented in the facility's operating record.
                                                                 This documentation must include a description
                                                                 of the established workplace practices at the
                                                                 facility.
                                                                (e) Performance Track member facilities may
                                                                 inspect on a less frequent basis, upon approval
                                                                 by the Director, but must inspect at least once
                                                                 each month. To apply for a less than weekly
                                                                 inspection frequency, the Performance Track
                                                                 member facility must follow the procedures
                                                                 described in Sec.   265.15(b)(5).
----------------------------------------------------------------------------------------------------------------

H. We Are Making Selected Changes to the Requirements for Record 
Retention and Submittal of Records

    EPA is modifying certain requirements for hazardous waste handlers 
who keep records on site and submit these same records to EPA. We will 
now require waste handlers only to keep these selected records on site.
    EPA believes that many of the various notices required do not add 
much in protection and some are simply redundant. We believe that 
reporting to EPA on the majority of the day-to-day functions of a 
facility does not need to occur. Because a basic set of compliance 
information will still be kept in the facility's operating record, we 
believe the regulatory agency has an ample opportunity for effective 
oversight.
1. We Are Removing the Requirement To Submit a One-Time Notification 
for Recycled Wood Wastewaters and Spent Wood-Preserving Solutions and 
Clarifying an Unintentional Elimination Made in the Proposal
    Currently under 40 CFR 261.4(a)(9), spent wood preserving solutions 
and wastewaters from wood preserving processes are excluded from 
classification as a solid waste if they are reclaimed and reused for 
their original intended purpose, and if five conditions specified in 
subparagraphs (iii)(A) through (iii)(E) are met. Paragraph (E) required 
that the plant owner or operator submit a one-time notification that 
the plant intends to claim the exclusion.\15\ Paragraph (E) also 
requires the owner or operator to maintain a copy of the notification 
on-site for no less than three years. Finally, paragraph (E) explains 
that the exclusion applies only so long as the plant meets all of the 
conditions, and sets forth procedures for what to do to retain the 
exclusion if the facility goes out of compliance with a condition.
---------------------------------------------------------------------------

    \15\ The four other conditions found in 40 CFR 
261.4(a)(9)(iii)(A)-(D) are: (A) The wood preserving wastewaters and 
spent wood preserving solutions are reused on-site at water borne 
plants in the production process for their original intended 
purpose; (B) Prior to reuse, the wastewaters and spent wood 
preserving solutions are managed to prevent release to either land 
or groundwater or both; (C) Any unit used to manage wastewaters and/
or spent wood preserving solutions prior to reuse can be visually or 
otherwise be determined to prevent such releases; and (D) Any drip 
pad used to manage the wastewaters and/or spent wood preserving 
solutions prior to reuse complies with the standard in part 265, 
subpart W of this chapter, regardless of whether the plant generates 
a total of less than 100 kg/month of hazardous waste.
---------------------------------------------------------------------------

    The proposed rule (see 67 FR 2521) was to reduce the burden on wood 
preservers/treaters by eliminating the requirement to submit the one-
time notification. The proposal stated that the requirement is 
unnecessary and has limited use for regulators. However, the change to 
the regulations specified in the regulatory text of the proposal 
unintentionally eliminated the entire paragraph (E) of 40 CFR 
261.4(a)(9),(iii)

[[Page 16888]]

thus eliminating the one-time notification requirement and also 
eliminating the two other requirements in that paragraph: (1) The 
requirement to maintain the notification on-site for three years, and 
(2) the implementation discussion for compliance with the conditions.
    Three state commenters did not agree with the proposal. These 
commenters argued that the notification is useful for identifying 
facilities that are claiming the exclusion, identifying potential 
problems before they occur, allowing the regulating agency to verify 
compliance, and workload planning. Several state commenters, however, 
agreed with the proposal to eliminate the requirement to submit the 
notification. Based on their comments, these commenters appeared to 
understand that only the requirement to submit the one-time 
notification was proposed for elimination. None mentioned the 
requirement to retain the notification on-site or the compliance 
implementation procedures.
    While we understand the concern of some of the commenters, we still 
do not believe that arguments put forth were sufficient to change the 
proposed approach. We believe that the submittal of this notification 
is unnecessary because the facilities are engaged in limited activities 
to return materials to their intended use in the wood treating 
industry. Many comparable activities occur without notification, 
including direct reuse of the same material. These activities will 
occur at generator sites subject to EPA or state inspection (and in 
some case at treatment, storage, and disposal facilities), so EPA or 
the state will have an opportunity to review the activity. Note that in 
the final change to the regulatory text, we are only eliminating the 
requirement to submit the one-time notification; we are not eliminating 
the requirement to keep the document on-site, or the discussion of 
compliance implementation procedures.
2. We Are Eliminating the Requirement for Interim Status Facilities To 
Submit Specific Ground-Water Monitoring Plans and Ground-Water 
Assessment Reports
    In today's final rule, we are reducing some of the burden on 
interim status facilities by eliminating the need to submit specific 
ground-water monitoring plans and ground-water assessment reports to 
the Regional Administrator. These reports include: (1) Plans for an 
alternative ground-water monitoring system under Sec.  265.90(d)(1) 
that are implemented when the owner or operator assumes (or knows) that 
ground-water monitoring of indicator parameters in accordance with 
Sec. Sec.  265.91 and 265.92 would show statistically significant 
increases when evaluated under Sec.  265.93(b); (2) records of the 
analyses and evaluations specified in the plan under Sec.  
265.93(d)(2); and (3) ground-water quality assessment reports required 
under Sec.  265.93(d)(5). These plans are not being eliminated, but are 
to be placed in the facility's operating record until closure of the 
facility. We consider today's changes to be a common sense approach to 
reducing burden at regulated facilities without compromising 
environmental protection.
    Numerous states objected to these proposed changes to the interim 
status reporting and recordkeeping requirements, asserting that the 
regulatory agency should continue to receive a copy of these reports to 
assess the effectiveness and appropriateness of the ground-water 
monitoring system. Other states asserted that EPA's approach places an 
undue burden on the regulatory authority and makes it difficult for 
states to fully evaluate ground water across the state.
    We believe that self-implementing ground-water monitoring plans for 
interim status facilities can be protective of human health and the 
environment; we disagree with the assertion that our rationale places a 
burden on the regulating authority. These reports must be kept in the 
facility's operating record until closure of the facility and will be 
available for inspection when the state or EPA visits the facility. 
Nothing in today's rulemaking prevents the regulating authority from 
requesting reports from interim status facilities for ground-water 
quality assessment or indicator parameter concentrations.
    EPA is retaining many requirements for interim status facilities. 
For example, we are not changing the ground-water reporting 
requirements of Sec. Sec.  265.93(c)(1), (d)(1), (e) and (f) and 
265.94(a)(2)(i), (ii) and (iii), that deal with submitting 
notifications of increased indicator parameter concentrations and the 
development and submittal of: (1) Ground-water quality assessment 
reports; (2) preparation and submittal of quarterly reports on drinking 
water suitability parameters; indicator parameter concentrations and 
evaluations; and (3) ground-water surface elevations. Stakeholders have 
convinced us of the importance of this information. Without the 
knowledge of the status of the facility ground-water monitoring system, 
it may be difficult for regulators to conduct effective inspections, 
address compliance issues, and address enforcement issues regarding the 
ground water at interim status facilities.
3. We Are Eliminating the Requirement for Interim Status Surface 
Impoundments, Waste Piles, and Landfills To Submit a Response Action 
Plan
    Response action plans are generated by the owner or operator of a 
specified hazardous waste management unit (e.g., surface impoundment, 
waste pile, and/or landfill), and document actions to be taken if the 
action leakage rate in the unit's leak detection system has been 
exceeded.\16\ These actions are listed in Sec. Sec.  265.223, 265.259 
and 265.303.\17\ The Agency proposed eliminating the need to submit to 
the Regional Administrator response action plans for interim status 
surface impoundments, waste piles, and landfills. We are eliminating 
the submission of the response action plan to the Regional 
Administrator. The facility must still prepare and retain these plans 
on-site.
---------------------------------------------------------------------------

    \16\ The action leakage rate is the maximum design flow rate 
that the leak detection system (LDS) can remove without the fluid 
head on the bottom liner exceeding one foot. The action leakage rate 
must include an adequate margin of safety to allow for uncertainties 
in the design (e.g., slope, hydraulic conductivity, thickness of 
drainage material), construction, operation, and location of the 
LDS, waste and leachate characteristics, likelihood and amounts of 
other sources of liquids in the LDS, and proposed response actions 
(e.g., the action leakage rate must consider decreases in the flow 
capacity of the system over time resulting from siltation and 
clogging, rib layover and creep of synthetic components of the 
system, overburden pressures, etc.).
    \17\ In the CFR there are two sections identified as Sec.  
265.223, the first titled ``Containment system'' and the second 
titled ``Response actions''. In today's rule we are redesignating 
Sec.  265.223 titled ``Response actions'' as Sec.  265.224.
---------------------------------------------------------------------------

    Several state commenters agreed with the proposal; however, several 
others did not. One commenter argued that a release from a land-based 
unit is a significant noncompliance and could pose serious impacts to 
the people and the environment, and it is important for the facility to 
have a clear plan in advance to respond to releases. Because of the 
importance of controlling these releases, it is appropriate for the 
response action plan to be submitted to EPA or the state permit agency. 
While we agree with the commenter that any release from a land-based 
unit is a serious matter, and that controlling these releases is of the 
utmost importance, we are not convinced that these plans need to be 
submitted to the regulatory agency. EPA is retaining all requirements 
to submit notices to the regulatory authority when an action leakage 
rate is exceeded (see Sec. Sec.  265.224(b)(2) and (6); 265.259(b)(2) 
and (6); and 265.303(b)(2) and (6)); we

[[Page 16889]]

believe that the need to submit the response action plan which merely 
reiterates these requirements is an overly burdensome requirement that 
can be removed.
4. We Are Eliminating the Requirement for Facilities To Submit a Tank 
System Certification of Completion of Major Repairs
    We are amending the requirement for submitting to the Regional 
Administrator a certification of completion of major repairs to a tank 
system by an independent, qualified, professional engineer. This 
certification need only be kept on-site in the operating record through 
the intended life of the system. This change will eliminate the 
submission of duplicative information to the regulatory authority. 
Sections 264.196(d) and 265.196(d) already require that certain 
notifications be submitted that include descriptions of response 
actions taken or planned.
    Several commenters did not support the proposed change, noting that 
submission of the certification helps to ensure that the regulatory 
authority is made aware of any potentially significant repairs that 
were conducted. One commenter argued that the elimination of these 
notices or notations in the operating record will adversely affect 
oversight. Another commenter argued that, while supportive of the 
proposed change, the certification of major repairs must be kept with 
the facility record, and be available for review by regulatory 
inspectors. We believe that information provided by the certification 
of major repairs is already provided through the notification 
mechanisms described in Sec. Sec.  264.196(d) and 265.196(d), which 
require notification when releases occur, and a description of response 
actions taken or planned. While we are not eliminating the 
certification, we are requiring the certification be kept on site in 
the operating record, and we are requiring the certification be signed 
by a qualified professional engineer.
5. We Are Eliminating the Requirement for a Recycler To Submit a 
Notification and Certification
    Under 40 CFR 268.7(b)(3), a treatment facility must send a one-time 
notice to the receiving land disposal facility with the initial 
shipment of waste or contaminated soil. Also, in Sec.  268.7(b)(4), the 
treatment facility must submit a one-time certification with the 
initial shipment of waste or contaminated soil to the land disposal 
facility.
    Under Sec.  268.7(b)(6), however, if the wastes are recyclable 
materials used in a manner constituting disposal, the owner or operator 
of the treatment facility (i.e., the recycler) is not required to send 
the one-time (b)(3) notice to the receiving facility. For each 
shipment, however, the owner or operator of the treatment facility 
(i.e., recycler) must submit a (b)(4) certification and a notice with 
the information listed in (b)(3) to the Regional Administrator. These 
notifications and certifications are to assure and document that 
treatment standards are being met. The preamble to the proposed rule 
described a proposal that would reduce burden on the regulated industry 
by eliminating the requirement to send the notifications and 
certifications to EPA, and instead require that the treatment facility 
(i.e., recycler) place these documents in its on-site files.
    Five commenters, including three states, agreed that notifying the 
regulatory agency is not necessary as long as the information is 
maintained at the facility. Only one commenter did not support the 
elimination of the requirement. This commenter argued that it is 
important to track hazardous wastes used in the manufacture of 
fertilizers because it believes there are problems with compliance in 
this industry. It believes that notification to the regulatory agency 
allows such tracking. We, however, do not agree with this commenter, 
for the reasons presented below.
    Based on the majority of comments received, we are amending Sec.  
268.7(b)(6) to eliminate the requirement to submit notifications and 
certifications to EPA, and instead require that the information be 
placed in the treating/recycling facility's on-site files. All but one 
commenter confirmed that maintaining these records on-site provides 
sufficient documentation of waste treatment in these cases. We also 
point out that regulating agencies have a great deal of information 
about these facilities already since, in most cases, they would be 
permitted facilities. Retaining these notices on-site does not 
eliminate the regulating agency's knowledge of the existence of the 
facility. We also note that if a state has concerns about compliance in 
a particular use constituting disposal industry in their state, they 
may choose to be more stringent than the federal program, and choose to 
retain these notifications.
    It should be noted that the preamble to the proposal incorrectly 
indicated that the current regulations only require one-time 
notifications and certifications for these materials. This is not 
accurate. As discussed earlier, the existing regulations actually 
require that certifications and notifications be sent to the regulating 
agency with each shipment. One commenter suggested that we change the 
requirement so that these notifications and certifications are only 
required to be prepared once and maintained in the facility's records, 
unless there are changes to the treatment process. The commenter 
pointed out that it would greatly reduce the burden for the facility if 
they were only required to prepare these documents once, and then again 
any time the treatment process changes. We agree with this commenter's 
point. As long as these notifications and certifications are required 
to be maintained in the facility's files and be available for 
inspection, there is no reason for the facility to prepare and maintain 
multiple copies for each shipment. The information will be available 
for inspection at all times. Whereas the proposal did address the 
burden of sending notifications and certifications to the regulatory 
agency, it did not address the burden associated with the requirement 
to send those documents with each waste shipment. This final rule 
corrects that omission. Thus, this final rule only requires facilities 
(i.e., recyclers) to prepare and maintain notifications and 
certifications with the initial shipment of waste, and then to prepare 
new documentation only if the waste, the treatment process, or the 
receiving facility changes.
6. We Are Eliminating the Requirement to Submit an LDR Notification and 
Certification
    Under Sec.  268.9(d), once a characteristic waste is treated so it 
is no longer characteristic, a one-time notification and certification 
of this fact have to be placed in the generator's or treater's files, 
and also sent to EPA or the authorized state. We proposed to eliminate 
the requirement to submit the notification to EPA or the authorized 
state (the notification and certification would continue to be required 
to be kept in the facility's files).
    Almost all commenters supported the proposal to delete the one-time 
requirement that the Sec.  268.9(d) notification and certification be 
sent to EPA or the authorized state. This is because the notification 
and the certification must be placed in the on-site files and would 
thus be available for inspection. However, a few commenters opposed the 
deletion of these submittals, stating that this information is 
valuable. While we agree that the information is valuable, we do not 
believe that submitting these documents to the regulatory agency is 
necessary to protect human health and the environment. For a number of 
years, other LDR notifications and

[[Page 16890]]

certifications have not been required to be submitted to the regulatory 
agency, but are available for inspection in the facility's on-site 
files. Therefore, we believe that this system of recordkeeping is 
sufficient and are deleting the notification and certification 
submission requirement as proposed.

  Table 14.--Changes to the Requirements for Record Retention and Submittal of Records for Permitted Treatment,
                                        Storage, and Disposal Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement  New regulatory language as amended by the Burden
                                                                                 Reduction Rule
----------------------------------------------------------------------------------------------------------------
264.196(f)...........................  Tank Systems. Response   Certification of major repairs. If the owner/
                                        to leaks or spills and   operator has repaired a tank system in
                                        disposition of leaking   accordance with paragraph (e) of this section,
                                        or unfit-for-use tank    and the repair has been extensive (e.g.,
                                        systems.                 installation of an internal liner; repair of a
                                                                 ruptured primary containment or secondary
                                                                 containment vessel), the tank system must not
                                                                 be returned to service unless the owner/
                                                                 operator has obtained a certification by an
                                                                 independent, qualified, registered,
                                                                 professional engineer in accordance with Sec.
                                                                 270.11(d) that the repaired system is capable
                                                                 of handling hazardous wastes without release
                                                                 for the intended life of the system. This
                                                                 certification must be submitted to the Regional
                                                                 Administrator within seven days after returning
                                                                 the tank system to use.
                                                                Certification of major repairs. If the owner/
                                                                 operator has repaired a tank system in
                                                                 accordance with paragraph (e) of this section,
                                                                 and the repair has been extensive (e.g.,
                                                                 installation of an internal liner; repair of a
                                                                 ruptured primary containment or secondary
                                                                 containment vessel), the tank system must not
                                                                 be returned to service unless the owner/
                                                                 operator has obtained a certification by a
                                                                 qualified professional engineer in accordance
                                                                 with Sec.   270.11(d) that the repaired system
                                                                 is capable of handling hazardous wastes without
                                                                 release for the intended life of the system.
                                                                 This certification must be placed in the
                                                                 operating record and maintained until closure
                                                                 of the facility.\18\
----------------------------------------------------------------------------------------------------------------
\18\ The reader is referred to Section III. B. of today's preamble for a discussion of the change from
  ``independent, qualified, registered, professional'' to ``qualified professional engineer''.


