Clarification of Exceptions and Additional Needed Changes To Retention of Operating Record Under 264.73( b)( 6) and 265.73( b)( 6).

ACC supports the proposed changes to the operating record at 264.73 and 265.73, but believes additional changes and some clarification are needed at 264.73( b)( 6) and 265.73( b)( 6). EPA has proposed to change the retention period of certain specified information in the operating record at 40 CFR 264.73 and 265.73 from " until closure of the facility" to a much more reasonable " three  250 years after it is entered into the operating record." We support this positive change. EPA states that:

After many years of experience with RCRA, we are better able to distinguish records that must be kept for the life of the facility from those which can be discarded after some period of time without affecting protections of human health and the environment... information about what wastes are disposed at a facility, where the disposed waste is located, and information relevant for facility closure must be kept for the life of the facility. ( 67 FR 2529)

From this point forward, our discussion on the operating record will refer to citations within 264.73( b)( 6), with the understanding that corresponding citations within 265.73( b)( 6) are similarly affected. ACC members do not object retaining until closure of the facility the requirements of 264.73( b)( 1) related to what wastes are disposed at a facility or ( b)( 2) related to the location of each hazardous waste within the facility and the quantity at each location. Nor do we object to life of the facility retention of closure and post closure cost estimates at ( b)( 8) or to the requirements found at ( b)( 10).

But ACC believes that some of the monitoring, testing or analytical data required at ( b)( 6) can be retained for less than the life of the facility. The proposed 264.73( b)( 6) reads as follows:

264.73( b)( 6): Monitoring, testing, or analytical data, and corrective action data where required by subpart F of this part and 264.19, 264.191, 264.193, 264.195, 264.222, 264.223, 264.226, 264.252, through 264.254, 264.276, 264.278, 264.280, 264.302, through 264.304, n264.309, 264.347, 264.602, 264.1034( c) through 264.1063( i), 264.1064, and 264.1090. All this information must be maintained in the operating record until closure of the facility ( Proposed new text is underlined.

Some of the monitoring, testing or analytical data requirements associated with the many citation references in this paragraph are among the most voluminous under RCRA, and present the greatest opportunity for burden reduction to the regulated community. ACC suggests that the Agency reconsider its requirements to retain until closure of the facility some of the information designated under 264.73( b)( 6) and 265.73( b)( 6).

We also believe taht many of the recordkeeping requirements included in those many citations are required to be retained for only three years now, and we assume that the proposed change to 264.73( b)( 6) and 265.73( b)( 6) does not change the existing recordkeeping requirements included in the above citations. However, EPA needs to clarify that by adding the sentence " All of this information must be maintained in the operating record until closure of the facility," the Agency is not superceding the ???????

of a minimum of 3 years  no " until closure" recordkeeping requirements. ACC assumes this retention period is unchanged by this proposal.  251 264.1084 contains standards for the control of air pollutant emissions from tanks. The recordkeeping requirements for 264.1084 are found at 264.1089( b). The retention period for those records is 3 years, and ACC again assumes this retention period is unchanged by the proposal.

264.1085 contains standards for the control of air pollutant emissions from surface impoundments. The recordkeeping requirements for 264.1086 are found at 264.1089( c) and are again required to be kept for 3 years.

264.1086 contains standards for the control of air pollutant emissions from containers. These are " standards" and the recordkeeping requirements for 264.1086 are found at 264.1089( d), with a retention period of a minimum of 3 years. There are no " until closure" recordkeeping requirements associated with this paragraph.

264.1087 contains standards for closed vent systems and control devices. There are no actual operating record requirements in this paragraph; rather the operating record requirements are addressed in 264.1089( e), which requires records associated with 264.1087 to be kept for only a minimum of 3 years. There are not " until closure" recordkeeping requirements associated with this paragraph.

264.1088 contains inspection and monitoring requirements for air emission control equipment. There are no operating record requirements in this paragraph.

264.1089 contains the recordkeeping requirements for all the above. However, with the exception of two subparagraphs ( i) and ( j), all such records need to be maintained in the operating record for " a minimum of 3 years." Thus, only the requirements of ( i) and ( j) require maintenance until closure, these requirements relate to tanks, containers or hazardous waste management units not using air emission controls, and ACC does not object to such requirements. ACC assumes the 3 year retention period for the vast majority of 264.1089 recordkeeping requirements will remain in place.

264.1090 contains reporting requirements. However, none of those requirements pertain to monitoring, testing or analytical data or corrective action data that must go into the operating record.

Response: The Agency acknowledges and appreciates this comment and refers the reader to the preamble discussion.

Document #: 0224 CRWI supports most of the proposed changes to 264.73( b) and 265.73( b). We agree with the addition of the 3 year recordkeeping requirements in the introductory paragraph. However, we do have a number of concerns about the exceptions included in the subsequent text. We believe that there are a number of monitoring, testing, analytical, and corrective actions ( see 264.73( b)( 6) and 265.73( b)( 6)) that should also have a 3 year record retention requirement rather than the life of the  252 facility requirement. One example is the requirements to keep the assessments of a tank system integrity ( 264.191) for the life of the facility. CRWI believes that keeping these records for three years is ample time for the permitting agency to inspect the operating record of that facility. Other examples include 264.193, 264.195, 264.226, etc. CRWI urges EPA to look at all the requirements listed in ( b)( 6) to determine which should be kept for the life of the facility and where a 3 year retention period is adequate to show compliance with the regulations.

CRWI also has a concern with retaining all the closure cost estimates in ( b)( 8) for the life of the facility. We see no reason to keep all of the estimates. CRWI believes that only the latest, most up to date estimates should be kept. Should a facility update their closure plan and develop new estimates, we see no reason why that facility has to keep both the old and the revised estimates. Surely the newest estimates are the most accurate and should be the only one retained. CRWI urges EPA to modify this provision to retain only the newest estimates and not all estimates.

Response: The Agency acknowledges and appreciates this comment and refers the reader to the preamble discussion.

Document #: 0354 CRWI was one of the commenters on the proposed rule who suggest that only the most recent closure and post closure cost estimates need to be retained. We still support that position and suggest that EPA revise the final rule to require keeping only the most recent closure cost estimates at the facility.

In our comments on the original proposed rule, CRWI also supported the proposed changes to the record retention of boilers and industrial furnaces from " life of the facility" to three years. We continue to support that change.

We agree with the commenter who pointed out that large amounts of data are produced as part of an incinerator operating record. There are many requirements associated with these units, and keeping records until closure is extremely difficult because of the sheer volume of information generated. CRWI member companies have explored the use of paper records, microfiche, and long term computer files. None of these methods are attractive. Maintaining a perfect archive of these records for the life of the facility does not enhance protecting the environment. Frequent inspections of these units makes such long term records retention unnecessary. CRWI supports the modification of this provision to allow incinerators to have the same records retention requirements as proposed for BIF units ( three years). To accomplish this, we suggest that the references to 264.347 and 265.347 be removed from the proposed language in 264.73( b)( 6) and 265( b)( 6).

Response: The Agency acknowledges and appreciates this comment. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the  253 facility, and until closure of the facility. This information includes: ( 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 place in land disposal units under an extension to the effective date of any land disposal restriction. In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done. In addition, we have also decided, for reasons of consistency with the Clean Air Act requirements, to finalize a five year record retention time for incinerators and BIFs. We are also promulgating the five year record retention time to BIFs ( such as sulfur recovery furnace) that will be subject to the upcoming MACT standards. With regard to closure estimates, the commenter has not provided the Agency with a compelling argument that this information should not be maintained until closure of the facility. As such, we are retaining the existing requirement.

264.73( b)( 1). Operating record. Proposed Action: The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: A description and the quantity of each hazardous waste received, and the method( s) and date( s) if its treatment, storage, or disposal at the facility as required by appendix I.

Document #: 0134 The existing 264.73( b)( 1) reads as follows: ( 1) A description and the quantity of each hazardous waste received, and the method( s) and date( s) if its treatment, storage, or disposal at the facility as required by appendix I" ( emphasis added). DOE requests that, in the final revised version of 264.73( b)( 1), EPA consider retaining the phrase " as required by Appendix I," because Appendix I contains useful instructions about the contents of the required records.

Response: The Agency acknowledges and appreciates this comment, but is unclear as to the point of the proposed change and is therefore not compelled to change the existing requirement.  254 264.73( b)( 1)&( 2). Operating record. The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: ( 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; ( 2) The location fo each hazardous waste withing 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 specific manifest document numbers, if the waste was accompanied by a manifest.

Document #: 0203 Onyx supports EPA's proposed modifications for records retention at RCRA TSDF's. The time frame for the records retention should be standardized to three years as outlined in EPA's proposed rule. EPA proposes to continue to require facilities to maintain records related to waste receipt, storage locations and disposition of hazardous waste for the life of the facilities under 40 CFR 264.73( b)( 1) and ( 2). However, for facilities that are not disposing wastes on site, records should only be required to be maintained for three years. The three year record retention period is sufficient to assure that the wastes are being properly managed and the longer record retention period places an unnecessary burden upon the TSDF.

EPA consistently uses the language: " Maintain for three years after entry into the operating record", in the proposed rule. Onyx believes this language should be changed to read " Maintain for three years." The operating records for TSDFs consist of separate documents located throughout the facility. For example, the laboratory analytical results are part of the operating record when they are created. The data stands alone in the laboratory records and is not actually " entered into the operating record." Therefore, there is no need for the regulations to read "... after entry into the operating record."

Response: The Agency acknowledges and appreciates this comment.

264.73( b)( 5). Operating record. The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: Records and results of inspections as required by 264.15( d) ( except these data need be kept only three years).

Document #: 0134 DOE suggests that 40 CFR 264.73( b)( 5) be revised as indicated below to maintain consistency between this subsection and subsections affected by the other revisions that EPA has proposed in 40 CFR 264.73( b) ( strikeout = deletion):

( 5) Records and results of inspections are required by 264.15( d) ( except these data need be  255 kept only three years);

Response: The Agency acknowledges and appreciates this comment.

264.73( b)( 6). Operating record. The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: Monitoring, testing or analytical data, and corrective action where required by subpart F of this part and 264.19, 264.191, 264.193, 264.195, 264.222, 264.223, 264.226, 264.252 264.254, 264.276, 264.278, 264.280, 264.302 264.304, 264.309, 264.1035, 264.1063( d) 264.1063( i), 264.1064 and 264.1082 through 264.1090 of this part.

Document #: 0317 Dow agrees with the commenter and supports the suggested modification to 40 CFR 264.73( b)( 6) dealing with records for hazardous waste incinerators. Dow supports changing the requirement to a 3 year retention time as opposed to closure of the facility as expressed in the proposed rule. Likewise in the proposed rule, EPA listed similar records for Boilers and Industrial Furnaces in the table of proposed reductions related to Part 266.

