Similarly, EPA appropriately proposes to eliminate the notification, certification, and reporting requirements for releases and major repairs of tank systems under 40 CFR 265.196( 1)( 3) & 265.196( f). Id. at 2525. We agree that "... existing regulatory requirements for cleanup and certification of the cleanup are adequately protective" of human health and the environment and that " this extra notification to the regulatory authorities is unnecessary" because "[ t} his information will be retained in the facility record." Id. With respect to the proposed elimination of the certification requirement in 40 CFR 265.196( f), we occur with EPA that, because the Agency does " not ask for certifications to be submitted for other kinds of repairs... there is no special reason for this certification to be submitted." 1d.  81 Document #: 0158 SOCMA Supports Shifting from Daily to Weekly Hazardous Waste Tank Inspections In the Proposed Rule, EPA proposes to modify the current regulations to require that hazardous waste tank systems be inspected on a weekly, rather than daily, basis. SOCMA strongly supports this change.

The daily inspection requirement for tanks was part of the initial set of hazardous waste regulations promulgated in 1980. Since that time, EPA has added significant new substantive requirements for tank systems by mandating use of secondary containment for tank systems and adding requirements for leak detection systems. Thus, the overall level of environmental protection established by the substantive design and operating standards applicable to tank systems has been significantly enhanced. EPA has noted in other contexts that tank and container storage of hazardous wastes are not high risk activities and have not proven to be the source of releases or other environmental concerns.

Discussions with SOCMA members have confirmed that the current daily inspection requirement is a significant burden for many SOCMA members. The resources and manpower required for daily tank inspections and entering the inspection in an operating log draws resources away from other activities. Furthermore, these storage areas are usually centrally located and thus are in areas frequented by operating personnel on a regular basis in connection with daily operations. Thus, these areas are routinely under visual review and oversight and do not require daily formal inspections.

SOCMA concurs with EPA's assessment that this labor intensive daily process is not needed to ensure the safety of the tanks. See 67 FR at 2526 27. These tanks are equipped with secondary containment and leak detection systems, are subject to routine visual inspection by employees, and inherently require less oversight since they are simpler to design, construct and maintain than more complex waste management units ( e. g., landfills or surface impoundments). Thus, daily inspections are not necessary and are, in fact, a waste or resources. Shifting to weekly inspection frequencies will lift a significant burden from the shoulders of small chemical companies while still assuring protection of human health and the environment.

EPA's Proposed Approach for Reducing Self Inspections Will Fail to Achieve Any Significant Burden Reduction: A Self Implementing Option is Needed SOCMA agrees with EPA's stated goal of reducing the frequency of self inspections for facilities that exhibit strong compliance and safety records. Particularly for small companies with limited resources, the relief provided by decreased inspection frequencies would be significant.

However, SOCMA is extremely concerned that EPA intends to make such relief available only on a case by case basis. By requiring site specific, case specific determinations, EPA has created additional burdens for both regulators and facilities that seek to pursue this option. In fact, for  82 smaller facilities such as those operated by many SOCMA members, the additional burden of seeking a site specific determination is likely to prevent even the best performing facilities from being able to achieve the regulatory relief EPA aspires to provide.

Accordingly, SOCMA urges EPA to incorporate a well defined, self implementing mechanism for qualifying for decreased inspection frequencies into the final rule.

a. The Additional Burden of Making Case By Case Determinations Will Not Only Dilute the Desired Burden Reduction But Also Will Prevent Many High Performing Facilities From Achieving Such Relief The approach set out in the Proposed Rule places a new burden on states to make multiple caseby case determinations regarding the ability of facilities to qualify for decreased inspection frequencies. Only directors of authorized states' hazardous waste programs and EPA would be authorized to allow decreased inspection schedules on a site specific basis. Thus, contrary to the intent of the burden reduction program, EPA's proposal makes the availability of this regulatory relief contingent upon additional ( and optional) further activity by the states. The manpower limitations and competing priorities in a state agency thus become a real world limiting factor on whether an eligible facility can obtain relief.

EPA acknowledged in the Proposed Rule that states were apprehensive of the administrative burden that case by case determinations would impose upon them:

We also received comments from the states expressing concerns over the added administrative burden in implementing case by case changes to inspection frequencies. We are not mandating that states offer these changes. We are only providing the option to states that are interested. ( 67 FR Reg. At 2527.)

However, rather than develop an approach that responds to states' concerns about the resultant administrative burden, the Purposed Rule finessed this issue by declaring that states are not required to implement a decreased frequency inspection program. The Proposed Rule thus creates a situation where EPA has identified a valuable burden reduction opportunity but effectively fails to implement it, as it recognizes many states will lack the resources required to pursue EP's approach on any regular basis.

SOCMA urges EPA to reconsider this position. SOCMA is particularly concerned that smaller facilities, such as those operated by many of its members, would be the category most adversely affected by EPA's proposed approach. To the extent that states are able to make any casespecific determinations to decrease inspection frequencies ( under the proposed approach), such determinations would be more likely to be made in the context of permitting decisions. As most SOCMA facilities rely on 90 day on site storage and do not have permits, states would have to undertake separate ad hoc reviews to address these facilities. SOCMA is concerned that regulators are unlikely to be able to devote the time needed under the proposed approach to  83 respond to requests from multiple smaller facilities.

SOCMA is equally concerned that small facilities lack the personnel and resources to engage in the multiple meetings and submissions that would be required under the proposed case by case determination approach. The unfortunate result would be that smaller facilities that ( i) have more limited and necessarily short term storage operations and ( ii) would most benefit from this type of relief, would be the least likely to receive it. SOCMA believes that EPA has the opportunity to establish an effective self implementing approach that would both motivate and reward high performing facilities. Accordingly, SOCMA has set out below its recommendations for a self implementing approach. At a minimum, SOCMA urges EPA to adopt this type of selfimplementing mechanism for facilities relying on the 90 day on site storage provision.

b. A Well Designed, Self Implementing Mechanism Can Achieve EPA's Goal of Reducing RCRA Burdens While Protecting Human Health and the Environment SOCMA has previously urged and continues to urge EPA to institute a well designed, selfimplementing mechanism to allow facilities to qualify to reduce inspection frequencies.

In its comments on the initial Notice of Date Availability, SOCMA suggested that EPA considers the following approach for a self implementing program: if a tank or container had no releases for a certain period time based on daily ( or in the case of tanks, weekly) inspections, the facility would place a certification as such in the log and shift to a certain reduced frequency ( which could be specified in advance by EPA in this rulemaking). If the tank or container area subsequently had a release or incident, the facility would be required to shift back to its original inspection schedule. SOCMA's plan thus provided a framework that would allow for a reduced inspection burden while protecting human health and the environment. In fact, the plan carried an extra incentive for facilities to pursue safe policies by providing for reduced inspection only in the absence of releases or environmental incidents.

In the preamble to the Proposed Rule, EPA apparently responded to a different set of prior comments regarding a self implementing option: " For example, an inspection schedule should be deemed approved if EPA does not specifically deny the request in writing within 30 days." 67 FR at 2527. SOCMA does not now and did not previously support the concept that the inability of a regulatory agency to act within 30 days was a sufficient basis to make a reduced schedule option self implementing. EPA then went on to dismiss the self implementing option with little explanation, saying only, " It is important that regulatory agencies make the decisions to decrease inspection frequencies. Thus, we are not proposing the self implementing option." 62 FR at 2527. EPA thus did not offer any detailed rationale for this position or identify any purported advantages of regulatory case by case decision making over a well designed, carefully structured, self implementing option.

SOCMA asks EPA to reconsider this position and take the time now to identify the appropriate criteria to be met for a facility to be eligible for a self implementing option. Specifically, SOCMA  84 recommends that EPA allow facilities to shift to a reduced inspection frequency after a specified time period ( e. g., six months) has elapsed during which routine inspections of the storage facility and units have confirmed on a consistent basis that : ( i) the units are in good condition; ( ii) the storage area is being operated in accordance with applicable hazardous waste requirements; and ( iii) there have been no releases from the tank and container storage areas. The facility could then enter a statement in the facility inspection log certifying that these requirements have been met and electing to operate on a reduced inspection frequency basis ( as established by the regulations) so long as these conditions continue to be met. If, at any time, the facility no longer met these conditions, it would automatically lose its eligibility for the reduced inspection frequency and would have to reinstate routine inspections,

This approach would establish a defined set of uniform criteria for eligibility for reduced inspection frequencies and would require the facility to certify that it has met those criteria and then maintain the inspection logs that could be used both to audit initial eligibility and continued compliance. This type of self implementing mechanism would establish a level playing field for all facilities and would achieve burden reduction without imposing a significant new set of regulatory obligations on the states. SOCMA urges EPA to give serious consideration to using this type of self implementing program.

c. If the Case by Case Approach Is Retained, EPA's Suggested Criteria for Eligibility for Reduced Self Inspections Should Be Replaced By a More Focused Performance Standard In the preamble to the Proposed Rule, EPA listed several factors that regulatory agencies should consider when deciding whether to allow a facility to reduce its self inspection frequencies:

Considerations for decreasing inspection frequencies will be based on factors such as: a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to public outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit. ( 67 FR at 2527.)

SOCMA believes that these criteria are both too subjective and too expansive. The focus of any such determination should be on the compliance and safety record of the facility with respect to the hazardous waste units being inspected. SOCMA recommends that EPA develop specific performance criteria that relate to compliance with pertinent hazardous waste management standards. These types of performance criteria should be easily verifiable through a review of facility records and inspection logs and would bear directly upon the suitability of a facility as a candidate for reduced inspection frequencies.

Document #: 0166  85 II B. Weekly Hazardous Waste Tank Inspection   page 2526 Safety Kleen agrees with EPA that reducing the daily inspection requirement to a weekly frequency would not compromise the integrity and safety of hazardous waste tanks.

II C. Frequency of Self Inspections   page 2527 Safety Kleen agrees with EPA that decreased inspection frequencies could be established on a site specific basis by the Directors of the authorized states' hazardous waste programs or by EPA. This option would give facilities added flexibility. The preamble indicates that a broad range of factors, some not even related to the facility's compliance record, would be considered ( e. g., " demonstrated commitment to public outreach"). 67 FR 2527, col. 2. While we understand EPA's intent to encourage good compliance, we believe the factors that should be considered for inspections frequency are more logically related to the design and operation of the storage area, not the facility's overall " compliance record." For example, a small facility could have an apparently unblemished compliance record mainly as a result of infrequent state inspections, while its drum storage area could be designed with minimum containment and operated at full capacity with frequent loading and unloading activities likely to cause drum damage. On the other hand, a larger commercial facility could have received compliance citations due to its more extensive treatment and disposal operations and higher rate of state inspections, although its drum storage building has state of the art safety features, highly trained personnel, and controlled usage. The Director should consider whether the storage areas are designed and operated to minimize undetected releases in establishing the inspection frequency. Therefore, we strongly urge EPA to delete the language proposed for containers, tanks and containment buildings that would base inspection frequency on the compliance record, and allow the Director to exercise good judgment based on relevant factors.