     Table 15.--Changes to the Requirements for Record Retention and Submittal of Records for Interim Status
                                   Treatment, Storage, and Disposal Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement  New regulatory language as amended by the Burden
                                                                                 Reduction Rule
----------------------------------------------------------------------------------------------------------------
265.90(d)(1).........................  Ground-Water             Within one year after the effective date of
                                        Monitoring.              these regulations, submit to the Regional
                                        Applicability.           Administrator a specific plan, certified by a
                                                                 qualified geologist or geotechnical engineer,
                                                                 which satisfies the requirements of Sec.
                                                                 265.93(d)(3), for an alternate ground-water
                                                                 monitoring system.
                                                                Within one year after the effective date of
                                                                 these regulations, develop a specific plan,
                                                                 certified by a qualified geologist or
                                                                 geotechnical engineer, which satisfies the
                                                                 requirements of Sec.   265.93(d)(3), for an
                                                                 alternate ground-water monitoring system. This
                                                                 plan is to be placed in the facility's
                                                                 operating record and maintained until closure
                                                                 of the facility.
265.90(d)(3).........................  Ground-Water             Prepare and submit a written report in
                                        Monitoring.              accordance with Sec.   265.93(d)(5).
                                        Applicability.
                                                                Prepare a report in accordance with Sec.
                                                                 265.93(d)(5) and place it in the facility's
                                                                 operating record and maintain until closure of
                                                                 the facility.
265.93(d)(2).........................  Ground-Water             Within 15 days after the notification under
                                        Monitoring.              paragraph (d)(1) of this section, the owner or
                                        Preparation,             operator must develop and submit to the
                                        evaluation, and          Regional Administrator a specific plan, based
                                        response.                on the outline required under paragraph (a) of
                                                                 this section and certified by a qualified
                                                                 geologist or geotechnical engineer, for a
                                                                 ground-water quality assessment at the
                                                                 facility.
                                                                Within 15 days after the notification under
                                                                 paragraph (d)(1) of this section, the owner or
                                                                 operator must develop a specific plan, based on
                                                                 the outline required under paragraph (a) of
                                                                 this section and certified by a qualified
                                                                 geologist or geotechnical engineer, for a
                                                                 ground-water quality assessment at the
                                                                 facility. This plan must be placed in the
                                                                 facility operating record and be maintained
                                                                 until closure of the facility.
265.93(d)(5).........................  Ground-Water             The owner or operator must make his first
                                        Monitoring.              determination under paragraph (d)(4) of this
                                        Preparation,             section, as soon as technically feasible, and,
                                        evaluation, and          within 15 days after that determination, submit
                                        response.                to the Regional Administrator a written report
                                                                 containing an assessment of the ground-water
                                                                 quality.
                                                                The owner or operator must make his first
                                                                 determination under paragraph (d)(4) of this
                                                                 section as soon as technically feasible, and
                                                                 prepare a report containing an assessment of
                                                                 the ground-water quality. This report must be
                                                                 placed in the facility operating record and be
                                                                 maintained until closure of the facility.

[[Page 16891]]

 
265.196(f)...........................  Tank Systems. Response   Certification of major repairs. If the owner/
                                        to leaks or spills and   operator has repaired a tank system in
                                        disposition of leaking   accordance with paragraph (e) of this section,
                                        or unfit-for-use tank    and the repair has been extensive (e.g.,
                                        systems.                 installation of an internal liner; repair of a
                                                                 ruptured primary containment or secondary
                                                                 containment vessel), the tank system must not
                                                                 be returned to service unless the owner/
                                                                 operator has obtained a certification by an
                                                                 independent, qualified, registered,
                                                                 professional engineer in accordance with Sec.
                                                                 270.11(d) that the repaired system is capable
                                                                 of handling hazardous wastes without release
                                                                 for the intended life of the system. This
                                                                 certification must be submitted to the Regional
                                                                 Administrator within seven days after returning
                                                                 the tank system to use.
                                                                Certification of major repairs. If the owner/
                                                                 operator has repaired a tank system in
                                                                 accordance with paragraph (e) of this section,
                                                                 and the repair has been extensive (e.g.,
                                                                 installation of an internal liner; repair of a
                                                                 ruptured primary containment or secondary
                                                                 containment vessel), the tank system must not
                                                                 be returned to service unless the owner/
                                                                 operator has obtained a certification by a
                                                                 qualified professional engineer in accordance
                                                                 with Sec.   270.11(d) that the repaired system
                                                                 is capable of handling hazardous wastes without
                                                                 release for the intended life of the system.
                                                                 This certification must be placed in the
                                                                 operating record until closure of the
                                                                 facility.\19\
265.223(a)...........................  Surface Impoundments.    The owner or operator of surface impoundment
                                        Response actions.        units subject to Sec.   265.221(a) must submit
                                                                 a response action plan to the Regional
                                                                 Administrator when submitting the proposed
                                                                 action leakage rate under Sec.   265.222. The
                                                                 response action plan must set forth the actions
                                                                 to be taken if the action leakage rate has been
                                                                 exceeded. At a minimum, the response action
                                                                 plan must describe the actions specified in
                                                                 paragraph (b) of this section.
                                                                (Now Sec.   265.224(a)) The owner or operator of
                                                                 surface impoundment units subject to Sec.
                                                                 265.221(a) must develop and keep on-site until
                                                                 closure of the facility a response action plan.
                                                                 The response action plan must set forth the
                                                                 actions to be taken if the action leakage rate
                                                                 has been exceeded. At a minimum, the response
                                                                 action plan must describe the actions specified
                                                                 in paragraph (b) of this section.
265.259(a)...........................  Waste Piles. Response    The owner or operator of waste pile units
                                        actions.                 subject to Sec.   265.254 must submit a
                                                                 response action plan to the Regional
                                                                 Administrator when submitting the proposed
                                                                 action leakage rate under Sec.   265.255. The
                                                                 response action plan must set forth the actions
                                                                 to be taken if the action leakage rate has been
                                                                 exceeded. At a minimum, the response action
                                                                 plan must describe the action specified in
                                                                 paragraph (b) of this section.
                                                                The owner or operator of waste pile units
                                                                 subject to Sec.   265.254 must develop and keep
                                                                 on-site until closure of the facility a
                                                                 response action plan. The response action plan
                                                                 must set forth the actions to be taken if the
                                                                 action leakage rate has been exceeded. At a
                                                                 minimum, the response action plan must describe
                                                                 the actions specified in paragraph (b) of this
                                                                 section.
265.303(a)...........................  Landfills. Response      The owner or operator of landfill units subject
                                        actions.                 to Sec.   265.301(a) must submit a response
                                                                 action plan to the Regional Administrator when
                                                                 submitting the proposed action leakage rate
                                                                 under Sec.   265.302. The response action plan
                                                                 must set forth the actions to be taken if the
                                                                 action leakage rate has been exceeded. At a
                                                                 minimum, the response action plan must describe
                                                                 the action specified in paragraph (b) of this
                                                                 section.
                                                                The owner or operator of landfill units subject
                                                                 to Sec.   265.301(a) must develop and keep on-
                                                                 site until closure of the facility a response
                                                                 action plan. The response action plan must set
                                                                 forth the actions to be taken if the action
                                                                 leakage rate has been exceeded. At a minimum,
                                                                 the response action plan must describe the
                                                                 actions specified in paragraph (b) of this
                                                                 section.
----------------------------------------------------------------------------------------------------------------
\19\ The reader is referred to today's preamble for a discussion of the change from ``independent, qualified,
  registered, professional engineer'' to ``qualified professional engineer.'' We are also requiring that this
  certification be retained in the operating record until closure of the facility.


[[Page 16892]]


    Table 16.--Changes to the Requirements for Record Retention and Submittal of Records for Hazardous Waste
                                                   Generators
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement      New regulatory language as amended by the
                                                                              Burden Reduction Rule
----------------------------------------------------------------------------------------------------------------
261.4(a)(9)(iii)(E)..................  General. Exclusions.     Prior to operating pursuant to this exclusion,
                                        Materials which are      the plant owner or operator submits to the
                                        not solid wastes.        appropriate Regional Administrator or state
                                                                 Director a one-time notification stating that
                                                                 the plant intends to claim the exclusion,
                                                                 giving the date on which the plant intends to
                                                                 begin operating under the exclusion, and
                                                                 containing the following language: ``I have
                                                                 read the applicable regulation establishing an
                                                                 exclusion for wood preserving wastewaters and
                                                                 spent wood preserving wastewater and spent wood
                                                                 preserving solutions and understand it requires
                                                                 me to comply at all times with the conditions
                                                                 set out in the regulation.'' The plant must
                                                                 maintain a copy of that document in its on-site
                                                                 records for a period of no less than 3 years
                                                                 from the date specified in the notice. The
                                                                 exclusion applies only so long as the plant
                                                                 meets all of the conditions. If the plant goes
                                                                 out of compliance with any condition, it may
                                                                 apply to the appropriate Regional Administrator
                                                                 or state Director for reinstatement The
                                                                 Regional Administrator or state Director may
                                                                 reinstate the exclusion upon finding that the
                                                                 plant has returned to compliance with all
                                                                 conditions and that violations are not likely
                                                                 to recur.
                                                                Prior to operating pursuant to this exclusion,
                                                                 the plant owner or operator prepares a one-time
                                                                 notification stating that the plant intends to
                                                                 claim the exclusion, giving the date on which
                                                                 the plant intends to begin operating under the
                                                                 exclusion, and containing the following
                                                                 language: ``I have read the applicable
                                                                 regulation establishing an exclusion for wood
                                                                 preserving wastewaters and spent wood
                                                                 preserving solutions and understand it requires
                                                                 me to comply at all times with the conditions
                                                                 set out in the regulation.'' The plant must
                                                                 maintain a copy of that document in its on-site
                                                                 records until closure of the facility. The
                                                                 exclusion applies only so long as the plant
                                                                 meets all of the conditions. If the plant goes
                                                                 out of compliance with any condition, it may
                                                                 apply to the appropriate Regional Administrator
                                                                 or state Director for reinstatement. The
                                                                 Regional Administrator or state Director may
                                                                 reinstate the exclusion upon finding that the
                                                                 plant has returned to compliance with all
                                                                 conditions and that violations are not likely
                                                                 to recur.
268.7(b)(6)..........................  Land Disposal            Where the wastes are recyclable materials used
                                        Restrictions. Testing,   in a manner constituting disposal subject to
                                        tracking, and            the and provisions of Sec.   268.20(b)
                                        recordkeeping            regarding requirements for treatment standards
                                        requirements for         and prohibition levels, the owner or operator
                                        generators, treaters,    of a treatment facility (i.e., the recycler) is
                                        and disposal             not required to notify the receiving facility,
                                        facilities.              pursuant to paragraph (b)(3) of this section.
                                                                 With each shipment of such wastes, the owner or
                                                                 operator of the recycling facility must submit
                                                                 a certification described in paragraph (b)(4)
                                                                 of this section, and a notice which includes
                                                                 the information listed in paragraph (b)(3) of
                                                                 this section (except the manifest number) to
                                                                 the Regional Administrator, or his delegated
                                                                 representative. The recycling facility also
                                                                 must keep records of the name and location of
                                                                 each entity receiving the hazardous waste-
                                                                 derived product.
                                                                Where the wastes are recyclable materials used
                                                                 in a manner constituting disposal subject to
                                                                 the provisions of Sec.   266.20(b) \20\ of this
                                                                 chapter regarding treatment standards and
                                                                 prohibition levels, the owner or operator of a
                                                                 treatment facility (i.e., the recycler) must,
                                                                 for the initial shipment of waste, prepare a
                                                                 one-time certification described in paragraph
                                                                 (b)(4) of this section, and a one-time notice
                                                                 which includes the information in paragraph
                                                                 (b)(3) of this section (except the manifest
                                                                 number). The certification and notification
                                                                 must be placed in the facility's on-site files.
                                                                 If the waste or the receiving facility changes,
                                                                 a new certification and notification must be
                                                                 prepared and placed in the on-site files. In
                                                                 addition, the recycling facility must also keep
                                                                 records of the name and location of each entity
                                                                 receiving the hazardous waste-derived product.
268.9(d).............................  Land Disposal            Wastes that exhibit a characteristic are also
                                        Restrictions. Special    subject to Sec.   268.7 requirements, except
                                        rules regarding wastes   that once the waste is no longer hazardous, a
                                        that exhibit a           one-time notification and certification must be
                                        characteristic.          placed in the generators or treaters files and
                                                                 sent to the EPA region or authorized state. The
                                                                 notification and certification that is placed
                                                                 in the generators or treaters files must be
                                                                 updated if the process or operation generating
                                                                 the waste changes and/or if the subtitle D
                                                                 facility receiving the waste changes. However,
                                                                 the generator or treater need only notify the
                                                                 EPA region or an authorized state on an annual
                                                                 basis if such changes occur. Such notification
                                                                 and certification should be sent to the EPA
                                                                 region or authorized state by the end of the
                                                                 calendar year, but no later than December 31.
                                                                Wastes that exhibit a characteristic are also
                                                                 subject to Sec.   268.7 requirements, except
                                                                 that once the waste is no longer hazardous, a
                                                                 one-time notification and certification must be
                                                                 placed in the generator's or treater's files.
                                                                 The notification and certification must be
                                                                 updated if the process or operation generating
                                                                 the waste changes and/or if the subtitle D
                                                                 facility receiving the waste changes.
----------------------------------------------------------------------------------------------------------------
\20\ In the previous regulatory language, the citation referred to Sec.   268.20(b), however, this was an error.
  In today's rule, we are correcting this error by referring to the correct citation which is Sec.   266.20(b).


[[Page 16893]]

I. We Are Making Selected Changes to the Requirements for Document 
Submittal

1. We Are Streamlining the Procedure for Obtaining a Variance From 
Classification as a Solid Waste
    A regulatory agency may grant a variance from classification as a 
solid waste for materials that are reclaimed and then reused as 
feedstock within the original production process in which the materials 
were generated. The regulation lists eight criteria that are to be used 
in determining if the request for a variance is to be granted. One of 
the criteria is a requirement to demonstrate the prevalence of the 
practice on an industry-wide basis.
    The proposed rule described a proposal to eliminate the requirement 
that applicants for this variance submit information on the prevalence 
of the practice on an industry-wide basis. The Agency found that this 
information was less important in making the decision than the other 
factors and could be difficult for a facility to provide.
    Four commenters agreed with the proposal to eliminate the 
requirement. One pointed out the difficulty of obtaining such 
information, particularly in the batch and speciality chemical 
industry. Three states also supported eliminating the requirement. 
Three other commenters opposed eliminating the requirement, arguing 
that the information is important in determining whether the 
reclamation process is an essential part of the production process.
    While the Agency believes that this information can be useful in 
some cases, we also believe that such industry-wide information about 
these practices is not critical in demonstrating or determining that 
reclamation is an essential part of production. We believe that a 
successful demonstration can be made without this information. We also 
acknowledge that this information may be very difficult, and in some 
cases, impossible for one company to obtain. We are, therefore, 
eliminating the requirement in Sec.  260.31(b)(2) that applicants 
provide industry-wide information.
2. We Are Streamlining the Requirements for Treatability Study Reports 
for Testing Facilities
    Treatability studies are studies at laboratories and testing 
facilities in which hazardous waste is tested to evaluate the 
effectiveness of a treatment process. (See definition in 40 CFR 260.) 
Facilities conducting treatability studies are excluded from the 
standard hazardous waste management requirements if they comply with 
certain requirements described in Sec.  261.4(f). Paragraph (9) 
requires the facility to submit to the regulatory agency an annual 
report that includes: (1) An estimate of the number of studies and the 
amount of waste expected to be used in treatability studies during the 
current year; and (2) information on the treatability studies conducted 
during the previous year.
    We proposed to reduce burden by eliminating the requirement to 
submit an estimate of the number of treatability studies and amount of 
waste expected to be used in treatability studies in the upcoming year. 
The proposal explained that the requirement is duplicative because the 
same information is submitted in the annual report at a later date. 
However, the change to the regulations specified in the regulatory text 
of the proposal unintentionally eliminated the entire paragraph (9) of 
Sec.  261.4(f), thus proposing to eliminate both the requirement to 
submit estimates for the current year, as well as information for the 
previous year.
    The majority of commenters (seven) supported elimination of the 
estimates. They did so with the apparent understanding that only the 
requirement to provide estimates for the coming year was to be 
eliminated, and that the requirement to submit information for the 
previous year would remain in place. Most agreed with the proposal to 
eliminate the estimates based on the rationale in the preamble that the 
information would be provided at a later date. Two commenters did point 
out that eliminating all of Sec.  261.4(f)(9) also eliminates the 
requirement for providing any report, including the submittal of 
information from the previous year.
    We agree with commenters that the estimate of upcoming activities 
are unnecessary since the same information will be provided later in 
the annual report, and the information provided on past activities will 
be more accurate than estimates of the future. We are, therefore, 
eliminating the requirement in Sec.  261.4(f)(9) to submit estimates of 
the number of studies and the amount of waste to be used in 
treatability studies for the current year, but are retaining the 
requirement for preparing and submitting an annual report providing 
information for the previous year.
3. We Are Streamlining the Requirements for Ground-Water Monitoring
    As previously discussed in the October 29, 2003 NODA (68 FR 61662), 
hazardous waste treatment, storage, and disposal facilities must 
implement ground-water monitoring as a condition for receiving a RCRA 
permit. EPA requires a phased approach to ground-water monitoring 
(detection monitoring, compliance monitoring, corrective action). 
Ground-water monitoring systems must consist of a sufficient number of 
wells, properly located and constructed, and capable of ensuring that 
the ground-water impacts of a treatment, storage, or disposal unit can 
be determined. Sampling and analysis procedures must also be capable of 
determining both background quality of ground water and quality at the 
point of compliance.
    If hazardous constituents are detected in ground water, more 
detailed monitoring may be required. In this case, a facility would 
need additional wells, sampling, and analysis to determine the extent 
and rate of contaminant migration, to determine if the ground-water 
protection standard is violated, and to indicate the need for, or 
effectiveness of, corrective action.
    Detection monitoring is the first phase of ground-water monitoring, 
and is designed to detect a change in ground-water quality in wells 
surrounding a regulated unit. A potential release from the unit, or 
impacts from activities up gradient of the unit, may cause this change. 
For detection monitoring, ground-water monitoring wells are installed 
up-gradient of the unit and at the point of compliance. Facilities then 
monitor for each indicator parameter or hazardous constituent specified 
in the permit.
    Compliance monitoring occurs when hazardous waste constituents are 
detected down-gradient of the unit. The permitting authority will 
establish hazardous constituent standards for facilities undergoing 
compliance monitoring.
    The third phase of ground-water monitoring, corrective action, is 
required when hazardous constituents exceed the ground-water protection 
standards at the point of compliance. Once this has occurred, the owner 
or operator must remedy the situation by removing the hazardous 
constituents or treating them in place.
    We are modifying the Sec.  264.99(g) requirement that facilities 
performing compliance monitoring conduct an annual 40 CFR Part 264 
Appendix IX (the ground-water monitoring chemical list) analysis of all 
monitoring wells. We are allowing, on a case-by-case basis, as 
authorized by a permit authority, sampling from a subset of the wells. 
Appendix IX analyses are costly at large facilities, and analyzing all 
wells does not necessarily contribute to protection of human health and 
the environment. This is especially the case if there are

[[Page 16894]]

multiple units and wells at a facility, and only one unit shows signs 
of contamination.
    In addition, monitoring for constituents that are not likely to be 
found at a site is wasteful and does not increase the protection of 
monitoring programs. We, therefore, are also modifying Sec.  
264.98(g)(2) to give the Regional Administrator discretion on a case-
by-case basis to allow sampling for a subset of the Appendix IX 
constituents. While this change was proposed for Sec.  264.98(c), upon 
re-evaluation, we decided it is more appropriate to amend Sec.  
264.98(g)(2) and leave Sec.  264.98(c) unchanged. Decisions on what 
constituents must be sampled will be based on the regulatory agencies' 
judgment of what amount of sampling supports the protection of human 
health and the environment, as well as the level of knowledge of what 
contaminants could be present at a site. As a commenter pointed out, 
this subsection prior to today did not require that all samples must be 
analyzed for every chemical parameter and hazardous constituent listed 
in Appendix IX. Today's rule eliminates ambiguity by specifically 
confirming that sampling for a site-specific subset of constituents is 
allowable.
    Based on a comment we received, we also are revising Sec.  
264.98(d) to allow for alternative sampling procedures as provided in 
Sec.  264.97(g)(2). Under Sec.  264.98(d), a facility must collect at 
least four samples from each well at least semi-annually. This 
provision has resulted in sites being required to sample four times 
within a single monitoring event, despite the contradiction with Sec.  
264.97(g)(2) which allows for an alternate sampling procedure. To 
reduce some of the burden related to this sampling and reporting, we 
are removing the last sentence from Sec.  264.98(d) (requiring a 
facility to collect at least four samples from each well at least semi-
annually). We are also eliminating the last sentence in Sec.  264.99(f) 
(requiring a facility to collect at least four samples from each well 
at least semi-annually). These changes will prevent Sec.  264.98(d) and 
Sec.  264.99(f) from unintentionally trumping the flexibility granted 
by Sec.  264.97(g)(2).
    Finally, based on another comment received, we are also changing 
the re-sampling requirements in Sec.  264.98(g)(3) and Sec.  264.99(g) 
from ``may resample within one month'' to ``may resample within one 
month or at an alternative site-specific time frame approved by the 
Administrator.'' This change allows for sampling to be based on site-
specific hydrogeologic conditions. It also can be burdensome for 
facilities to resample wells within 30 days, because this time frame 
can allow, in some circumstances, insufficient time to evaluate the 
original data set, perform quality assurance evaluations, and re-
mobilize the sampling team.