In the table of proposed reductions in the proposed rule, EPA indicated that most of the information required by 40 CFR 264.73 and 40 CFR 265.73 would be affected by the reduction. Dow suggests that most of the affected operating records are not actually reduced at all because of all the exceptions to the 3 year retention time in the proposed rule, including incinerator records. IN placing so many exceptions in the proposed language for 40 CFR 264.73 and 40 CFR 265.73, Dow believes that EPA has actually diminished the original objective claimed in the table, " Modify amount of time most of the information in operating records have to be kept." [ Emphasis added by Dow]

In Dow's comments to the proposed rule, Dow supported EPA's proposal to reduce the recordkeeping period for permitted and interim status Boilers and Industrial Furnaces from closure to three years. Dow continues to support that proposal for BIF units, and also supports similar approach for incinerators.

Allowing the 3 year records requirement to also apply to incinerators would be consistent with EPA's approach to BIF records. There are many requirements associated with these units, and keeping records until closure is extremely difficult because of the sheer volume of information. Dow has explosred paper records, microfiche, and long term computer files. None of these methods are attractive. Keeping these records this long has not protected the environment in any fashion and is more of an exercise in maintaining a perfect archive. Again, frequent inpsection of these units makes such long term records retention unnecessary. Dow supports EPA's proposal to reduce the recordkeeping burden.

Response: The Agency appreciates this comment. In today's rule we are amending the record  256 retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 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 place in land disposal units under an extension to the effective date of any land disposal restriction. In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done.

In addition, we have also decided, for reasons of consistency with the Clean Air Act requirements, to finalize a five year record retention time for incinerators and BIFs. We are also promulgating the five year record retention time to BIFs ( such as sulfur recovery furnace) that will be subject to the upcoming MACT standards.

264.73( b)( 8). Operating record. The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: All closure cost estimates under 264.142, and, for disposal facilities, all post closure cost estimates under 264.144.

Document #: 0134 DOE requests that, in the final revised version of 264.73( b)( 8), EPA retain the existing crossreferences to 264.142 and 264.144, because the cross references provide useful instructions about the contents of the required records.

Response: The Agency acknowledges and appreciates this comment, but is not making this change. .

Document #: 0345 264.73( b)( 8), 265.73( b)( 8) General Facility Standards  Record Retention of only the current closure and post closure estimates. Three year retention of incinerator records.

There is opportunity to clarify the regulations to minimize confusion. The original proposed regulations on financial assurance and cost estimates used the term " latest closure and post closure costs estimates". However, due to the confusion that generated it was changed in 1986 to " current  257 cost estimates". Originally, latest cost estimates was defined as approved by EPA, but it was written in a way that it was not clear if the adjustment for inflation was included. This created a confusion with the term current cost estimates and current dollars. Current costs estimates is defined as the most recent cost estimates which includes any revisions due to changes in plan or inflation adjustments. Consequently adjustment for inflation can be done in two ways; one by using the inflation factor or by re calculating the closure costs using current dollars. Recalculating the closure costs using current dollars is more accurate and it is more expensive than the inflation factor. That is why most companies use the inflation factor.

264.144( d) makes the issue more confusing because it refers to latest cost estimates. It defines latest cost estimates as the sum of current cost estimates and any subsequent adjustments for inflation. For example: Company A submits a closure plan in 1996 with current dollars and it is accepted by the regulatory agency, we can call the cost estimates as 1996 current cost estimates. Then the company has the option of adjusting for inflation by using next year inflation factor or recalculating using current dollars. The latest closure costs and post closure costs is the 1996 current cost estimates + the annual adjustment.

It would help to better define current cost estimates or eliminate latest cost estimates. In terms of the paper reduction the company should keep the most updated cost estimates, " latest" or " current". It is basically the same thing but creates a lot of confusion for the States and the regulated community.

Response: The Agency appreciates and acknowledges this comment however cost estimates must be maintained until closure of the facility.

264.73( b)( 10) The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: Records of the quantities ( and date of placement) for each shipment of hazardous waste placed in land disposal units under an extension to the effective date of any land disposal restriction granted pursuant to 268.5, a petition pursuant to 268.6, or a certification under 268.8, and the applicable notice required by a generator under 268.7( a).

Document #: 0134 DOE suggests that, for clarity, the phrase " of this chapter," which appears three times in the proposed version of 264.73( b)( 10), either be eliminated or changed to " of this part." The phrase " of this chapter" is not used in the existing version of 264.73( b)( 10), which is otherwise identical to the proposed version, except that the existing version does not contain the last sentence in the proposed version. DOE does not believe that adding the phrase " of this chapter" to 264.73( b)( 10) improves the regulatory language. On the contrary, because the section numbering scheme in the Code of Federal Regulations ( CFR) reflects the title number and the part number ( e. g., 40 CFR 264. xxx), but does not reflect the chapter number, DOE believes that referring to the " chapter,"  258 rather than the " part" may actually confuse some readers.

Response: The Agency appreciates this comment. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 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 place in land disposal units under an extension to the effective date of any land disposal restriction. In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done. In addition, we have also decided, for reasons of consistency with the Clean Air Act requirements, to finalize a five year record retention time for incinerators and BIFs. We are also promulgating the five year record retention time to BIFs ( such as sulfur recovery furnace) that will be subject to the upcoming MACT standards.

264.90 Applicability.

Document #: 0222/ 0223 Clarification on the proposed change to 260.90( a)( 2). We support the Agency's effort to remove obsolete regulatory language, however, the change proposed for 264.90( a)( 2) needs clarification. Removing the qualifer for land disposal units " that receives hazardous waste after July 26, 1982 ( hereinafter referred to as a " regulated unit")" implies that units closed prior to 1982 may now be subject to additional requirements. EPA should retain the existing date reference or clarify the language in this section clearly exclude units closed prior to July 26, 1982.

CLARIFICATION OF LANGUAGE CHANGE TO 264.90( A)( 2)  STANDARDS FOR SOLID WASTE MANAGEMENT UNITS ACC supports the Agency's effort to remove obsolete regulatory language as part of the Burden Reduction proposal. However, the change proposed for 264.90( a)( 2) needs clarification. Removing the qualifer for land disposal units " that receives hazardous waste after July 26, 1982 ( hereinafter referred to as a " regulated unit")" implies that units closed prior to 1982 may now be  259 subject to additional requirements. EPA should retain the existing data reference or clarify the language in this section to clearly exclude units closed prior to July 26, 1982.

Response: We are not pursuing this burden reduction change, in that this language is not obsolete.

264.90( a)( 2) Standards for Solid Waste Management Units Proposed Action: Remove obsolete language Document #: 0213 We concur with the proposed elimination of this language.

Response: We are not pursuing this burden reduction change, in that the language is not obsolete.

Document #: 0218 Remove obsolete language regarding SWMUs.

Response: We are not pursuing this burden reduction change.

264.98 Detection Monitoring Document #: 0165 Many ETC members companies must comply with the ground water monitoring provisions of Part 264, which impose significant capital and operating costs on TSD facilities. After many years of experience with these provisions, we believe that greater flexibility can be allowed without compromising environmental protection.

The ETC supports the proposed change to 264.98( c) which would allow sampling for a smaller subset os Appendix IX constituents to be specified in permit. However, since this change will require that permits be modified, EPA must also amend 270.42 Appendix I to clearly provide that sampling for a site specific subset of constituents is a Class 1 Permit Modification with prior approval of the Director. Currently, Appendix 1 indicates that " changes is ground water sampling or analysis procedures" are Class 1 mods with prior approval, but " changes in indicator parameters, hazardous constituents, or concentration limits" as specified in the groundwater protection standards are Class 3 mods, and as specified in the detection monitoring program are Class mode 2 mods. It is not clear which description would apply to changes allowed by the amended 264.98( c), but we believe a Class 1 mod with prior approval is the correct and most practical approach. The flexibility and burden reduction that EPA intends to accomplish will be  260 frustrated unless Class 1 permit mods with prior approval are used to implement sampling for a subset of Appendix IX constituents as provided in amended 264.98( c)

Response: The Agency acknowledges and appreciates the commenter's support for today's changes to § 264.98( g)( 2) but disagrees that any additional change to § 270.42 Appendix I is necessary.

EPA is taking comment on eliminating the requirement to submit the notification of contamination required by 264.98( g)( 1), although the preamble indicates that EPA is " not proposing" this change. 67 Federal Register 2521. We note that an agency can make changes in final rule, even if not included in the proposed rule, that are a " logical outgrowth" of public comments, so we urge EPA to eliminate this redundant and unnecessary notification in the final rule. Section 264.98( g)( 1) provides that when there is evidence of contamination at any monitoring well, the facility must submit a written notification to the Regional Administrator within 7 days. The regulation goes on, however, to direct the facility to sample all monitoring well to determine the concentrations of any hazardous constituents present, and to resample for any constituents found within one month to confirm the initial results, and then to submit an application for a permit modification within 90 days to establish a compliance monitoring program. Thus, the 264.98( g)( 1) notification is either unnecessary if the subsequent re sampling does not confirm the initial results, or duplicative of the information provided in the application for a permit modification. In order to reduce such needless reporting burdens, EPA should eliminate 264.98( g)( 1).

Response: The Agency disagrees with the commenter's assertion that the notification of § 264.98( g)( 1) is unnecessary or duplicative. The Agency believes that notification to the Regional Administrator of ground water contamination under § 264.98( g)( 1) is still an essential part of compliance monitoring.

The facility's application for a permit modification to establish a compliance monitoring program must include a number of specified items. See 264.98( g)( 4). However, we agree that an engineering feasibility plan for a corrective action program required by 264.98( g)( 5)( ii) can be maintained in the facility operating record, rather than submitted to the regulatory authority. We therefore support this proposed change.

Response: After considering comments to the proposed changes, EPA is today retaining the requirement under § 264.98( g)( ii) for submittal of an engineering feasibility plan. Commenter's convinced the Agency of the usefulness this notification. Further, the Agency believes that such reporting requirements are essential to compliance monitoring and need to be retained in the operating record for the life of the facility.

If the facility believes that another source caused the contamination found in a monitoring well, or that the detection is an artifact caused by an error in sampling, analysis, or statistical evaluation, or is due to variation in the groundwater, then the facility can apply to make appropriate changes to the detection monitoring program, rather than move into compliance monitoring. In that case , 264.98( g)( 6) requires the facility to notify the Regional Administrator of its intent to make such a  261 demonstration within 7 days, following by a report on the demonstration within 90 days, in addition to submitting an application for a permit modification within 90 days which would include all the same information. While EPA has proposed to make the notice and report part of the operating record rather than having them sent to the regulatory authority, we see no need for this redundant paperwork at all. Since the pertinent information would be included in the facility's permit modification application, we urge EPA to eliminate 264.98( g)( 6)( i) and ( ii). We note that EPA has proposed eliminating the identical notice and report related to corrective action under 264.98( i)( 1) and ( 2), as discussed below.

Response: The Agency disagrees with the commenter's assertion that the reporting requirements under § § 264.98( g)( 6)( i) and ( ii) are redundant. Further, the Agency believes that such reporting requirements are essential to compliance monitoring and need to be retained in the operating record for the life of the facility.

Document #: 0181 The proposal to allow sampling of a smaller subset of constituents from the Appendix IX list of constituents is supported by IDEQ. The need for this change has long been recognized. For example, regulated facilities have often questioned the need for annual pesticide sampling in areas where pesticide contamination is not suspected.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's change to § 264.98( g)( 2).

