Document #: 0134 DOE supports modifying the required scope of the annual enhanced groundwater compliance monitoring event mandated by the existing 40 CFR 264.99( g). This change will not only eliminate unnecessary records and reports, but will also reduce the amount of wastewater generated from purging of monitoring well s during sampling events. In initially establishing RCRA groundwater monitoring requirements in 1982, EPA believed that past waste disposal practices were not sufficiently controlled to allow reliance on knowledge of a site as the sole indicator of constituents of concern for purposes of groundwater monitoring. As a consequence, analysis of groundwater samples for all Appendix VIII constituents ( later changed to Appendix IX) was required annually to check for new contaminants. DOE concurs that insufficient knowledge of past waste disposal  294 practices may have been a reasonable concern at a time when pre RCRA land disposal units were first becoming subject to RCRA authority, because waste disposal records for units whose operation predated RCRA may indeed have been incomplete. Currently, however, RCRA Subtitle C requires that operating land disposal units meet stringent design requirements and maintain robust records pertaining to waste disposal. As a result, identification of specific Appendix IX constituents having potential to migrate to groundwater at a particular unit should be fairly straightforward undertaking. Therefore, DOE agrees that it should no longer be necessary to conduct annual monitoring for all Appendix IX constituents, if the responsible regulatory agency determines that monitoring for a subset of such constituents would be protective of human health and the environment. Notwithstanding, DOE believes that certain clarifying changes to the proposed test for 40 CFR 264.99( g) would be helpful( see Specific Comments on Proposed Regulatory Text, item 7).

Response: As stated in the preamble of today's final rule, Appendix IX analyses are costly at large facilities, and analyzing all wells does not necessarily contribute to protection of human health and the environment. This is especially the case if there are multiple units and wells at a facility, and only one unit shows signs of contamination. EPA is, therefore, finalizing changes to § 264.99( f) and ( g) that allows, among other things, sampling of a site specific subset of constituents from the Appendix IX list, and the regulatory authority to specify the frequencies for collecting samples and conduction statistical tests. The Agency acknowledges the commenter's concerns, but disagrees that proposed rule language needs to be changed.

Document #: 0169 Prepare and submit notification of new constituent concentrations: Modify number of wells, samples, and constituents will be determined on a case by case basis, instead of for all wells. This idea came from state experts, and is based on their field experience that sampling all wells can be unnecessary.

We agree with this proposal.

Response: As stated in the preamble of today's final rule, Appendix IX analyses are costly at large facilities, and analyzing all wells does not necessarily contribute to protection of human health and the environment. This is especially the case if there are multiple units and wells at a facility, and only one unit shows signs of contamination. EPA is, therefore, finalizing changes to § 264.99( f) and ( g) that allows, among other things, sampling of a site specific subset of constituents from the Appendix IX list, and the regulatory authority to specify the frequencies for collecting samples and conduction statistical tests.

Document #: 0181 The new provisions allowing a case by case determination as to number of wells, samples, and constituents is supported by IDEQ. It allows the regulator and regulated facilities flexibility in use of resources to address specific, known concerns.

Response: The Agency acknowledges these comments and appreciates the commenter's support  295 for today's changes to the compliance monitoring requirements of § 264.99( f) and ( g).

Document #: 0197 The State of Alabama supports the agency's proposal to allow sampling for a reduced subset of Appendix IX constituents at facilities conducting compliance monitoring. We have, for many years, observed that sampling for the complete list of Appendix IX parameters at all but a few of our hazardous waste management facilities is unnecessary.

Response: The Agency acknowledges this comment and appreciates the commenter's support for today's changes to the compliance monitoring requirements of § 264.99( f) and ( g).

Document #: 0213 We support this proposal as long as facilities work with agencies to determine number of wells, samples, and constituents.

Response: The Agency acknowledges this comment and notes that even though the provisions are self implementing, it is in the facility's best interest to work with the regulatory community as it develops and conducts compliance monitoring.

Document #: 0241 The proposed rule states that the number of wells and samples will be " worked out" on a case bycase basis with the Regional Administrator. It also states that the specific constituents from Appendix IX of part 264 to be analyzed will also be " worked out" on a case by case basis with the Regional Administrator. We have no objection to the number of wells, samples and analytes being determined on a case by case basis. However, the term " worked out" is inappropriate. While requirements for wells, samples and analytes should be negotiated between the Agency and the facility, the ultimate authority must be with the Agency. Therefore, the proposed rule should be revised to state that wells, samples and analytes will be determined by the Regional Administrator on a case by case basis.

Response: As finalized in today's rule, § 264.98( g)( 2) specifies that the Regional Administrator may allow, on a discretionary basis, sampling for a site specific subset of Appendix IX constituents during Detection Monitoring, and under § 264.98( d) specify the frequencies for collecting samples and conducting statistical tests. Similarly, the Regional administrator also specifies the frequencies for collecting samples and conducting statistical tests during Compliance Monitoring under § 264.99( f) and ( g). EPA agrees with the commenter that the Regional Administrator will determine on a case by case basis the number of wells, samples, and analytes, and today's finalized rule language reflects this fact.

Document #: 0320 EPA proposes to change the reporting frequency from semi annually to annually. We support this change. We also support EPA's proposed revision to 40 CFR 264.99( g), which would allow facilities to perform annual Appendix IX analysis on a subset of monitoring wells rather than all compliance monitoring wells.  296 Response: The Agency acknowledges these comments, and appreciates the commenter's support for today's finalized changes to § § 264.99( f) and ( g).

Document #: 0326 EPA proposes to change the reporting frequency from semi annually to annually. We support this change. We also support EPA's proposed revision to 40 CFR 264.99( g), which would allow facilities to perform annual Appendix IX analysis on a subset of monitoring wells rather than all compliance monitoring wells.

Response: The Agency acknowledges these comments, and appreciates the commenter's support for today's finalized changes to § § 264.99( f) and ( g).