Table 17.--Changes to the Requirements for Document Submittal for Variances From Classification as a Solid Waste
                         and for Testing Facilities Regarding Treatability Study Reports
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement  New regulatory language as amended by the Burden
                                                                                 Reduction Rule
----------------------------------------------------------------------------------------------------------------
260.31(b)(2).........................  Rulemaking Petitions.    The prevalence of the practice on an industry-
                                        Standards and criteria   wide basis.
                                        for variances from
                                        classification as a
                                        solid waste.
                                                                Section 260.31(b)(2) has been deleted from the
                                                                 regulatory text.
261.4(f)(9)..........................  General. Exclusions.     The facility prepares and submits a report to
                                        Samples undergoing       the Regional Administrator, or state Director
                                        treatability studies     (if located in an authorized state), by March
                                        at laboratories and      15 of each year that estimates the number of
                                        testing facilities.      studies at studies and the amount of waste
                                                                 laboratories and expected to be used in
                                                                 treatability testing studies during the current
                                                                 year, and facilities. includes the following
                                                                 information for the previous calendar year:
                                                                The facility prepares and submits a report to
                                                                 the Regional Administrator, or state Director
                                                                 (if located in an authorized state), by March
                                                                 15 of each year, that includes the following
                                                                 information for the previous calendar year:
----------------------------------------------------------------------------------------------------------------


   Table 18.--Changes to the Requirements for Document Submittal for Permitted Treatment, Storage and Disposal
                                                   Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement  New regulatory language as amended by the Burden
                                                                                 Reduction Rule
----------------------------------------------------------------------------------------------------------------
264.98(d)............................  Releases from Solid      The Regional Administrator will specify the
                                        Waste Management         frequencies for collecting samples and
                                        Units. Detection         conducting statistical tests to determine
                                        monitoring program.      whether there is statistically significant
                                                                 evidence of contamination for any parameter or
                                                                 hazardous constituent specified in the permit
                                                                 under paragraph (a) of this section in
                                                                 accordance with Sec.   264.97(g). A sequence of
                                                                 at least four samples from each well
                                                                 (background and compliance wells) must be
                                                                 collected at least semi-annually during
                                                                 detection monitoring.
                                                                The Regional Administrator will specify the
                                                                 frequencies for collecting samples and
                                                                 conducting statistical tests to determine
                                                                 whether there is statistically significant
                                                                 evidence of contamination for any parameter or
                                                                 hazardous constituent specified in the permit
                                                                 conditions under paragraph (a) of this section
                                                                 in accordance with Sec.   264.97(g).
264.98(g)(2).........................  Releases from Solid      Immediately sample the ground water in all
                                        Waste Management         monitoring wells and determine whether
                                        Units. Detection         constituents in the list of appendix IX of part
                                        monitoring program.      264 are present, and if so, in what
                                                                 concentration.

[[Page 16895]]

 
                                                                Immediately sample the ground water in all
                                                                 monitoring wells and determine whether
                                                                 constituents in the list of appendix IX of part
                                                                 264 are present, and if so, in what
                                                                 concentration. However, the Regional
                                                                 Administrator, on a discretionary basis, may
                                                                 allow sampling for a site-specific subset of
                                                                 constituents from the Appendix IX list of this
                                                                 part and other representative/related waste
                                                                 constituents.
264.98(g)(3).........................  Releases from Solid      For any appendix IX compounds found in the
                                        Waste Management         analysis pursuant to paragraph (g)(2) of this
                                        Units. Detection         section, the owner or operator may resample
                                        monitoring program.      within one month and repeat the analysis for
                                                                 those compounds detected. If the results of the
                                                                 second analysis confirm the initial results,
                                                                 then these constituents will form the basis for
                                                                 compliance monitoring. If the owner or operator
                                                                 does not resample for the compounds found
                                                                 pursuant to paragraph (g)(2) of this section,
                                                                 the hazardous constituents found during this
                                                                 initial appendix IX analysis will form the
                                                                 basis for compliance monitoring.
                                                                For any appendix IX compounds found in the
                                                                 analysis pursuant to paragraph (g)(2) of this
                                                                 section, the owner or operator may resample
                                                                 within one month or at an alternative site-
                                                                 specific schedule approved by the Administrator
                                                                 and repeat the analysis for those compounds
                                                                 detected. If the results of the second analysis
                                                                 confirm the initial results, then these
                                                                 constituents will form the basis for compliance
                                                                 monitoring. If the owner or operator does not
                                                                 resample for the compounds in paragraph (g)(2)
                                                                 of this section, the hazardous constituents
                                                                 found during this initial appendix IX analysis
                                                                 will form the basis for compliance monitoring.
264.99(f)............................  Releases from Solid      The Regional Administrator will specify the
                                        Waste Management         frequencies for collecting samples and
                                        Units. Compliance        conducting statistical tests to determine
                                        monitoring program.      statistically significant evidence of increased
                                                                 contamination in accordance with Sec.
                                                                 264.97(g). A sequence of at least four samples
                                                                 from each well (background and compliance
                                                                 wells) must be collected at least semi-annually
                                                                 during the compliance period of the facility.
                                                                The Regional Administrator will specify the
                                                                 frequencies for collecting samples and
                                                                 conducting statistical tests to determine
                                                                 statistically significant evidence of increased
                                                                 contamination in accordance with Sec.
                                                                 264.97(g).
264.99(g)............................  Releases from Solid      The owner or operator must analyze samples from
                                        Waste Management         all monitoring wells at the compliance point
                                        Units. Compliance        for all constituents contained in appendix IX
                                        monitoring program.      of part 264 at least annually to determine
                                                                 whether additional hazardous constituents are
                                                                 present in the uppermost aquifer and, if so at
                                                                 what concentrations, pursuant to procedures in
                                                                 Sec.   264.98(f). If the owner or operator
                                                                 finds appendix IX constituents in the ground
                                                                 water that are not already identified in the
                                                                 permit as monitoring constituents, the owner or
                                                                 operator may resample within one month and
                                                                 repeat the appendix IX analysis. If the second
                                                                 analysis confirms the presence of new
                                                                 constituents, the owner or operator must report
                                                                 the concentration of these additional
                                                                 constituents to the Regional Administrator
                                                                 within seven days after the completion of the
                                                                 second analysis and add them to the monitoring
                                                                 list. If the owner or operator chooses not to
                                                                 resample, then he or she must report the
                                                                 concentrations of these additional constituents
                                                                 to the Regional Administrator within seven days
                                                                 after completion of the initial analysis and
                                                                 add them to the monitoring list.
                                                                Annually, the owner or operator must determine
                                                                 whether additional hazardous constituents from
                                                                 appendix IX of this 264, which could possibly
                                                                 be present but are not on the detection
                                                                 monitoring list in the permit, are actually
                                                                 present in the uppermost aquifer and, if so, at
                                                                 what concentration, pursuant to procedures in
                                                                 Sec.   264.98(f). To accomplish this, the owner
                                                                 or operator must consult with the Regional
                                                                 Administrator to determine on a case-by-case
                                                                 basis: (1) Which sample collection event during
                                                                 the year will involve enhanced sampling; (2)
                                                                 the number of monitoring wells at the
                                                                 compliance point to undergo enhanced sampling;
                                                                 (3) the number of samples to be collected from
                                                                 each of these monitoring wells; and, (4) the
                                                                 specific constituents from Appendix IX of this
                                                                 264 for which these samples must be analyzed.
                                                                 If the enhanced sampling event indicates that
                                                                 appendix IX constituents are present in the
                                                                 ground water that are not already identified in
                                                                 the permit as monitoring constituents, the
                                                                 owner or operator may resample within one month
                                                                 or at an alternative site-specific schedule
                                                                 approved by the Regional Administrator, and
                                                                 repeat the analysis. If the second analysis
                                                                 confirms the presence of new constituents, the
                                                                 owner or operator must report the concentration
                                                                 of these additional constituents to the
                                                                 Regional Administrator within seven days after
                                                                 the completion of the second analysis and add
                                                                 them to the monitoring list. If the owner or
                                                                 operator chooses not to resample, then he or
                                                                 she must report the concentrations of these
                                                                 additional constituents to the Regional
                                                                 Administrator within seven days after
                                                                 completion of the initial analysis, and add
                                                                 them to the monitoring list.
----------------------------------------------------------------------------------------------------------------


[[Page 16896]]

J. We Are Making Selected Changes to the Requirements for Semi-Annual 
Reports to Annual Reports

1. We Are Changing the Requirement for a Semi-Annual Report Detailing 
the Effectiveness of the Corrective Action Program
    Section 264.100(g) requires the owner or operator of a permitted 
facility to report in writing to the Regional Administrator on the 
effectiveness of the corrective action program. These reports must be 
submitted semi-annually. We are now requiring an annual report instead 
of a semi-annual report. While this change was not in the proposed 
rule, it was identified in the comments received and was discussed in 
the October 29, 2003 NODA (68 FR 61668). It is a change that conforms 
to the change we are making to Sec.  264.113(e)(5) and was supported by 
a majority of the commenters.
2. We Are Changing the Requirement for a Semi-Annual Report Describing 
the Progress of the Corrective Action Program
    We proposed lengthening the reporting frequency for corrective 
action effectiveness reports required by Sec. Sec.  264.113(e)(5) and 
265.113(e)(5). These reports are currently required to be submitted 
semi-annually and include a description of the progress of the 
corrective action program, all ground-water monitoring data, and an 
evaluation of the effect of the continued receipt of non-hazardous 
wastes on the effectiveness of the corrective action. We received 
comments, mainly from the states, on this proposed regulatory change. 
Several states suggested giving the regulatory agency the flexibility 
of establishing report submittals on a case-by-case basis. Other states 
suggested the reports be submitted at least annually. Still another 
state suggested that the semi-annual submittal of reports is preferred 
because it allows the state to identify inadequate monitoring systems 
earlier, which in turn, could save the facilities needless ground-water 
monitoring expenses.
    After reviewing the comments submitted, we have decided to 
promulgate the changes as proposed. Ground-water cleanup is generally a 
multi-year effort. Thus, we believe that annual submittal of these 
reports will not jeopardize the protection of human health and the 
environment.

 Table 19.--Reduced Frequency for Submittal of Reports for Permitted Treatment, Storage and Disposal Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement  New regulatory language as amended by the Burden
                                                                                 Reduction Rule
----------------------------------------------------------------------------------------------------------------
264.100(g)...........................  Releases from Solid      The owner or operator must report in writing to
                                        Waste Management         the Regional Administrator on the effectiveness
                                        Units. Corrective        of the corrective action program. The owner or
                                        action program.          operator must submit these reports semi-
                                                                 annually.
                                                                The owner or operator must report in writing to
                                                                 the Regional Administrator on the effectiveness
                                                                 of the corrective action program. The owner or
                                                                 operator must submit these reports annually.
264.113(e)(5)........................  Closure and Post-        During the period of corrective action, the
                                        Closure. Closure; time   owner or operator shall provide semi-annual
                                        allowed for closure.     reports to the Regional Administrator that
                                                                 describe the progress of the corrective action
                                                                 program, compile all ground-water monitoring
                                                                 data, and evaluate the effect of the continued
                                                                 receipt of non-hazardous wastes on the
                                                                 effectiveness of the corrective action.
                                                                During the period of corrective action, the
                                                                 owner or operator shall provide annual reports
                                                                 to the Regional Administrator describing the
                                                                 progress of the corrective action program,
                                                                 compile all ground-water monitoring data, and
                                                                 evaluate the effect of the continued receipt of
                                                                 non-hazardous wastes on the effectiveness of
                                                                 the corrective action.
----------------------------------------------------------------------------------------------------------------


    Table 20.--Reduced Frequency for Submittal of Reports for Interim Status Treatment, Storage and Disposal
                                                   Facilities
----------------------------------------------------------------------------------------------------------------
                                                                           Current regulatory language
                                                               -------------------------------------------------
             CFR section                Regulatory requirement  New regulatory language as amended by the Burden
                                                                                 Reduction Rule
----------------------------------------------------------------------------------------------------------------
265.113(e)(5)........................  Closure and Post-        During the period of corrective action, the
                                        Closure. Closure; time   owner or operator shall provide semi-annual
                                        allowed for closure.     reports to the Regional Administrator that
                                                                 describe the progress of the corrective action
                                                                 program, compile all ground-water monitoring
                                                                 data, and evaluate the effect of the continued
                                                                 receipt of non-hazardous wastes on the
                                                                 effectiveness of the corrective action.
                                                                During the period of corrective action, the
                                                                 owner or operator shall provide annual reports
                                                                 to the Regional Administrator describing the
                                                                 progress of the corrective action program,
                                                                 compile all ground-water monitoring data, and
                                                                 evaluate the effect of the continued receipt of
                                                                 non-hazardous wastes on the effectiveness of
                                                                 the corrective action.
----------------------------------------------------------------------------------------------------------------

IV. What Regulatory Requirements Will Remain in the CFR?

    Commenters opposed a number of the burden reduction changes that we 
either proposed or noticed in our October 29, 2003 NODA. After thorough 
analysis of the comments, and in consultation with state 
representatives, we have decided (at least for the present time) to 
retain these regulatory requirements. Stakeholders persuaded us that 
these changes could delete important recordkeeping and reporting 
requirements that were necessary in order to protect human health and 
the environment. Stakeholders, particularly the states, also provided 
arguments as to

[[Page 16897]]

the importance of retaining their oversight role when dealing with 
leaks and spills of hazardous waste. Table 21--Regulatory Requirements 
That Will Remain in the CFR, identifies those proposed regulatory 
sections that we are not promulgating in today's rule.
    For information on what commenters said regarding particular 
provisions and the Agency's response, the reader is referred to the 
following document, Response to Comments Background Document that can 
be found in the rulemaking docket.