Document #: 0212 EPA must require facilities to submit the engineering feasibility plan for corrective action to the agency. This will provide community members with necessary information on which determine extent of contamination. Further, allowing firms to keep the engineering feasibility plan for corrective action in the facility operating record impedes meaningful and timely public access to the information.

Response: The Agency disagrees with the commenter's assertion that allowing firms to keep the engineering feasibility plan for corrective action in the facility operating record impedes meaningful and timely public access to the information. There is nothing in today's rule that impedes timely public access to information in a facility's operating record. EPA, however, is today retaining the provisions of § 264.98( g)( 5)( ii) because commenters convinced us of the usefulness of this notification.

Document #: 0216 Maine agrees with your proposal to introduce flexibility for sampling requirements. In certain situations smaller subset from the Appendix IX list of constituents would be appropriate for analysis. For submission of the notification of new constituent concentrations, we agree with your suggestion to modify for number of wells, samples, and constituents on a case by case basis.

Response: The Agency acknowledges this comment and appreciates the commenter's support for  262 today's change to sampling requirements.

Document #: 0315 ACC supports EPA's clarification of an inconsistency in the groundwater regulations; that is, EPA should revise § 264.98( d) detection monitoring requirements ( which require a facility to collect at least 4 samples from each well at least semi annually) to allow a facility to propose ( with the Regional Administrator's approval) alternate sampling procedures. This change would be consistent with the present general groundwater monitoring requirements of § 264.97( g)( 2).

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's change to § 264.98( d).

ACC strongly supports the inclusion of language in the groundwater detection and compliance monitoring requirements to provide as much flexibility as the data support. Not only is it appropriate to allow for the State or EPA to allow flexibility in the resampling time frame, EPA and the State should also allow a facility to sample for less than the full suite of Appendix IX constituents if facility records can demonstrate the type of material that was disposed of or handled in the area being monitored. Sampling for every constituent on Appendix IX is both expensive and unnecessary to ensure environmental protection.

Response: The Agency agrees with the commenter's assertion that sampling in all cases for every constituent in Appendix IX is both expensive and unnecessary to ensure environmental protection. EPA appreciates the commenter's support for today's changes knowledges this comment and appreciates the commenter's support for today's changes to § 264.98( g)( 2).

In addition, a trend can often be detected early on in a monitoring program. Once trends are developed, the spatial and temporal frequency of sampling should be determined, or revisited. ACC members have had great success in using trend charts and control charts to make significant changes in both the location and sampling frequency at many sites. Should conditions change, more frequent and tighter spatial controls can be placed in the area as needed. ACC believes it is important for the sampling frequency and location to be based on the site specific date, not " onesize fits all" regulatory requirements.

Response: The Agency acknowledges this comment and agrees with the commenter's assertion that it is important for the sampling frequency and location to be based on the site specific data, not " one size fits all" regulatory requirements.

Lastly, ACC supports the proposed change to § 264.100( g) to maintain consistency with the proposed change to § 264.113( e)( 5)  requiring an annual instead of a semi annual corrective action report.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's change to § 264.100.  263 Document #: 0323 COPC supports EPA's proposals to change semi annual reporting requirements to annual reporting for groundwater issues related to corrective action. COPC also supports, on a case bycase basis, allowing Appendix IX sampling on a subset of compliance monitoring wells. Another important proposal COPC supports is to allow alternative site specific detection monitoring well sampling procedures in place of the current requirement of at least four samples from each well at least semi annually. COPC also supports flexibility in the required frequency of resampling monitoring wells where Appendix IX compounds are present, upon approval by the State or EPA. And finally, COPC supports the revised requirement for an annual rather than a semi annual corrective action report.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's changes.

Document #: 0327 API supports EPA's proposals to change semi annual reporting requirements to annual for groundwater issues related to corrective action. API also supports on a case by case basis Appendix IX sampling on a subset of a compliance monitoring wells. Most importantly, API supports site specific alternate detection monitoring well sampling procedures to replace the four samples per well semi annual currently prescribed procedure. Additionally, API supports flexibility in the frequency of re sampling monitoring wells where Appendix IX compounds are present, upon approval by the State or EPA. And finally, API supports the revised requirement for an annual rather than a semi annual correction action report.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's changes.

Document #: 0333 Onyx supports modifying the groundwater monitoring requirements to allow owners/ operators to report on the effectiveness of corrective action on an annual basis instead of the current semiannual basis.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's change to reporting requirements.

Document #: 0334 OESI supports EPA's proposals related to groundwater monitoring of regulated units. Specifically, we support the proposal to allow owner/ operators to report on the effectiveness of corrective action for groundwater on an annual basis instead of the current semiannual basis. As an alternative, a sliding reporting frequency to be determined by the State or EPA in conjunction with the facility may be appropriate in some cases. This alternative could require, for instance, a semiannual reporting frequency for the first two years of operation of the remedy and annual reporting for subsequent years. This would allow more frequent reporting during the early years where most exceedences and/ or changes occur and less frequent reporting once a remedy is better  264 understood and more predictable.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's changes to reporting requirements. There is nothing in today's rule that prevents a State from being more stringent or a facility from reporting more frequently than specified in § 264.100.

OESI also supports the proposal to allow, on a case by case basis, the sampling of a subset of wells for the annual Appendix IX analysis during compliance monitoring. Currently, during the compliance monitoring, all wells must be sampled for the Appendix IX constituents on an annual basis. Facilities in compliance monitoring which, for example, utilize a static background data set, would benefit from this change by not having to collect Appendix IX data from background wells which are not utilized. Similarly, we support the proposal to allow flexibility in the timing for the resampling event for confirmation of Appendix IX constituents during detection and compliance monitoring. Currently, facilities that detect Appendix IX compounds in groundwater, beyond the site specific hazardous constituents, may resample within a month to check again for the specific constituents. By removing the requirement to sample within a month, a facility, for example could include the resampling as part of a different monitoring event, thus eliminating the need to conduct a sampling event for one well.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's changes to sampling requirements.

OESI also believes that the proposed elimination of the requirement to collect at least four samples from each well at least semiannually during detection monitoring is long overdue and is strongly supported. Finally, the proposal to allow alternate sampling procedures for detection monitoring is supported by OESI.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's changes to sampling requirements.

Document #: 0336 FDEP agrees with the proposal to allow a subset of Appendix IX, especially at facilities which are not known to have accepted off site waste.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's changes to sampling requirements.

Document #: 0338 USWAG has consistently supported EPA's burden reduction proposal to allow owners/ operators of RCRA facilities to report on the effectiveness of groundwater monitoring on an annual basis rather than the current semi annual basis. USWAG has also supported related EPA proposals to: ( 1) allow groundwater monitoring plans and reports to be kept at a facility; and ( 2) allow a facility conducting compliance monitoring to sample a subset of the wells and analyze samples for a subset  265 of the Appendix IX constituents as opposed to the current requirement of annual analysis of all Appendix IX constituents from samples of all monitoring wells.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's changes to sampling and reporting requirements.

USWAG agrees with EPA's recent proposal to expand these groundwater monitoring burden reductions proposals. In addition to these changes, USWAG also recommends that facilities, with Administrator approval based on site specific factors, be allowed to modify the number of Appendix IX constituents that must be collected during groundwater sampling.

Response: In today's final rule EPA has approved changes to § 264.98( g)( 2) to give the Regional Administrator the discretion to allow a facility to sample for a site specific subset of constituents from Appendix IX.

Document #: 0350 US EPA proposes to change the frequency of reporting on the effectiveness of ground water corrective action from semi annual. We believe that the change is appropriate because annual reporting, combined with other forms of regulatory oversight, will provide adequate information to ensure compliance. Also, the reporting will be consistent with the frequency requirements under detection and compliance monitoring.

Response: The Agency acknowledges this comment and agrees with the commenter's assertion that today's changes to reporting requirements will still provide adequate information to ensure compliance.

264.98/ 264.99 Document #: 0216 Prepare and submit an engineering feasibility plan for corrective action, required Prepare and submit notification of intent to make a demonstration Prepare and submit notification of exceeded constituent limits Maine also disagrees that these are duplicative requirements. This information is valuable to the regulatory agencies and should be submitted rather than maintained on site as part of the facility operating record. We disagree with your rationale that this information should be only be made available at the facility for review by inspectors. The inspectors are already being asked to review all permit imitations as well as mot of the plans in the license. This plan should be submitted for review and approval by the appropriate licensing and/ or technical reviewers. The appropriate technical reviewer will likely not be the inspector. In addition, the agency's needed engineering and hydrogeologic expertise for the review will not likely be on site. We often have found that research into issues that arise in reviewing these reports is necessary. It would be an unreasonable burden to handicap the agency reviewers by limiting their review ability to what they could  266 accomplish on site. In addition, inspectors would only infrequently visit these sits at best, even if the inspector were the appropriate individual to review these documents. This would make understanding sites very difficult and create additional public criticism for our lack of understanding and oversight of hazardous waste sites. These plans need to be in public files where access by the public will be readily available . Finally, a letter on the intent to make a demonstration is not burdensome and the permit modification can be submitted later. 264.98( g)( 5)( ii) 264.98( g)( 6)( ii); 264.98( g)( 6)( i), ( ii) 264.99(( i)( 1), ( 2) 264.99( h)( 1)

Response: After considering this and other commenter's concerns, EPA today is retaining the notification requirements for permitted facilities under § § 264.98( g)( 1), 264.98( g)( 5)( ii) 264.98( g)( 6)( ii); 264.98( g)( 6)( i), ( ii), 264.99(( i)( 1)( 2)), and 264.99( h)( 1). Commenter's have convinced the Agency of the usefulness of these reports and notifications.

Document #: 0216 This requires notice of statistically significant increases in hazardous constituents below a treatment zone. The information needs to be provided much sooner than it would be in a permit modification. See also our comments for 264.98( g)( 1) and 264.278( g)( 1).

Response: EPA agrees, and is today retaining the notification requirements for permitted facilities under § § ( g)( 1), 264.98( g)( 5)( ii), 264.98( g)( 6)( ii); 264.98( g)( 6)( i), ( ii), 264.99(( i)( 1) ( 2)), and 264.99( h)( 1). Commenter's have convinced the Agency of the usefulness of these reports and notifications.

Document #: 0240 Modification of some standards allowing for groundwater sampling for a smaller subset of constituents. Summary of Section Proposed to be change Section 264.98( c) and 264.99( g)

Specific Comments: Section 264.98( c) allows for flexibility in determining an appropriate subset of hazardous constituents during detection and compliance monitoring, respectively. DTSC supports the concept flexibility introduced by the proposed revisions to sections 264.98( c) and 264.99( g). However, minor revisions to the proposed text are needed.

A. With respect to section 264.98( c) DTSC recommends that the change be placed in section 264.98( g)( 2), as follows:

Section 264.98( g)( 2). Immediately sample the groundwater in all monitoring wells and determine whether the constituents in the list of appendix IX and part 264 are present, and if so, in what concentration. The Regional Administrator, on a discretionary basis, may allow sampling for a  267 site specific subset of constituents from the Appendix IX list of this part and other representative or related waste constituents.