Document #: 0349 ADEQ is concerned that changing to annual reporting in lieu of semi annual would allow a potential problem to go on for some period of time before it is discovered. With regard to the requirements of 40 CFR, Section 264.99 ( g) and EPA's proposal of allowing, on a case by case basis, the sampling a subset of wells instead of all the wells, ADEQ asks if this would be subject to a variance granted by EPA or the authorized State? What guidelines, if any, is EPA proposing to ensure that the appropriate monitoring well subset is being sampled in order to make an appropriate and adequate evaluation of groundwater? ADEQ requests that EPA provide answers to the above questions and allow for additional comments on its response prior to finalizing the proposals of this section.

Response: The Agency acknowledges the commenter's concerns regarding the disadvantages to annual reporting, but believes that oversight authorities can identify potential problems using annual monitoring. Nevertheless, EPA notes that there is nothing in today's rule that prohibits States from being more stringent in their reporting requirements. Implementation of today's rule is the responsibility of the authorized regulatory authority.

Document #: 0350 U. S. EPA proposes to change 40 CFR 264.99( g) from requiring annual Appendix IX sampling of all ground water monitoring wells to allowing, on a case by case basis, sampling of only a subset of the wells. We support this change because we believe there are instances where the area of potential ground water contamination is sufficiently know and it is not necessary to sample wells outside of the are for Appendix IX constituents. A further benefit is that the rule retains the authority to require sampling of all wells when it is warranted.

Response: The Agency acknowledges these comments, and appreciates the commenter's support for today's finalized changes to § § 264.99( f) and ( g).

Although U. S. EPA has not proposed it, we also would support changing the rule to allow, on a case by case basis, annual sampling of a sub set of Appendix IX constituents. This is because we believe there are instances where the waste stream has been defined to the extent that sampling for some Appendix IX constituents is not necessary.  297 Document #: 0361 EPA proposes to provide greater flexibility for facilities operating under a compliance monitoring program by allowing, on a case by case basis, sampling of a subset of wells rather than having facilities conduct an annual Appendix IX analysis of all monitoring wells as required by 40 Code of Federal Regulations 264.99( g).

DTSC Comment: DTSC concurs with the proposed change. Based on our experience, this discretion will eliminate unnecessary costs to the facility, eliminate sampling when it is not technically appropriate, and decrease the conflict that frequently arises when the regulating agency enforces the current requirement. Facilities that have been monitored for many years will welcome this discretion. DTSC also strongly suggests that flexibility regarding the specific analyses required by Appendix IX be incorporated into the regulations. If a site has been well characterized and monitored, annual analysis for the entire suite of contaminants contained in Appendix IX will provide little benefit. The regulations should also allow for a subset of the Appendix IX parameters be conducted as appropriate, with concurrence of the Regional Administrator.

Response: The Agency concurs with the commenter's assertions and appreciates the support for today's changes to § 264.99.

264.99( h)( 1) Compliance Monitoring ( Permitted Facilities)  Prepare and submit notification of exceeded concentration limits: Proposed Action: Eliminate  this has been identified through our review of the regulations as a duplicative requirement, since this information is later included as part of a permit modification that must be submitted under 264.99( h)( 2).

Document #: 0131 The notification required in 264.99( h)( 1) allows the regulating authority to be aware of any statistically significant evidence of contamination in a timely fashion ( seven days). The notification is important because a statistically significant increase of contamination would indicate a release from the regulated unit. The regulatory authority must have the ability to evaluate the potential contamination, determine whether immediate action must be taken to protect human health or the environment, and inform any affected persons.

Without 264.99( h)( 1), the regulating authority may not become aware of the potential contamination until receiving the monitoring report or in 90  180 days per the requirements of 264.99( h)( 2). The current notification would be a letter. The Department believes that the notification is an important part of oversight and a facility's compliance with this requirement is not burdensome.

Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.  298 Document #: 0169 Prepare and submit notification of exceeded concentration limits: Eliminate this has been identified through our review of the regulations as a duplicative requirement, since this information is later included as part of a permit modification that must be submitted under 264.99( h)( 2).

We do not agree with the proposal to remove this requirement. This is not a duplicative requirement. With notification the regulatory agency may want to continue to monitor for additional constituents to determine if other factors may have influenced the results before calling in a permit modification. This requirement can also signal a need to test nearby residential drinking water and point to a serious problem that needs immediate attention. This would unnecessarily delay appropriate response to a release.

Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

Document #: 0181 The facility would not have to notify the agency for a minimum of 90 days or maximum of 180 days. This time period is too long, the requirements for seven days allows for the agency to prepare for the work load and provide information to the public.

Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

Document #: 0208 FDEP objects to the proposal to eliminate existing rules requiring immediate notification to the Agency following the determination of the existence of contamination or notification requirements that the facility intends to demonstrate that the contamination was caused by another source or that the apparent non compliance of standards was due to error in sampling, analysis or evaluation. First of all, the Department does not believe these requirements are particularly onerous to facilities or to the regulators. Secondly, it has been the Department's experience that these demonstrations are actually difficult to make and require regulatory approval. Finally, the Department contends that such documentation is an important part of the public record and that eliminating requirements for such reportage would make it more difficult for the public to be informed about the status of a given facility.

Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

Document #: 0213 Washington State does not support the elimination of this requirement. This is an important  299 notification ` trigger' that lets the Agency know that concentration limits were exceeded, and also documents and starts the 180 day clock submittal of the permit modification under 264.99( h)( 2). This notice also performs a " head's up" function that helps identify inspection priorities and resource needs. The submittal of the notification of exceeded concentration limits provides Ecology with an opportunity work with the facility on the content of the sequent permit modification to make sure that it is adequate.

Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

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

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

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

Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

Document #: 0290 The proposed rules eliminate the requirement for submittal of notification of exceede concentration limits and the notification of intent to make an demonstration for alternate sources. Although we do maintain a record which includes the date, method of notification, and who submitted it, the specific information contained in each submittal is not recorded in a database. We do maintain a database that includes information about each confirmed release to ground water. This information is maintained in a State wide database. Without these notifications, we would not be  300 aware of the ground water contamination until on site investigations are conducted or receptors are impacted. Resource limitations prevent conducting compliance monitoring evaluations ( CMEs) at each permittee each year, therefore, it could be several years before the contamination is known. Additionally, site specific parameters in association with the facility may dictate that more immediate actions be taken to protect human health and the environment ( example: if there are drinking water wells down gradient, immediate actions may be necessary to ensure they have not been affected). With out notification, if the permit modification submittal is not timely, ultimately delay of corrective action could be much more significant, as the agency will not have an opportunity to intervene. Also, as stated in our original comments, our experience has shown that alternate source demonstrations may be poorly documented or unjustified and require scrutiny by the regulatory agencies. This information is also an important public record and must be readily available for the public to review. Maintaining this information on site will eliminate the availability of this information to the public in a timely fashion.

Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1) remains an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

264.99( i)( 1), ( 2) Compliance Monitoring ( Permitted Facilities)  Prepare and submit notification of intent to make a demonstration: Proposed Action: Eliminate  this has been identified through our review of the regulations as a duplicative requirement, since the Regional Administrator will get the same information through the 264.99( i)( 3) permit modification.

Document #: 0131 EPA proposes to delete the seven day notification to the regulating authority when a facility decides to make a demonstration that the contamination is caused by a source other than the regulated unit. EPA also proposes to delete the requirements for a facility to submit a written report within 90 days to the regulating authority.

Without 264.99( i)( 1) and( 2), the regulating authority would only receive notification ( when a facility determined a source other than the regulated unit caused the contamination) upon receiving an application for a permit modification if " any appropriate changes" were required or submittal of the monitoring report. A permit modification may not always be appropriate, for example, when the statistically significant increase is caused by sampling and/ or analytical errors. A facility could comply with 264.99( i)( 1) with a short letter. The Department does not believe submittal of a letter is burdensome.

The information required to be submitted in 264.99( i)( 2) is important because the regulating authority should evaluate whether they agree with a facility's explanation for a source other than a regulated unit causing a statistically significant increase. 264.99( i)( 2) provides the requirement that this information be submitted in a timely fashion. 264.99( i)( 1) and ( 2) should not be deleted.  301 Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1), and § § 264.99( i)( 1) and ( 2) remain an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

Document #: 0169 Prepare and submit notification of intent to make a demonstration: Eliminate this has been identified through our review of the regulations as a duplicative requirement, since the Regional Administrator will get the same information through the 264.99( i)( 3) permit modification.

We agree with this proposal.

Response: In today's final rule § 264.99( h)( 1), and § § 264.99( i)( 1) and ( 2) remain an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

Document #: 0213 We do not agree with the elimination of this notification. The submittal of the notification of intent to make a demonstration provides Ecology with an opportunity work with the facility on the content of the subsequent permit modification to make sure that it is adequate.

Response: The Agency acknowledges the commenter's concerns. In today's final rule § 264.99( h)( 1), and § § 264.99( i)( 1) and ( 2) remain an important part of compliance. Stakeholders persuaded us of the importance of these notifications for alerting States of an environmental problem.

264.100( g) Corrective Action Report Proposed Action: Modify   Require an annual instead of semi annual corrective action report.

Preamble Language:

We Are Changing the Requirement to an Annual Report for the Corrective Action Report Detailing the Effectiveness of the Corrective Action Program.

Section 264.100( g) requires the owner or operator of a permitted facility to report in writing to the Regional Administrator on the effectivenesss of the corrective annual program. These reports must be submitted semi annually. We are now requiring an annual report instead of semi annual report. While this change was not in the proposed rule, it was identified in the comments received and was discussed in the October 29, 2003 NODA ( 68 FR 61668). It is a change that conforms to the change we are making to § 264.113( e)( 5) and was supported by a majority of the commenters.  302 Document #: 0197 We also support the agency's proposal to allow facilities to report on the effectiveness of corrective action on an annual basis instead of the current semi annual basis. To effect this change would require modifications to the language found at 40 CFR 264.100( g). However, no such modifications to this regulation were discussed in the preamble.

Response: The Agency acknowledges this comment. In today's Final Rule under § 264.100( g) we are now requiring an annual report instead of semi annual report. While this change was not in the proposed rule, it was identified in the comments received and was discussed in the October 2003 NODA. It is a change that conforms to the change we are making to 264.113( e)( 5) and was supported by a majority of the commenters.

Document #: 0350 U. S. EPA proposes to change 40 CFR 264.100( g) to allow more flexibility in the time frame within which the facility owner/ operator is required to resample if a new constituent on the Appendix IX list shows up in the ground water. We support the change away from a mandated one month to a different time frame if approved by the overseeing agency. We believe that the change is reasonable, provided that agencies do not implement in a way that allows the time frame to extend to the next semi annual sampling event.

Response: In today's rule § 264.100( g) is modified to allow annual reporting to the Regional Administrator on the effectiveness of the corrective action program.

Document #: 0348 The semi annual reporting of effectiveness of corrective action should be retained. The agency needs to be kept informed to be able to respond to changes in the environmental situation. Annual Appendix IX analysis should be maintained at all wells. The scope and frequency of sampling should not be changed. Greater substantive flexibility should not be granted in a regulation meant to reduce paperwork.

Response: The Agency acknowledges this comment, but disagrees with the commenter that greater substantive flexibility should not be granted. In today's Final Rule under § 264.100( g) we are now requiring an annual report instead of semi annual report on the effectiveness of corrective action. While this change was not in the proposed rule, it was identified in the comments received and was discussed in the October 2003 NODA. It is a change that conforms to the change we are making to 264.113( e)( 5) and was supported by a majority of the commenters.