Response to Comments: Today's final rule reduces the inspection frequencies for interim status, permitted, and LQG tanks, and adds language to § § 264/ 265.195 allowing weekly inspections when the secondary containment employs an automatic leak detection system that notifies facility personnel if a leak occurs. In the absence of an automatic leak detection system, the facility must have workplace practices in place that shall ensure that any leaks will be promptly identified, so as to not violate the provisions of 264/ 5.193( c)( 3)). ( Today's rule does not reduce the inspection frequencies for containers or containment buildings.)

The automatic leak detection equipment/ system used must alert facility personnel to the presence of any leak or spill, within 24 hours or the earliest practicable time, in accordance with § 264/ 5.193( c)( 3). Automatic leak detection systems were described in the proposed rule ( 67 FR 2527). However, the existing regulations, which requiring that secondary containment systems be able to detect releases, do not specify the method of leak detection. Some facilities, according to a comments on this rulemaking, use daily visual inspections as a method of leak detection for their above ground tanks. Under the current regulations, without daily visual inspections, automatic detection equipment is the only way to meet the leak detection requirement.  86 Workplace practices must ensure leaks are promptly identified. Such practices would involve facility personnel who, in the course of their duties, remain alert to potential problems at the workplace so that problem areas are identified and addressed.

Whether workplace practices or automatic leak detection systems are employed as a means of detecting leaks or spills, any leaks or spills must be detected within 24 hours, to comply with 264/ 5.193( c)( 3).

As stated above, the reduced inspection requirements apply to tank systems. This would include ancillary equipment ( including piping), and for ancillary equipment that does not have secondary containment. It is anticipated that workplace practices would provide for the detection of releases from this equipment.

The final rule also extends the inspection frequency for up to monthly for performance track facilities for tanks systems. We believe that the performance track program is a sufficient screen for those who will be allowed to petition for reduced inspection frequencies because they must have demonstrated superior environmental performance, have a history of sustained compliance, and be committed to an environmental management system. Since only facilities in the Performance Track who wish to obtain reductions in their self inspection frequencies can apply through their state or region, this will not add a significant amount of extra burden on the states.

EPA received several comments requesting that we not limit these incentives to Performance Track facilities, but suggested that there are top environmental performers not in the Performance Track Program, but instead are members of a program called " Responsible Care" established by the American Chemistry Council and the Synthetic Organic Chemical Manufacturers Association should also be able to benefit from these special incentives.

Subsequent to receiving these comments, EPA co developed and signed a Memorandum of Agreement on June 28, 2004 with the American Chemistry Council ( ACC), and the Synthetic Organic Chemical Manufacturers Association ( SOCMA) that sets out plans to cooperate on matters of mutual interest in promoting high levels of environmental performance and improved dialogue and collaboration through the Performance Track and " Responsible Care" programs. The new version of " Responsible Care" is integrated with ISO 14001. ISO 14001 is a set of voluntary international business standards that specify the requirements for environmental management systems at facilities.

The Memorandum of Agreement includes the following key provisions: 1. Facilities that have been third party certified under " Responsible Care"/ 14001 will be deemed to have met the Performance Track Environmental Management System ( EMS) criterion; 2. EPA will work to integrate our site visits with the " Responsible Care" third party audits; 3. " Responsible Care" third party certification in most cases meets Performance Track expectations for community outreach, but that applicants will still provide the same  87 information the Agency requires from Performance Track applicants. 4. Establishes a framework for EPA and ACC/ SOCMA to propose enhancements in measurement ( metrics and indicators) in both Performance Track and " Responsible Care." EPA made it clear that this Memorandum of Agreement does not make the " Responsible Care" program equivalent to Performance Track. They are separate programs, although with similar goals and mechanisms ( such as the use of a comprehensive Environmental Management System ( EMS), community engagement, and a focus on measuring results). To be in the Performance Track program and to receive Performance Track benefits, such as the ones being finalized today, " Responsible Care" members ( even once they are 3rd party certified) have to apply for membership in the Performance Track program and meet the same criteria as any other applicant. The Agency encourages commenters on this issue to join the Performance Track program.

We believe that ACC/ SOCMA did not have a complete understanding of the Performance Track Program when they submitted their comments. EPA has since worked closely with ACC/ SOCMA, including co developing the Memorandum of Agreement discussed above. EPA believes that all parties are satisfied with the Memorandum, and the Performance Track provisions in today's rule.

Document #: 0198 NPCA Supports Adjustment of Daily Tank Inspections to Weekly  NPCA supports EPA's decision to adjust the current daily waste tank inspections from daily to weekly. As EPA correctly points out, other regulations appropriately address the protection of human health and the environment with even longer inspection timeframes. Tanks are inherently safe based on design and leak detection and repair programs and the regulations pursuant to such ensure proper handling and correction should any problems arise. In addition, we recommend allowing reduced frequencies for Small Quantity Generator tank inspections as well, given the fact that relatively small amounts of hazardous waste are managed in small quantity generator tanks.

Document #: 0215 Tank and Container Inspection Frequencies: Bethlehem strongly supports the proposal to reduce the required inspection frequency of tanks from daily to weekly. From an operating facility standpoint, these types of inspections have routinely been performed on a more frequent basis and will still continue. The biggest change will be the reduced paper storage of a document to prove the inspection has occurred. In addition, Bethlehem requests that the agency reconsider its position on containers because the same can be said of these types of units. All that is really being eliminated is the requirement to complete and store a piece of paper. As a result, it is highly unlikely that the burden to request approval from the agency for a reduced container inspection frequency can be justified by an operating facility. The original RCRA regulations recognized that containers did not need as frequent of an inspection as tanks because, primarily, of the limited volume of waste that can be kept in containers. Bethlehem suggests that this rationale is still applicable and recommends that the inspection frequency for containers be similarly reduced to  88 monthly.

Document( s) #: 0222/ 0223 Allow reduced inspection frequencies on case by case. The preamble includes more considerations than the regulatory language. We support basing these case by case determinations on the compliance record of the facility " relative to storage of hazardous waste." This approach is much narrower than the current preamble language and more focused on hazardous waste storage than the current proposed regulatory language.

Clarification on Reducing Inspection Frequencies on Case By Case Basis. ACC supports the proposed revisions to Sections 264.174, 264.195( b), 264.174 and 265.195( a) that would allow the Director to reduce tank and/ or container inspection frequencies beyond weekly on a sit specific basis. As proposed in the regulatory language in each of those sections, ACC generally supports such decisions being based on an evaluation of the facility's compliance record, but believes this evaluation should focus specifically on the facility's compliance record under RCRA related to hazardous waste storage. Further, the preamble discussion at 67 FR 2527 pertaining to this portion of the proposal notes many other factors, well beyond and not directly related to the facility's compliance record, for the agency to consider when making these case bycase determinations, such s public outreach and subjective management traits. This preamble discussion is inconsistent with the proposed regulatory wording and will result in inconsistent implementation of this portion of the rule if not clarified in the final rule.

The intent of this proposal revision should be to allow facilities with good demonstrated past performance related to hazardous waste storage to benefit from a reduction in associated inspection frequencies. As such, basing these site specific decisions on the relevant compliance record is both adequate and appropriate. The many other factors described in the preamble are not directly applicable to this issue, and EPA should clarify that they are unnecessary.

Document #: 0240 Modification of some standards to allow reduced facility operator inspection frequency on a case by case basis. Summary of sections proposed to be changed: Sections 264.174, 264.195( b), 264.1101( c)( 4), 265.174, 265.195( a), and 265.1101( c)( 4) are proposed for modification. The modifications to these sections would allow for a reduction in the frequency of owner or operator inspections of containers, tanks, and containment buildings and associated monitoring and leak detection equipment. These sections apply to permitted and interim status hazardous waste management facilities and generators that are required to comply with interim status facility standards for these areas.

Response to Comments: Today's final rule reduces the inspection frequencies for interim status, permitted, and LQG tanks, and adds language to § § 264/ 265.195 allowing weekly inspections when the secondary containment employs an automatic leak detection system that notifies facility personnel if a leak occurs. In the absence of an automatic leak detection system,  89 the facility must have workplace practices in place that shall ensure that any leaks will be promptly identified, so as to not violate the provisions of § 264/ 5.193( c)( 3)). The automatic leak detection equipment/ system used must alert facility personnel to the presence of any leak or spill, within 24 hours or the earliest practicable time, in accordance with § 264/ 5.193( c)( 3). Automatic leak detection systems were described in the proposed rule ( 67 FR 2527). However, the existing regulations, which requiring that secondary containment systems be able to detect releases, do not specify the method of leak detection. Some facilities, according to a comments on this rulemaking, use daily visual inspections as a method of leak detection for their above ground tanks. Under the current regulations, without daily visual inspections, automatic detection equipment is the only way to meet the leak detection requirement. Workplace practices must ensure leaks are promptly identified. Such practices would involve facility personnel who, in the course of their duties, remain alert to potential problems at the workplace so that problem areas are identified and addressed. Whether workplace practices or automatic leak detection systems are employed as a means of detecting leaks or spills, any leaks or spills must be detected within 24 hours, to comply with 264/ 5.193( c)( 3). As stated above, the reduced inspection requirements apply to tank systems. This would include ancillary equipment ( including piping), and for ancillary equipment that does not have secondary containment. It is anticipated that workplace practices would provide for the detection of releases from this equipment. The final rule also extends the inspection frequency for up to monthly for performance track facilities for tanks systems. We believe that the performance track program is a sufficient screen for those who will be allowed to petition for reduced inspection frequencies because they must have demonstrated superior environmental performance, have a history of sustained compliance, and be committed to an environmental management system. Since only facilities in the Performance Track who wish to obtain reductions in their self inspection frequencies can apply through their state or region, this will not add a significant amount of extra burden on the states.

Document# Specific comments:

DTSC does not agree with these proposed reductions in inspection frequency for the following reasons:

A. U. S. EPA has provided nothing to document that weekly inspections of hazardous waste container storage areas, daily inspections of the above ground portion of tank systems and leak detection systems, and weekly inspections of containment buildings and leak detection systems are a significant burden to the regulated community.