B. This proposed change would also necessitate a minor change to section 264.98( g)( 3) where occurrence of " Appendix IX compounds" should be replaced by " Appendix compounds or other waste constituents".

Response: The Agency appreciates the commenter's support for today's changes, and in response to this comment, has modified § 264.98( g)( 2). EPA disagrees that the change needs to be inserted into § § 264.98( g)( 3).

C. DTSC recommends that the following minor edits be made to Section 264.99( g) proposed language.

Section 264.99( g) the owner or operator must analyze samples from monitoring wells at the compliance point. The number of wells, and samples, and specific analyses will be worked out on a case by case basis with must be approved by the Regional Administrator. The specific constituents from Appendix IX of part 264 to be analyzed will also be worked out approved by the Regional Administrator on a case by case basis. with the Regional Administrator. This analysis must be done annually to determine whether additional hazardous constituents are present in the uppermost aquifer and, if so, at what concentration, pursuant to procedures in section 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/ modified 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 the owner or operator 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.

Response: EPA disagrees with the commenter's proposed language changes to § 264.99( g) and believes today's finalized changes to § 264.99( g) are adequate.

Document #: 0281 WM supports the proposed changes to Section 264.98 Detection Monitoring as amended by revising paragraphs ( c), ( g)( 5)( ii), ( g)( 6)( i), and ( g)( 6)( ii). We believe the proposed changes to 264.98( c), will reduce the burden for facilities to report results for all Appendix IX constituents, when only some of the constituents may be present or may be indicative of a release. Similarly, changes to 264.98( g)( 5)( ii), ( g)( 6)( i), and ( g)( 6)( ii) will help to reduce the paperwork burden at hazardous waste facilities, without sacrificing environmental protection, by requiring notification to the operating record, where the reported issue is the result of an alternate source.

Response: While the Agency acknowledges this comment and appreciates the commenter's  268 support for today's changes to § 264.98( g)( 2), EPA is today retaining the report submittal provisions of § § 264.98( g)( 5)( ii), 264.98( g)( 6)( i), and 264.98( g)( 6)( ii).

WM recommends that 264.98( d) be revised in order to allow for alternate sampling procedures as provided in 264.97( g)( 2). Under 264.98( d), a facility " must collect at lease four samples from each well.. At least semi annually". This provision, without clarification, has resulted in sites being required by state and EPA to sample four times within a single monitoring event, despite the apparent contradiction with 264.97( g)( 2), which allows for an alternative sampling procedure. WM recommends that the last sentence from264.( d) be stricken, because sampling frequency and statistical testing requirements are sufficiently covered under the first sentence. Such a change would reduce some of the burdens related to sampling and reporting, without sacrificing protection of human health and the environment.

Response: The Agency disagrees with the commenter's suggestion that § 264.98( d) needs revision. EPA believes the current language is adequate.

WM recommends that 264.98( g)( 1) be amended to require placement of the initial notice of statistical significant evidence contamination in the operating record, rather than reported to the Administrator. As clarified in section in ( g)( 2) and ( g)( 5), the notice required by ( g)( 1) is for an initial exceedance, one that has not been verified by resampling and one that may be attributed to an alternate source. We believe that such notice should be placed in the operating record and would be included in the routine groundwater monitoring reports required under 264.97( j). The facility should notify the Administrator only after an exceedance has been verified and when compliance monitoring is required under ( g)( 4).

Response: The Agency disagrees with the commenter's suggestion that § 264.98( g)( 1) be amended. EPA believes that notification should happen after the initial exceedence as today's rule continues to require.

WM recommends that the resampling requirements under 264.98( g)( 3) and 264.99( g) be changed from " may resample within one month and repeat the .... analysis" to " May resample within one month or at an alternative site specific time frame approved by th Administrator and repeat the analysis". The one month time frame has no technical basis and does not consider sample independence based on site specific hydrogeologic conditions. Further, it can be burdensome to require facilities site to resample well within 30 days. There is often insufficient time to fully evaluate the original data set, perform quality assurance evaluations, and remobilize a sampling team. We believe that the recommended change will address the technical and logistical issues without compromising environmental protection.

Response: The Agency disagrees with the commenter's suggestion that § 264.98( g)( 3) and § 264.99( g) be changed. EPA believes that it is not burdensome for facilities to resample a well within 30 days.

Document #: 0352  269 EPA's intention to allow the proposal of alternate sampling procedures in the detection monitoring program requirements ( 40 CFR 264.98) as well as in the general groundwater monitoring requirements ( 40 CFR 264.97 ( g)( 2) was also clarified LANL support this clarification in 40 CFR 264.98, as proposed, for consistency This flexibility for detection and compliance monitoring is stated in 40 CFR 264.97( g). However, 40 CFR 264.98, as currently written, does not reiterate this allowance.

Allowing flexibility in the time frame to resample for detected Appendix IX compounds in groundwater was also proposed. LANL supports this change and believes it could be beneficial in collection representative samples, consideration factors such as seasonal fluctuations in hydraulically interconnected surface and groundwater, and changes in level of facility activity associated with permitted discharges.

Response: EPA acknowledges this comment and appreciates the commenter's support for today's finalized changes to resampling requirements in § § 264.98( g)( 3) and 264.99( g). This change allows for sampling to be based on site specific hydrogeologic conditions.

264.98( c) Detection Monitoring ( Permitted Facilities)  Conduct and maintain ground water monitoring: Proposed Action: We plan to introduce flexibility by allowing sampling for a smaller subset of constituents from the Appendix IX list of constituents. This idea originated from state staff with field experience. Final Action: In today's final rule EPA has approved changes to § 264.98( g)( 2) to give the Regional Administrator the discretion to allow a facility to sample for a site specific subset of constituents from Appendix IX.

Document #: 0013 The MDEQ has continuously requested regulatory relief by modifying Section 264.98( c) and Section 265.98( c) requirements applicable to facilities that must test groundwater for all Appendix IX constituents. The MDEQ proposes the use of Appendix IX for one or two strategically located downgradient wells and then developing a " target list." A target list is generated by evaluating the parameters detected in the full Appendix IX analytical and choosing a subset of the detects based mobility and concentrations observed. This is a much more realistic and much less expensive approach than sampling all wells or multiple wells for the entire Appendix IX list. Another approach would be to only run Appendix IX constituents on contaminated wells or wells within a certain distance from the area of concern, as appropriate, for the specific site.

Response: The Agency acknowledges the commenter's efforts in petitioning for changes finalized in today's rule. In today's final rule EPA has approved changes to § 264.98( g)( 2) to give the Regional Administrator the discretion to allow a facility to sample for a site specific subset of constituents from Appendix IX.  270 Another suggestion would be to reduce the size of the Appendix IX list ( about 225 constituents). There are approximately 17 metals and 208 organic constituents on this list. This was this suggestion by " The Occurrence of Appendix IX Organic Constituents in Disposal Site Ground Water," in the Spring 1991 issue of Ground Water Monitoring Review, by R. H. Plumb, Jr. This study ( funded by the EPA) reviewed monitoring data from 479 sites and found that 60 of the 208 organic constituents were not detected at all ( although this is misleading because none of these sites were RCRA sites, and the full Appendix IX list was only done at about 20 of these 497 sites).

Response: The Agency disagrees with the commenter's suggestion that the size of the Appendix IX list be reduced. EPA believes the current list is adequate.

The analytical cost for an Appendix IX sample was estimated by the EPA in 1987 to be about $ 3,000. The above article found the range to be $ 2,700 to $ 6,000 was used as an average. If the organic constituents are divided into analysis for " Non Priority Pollutants" at a cost to analyze of $ 2,750, and of " Priority Pollutants" at an analytical cost of $ 850 ( which together totals $ 3,600), almost all of the 60 or so non detected organic constituents are in the first category (" Non Priority Pollutants"). One could get most of the detected parameters by just spending 23.6 percent ( 850) of the cost.

The EPA should conduct a similar study at just RCRA hazardous waste facilities using historical sampling events ( i. e., existing data) to see if the number of parameters in Appendix IX could be reduced. Removing parameters that are always non detect could reduce a large proportion of the cost. In order to get a more realistic picture of which parameters could potentially be dropped from the list, the data set for this study could include different types of facilities as well as all of the categories ( Treatment, Storage, and Disposal) that have done the Full Appendix IX list of parameters. Another option is to give more consideration to reducing the number of wells or borings required to be sampled for Appendix IX ( e. g., most strategic locations), without reducing the parameter list, before implementing such a huge change of going only site specific parameters.

Response: The Agency acknowledges the information on the analytical cost for an Appendix IX sample. In today's final rule EPA has approved changes to § 264.98( g)( 2) to give the Regional Administrator the discretion to allow a facility to sample for a site specific subset of constituents from Appendix IX. In making a determination, the Regional Administrator could use historical sampling data to reduce the number of Appendix IX constituents. The Agency agrees that parameters that are always non detect could be potentially dropped from the list of constituents to be sampled.

The MDEQ did consider using site history as an indication of what might be impacting groundwater However, the MDEQ does not support that approach because sites often have 50or more years of history ( and perhaps multiple owners and multiple types of activities). In many causes, the records, long term employees, and good historical environmental data are often lacking or nonexisting Dropping Appendix IX entirely could allow contaminants to remain undetected and, therefore, not addressed by corrective action  271 Response: EPA agrees with the commenter that dropping Appendix IX entirely could allow contaminants to remain undetected and, therefore, unaddressed.

Document #: 0131 In 40 DFR 264.98( c) EPA has proposed removing the language " pursuant to pagagraph ( a) or this section in accordance with 264.97( g)," 264.97 ( g) refers to sampling requirements for statistical test. The removal of the reference to 264.97 ( g) from 264.98( c) does not alter an owner or operators obligation to conduct ground water monitoring in such a way as statistical text may be employed. The Department does not have any objections to this language change.

Response: EPA acknowledges this comment and agrees that today's change to § 264.98 does not alter the obligation of an owner or operator to conduct groundwater monitoring in such a way so that a statistical test may be employed.

However, EPA has also proposed adding a sentence stating. " 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." The added language is redundant since 264.98( a) already provides the Regional Administrator the discretion of specify the parameters or constituents to be monitored.

Response: The Agency acknowledges this comment.

Document #: 0134 P. 2521, chart, item concerning 264.98( c). The chart indicates that EPA plans to modify the existing requirement to " conduct a ground water monitoring program for each chemical parameter and hazardous constituent specified in the permit" so that it gives the Regional Administrator discretion to allow sampling for a site specific subset of constituents from the Appendix IX lists.

DOE does not object to the proposed modification of 40 CFR 264.98( c). However, DOE requests that the need for the proposed change be clarified. The existing 264.98( c) read as follows:

The owner or operator must conduct a groundwater monitoring program for each chemical parameter and hazardous constituent specified to the permit pursuant to paragraph ( a) of this section accordance with 264.98( g). The owner or operator must maintain a record of groundwater analytical data as measured and in form necessary for the determination of statistical significance under 264.97( b).