264.113 Document #: 0216 The proposal recommends modifying the submission schedule of this report to be submitted  303 annually, instead of semi annually. We would prefer to see this modified such that on a case bycase basis an annual submission may be allowed.

Response: This change was supported by a majority of the commenters. The Agency acknowledges this comment but disagrees with the commenter's proposed modification that these reports be submitted annually on a case by case basis. Ground water cleanup is generally a multi year effort and a relaxation of the semi annual reporting requirement would not jeopardize protection of human health and the environment. In fact, burden reduction savings would not be achieved by extending this abbreviated reporting schedule only on a case by case basis.

Document #: 0240 The proposed change to submit the corrective action report annually, instead of semi annually makes and assumption that annual reporting is appropriate at all facilities during all stages of corrective action. DTSC believes that this proposal may not be appropriate for all facilities. However, it may be sensible to require the submittal of corrective action reports on an annual basis rather than a semi annual basis on a case by case basis for facilities identified at the Regional Administrator's or the State regulatory agency's discretion. DTSC recommends maintaining the requirement that all the groundwater data compiled within the report be retained.

To provide flexibility on submittal of the report in question, the following language is proposed for sections 264.113( e)( 5) and 265.113( e)( 5) to allow the Regional Administrator to make a case bycase determination of an appropriate submittal frequency:

Section 265.113( e)( 5). During the period of corrective action, the owner or operator shall provide an annual reports to the Regional Administrator describing the progress of the corrective action program. The frequency for submitting these reports shall be approved by the Regional Administrator. The reports shall also include all ground water monitoring data, and an evaluateion of the effect of the continued receipt of non hazardous wastes on the corrective action.

Response: This change was supported by a majority of the commenters. The Agency acknowledges this comment but disagrees with the commenter's proposed modification that these reports be submitted annually on a case by case basis. Ground water cleanup is generally a multi year effort and a relaxation of the semi annual reporting requirement would not jeopardize protection of human health and the environment. In fact, burden reduction savings would not be achieved by extending this abbreviated reporting schedule only on a case by case basis. With regard to the commenters proposed regulatory language the Agency is requiring in the regulatory language that " during the period of corrective action, the owner or operator shall provide annual reports to the Regional Administrator describing the progress of the corrective action program, compile all ground water monitoring data, and evaluate the effect of the continued receipt of non hazardous wastes on the effectiveness of the corrective action.

264.113( e) Closure ( Permitted Facilities)  Submit semi annual corrective action report:  304 Document #: 0042 Corrective Action Report  Prepare and submit corrective action report for closure ( two times annually).

Response: The Agency acknowledges and appreciates this comment.

264.113( e)( 5) Closure ( Permitted Facilities)  Submit semi annual corrective action report: Proposed Action. Modify  report only needs to be submitted annually, instead of semiannually According to staff experts at the Agency, annual reports will be sufficient to ensure protection of human health and the environment. Final Action: The report only needs to be submitted annually.

Document #: 0134 ( 264.113( e)( 5)/ 264.100( g)) DOE supports changing the frequency of reports on the effectiveness of groundwater corrective action from semi annual to annual. As noted in the preamble of the NPRM, groundwater monitoring and cleanup is almost always a multi year or even multi decade effort, and DOE agrees that annual reporting should provide adequate information to ensure compliance. However, DOE notes that the preamble discussion on page 2530 does not specify the regulatory sections to which the proposed reporting modifications would apply. There are three existing regulatory sections that require semi annual reports describing the progress of corrective action.

( 1) Existing § 264.100( g) applies to permitted regulated units ( i. e., surface impoundments, waste piles, land treatment units, and landfills that have received hazardous wastes after January 26, 1982) required to establish a corrective action program pursuant to 40 CFR 264, Subpart F. ( 2) Existing § 264.113( e)( 5) applies to permitted hazardous waste surface impoundments receiving only non hazardous wastes and not in compliance with statutory liner and leachate collection system requirements. ( 3) Existing § 265.113( e)( 5) applies to interim status hazardous waste surface impoundments receiving only non hazardous wastes and not in compliance with statutory liner and leachate collection system requirements.

DOE believes the reason stated in the preamble for reducing the required frequency of corrective action progress reporting is equally valid with respect tot he circumstances addressed by all three of these existing regulatory sections. Nevertheless, the NPRM proposes regulatory language that would reduce the frequency of corrective action progress reporting just for permitted and interim status hazardous waste surface impoundments receiving only non hazardous wastes and not in compliance with statutory liner and leachate collection system requirements [ see proposed § § 264.113( e)( 5) ( p. 2535) and 265.113( e)( 5)( p. 2540)]. The NPRM does not propose regulatory language that would reduce the frequency of progress reporting for corrective action at permitted regulated units required to establish a corrective action program pursuant to 40 CFR, Subpart F. Therefore, DOE requests that EPA consider also modifying § 264.100( g) in the final rule so that  305 progress reporting for corrective action at permitted regulated units would be required annually rather than semi annually.

Response: This change was supported by a majority of the commenters. The Agency acknowledges this comment but disagrees with the commenter's proposed modification that these reports be submitted annually on a case by case basis. Ground water cleanup is generally a multi year effort and a relaxation of the semi annual reporting requirement would not jeopardize protection of human health and the environment. In fact, burden reduction savings would not be achieved by extending this abbreviated reporting schedule only on a case by case basis.

With regard to the commenters proposed regulatory language the Agency is requiring in the regulatory language that " during the period of corrective action, the owner or operator shall provide annual reports to the Regional Administrator describing the progress of the corrective action program, compile all ground water monitoring data, and evaluate the effect of the continued receipt of non hazardous wastes on the effectiveness of the corrective action.