B. It may be appropriate to reduce the required frequency of inspections for facilities that have a good compliance history; however, there should be some standards or criteria proposed for reduced inspection frequency. An onsite facility with a minimal number drums or a single small tank represents a significantly different problem than a facility  90 receiving several hundred drums a day or a facility with multiple 50,000 gallon tanks or tank systems. This proposal does not provide a means for consistent decision making regarding the frequency of owner or operator required inspections.

C. Although facility compliance history may be a valid consideration in deciding which facilities could benefit from a reduced inspection frequency without a concurrent negative impact on the public health or the environment, it is important to consider that not every facility will always be operated in compliance with the hazardous waste laws. Changes in personnel, management, facility practices, willful acts of non compliance, and mistakes will result in periods of non compliance with the law.

D. There are over 200 facilities with tank systems or container storage areas onsite in California. If each of these facilities were to apply for reduced inspection frequency from DTSC, there would be a substantial burden on DTSC to provide modifications to each permit to be consistent with this changed regulatory standard.

E. Generators required by regulation to comply with interim status facility standards would also be impacted by this proposal. The agencies charged with regulating these generators ( both local and State agencies, depending on the circumstances) would have to consider the reduction of inspection frequencies for numerous generators without having any objective criteria to consider.

Response: Today's final rule reduces the inspection frequencies for interim status and permitted LQG tanks, and adds language to § § 264/ 265.195 allowing weekly inspections when the secondary containment employs an automatic leak detection system that notifies facility personnel if a leak occurs. In the absence of an automatic leak detection system, the facility must have workplace practices in place that ensure that any leaks will be promptly identified, so as to not violate the provisions of § § 264/ 5.193( c)( 3)). Today's final rule does not reduce inspection frequencies for container storage areas or containment buildings. The automatic leak detection equipment/ system used must alert facility personnel to the presence of any leak or spill, within 24 hours or the earliest practicable time, in accordance with § § 264/ 5.193( c)( 3). Automatic leak detection systems were described in the proposed rule ( 67 FR 2527). However, the existing regulations, which require that secondary containment systems be able to detect releases, do not specify the method of leak detection. Some facilities, according to a comments on this rulemaking, use daily visual inspections as a method of leak detection for their above ground tanks. Under the current regulations, without daily visual inspections, automatic detection equipment is the only way to meet the leak detection requirement. Workplace practices must ensure leaks are promptly identified. Such practices would involve facility personnel who, in the course of their duties, remain alert to potential problems at the workplace so that problem areas are identified and addressed. Whether workplace practices or automatic leak detection systems are employed as a means of detecting leaks or spills, any leaks or spills must be detected within 24 hours, to comply with 264/ 5.193( c)( 3). As stated above, the reduced inspection requirements apply to tank systems. This would  91 include ancillary equipment ( including piping), and for ancillary equipment that does not have secondary containment. It is anticipated that workplace practices would provide for the detection of releases from this equipment. The final rule also extends the inspection frequency for up to monthly for performance track facilities for tanks systems. We believe that the performance track program is a sufficient screen for those who will be allowed to petition for reduced inspection frequencies because they must have demonstrated superior environmental performance, have a history of sustained compliance, and be committed to an environmental management system. Since only facilities in the Performance Track who wish to obtain reductions in their self inspection frequencies can apply through their state or region, this will not add a significant amount of extra burden on the states.

Document #: 0305 Tank Inspections. IPC supports EPA's proposal to reduce the tank inspection frequency from daily to weekly as a means of lessening the administrative burden on facilities. This will serve to free valuable resources for facilities, especially smaller facilities, where a reduction in regulatory burden can help considerably. IPC is concerned that the case by case determination proposed in the new rule may prove to be too onerous for state regulators who in turn may choose not too participate. Furthermore, small businesses may be shut out of the program since the submissions and meetings necessary in a case by case determination my be too taxing on their limited resources. IPC recommends EPA develop criteria for a self implementing mechanism that can reward qualified, well managed facilities with reduced inspection frequencies while ensuring protection of human health and the environment.

Document #: 0315 A. Small Quantity Generator Tanks and Tank Ancillary Equipment Frequencies ACC was one of the parties that commented on reducing the proposed tank self inspection frequencies from daily to weekly for SQG, as well as for ancillary equipment at small and large quantity generator facilities, and fully supports these changes.

B. Further Reduced Inspection Frequencies for Performance Track Facilities ACC fully supported EPA's proposed revisions to Sections 264.174, 264.1959b), 265.174, and 265.195( a) that would allow, on a case by case basis, decreased inspection frequencies for tanks, containers and containment buildings. ACC also stated that decreased inspection frequencies should be based on an evaluation of the facility's compliance record, with a focus on its RCRA compliance related to hazardous waste storage. ACC did not believe it appropriate for the state or EPA to base its decision on a host of other factors that deal with issues well beyond, and not directly related to, the facility's compliance record, e. g., demonstrated commitment to public outreach.

The intent of this proposal revision should be to allow facilities with good demonstrated past  92 performance related to hazardous waste storage to benefit from a reduction in associated inspection frequencies. As such, basing these site specific decisions on the relevant compliance record is appropriate and should not place an unreasonable burden on the state or EPA since it would only be evaluating compliance data.

In this NODA, EPA is now proposing to retract its broader proposal, and only allow companies who have joined EPA's National Performance Track Program ( PT Program) to be eligible to file a case by case application for reduced self inspection frequencies. ACC objects to limiting the proposed provision to only PT companies, and advocates that reduced inspection frequencies should be afforded to all facilities with good compliance records, as originally proposed last January.

However, if it is now EPA's intent to limit the scope of this provision to " those companies that go beyond compliance with regulatory requirements to achieve environmental excellence" ( 68 FR at 61665), then ACC submits that all other environmental management systems that require companies to go beyond compliance with regulatory requirements to achieve environmental excellence and create " good [ environmental] perform[ ance]" ( id.), such as ACC's Responsible Care Program, should also be included as acceptable.

Responsible Care is ACC's comprehensive environmental, health, safety, and security performance improvement initiative, and implementation of this initiative is mandatory for membership in ACC. On a annual basis, ACC member companies report on a set of uniform industry wide metrics to measure individual company and industry performance. The measures enable members to identify areas for continuous performance improvement and provide a means for the public to track performance. Public reporting of an enhanced set of eleven company and industry specific performance metrics begins in 2004. The economics, environment, health, safety, security, and products.

While the Responsible Care Program is not an exact duplicate of EPA's PT Program, the environmental management system technical specifications of each program are very similar. As such, the Responsible Care Program should ve recognized as an acceptable environmental management system alternative to EPA's PT Program, thereby availing Responsible Care certified facilities the regulatory relief of being able to file a case by case application for reduced selfinspection frequencies.

EPA is soliciting additional comment in this NODA on whether to extend reduced inspection frequencies to areas subject to spills. ACC fully supports reduced inspection frequencies for areas subject to spills for those companies that have demonstrated good past performance with the requirements of 40 CFR 264.15( b). Again, ACC does not believe that granting relief on this issue should only go to companies that are National Performance Track members. While that program and other EMS programs may claim " top environmental performers" as members, this does not mean that non members couldn't demonstrate strong past performance in the area of waste storage, good housekeeping practices, and spill prevention and control. Companies that have  93 demonstrated strong past performance in areas relevant to the regulatory relief being considered should not be denied the reduced regulatory burden just because they have not joined EPA's National Performance Track Program.

Response: The final rule extends the inspection frequency to at least once each month for performance track facilities. We believe that the performance track program is a sufficient screen for those who will be allowed to petition for reduced inspection frequencies because they must have demonstrated superior environmental performance, have a history of sustained compliance, and be committed to an environmental management system. Since only facilities in the Performance Track who wish to obtain reductions in their self inspection frequencies can apply through their state or region, this will not add a significant amount of extra burden on the states.

Document #: 0317 Preamble Section III. B: Dow supports allowing facilities to submit case by case applications for further reducing inspections frequencies, especially for those facilities which participate in the National Performance Track Program. However, Dow does not believe that the case by case applications should be limited to member companies of the National Performance Track Program. EPA is concerned that making this change available to companies that do not participate in this program would place a large burden on authorized states in reviewing numerous applications. Dow is not convinced that restricting the applicants for reduced inspections in this manner will achieve the overall goal of burden reduction. As long as authorized states have adopted the National Performance Track Program into the respective state programs this mechanism might be an effective way to administer applications for reduced inspection frequency. However, all states may not have incorporated this program. In addition, a state may have a comparable and equally effective program, but with a different name. Also, future programs could ve developed for " good performers." Dow requests that EPA allow the use of other current or future programs as a means to meet the " good actor" criteria.

Lastly, Dow requests that this option for case by case reduction in inspection frequency also be available for permitted units and not just generator units. The engineering requirements for these units are basically the same whether or not they are permitted.

Response: The final rule extends the inspection frequency for up to monthly for performance track facilities. We believe that the performance track program is a sufficient screen for those who will be allowed to petition for reduced inspection frequencies because they must have demonstrated superior environmental performance, have a history of sustained compliance, and be committed to an environmental management system. Since only facilities in the Performance Track who wish to obtain reductions in their self inspection frequencies can apply through their state or region, this will not add a significant amount of extra burden on the states Document #: 0319  94 Small Quantity General Tanks and Tank Ancillary Equipment Inspection Frequencies: The GAC supports the expansion of the tank inspection frequency from daily to weekly for small quantity generators ( SQGs). The GAC believes that this reduction in frequency inspections is consistent with the Agency's goal of burden reductions and that there will be no compromise in environmental protection. The majority of printers that have tanks for collecting hazardous waste have small tanks and they are generally located indoors. As such, any release from the tank would be detected almost immediately and the extension of mandatory inspection frequency would greatly reduce the administrative burden associated with using these types of collection tanks.

Response: The Agency acknowledges and appreciates this comment. In today's rule we are allowing reduced inspection frequency for SQGs under certain conditions.

Document #: 0320 Comment 1: FR page 61665 column 2, section III. B. Paragraph 2 states that the EPA is reconsidering whether to allow facilities that meet certain criteria to reduce their inspection frequencies. The concern seems to be that evaluating whether the facilities who meet the criteria could pose an additional burden on the States. We believe that the criteria should not pose an added burden on the states. For instance,

Factor # 2 requires the facility to be in compliance over the years. The state already is required to inspect our facility each year and must make available to the public our compliance history . It should be no additional burden for the states to use the compliance history that they have already compiled to determine if the facility meets factor # 2.