Nothing in this existing subsection suggests that all samples collected for the detection groundwater monitoring program must be analyzed for every chemical parameter and hazardous constituent listed in Appendix IX. On the contrary, the existing 264.98( c) directs analysis of groundwater samples for only the parameters or constituents specified in th permit pursuant to 264.98( a). Such parameters and constituents are to be selected by Regional Administrator after considering four factors, which are listed in 264.98( a). It appears that the existing 264.98( c)  272 already gives the Regional Administrator discretion for the purpose of detection monitoring to allow groundwater sampling for a site specific group of chemical parameters and hazardous constituents from the Appendix IX list. Therefore, it is not clear how the proposed modification to 264.98( c) reduces the regulatory burden of the section.

Response: The Agency acknowledges these comments, but believes that burden reduction has been demonstrated in today's final rule.

264.98( c)/ 264.98( g)

Document #: 0166 Safety Kleen supports proposed change to 264.98( c) which would allow sampling for a smaller subset of Appendix IX constituents to be specified in permits. However, since this change will require that permits be modified, EPA must also amend 270.42 Appendix I to clearly provide that sampling for a site specific subset of constituents is a Class I Permit Modification with prior approval of the Director. Currently, Appendix I indicates that " changes is groundwater sampling or analysis procedures" are Class 1 mods with prior approval, bur " changes in indicator parameters, hazardous constituents, or concentration limits" as specified in the groundwater protection standards are Class mods, and as specified in the detection monitoring program are Class 2 mods. It is not clear which description would apply to changes allowed by the amended 264.98( c), but we believe a Class 1 mod with prior approval is the correct and most practical approach. The flexibility and burden reduction that EPA intends to accomplish will be frustrated unless Class 1 permit mods with prior approval are used to implement sampling for a subset of Appendix IX constituents as provided in amended 264.98( c).

Response: The Agency acknowledges the commenter's support for today's finalized changes to § 264.98, but disagrees that § 270.42 Appendix I must also be amended.

EPA is taking comment on eliminating the requirement to submit the notification contamination required by 264.98( g)( 1), although the preamble indicates that EPA is " not proposing" this change. 67 Federal Register 2521. We note that an agency can make changes in a final rule, even if not included in the proposed rule, that are a " logical outgrowth" of public comments, so we urge EPA to eliminate this redundant and unnecessary notification in the final rule. Section 264.98( g)( 1) provides that when there is evidence of contamination at any monitoring well, the facility must submit a written notification to the Regional Administrator within 7 days. The regulation goes on, however, to direct the facility to sample all monitoring wells to determine the concentrations of any hazardous constituents present, and to resample for any constituents found within one month to confirm the initial results, and then to submit an application for permit modification within 90 days to establish a compliance monitoring program. Thus, the 264.98( g)( 1) notification is either unnecessary if the subsequent resampling does not confirm the initial results, or duplicative of the information provided in the application for a permit modification. In order to reduce such needless reporting burdens, EPA should eliminate 264.98( g)( 1).  273 Response: The Agency disagrees with the commenter's assertion that the notification of § 264.98( g)( 1) is unnecessary or duplicative. The Agency believes that notification to the Regional Administrator of ground water contamination under § 264.98( g)( 1) is still an essential part of compliance monitoring. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

The facility's application for a permit modification to establish a compliance monitoring program must include a number of specified items. See 264.98( g)( 4). However, we agree that an engineering feasibility plan for a corrective action program required by 264.98( g)( 5)( ii) can be maintained in the facility operating record, rather than submitted to the regulatory authority. We there0fore support this proposed change.

Response: The Agency acknowledges these comments, but based on its analysis believes that the requirements in § 264.98( g)( 5)( ii) for submittal of an engineering feasibility plan need to be retained in today's Final Rule.

If the facility believes that another source caused the contamination found in a monitoring well, or that the detection is an artifact caused by an error in sampling, analysis, or statistical evaluation, or is due to natural variation in the groundwater, then the facility can apply to make appropriate changes to the detection monitoring program, rather than move into compliance monitoring. In that case, 264.98( g)( 6) requires the facility to notify the Regional Administrator of its intent to make such a demonstration within 7 days, following by a report on the demonstration within 90 days, in addition to submitting an application for a permit modification within 90 days which would include all the same information. While EPA has proposed to make the notice and report part of the operating record rather than having them sent to the regulatory authority, we see no need for this redundant paperwork at all. Since the pertinent information would be included in the facility's permit modification application, we urge EPA to eliminate 264.98( g)( 6)( i) and ( ii). We note that EPA has proposed eliminating the identical notice and report related to corrective notice and report related to corrective action under 264.( i)( 1) and ( 2), as discussed below.

Response: The Agency disagrees with the commenter's assertion that the reporting requirements under § § 264.98( g)( 6)( i) and ( ii) are redundant. In today's final rule the requirements of § 264.98( g)( 6)( i) and ( ii) are not removed and continue to be an important part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0169 Detection and monitoring ( Permitted Facilities)  Conduct and maintain groundwater monitoring: Modify We plan to introduce flexibility by allowing sampling for a smaller subset of constituents from the Appendix IX list of constituents. This idea originated from state staff with field experience.

We do not agree with this change. It is important that Appendix IX monitoring evaluate all  274 contaminants. Only after the facility has reached Compliance Monitoring and/ or has been in Corrective Action for some time and the contaminants of concern are well known, should the regulatory agency make a determination to reduce the Appendix IX monitoring to a smaller subset of constituents.

Response: As stated in the preamble of today's final rule, 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 multiple units and wells at a facility, and only one unit shows signs of contamination. EPA is, therefore, finalizing changes to § 264.98( g)( 2) that allows sampling of a site specific subset of constituents from the Appendix IX list.

Document #: 0208 264.98( c) FDEP recommends no changes be made to the current regulation. The current regulation requires that sampling parameters be specified in the permit allowing for sampling for a subset of Appendix IX parameters immediately upon confirmation of a release from the regulated unit would appear to be more appropriately included within 40 CFR 264.98 ( g)( c).

Response: The Agency disagrees with the commenter that sampling of a subset should only be allowed upon confirmation of a release. As stated in the preamble of today's final rule, Appendix IX analyses are costly at large facilities, and analyzing all wells does not necessarily contribute to protection of human health and the environment.

Document #: 0212 In order for EPA to allow sampling of a smaller subset of constituents in ground water monitoring, the facility must demonstrate that the constituents to be eliminated were never contained in any waste handled by the facility, including any deriviatives of chemicals handled by the facility.

Response: The Agency agrees with the commenter's assertion that the facility must demonstrate that the constituents to be eliminated were never contained in any waste handled by the facility, including any derivatives of chemicals handled by the facility.

Document #: 0213 We concur with the proposed modification and appreciates the flexibility to work with a facility to determine and sample for constituents of concern that specific to the facility. We recommend EPA clarify that the needs to be strong evidence that the excluded chemical parameters are no present in the ground water.

Response: The Agency agrees with the commenter's assertion that there needs to be strong evidence that any Appendix IX chemical parameters excluded from monitoring are not present in the ground water.

Document #: 0218 The DEQ either opposes or recommends modification of the following proposed changes, either in  275 part or in full, as noted below:

DEQ suggests that the proposed language be modified to make it clear that any alternate sampling lists must be approved as part of the permit ( and public participation) process as follows:

( c) The owner or operator must conduct and maintain records for a ground water monitoring program for each chemical parameter and hazardous constituents specified in their permit. When issuing or modifying the permit, 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 representatives/ related waste constituents. The owner or operator must maintain a record of ground water analytical data as measured and in a form necessary for the determination of statistical significance under Section 264.97( h).

Response: The Agency disagrees with the commenter that the proposed language of § 264.98( c) should be modified and is today finalizing the language of § 264.98( g)( 2). Plain reading of the statute clearly implies that modification of the list of Appendix IX constituents is to be considered only when issuing or modifying the permit.

264.98( d) Detection monitoring program. The Regional Administrator will specify the frequencies for collecting samples and conducting statistical tests to determine whether there is statistically significant evidence of contamination for any parameter or hazardous constituent specified in the permit under paragraph ( a) of this section in accordance with 264.97( g). A sequence of at least four samples from each well ( background and compliance wells) must be collected at least semiannually during detection monitoring.

Document #: 0346 EPA reports on changes to the groundwater monitoring requirements that were suggested in three comments received by the Agency in response to the 2002 NPRM regarding RCRA burden reduction. The Agency notes that two of these suggested changes appear reasonable. Comments are requested on the merits of the third suggested change DOE supports removing inconsistency in the regulations by revising the detection monitoring requirements in 40 CFR 264.98( d) such that facilities will have flexibility to request the Regional Administrator's approval for alternate sampling procedures, in the same manner as already is provided in the general ground water monitoring requirement in 40 CFR 264.97( g)( 2).

DOE support changing the language in the groundwater detection and compliance monitoring requirements to say that repeat sampling, in the event a facility finds Appendix IX compounds in groundwater, must occur either within one month of the sampling that revealed the presence of the  276 Appendix IX compounds or within a different time frame approved by the EPA or an authorized state.

DOE supports making changes in 40 CFR 264.100( g) to maintain consistency with the changes in 40 CFR 264.113( e)( 5) that were proposed in the 2002 NPRM. As modified, these regulatory sections, would require an annual instead of semi annual corrective action report.

Response: The Agency acknowledges these comments. In today's rule § 264.100 is modified to allow annual reporting to the Regional administrator on the effectiveness of the corrective action program.

Document #: 0350 We support U. S. EPA's proposal to clarify an inconsistency between 40 CFR 264.98( d) and 40 CFR 264.97( g)( 2) in the sampling procedures for detection monitoring. We agree that the flexibility afforded in 40 CFR 264.97( g)( 2) to allow alternate sampling procedures should be extended to detection monitoring under 40 CFR 264.98( d)

Response: The Agency acknowledges and appreciates the commenter's support for today's finalized changes in the sampling procedures for detection monitoring.

Document #: 0361 D. Groundwater Monitoring Requirements: Several items relating to groundwater monitoring requirements are proposed for comments in the notice.

A. Detection Monitoring  Alternate sampling procedures on a case by case basis: EPA proposes to revise 40 Code of Federal Regulations 264.98( d) to be consistent with 40 Code of Federal Regulations 264.97( g)( 2). 40 Code of Federal Regulations 264.98( d) requires that a facility collect at least four samples from each well at least semiannually. In contrast, 40 code of Federal Regulations 264.97( g)( 2) offers greater flexibility by the Regional Administrator.

DTSC Comment: DTSC concur with the proposed change and notes that this modification is also appropriate for 40 Code of Federal Regulations 264.99( f). It is our understanding that the requirement to collect four samples was intended to support data evaluation using the analysis of variance ( ANOVA) statistical methods. In our experience, use of ANOVA for groundwater data is rarely appropriate because four samples collected within a short interval of time fail the statistical assumption of data independence. Hence, enforcement of this required causes unnecessary cost to facilities.