The Agency acknowledges this last comment. In today's Final Rule under § 264.100( g) we are now requiring an annual report instead of semi annual report. While this change was not in the proposed rule, it was identified in the comments received and was discussed in the October 2003 NODA. It is a change that conforms to the change we are making to 264.113( e)( 5) and was supported by a majority of the commenters.

Document #: 0157 EPA proposes to allow owners/ operators of RCRA facilities to report on the effectiveness of groundwater monitoring on an annual basis rather than the current semi annual basis required by 40 CFR § 264.113( e)( 5) & 265.113( e)( 5). Id. at 2530. EPA appropriately reasons that the " proposed change makes a sense because monitoring and cleaning up groundwater is almost always a multi year or even multi decade effort. Semi annual reporting of data is not necessary for ensuring protection of human health and the environment." Id.

On a related issue, USWAG supports EPA's proposals to: ( 1) allow groundwater monitoring plans and reports to be kept at a facility; and ( 2) allow, on a case by case basis, that the 40 CFR § 264.99( g) requirement that facilities engaged in compliance monitoring conduct an annual Appendix IX analysis of all monitoring wells be revised to allow sampling for a subset of the wells and for a subset of the Appendix IX constituents. Id. EPA correctly states that " Appendix IX analyses are costly... and analyzing all wells does not necessarily contribute to protection of human health and the environment." Id.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0169 We agree with this proposal.

Response: The Agency acknowledges and appreciates this comment.  306 Document #: 0208 FDEP believes that the proposed rule should read " During the period of corrective action, the owner or operator shall provide, on at least an annual basis, a report to the Regional Administrator describing the progress of corrective action...". It has been FDEP's experience that, at least in the early stages of corrective action, more frequent reportage than annually is necessary in order to ensure that necessary charges to the corrective action system's efficiency be made as soon as possible. Once the corrective action system's effectiveness has been demonstrated, it might be appropriate to decrease the reportage requirements to an annual basis.

Response: The Agency disagrees with the comment that the phrase " at least" should be inserted into the regulatory text. We see no need to require this language and feel that it would result in a situation resembling a case by case exclusion rather than an overall change in the requirement, As previously noted, we believe that this would result in additional burden to the State regulators without any addition protections.

Document #: 0211 TNRCC believes that the proposed revisions to 40 CFR 264.113( e)( 5) may be acceptable if the other corrective action requirements have been addressed according to 40 CFR 264.113( e) and submitted annually as proposed instead of semi annually as required in the existing rules.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0213 We do not support the elimination of this report. The submittal of a semi annual report provides Ecology with the opportunity to address and correct with the facility inadequacies in the groundwater monitoring program before additional sampling is conducted.

Response: The Agency disagrees with this comment. Ground water monitoring is generally a multi year effort and thus a annual report which includes all monitoring data would be sufficient to identify an inadequacies in the ground water monitoring program.

Document #: 0218 Modifying the requirement for semi annual reports on corrective actions, to allow annual reports.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0352 ( 264.113( e)( 5)/ 264.100( g)) EPA is proposing annual instead of semi annual reporting by the facility on the effectiveness of corrective action addressing ground water contamination. Changing 40 CFR § 264.100( g) to reflect this reduction in reporting previously proposed at 40 CFR 264.113( e)( 5) was also suggested. LANL supports these changes and agrees that, because such corrective action can often continue for several years, semi annual reporting is not necessary to ensure protection of human health and the environment.  307 EPA is also proposing annual Appendix IX analysis during compliance monitoring for a subset of wells, rather than for all wells. LANL supports this change and agrees that such analysis for all wells may not be appropriate if Appendix IX contaminants would not likely be found at a particular site or well, may not be a good use of resources, and may not necessarily contribute to the protection of human health and the environment.

Response: The Agency acknowledges and appreciates this comment.

264.115  Certification of Closure: Proposed Action: We are taking comment on ( but we are not proposing in today's rule) whether a Certified Hazardous Materials Manager is capable of performing this certification. Final Action: We are allowing a qualified Professional Engineer to make the certification. in 264.115.

Document #: 0181 The CHMM must still be an independent registered professional. Are there enough CHMMs in the independent filed to adequately address the need? Who and how is the training for a CHMM determined to be sufficient? Most CHMMs are not qualified to conduct certification of integrity of tank systems, structural engineering of buildings, ponds, dikes, and berms.

Document #: 0208 While EPA is not formally proposing changes to 40 CFR Part 264.115 at this time, FDEP is responding to EPA's request for comments on a suggestion that CHMMs be allowed to certify completion of closure for hazardous waste management areas. For the reasons stated in Comment 7, FDEP would be opposed to such a proposal. However, FDEP does suggest that requirements for appropriate certification by Professional Geologists be included in this rule. Geologists have an important role in demonstrating the completion of closure activities, especially for clean closure, since those activities may include groundwater sampling, groundwater remediation activities and the like.