Factor # 4 requires the facility to commit to public outreach and performance reporting. The facilities are already required to involve the public at numerous steps of the RCRA permitting process and at other times by the RCRA regulations. In addition, the RCRA regulations require the facilities to submit numerous reports documenting their performance ( i. e., Hazardous Waste reporting 262.41, exception reporting 262.42, Subpart BB reporting  264.1065 just to name a few). The states are already required to make sure we properly involve the public during the permitting process and to receive/ review many reports submitted by the facilities. It should be no additional burden for the states to ask the cognizant permit engineer whether the facility has been involving the public as required and submitting the performance reports required in order to determine if the facility meets factor # 4.

Factor # 5 requires the facility to install automatic monitoring devices. As part of the permitting process, the facilities are already required to install such devices. For instance, facilities must have fire detection monitors, sump level monitors, stack monitors, etc. The state already is required to make sure we have these monitors as part of the permitting review process and the annual compliance inspections. It should be no additional burden for the states to ask the permit engineer or compliance inspector for the facility if the facility has the required monitors.  95 We believe that there may be confusion on the part of the States as to what is required to evaluate whether the facilities meet the six factors. We suggest that the EPA issue a guidance document to help the states understand how to perform this evaluation. Once the states see the guidance and that they already have most of the required information, they will see that this evaluation is not really an added burden.

Therefore, we believe that the EPA should retain the original proposal to reduce the inspections for facilities that meet six criteria. As stated, we also recommend that the EPA issue a brief guidance document to help the states perform the necessary evaluation.

Response: The final rule extends the inspection frequency for up to monthly for performance track facilities. We believe that the performance track program is a sufficient screen for those who will be allowed to petition for reduced inspection frequencies because they must have demonstrated superior environmental performance, have a history of sustained compliance, and be committed to an environmental management system. Since only facilities in the Performance Track who wish to obtain reductions in their self inspection frequencies can apply through their state or region, this will not add a significant amount of extra burden on the states While the commenter may not feel that the burden associated with case by case evaluations is substantial, the state have provided convincing arguments to the contrary, and the Agency has been persuaded. .

Document #: 0326 Comment 1: FR page 61665 column 2, section III. B. Paragraph 2 states that the EPA is reconsidering whether to allow facilities that meet certain criteria to reduce their inspection frequencies. The concern seems to be that evaluating whether the facilities meet the criteria could pose an additional burden on the States. We believe that the criteria should not pose an added burden on the states. For instance,

Factor # 2 requires the facility to be in compliance over the years. The state already is required to inspect our facility each year and must make available to the public our compliance history . It should be no additional burden for the states to use the compliance history that they have already compiled to determine if the facility meets factor # 2.

Factor # 4 requires the facility to commit to public outreach and performance reporting. The facilities are already required to involve the public at numerous steps of the RCRA permitting process and at other times by the RCRA regulations. In addition, the RCRA regulations require the facilities to submit numerous reports documenting their performance ( i. e., Hazardous Waste reporting 262.41, exception reporting 262.42, Subpart BB reporting  264.1065 just to name a few). The states are already required to make sure we properly involve the public during the permitting process and to receive/ review many reports submitted by the facilities. It should be no additional burden for the states to ask the cognizant permit engineer whether the facility has been involving the public as required and submitting the performance reports required in order to  96 determine if the facility meets factor # 4.

Factor # 5 requires the facility to install automatic monitoring devices. As part of the permitting process, the facilities are already required to install such devices. For instance, facilities must have fire detection monitors, sump level monitors, stack monitors, etc. The state already is required to make sure we have these monitors as part of the permitting review process and the annual compliance inspections. It should be no additional burden for the states to ask the permit engineer or compliance inspector for the facility if the facility has the required monitors.

We believe that there may be confusion on the part of the States as to what is required to evaluate whether the facilities meet the six factors. We suggest that the EPA issue a guidance document to help the states understand how to perform this evaluation. Once the states see the guidance and that they already have most of the required information, they will see that this evaluation is not really an added burden.

Therefore, we believe that the EPA should retain the original proposal to reduce the inspections for facilities that meet six criteria. As stated, we also recommend that the EPA issue a brief guidance document to help the states perform the necessary evaluation.

Response: The final rule extends the inspection frequency for up to monthly for performance track facilities. We believe that the performance track program is a sufficient screen for those who will be allowed to petition for reduced inspection frequencies because they must have demonstrated superior environmental performance, have a history of sustained compliance, and be committed to an environmental management system. Since only facilities in the Performance Track who wish to obtain reductions in their self inspection frequencies can apply through their state or region, this will not add a significant amount of extra burden on the states Document #: 0328 I. Waste Storage Inspection Frequencies Automobile and truck dealerships generating hazardous wastes typically fall within the " conditionally exempt" or " small quantity" generator RCRA classes. Few are large quantity generators and virtually none are treatment, storage or disposal facilities. NADA advises its members to avoid storing hazardous waste liquids ( e. g., spent parts cleaning solvents and waste paint/ solvent mixtures) in tanks. Consequently, very few dealers operate hazardous waste tanks, opting instead to use containers.

EPA should extend the small quantity generator ( SQG) inspection frequency for tanks from daily to weekly, and for containers from weekly to monthly ( conditionally exempt dealerships who never accumulate more than 1000kg technically need not conduct waste storage inspections). Notably small quantity generator dealerships rarely accumulate more than 1000kg, let alone the 6,000kg maximum limit.  97 Thus, given the small quantity of wastes they accumulate, the fact that many SQGs are small businesses, and the large burden reductions that would result, extended inspection periods are warranted for SQGs.

Document #: 0329 Tank Inspections. As discussed in our May 20, 2002 comments, IPC supports EPA's proposal to reduce the tank inspection frequency from daily to weekly as a means of lessening the administrative burden on facilities. While this may not represent a significant burden reduction to our members as their facilities do not have significant tank based storage of hazardous waste, it will nonetheless reduce administrative burdens without lessening environmental protection. Expansion of this option to include reduced inspections of containers would increase the benefit of this burden reduction to many of our member facilities and other small businesses that do not have significant tank storage.

IPC does not support case by case determination for further reduction of inspection frequencies. As we noted in our May 20, 2002 comments, case by case determinations may prove to be too onerous for state regulators who in turn may choose not too participate. Furthermore, small businesses may be shut out of the program since the submissions and meetings necessary in a case by case determination may be too taxing on their limited resources. IPC recommends EPA develop criteria for a self implementing mechanism that can reward qualified, well managed facilities with reduced inspection frequencies while ensuring protection of human health and the environment.

Document #: 0331 NPCA Supports Further Reduction in Hazardous Waste Tank Inspections In NPCA's comments on the Proposed rule NPCA supported EPA's decision to adjust the current daily waste tank inspections from daily to weekly, but commented that this provision should not just be applied to Large Quantity Generators ( LQG), but be available to Small Quantity Generators ( SQG) as well. As EPA correctly stated in the Proposed rule, other regulations appropriately address the protection of human health and the environment with even longer inspection timeframes. Tanks are inherently safe based on design and leak detection and repair programs and the regulations pursuant to such ensure proper handling and correction should any problems arise. Changing the inspection frequencies for not only LGQ, but SQG also is consistent with EPA's goals in reducing the recordkeeping and reporting burden for all stakeholders subject to RCRA regulations. For the same reasons, NPA also supports EPA's proposal in the Notice to further reduce the burden associated with tank inspections by expanding this change to include tank ancillary equipment at LQG and SQG as well.

NPCA Supports Self Implementation for Self Inspections NPCA reiterates support for a self implementing approach to inspections based on documented performance and compliance. As stated in NPCA's comments to the Proposed Rule, a case by  98 case basis approach actually creates additional burden for states and facilities, when the goal of EPA's initiative is to reduce such. However, a self implementing approach, documenting the performance criteria outlined by EPA and supported by compliance records would be a manageable way to provide this benefit to all stakeholders. EPA recognized the burdens a caseby case, site specific approach would impose and in the Notice therefore proposes to restrict this provision to facilities in its Performance Track Program only.

Several of NPCA's member companies have facilities in the Performance Track program and NPCA is a Performance Track Network partner. NPCA has historically commented that the Performance Track program must offer increased incentives, especially to small businesses, if it is to be successful long term. Given the current economic status for many businesses, simple recognition of environmental performance is not enough. In order to justify the resources and expense of joining the Performance Track program, facilities must receive tangible regulatory relief. Thus, providing this benefit automatically to Performance Track facilities, that through the program have already demonstrated compliance with the criteria EPA outlines for case by case decisions, is appropriate. However, as stated above, NPCA believes this benefit can still be offered to other facilities without the full burden of case by case analysis, using a selfimplementing approach and based on an evaluation of the facility's compliance record under RCRA related to hazardous waste storage.

Document #: 0332 SOCMA Supports Shifting from Daily to Weekly Hazardous Waste Tank Inspections In the Proposed Rule, EPA proposed to modify the current regulations to require that hazardous waste tank systems be inspected on a weekly, rather than a daily basis. SOCMA strongly supports this change. In this Notice, EPA is proposing to also change the inspection frequencies to include tanks located at small quantity generators. SOCMA strongly supports this change also. Shifting to weekly inspection frequencies will lift a significant burden from the shoulders of small chemical companies while still assuring protection of human health and the environment.

Document #: 0335 Inspection Frequencies   In general, GM supports the agency's proposal to modify and reduce the inspection frequencies for tanks and tank systems, containers, and containment buildings to monthly for both large and small quantity generators. GM believes that this change should be available for all generators regardless of their participation in the National Performance Track Program. While GM understands EPA's intention to provide " relief to companies that are demonstrated good performers", EPA should not arbitrarily give preferential treatment to companies participating in this one specific program. There are many ways to demonstrate " good performance" and many other companies may have equivalent   or better   environmental management programs than those in the National Performance Track Program. The National Performance Track Program is intended to be voluntary and without penalty for those not participating and GM views this proposal option as an inappropriate " incentive" to force companies to participate in the National Performance Track Program in order to take advantage of this proposed revision.  99 An example of other management programs would be the ISO 14001 Certification. As stated in the Alliance comments dated April 16, 2002.

The burden reductions are especially appropriate for facilities that have obtained ISO 14001 Certification. Rather than require certain burden reductions to be determined on a case by case basis, such as tank inspection frequencies, the Alliance supports monthly inspections for facilities with ISO 14001 certification. EPA has long recognized the benefit of formalized environmental management systems and is beginning to recognize that facilities with such systems may warrant less prescriptive regulatory constraints. For example, in a recent Federal Register notice, EP has solicited comment on a new option concerning the use of an environmental management system ( EMS) based alternative to the final 40 CFR Part 438 effluent limits for the General Metals subcategory that is directly applicable to the Automotive industry. 66 FR 424.513 ( Jan3, 2001). Additionally, in an unrelated industry, EPA has proposed EMS based regulatory options for the concentrated animal feeding operations ( 66 FR 58,556, 58,601 ( Nov. 21, 2001). A 1998 EPA policy statement endorsed the use of EMSs that focus on improved environmental performance.