     Table 21.--Regulatory Requirements That Will Remain in the CFR
------------------------------------------------------------------------
         CFR section                     Regulatory requirement
------------------------------------------------------------------------
261.38.......................  Lists of Hazardous Wastes. Comparable/
                                syngas fuel exclusion.
261.38(c)(1)(i)(A)...........  Submit a one-time comparable/syngas fuel
                                notice to the permitting agency.
264/5.16.....................  General Facility Standards. Personnel
                                training.
264/5.16(d)(1)...............  Record the job title.
264/5.16(d)(2)...............  Record job description.
264/5.16(d)(3)...............  Record type and amount of training
                                employees will be provided.
264.90.......................  Releases From Solid Waste Management
                                Units. Applicability.
264.90(a)(2).................  Comply with the requirements of 264.101
                                with exceptions for surface
                                impoundments, waste piles, land
                                treatment unit, or landfills.
264/5.98.....................  Releases From Solid Waste Management
                                Units. Detection monitoring program.
264.98(c)....................  Conduct and maintain ground-water
                                monitoring.
264.98(g)(1).................  Prepare and submit a notification of
                                contamination.
264.98(g)(5)(ii).............  Prepare and submit an engineering
                                feasibility plan for corrective action.
264.98(g)(6)(i)-(ii).........  Prepare and submit a notification of
                                intent to make a demonstration.
264.99.......................  Releases From Solid Waste Management
                                Units. Compliance monitoring program.
264.99(h)(1).................  Prepare and submit a notification of
                                exceeded concentration limits.
264.99(i)(1)-(2).............  Prepare and submit a notification of
                                intent to make a demonstration.
264/5.174....................  Use and Management of Containers.
                                Inspections.
264/5.174....................  Inspect containers weekly.
264/5.193....................  Tank Systems. Leak detection systems for
                                tanks.
264.193(c)(3)................  Demonstration.
264.193 (c)(4)...............  Demonstration.
264/5.193(e)(3)(iii).........  Demonstrate to EPA that technology and
                                site conditions do not allow detection
                                of release within 24 hours.
264/5.193(g).................  Variance from leak detection systems for
                                tanks.
264/5.193(h).................  Variance from leak detection systems for
                                tanks.
264.196......................  Tank Systems. Response to leaks or spills
                                and disposition of leaking or unfit-to
                                use tank systems.
264.196(d)(1)................  Notify EPA of release.
264.196(d)(2)................  Notify EPA of release.
264.196(d)(3)................  Submit report describing release.
264/5.223....................  Surface Impoundments. Response actions.
264/5.223(b)(1)..............  Notify EPA in writing if flow rate
                                exceeds Action Leakage Rate for any sump
                                within 7 days.
264/5.223(b)(2)..............  Submit a written assessment to the
                                Regional Administrator within 14 days of
                                determination of leakage.
264/5.223(b)(6)..............  Compile and submit information to EPA
                                each month the Action Leakage Rate is
                                exceeded.
264.253......................  Waste Piles. Response actions.
264.253(b)(1)................  Notify EPA in writing of the exceedence
                                within 7 days of the determination.
264.253(b)(2)................  Submit a written assessment to the
                                Regional Administrator within 14 days of
                                determining leakage.
264.253(b)(6)................  Compile and submit information to the EPA
                                each month that the Action Leakage Rate
                                is exceeded.
264.278......................  Land Treatment. Unsaturated zone
                                monitoring.
264.278(g)(1)................  Prepare and submit a notice of
                                statistically significant increases in
                                hazardous constituents below treatment
                                zone.
264.278(h)(1)-(2)............  Prepare and submit a notice of intent to
                                make a demonstration that other sources
                                or error led to increases below
                                treatment zone.
264.304......................  Landfills. Response actions.
264.304(b)(1)................  Notify EPA if Action Leakage Rate is
                                exceeded within 7 days of determination.
264.304(b)(2)................  Submit a written assessment to the
                                Regional Administrator within 14 days of
                                determination of leakage.
264.304(b)(6)................  Submit information to EPA each month the
                                Action Leakage Rate is exceeded.
264.573......................  Drip Pads. Design and operating
                                standards.
264.573(m)(1)(iv)............  Notify EPA in writing of release.
264.573(m)(2)................  Regional Administrator will make a
                                determination and will notify owner/
                                operator of the determination.
264.573(m)(3)................  Notify EPA and certify completion of
                                repairs.
264.1036.....................  Air Emission Standards for Process Vents.
                                Reporting requirements.
264.1036(a)..................  Notify EPA semi-annually of exceedences.
264.1065.....................  Air Emission Standards for Equipment
                                Leaks. Reporting requirements.
264.1065(a)..................  Notify EPA semi-annually of exceedences.
264/5.1101...................  Containment Buildings. Design and
                                operating standards.
265.1101(c)(2)...............  Certify by qualified professional
                                engineer.
264/5.1101(c)(3)(i)(D).......  Notify EPA in writing of release.
264/5.1101(c)(3)(ii)-(iii)...  Notify EPA and verify in writing that the
                                cleanup and repairs have been completed
                                after a release.
264/5.1101(c)(4).............  Inspection frequency.
265.1(b).....................  Purpose, scope, and applicability.
265.93.......................  Ground-Water Monitoring. Preparation,
                                evaluation, and response.
265.93(c)(1).................  Notify of increased indicator parameter
                                concentrations.
265.93(d)(1).................  Notify of increased indicator parameter
                                concentrations.
265.93(e)....................  Any ground-water assessment to satisfy
                                the requirements of Sec.   265.93(d)(4)
                                which is initiated prior to final
                                closure must be completed and reported
                                in accordance with Sec.   265.93(d)(5).

[[Page 16898]]

 
265.93(f)....................  Evaluate data and if Sec.   265.91(a) are
                                not satisfied, immediately modify the
                                number, location, or depth of the
                                monitoring wells.
265.94.......................  Ground-Water Monitoring. Recordkeeping
                                and reporting.
265.94(a)(2)(i)..............  Prepare and submit a quarterly report of
                                concentrations of values of the drinking
                                water suitability parameters.
265.94(a)(2)(ii).............  Prepare and submit a report on indicator
                                parameter concentrations and
                                evaluations.
265.94(a)(2)(iii)............  Prepare and submit a report on ground-
                                water surface elevations.
265.94(b)(2).................  Prepare and submit a report on the
                                results of the ground-water quality
                                assessment program.
265.259......................  Waste Piles. Response actions.
265.259(b)(1)................  Notify EPA in writing within 7 days of
                                determination.
265.259(b)(2)................  Submit a written assessment to the
                                Regional Administrator within 14 days of
                                determination of leakage.
265.259(b)(6)................  Submit information to EPA each month that
                                the Action Leakage Rate is exceeded.
265.276......................  Land Treatment. Food-chain crops.
265.276(a)...................  Submit notification for food-chain crops
                                at land treatment facility.
265.303......................  Landfills. Response actions.
265.303(b)(1)................  Notify EPA if Action Leakage Rate is
                                exceeded within 7 days of determination.
265.303(b)(2)................  Submit a written assessment to the
                                Regional Administrator within 14 days of
                                determination of leakage.
265.303(b)(6)................  Submit information to EPA each month the
                                Action Leakage Rate is exceeded.
265.443......................  Drip Pads. Design and operating
                                requirements.
265.443(m)(1)(iv)(2).........  Notify EPA of release and provide written
                                notice of procedures and schedule for
                                cleanup.
265.443(m)(2)................  Regional Administrator will make a
                                determination and notify the owner/
                                operator of the determination.
265.443(m)(3)................  Notify Regional Administrator and certify
                                completion of repairs.
266.103......................  Hazardous Waste Burned in Boilers and
                                Industrial Furnaces. Interim status
                                standards for burners.
266.103(b)(2)(ii)(D).........  Certification of pre-compliance.
268.7........................  Land Disposal Restrictions. General.
                                Testing, tracking, and recordkeeping
                                requirements for generators, treaters,
                                and disposal facilities.
268.7(a)(6)..................  Requirement to keep in the facility's
                                files all supporting data and waste
                                analysis data for ``knowledge of the
                                waste'' determinations and for testing
                                determinations.
268.7(d)(1)..................  Requirement to submit to the regulatory
                                authority one-time notifications that
                                hazardous debris is excluded form the
                                definition of hazardous waste.
270.17(d)....................  Permit Application. Specific part B
                                information requirements for surface
                                impoundments.
------------------------------------------------------------------------

V. We Will Implement This Rule Via the Class I Permit Modification 
Process Without Prior Approval

    Several comments on the proposed rule pointed out that implementing 
many of the changes in the proposal would require a Class 2 Permit 
modification for facilities with permits (see the following Web site 
for information about Permit modifications: http://www.epa.gov/epaoswer/hotline/training/perm.pdf). Obtaining a Class 2 Permit 
modification requires a substantial effort on the part of a regulated 
facility, which is contrary to the intent of today's rule. We believe 
the changes in this rule will provide no significant risk to human 
health or the environment, and thus, we prefer that these changes 
become effective as quickly as possible so that the paperwork reduction 
benefits from the rule can be realized.
    Therefore, in our October 29, 2003 NODA, we requested comment on 
allowing permitted facilities to use the Class 1 permit modification 
procedure, with prior Agency approval, to implement the changes arising 
from this rulemaking. We also requested comment on whether the Class 1 
permit modifications should be without prior Agency approval.
    States represented by the Association of State and Territorial 
Solid Waste Management Officials (ASTSWMO) requested that we use the 
Class 1 permit modification procedure with prior Agency approval. They 
expressed an interest in retaining oversight in the implementation of 
our burden reductions. After weighing this interest against the 
interest in achieving savings as soon as possible, we have decided in 
favor of not delaying the benefits of this rule. This is based on our 
judgment that, in general, the risks associated with these changes are 
negligible. We will allow the changes in today's rule to be implemented 
as Class 1 permit modifications without prior approval, except for a 
permit modification for reduced inspection frequency for Performance 
Track member facilities which will be implemented as a Class 1 permit 
modification with prior approval. To implement this approach, we are 
adding regulatory language and an entry to the permit modification 
classification table in Appendix I to 270.42, denoting modifications 
pursuant to the burden reduction rule. However, we wish to point out 
that, unless state law prevents it, states can be more stringent than 
the EPA rules if there are specific concerns with the consequences of 
these changes in any state. All states also can use the omnibus 
authority of RCRA Section 3005(c) for specific facilities where they 
believe there is risk due to site-specific circumstances not identified 
in our rulemaking process. This will allow states to retain oversight 
where they choose to do so.

VI. How Will Today's Regulatory Changes Be Administered and Enforced in 
the States?

A. Applicability of Federal Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer their own hazardous waste programs in lieu of the federal 
program within the state. Following authorization, EPA retains 
enforcement authority under sections 3008, 3013, and 7003 of RCRA, 
although authorized states have primary enforcement responsibility. The 
standards and requirements for state authorization are found at 40 CFR 
Part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of 
1984 (HSWA), a state with final RCRA authorization administered its 
hazardous waste program entirely in lieu of EPA administering the 
federal program in that state. The federal requirements no longer 
applied in the authorized state, and EPA could not issue permits for 
any facilities in that state, since only the state was authorized to 
issue RCRA permits. When new, more stringent federal

[[Page 16899]]

requirements were promulgated, the state was obligated to enact 
equivalent authorities within specified time frames. However, the new 
federal requirements did not take effect in an authorized state until 
the state adopted the federal requirements as state law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which 
was added by HSWA, new requirements and prohibitions imposed under HSWA 
authority take effect in authorized states at the same time that they 
take effect in unauthorized states. EPA is directed by the statute to 
implement these requirements and prohibitions in authorized states, 
including the issuance of permits, until the state is granted 
authorization to do so. While states must still adopt HSWA related 
provisions as state law to retain final authorization, EPA implements 
the HSWA provisions in authorized states until the states do so.
    Authorized states are required to modify their programs only when 
EPA enacts federal requirements that are more stringent or broader in 
scope than existing federal requirements. RCRA section 3009 allows the 
states to impose standards more stringent than those in the federal 
program (see also 40 CFR 271.1). Therefore, authorized states may, but 
are not required to, adopt federal regulations, both HSWA and non-HSWA, 
that are considered less stringent than previous federal regulations.

B. Authorization of States for Today's Rule

    Today's rule affects many aspects of the RCRA program and is 
promulgated pursuant to both HSWA and non-HSWA statutory authority. 
Today's rule amends a number of provisions in the RCRA regulations 
which were promulgated pursuant to HSWA. These provisions include, 
among others, the land disposal restrictions and the regulation of air 
emissions from hazardous waste facilities, which were promulgated 
pursuant to authority in sections 3004(m) and (o) respectively, of 
RCRA. Therefore, the Agency is adding the rule to Table 1 in 40 CFR 
271.1(j), which identifies the Federal program requirements that are 
promulgated pursuant to the statutory authority that was added by HSWA.
    Other sections of today's rule are being promulgated pursuant to 
non-HSWA authority. All of the HSWA and non-HSWA requirements in 
today's rulemaking are equivalent to, or less stringent than, the 
existing provisions in the Federal regulations which they would amend. 
Authorized states are required to modify their program only when EPA 
promulgates Federal regulations that are more stringent or broader in 
scope than the authorized state regulations. For those changes that are 
less stringent or reduce the scope of the Federal program, states are 
not required to modify their program. This is a result of section 3009 
of RCRA, which allows states to impose more stringent regulations than 
the Federal program. Therefore, states are not required to adopt and 
seek authorization for this rulemaking. EPA will implement this 
rulemaking only in those states which are not authorized for the RCRA 
program, and will implement provisions promulgated pursuant to HSWA 
only in those states which have not received authorization for the HSWA 
provision that is amended today.
    Nevertheless, this rule will provide significant benefits to EPA, 
states, and the regulated community, without compromising human health 
or environmental protection. Because this rulemaking will not become 
effective in authorized states until they have adopted and are 
authorized for it, we strongly encourage states to amend their programs 
and seek authorization for today's rule. EPA will try to act promptly 
on any such requests for authorization.

VII. Statutory and Executive Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is significant and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines significant regulatory action as one that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or state, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Although this rule clarifies inconsistencies in the regulations and 
decreases burden, it is still considered a significant regulatory 
action under the terms of Executive Order 12866 since it addresses one 
of the President's priorities of reducing burden.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This rule is promulgating changes to the regulatory requirements of the 
RCRA hazardous waste program to reduce the paperwork burden certain 
requirements impose on the States, EPA, and the regulated community. 
EPA estimates that the reporting and recordkeeping hour burden 
reduction for this rule ranges from 22,000 hours to 37,500 hours. EPA 
also estimates that the reporting and recordkeeping cost burden 
reduction for this rule ranges from approximately $2 million to $3 
million. The Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations 40 CFR parts 260, 261, 264, 265, 266, 268, 270, 
and 271, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. The burden reduction resulting from this rulemaking will 
affect the following seven existing Information Collection Requests 
(ICRs): OMB control number 2050-0033, Facility Groundwater Monitoring 
Requirements, EPA ICR number 0959.12; OMB control number 2050-0035, 
Hazardous Waste Generator Standards, EPA ICR number 0820.09; OMB 
control number 2050-0050, Hazardous Waste Specific Unit Requirements 
and Special Waste Processes and Types, EPA ICR number 1572.06; OMB 
control number 2050-0053, Identification, Listing and Rulemaking 
Petitions, EPA ICR number 1189.14; OMB control number 2050-0073, 
Boilers and Industrial Furnaces: General Hazardous Waste Facility 
Standards, Specific Unit Requirements and Part B Permit Application and 
Modifications Requirements, EPA ICR number 1361.10; OMB control number 
2050-0085, Land Disposal Restrictions, EPA ICR number 1442.18; OMB 
control number 2050-0120, General Hazardous Waste Facility Standards, 
EPA ICR number 1571.07. A copy of these OMB approved Information 
Collection Requests (ICR) may be obtained from Susan Auby, Collection 
Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop,

[[Page 16900]]

acquire, install, and utilize technology and systems for the purposes 
of collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the final rule on small 
entities, a ``small entity'' is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    The final rule is specifically intended to reduce, not increase, 
the paperwork and related burdens of the RCRA hazardous waste program. 
For businesses in general, including all small businesses, the 
regulatory changes will reduce the labor time and other costs of 
preparing, keeping records of, and submitting reports to the Agency. 
The final rule, for example, reduces the frequency by which businesses 
must conduct specified recordkeeping and reporting activities (e.g., 
decreased inspection frequency for hazardous waste tanks from daily to 
weekly). It also eliminates certain recordkeeping and reporting 
requirements altogether, i.e., in cases where the documents are little 
used by the public or regulators. In addition, the rule eliminates 
redundancies between the RCRA regulations and other regulatory programs 
(e.g., RCRA and OSHA requirements for personnel training), thereby 
streamlining facilities' compliance activities. Finally, the rule 
provides increased flexibility in how waste handlers may comply with 
the regulations (e.g., establishment of decreased inspection 
frequencies for facilities in the National Performance Track Program). 
We have therefore concluded that today's final rule will relieve 
regulatory burden for all affected small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
establishes requirements for Federal agencies to assess the effects of 
their regulatory actions on state, local, and tribal governments and 
the private sector. Under Section 202 of the UMRA, EPA must prepare a 
written statement for rules with Federal mandates that may result in 
the expenditure by state, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. Before promulgating a rule for which a written statement is 
needed, Section 205 of the UMRA requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of Section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
Section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed, under Section 203 of the UMRA, a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments; enabling officials of affected 
small governments to provide meaningful and timely input in the 
development of EPA regulatory proposals with significant federal 
intergovernmental mandates; and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that the final rule does not contain a federal 
mandate that may result in expenditures of $100 million or more by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, in any one year. In addition, the rule contains no 
regulatory requirements for small governments. Thus, the final rule is 
not subject to the requirements of Sections 202, 203, and 205 of the 
UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 requires EPA to develop an accountable 
process to ensure ``meaningful and timely input by state and local 
officials in the development of regulatory policies that have 
Federalism implications.'' As defined in Executive Order 13132, 
``policies that have Federalism implications'' include regulations, 
legislative comments or proposed legislation, and other policy 
statements or actions that have substantial direct effects on the 
states, on the relationship between the National Government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government.
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal Government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA may not issue a regulation that 
has federalism implications and that preempts state law, unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    The final rule does not have federalism implications. It will not 
have

[[Page 16901]]

substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it will not impose any 
requirements on states or any other level of government. As explained 
above, the final rule eliminates or relaxes many of the paperwork 
requirements in the regulations. Because these changes are equivalent 
to or less stringent than the existing federal program, states will not 
be required to adopt and seek authorization for them. Thus, the 
requirements of Section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 requires EPA to develop an accountable 
process to ensure ``meaningful and timely input by Tribal officials in 
the development of regulatory policies that have Tribal implications.'' 
As defined in Executive Order 13175, ``policies that have Tribal 
implications'' include regulations, legislative comments or proposed 
legislation, and other policy statements or actions that have 
substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes.
    The final rule does not have tribal implications. It will not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal Government and Indian Tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian Tribes, as specified in Executive Order 13175. As 
explained above, the final rule eliminates or relaxes many of the 
paperwork requirements in the regulations. Thus, Executive Order 13175 
does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045 applies to any rule that may: (1) Be 
``economically significant'under Executive Order 12866 (i.e., a 
rulemaking that has an annual effect on the economy of $100 million or 
more or would adversely affect in a material way the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or state, local, or tribal governments or 
communities), and (2) concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. If the regulatory action meets both criteria, the Agency must 
evaluate the environmental health or safety effects of the planned rule 
on children, and explain why the planned regulation is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by the Agency.
    EPA has determined that the final rule is not subject to Executive 
Order 13045 because it is not an ``economically significant'' rule as 
defined by Executive Order 12866. EPA also expects the rule does not 
have a disproportionate effect on children's health. The basic reason 
for this finding is that the rule modifies or eliminates paperwork 
requirements that were deemed unnecessary or infrequently used by 
regulators. However, the rule preserves the technical requirements 
underlying these paperwork requirements. In addition, regulators 
continue to have access to all facility paperwork held on site, should 
the need arise.
    In addition, EPA has reduced the inspection frequency of tank 
systems from each operating day to at least weekly, provided that the 
tank systems have full secondary containment with leak detection 
equipment or established workplace practices that will alert facility 
personnel. SQG tank systems are required to have secondary containment 
with leak detection equipment or established workplace practices to 
adopt the weekly inspections.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    Executive Order 13211 requires EPA to prepare and submit a 
Statement of Energy Effects to OMB for those matters identified as 
significant energy actions. As defined in Executive Order 13211, a 
``significant energy action'' is any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking that: (1) Is a significant regulatory action 
under Executive Order 12866 or any successor order and is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (2) is designated by OMB as a significant energy action.
    The final rule does not involve the supply, distribution, or use of 
energy. Thus, Executive Order 13211 does not apply to this rule.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, directs EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures) that are developed 
or adopted by voluntary consensus standards bodies. The NTTAA also 
directs EPA to provide Congress, through OMB, explanations when the 
Agency decides not to use available and applicable voluntary consensus 
standards.
    The final rule does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Under Executive Order 12898, as well as through EPA's April 1995 
``Environmental Justice Strategy, OSWER Environmental Justice Task 
Force Action Agency Report'' and National Environmental Justice 
Advisory Council, EPA has undertaken to incorporate environmental 
justice into its policies and programs. EPA is committed to addressing 
environmental justice concerns, and is assuming a leadership role in 
environmental justice initiatives to enhance environmental quality for 
all residents of the U.S. The Agency's goals are to ensure that no 
segment of the population, regardless of race, color, national origin, 
or income, bears disproportionately high and adverse human health and 
environmental effects as a result of EPA's policies, programs, and 
activities.
    EPA has considered the impacts of the final rule on low-income 
populations and minority populations and concluded that there are no 
disproportionately high impacts under the rule. The basic reason for 
this finding is that the rule modifies or eliminates paperwork 
requirements that were deemed unnecessary or infrequently used by 
regulators. However, the rule preserves the technical requirements 
underlying these paperwork requirements. In addition, regulators 
continue to have access to all facility paperwork held on site, should 
the need arise.