Document #: 0211 EPA is proposing to revise the rules in the future regarding whether a Certified Hazardous Materials Manager ( CHMM) can certify the closure certification report. TNRCC notes that existing 40 CFR 264.115 rules require an independent registered professional engineer to certify that the hazardous waste management unit or the facility have been closed according to the specifications in the approved closure plan. The EPA is proposing and taking comments on whether a CHMM is capable of performing closure certifications. A review of the requirements for certification as a CHMM finds that the candidate is not required to possess a technical degree of any sort. However, the individuals applying for a CHMM certification without a degree must have at least 11 years of experience in a field related to hazardous materials management. CHMM candidates holding a bachelor's degree must also possess at least 7 years experience in a field related to hazardous waste management. Candidates holding a Master's degree or higher in a related field, must also have a minimum of 3 years of practical experience. In all cases, the  308 individual must pass a professional multiple choice examination developed and administered by the Hazardous Materials Management Institute, a private organization. However, the professional engineering ( P. E.) requirements are more stringent and closely administered by individual state licensing boards which are subject to state regulations. In order for an individual to obtain a P. E. license, the individual ( in most cases) must have a BS degree in engineering and requisite experience is a two step process: first, the candidate is required to take and pass an exam covering the fundamentals of engineering; next he/ she must take a comprehensive engineering exam in the respective field for which the license is sought. The registration, exams, and license requirements for P. E. s are administered by the state engineering board. The brief review of the CHMM requirements, indicates that the CHMM standards are not as comprehensive or as stringent as those required for a P. E. In addition, P. E. s are required to comply with state regulations that establish standards for such criteria as education, experience, professional conduct and ethics, liability and insurance, etc.; there are no such established standards for the CHMM. Also, a licensed P. E. is only allowed to practice in the field of engineering in which he has the necessary education or experience; it is unclear if such restrictions regulate the areas of engineering in which a CHMM can practice. Therefore, unless CHMM standards are as stringent as the P. E. requirements and are governed by some state regulatory criteria, it is not advisable to allow CHMMs to authorize any of the various certification requirements. In addition, this proposal issues, TNRCC strongly recommends that EPA not allow CHMMs to authorize any engineering certifications, unless he/ she is also a qualified independent professional engineer licensed to practice in the individual state.

Document #: 0213 We could agree with this proposed modification for closures that do not involve engineering.. Some closures are fairly simple; however, others may involve more complex engineering design and construction issues. In some cases closures and post closure work requires onsite verification of work in accordance with engineering plans. Post closures will almost always require design and construction of engineered liners and caps that must meet strict RCRA specifications. These plans may also involve structural and design analyses as well as the review of complex calculations. The qualifications of a certified hazardous waste materials manager may not in all instances be adequate for complex closure and post closure certification.

Document #: 0218 The DEQ OPPOSES modifying the certification requirements for closure, to allow a Certified Hazardous Materials Manager to make a certification of closure for a landfill, surface impoundment, or waste pile unit. Such closures generally involve geotechnical determinations, such as slope stability, erosion considerations, soils compaction, and others, that can typically be provided only by properly trained, registered professional engineers. In addition, closure of land disposal units with waste left in place can affect public safety as well as health and the environment, and the engineering profession has long been recognized as the appropriate group to make determinations in this area.

Response to Comments: The Agency acknowledges and appreciate the comments received on 264.115, we agree with the commenters that CHMMs are not qualified to certify the type of  309 certification that are required under this Part. We are convinced that because of State licensing protections that the term independent can be removed from the certification requriements. Therefore as a result of this rule, the 264.115 certiification can be done by a qualified Professional Engineer.

264.120 Certification of Completion of Post Closure Care: Proposed Action: Modify  certification can be by a Certified Hazardous Materials Manager, who will have sufficient education and skill to make this certification. Final Action: We have decided not to allow a Certified Hazardous Materials Manager to make these certifications.

Document #: 0181 The CHMM must still be an independent registered professional. Who and how is the training for a CHMM determined to be sufficient? Most CHMMs are not qualified to conduct certification of integrity of tank systems, structural engineering of buildings, ponds, dikes, and berms.

Document #: 0213 We do not agree with this modification. Some closures are fairly simple; however, others may involve more complex engineering design and construction issues. In come cases closures and postclosure work requires onsite verification of work in accordance with engineering plans. Postclosures will almost always require design and construction of engineered liners and caps that must meet strict RCRA specifications. These plans may also involve structural and design analyses as well as the review of complex calculations. The qualifications of a certified hazardous materials manager may not in all instances be adequate for complex closure and post closure certification.

Document #: 0218 Modify to also allow certification of completion of post closure care by a properly trained Certified Hazardous Materials Manager, in addition to a registered professional engineer.

Response to All Comments: The Agency has decided not to pursue this change in the regulatory requirement. The reader is referred to the preamble discussion.

264.174/ 265.174 Containers  Inspection frequency: Proposed Action: Allow self inspection frequencies to be changed, on a case by case basis. Based on comments from states and the regulated community, we want to provide flexibility in inspections for well performing facilities. Final Action: Only facilities in the Performance Track Program may apply for reductions in their self inspection frequencies.

Document #: 0134 ( Error: 264.170 & 265.170) DOE supports the proposed allowance for decreased inspection frequencies on a case by case basis for containers, containment buildings and tanks. DOE believes this approach would provide facilities with incentives for establishing more protective designs and environmental management  310 systems and compliance practices in order to obtain regulatory relief in the form of decreased inspection frequencies. DOE suggests, however, that in the final rule the preamble discussion cite the correct regulatory sections applicable to inspections of containers, containment buildings, and tanks, which are the following:

° Containers: 40 CFR § 264.171 and § 265.174 ° Containment Buildings: 40 CFR § 264.1101( c)( 4) and 265.1101( c)( 4) ° Tanks: 40 CFR § 264.195( b) and § 265.195( a)

The NPRM preamble ( p. 2527, col. 1) incorrectly cites 40 CFR § 264.170 and § 265.170 for containers, 40 CFR § 264.1100 and § 265.1100 for containment buildings, and 40 CFR § 264.190 and § 265.190 for tanks.

Response: The Agency is not pursuing this proposed change in the final rule, commenters persuasively argued that reduced inspection on a case by case basis would result in an overwhelming burden to state regulatory agencies. Only Performance Track facilities can apply for a reduction their inspection frequency.

The Agency acknowledges the errors in the regulatory citations and thanks the commenter.

Document #: 0038 The EPA should clarify that self inspection is not required when designated 90 day storage sites are temporarily not being used to store hazardous waste.

Discussion: Current regulations do not clearly indicate that self inspection requirements do not apply in storage areas where hazardous wastes are not present. At smaller facilities such as Reserve Centers or deployed Marine Corps units, 90 day storage areas may not be used for several months. The current regulatory wording could be interpreted to require that areas where containers are typically stored must be inspected at least weekly.