So while GM supports EPA's recognition of the use and benefits of EMSs, we do not support the recognition of only one specific program.

Document #: 0337 SOCMA Supports Shifting from Daily to Weekly Hazardous Waste Tank Inspections In the Proposed Rule, EPA proposes to modify the current regulations to require that hazardous waste tank systems be inspected on a weekly, rather than daily, basis. SOCMA strongly supports this change.

The daily inspection requirement for tanks was part of the initial set of hazardous waste regulations promulgated in 1980. Since that time, EPA has added significant new substantive requirements for tank systems by mandating use of secondary containment for tank systems and adding requirements for leak detection systems. Thus, the overall level of environmental protection established by the substantive design and operating standards applicable to tank systems has been significantly enhanced. EPA has noted in other contexts that tank and container storage of hazardous wastes are not high risk activities and have not proven to be the source of releases or other environmental concerns.

Discussions with SOCMA members have confirmed that the current daily inspection requirement is a significant burden for many SOCMA members. The resources and manpower required for daily tank inspections and entering the inspection in an operating log draw resources away from other activities. Furthermore, these storage areas are usually centrally located and thus are in areas frequented by operating personnel on a regular basis in connection with daily operations.

Thus, these areas are routinely under visual review and oversight and do not require daily formal  100 inspections.

SOCMA concurs with EPA's assessment that this labor intensive daily process is not needed to ensure the safety of the tanks. See 67 FR at 2526 27. These tanks are equipped with secondary containment and leak detection systems, are subject to routine visual inspection by employees, and inherently require less oversight since they are simpler to design, construct and maintain than more complex waste management units ( e. g., landfills or surface impoundments). Thus, daily inspections are not necessary and are, in fact, a waste or resources. Shifting to weekly inspection frequencies will lift a significant burden from the shoulders of small chemical companies while still assuring protection of human health and the environment.

EPA's Proposed Approach for Reducing Self Inspections Will Fail to Achieve Any Significant Burden Reduction: A Self Implementing Option is Needed SOCMA agrees with EPA's stated goal of reducing the frequency of self inspections for facilities that exhibit strong compliance and safety records. Particularly for small companies with limited resources, the relief provided by decreased inspection frequencies would be significant.

However, SOCMA is extremely concerned that EPA intends to make such relief available only on a case by case basis. By requiring site specific, case specific determinations, EPA has created additional burdens for both regulators and facilities that seek to pursue this option. In fact, for smaller facilities such as those operated by many SOCMA members, the additional burden of seeking a site specific determination is likely to prevent even the best performing facilities from being able to achieve the regulatory relief EPA aspires to provide.

Accordingly, SOCMA urges EPA to incorporate a well defined, self implementing mechanism for qualifying for decreased inspection frequencies into the final rule.

a. The Additional Burden of Making Case By Case Determinations Will Not Only Dilute the Desired Burden Reduction But Also Will Prevent Many High Performing Facilities From Achieving Such Relief The approach set out in the Proposed Rule places a new burden on states to make multiple caseby case determinations regarding the ability of facilities to qualify for decreased inspection frequencies. Only directors of authorized states' hazardous waste programs and EPA would be authorized to allow decreased inspection schedules on a site specific basis. Thus, contrary to the intent of the burden reduction program, EPA's proposal makes the availability of this regulatory relief contingent upon additional ( and optional) further activity by the states. The manpower limitations and competing priorities in a state agency thus become a real world limiting factor on whether an eligible facility can obtain relief.

EPA acknowledged in the Proposed Rule that states were apprehensive of the administrative burden that case by case determinations would impose upon them:  101 We also received comments from the states expressing concerns over the added administrative burden in implementing case by case changes to inspection frequencies. We are not mandating that states offer these changes. We are only providing the option to states that are interested. ( 67 FR Reg. At 2527.)

However, rather than develop an approach that responds to states' concerns about the resultant administrative burden, the Purposed Rule finessed this issue by declaring that states are not required to implement a decreased frequency inspection program. The Proposed Rule thus creates a situation where EPA has identified a valuable burden reduction opportunity but effectively fails to implement it, as it recognizes many states will lack the resources required to pursue EP's approach on any regular basis.

SOCMA urges EPA to reconsider this position. SOCMA is particularly concerned that smaller facilities, such as those operated by many of its members, would be the category most adversely affected by EPA's proposed approach. To the extent that states are able to make any casespecific determinations to decrease inspection frequencies ( under the proposed approach), such determinations would be more likely to be made in the context of permitting decisions. As most SOCMA facilities rely on 90 day on site storage and do not have permits, states would have to undertake separate ad hoc reviews to address these facilities. SOCMA is concerned that regulators are unlikely to be able to devote the time needed under the proposed approach to respond to requests from multiple smaller facilities.

SOCMA is equally concerned that small facilities lack the personnel and resources to engage in the multiple meetings and submissions that would be required under the proposed case by case determination approach. The unfortunate result would be that smaller facilities that ( i) have more limited and necessarily short term storage operations and ( ii) would most benefit from this type of relief, would be the least likely to receive it. SOCMA believes that EPA has the opportunity to establish an effective self implementing approach that would both motivate and reward high performing facilities. Accordingly, SOCMA has set out below its recommendations for a self implementing approach. At a minimum, SOCMA urges EPA to adopt this type of selfimplementing mechanism for facilities relying on the 90 day on site storage provision.

b. A Well Designed, Self Implementing Mechanism Can Achieve EPA's Goal of Reducing RCRA Burdens While Protecting Human Health and the Environment SOCMA has previously urged and continues to urge EPA to institute a well designed, selfimplementing mechanism to allow facilities to qualify to reduce inspection frequencies.

In its comments on the initial Notice of Date Availability, SOCMA suggested that EPA considers the following approach for a self implementing program: if a tank or container had no releases for a certain period time based on daily ( or in the case of tanks, weekly) inspections, the facility would place a certification as such in the log and shift to a certain reduced frequency ( which could be specified in advance by EPA in this rulemaking). If the tank or container area subsequently  102 had a release or incident, the facility would be required to shift back to its original inspection schedule. SOCMA's plan thus provided a framework that would allow for a reduced inspection burden while protecting human health and the environment. In fact, the plan carried an extra incentive for facilities to pursue safe policies by providing for reduced inspection only in the absence of releases or environmental incidents.

In the preamble to the Proposed Rule, EPA apparently responded to a different set of prior comments regarding a self implementing option: " For example, an inspection schedule should be deemed approved if EPA does not specifically deny the request in writing within 30 days." 67 FR at 2527. SOCMA does not now and did not previously support the concept that the inability of a regulatory agency to act within 30 days was a sufficient basis to make a reduced schedule option self implementing. EPA then went on to dismiss the self implementing option with little explanation, saying only, " It is important that regulatory agencies make the decisions to decrease inspection frequencies. Thus, we are not proposing the self implementing option." 62 FR at 2527. EPA thus did not offer any detailed rationale for this position or identify any purported advantages of regulatory case by case decision making over a well designed, carefully structured, self implementing option.

SOCMA asks EPA to reconsider this position and take the time now to identify the appropriate criteria to be met for a facility to be eligible for a self implementing option. Specifically, SOCMA recommends that EPA allow facilities to shift to a reduced inspection frequency after a specified time period ( e. g., six months) has elapsed during which routine inspections of the storage facility and units have confirmed on a consistent basis that : ( i) the units are in good condition; ( ii) the storage area is being operated in accordance with applicable hazardous waste requirements; and ( iii) there have been no releases from the tank and container storage areas. The facility could then enter a statement in the facility inspection log certifying that these requirements have been met and electing to operate on a reduced inspection frequency basis ( as established by the regulations) so long as these conditions continue to be met. If, at any time, the facility no longer met these conditions, it would automatically lose its eligibility for the reduced inspection frequency and would have to reinstate routine inspections,

This approach would establish a defined set of uniform criteria for eligibility for reduced inspection frequencies and would require the facility to certify that it has met those criteria and then maintain the inspection logs that could be used both to audit initial eligibility and continued compliance. This type of self implementing mechanism would establish a level playing field for all facilities and would achieve burden reduction without imposing a significant new set of regulatory obligations on the states. SOCMA urges EPA to give serious consideration to using this type of self implementing program.

c. If the Case by Case Approach Is Retained, EPA's Suggested Criteria for Eligibility for Reduced Self Inspections Should Be Replaced By a More Focused Performance Standard In the preamble to the Proposed Rule, EPA listed several factors that regulatory agencies should consider when deciding whether to allow a facility to reduce its self inspection frequencies:  103 Considerations for decreasing inspection frequencies will be based on factors such as: a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to public outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit. ( 67 FR at 2527.)

SOCMA believes that these criteria are both too subjective and too expansive. The focus of any such determination should be on the compliance and safety record of the facility with respect to the hazardous waste units being inspected. SOCMA recommends that EPA develop specific performance criteria that relate to compliance with pertinent hazardous waste management standards. These types of performance criteria should be easily verifiable through a review of facility records and inspection logs and would bear directly upon the suitability of a facility as a candidate for reduced inspection frequencies.

Document #: 0338 USWAG Supports Extending Container/ Tank inspection Frequency Relief to Small Quantity Generators USWAG continues its support for EPA's proposal to amend 40 CFR Sections 265.174 & 265.195( a) to reduce the self inspection frequency for tanks from once a day to once See, e. g., 67 FR at 2524 and USWAG Comments dated April 17, 2002 at pp. 3 4. USWAG also supports EPA's recent proposal to extend the reduced weekly inspection schedule for tanks to small quantity generator facilities. See 68 FR at 61665. This proposal makes sense and affirms EPA's conclusion that the additional reduction in inspection frequency will bring significant costs savings without compromising environmental protection. Id Further Discretionary Reductions in Container/ Tank Inspection Frequency Should Not Be Limited To National Environmental Performance Track Facilities USWAG has consistently supported EPA's proposal to allow facilities, on a case by case basis, to further reduce inspection frequencies for tanks, containers and containment buildings from weekly to at least monthly, if a facility can demonstrate sound environmental management practices and a sustained environmental compliance record. See USWAG Comments dated April 17, 2002 at p. 4. However, USWAG questions the value of EPA's proposal to limit the availability of this inspection flexibility solely to facilities that are members of EPA's National Environmental Performance Track (" NEPT") program. USWAG agrees that, if a facility is approved by EPA to participate in the NEPT program, it can be presumed that the facility has demonstrated sustained superior environmental performance. USWAG recommends, however, that such facilities not simply be eligible to apply to conduct monthly inspections, but rather should automatically qualify as a " sustained environmental performer," and thus eligible for the  104 reduced inspection frequency option.