Response: The Agency disagrees with the commenter's assertion that today's modification to § 264.98( d) should also be applied to § 264.99( f).  277 264.98( g)( 1) If the owner or operator determines pursuant to paragraph ( f) of this section that there is statistically significant evidence of contamination for chemical parameters or hazardous constituents specified pursuant to paragraph ( a) of this section at any monitoring well at the compliance point, he or she must: ( 1) Notify the Regional Administrator of this finding in writing within seven days. The notification must indicate what chemical parameters or hazardous constituents have shown statistically significant evidence of contamination;

Document #: 0131 The detection monitoring program is conducted for regulated units where no contamination has occurred. Should contamination has occurred. Should contamination be present in the groundwater the regulated unit would be under a compliance monitoring program. The notification required in 264.98( g)( 1) allows the regulating authority to be aware of any statistically significant increase of contamination would indicate a release from the regulated unit.

The regulatory authority must have ability to evaluate the potential contamination and determine whether immediate action must be taken. If the regulating authority does not become aware of the potential contamination and receiving the information with the monitoring report or in 90 days when a permit modification request is submitted, critical time may have passed. The current notification under 264( g)( 1) would be a letter. The Department believes the notification is an important part of oversight and a facility's compliance with this requirement is not burdensome. Prompt notification allows the regulating authority the opportunity to take administrative action and inform affected persons, if necessary.

Response: EPA agrees with the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0169 Detection Monitoring Permitted Prepare and submit the notification of contamination. We are taking comment on eliminating this requirement ( but we are not proposing this in today's proposed change) this has been identified through our review of the regulations as a duplicative requirement. The owner/ operator must still sample groundwater wells for hazardous constituents ( this is required by regulation) and also submit a permit modification to the Regional Administrator that establishes a compliance monitoring program for the constituents. This should be sufficient to protect human health and the environment.

We do not agree with the proposal to remove this required. This is not a duplicative requirement. With notification and regulatory agency may want to continue to monitor for additional constituents to determine if other factors may have influenced the results before calling in a permit modification. This requirement can also signal a need to test nearby residential drinking water and point to a serious problem that needs immediate attention. This would unnecessarily delay appropriate response to a release.  278 Response: EPA agrees with the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0181 Detection Monitoring. Notification of groundwater contamination to the agency is a crucial part of reporting and keeping tract of environmental problems. This allows the agency to be able to respond to the public. If this requirement is eliminated, an added burden is placed on compliance staff to detect the areas where the facility does not meet the regulations. This can lead to increased enforcement activities.

Response: EPA agrees with the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0212 EPA should retain the preparation and submittal of the notification of contamination. The public has a right to such information that would otherwise be buried in a permit modification that the public would only have knowledge of after the initial discovery of contamination. If there is contamination, the facility obviously did not protect the environment. The public has a right toknow and compelling need for timely information about the nature and extent of such contamination. Therefore, the facility should tell the EPA and the public about such contamination when it occurs, not potentially weeks, months or years in the future.

Response: EPA agrees with the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0213 We do not support the elimination of this requirement. This notice performs a " head's up" function that helps identify inspection priorities and resource needs. The notice provides an opportunity for Ecology to provide oversight on the required sampling and permit modification subsequent to the owner's/ operator's determination of evidence of contamination. In addition TSDs are sometimes inspected every other year. It the release notification is not submitted to the Agency, as much as two years could elapse before the Agency could follow up or confirm that adequate cleanup occurred.

Response: EPA agrees with the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0216 Maine is strongly opposed to the proposal to eliminate the requirements for notification of contamination because it is allegedly duplicative. The proposal notes that the owner/ operator must  279 still sample groundwater wells for hazardous constituents and also submit a permit modification to the regulatory agency establishes a compliance monitoring program for the constituents. However, this information should be provided as soon as contamination is identified. It could be months if not a year before a permit modification is submitted for review and approval. We have sites where homeowner wells are adjacent to contaminated. If a monitoring well starts showing contamination, we need to know that as soon as possible. Having the agency find out about this by having a reporter or an irate neighbor call does not represent appropriate oversight.

Response: EPA agrees with the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0218 The DEQ specifically opposes removing the requirement that facility operators submit a notification of significant increase in contamination. The DEQ considers it of vital importance that it receive notification of such an increase as soon as it is found, so that adequate oversight can be made of the measures taken by the permittee to respond to the situation, and take appropriate enforcement actions if needed. If the permittee takes improper action, then depending upon the frequency of inspection, it may be several years before the exceedance is discovered by the Agency. Also, as noted in Section 1 and I above, searching for a reviewing these documents will increase the inspector's workload, and if they are overlooked it can be many more years before the situation is revealed.

Depending upon the specifics of the facility, it may be necessary to promptly inform the public of an increase in contamination, to protect users of ground of surface waters. If the Agency is not notified so that is can take appropriate action, human health and the environment can be adversely affected.

Lastly, the notification that is currently required is a public record, placed in the Agency's files, and is readily available for public inspection and review. Eliminating the notice would deny the public the knowledge that a facility had experienced an increase in groundwater contamination, and had possibly released hazardous waste or hazardous constituents to area waters. The DEQ believes the public has a right to know this information in a timely fashion.

Response: EPA agrees with the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0240 DA DTSC Comments requested on sections being considered for elimination or modification that are not affected by the current proposal.

Summary of Sections proposed to be change:  280 The proposed amendment of Section 264.98( g)( 1) would eliminate notification to the regulatory agency of statistically significant groundwater contamination during detection monitoring.

DTSC proposes revising Section 264.98( g)( 1) to eliminate notification of the regulatory agency of statistically significant groundwater contamination during detection monitoring. We believe this requirement is essential to meeting the mandate of protection of public health and environment and satisfying the public's right to know. Any evidence of potential contamination should be addressed as soon as possible. Agency feedback is essential early during this stage, and elimination of this submittal could potential cause significant delays in design and implementation of the corrective action program.

The rationale for the proposed change is that the requirement is redundant with Section 264.98( g)( ii), which requires submittal of an application for the permit modification to the change a compliance monitoring program. Issuing of permit modifications take time, and it is not reasonable to expect that an appropriate compliance monitoring program will be in place through a permit modification within reasonable time frame without timely agency input the feedback. Processing the permit modification could result in a delayed response to contamination. Such a delay conceivably could impact human health and the environment.

Response: EPA agrees with the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0290 This information is not entered into a database. However, with notification, the regulatory agency may want to continue to monitor for additional constituents to determine if other factors may have influenced the results before calling in a permit modification. Elimination of this requirement would delay the requirements in this section which require the facility to submit a permit modification.

Additional, site specific parameters in association with the facility may dictate that more immediate actions be taken to protect human health and the environment ( example. If there are drinking water wells down gradient, immediate actions may be necessary to ensure they have not been affected). Also, if the agency does not know about the need for a permit modification, the agency will not know to take action if the modification is not submitted when due. With out modification, if the permit modification submittal is not timely, ultimately delay of corrective action could be much mor significant, as the agency will not have an opportunity to intervene.

The existing rules require the permittee to submit an Engineering Feasibility Plan based on the corrective action program of 40 CF R 264.100 specified as part of the permit. The corrective action requirements are based on extensive investigations and analysis that are included in the Engineering Feasibility Plan submitted by the permittee as a part of the information required by 40 CFR 264.98( g),. This information is used to specify effective corrective action criteria as part of the corrective action process. Also, this feasibility study forms a basis for specifying time frames,  281 groundwater monitoring requirements, and measures to remove or remediate, in place, any groundwater contamination. Therefore, this information is vital to implement economically and environmentally sound corrective action programs for a given facility.

From September 28, 2001  September 27, 2002, our record indicate 919 facility file reviews were conducted by the public. In addition, there were 201 FOLA requests. We do not track whether or not the specific 264.98( g)( 5)( ii) documents are reviewed or requested.

Response: EPA acknowledges the commenter's concerns. In today's final rule the provisions of § 264.98( g)( 1) are retained as a necessary part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

264.98 ( d)/ 264.99( g)

Document #: 0347 Eastman agrees with EPA that owners/ operators can reduce their burden and still provide adequate information to ensure compliance by submitting a corrective action effectiveness report annually instead of semi annually.

Response: The Agency acknowledges this comment and is today finalizing changes to § 264.100 to allow the owner or operator to submit the report on corrective action effectiveness annually.

We support the previously proposed modification to 264.99( g) that would allow, on a case bycase basis, an annual Appendix IX analysis on a subset of monitoring wells, rather than on all monitoring wells. For consistency in the groundwater regulations, we also support alternate sampling procedures for the detection monitoring requirements at 264.98( d)

Response: The Agency is today finalizing changes to § 264.99( g) that require the owner or operator consult with the Regional Administrator to determine which sampling event will involve enhanced sampling, the number of monitoring wells to undergo enhanced sampling, the number of samples to be collected from each well, and the specific constituents from Appendix IX to be analyzed. EPA disagrees that alternate sampling procedures for detection monitoring are required in § 264.98( d).

Eastman also supports the additional flexibility of retesting for Appendix IX compounds found in the groundwater on a State or EPA approval schedule that is not restricted to the current " within a month" timeframe.

Response: The Agency acknowledges this comment and is today finalizing changes to § 264.99( g) that would allow resampling according to an alternative site specific schedule approved by the Regional Administrator.  282 264.98( g) Detection monitoring program. If the owner or operator determines pursuant to paragraph ( f) of this section that there is statistically significant evidence of contamination for chemical parameters or hazardous constituents specified pursuant to paragraph ( a) of this section at any monitoring well at the compliance point, etc..

Document #: 0212 EPA should require facilities to complete the procedures for a notification of intent to make a demonstration with detection monitoring. This is the only way the public can easily identify activities associated with contamination.

Response: After consideration of all comments, in today's final rule, the Agency has retained the notification requirements of § 264.99( i)( 1) and ( 2). Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

264.98( g)( 2) Detection Monitoring ( Permitted Facilities)  Prepare and submit the notification of contamination: Proposed Action: We are taking comment on eliminating this requirement ( but we are not proposing this in today's rule)  this has been identified through our review of the regulations as a duplicative requirement. The owner/ operator must still sample groundwater wells for hazardous constituents ( this is required by regulation) and also submit a permit modification to the Regional Administrator that establishes a compliance monitoring program for the constituents. This should be sufficient to protect human health and the environment.

Document #: 0208 FDEP believes that this regulation should be modified to allow sampling for a subset of Appendix IX parameters and for a subset of available wells, subject to the Regional Administrator's approval.

Response: In today's final rule the Agency is finalizing changes to § 264.98( g)( 2) to allow sampling for a site specific subset of constituents form the Appendix IX list, subject to approval by the Regional Administrator. EPA disagrees with the commenter's assertion that § 264.98( g)( 2) must also be modified to reflect this change.

Document #: 0218 The DEQ offers the following recommendations for additional modifications to the rules, beyond those proposed in the Federal Register notice.

A. 264.98( g)( 2) ( regarding immediate sampling of all wells for Appendix IX parameters), The DEQ recommends that owner/ operators be allowed to sample wells only for those parameters which could possibly be found in the groundwater as a result of the facility's operations. For example, if a facility has never managed any of the wastes for which the  283 dioxin compounds are a concern, there should be no reason to analyze for dioxins.

The lists of parameters to be analyzed ( in addition to those routinely analyzed) would be established in the permit itself at the time of issuance ( or subsequent modification).