[[Page 16902]]

    In addition, EPA has reduced the inspection frequency of tank 
systems from each operating day to at least weekly, provided that the 
tank systems have full secondary containment with leak detection 
equipment or workplace practices that will alert facility personnel.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective May 4, 2006.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste Reporting and 
recordkeeping requirements.

40 CFR Part 261

    Excluded hazardous waste, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 264

    Air pollution control, Hazardous waste, Insurance, Packaging and 
containers, Reporting and recordkeeping requirements, Security 
measures, Surety bonds.

40 CFR Part 265

    Air pollution control, Hazardous waste, Insurance, Packaging and 
containers, Reporting and recordkeeping requirements, Security 
measures, Surety bonds, Water supply.

40 CFR Part 266

    Energy, Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

40 CFR Part 268

    Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 270

    Administrative practice and procedure, Confidential business 
information, Hazardous materials transportation, Hazardous waste, 
Reporting and recordkeeping requirements, Water pollution control, 
Water supply.

40 CFR Part 271

    Administrative practice and procedure, Confidential business 
information, Hazardous materials transportation, Hazardous waste, 
Indians-lands, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

    Dated: March 15, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40 of the Code of 
Federal Regulations is amended as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
1. The authority citation for part 260 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974.

Subpart B--Definitions

0
2. Section 260.10 is amended by adding in alphabetical order the 
definition of ``Performance Track member facility'' to read as follows:


Sec.  260.10  Definitions.

* * * * *
    Performance Track member facility means a facility that has been 
accepted by EPA for membership in the National Environmental 
Performance Track Program and is still a member of the Program. The 
National Environmental Performance Track Program is a voluntary, 
facility based, program for top environmental performers. Facility 
members must demonstrate a good record of compliance, past success in 
achieving environmental goals, and commit to future specific quantified 
environmental goals, environmental management systems, local community 
outreach, and annual reporting of measurable results.
* * * * *

Subpart C--Rulemaking Petitions


Sec.  260.31  [Amended]

0
3. Section 260.31 is amended by removing paragraph (b)(2) and 
redesignating paragraphs (b)(3) through (b)(8) as (b)(2) through 
(b)(7).

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
4. The authority citation for part 261 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.

Subpart A--General

0
5. Section 261.4 is amended by revising paragraphs (a)(9)(iii)(E) and 
(f)(9) introductory text to read as follows:


Sec.  261.4  Exclusions.

    (a) * * *
    (9) * * *
    (iii) * * *
    (E) Prior to operating pursuant to this exclusion, the plant owner 
or operator prepares a one-time notification stating that the plant 
intends to claim the exclusion, giving the date on which the plant 
intends to begin operating under the exclusion, and containing the 
following language: ``I have read the applicable regulation 
establishing an exclusion for wood preserving wastewaters and spent 
wood preserving solutions and understand it requires me to comply at 
all times with the conditions set out in the regulation.'' The plant 
must maintain a copy of that document in its on-site records until 
closure of the facility. The exclusion applies so long as the plant 
meets all of the conditions. If the plant goes out of compliance with 
any condition, it may apply to the appropriate Regional Administrator 
or state Director for reinstatement. The Regional Administrator or 
state Director may reinstate the exclusion upon finding that the plant 
has returned to compliance with all conditions and that the violations 
are not likely to recur.
* * * * *
    (f) * * *
    (9) The facility prepares and submits a report to the Regional 
Administrator, or state Director (if located in an authorized state), 
by March 15 of each year, that includes the following information for 
the previous calendar year:
* * * * *

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
6. The authority citation for part 264 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

[[Page 16903]]

Subpart B--General Facility Standards

0
7. Section 264.15 is amended by revising paragraph (b)(4) (the comment 
to paragraph (b)(4) is unchanged), and adding paragraph (b)(5) to read 
as follows:


Sec.  264.15  General inspection requirements.

* * * * *
    (b) * * *
    (4) The frequency of inspection may vary for the items on the 
schedule. However, the frequency should be based on the rate of 
deterioration of the equipment and the probability of an environmental 
or human health incident if the deterioration, malfunction, or operator 
error goes undetected between inspections. Areas subject to spills, 
such as loading and unloading areas, must be inspected daily when in 
use, except for Performance Track member facilities, that must inspect 
at least once each month, upon approval by the Director, as described 
in paragraph (b)(5) of this section. At a minimum, the inspection 
schedule must include the items and frequencies called for in 
Sec. Sec.  264.174, 264.193, 264.195, 264.226, 264.254, 264.278, 
264.303, 264.347, 264.602, 264.1033, 264.1052, 264.1053, 264.1058, and 
264.1083 through 264.1089 of this part, where applicable.
* * * * *
    (5) Performance Track member facilities that choose to reduce their 
inspection frequency must:
    (i) Submit a request for a Class I permit modification with prior 
approval to the Director. The modification request must identify the 
facility as a member of the National Environmental Performance Track 
Program and identify the management units for reduced inspections and 
the proposed frequency of inspections. The modification request must 
also specify, in writing, that the reduced inspection frequency will 
apply for as long as the facility is a Performance Track member 
facility, and that within seven calendar days of ceasing to be a 
Performance Track member, the facility will revert to the non-
Performance Track inspection frequency. Inspections must be conducted 
at least once each month.
    (ii) Within 60 days, the Director will notify the Performance Track 
member facility, in writing, if the request is approved, denied, or if 
an extension to the 60-day deadline is needed. This notice must be 
placed in the facility's operating record. The Performance Track member 
facility should consider the application approved if the Director does 
not: deny the application; or notify the Performance Track member 
facility of an extension to the 60-day deadline. In these situations, 
the Performance Track member facility must adhere to the revised 
inspection schedule outlined in its request for a Class 1 permit 
modification and keep a copy of the application in the facility's 
operating record.
    (iii) Any Performance Track member facility that discontinues their 
membership or is terminated from the program must immediately notify 
the Director of their change in status. The facility must place in its 
operating record a dated copy of this notification and revert back to 
the non-Performance Track inspection frequencies within seven calendar 
days.
* * * * *

0
8. Section 264.16 is amended by adding new paragraph (a)(4) to read as 
follows:


Sec.  264.16  Personnel training.

    (a)(1) * * *
    (4) For facility employees that receive emergency response training 
pursuant to Occupational Safety and Health Administration (OSHA) 
regulations 29 CFR 1910.120(p)(8) and 1910.120(q), the facility is not 
required to provide separate emergency response training pursuant to 
this section, provided that the overall facility training meets all the 
requirements of this section.
* * * * *

Subpart D--Contingency Plan and Emergency Procedures

0
9. Section 264.52 is amended by revising paragraph (b) to read as 
follows:


Sec.  264.52  Content of contingency plan.

* * * * *
    (b) If the owner or operator has already prepared a Spill 
Prevention, Control, and Countermeasures (SPCC) Plan in accordance with 
part 112 of this chapter, or part 1510 of chapter V, or some other 
emergency or contingency plan, he need only amend that plan to 
incorporate hazardous waste management provisions that are sufficient 
to comply with the requirements of this part. The owner or operator may 
develop one contingency plan which meets all regulatory requirements. 
EPA recommends that the plan be based on the National Response Team's 
Integrated Contingency Plan Guidance (``One Plan''). When modifications 
are made to non-RCRA provisions in an integrated contingency plan, the 
changes do not trigger the need for a RCRA permit modification.
* * * * *


Sec.  264.56  [Amended]

0
10. Section 264.56 is amended by removing paragraph (i) and 
redesignating paragraph (j) as paragraph (i).

Subpart E--Manifest System, Recordkeeping, and Reporting

0
11. Section 264.73 is amended by revising paragraphs (b) introductory 
text, (b)(1), (b)(2) (the comment to (b)(2) remains unchanged), (b)(6), 
(b)(8), and (b)(10), and by adding paragraphs (b)(18) and (b)(19) to 
read as follows:


Sec.  264.73  Operating record.

* * * * *
    (b) The following information must be recorded, as it becomes 
available, and maintained in the operating record for three years 
unless noted as follows:
    (1) A description and the quantity of each hazardous waste 
received, and the method(s) and date(s) of its treatment, storage, or 
disposal at the facility as required by appendix I of this part. This 
information must be maintained in the operating record until closure of 
the facility;
    (2) The location of each hazardous waste within the facility and 
the quantity at each location. For disposal facilities, the location 
and quantity of each hazardous waste must be recorded on a map or 
diagram that shows each cell or disposal area. For all facilities, this 
information must include cross-references to manifest document numbers 
if the waste was accompanied by a manifest. This information must be 
maintained in the operating record until closure of the facility.
* * * * *
    (6) Monitoring, testing or analytical data, and corrective action 
where required by subpart F of this part and Sec. Sec.  264.19, 
264.191, 264.193, 264.195, 264.222, 264.223, 264.226, 264.252-264.254, 
264.276, 264.278, 264.280, 264.302-264.304, 264.309, 264.602, 
264.1034(c)-264.1034(f), 264.1035, 264.1063(d)-264.1063(i), 264.1064, 
and 264.1082 through 264.1090 of this part. Maintain in the operating 
record for three years, except for records and results pertaining to 
ground-water monitoring and cleanup which must be maintained in the 
operating record until closure of the facility.
* * * * *
    (8) All closure cost estimates under Sec.  264.142, and for 
disposal facilities, all post-closure cost estimates under Sec.  
264.144 of this part. This information must be maintained in the 
operating record until closure of the facility.
* * * * *

[[Page 16904]]

    (10) Records of the quantities and date of placement for each 
shipment of hazardous waste placed in land disposal units under an 
extension to the effective date of any land disposal restriction 
granted pursuant to Sec.  268.5 of this chapter, a petition pursuant to 
Sec.  268.6 of this chapter, or a certification under Sec.  268.8 of 
this chapter, and the applicable notice required by a generator under 
Sec.  268.7(a) of this chapter. This information must be maintained in 
the operating record until closure of the facility.
* * * * *
    (18) Monitoring, testing or analytical data where required by Sec.  
264.347 must be maintained in the operating record for five years.
    (19) Certifications as required by Sec.  264.196(f) must be 
maintained in the operating record until closure of the facility.

Subpart F--Releases From Solid Waste Management Units

0
12. Section 264.98 is amended by revising paragraphs (d), (g)(2), and 
(g)(3) to read as follows:


Sec.  264.98  Detection monitoring program.

* * * * *
    (d) The Regional Administrator will specify the frequencies for 
collecting samples and conducting statistical tests to determine 
whether there is statistically significant evidence of contamination 
for any parameter or hazardous constituent specified in the permit 
conditions under paragraph (a) of this section in accordance with Sec.  
264.97(g).
* * * * *
    (g) * * *
    (2) Immediately sample the ground water in all monitoring wells and 
determine whether constituents in the list of appendix IX of this part 
are present, and if so, in what concentration. However, the Regional 
Administrator, on a discretionary basis, may allow sampling for a site-
specific subset of constituents from the Appendix IX list of this part 
and other representative/related waste constituents.
    (3) For any appendix IX compounds found in the analysis pursuant to 
paragraph (g)(2) of this section, the owner or operator may resample 
within one month or at an alternative site-specific schedule approved 
by the Administrator and repeat the analysis for those compounds 
detected. If the results of the second analysis confirm the initial 
results, then these constituents will form the basis for compliance 
monitoring. If the owner or operator does not resample for the 
compounds in paragraph (g)(2) of this section, the hazardous 
constituents found during this initial appendix IX analysis will form 
the basis for compliance monitoring.
* * * * *

0
13. Section 264.99 is amended by revising paragraphs (f) and (g) to 
read as follows:


Sec.  264.99  Compliance monitoring program.

* * * * *
    (f) The Regional Administrator will specify the frequencies for 
collecting samples and conducting statistical tests to determine 
statistically significant evidence of increased contamination in 
accordance with Sec.  264.97(g).
    (g) Annually, the owner or operator must determine whether 
additional hazardous constituents from Appendix IX of this part, which 
could possibly be present but are not on the detection monitoring list 
in the permit, are actually present in the uppermost aquifer and, if 
so, at what concentration, pursuant to procedures in Sec.  264.98(f). 
To accomplish this, the owner or operator must consult with the 
Regional Administrator to determine on a case-by-case basis: which 
sample collection event during the year will involve enhanced sampling; 
the number of monitoring wells at the compliance point to undergo 
enhanced sampling; the number of samples to be collected from each of 
these monitoring wells; and, the specific constituents from Appendix IX 
of this part for which these samples must be analyzed. If the enhanced 
sampling event indicates that Appendix IX constituents are present in 
the ground water that are not already identified in the permit as 
monitoring constituents, the owner or operator may resample within one 
month or at an alternative site-specific schedule approved by the 
Regional Administrator, and repeat the analysis. If the second analysis 
confirms the presence of new constituents, the owner or operator must 
report the concentration of these additional constituents to the 
Regional Administrator within seven days after the completion of the 
second analysis and add them to the monitoring list. If the owner or 
operator chooses not to resample, then he or she must report the 
concentrations of these additional constituents to the Regional 
Administrator within seven days after completion of the initial 
analysis, and add them to the monitoring list.
* * * * *
0
14. Section 264.100 is amended by revising paragraph (g) to read as 
follows:


Sec.  264.100  Corrective action program.

* * * * *
    (g) The owner or operator must report in writing to the Regional 
Administrator on the effectiveness of the corrective action program. 
The owner or operator must submit these reports annually.
* * * * *

Subpart G--Closure and Post-Closure

0
15. Section 264.113 is amended by revising paragraph (e)(5) to read as 
follows:


Sec.  264.113  Closure; time allowed for closure.

* * * * *
    (e) * * *
    (5) During the period of corrective action, the owner or operator 
shall provide annual reports to the Regional Administrator describing 
the progress of the corrective action program, compile all ground-water 
monitoring data, and evaluate the effect of the continued receipt of 
non-hazardous wastes on the effectiveness of the corrective action.
* * * * *
0
16. Section 264.115 is revised to read as follows:


Sec.  264.115  Certification of closure.

    Within 60 days of completion of closure of each hazardous waste 
surface impoundment, waste pile, land treatment, and landfill unit, and 
within 60 days of the completion of final closure, the owner or 
operator must submit to the Regional Administrator, by registered mail, 
a certification that the hazardous waste management unit or facility, 
as applicable, has been closed in accordance with the specifications in 
the approved closure plan.. The certification must be signed by the 
owner or operator and by a qualified Professional Engineer. 
Documentation supporting the Professional Engineer's certification must 
be furnished to the Regional Administrator upon request until he 
releases the owner or operator from the financial assurance 
requirements for closure under Sec.  264.143(i).

0
17. Section 264.120 is revised to read as follows:


Sec.  264.120  Certification of completion of post-closure care.

    No later than 60 days after completion of the established post-
closure care period for each hazardous waste disposal unit, the owner 
or operator must submit to the Regional Administrator, by registered 
mail, a certification that the post-closure care period for the 
hazardous waste disposal unit was performed in accordance with

[[Page 16905]]

the specifications in the approved post-closure plan. The certification 
must be signed by the owner or operator and a qualified Professional 
Engineer. Documentation supporting the Professional Engineer's 
certification must be furnished to the Regional Administrator upon 
request until he releases the owner or operator from the financial 
assurance requirements for post-closure care under Sec.  264.145(i).

Subpart H--Financial Requirements

0
18. Section 264.143 is amended by revising paragraph (i) to read as 
follows:


Sec.  264.143  Financial assurance for closure.

* * * * *
    (i) Release of the owner or operator from the requirements of this 
section. Within 60 days after receiving certifications from the owner 
or operator and a qualified Professional Engineer that final closure 
has been completed in accordance with the approved closure plan, the 
Regional Administrator will notify the owner or operator in writing 
that he is no longer required by this section to maintain financial 
assurance for final closure of the facility, unless the Regional 
Administrator has reason to believe that final closure has not been in 
accordance with the approved closure plan. The Regional Administrator 
shall provide the owner or operator a detailed written statement of any 
such reason to believe that closure has not been in accordance with the 
approved closure plan.

0
19. Section 264.145 is amended by revising paragraph (i) to read as 
follows:


Sec.  264.145  Financial assurance for post-closure care.

* * * * *
    (i) Release of the owner or operator from the requirements of this 
section. Within 60 days after receiving certifications from the owner 
or operator and a qualified Professional Engineer that the post-closure 
care period has been completed for a hazardous waste disposal unit in 
accordance with the approved plan, the Regional Administrator will 
notify the owner or operator that he is no longer required to maintain 
financial assurance for post-closure of that unit, unless the Regional 
Administrator has reason to believe that post-closure care has not been 
in accordance with the approved post-closure plan. The Regional 
Administrator shall provide the owner or operator a detailed written 
statement of any such reason to believe that post-closure care has not 
been in accordance with the approved post-closure plan.