USWAG also questions the usefulness of EPA's proposal to effectively bar all other companies with strong environmental compliance programs from being able to apply to EPA or a delegated state program for monthly inspection flexibility. If a facility can demonstrate sustained commitment to environmental compliance, there is no reason to exclude it from the benefit of applying for a discretionary reduction in inspection frequency.

In short, USWAG submits that a flexible approach, allowing NEPT facilities to automatically qualify for further reduced inspections and allowing other good environmental performers to apply for such relief, would meet EPA's RCRA burden reduction goals and its desire to encourage and reward participation in the NEPT. The reduced inspection frequency would lessen RCRA recordkeeping and reporting burdens while maintaining protection of human health and the environment. 68 FR at 61664. Moreover, the fact that a NEPT facility is automatically eligible for the inspection frequency reduction based on its participation in the NEPT program is a strong incentive to join NEPT.

Response to Comments: Today's final rule reduces the inspection frequencies for interim status and permitted LQG tanks, and adds language to § § 264/ 265.195 allowing weekly inspections when the secondary containment employs an automatic leak detection system that notifies facility personnel if a leak occurs. In the absence of an automatic leak detection system, the facility must have workplace practices in place that ensure that any leaks will be promptly identified, so as to not violate the provisions of § § 264/ 5.193( c)( 3)). Today's final rule does not reduce inspection frequencies for container storage areas or containment buildings.

The automatic leak detection equipment/ system used must alert facility personnel to the presence of any leak or spill, within 24 hours or the earliest practicable time, in accordance with § § 264/ 5.193( c)( 3). Automatic leak detection systems were described in the proposed rule ( 67 FR 2527). However, the existing regulations, which require that secondary containment systems be able to detect releases, do not specify the method of leak detection. Some facilities, according to a comments on this rulemaking, use daily visual inspections as a method of leak detection for their above ground tanks. Under the current regulations, without daily visual inspections, automatic detection equipment is the only way to meet the leak detection requirement.

Workplace practices must ensure leaks are promptly identified. Such practices would involve facility personnel who, in the course of their duties, remain alert to potential problems at the workplace so that problem areas are identified and addressed. Whether workplace practices or automatic leak detection systems are employed as a means of detecting leaks or spills, any leaks or spills must be detected within 24 hours, to comply with 264/ 5.193( c)( 3).

As stated above, the reduced inspection requirements apply to tank systems. This would include ancillary equipment ( including piping), and for ancillary equipment that does not have secondary containment. It is anticipated that workplace practices would provide for the detection of releases from this equipment.  105 The final rule also extends the inspection frequency for up to monthly for performance track facilities for tanks systems. We believe that the performance track program is a sufficient screen for those who will be allowed to petition for reduced inspection frequencies because they must have demonstrated superior environmental performance, have a history of sustained compliance, and be committed to an environmental management system. Since only facilities in the Performance Track who wish to obtain reductions in their self inspection frequencies can apply through their state or region, this will not add a significant amount of extra burden on the states.

Performance Track Proposed Action in 2003 NODA: Solicited comment on whether to limit the case by case decreased inspection frequencies tanks, containers and containment buildings, up to monthly, for Performance Track Facilities.

Document #: 0198 NPCA strongly supports a self implementing approach to inspections based on documented performance and compliance. NPCA does not believe, however, that a case by case basis is the appropriate approach. A case by case, site specific approach actually creates additional burdens for stakeholders under RCRA and to comply with the Federal Paperwork Reduction Act. As this provision will not be utilized since it creates too large of a hurdle for facilities, especially small businesses, to pursue, it cannot have the desired reduction EPA intends. Instead, EPA should adopt a viable self implementing inspection approach.

If EPA does go forward with a case by case, specific approach basis  it should base decisions on evaluation of the facility's compliance record under RCRA related to hazardous waste storage.

NPCA and its members support EPA's efforts with regard to reducing the redundant recordkeeping and reporting burdens under RCRA. NPCA believes these actions will have no impact on the protection of human health and the environment, but will reduce burden for industry, EPA and the States. Finally, NPCA believes that EPA should continue examining regulations for burden reduction opportunities. In advance, thank you for your consideration in this regard. Response: The Agency agrees with the commenter that a reducing self inspection frequencies on a case by case basis is not an appropriate approach for reducing burden for all our stakeholders. We now believe that a case by case, site specific approach actually creates additional burdens for stakeholders under RCRA and to comply with the Federal Paperwork Reduction Act. The Agency agrees with the commenter that industry may not utilize this provision because it creates too large of a hurdle for facilities, especially small businesses, to pursue, and will not have the desired reduction EPA intends Document #: 0216  106 The State of Maine does not concur with the proposal to allow self inspection frequencies to be changed, even on a case by case basis. Inspections catch problems early and should at a minimum be done weekly. This good housekeeping requirement should be retained. Allowing case by case determinations of these basic inspection requirements would lead to very different decisions on the same information in various states and regions. This lack of basic national consistency would put certain facilities at economic advantages over other facilities, not because of how they are operated or the risk that they pose, but on other factors such as the regulatory and political environment in a particular state or region. It is not difficult to envision situations where agencies could be forced to approve lax inspection schedules due to these factors. We have found these inspection requirements very useful in preventing small problems from becoming larger problems.

Response to Comments: The Agency agrees with the commenter and has determined these provisions are appropriate for only Performance Track facilities because of their demonstrated top environmental performance and rigorous evaluation by the Agency. In addition, the Agency believes it is important to recognize the difference in the need for oversight of facilities that are top environmental performers who have developed comprehensive environmental management systems and who have a track record of effective self oversight.

The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month with a case by case review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0316 The PPG Industries Meadville facility, a National Environmental Performance Tract member, is providing the following comments on the RCRA Burden Reduction Initiative. PPG Industries is an $ 8 billion dollar service provider and manufacturer of glass chemicals and coatings with operations in 23 countries and more than 20 states in the United States. The Meadville location is a major producer of flat glass for the automotive glass market.

PPG Industries supports the proposed reduction in frequency of RCRA tank and container inspections for facilities that are participants in the National Environmental Performance Track ( NEPT) program. The PPG Industries Meadville facility was accepted into the NEPT program in 2002 following the implementation of an ISO14001 registered environmental management system ( EMS). The EMS has been effective in helping the facility to manage its environmental performance and compliance activities. The facility was awarded the 2003 Pennsylvania Governors Award for Environmental Excellence for conversion of its Line # 1 furnace to an oxyfuel combustion process which led to a greater than 50% reduction in Nox emissions.  107 Reducing the RCRA container inspection frequency from weekly to monthly will result in a savings of approximately 15 man hours at the Meadville facility. The reduction in man hours devoted to unnecessary RCRA inspection leads to a more efficient allocation of resources at the facility that results in cost savings. The automotive flat glass market is extremely competitive so any reduction in operating costs helps the plant to remain viable.

Unfortunately, there are few incentives for joining NEPT. The RCRA Burden Reduction Initiative for NEPT facilities may provide an incentive for other facilities to implement an EMS. However, the incentive will only be significant if the reduced inspection burden is automatically applicable to NEPT facilities. RCRA regulated facilities are unlikely to view the regulatory reduction burden as an incentive to join NEPT if they must incur the added cost and time associated with applying for the reduced inspection frequency benefit. Elimination of the case bycase review will also eliminate the State's burden of reviewing and approving the applications for reduced inspections.

If EPA determines that a case by case review is needed for NEPT members prior to implementation of the reduced inspection frequency then PPG recommends that the reduced inspection frequency eligibility be afforded to any facility that has implemented an EMS such as ISO14001, NEPT or the ACC Responsible Care Management System.

PPG would like to commend the Agency for pursuing initiatives that lower operating costs without adversely affecting human health or the environment.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0320 Paragraph 2 states that the EPA is considering limiting the reduced inspection frequency provision to facilities that are member companies of the National Performance Track Program. The proposal indicates that this program has only 300 members, many of whom are may not even subject to 40 CFR 264 or 265. Therefore, only a very small percentage of all of the facilities that do manage hazardous waste would be able to take advantage of this provision. Writing the rule in a way that benefits only a few appears to defeat the purpose of this rule, i. e., reduction of the burden in a substantive way. We believe that the EPA should not limit this provision to facilities solely to the National Performance Track Program. There are other reputable programs that recognize and encourage top environmental performance, i. e., ISO 14000, and we believe the EPA needs to expand the scope of this proposed rule to include them as well.

The final rule should make the provision available to any facility recognized by an acceptable organization or program as a facility that encourages top environmental performance. It should mention National Performance Track Program and ISO 14000 as examples of acceptable program, but not limit acceptability to these program only. The final rule should allow the states the flexibility to determine what is an acceptable organization or program.

Response: The Agency has determined these provisions are appropriate for only Performance  108 Track facilities because of their demonstrated top environmental performance and rigorous evaluation by the Agency. In addition, the Agency believes it is important to recognize the difference in the need for oversight of facilities that are top environmental performers who have developed comprehensive environmental management systems and who have a track record of effective self oversight.

The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case by case review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0326 Same comment as Document #: 0320.

Response: The Agency has determined these provisions are appropriate for only Performance Track facilities because of their demonstrated top environmental performance and rigorous evaluation by the Agency. In addition, the Agency believes it is important to recognize the difference in the need for oversight of facilities that are top environmental performers who have developed comprehensive environmental management systems and who have a track record of effective self oversight.

The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case by case review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0327 EPA is now proposing to only allow companies who have joined EPA's National Performance Track ( PT) Program to be eligible to file a case by case application for reduced self inspection frequencies. API instead supports affording this opportunity to all facilities with good compliance records, as EPA originally proposed last January. The PT facilities likely have gone much of the way in documenting their recognized environmental performance, yet there are likely other well  109 performing facilities that have not chosen the PT program due to already having well established and highly effective management systems. API believes that these other well performing facilities should also have an opportunity to establish a less frequent inspection schedule.

API supports the idea that any well performing facility may petition on a site specific basis for further reduced burden based upon its performance record. To assist delegated states in rapidly evaluating these petitions, a guidance document developed with industry stakeholders can simplify the application and review process.

Response: The Agency has determined these provisions are appropriate for only Performance Track facilities because of their demonstrated top environmental performance and rigorous evaluation by the Agency. In addition, the Agency believes it is important to recognize the difference in the need for oversight of facilities that are top environmental performers who have developed comprehensive environmental management systems and who have a track record of effective self oversight.

The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case by case review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0332 SOCMA again emphasizes, as we did in our 2002 comments, the benefits of and need for a broader self inspection frequency for non Performance Track members as well. Please see our 2002 comments.