Recommendation. The DoD recommends that the EPA amend container storage self inspection requirements at 40 CFR 264/ 265.174 to indicate that weekly inspections are not required at 90 day storage areas when hazardous wastes are not present.

References. 40 CFR 262.34( a)( 1)( i) and 40 CFR 264/ 265, Subpart I.

Response: The Agency is not pursuing this proposed change in the final rule. Only Performance Track facilities can apply to reduce their inspection frequency.

Document #: 0144 Although we agree that inspection frequencies could be relaxed, in particular for permitted units, and still maintain adequate protection of human health and the environment, we do not agree with the proposal to allow, on a case by case basis, decreased inspection frequencies.  311 We agree that inspection frequencies could be adjusted, however, we STRONGLY oppose the proposal to allow decreased inspection frequencies that must be reviewed on a case by case basis. This would significantly increase the workload of State regulatory authorities and would result in inconsistent standards not only from State to State but from facility to facility.

Response: The Agency is not pursuing this proposed change in the final rule based on the overwhelming burden that case by case extension would create on state regulatory agency. Only Performance Track facilities can apply to reduce their inspection frequency.

Document #: 0165 Currently, all storage areas for containers must inspected at least weekly. In certain situations, however, container storage is sufficiently secure that less frequent self inspections are appropriate with no loss of environmental protection. Containers holding hazardous wastes must be in good condition ( without apparent structural defects), and made or lined with material that is compatible with the waste. See § § 264.171 and 264.172. The storage area must have a secondary containment system to capture spills or leaks, and any leakage must be removed from sumps or collection areas in as timely a manner as necessary to prevent overflow. See § 264.175. Given these safeguards, the facility and regulatory authorities should have flexibility to allow the inspection frequency to be established on a case by case basis ( but no less frequent than monthly), as proposed in revised § 264.174.

The proposed § 264.741 would further stipulate, however, that " Director decisions about less frequent inspections will be based on an evaluation of the compliance record of a facility." 67 Fed. Reg. 2535 col. 3. The preamble indicates that an even broader range of factors, some not even related to the facility's compliance record, would be considered ( e. g., " demonstrated commitment to public outreach"). 67 Fed. Reg. 2527, col. 2. While we understand EPA's intent to encourage good compliance, we believe the factors that should be considered for inspection frequency are more logically related to the design and operation of the storage are, 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 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 a 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 container storage area is designed and operated to minimize undetected releases in establishing the inspection frequency. Therefore, we strongly urge EPA to delete the sentence in proposed § 264.174 that would base inspection frequency. Therefore, we strongly urge EPA to delete the sentence in proposed § 264.174 that would base inspection frequency on the compliance record, and allow the Director to exercise good judgment based on relevant factors.

Since changing the inspection frequency will require TSD facilities to obtain a permit modification, EPA must also amend § 270.42 Appendix I to clearly provide that establishing the  312 inspection frequency on a case by case basis under revised § 264.174 is a Class I permit modification with prior approval of the Director. If EPA does not make this corresponding change to the permit rules, the burden reduction will not be realized.

Response: The Agency is not pursuing this proposed change in the final rule. Only Performance Track facilities can apply to reduce their inspection frequency.

Document #: 0169 We disagree with this proposed change. The proposed wording in § 264.174 states, " At least weekly, or less frequently as determined by the Director."

Weekly inspections for containers are not frequent enough to discover problems common with containers. From our experience, we recommend daily inspections of containers since containers are usually moved on a daily basis. Movement can cause a number of problems with containers such as gaskets coming loose causing spills, containers shifting on pallets leading to unstable stacking, etc. Most containers are exposed to the elements and therefore deterioration can occur quickly ( labels fading, rusting, pressure buildup, etc.). These problems can occur even at well ran facilities. It has been our experience that a lot of the violations found during inspections could have been prevented if a self inspection were performed. Facility personnel simply do not pay enough attention to problems during inspections; and therefore, problems go unnoticed for resulting in serious violations.

Container inspections are a very cost effective and efficient way to avoid serious environmental problems.

Response: The Agency is not pursuing this proposed change in the final rule. Only Performance Track facilities can reduce their inspection frequency.

Document #: 0209 Container Inspections. Currently container inspections are required on a weekly basis. The federal register suggested going to a monthly inspection schedule. We were concerned because many containers are stored outside and/ or without secondary containment. Due to these factors, a container that fails is more likely to release constituents to the environment. We suggest that containers with secondary containment go to a monthly inspection schedule. Containers without secondary containment should remain on a weekly inspection schedule.

Response: The Agency is not pursuing this proposed change in the final rule. Only Performance Track facilities can apply to reduce their inspection frequency.

Document #: 0213 Some flexibility could be written into final status permits, based on the performance of the facility, on a case by case basis. We do not agree with changing the inspection frequency for less than 90 day generators or interim status facilities. For facilities operating under interim status or for < 90 day generators, it would be too hard to identify what the frequency should be. We don't believe  313 that weekly inspections are an onerous and burdensome issue for facilities. Weekly inspections are a proactive way to address problems.

Response: The Agency is not pursuing this proposed change in the final rule. Only Performance Track facilities can apply to reduce their inspection frequency.

Document #: 0218 Allow inspections of container storage areas at a frequency of less than once per week, on a caseby case basis.

Document #: 0241 We believe that is it important that all facilities continue to inspect container storage areas at least weekly, regardless of the compliance record of the facility. A facility's enforcement history has little or no bearing on the rate of deterioration of containers or a container's potential to develop leaks. Furthermore, allowing less frequent container storage area inspections will not significantly reduce the paperwork burden because inspection reports are not required to be submitted to the Agency, but are kept in a log at the facility site.

Response: The Agency is not pursuing this proposed change in the final rule. Only Performance Track facilities can apply to reduce their inspection frequency.