Response: EPA disagrees that § 264.98( g)( 2) needs modification.

Secondly, for very large facilities, the requirement to sample all wells when any single well has an exceedance is considered as excessive. DEQ recommends that the Agency be authorized to designate subsets of wells that would be sampled if a given well in that subset ( or possibly adjacent subsets) shows an exceedance. Subsets might consist of a single wast management unit or several units in a common area, but need not include all units on a given facility. Again, these subsets would be designated during permitting.

Such a sampling scheme should provide equivalent protection to human health and the environment while reducing unnecessary expenses to the owner/ operator. Suggested language is as follows:

264.98( g)***

( 2). Immediately sample the ground waster in all monitoring wells in the same group( s) as the well or wells of concern and determine whether constituents in the special monitoring list established in the permit are present, and if so, in what concentrations. ( i) The wells to be grouped together for special monitoring purposes shall be established at the time of permit issuance or modification, and may include the wells associated with a single unit or with several adjacent or nearby units. If no such groupings are designated in the permit, the owner or operator must sample all wells at the facility, ( ii) The special monitoring list of analytical parameters shall be established at the time of permit issuance or modification, and will include at a minimum all parameters designated under 294.98( a) for routine monitoring. The list shall also include all Appendix IX constituents which are or may be present in the waste managed onsite, but which are not routinely monitored. If no special monitoring list is established in the permit, then the owner or operator shall analyze for all Appendix IX constituents.

Response: The Agency disagrees with the commenter's assertion that a § 264.98( g) needs to be changed to allow subsets of wells to be sampled in the event of an exceedance detected in one of the wells.  284 264.98( g)( 5)( ii) Detection Monitoring ( Permitted Facilities)  Prepare and submit an engineering feasibility plan for corrective action, if required: Proposed Action: Modify  Our review of the regulations identified this requirement as one that could be switched from having to send it to the regulatory authority to just keeping it as part of the facility operating record. Our rationale is that this information will be available at the facility for inspectors to see, and that the facility operator still has to undertake the environmentally protective actions described in the regulation.

Document #: 0131 EPA's proposed language significantly changes the requirements of 264.98( g)( 5)( ii). EPA has removed the requirement for an engineering feasibility plan for a corrective action program to meet the requirements of 264.94( b) and for submittal of the plan within 180 days to the regulating authority. The proposed language only requires a note in the operating record whether this contamination was caused by a source other than the regulated unit or from an error in sampling, analysis, or evaluation.

If a statistically significant increase occurs and it is not determined to be from a source other than the regulated unit or sampling or analysis error, the facility would need to enter compliance monitoring and some corrective action ( 264.100) may be required. The requirement for an engineering feasibility plan should be maintained and the regulating authority should receive a copy of the report. The engineering feasibility plan outlines the corrective action plan and is a critical step for addressing contamination. The regulating authority should evaluate the appropriateness of the plan to correct the release and have the opportunity to comment on the plan. In addition, the regulating authority needs the plan to properly evaluate the semi annual reports on the effectiveness of the corrective action program required under 264.100( g).

Response: EPA acknowledges the commenter's concerns. In today's Final Rule the Agency is retaining the requirement for submittal of an engineering feasibility plan under § 264.98( g)( 5)( ii). Stakeholders convinced us of the usefulness of this submittal. EPA, however, is finalizing changes to require annual reporting of the effectiveness of the corrective action program under § 264.100( g) instead of semiannual reporting. The Agency believes that annual submittal of corrective measure reports will not jeopardize the protection of human health and the environment. Additionally, EPA notes there is nothing in today's rule that prohibits States from being more stringent in their reporting requirements.

EPA's proposed language states, " Note in the operating record whether this contamination was caused by a source other than the regulated unit or from an error in sampling, analysis, or evaluation." The proposed language is redundant since 264.98( g)( 6) already contains provisions for a facility to make a determination whether contamination was caused by a source other than the regulated unit or from an error in sampling, analysis, or evaluation.

Response: The Agency acknowledges this comment.  285 EPA should not remove the requirement for an engineering feasibility plan. If EPA does remove the requirement for an engineering feasibility plan, EPA must at least require that the regulating authority receive a copy of the information required under proposed 264.98( g)( 5)( ii).

Response: Nothing in today's final rule prohibits the requirement for an engineering feasibility plan. In today's Final Rule EPA is retaining the requirement for preparation and submittal of an engineering feasibility plan under § 264.98( g)( 5)( ii). Stakeholders convinced us of the importance of this submittal.

Document #: 0169 The engineering feasibility plan should be submitted to the agency for review. It is impossible to evaluate such a complex document during an inspection. The plan would also be kept in the agency's file should any question be raised about the approval of the alternate concentration limit. If it is kept in the operating record, it may be discarded after three years eliminating the history in the decision making process. The public should also have accessibility to all information regarding a decision to use an alternate concentration limit.

Response: In today's Final Rule the Agency is retaining the requirement for submittal of an engineering feasibility plan under § 264.98( g)( 5)( ii). Stakeholders have convinced us of the usefulness of this submittal.

Document #: 0181 Keeping the feasibility study in the operating record could be adequate, but not if the operating record is only kept for three years.

Response: In today's Final Rule the Agency is retaining the requirement for submittal of an engineering feasibility plan under § 264.98( g)( 5)( ii). Stakeholders have convinced us of the usefulness of this submittal.

Document #: 0184 We disagree with this proposed change. It is unclear whether the new language for ( ii) is to be inserted after the existing ( i), thus shifting the current ( ii) to a new ( iii), or whether the proposed ( ii) language replaces the current ( ii) ( the engineering feasibility plan. If it is meant to replace, then some rationale for elimination of the plan should be given. The new language proposed as ( ii) appears to be out of context ( ACLs and Corrective Action) and may be intended to pertain to 264.99( g). Indicate developing risk to the public necessitating alternate water supplies and environmental remediation.

Response: EPA acknowledges the confusion produced by the rule language in its proposal. In today's Final Rule the Agency is retaining the requirement for preparation and submittal of an engineering feasibility plan under § 264.98( g)( 5)( ii). Stakeholders have convinced us of the usefulness of this submittal.  286 Document #: 0208 FDEP believes that any documentation a facility might have to support a contention that contamination discovered during detection monitoring is due to other sources etc. must be submitted to the Regional Administrator for approval. Florida's experience has been that documentation necessary to fully demonstrate such a contention is very difficult to develop. Hence, Florida is opposed to allowing a facility to merely note such evidence within the operating record.

Response: The Agency acknowledges these comments and in today's Final Rule is retaining the notification requirements of § 264.99( i)( 1)( 2).

Document #: 0211 The proposed 40 CFR 264.98( g)( 5)( ii) eliminates the need for the submission of an engineering feasibility plan within 180 days of determining an SSI. The proposed rules requires facilities to note in their operating record whether the contamination is caused by a source other than the regulated unit or from error in sampling and analysis or evaluation. TNRCC notes that, currently, the existing rules require the company to submit an engineering feasibility plan based on the corrective action program of 40 CFR 264.100 which is specified as a part of the permit. Without the detailed information provided by the facilities, the regional administrator may not be able to specify corrective action if required. Also, because the proposed rules require facilities to keep information as a part of the operating record, the regional administrator may not be aware of the current status of monitoring results ( i. e., contamination caused by a source other than the regulated unit or from an error in sampling, analysis or evaluation). Therefore, TNRCC recommends that the rules not be changed or, in the alternative, they be modified to address this concern elsewhere.

Response: EPA acknowledges these comments and in today's Final Rule the Agency is retaining the requirement for preparation and submittal of an engineering feasibility plan under § 264.98( g)( 5)( ii). Stakeholders have convinced us of the usefulness of this submittal.

Document #: 0213 We could support a modification of this regulation if 264.98( g)( 1) or other regulatory mechanisms are in place to notify the Agency of contamination immediately. Once the Agency received the notification, the Agency can request submittal of the engineering feasibility plan on a case by case basis. The submittal of the engineering feasibility plan provides an opportunity to provide input on whether the corrective action program proposed by the facility is adequate to meeting the requirements of 264.100.

Response: In today's final rule, the requirements of § 264.98( g)( 1) remain unchanged. If the owner or operator determines that there is statistically significant evidence of contamination at any monitoring well, he must notify the Regional Administrator of this finding in writing within seven days. In addition, in today's Final Rule the Agency is retaining the requirement for preparation and submittal of an engineering feasibility plan under § 264.98( g)( 5)( ii). Stakeholders have convinced us of the usefulness of this submittal.  287 Document #: 0218 The DEQ Agrees with the logic used in the Preamble ( page 2521), but does not believe that the actual text proposed ( page 2535) accomplishes the stated intent, and in fact the text is confusing. Please note that 264.98( g)( 5) states " Within 180 days, submit to the Regional Administrator," and then goes on to list two items required for submission. The proposed changed text to the second reuired submission (( g)( 5)( ii)) reads: " Note in the operating record whether this contamination was caused by a source other than the regulated unit or from an error in sampling, analysis, or evaluation,". These two statements are incompatible. In addition DEQ believes that some form of notification to the Agency should be required.

DEQ suggests that the language of 264.98( g)( 5)( ii) be modified by substituting the following text in subparagraph ( ii):

( ii) A notification stating whether or not an engineering feasibility plan for a corrective action program necessary to meet the requirements of 264.100 has been prepared and placed in the facility records. Such plan is required to be prepared unless: ( A) All hazardous constituents...{ continue with existing language}. ( B) The owner or operator has sought ... { continue with existing language}.

Response: EPA acknowledges the confusion produced by the rule language in its proposal. In today's Final Rule the Agency is retaining the requirement for preparation and submittal of an engineering feasibility plan under § 264.98( g)( 5)( ii). Stakeholders have convinced us of the usefulness of this submittal. In addition, EPA notes that the notification requirements of § 264.98( g)( 1) remain unchanged.

Document #: 0241 ( Detection Monitoring  264.98( g)( 5)( ii), 265.90( d)( 1); 265.90( d)( 3); 265.93( c) and ( d) The Proposed changes to these regulations will eliminate the submittal of various notifications and technical plans and reports to the Agency and allow the facility to maintain this information on site. Revisions to these plans should be reviewed for compliance with regulations and approved by the Agency prior to implementation. Therefore, we do not believe that the self implementation of such plans is advisable.

Response: The Agency acknowledges these comments and in today's Final Rule is retaining the notification and submittal requirements of § § 264.98( g)( 1), 264.98( g)( 5)( ii), 264.98( g)( 6)( i) and ( ii), and 264.99( h)( 1) and 264.99( i)( 1) and ( 2) among others.  288 264.98( g)( 6)( i), ( ii) Detection Monitoring ( Permitted Facilities)  Prepare and submit notification of intent to make a demonstration: Proposed Action: Modify  make part of operating record instead of sending it to the regulatory authority. This information will be available at the facility for inspectors to see. Additionally, this kind of information is also provided to the regulatory authorities in the permit modification submitted under 264.98( g)( 6)( iii).