Response: The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case bycase review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit. The Agency believes that at this time that case by case reductions in self inspection frequency for selected waste management units should only be for Performance Track facilities. The Agency is persuaded by many of the State commenters as well  110 as others that going forward with case by case reduced inspection frequencies would be overly burdensome to the regulatory community as well as the regulated community. As it was structured in the proposed rule, it would be too burdensome for industry to prepare the ncecessary information to possibly enjoy reduced inspection frequency.

Document #: 0336 Should the ability to file a case by case application for reduced tank self inspection frequencies be limited to member companies of the National Performance Track Program?

In general, Florida DEP would prefer to have uniform requirements. In Florida, each exemption form the daily tank inspection requirement could constitute final administrative action, potentially requiring public notice with opportunity for third party interventions. This will increase the agency's burden. If a case by case reduced tank inspection frequency is enacted, Florida agrees that limiting the pool of applicants in some meaningful way, such as NPTP participants, would help reduce the burden.

Response: The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case bycase review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0339 The National Ready Mixed Concrete Association ( NRMCA) supports the examination of ideas to reduce the recordkeeping and reporting burden imposed on the regulated community under the Subtitle C hazardous waste regulations of the RCRA. In the ready mixed concrete industry, these regulations are most likely related to vehicle repair shops that generate waste degreasing solvents, waste oil and anti freeze. These facilities are generally small quantity generators that do not require extensive oversight; most use contractors to manage their hazardous wastes. We would like to see the removal of requirements for the submission of information required under RCRA that is seldom or never used. We also support the reduced inspection requirements for tank self inspection frequencies, especially for small quantity generators. Additionally, NRMCA supports decreased inspection frequencies for tanks, containers and containment buildings. The burden and future potential encumbrances created by the excess reporting and inspections standards reduce productivity and profitability of our members. The burden is especially detrimental to smaller companies. NRMCA advocates the possibility of reduced self inspection frequencies to member companies of the Performance Track Program. Those member companies have had their environmental performance measured and certified by the US Environmental Protection Agency as a condition of their membership in the Performance Track program. NRMCA is actively  111 recruiting our member companies to become members of Performance Track. We can better gain and preserve membership in the Performance Track program if potential applicants see the special benefits to the overall scheme.

Response: The Agency applauds NRMCA efforts to promote membership in the National Environmental Performance Track Program. Under today's regulations, under specific conditions, selected waste management units may petition to reduce their inspection frequency up to monthly. With regard to the commenters suggestion that NRMCA would like to se the removal of requirements for submission of information required under RCRA that is seldom or never used. The Agency, at this time, has not undertaken such an analysis, which would have to be coordinated with the States and Regions. Without this information it is difficult to identify was information is seldom or never used. This type of analysis is outside the scope of today's rulemaking. With regard to the encumbrances created by the excess reporting and inspections, the Agency is puzzled by this statement. Presently SQG are not required to keep an inspsection log and the only inpsection burden is an employee physically examining a tank system weekly. ( See 40 CFR 265.201).

Document #: 0341 Duke Energy supports the agency's proposal to allow, on a case by case basis, decreased inspection frequencies for tanks, containers, and containment buildings. We understand that the proposal would allow generators to request further decreased inspection frequencies ( minimum monthly) from authorized States, or by the EPA in non authorized States. We do not believe this proposal will impose a burden on authorized states to evaluate compliance records prior to granting generator facilities the ability to implement decreased inspection frequencies. We do not support the agency's proposal to require a company to be a member of the National Performance Track Program in order to be considered for reduced inspection frequencies because such a requirement would result in more paperwork and burden on the regulated community without providing a proportionate degree of environmental protection.

Response: The Agency disagrees with the commenters and has determined that membership in the Performance Track Program is the only sufficient qualification to reduce facility self inspections up to once per month without a case by case review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0344 The Lockheed Martin Manassas facility agrees with and supports EPA's proposed approach to reducing the frequency of inspection for RCRA containers. This is consistent with other Agency  112 efforts to reduce administrative burdens without compromising environmental performance and have made additional commitments beyond regulatory requirements.

The implementation of the proposed case by case application of this provision should be a streamlined process with as little administrative burden as possible and delegated to the appropriate state regulatory agencies. Such a process could be as simple as a request letter from the facility to the state agency and an approval letter in response from the state agency to the facility conditioned on current membership in the National Environmental Performance Track Program.

Response: The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case bycase review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0345 The proposed rule discussed the availability of leak detection systems which are subject to routine visual inspection and systems for the continuous surveillance of releases. It concluded that this supports going from daily to weekly inspection frequency. All tank systems are not mandated to have continuous surveillance for leak detection. See 40 CFR 264.194. It should be noted that the small quantity generators are also not required to maintain financial assurance for closure.

The RCRA regulations in general are more protective than regulations pertaining to a product since the product has a commercial value and it is in the regulated company's interest to preserve it, unlike waste which is an economic burden and whose management is an activity that is not revenue oriented . Historically, compliance inspections have proven that tanks may leak, cause serious property damage, contaminate water supplies and increase air emissions. Implementing the proposed less frequent inspections will add an administrative burden to the States in terms of permitting, compliance monitoring and enforcement.

The proposal to reduce the frequency of inspection for tank systems, containers and containment buildings should also consider the environmental considerations and location standards. Facilities that are located in proximity to wetlands, over sole source aquifers, flood plains and in urban areas should inspect tank systems daily.

The inspection frequency for tank systems that have continuous surveillance for release could be changed from daily to weekly if the alarm system for the leak detection equipment is checked daily. Frequently a compliance based incentive can be linked to burden reduction. In this instance  113 a reduction in inspection requirements must be linked with a demonstrably adequate secondary containment system, a continuous surveillance system, a satisfactory compliance history and a suitable location.

The same conditions that would ensure protectiveness of the environment for changing from daily to weekly inspections should apply to any incentive that changes the frequency from daily up to monthly ( alarm system for the leak detection equipment is checked daily, demonstrably adequate secondary containment system, a continuous surveillance system, a satisfactory compliance history and a suitable location.

The design of EPA's Performance Track utilizes several levels of review which include an EPAconducted compliance screen, a review of the Environmental Management System ( EMS) by a third party auditor, and a an EPA review to ensure that the facility is achieving " beyond compliance" performance. EPA, however, does not directly review or approve the third party evaluation of the EMS. Several studies have shown that there are variations in quality in the third party auditing community, and that a third party audit of an EMS does not in all cases assure the facility is achieving higher levels of compliance. In addition, third party audits may not cover the scope of the site that is inclusive of the area that contains the tanks. For example an ISO 14001 audit may be scoped to include only portions of the site.

For these reasons, it is recommended that this incentive be only provided to Performance Track members that have received a State conducted pre audit, or a third party pre audit that has been reviewed and approved by the State. This would ensure that the EMS that is in place is actually assuring a higher level of performance at the facility and that the EMS is inclusive of the area in which the tanks are located.

Document #: 0346 DOE supports giving all facilities the opportunity ( on a case by case basis) to decrease the inspection frequencies for containers, containment buildings, and tanks. As previously indicated DOE believes this approach would provide facilities with incentives for establishing more protective designs, environmental management systems, and compliance practices. However, if only National Performance Track Facilities are eligible for the decrease in inspection frequencies, the benefits of the approach would be diminished. Accordingly, DOE would prefer that the opportunity not be limited at the federal level to National Performance Track Facilities. Having said this, DOE wishes to express its support for providing additional meaningful incentives for participants in the National Performance Track Program, when appropriate. But, such additional incentives should not necessarily be provided at the expense of more widespread burden reduction.

DOE acknowledges the potential burden on authorized states from case by case reviews of inspection programs. However, states would not be required to become authorized for this program and also would have the option to adopt a more stringent approach, including limiting eligible facilities within their boundaries to National Performance Track Facilities.  114 DOE supports extending the opportunity for a decrease in inspection frequency on a case by case basis to areas subject to spills. As previously indicated, DOE believes this would be justified because activities that may cause spills usually allow for the spills to be easily detected and quickly cleaned up. More frequent inspections are unlikely to result in quicker spill detection. Also, for the reasons states in item III. B. 1a, above, DOE suggests that EPA not limit this element of the burden reduction initiative to members of the National Performance Track Program. Document #: 0347 Eastman supports the Agency's previous proposal to allow, on a case by case basis, decreased inspection frequencies for tanks, containers, and containment buildings for facilities with certain demonstrated commitments relevant to good and appropriate management practices. This current suggestion that such changes be limited to only member companies of the National Performance Track Program is simply too self serving, in our view. There are many good performers ( so called " top environmental performers") who will not take on the burden of participating in yet another federal program, when they have existing and comparable criteria to be met under the American Chemistry Council's Responsible Care ® program or ISO 14000/ 14001 standards or various other program in which they are participants. Limiting participation to members of one EPA sponsored program when there are many non members who would qualify is simply unacceptable.

Response to Comments: The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case by case review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0348 Limit the provision to only members of the National Performance Track Program. In addition the decreased inspection frequency should be required to revert to daily if problems are observed. Require daily inspections until the issue is addressed and for a two week period following the fix to insure the fix is appropriate.

Do not allow reduced frequency of inspections in areas subject to spills.

Response: The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case bycase review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and  115 requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0349 ADEQ does not concur with EPA's proposal to further reduce inspection frequencies for tanks, containers, and containment buildings on a case by case or sit specific basis. We believe that the process of evaluating case by case and/ or site specific conditions and considerations necessary for further decreasing inspection frequencies while maintaining an appropriate level of controls for the safe operation of these units would dramatically increase the burden on EPA and authorized States which are already working with decreased resources in many instances. Our concerns regarding increased burden on EPA and authorized States are applicable with regard to whether EPA considers limiting inspection frequency reductions to member of the National Performance Track Program only or considers expanding this allowance to all generators. However, the larger the eligible facility base, the greater EPA's and authorized State's burden will be evaluating caseby case and site specific requests for inspection frequency reductions.

ADEQ reiterates that reducing inspection frequencies will not provide any additional reduction in the recordkeeping/ reporting burden for small quantity generators who are not subject to 40 CFR, Section 254/ 265.15 and, therefore, are not required to maintain a schedule or a record of inspections.