0
20. Section 264.147 is amended by revising paragraph (e) to read as 
follows:


Sec.  264.147  Liability requirements.

* * * * *
    (e) Period of coverage. Within 60 days after receiving 
certifications from the owner or operator and a qualified Professional 
Engineer that final closure has been completed in accordance with the 
approved closure plan, the Regional Administrator will notify the owner 
or operator in writing that he is no longer required by this section to 
maintain liability coverage for that facility, unless the Regional 
Administrator has reason to believe that closure has not been in 
accordance with the approved closure plan.
* * * * *

Subpart I--Use and Management of Containers

0
21. Section 264.174 is revised to read as follows:


Sec.  264.174  Inspections.

    At least weekly, the owner or operator must inspect areas where 
containers are stored, except for Performance Track member facilities, 
that may conduct inspections at least once each month, upon approval by 
the Director. To apply for reduced inspection frequencies, the 
Performance Track member facility must follow the procedures identified 
in Sec.  264.15(b)(5) of this part. The owner or operator must look for 
leaking containers and for deterioration of containers and the 
containment system caused by corrosion or other factors.


[Comment: See Sec. Sec.  264.15(c) and 264.171 for remedial action 
required if deterioration or leaks are detected.]

Subpart J--Tank Systems

0
22. Section 264.191 is amended by revising paragraphs (a) and 
(b)(5)(ii) (the note to paragraph (b)(5)(ii) is unchanged) to read as 
follows:


Sec.  264.191  Assessment of existing tank system's integrity.

    (a) For each existing tank system that does not have secondary 
containment meeting the requirements of Sec.  264.193, the owner or 
operator must determine that the tank system is not leaking or is unfit 
for use. Except as provided in paragraph (c) of this section, the owner 
or operator must obtain and keep on file at the facility a written 
assessment reviewed and certified by a qualified Professional Engineer, 
in accordance with Sec.  270.11(d) of this chapter, that attests to the 
tank system's integrity by January 12, 1988.
    (b) * * *
    (5) * * *
    (ii) For other than non-enterable underground tanks and for 
ancillary equipment, this assessment must include either a leak test, 
as described above, or other integrity examination that is certified by 
a qualified Professional Engineer in accordance with Sec.  270.11(d) of 
this chapter, that addresses cracks, leaks, corrosion, and erosion.
* * * * *

0
23. Section 264.192 is amended by revising paragraph (a) introductory 
text and paragraph (b) introductory text to read as follows:


Sec.  264.192  Design and installation of new tank systems or 
components.

    (a) Owners or operators of new tank systems or components must 
obtain and submit to the Regional Administrator, at time of submittal 
of part B information, a written assessment, reviewed and certified by 
a qualified Professional Engineer, in accordance with Sec.  270.11(d) 
of this chapter, attesting that the tank system has sufficient 
structural integrity and is acceptable for the storing and treating of 
hazardous waste. The assessment must show that the foundation, 
structural support, seams, connections, and pressure controls (if 
applicable) are adequately designed and that the tank system has 
sufficient structural strength, compatibility with the waste(s) to be 
stored or treated, and corrosion protection to ensure that it will not 
collapse, rupture, or fail. This assessment, which will be used by the 
Regional Administrator to review and approve or disapprove the 
acceptability of the tank system design, must include, at a minimum, 
the following information:
* * * * *
    (b) The owner or operator of a new tank system must ensure that 
proper handling procedures are adhered to in order to prevent damage to 
the system during installation. Prior to covering, enclosing, or 
placing a new tank system or component in use, an independent, 
qualified, installation inspector or a qualified Professional Engineer, 
either of whom is trained and experienced in the proper installation of 
tanks systems or components, must inspect the system for the presence 
of any of the following items:
* * * * *

0
24. Section 264.193 is amended by:
0
a. Removing paragraphs (a)(2) through (a)(4);
0
b. Redesignating (a)(5) as (a)(2);
0
c. Revising paragraphs (a)(1), newly designated (a)(2), and (i)(2) to 
read as follows:

[[Page 16906]]

Sec.  264.193  Containment and detection of releases.

    (a) * * *
    (1) For all new and existing tank systems or components, prior to 
their being put into service.
    (2) For tank systems that store or treat materials that become 
hazardous wastes, within two years of the hazardous waste listing, or 
when the tank system has reached 15 years of age, whichever comes 
later.
* * * * *
    (h) * * *
    (4) * * *
    (i) * * *
    (2) For other than non-enterable underground tanks, the owner or 
operator must either conduct a leak test as in paragraph (i)(1) of this 
section or develop a schedule and procedure for an assessment of the 
overall condition of the tank system by a qualified Professional 
Engineer. The schedule and procedure must be adequate to detect obvious 
cracks, leaks, and corrosion or erosion that may lead to cracks and 
leaks. The owner or operator must remove the stored waste from the 
tank, if necessary, to allow the condition of all internal tank 
surfaces to be assessed. The frequency of these assessments must be 
based on the material of construction of the tank and its ancillary 
equipment, the age of the system, the type of corrosion or erosion 
protection used, the rate of corrosion or erosion observed during the 
previous inspection, and the characteristics of the waste being stored 
or treated.
* * * * *

0
25. Section 264.195 is amended by:
0
a. Revising paragraph (b) (the note to paragraph (b) is unchanged);
0
b. Redesignating existing paragraphs (c) and (d), as paragraphs (g) and 
(h), respectively;
0
c. Adding new paragraphs (c) through (f), to read as follows:


Sec.  264.195  Inspections.

* * * * *
    (b) The owner or operator must inspect at least once each operating 
day data gathered from monitoring and leak detection equipment (e.g., 
pressure or temperature gauges, monitoring wells) to ensure that the 
tank system is being operated according to its design.
* * * * *
    (c) In addition, except as noted under paragraph (d) of this 
section, the owner or operator must inspect at least once each 
operating day:
    (1) Above ground portions of the tank system, if any, to detect 
corrosion or releases of waste.
    (2) The construction materials and the area immediately surrounding 
the externally accessible portion of the tank system, including the 
secondary containment system (e.g., dikes) to detect erosion or signs 
of releases of hazardous waste (e.g., wet spots, dead vegetation).
    (d) Owners or operators of tank systems that either use leak 
detection systems to alert facility personnel to leaks, or implement 
established workplace practices to ensure leaks are promptly 
identified, must inspect at least weekly those areas described in 
paragraphs (c)(1) and (c)(2) of this section. Use of the alternate 
inspection schedule must be documented in the facility's operating 
record. This documentation must include a description of the 
established workplace practices at the facility.
    (e) Performance Track member facilities may inspect on a less 
frequent basis, upon approval by the Director, but must inspect at 
least once each month. To apply for a less than weekly inspection 
frequency, the Performance Track member facility must follow the 
procedures described in Sec.  264.15(b)(5).
    (f) Ancillary equipment that is not provided with secondary 
containment, as described in Sec.  264.193(f)(1) through (4), must be 
inspected at least once each operating day.
* * * * *

0
26. Section 264.196 is amended by revising paragraph (f) (the notes to 
paragraph (f) are unchanged) to read as follows:


Sec.  264.196  Response to leaks or spills and disposition of leaking 
or unfit-for-use tank systems.

* * * * *
    (f) Certification of major repairs. If the owner/operator has 
repaired a tank system in accordance with paragraph (e) of this 
section, and the repair has been extensive (e.g., installation of an 
internal liner; repair of a ruptured primary containment or secondary 
containment vessel), the tank system must not be returned to service 
unless the owner/operator has obtained a certification by a qualified 
Professional Engineer in accordance with Sec.  270.11(d) of this 
chapter that the repaired system is capable of handling hazardous 
wastes without release for the intended life of the system. This 
certification must be placed in the operating record and maintained 
until closure of the facility.
* * * * *

Subpart L--Waste Piles

0
27. Section 264.251 is amended by revising the introductory text to 
paragraph (c) to read as follows:


Sec.  264.251  Design and operating requirements.

* * * * *
    (c) The owner or operator of each new waste pile unit, each lateral 
expansion of a waste pile unit, and each replacement of an existing 
waste pile unit must install two or more liners and a leachate 
collection and removal system above and between such liners.
* * * * *

Subpart M--Land Treatment

0
28. Section 264.280 is amended by revising paragraph (b) to read as 
follows:


Sec.  264.280  Closure and post-closure care.

* * * * *
    (b) For the purpose of complying with Sec.  264.115 of this 
chapter, when closure is completed the owner or operator may submit to 
the Regional Administrator certification by an independent, qualified 
soil scientist, in lieu of a qualified Professional Engineer, that the 
facility has been closed in accordance with the specifications in the 
approved closure plan.
* * * * *

Subpart N--Landfills

0
29. Section 264.314 is amended by:
0
a. Removing paragraph (a);
0
b. Redesignating paragraphs (b) through (f) as paragraphs (a) through 
(e); and,
0
c. Revising newly designated paragraphs (a) and newly designated 
paragraph (e) introductory text to read as follows:


Sec.  264.314  Special requirements for bulk and containerized liquids.

    (a) The placement of bulk or non-containerized liquid hazardous 
waste or hazardous waste containing free liquids (whether or not 
sorbents have been added) in any landfill is prohibited.
* * * * *
    (e) The placement of any liquid which is not a hazardous waste in a 
landfill is prohibited unless the owner or operator of such landfill 
demonstrates to the Regional Administrator, or the Regional 
Administrator determines that:
* * * * *

Subpart O--Incinerators

0
30. Section 264.343 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  264.343  Performance standards.

* * * * *
    (a)(1) * * *
    (2) An incinerator burning hazardous wastes FO20, FO21, FO22, FO23, 
FO26,

[[Page 16907]]

or FO27 must achieve a destruction and removal efficiency (DRE) of 
99.9999% for each principal organic hazardous constituent (POHC) 
designated (under Sec.  264.342) in its permit. This performance must 
be demonstrated on POHCs that are more difficult to incinerate than 
tetra-, penta-, and hexachlorodibenzo-p-dioxins and dibenzofurans. DRE 
is determined for each POHC from the equation in Sec.  264.343(a)(1).
* * * * *

0
31. Section 264.347 is amended by revising paragraph (d) to read as 
follows:


Sec.  264.347  Monitoring and inspections.

* * * * *
    (d) This monitoring and inspection data must be recorded and the 
records must be placed in the operating record required by Sec.  264.73 
of this part and maintained in the operating record for five years.

Subpart S--Special Provisions for Cleanup

0
32. Section 264.554 is amended by revising paragraph (c)(2) to read as 
follows:


Sec.  264.554  Staging piles.

* * * * *
    (c) * * *
    (2) Certification by a qualified Professional Engineer for 
technical data, such as design drawings and specifications, and 
engineering studies, unless the Director determines, based on 
information that you provide, that this certification is not necessary 
to ensure that a staging pile will protect human health and the 
environment; and
* * * * *

Subpart W--Drip Pads

0
33. Section 264.571 is amended by revising paragraphs (a), (b), and (c) 
to read as follows:


Sec.  264.571  Assessment of existing drip pad integrity.

    (a) For each existing drip pad as defined in Sec.  264.570 of this 
subpart, the owner or operator must evaluate the drip pad and determine 
whether it meets all of the requirements of this subpart, except the 
requirements for liners and leak detection systems of Sec.  264.573(b). 
No later than the effective date of this rule, the owner or operator 
must obtain and keep on file at the facility a written assessment of 
the drip pad, reviewed and certified by a qualified Professional 
Engineer that attests to the results of the evaluation. The assessment 
must be reviewed, updated and re-certified annually until all upgrades, 
repairs, or modifications necessary to achieve compliance with all the 
standards of Sec.  264.573 are complete. The evaluation must document 
the extent to which the drip pad meets each of the design and operating 
standards of Sec.  264.573, except the standards for liners and leak 
detection systems, specified in Sec.  264.573(b).
    (b) The owner or operator must develop a written plan for 
upgrading, repairing, and modifying the drip pad to meet the 
requirements of Sec.  264.573(b) and submit the plan to the Regional 
Administrator no later than 2 years before the date that all repairs, 
upgrades, and modifications are complete. This written plan must 
describe all changes to be made to the drip pad in sufficient detail to 
document compliance with all the requirements of Sec.  264.573. The 
plan must be reviewed and certified by a qualified Professional 
Engineer.
    (c) Upon completion of all upgrades, repairs, and modifications, 
the owner or operator must submit to the Regional Administrator or 
state Director, the as-built drawings for the drip pad together with a 
certification by a qualified Professional Engineer attesting that the 
drip pad conforms to the drawings.
* * * * *

0
34. Section 264.573 is amended by revising paragraphs (a)(4)(ii) and 
(g) to read as follows:


Sec.  264.573  Design and operating requirements.

    (a) * * *
    (4) * * *
    (ii) The owner or operator must obtain and keep on file at the 
facility a written assessment of the drip pad, reviewed and certified 
by a qualified Professional Engineer that attests to the results of the 
evaluation. The assessment must be reviewed, updated and recertified 
annually. The evaluation must document the extent to which the drip pad 
meets the design and operating standards of this section, except for 
paragraph (b) of this section.
* * * * *
    (g) The drip pad must be evaluated to determine that it meets the 
requirements of paragraphs (a) through (f) of this section and the 
owner or operator must obtain a statement from a qualified Professional 
Engineer certifying that the drip pad design meets the requirements of 
this section.
* * * * *

0
35. Section 264.574 is amended by revising paragraph (a) to read as 
follows:


Sec.  264.574  Inspections.

    (a) During construction or installation, liners and cover systems 
(e.g., membranes, sheets, or coatings) must be inspected for 
uniformity, damage and imperfections (e.g., holes, cracks, thin spots, 
or foreign materials). Immediately after construction or installation, 
liners must be inspected and certified as meeting the requirements in 
Sec.  264.573 of this subpart by a qualified Professional Engineer. 
This certification must be maintained at the facility as part of the 
facility operating record. After installation, liners and covers must 
be inspected to ensure tight seams and joints and the absence of tears, 
punctures, or blisters.
* * * * *

Subpart BB--Air Emission Standards for Equipment Leaks


Sec.  264.1061  [Amended]

0
36. Section 264.1061 is amended by:
0
a. Removing paragraphs (b)(1) and (d); and,
0
b. Redesignating paragraphs (b)(2) and (b)(3) as paragraphs (b)(1) and 
(b)(2).


Sec.  264.1062  [Amended]

0
37. Section 264.1062 is amended by removing paragraph (a)(2) and 
redesignating paragraph (a)(1) as paragraph (a).

Subpart DD--Containment Buildings

0
38. Section 264.1100 is amended by revising the introductory text to 
read as follows:


Sec.  264.1100  Applicability.

    The requirements of this subpart apply to owners or operators who 
store or treat hazardous waste in units designed and operated under 
Sec.  264.1101 of this subpart. The owner or operator is not subject to 
the definition of land disposal in RCRA section 3004(k) provided that 
the unit:
* * * * *

0
39. Section 264.1101 is amended by revising paragraphs (c)(2) and 
(c)(4) to read as follows:


Sec.  264.1101  Design and operating standards.

* * * * *
    (c) * * *
    (2) Obtain and keep on-site a certification by a qualified 
Professional Engineer that the containment building design meets the 
requirements of paragraphs (a), (b), and (c) of this section.
* * * * *
    (4) Inspect and record in the facility's operating record, at least 
once every

[[Page 16908]]

seven days, except for Performance Track member facilities that must 
inspect at least once each month, upon approval by the Director, data 
gathered from monitoring and leak detection equipment as well as the 
containment building and the area immediately surrounding the 
containment building to detect signs of releases of hazardous waste. To 
apply for reduced inspection frequency, the Performance Track member 
facility must follow the procedures described in Sec.  264.15(b)(5).
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
40. The authority citation for part 265 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936, and 6937, unless otherwise noted.

Subpart B--General Facility Standards

0
41. Section 265.15 is amended by revising paragraph (b)(4) and adding 
paragraph (b)(5) to read as follows:


Sec.  265.15  General inspection requirements.

* * * * *
    (b) * * *
    (4) The frequency of inspection may vary for the items on the 
schedule. However, the frequency should be based on the rate of 
deterioration of the equipment and the probability of an environmental 
or human health incident if the deterioration, malfunction, or operator 
error goes undetected between inspections. Areas subject to spills, 
such as loading and unloading areas, must be inspected daily when in 
use, except for Performance Track member facilities, that must inspect 
at least once each month, upon approval by the Director, as described 
in paragraph (b)(5) of this section. At a minimum, the inspection 
schedule must include the items and frequencies called for in 
Sec. Sec.  265.174, 265.193, 265.195, 265.226, 265.260, 265.278, 
265.304, 265.347, 265.377, 265.403, 265.1033, 265.1052, 265.1053, 
265.1058, and 265.1084 through 265.1090, where applicable.
    (5) Performance Track member facilities that choose to reduce 
inspection frequencies must:
    (i) Submit an application to the Director. The application must 
identify the facility as a member of the National Environmental 
Performance Track Program and identify the management units for reduced 
inspections and the proposed frequency of inspections. Inspections must 
be conducted at least once each month.
    (ii) Within 60 days, the Director will notify the Performance Track 
member facility, in writing, if the application is approved, denied, or 
if an extension to the 60-day deadline is needed. This notice must be 
placed in the facility's operating record. The Performance Track member 
facility should consider the application approved if the Director does 
not: (1) Deny the application; or (2) notify the Performance Track 
member facility of an extension to the 60-day deadline. In these 
situations, the Performance Track member facility must adhere to the 
revised inspection schedule outlined in its application and maintain a 
copy of the application in the facility's operating record.
    (iii) Any Performance Track member facility that discontinues its 
membership or is terminated from the program must immediately notify 
the Director of its change in status. The facility must place in its 
operating record a dated copy of this notification and revert back to 
the non-Performance Track inspection frequencies within seven calendar 
days.
* * * * *

0
42. Section 265.16 is amended by adding new paragraph (a)(4) to read as 
follows:


Sec.  265.16  Personnel training.

    (a) * * *
    (4) For facility employees that receive emergency response training 
pursuant to Occupational Safety and Health Administration (OSHA) 
regulations 29 CFR 1910.120(p)(8) and 1910.120(q), the facility is not 
required to provide separate emergency response training pursuant to 
this section, provided that the overall facility training meets all the 
requirements of this section.
* * * * *

Subpart D--Contingency Plans and Emergency Procedures

0
43. Section 265.52 is amended by revising paragraph (b) to read as 
follows:


Sec.  265.52  Content of contingency plan.