Document #: 0131 When a case is made under proposed 264.98( g)( 6), a permit modification may not always be appropriate, for example, when the statistically significant difference is caused by a sampling and/ or analytical error. Information that is currently submitted under 264.98( g)( 6)( i) and ( ii) would not be received by the regulating authority under EPA's current proposal. The regulating authority should receive, in a reasonable time, a facility's claim that a source other than the regulated unit caused contamination. The regulating authority needs to review the information so that action may be taken if the regulating authority disagrees with the facility's claim.

As currently written 264.98( g)( 6)( i) provides notice to the regulating authority of a facility's activities and intentions. The notification under 264.99( h)( 1) would be a letter. The Department believes the notifications in 264( g)( 6)( i) and ( ii) are an important part of oversight and that a facility's compliance with this requirement is not burdensome. Therefore, 264( g)( 6)( i) and ( ii) should not be removed.

Response: In today's rule the requirements of § 264.98( g)( 6)( i) and ( ii) are not removed and continue to be an important part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0169 Prepare and submit notification of intent to make a demonstration: Modify make part of operating record instead of sending it to the regulatory authority. This information will be available at the facility for inspectors to see. Additionally, this kind of information is also provided to the regulatory authorities in the permit modification submitted under 264.98( g)( 6)( iii).

We agree with this proposal.

Response: In today's rule the requirements of § 264.98( g)( 6)( i) and ( ii) are not removed and continue to be an important part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

Document #: 0218 The DEQ OPPOSES altering the language of these two subparagraphs as proposed. From experience, alternate source demonstrations may be poorly documented, or even totally unjustified. If the agency is not promptly notified that such a demonstration is being relied upon, extensive  289 groundwater contamination may occur and not be properly addressed. Depending upon the frequency of inspection, it may be several years before the improper demonstration is discovered by the Agency. Also, as noted in Sections I and II above, searching for and reviewing these documents will increase the inspector's workload, and if they are overlooked it can be many more years before the situation is revealed.

Response: In today's rule the requirements of § 264.98( g)( 6)( i) and ( ii) are not removed and continue to be an important part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

The DEQ would RECOMMEND that the period specified for notification of the intent to make an alternate source demonstration, currently set at seven days, be extended to 30 days. Oftentimes, when a groundwater exceedance is determined, it may not be clear to the owner/ operator that such a demonstration is appropriate, within the seven day timeframe currently allowed.

Response: The Agency disagrees with the commenter's assertion that the period specified for the notification is too short.

Document #: 0213 We do not support this proposal. The Agency should be informed of the facilities decision to make this demonstration as soon as possible. This will allow for timely review to determine if a non regulated source does in fact exist and to work with the facility on the content of the NOI to make sure that it is adequate to meet the requirements of 264,98. This determination plays a large role in determining if RCRA clean closure can be certified. TSDs are sometimes inspected every other year. The Agency may not be aware of such a determination for 1 2 years.

Response: EPA acknowledges the commenter's concerns. In today's rule the requirements of § 264.98( g)( 6)( i) and ( ii) are not removed and continue to be an important part of oversight. Stakeholders persuaded us of the importance of this information as an alert that there is an environmental problem.

264.99 Compliance monitoring program.

Document #: 0165 The current regulations on compliance monitoring require the facility to analyze samples from all monitoring wells for all Appendix IX constituents annually. See 264.99( g). This is a costly and overboard requirement since the detection monitoring program will have identified the wells and constituents of concern. Therefore, we support EPA's proposal to allow the facility to determine the number of wells, samples and constituents on a case by case basis with the regulatory authority. This would be done as a Class 3 permit modification. See 270.42 Appendix I.  290 Response: The Agency acknowledges these comments and appreciates the commenter's support for today's changes to § 264.99( f) and ( g).

If compliance monitoring shows an exceedance at any monitoring well, the facility must establish a corrective action program, However, 264.99( h)( 1) requires the facility to submit a notice within 7 days, and then an application for permit modification within 180 days with the same information. We agree with EPA that the 7 day notice is unnecessary and 264.99( h)( 1) should be eliminated.

Response: EPA disagrees and today the notice requirement of § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

For the reasons given above, we also agree that EPA should delete the requirement to submit a notice of intent and a report demonstrating that apparent noncompliance was caused by another source of error, 264.99( i)( 1) and ( 2), since this information is submitted with the facility's application for a permit modification under 264.99( i)( 3).

Response: After consideration of all comments, in today's final rule, the Agency has retained the notification requirements of § 264.99( i)( 1) and ( 2). Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

Document #: 0166 The current regulations on compliance monitoring require the facility to analyze samples from all monitoring wells for all Appendix IX constituents annually. See 264.99( g). This is a costly and overbroad requirement since the detection monitoring program will have identified the wells and constituents of concern. Therefore, we support EPA's proposal to allow the facility to determine the number of wells, samples, and constituents on a case by case basis with the regulatory authority.

Response: As stated in the preamble of today's final rule, 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 multiple units and wells at a facility, and only one unit shows signs of contamination. EPA is, therefore, finalizing changes to § 264.99( f) and ( g) that allows, among other things, sampling of a site specific subset of constituents from the Appendix IX list, and the regulatory authority to specify the frequencies for collecting samples and conduction statistical tests.

If compliance monitoring shows an exceedance at any monitoring well, the facility must establish a corrective action program, However, 264.99( h)( 1) requires the facility to submit a notice within 7 days, and then an application for permit modification within 180 days with the same information. We agree with EPA that the 7 day notice is unnecessary and 264.99( h)( 1) should be eliminated.

Response: EPA disagrees and today the notice requirement of § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications  291 for alerting States of an environmental problem.

For the reasons given above, we also agree that EPA should delete the requirement to submit a notice of intent and a report demonstrating that apparent noncompliance was caused by another source of error, 264.99( i)( 1) and ( 2), since this information is submitted with the facility's application for a permit modification under 264.99( i)( 3).

Response: After consideration of all comments, in today's final rule, the Agency has retained the notification requirements of § 264.99( i)( 1) and ( 2). Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

Document #: 0212 EPA must maintain the information requirements under this section. This information is needed when it is first identified not later when contained in a permit modification. Communities are often located over ground water plumes and are not aware of the contamination. Removing these requirements could result in the communities being unaware of the situation.

Response: EPA acknowledges the commenter's concerns. After consideration of all comments, in today's final rule, the Agency has retained the notification requirements of § 264.99( i)( 1) and ( 2). Stakeholders persuaded us of the importance of these notifications for alerting States to an environmental problem.

Document #: 0218 The DEQ OPPOSES the deletion of these paragraphs for the same reasons as noted in paragraph VI. C, above.

Response: EPA acknowledges the commenter's concerns. Stakeholders persuaded us of the importance of these notifications for alerting States to an environmental problem. After consideration of all comments, in today's final rule, the Agency has retained the notification requirements of § 264.99( h)( 1) and § 264.99( i)( 1) and ( 2).

Document #: 0281 WM supports the proposed changes to Section 264.99 Compliance Monitoring as amended by revising paragraph ( g); removing and reserving paragraph ( h)( 1); removing paragraphs ( i)( 1) and ( i)( 2) and redsignating paragraphs ( i)( 3) and ( i)( 4) as ( i)( 1) and ( i)( 2). We concur with EPA Staff, that the proposed changes to 264.99 will reduce the burden for facilities. Specifically, sampling for Appendix IX constituents under compliance monitoring for select wells as opposed to all wells, is a more technically sound and defensible approach. Changes to ( h)( 1) and 264.99( l) are consistent with changes to 264.98, which WM supported above.

Response: EPA acknowledges the commenter's concerns. Stakeholders, however, persuaded us of the importance of these notifications for alerting States of an environmental problem. After consideration of all comments, in today's final rule, the Agency has retained the notification requirements of § 264.99( h)( 1) and § 264.99( i)( 1) and ( 2). As stated in the preamble of today's  292 final rule, 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 multiple units and wells at a facility, and only one unit shows signs of contamination. EPA is, therefore, finalizing changes to § 264.99( f) and ( g) that allows, among other things, sampling of a site specific subset of constituents from the Appendix IX list, and the regulatory authority to specify the frequencies for collecting samples and conduction statistical tests.

WM recommends that EPA eliminate the last sentence in 264.99 ( f), to be consistent with the above comment on 264.98( d). EPA Technical Guidance and Statistical Guidance published since development of this rule clarify the appropriate frequencies of sampling and statistical analysis that run counter to the provision that " four samples... must be collected semi annually". This provision is no longer consistent with the most of the statistical approaches outlined in 264.97( h) and clearly do not allow for sample independence. It places undue burden on the facility, requiring duplicative and unnecessary sampling and reporting.

Response: The Agency agrees and is today finalizing a change to § 264.99( f) that eliminates the last sentence requiring a facility to collect at least four samples from each well at least semiannually These changes will prevent 264.98( d) and 264.99( f) from unintentionally trumping the flexibility granted by 264.97( g)( 2).

264.99( f),( g) Compliance monitoring program. The Regional Administrator will specify the frequencies for collecting samples and conducting statistical test to determine statistically significant evidence of increased contamination in accordance with 264.97( g). A sequence of at least four samples from each well ( background and compliance wells) must be collected at least semi annually during the compliance period of the facility. The owner or operator must analyze samples from all monitoring wells at the compliance point for all constituents contained in appendix IX of part 264 at least annually to determine whether additional hazardous constituents are present in the uppermost aquifer and, if so, at what concentration, pursuant to procedures in 264.98( f).

Document #: 0134 DOE suggests that, to improve its clarity, the final text of 40 CFR 264( g) be altered from that proposed by EPA. Specifically, it is unclear whether the annual enhanced compliance monitoring event must be renegotiated every year, and if so, what process must be used. DOE requests that EPA consider the following approach ( highlight = addition; strikeout = deletion)

( g) Annually, the owner or operator must determine whether additional hazardous constituents from Appendix IX of part 264, which could possibly be present but are not on the detection monitoring list in the permit, are actually present in the uppermost aquifer  293 and, if so, at what concentration, pursuant to procedures in 264.98( f). To accomplish this, the owner or operator must consult with the Regional Administrator to determine on a case by case basis ( 1) which sample collection event during the year will involve enhanced sampling, ( 2) the number of monitoring wells at the compliance point to undergo enhanced sampling, ( 3) the number of samples to be collected from each of these monitoring wells, and ( 4) the specific constituents from Appendix IX of part 264 for which these samples must be analyzed. analyze samples from monitoring wells at the compliance point. The number of wells and samples will be worked out on a case by case basis with the Regional Administrator. The specific constituents from Appendix IX of part 264 to be analyzed will also be worked out on a case by case basis with the Regional Administrator. This analysis must be done annually to determine whether additional hazardous constituents are present in the uppermost aquifer and, if so, at what concentration, pursuant to procedures in 264.98( f). If the enhanced sampling event indicates that the owner or operator finds Appendix IX constituents are present in the groundwater 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.

Response: The Agency disagrees and is today making changes to language of § 264.98( g) as proposed.

264.99( g) Compliance Monitoring ( Permitted Facilities)  Prepare and submit notification of new constituent concentrations: Proposed Action: Modify  number of wells, samples, and constituents will be determined on a case by case basis, instead of for all wells. This idea came from state experts, and is based on their field experience that sampling all wells can be unnecessary.