Response: The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case bycase review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0352 EPA requested comments on establishing inspection frequencies for tank systems, containers, containment buildings, and spills based on site specific evaluations. LANL believes that equipment specific factors, such as those already described in 40 CFR § 264.15( b)( 4) and § 265.15( b)( 4) can be applied to all RCRA regulated tank systems, containers, and containment buildings so that case by case frequencies could be established without impacting the environment or human health. We also believe that some inspection frequencies could be decreased without the need for a case by case evaluation. Many facilities, not just Performance Track Facilities, have well operated systems. Therefore, the case by case evaluation should be made available to all generators and permitted and interim status treatment, storage, and disposal facilities ( TSDFs).  116 COPC supports the idea that any well performing facility may petition, on a site specific basis to further reduce its recordkeeping and reporting burden based upon its performance record. Facilities participating in the National Environmental Performance Track Program have likely done much of the work in documenting their recognized environmental performance; yet there are probably other well performing facilities that have not chosen the Performance Track program because they already have well established and highly effective management systems. COPC thinks these other well performing facilities should also have an opportunity to establish a less frequent inspection schedule.

Response: The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case bycase review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0354 In the original proposed rule, EPA proposed to allow " good actors" to further decrease inspection frequencies. In our comments, CRWI supported this idea. Based on comments received, EPA is re evaluating whether to allow all generators to use this " good actor" provision or to restrict this provision to companies that participate in the National Environmental Performance Track Program. EPA is concerned that allowing all generators to use this case by case option will impose a burden on the authorized states to evaluate compliance with the criteria. CRWI agrees with the concept of reducing the burden to both the regulated and the regulator. However, we are not convinced that this change would accomplish what EPA intends. As long as the authorized state has already incorporated the National Environmental Performance Track Program into its program, this might be a mechanism for administering reduced inspection frequency. However, not all facilities will be able to take advantage of this program. In addition, all states may not have incorporated this program into their system. CRWI believes that restricting the " good actor" provisions to participants of this program may not achieve the desired goals of burden reduction. Similarly, some states may also have internal programs that are comparable to the National Environmental Performance Track Program. Restricting burden reduction to only federal compliance incentive programs may exclude other, equally effective state programs.

CRWI agrees that where such programs are already in place they should be used. We also believe that restricting the " good actor" provision to any one program may become counterproductive. Should future programs be developed, these would have to be incorporated into both the federal and state plans and regulations before they could be used. Thus, CRWI suggests that EPA revise the language to allow other current and future programs to be utilized to meet the " good actor"  117 criteria. This approach would preclude the need for future rule changes when new or revised incentive programs become available. Perhaps EPA actually said it best in the preamble of the original proposed rule( 67 FR 2527) by noting:

" We are not mandating that states offer these changes. We are only providing the option to states that are interested."

Following the same logic, CRWI believes that EPA should not mandate to the states that a particular program is an exclusive prerequisite for burden reduction but rather allows the state to decide what justifies using the " good actor" provision following criteria already outlined by EPA in the proposed rule and the NODA.

Response: The Agency has determined that membership in the Performance Track Program is sufficient qualification to reduce facility self inspections up to once per month without a case bycase review. EPA's proposal included criteria to determine eligibility for inspection reductions up to monthly on a case by case basis. Those criteria included a demonstrated commitment by facility management to sound environmental practices, demonstrations of good management practices over the years ( having a record of sustained compliance with environmental laws and requirements), demonstrated commitment to continued environmental improvement, demonstrated commitment to pubic outreach and performance reporting, the installation of automatic monitoring devices at the facility, and the chemical and physical characteristics of the waste being managed in the unit.

Document #: 0357 The Department continues to oppose allowing decreased inspections for tanks, containers, and containment building including inspections determined on a case by case basis by the regulatory agency. The Department encourages EPA to not change the inspection schedules for tanks, containers, and containment buildings. The Department believes that frequent inspections help prevent releases from waste management units.

EPA states the Agency is reconsidering whether to allow case by case determinations because of the burden it might impose on authorized states. The Department is concerned about the additional administrative burden that case by case determination would cause. Therefore, if EPA pursues allowing reduced inspections frequencies on a case by case basis, the Department encourages EPA to set forth expressly and authoritatively criteria that generators can follow to self implement an inspection frequency without the prior approval of the regulatory agency.

Document #: 0361 EPA has requested comment on decreased inspection frequencies ( but at least monthly inspection) for tanks, containers, and containment buildings, on a case by case basis.

DTSC does not believe that monthly inspections for tanks, containers, and containment buildings are adequate under any circumstance. DTSC supports the option of adjusting the inspection frequency ( up to a weekly basis) based upon compliance history.  118 Response: Today's final rule reduces the inspection frequencies for interim status, permitted, and LQG tanks, and adds language to § § 264/ 265.195 allowing weekly inspections when the secondary containment employs leak detection equipment that notifies facility personnel if a leak occurs. In the absence of an automatic leak detection system, the facility must have workplace practices in place that shall ensure that any leaks will be promptly identified, so as to not violate the provisions of 264.193( c)( 3)) or 265.193( c)( 3) .

The leak detection equipment/ system used must alert facility personnel to the presence of any leak or spill, within 24 hours or the earliest practicable time, in accordance with § 264/ 5.193( c)( 3). Automatic leak detection systems were described in the proposed rule ( 67 FR 2527). However, the existing regulations, which requiring that secondary containment systems be able to detect releases, do not specify the method of leak detection. Some facilities, according to a comments on this rulemaking, use daily visual inspections as a method of leak detection for their above ground tanks. Under the current regulations, without daily visual inspections, automatic detection equipment is the only way to meet the leak detection requirement.

Workplace practices must ensure leaks are promptly identified. Such practices would involve facility personnel who, in the course of their duties, remain alert to potential problems at the workplace so that problem areas are identified and addressed. Whether workplace practices or automatic leak detection systems are employed as a means of detecting leaks or spills, any leaks or spills must be detected within 24 hours, to comply with 264.193( c)( 3) or 265.193( c)( 3).

As stated above, the reduced inspection requirements apply to tank systems. This would include ancillary equipment ( including piping), and for ancillary equipment that does not have secondary containment. It is anticipated that workplace practices would provide for the detection of releases from this equipment.

While permitted, interim status, and LQG tanks are subject to the applicable requirements of 40 CFR Parts 264/ 5, Subpart J, SQG tanks are subject to separate requirements, found in 40 CFR 265.201. Today's rulemaking reduces the self inspection frequencies for SQG tanks, from daily to weekly. The existing required inspections for SQGs are listed below, with the currentlyrequired frequency in parentheses after each item. The existing regulations specify that owners and operators of SQG tanks must inspect, where present: ° Discharge control equipment( e. g., waste feed cutoff systems, by pass systems, and drainage systems) to ensure that it is in good working order ( daily) ; ° Data gathered from monitoring equipment ( e. g., pressure and temperature gauges to ensure that the tank is being operated according to its design ( daily); ° The level of waste in the tank to ensure compliance with 265.201( b)( 3)( daily). ° The construction materials of the tank to detect corrosion or leaking of fixtures or seams ( weekly); and ° The construction materials of, and the area immediately surrounding, discharge confinement structures ( e. g., dikes) to detect erosion or obvious signs of leakage ( e. g., set spots or dead vegetation) ( weekly)  119 The requirements for SQG tanks were finalized on March 24, 1986 ( 51 FR 10146), and with the July 14, 1986 final tank regulations, codified at § 265.201. Discussion in the March 1986 rule relates to how the SQG requirements were developed, as distinct from the requirements for LQG tanks.. The rule states: " Congress anticipated reducing administrative requirements, such as reporting and recordkeeping, as a means to reduce impacts on the 100 1000 kg/ mo generators. Thus, EPA proposed to relieve these generators of some Part 262 standards that are administrative in nature while retaining all existing technical standards. The relief was only provided to generators who accumulate on site for the statutorily prescribed periods, because, given that the amount of waste accumulated would necessarily be limited, the relative risk from releases of such waste would be less than that from the unlimited amounts of waste accumulated by off site facilities," ( 51 FR 10149).

Today's final rule also changes the frequency of all the inspections for SQGs, listed in 40 CFR 265.201, from daily to weekly. We believe that reducing inspection frequencies for SQGs is consistent with the approach for reducing inspection frequencies for other hazardous waste tanks. Because we are reducing the inspection frequencies for interim status, permitted, and LQG tanks, reduced inspection frequencies for SQGs makes sense in terms of how and why both types of generators were originally regulated.

264.304 265.303 Landfills  Action Leakage Rate ( ALR) Notification: General Proposal: An unnecessary requirement as long as the procedures in the response action plan are followed. Final Rule: The Agency is not going forward with this change.

Document #: 0216 Maine disagrees that submission of Response Action Plans and notifications when flow rates exceed action leakage rate ( ALR) for any sumps within 7 days should be eliminated. These are not unnecessary requirements and of course we would expect all actions should be taken to stop leaks. Regulatory authorities should continue to be notified for the reasons stated previously. Written assessment of leakage determinations should continue to be submitted to the agency as well as follow up reports.

Submit information each month the Action Leakage Rate ( ALR) is exceeded.

Document #: 0286 We believe a provision to include a notification which simply indicates the leak rate has exceeded the action level is not burdensome. A notification as simple as an electronic mail would be sufficient. This allows the regulating agency to first make this knowledge available to the public and allows us the ability to actively investigate if we choose to do so. By eliminating the simplest of notifications, we are required to adopt a hit or miss system in determining if these types of  120 facilities have had these types of issues. Additionally, by eliminating these requirements, record keeping requirements documenting these situations are nebulous at best. There is no direct provision which requires all of the actions taken to be documented. We believe this should be added to these rules.

Response: The final rule eliminates the requirement to submit to the Regional Administrator, response action plans for surface impoundments, waste piles, and landfills. Response action plans document what a facility must do if the action leakage rate has been exceeded. The plan must still be prepared and retained on site. If the action leakage rate is exceeded, then reports must be submitted, as the current regulations require.

The final rule will retain the notice requirement of 264.223( b)( 1), and will eliminate the submission only of the response action plan. The response action plan must be developed and retained on site. As a reminder, the requirements for existing notifications in § § 265.223, 265.259, and 265.303 are not being changed; only the requirement to submit a response action plan is being eliminated..

Cost Benefit Analysis, General Document #: 0004 While we are mainly interested in this docket to the extent it reduces burden associated with specific regulatory requirements, we nevertheless acknowledge that the way burden is counted can make a difference. For example, in a separate proceeding, we discovered that EPA was adding to its Uniform Manifest burden estimate hours spent complying with requirements of the US Department of Transportation ( DOT). At the same time, DOT was also accounting for these same burden hours. However, we disagree that EPA need only count burden for reading regulations at new facilities. Facilities do not comply with requirements, people do. Each time an employee with regulatory responsibility changes, ostensibly there would be reason to reread the regulations to ensure that compliance is on track. Also, each item the regulations are changed, irrespective of whether a facility is " new" or " old", a reading of the regulations would be necessary to determine compliance.