* * * * *
    (b) If the owner or operator has already prepared a Spill 
Prevention, Control, and Countermeasures (SPCC) Plan in accordance with 
Part 112 of this chapter, or Part 1510 of chapter V, or some other 
emergency or contingency plan, he need only amend that plan to 
incorporate hazardous waste management provisions that are sufficient 
to comply with the requirements of this Part. The owner or operator may 
develop one contingency plan which meets all regulatory requirements. 
EPA recommends that the plan be based on the National Response Team's 
Integrated Contingency Plan Guidance (``One Plan''). When modifications 
are made to non-RCRA provisions in an integrated contingency plan, the 
changes do not trigger the need for a RCRA permit modification.
* * * * *


Sec.  265.56  [Amended]

0
44. Section 265.56 is amended by removing paragraph (i) and 
redesignating paragraph (j) as paragraph (i).

Subpart E--Manifest System, Recordkeeping, and Reporting

0
45. Section 265.73 is amended by revising the introductory text to 
paragraph (b), (b)(1), (b)(2) (the comment to paragraph (b)(2) is 
unchanged), (b)(6) (the comment to paragraph (b)(6) is unchanged), 
(b)(7), and (b)(8) and adding a new (b)(15) to read as follows:


Sec.  265.73  Operating record.

* * * * *
    (b) The following information must be recorded, as it becomes 
available, and maintained in the operating record for three years 
unless noted below:
    (1) A description and the quantity of each hazardous waste 
received, and the method(s) and date(s) of its treatment, storage, or 
disposal at the facility as required by Appendix I to part 265. This 
information must be maintained in the operating record until closure of 
the facility;
    (2) The location of each hazardous waste within the facility and 
the quantity at each location. For disposal facilities, the location 
and quantity of each hazardous waste must be recorded on a map or 
diagram of each cell or disposal area. For all facilities, this 
information must include cross-references to manifest document numbers 
if the waste was accompanied by a manifest. This information must be 
maintained in the operating record until closure of the facility;
* * * * *
    (6) Monitoring, testing or analytical data, and corrective action 
where required by subpart F of this part and by Sec. Sec.  265.19, 
265.94, 265.191, 265.193, 265.195, 265.224, 265.226, 265.255, 265.260, 
265.276, 265.278, 265.280(d)(1), 265.302, 265.304, 265.347, 265.377, 
265.1034(c) through 265.1034(f), 265.1035, 265.1063(d) through 265. 
265.1063(i), 265.1064, and 265.1083 through 265.1090. Maintain in

[[Page 16909]]

the operating record for three years, except for records and results 
pertaining to ground-water monitoring and cleanup, and response action 
plans for surface impoundments, waste piles, and landfills, which must 
be maintained in the operating record until closure of the facility.
* * * * *
    (7) All closure cost estimates under Sec.  265.142 and, for 
disposal facilities, all post-closure cost estimates under Sec.  
265.144 must be maintained in the operating record until closure of the 
facility.
    (8) Records of the quantities (and date of placement) for each 
shipment of hazardous waste placed in land disposal units under an 
extension to the effective date of any land disposal restriction 
granted pursuant to Sec.  268.5 of this chapter, monitoring data 
required pursuant to a petition under Sec.  268.6 of this chapter, or a 
certification under Sec.  268.8 of this chapter, and the applicable 
notice required by a generator under Sec.  268.7(a) of this chapter. 
All of this information must be maintained in the operating record 
until closure of the facility.
* * * * *
    (15) Monitoring, testing or analytical data, and corrective action 
where required by Sec. Sec.  265.90, 265.93(d)(2), and 265.93(d)(5), 
and the certification as required by Sec.  265.196(f) must be 
maintained in the operating record until closure of the facility.

Subpart F--Ground-Water Monitoring

0
46. Section 265.90 is amended by revising paragraphs (d)(1) and (d)(3) 
to read as follows:


Sec.  265.90  Applicability.

* * * * *
    (d) * * *
    (1) Within one year after the effective date of these regulations, 
develop a specific plan, certified by a qualified geologist or 
geotechnical engineer, which satisfies the requirements of Sec.  
265.93(d)(3), for an alternate ground-water monitoring system. This 
plan is to be placed in the facility's operating record and maintained 
until closure of the facility.
* * * * *
    (3) Prepare a report in accordance with Sec.  265.93(d)(5) and 
place it in the facility's operating record and maintain until closure 
of the facility.
* * * * *

0
47. Section 265.93 is amended by revising paragraphs (d)(2) and (d)(5) 
to read as follows:


Sec.  265.93  Preparation, evaluation, and response.

* * * * *
    (d)(1) * * *
    (2) Within 15 days after the notification under paragraph (d)(1) of 
this section, the owner or operator must develop a specific plan, based 
on the outline required under paragraph (a) of this section and 
certified by a qualified geologist or geotechnical engineer, for a 
ground-water quality assessment at the facility. This plan must be 
placed in the facility operating record and be maintained until closure 
of the facility.
* * * * *
    (5) The owner or operator must make his first determination under 
paragraph (d)(4) of this section, as soon as technically feasible, and 
prepare a report containing an assessment of ground-water quality. This 
report must be placed in the facility operating record and be 
maintained until closure of the facility.
* * * * *

Subpart G--Closure and Post-Closure

0
48. Section 265.113 is amended by revising paragraph (e)(5) to read as 
follows:


Sec.  265.113  Closure; time allowed for closure.

* * * * *
    (e) * * *
    (5) During the period of corrective action, the owner or operator 
shall provide annual reports to the Regional Administrator describing 
the progress of the corrective action program, compile all ground-water 
monitoring data, and evaluate the effect of the continued receipt of 
non-hazardous wastes on the effectiveness of the corrective action.
* * * * *

0
49. Section 265.115 is revised to read as follows:


Sec.  265.115  Certification of closure.

    Within 60 days of completion of closure of each hazardous waste 
surface impoundment, waste pile, land treatment, and landfill unit, and 
within 60 days of completion of final closure, the owner or operator 
must submit to the Regional Administrator, by registered mail, a 
certification that the hazardous waste management unit or facility, as 
applicable, has been closed in accordance with the specifications in 
the approved closure plan. The certification must be signed by the 
owner or operator and by a qualified Professional Engineer. 
Documentation supporting the Professional Engineer's certification must 
be furnished to the Regional Administrator upon request until he 
releases the owner or operator from the financial assurance 
requirements for closure under Sec.  265.143(h).

0
50. Section 265.120 is revised to read as follows:


Sec.  265.120  Certification of completion of post-closure care.

    No later than 60 days after the completion of the established post-
closure care period for each hazardous waste disposal unit, the owner 
or operator must submit to the Regional Administrator, by registered 
mail, a certification that the post-closure care period for the 
hazardous waste disposal unit was performed in accordance with the 
specifications in the approved post-closure plan. The certification 
must be signed by the owner or operator and a qualified Professional 
Engineer. Documentation supporting the Professional Engineer's 
certification must be furnished to the Regional Administrator upon 
request until he releases the owner or operator from the financial 
assurance requirements for post-closure care under Sec.  265.145(h).

Subpart H--Financial Requirements

0
51. Section 265.143 is amended by revising paragraph (h) to read as 
follows:


Sec.  265.143  Financial assurance for closure.

* * * * *
    (h) Release of the owner or operator from the requirements of this 
section. Within 60 days after receiving certifications from the owner 
or operator and a qualified Professional Engineer that final closure 
has been completed in accordance with the approved closure plan, the 
Regional Administrator will notify the owner or operator in writing 
that he is no longer required by this section to maintain financial 
assurance for final closure of the facility, unless the Regional 
Administrator has reason to believe that final closure has not been in 
accordance with the approved closure plan. The Regional Administrator 
shall provide the owner or operator a detailed written statement of any 
such reason to believe that closure has not been in accordance with the 
approved closure plan.

0
52. Section 265.145 is amended by revising paragraph (h) to read as 
follows:


Sec.  265.145  Financial assurance for post-closure care.

* * * * *
    (h) Release of the owner or operator from the requirements of this 
section. Within 60 days after receiving

[[Page 16910]]

certifications from the owner or operator and a qualified Professional 
Engineer that the post-closure care period has been completed for a 
hazardous waste disposal unit in accordance with the approved plan, the 
Regional Administrator will notify the owner or operator in writing 
that he is no longer required to maintain financial assurance for post-
closure care of that unit, unless the Regional Administrator has reason 
to believe that post-closure care has not been in accordance with the 
approved post-closure plan. The Regional Administrator shall provide 
the owner or operator a detailed written statement of any such reason 
to believe that post-closure care has not been in accordance with the 
approved post-closure plan.

0
53. Section 265.147 is amended by revising paragraph (e) to read as 
follows:


Sec.  265.147  Liability requirements.

* * * * *
    (e) Period of coverage. Within 60 days after receiving 
certifications from the owner or operator and a qualified Professional 
Engineer that final closure has been completed in accordance with the 
approved closure plan, the Regional Administrator will notify the owner 
or operator in writing that he is no longer required by this section to 
maintain liability coverage for that facility, unless the Regional 
Administrator has reason to believe that closure has not been in 
accordance with the approved closure plan.
* * * * *

Subpart I--Use and Management of Containers

0
54. Section 265.174 is revised to read as follows:


Sec.  265.174  Inspections.

    At least weekly, the owner or operator must inspect areas where 
containers are stored, except for Performance Track member facilities, 
that must conduct inspections at least once each month, upon approval 
by the Director. To apply for reduced inspection frequency, the 
Performance Track member facility must follow the procedures described 
in Sec.  265.15(b)(5) of this part. The owner or operator must look for 
leaking containers and for deterioration of containers and the 
containment system caused by corrosion or other factors.


[Comment: See Sec.  265.171 for remedial action required if 
deterioration or leaks are detected.]

Subpart J--Tank Systems

0
55. Section 265.191 is amended by revising paragraphs (a) and 
(b)(5)(ii) (the note to paragraph (b)(5)(ii) is unchanged) to read as 
follows:


Sec.  265.191  Assessment of existing tank system's integrity.

    (a) For each existing tank system that does not have secondary 
containment meeting the requirements of Sec.  265.193, the owner or 
operator must determine that the tank system is not leaking or is unfit 
for use. Except as provided in paragraph (c) of this section, the owner 
or operator must obtain and keep on file at the facility a written 
assessment reviewed and certified by a qualified Professional Engineer 
in accordance with Sec.  270.11(d) of this chapter, that attests to the 
tank system's integrity by January 12, 1988.
    (b) * * *
    (5) * * *
    (ii) For other than non-enterable underground tanks and for 
ancillary equipment, this assessment must be either a leak test, as 
described above, or an internal inspection and/or other tank integrity 
examination certified by a qualified Professional Engineer in 
accordance with Sec.  270.11(d) of this chapter that addresses cracks, 
leaks, corrosion, and erosion.
* * * * *

0
56. Section 265.192 is amended by revising paragraphs (a) introductory 
text and (b) introductory text to read as follows:


Sec.  265.192  Design and installation of new tank systems or 
components.

    (a) Owners or operators of new tank systems or components must 
ensure that the foundation, structural support, seams, connections, and 
pressure controls (if applicable) are adequately designed and that the 
tank system has sufficient structural strength, compatibility with the 
waste(s) to be stored or treated, and corrosion protection so that it 
will not collapse, rupture, or fail. The owner or operator must obtain 
a written assessment reviewed and certified by a qualified Professional 
Engineer in accordance with Sec.  270.11(d) of this chapter attesting 
that the system has sufficient structural integrity and is acceptable 
for the storing and treating of hazardous waste. This assessment must 
include the following information:
* * * * *
    (b) The owner or operator of a new tank system must ensure that 
proper handling procedures are adhered to in order to prevent damage to 
the system during installation. Prior to covering, enclosing, or 
placing a new tank system or component in use, an independent, 
qualified installation inspector or a qualified Professional Engineer, 
either of whom is trained and experienced in the proper installation of 
tank systems, must inspect the system or component for the presence of 
any of the following items:
* * * * *

0
56. Section 265.193 is amended by:
0
a. Removing paragraphs (a)(2) through (a)(4);
0
b. Redesignating (a)(5) as (a)(2);
0
c. Revising paragraphs (a)(1), newly designated (a)(2) and (i)(2) (the 
note to (i)(2) is unchanged) to read as follows.


Sec.  265.193  Containment and detection of releases.

    (a) * * *
    (1) For all new and existing tank systems or components, prior to 
their being put into service.
    (2) For tank systems that store or treat materials that become 
hazardous wastes, within 2 years of the hazardous waste listing, or 
when the tank system has reached 15 years of age, whichever comes 
later.
* * * * *
    (i) * * *
    (2) For other than non-enterable underground tanks, and for all 
ancillary equipment, the owner or operator must either conduct a leak 
test as in paragraph (i)(1) of this section or an internal inspection 
or other tank integrity examination by a qualified Professional 
Engineer that addresses cracks, leaks, and corrosion or erosion at 
least annually. The owner or operator must remove the stored waste from 
the tank, if necessary, to allow the condition of all internal tanks 
surfaces to be assessed.
* * * * *

0
58. Section 265.195 is amended by:
0
a. Revising paragraph (a) (the note to paragraph (a) is unchanged);
0
b. Redesignating existing paragraphs (b) and (c), as paragraphs (f) and 
(g), respectively; and,
0
c. Adding new paragraphs (b) through (e).


Sec.  265.195  Inspections.

    (a) The owner or operator must inspect, where present, at least 
once each operating day, data gathered from monitoring and leak 
detection equipment (e.g., pressure or temperature gauges, monitoring 
wells) to ensure that the tank system is being operated according to 
its design.
* * * * *
    (b) Except as noted under the paragraph (c) of this section, the 
owner or operator must inspect at least once each operating day:
    (1) Overfill/spill control equipment (e.g., waste-feed cutoff 
systems, bypass

[[Page 16911]]

systems, and drainage systems) to ensure that it is in good working 
order;
    (2) Above ground portions of the tank system, if any, to detect 
corrosion or releases of waste; and
    (3) The construction materials and the area immediately surrounding 
the externally accessible portion of the tank system, including the 
secondary containment system (e.g., dikes) to detect erosion or signs 
of releases of hazardous waste (e.g., wet spots, dead vegetation).
    (c) Owners or operators of tank systems that either use leak 
detection equipment to alert facility personnel to leaks, or implement 
established workplace practices to ensure leaks are promptly 
identified, must inspect at least weekly those areas described in 
paragraphs (b)(1) through (3) of this section. Use of the alternate 
inspection schedule must be documented in the facility's operating 
record. This documentation must include a description of the 
established workplace practices at the facility.
    (d) Performance Track member facilities may inspect on a less 
frequent basis, upon approval by the Director, but must inspect at 
least once each month. To apply for a less than weekly inspection 
frequency, the Performance Track member facility must follow the 
procedures described in Sec.  265.15(b)(5).
    (e) Ancillary equipment that is not provided with secondary 
containment, as described in Sec.  265.193(f)(1) through (4), must be 
inspected at least once each operating day.
* * * * *

0
59. Section 265.196 is amended by revising paragraph (f) (the notes to 
paragraph (f) are unchanged) to read as follows:


Sec.  265.196  Response to leaks or spills and disposition of leaking 
or unfit-for-use tank systems.

* * * * *
    (f) Certification of major repairs. If the owner/operator has 
repaired a tank system in accordance with paragraph (e) of this 
section, and the repair has been extensive (e.g., installation of an 
internal liner; repair of a ruptured primary containment or secondary 
containment vessel), the tank system must not be returned to service 
unless the owner/operator has obtained a certification by a qualified 
Professional Engineer in accordance with Sec.  270.11(d) that the 
repaired system is capable of handling hazardous wastes without release 
for the intended life of the system. This certification is to be placed 
in the operating record and maintained until closure of the facility.
* * * * *

0
60. Section 265.201 is amended by:
0
a. Revising the paragraph (c) introductory text;
0
b. Redesignating paragraph (d) through (f), as paragraphs (f) through 
(h), respectively; and,
0
c. Adding new paragraphs (d) and (e).


Sec.  265.201  Special requirements for generators of between 100 and 
1,000 kg/mo. that accumulate hazardous waste in tanks.

* * * * *
    (c) Except as noted in paragraph (d) of this section, generators 
who accumulate between 100 and 1,000 kg/mo of hazardous in tanks must 
inspect, where present:
* * * * *
    (d) Generators who accumulate between 100 and 1,000 kg/mo of 
hazardous waste in tanks or tank systems that have full secondary 
containment and that either use leak detection equipment to alert 
facility personnel to leaks, or implement established workplace 
practices to ensure leaks are promptly identified, must inspect at 
least weekly, where applicable, the areas identified in paragraphs 
(c)(1) through (5) of this section. Use of the alternate inspection 
schedule must be documented in the facility's operating record. This 
documentation must include a description of the established workplace 
practices at the facility.
    (e) Performance Track member facilities may inspect on a less 
frequent basis, upon approval by the Director, but must inspect at 
least once each month. To apply for a less than weekly inspection 
frequency, the Performance Track member facility must follow the 
procedures described in Sec.  265.15(b)(5).
* * * * *

Subpart K--Surface Impoundments

0
61. Section 265.221 is amended by revising paragraph (a) to read as 
follows:


Sec.  265.221  Design and operating requirements.

    (a) The owner or operator of each new surface impoundment unit, 
each lateral expansion of a surface impoundment unit, and each 
replacement of an existing surface impoundment unit must install two or 
more liners, and a leachate collection and removal system above and 
between the liners, and operate the leachate collection and removal 
system, in accordance with Sec.  264.221(c), unless exempted under 
Sec.  264.221(d), (e), or (f) of this Chapter.
* * * * *


Sec.  265.223  [Redesignated as Sec.  265.224]

0
62. Section 265.223 titled ``Response actions'' is redesignated as 
Sec.  265.224 and the newly designated Sec.  265.224 is amended by 
revising paragraph (a) to read as follows:


Sec.  265.224  Response actions.

    (a) The owner or operator of surface impoundment units subject to 
Sec.  265.221(a) must develop and keep on site until closure of the 
facility a response action plan. The response action plan must set 
forth the actions to be taken if the action leakage rate has been 
exceeded. At a minimum, the response action plan must describe the 
actions specified in paragraph (b) of this section.
* * * * *

Subpart L--Waste Piles

0
63. Section 265.259 is amended by revising the first sentence of 
paragraph (a) to read as follows:


Sec.  265.259  Response actions.

    (a) The owner or operator of waste pile units subject to Sec.  
265.254 must develop and keep on-site until closure of the facility a 
response action plan. * * *
* * * * *

Subpart M--Land Treatment

0
64. Section 265.280 is amended by revising paragraph (e) to read as 
follows:


Sec.  265.280  Closure and post-closure.

* * * * *
    (e) For the purpose of complying with Sec.  265.115, when closure 
is completed the owner or operator may submit to the Regional 
Administrator certification both by the owner or operator and by an 
independent, qualified soil scientist, in lieu of a qualified 
Professional Engineer, that the facility has been closed in accordance 
with the specifications in the approved closure plan.
* * * * *

Subpart N--Landfills

0
65. Section 265.301 is amended by revising paragraph (a) to read as 
follows:


Sec.  265.301  Design and operating requirements.

    (a) The owner or operator of each new landfill unit, each lateral 
expansion of a landfill unit, and each replacement of an existing 
landfill unit must install two or more liners and a leachate collection 
and removal system above and between such liners, and operate the 
leachate collection and removal system, in accordance with Sec.  
264.301(d), (e), or (f) of this chapter.
* * * * *

[[Page 16912]]


0
66. Section 265.303 is amended by revising paragraph (a) to read as 
follows:


Sec.  265.303  Response actions.

    (a) The owner or operator of landfill units subject to Sec.  
265.301(a) must develop and keep on site until closure of the facility 
a response action plan. The response action plan must set forth the 
actions to be taken if the action leakage rate has been exceeded. At a 
minimum, the response action plan must describe the actions specified 
in paragraph (b) of this section.
* * * * *

0
67. Section 265.314 is amended by:
0
a. Removing paragraph (a);
0
b. Redesignating paragraphs (b) through (g) as paragraphs (a) through 
(f); and,
0
c. Revising newly designated paragraph (a), and the introductory text 
of newly designated paragraph (f) to read as follows:


Sec.  265.314  Special requirements for bulk and containerized liquids.

    (a) The placement of bulk or non-containerized liquid hazardous 
waste or hazardous waste containing free liquids (whether or not 
sorbents have been added) in any landfill is prohibited.
* * * * *
    (f) The placement of any liquid which is not a hazardous waste in a 
landfill is prohibited unless the owner or operator of such landfill 
demonstrates to the Regional Administrator or the Regional 
Administrator determines that:
* * * * *

Subpart W--Drip Pads

0
68. Section 265.441 is amended by revising paragraphs (a), (b), and (c) 
to read as follows:


Sec.  265.441  Assessment of existing drip pad integrity.

    (a) For each existing drip pad as defined in Sec.  265.440, the 
owner or operator must evaluate the drip pad and determine that it 
meets all of the requirements of this subpart, except the requirements 
for liners and leak detection systems of Sec.  265.443(b). No later 
than the effective date of this rule, the owner or operator must obtain 
and keep on file at the facility a written assessment of the drip pad, 
reviewed and certified by a qualified Professional Engineer that 
attests to the results of the evaluation. The assessment must be 
reviewed, updated, and re-certified annually until all upgrades, 
repairs, or modifications necessary to achieve compliance with all the 
standards of Sec.  265.443 are complete. The evaluation must document 
the extent to which the drip pad meets each of the design and operating 
standards of Sec.  265.443, except the standards for liners and leak 
detection systems, specified in Sec.  265.443(b).
    (b) The owner or operator must develop a written plan for 
upgrading, repairing, and modifying the drip pad to meet the 
requirements of Sec.  265.443(b), and submit the plan to the Regional 
Administrator no later than 2 years before the date that all repairs, 
upgrades, and modifications are complete. This written plan must 
describe all changes to be made to the drip pad in sufficient detail to 
document compliance with all the requirements of Sec.  265.443. The 
plan must be reviewed and certified by a qualified Professional 
Engineer.
    (c) Upon completion of all repairs and modifications, the owner or 
operator must submit to the Regional Administrator or state Director, 
the as-built drawings for the drip pad together with a certification by 
a qualified Professional Engineer attesting that the drip pad conforms 
to the drawings.
* * * * *

0
69. Section 265.443 is amended by revising paragraphs (a)(4)(ii) and 
(g) to read as follows:


Sec.  265.443  Design and operating requirements.

    (a) * * *
    (4)(i) * * *
    (ii) The owner or operator must obtain and keep on file at the 
facility a written assessment of the drip pad, reviewed and certified 
by a qualified Professional Engineer that attests to the results of the 
evaluation. The assessment must be reviewed, updated and recertified 
annually. The evaluation must document the extent to which the drip pad 
meets the design and operating standards of this section, except for 
paragraph (b) of this section.
* * * * *
    (g) The drip pad must be evaluated to determine that it meets the 
requirements of paragraphs (a) through (f) of this section and the 
owner or operator must obtain a statement from a qualified Professional 
Engineer certifying that the drip pad design meets the requirements of 
this section.
* * * * *

0
70. Section 265.444 is amended by revising paragraph (a) to read as 
follows:


Sec.  265.444  Inspections.

    (a) During construction or installation, liners and cover systems 
(e.g., membranes, sheets, or coatings) must be inspected for 
uniformity, damage and imperfections (e.g., holes, cracks, thin spots, 
or foreign materials). Immediately after construction or installation, 
liners must be inspected and certified as meeting the requirements of 
Sec.  265.443 by a qualified Professional Engineer. This certification 
must be maintained at the facility as part of the facility operating 
record. After installation, liners and covers must be inspected to 
ensure tight seams and joints and the absence of tears, punctures, or 
blisters.
* * * * *

Subpart BB--Air Emission Standards for Equipment Leaks


Sec.  265.1061  [Amended]

0
71. Section 265.1061 is amended by removing paragraphs (b)(1) and (d), 
and redesignating paragraphs (b)(2) and (b)(3) as paragraphs (b)(1) and 
(b)(2).


Sec.  265.1062  [Amended]

0
72. Section 265.1062 is amended by removing paragraph (a)(2) and 
redesignating paragraph (a)(1) as paragraph (a).

Subpart DD--Containment Buildings

0
73. Section 265.1100 is amended by revising the introductory text to 
read as follows:


Sec.  265.1100  Applicability.

    The requirements of this subpart apply to owners or operators who 
store or treat hazardous waste in units designed and operated under 
Sec.  265.1101 of this subpart. The owner or operator is not subject to 
the definition of land disposal in RCRA section 3004(k) provided that 
the unit:
* * * * *

0
74. Section 265.1101 is amended revising paragraphs (c)(2) and (c)(4) 
to read as follows:


Sec.  265.1101  Design and operating standards.

* * * * *
    (c) * * *
    (2) Obtain and keep on-site a certification by a qualified 
Professional Engineer that the containment building design meets the 
requirements of paragraphs (a), (b), and (c) of this section.
* * * * *
    (4) Inspect and record in the facility's operating record at least 
once every seven days, except for Performance Track member facilities, 
that must inspect up to once each month, upon approval of the director, 
data gathered from monitoring and leak detection equipment as well as 
the containment building and the area immediately surrounding the 
containment building

[[Page 16913]]

to detect signs of releases of hazardous waste. To apply for reduced 
inspection frequency, the Performance Track member facility must follow 
the procedures described in Sec.  265.15(b)(5).
* * * * *

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES 
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

0
75. The authority citation for part 266 continues to read as follows:

    Authority: 42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 6905, 6906, 
6912, 6921, 6922, 6924-6927, 6934, and 6937.

Subpart H--Hazardous Waste Burned in Boilers and Industrial 
Furnaces

0
76. Section 266.102 is amended by revising paragraph (e)(10) to read as 
follows:


Sec.  266.102  Permit standards for burners.

* * * * *
    (e) * * *
    (10) Recordkeeping. The owner or operator must maintain in the 
operating record of the facility all information and data required by 
this section for five years.
* * * * *

0
77. Section 266.103 is amended by revising paragraphs (d) and (k) to 
read as follows:


Sec.  266.103  Interim status standards for burners.

* * * * *
    (d) Periodic Recertifications. The owner or operator must conduct 
compliance testing and submit to the Director a recertification of 
compliance under provisions of paragraph (c) of this section within 
five years from submitting the previous certification or 
recertification. If the owner or operator seeks to recertify compliance 
under new operating conditions, he/she must comply with the 
requirements of paragraph (c)(8) of this section.
* * * * *
    (k) Recordkeeping. The owner or operator must keep in the operating 
record of the facility all information and data required by this 
section for five years.
* * * * *

PART 268--LAND DISPOSAL RESTRICTIONS

0
78. The authority citation for part 268 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

Subpart A--General

0
79. Section 268.7 is amended by revising paragraphs (a)(1), (a)(2), and 
(b)(6) to read as follows:


Sec.  268.7  Testing, tracking and recordkeeping requirements for 
generators, treaters, and disposal facilities.

    (a) Requirements for generators: (1) A generator of hazardous waste 
must determine if the waste has to be treated before it can be land 
disposed. This is done by determining if the hazardous waste meets the 
treatment standards in Sec.  268.40, 268.45, or Sec.  268.49. This 
determination can be made concurrently with the hazardous waste 
determination required in Sec.  262.11 of this chapter, in either of 
two ways: testing the waste or using knowledge of the waste. If the 
generator tests the waste, testing would normally determine the total 
concentration of hazardous constituents, or the concentration of 
hazardous constituents in an extract of the waste obtained using test 
method 1311 in ``Test Methods of Evaluating Solid Waste, Physical/
Chemical Methods,'' EPA Publication SW-846, (incorporated by reference, 
see Sec.  260.11 of this chapter), depending on whether the treatment 
standard for the waste is expressed as a total concentration or 
concentration of hazardous constituent in the waste's extract. 
(Alternatively, the generator must send the waste to a RCRA-permitted 
hazardous waste treatment facility, where the waste treatment facility 
must comply with the requirements of Sec.  264.13 of this chapter and 
paragraph (b) of this section. In addition, some hazardous wastes must 
be treated by particular treatment methods before they can be land 
disposed and some soils are contaminated by such hazardous wastes. 
These treatment standards are also found in Sec.  268.40, and are 
described in detail in Sec.  268.42, Table 1. These wastes, and solids 
contaminated with such wastes, do not need to be tested (however, if 
they are in a waste mixture, other wastes with concentration level 
treatment standards would have to be tested). If a generator determines 
they are managing a waste or soil contaminated with a waste, that 
displays a hazardous characteristic of ignitability, corrosivity, 
reactivity, or toxicity, they must comply with the special requirements 
of Sec.  268.9 of this part in addition to any applicable requirements 
in this section.
    (2) If the waste or contaminated soil does not meet the treatment 
standards, or if the generator chooses not to make the determination of 
whether his waste must be treated, with the initial shipment of waste 
to each treatment or storage facility, the generator must send a one-
time written notice to each treatment or storage facility receiving the 
waste, and place a copy in the file. The notice must include the 
information in column ``268.7(a)(2)'' of the Generator Paperwork 
Requirements Table in paragraph (a)(4) of this section. (Alternatively, 
if the generator chooses not to make the determination of whether the 
waste must be treated, the notification must include the EPA Hazardous 
Waste Numbers and Manifest Number of the first shipment and must state 
``This hazardous waste may or may not be subject to the LDR treatment 
standards. The treatment facility must make the determination.'') No 
further notification is necessary until such time that the waste or 
facility change, in which case a new notification must be sent and a 
copy placed in the generator's file.
* * * * *
    (b) * * *
    (6) Where the wastes are recyclable materials used in a manner 
constituting disposal subject to the provisions of Sec.  266.20(b) of 
this chapter regarding treatment standards and prohibition levels, the 
owner or operator of a treatment facility (i.e., the recycler) must, 
for the initial shipment of waste, prepare a one-time certification 
described in paragraph (b)(4) of this section, and a one-time notice 
which includes the information in paragraph (b)(3) of this section 
(except the manifest number). The certification and notification must 
be placed in the facility's on-site files. If the waste or the 
receiving facility changes, a new certification and notification must 
be prepared and placed in the on site files. In addition, the recycling 
facility must also keep records of the name and location of each entity 
receiving the hazardous waste-derived product.
* * * * *

0
80. Section 268.9 is amended by revising paragraphs (a) and (d) 
introductory text to read as follows:


Sec.  268.9  Special rules regarding wastes that exhibit a 
characteristic.

    (a) The initial generator of a solid waste must determine each EPA 
Hazardous Waste Number (waste code) applicable to the waste in order to 
determine the applicable treatment standards under subpart D of this 
part. This determination may be made concurrently with the hazardous 
waste determination required in Sec.  262.11 of this chapter. For 
purposes of part 268, the waste will carry the waste code for any 
applicable listed waste (40 CFR part

[[Page 16914]]

261, subpart D). In addition, where the waste exhibits a 
characteristic, the waste will carry one or more of the characteristic 
waste codes (40 CFR part 261, subpart C), except when the treatment 
standard for the listed waste operates in lieu of the treatment 
standard for the characteristic waste, as specified in paragraph (b) of 
this section. If the generator determines that their waste displays a 
hazardous characteristic (and is not D001 nonwastewaters treated by 
CMBST, RORGS, OR POLYM of Sec.  268.42, Table 1), the generator must 
determine the underlying hazardous constituents (as defined at Sec.  
268.2(i)) in the characteristic waste.
* * * * *
    (d) Wastes that exhibit a characteristic are also subject to Sec.  
268.7 requirements, except that once the waste is no longer hazardous, 
a one-time notification and certification must be placed in the 
generator's or treater's on-site files. The notification and 
certification must be updated if the process or operation generating 
the waste changes and/or if the subtitle D facility receiving the waste 
changes.
* * * * *

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

0
81. The authority citation for part 270 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

Subpart B--Permit Application

0
82. Section 270.14 is amended by revising paragraph (a) to read as 
follows:


Sec.  270.14  Contents of part B: General requirements.

    (a) Part B of the permit application consists of the general 
information requirements of this section, and the specific information 
requirements in Sec. Sec.  0.14 through 270.29 applicable to the 
facility. The part B information requirements presented in Sec. Sec.  
270.14 through 270.29 reflect the standards promulgated in 40 CFR part 
264. These information requirements are necessary in order for EPA to 
determine compliance with the part 264 standards. If owners and 
operators of HWM facilities can demonstrate that the information 
prescribed in part B can not be provided to the extent required, the 
Director may make allowance for submission of such information on a 
case-by-case basis. Information required in part B shall be submitted 
to the Director and signed in accordance with the requirements in Sec.  
270.11. Certain technical data, such as design drawings and 
specification, and engineering studies shall be certified by a 
qualified Professional Engineer. For post-closure permits, only the 
information specified in Sec.  270.28 is required in part B of the 
permit application.
* * * * *

0
83. Section 270.16 is amended by revising paragraph (a) to read as 
follows:


Sec.  270.16  Specific part B information requirements for tank 
systems.

* * * * *
    (a) A written assessment that is reviewed and certified by a 
qualified Professional Engineer as to the structural integrity and 
suitability for handling hazardous waste of each tank system, as 
required under Sec. Sec.  264.191 and 264.192 of this chapter;
* * * * *

0
84. Section 270.26 is amended by revising paragraph (c)(15) to read as 
follows:


Sec.  270.26  Special part B information requirements for drip pads.

* * * * *
    (c) * * *
    (15) A certification signed by a qualified Professional Engineer, 
stating that the drip pad design meets the requirements of paragraphs 
(a) through(f) Sec.  264.573 of this chapter.
* * * * *

Subpart D--Changes to Permits

0
85. Section 270.42 is amended by adding new paragraph (l) and by adding 
new entry O to the table in Appendix I to Sec.  270.42. to read as 
follows:


Sec.  270.42  Permit modification at the request of the permittee.

* * * * *
    (l) Performance Track member facilities. The following procedures 
apply to Performance Track member facilities that request a permit 
modification under Appendix I of this section, section O(1).
    (1) Performance Track member facilities must have complied with the 
requirements of Sec.  264.15(b)(5) in order to request a permit 
modification under this section.
    (2) The Performance Track member facility should consider the 
application approved if the Director does not: deny the application, in 
writing; or notify the Performance Track member facility, in writing, 
of an extension to the 60-day deadline within 60 days of receiving the 
request. In these situations, the Performance Track member facility 
must adhere to the revised inspection schedule outlined in its 
application and maintain a copy of the application in the facility's 
operating record.
* * * * *

Appendix 1 To Sec.  270.42--Classification of Permit Modification

------------------------------------------------------------------------
                          Modifications                            Class
------------------------------------------------------------------------
 
                              * * * * * * *
O. Burden Reduction
    1. Approval of reduced inspection frequency for Performance
     Track member facilities for:
        a. Tanks systems pursuant to Sec.   264.195.............   \1\ 1
        b. Containers pursuant to Sec.   264.174................   \1\ 1
        c. Containment buildings pursuant to Sec.                  \1\ 1
         264.1101(c)(4).........................................
        d. Areas subject to spills pursuant to Sec.                \1\ 1
         264.15(b)(4)...........................................
    2. Development of one contingency plan based on Integrated         1
     Contingency Plan Guidance pursuant to Sec.   264.52(b).....
    3. Changes to recordkeeping and reporting requirements             1
     pursuant to: Sec.  Sec.   264.56(i), 264.343(a)(2),
     264.1061(b)(1),(d), 264.1062(a)(2), 264.196(f), 264.100(g),
     and 264.113(e)(5)..........................................
    4. Changes to inspection frequency for tank systems pursuant       1
     to Sec.   264.195(b).......................................
    5. Changes to detection and compliance monitoring program         1
     pursuant to Sec.  Sec.   264.98(d), (g)(2), and (g)(3),
     264.99(f), and (g).........................................
------------------------------------------------------------------------
\1\ Class 1 modifications requiring prior Agency approval.


[[Page 16915]]

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

0
86. The authority citation for part 271 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a) and 6926.

0
87. Section 271.1(j) is amended by adding the following entries to 
Table 1 in chronological order by date of publication in the Federal 
Register, to read as follows:


Sec.  271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                   Federal Register
         Promulgation date              Title of regulation           reference              Effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
May 4, 2006.......................  Office of Solid Waste       [Insert FR page        May 4, 2006.
                                     Burden Reduction Project.   numbers].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 06-2690 Filed 4-3-06; 8:45 am]
BILLING CODE 6560-50-P