Document #: 0352 LANL has inspected thousands of containers in accumulation areas and permitted storage units, in accordance with 40 CFR § 264.174 and § 265.174. During these inspections, changes in the physical condition of new containers ( i. e., having contained waste for less than a year) in less than 90 day accumulation areas or in permitted or interim status storage units were not found to degrade significantly from week to week. However, there are many complicating factors, such as how long the material resided in the container as a product before being declared a waste, whether the material stored is stable ( e. g., not peroxide forming), whether containment is 100 percent or less, and the size of the container. Such issues should be evaluated for each waste stream. For some, such as stable wastes in short term storage, monthly inspections would be more appropriate. For others, such as unstable wastes or materials residing in the same containers for a long period of time, more frequent inspections would be appropriate. LANL, therefore, supports EPA's proposal to allow any generator to file a case by case application for reduced container inspection frequencies. However, instead of applying a single inspection frequency to a facility, LANL believes it should be evaluated for individual waste streams.

Response: The Agency is not pursuing this proposed change in the final rule. Only Performance Track facilities can apply to reduce their inspection frequency.

Document #: No Document ID ( Error: 264.190) CRWI supports reducing the frequency for self inspection for hazardous waste tanks from daily to weekly ( 264.190 and 265.190) ( 67 FR 2526). We also note that there are a number of places in 264.193( f) and 265.193( f) where the word " daily" needs to be changed to " weekly."  314 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 leak detection equipment, 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, except for case by case situations with Performance Track facilities that must have approval by the State or EPA regulating agency. See preamble discussion.)

Today's final rule provides regulatory incentive provisions to facilities who are members of the National Environmental Performance Track Program. Performance Track member facilities are provided the opportunity to reduce self inspections of tanks and tank systems, containers, containment buildings, and areas subject to spills to a frequency not less than one month. The Agency has determined these provisions are appropriate for these 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.

264.191 Assessment of existing tank system's integrity:

Document #: 0218 The DEQ OPPOSES the modification to allow CHMM's to perform than integrity assessments. Tank assessments include consideration of such areas as structural stability, earthquake and wind considerations, and tank design details. The failure of a tank without secondary containment may have catastrophic consequences impacting the public. As noted in paragraph III above, typically only engineering curriculums cover the topics needed, which are tested by the registration process for engineers.

The DEQ SUPPORTS the deletion of the language requiring an assessment of integrity by 1988.

Response: The Agency acknowledges and appreciates these comments. The reader is referred to the preamble discussion of the Burden Reduction rule.

264.192( a), ( b) Assessment of new tank system and components: Proposed Action. Modify  can be made by a Certified Hazardous Materials Manager, who will have sufficient education and skill to do this certification. And, this assessment may be retained on site. Final Action: We are not pursuing this change in the final rule.  315 Document #: 0181 Assessment of new tank system and components. A CHMM does not have the training required for this type of in depth assessment. A CHMM must still be an independent registered professional.

Response: The Agency acknowledges and appreciates this comment, however we are not pursuing this change in today's rule. We disagree however that the term " independent" needs to be retained. ( The reader is referred to the preamble language to the final rule.)

Document #: 0211 Please see comments concerning item # 2, above. In addition, it is not clear to TNRCC as to whether this information will be submitted or retained on site; the comments on Page 2522 are not reflected in the proposed rules ( Page 2536). Also, the facilities may be required to submit such information with the Part B permit application. Without knowledge of existing tank systems, it may be difficult for regulators to draft specific permit conditions.

Response: The Agency acknowledges and appreciates this comment, however we are not pursuing this change in today's rule.

Document #: 0213 We do not agree with this proposal. An independent registered professional engineer with education training and practical experience in tank design/ construction, leak detection systems, and installation should be required. In some cases complex tank systems require professional engineer judgement on structural integrity and design. It is important that the tank be design, and installation be overseen by a qualified independent P. E. to ensure that it will not fail.

Response: The Agency acknowledges and appreciates this comment, however we are not pursuing this change ( i. e., allowing a CHMM to make these certifications) in today's rule.

Document #: 0218 The DEQ OPPOSES the changes made to subparagraph ( a), and SUPPORTS the modification to subparagraph ( b), with further modifications as noted.

As noted in subparagraph VI. F above, the design of a tank involves area that are more properly the province of registered engineers. To allow other individuals ( with an accreditation that is not generally governed or recognized by the states) may unnecessarily endanger human health and the environment. The proposed change also is not clear that the certifying CHMM needs to be". independent, [ and] qualified..." as with the registered engineer. Therefore the modifications to subparagraph ( a) are opposed.

The modifications to subparagraph ( b) expand upon the existing language which already allow the use of an independent, qualified installation inspector, in addition to a registered engineer, and are believed to be protective of human health and the environment. However, the text should be made clear that the CHMM must be "... independent, [ and] qualified..." as with the engineer and tank  316 installers.

Secondly, the DEQ would recommend that the following text be added as a note to subparagraph ( b):

[ NOTE: Some states have specific requirements regarding the personnel allowed to perform tank certifications. The owner or operator is advised to consult with state regulatory bodies to determine if such requirements are in effect for their state.]

Response: The Agency acknowledges and appreciates this comment, however we are not pursuing this change in today's rule.

264.191( a), ( b)( 5)( ii) Assessment of existing tank system's integrity: Proposed Rule: Modify  assessment can be made by a Certified Hazardous Materials Manager, who will have sufficient education and skill to do this certification. Final Rule: The Agency is not promulgating this change.

Document #: 0181 Assessment of existing tank system's integrity. A CHMM does not have the training required for this type of in depth assessment.

Response: The Agency acknowledges and appreciates this comment, however we are not pursuing this change in today's rule.

Document #: 0213 We do not agree with this proposal. An independent registered professional engineer with education training and practical experience in tank design/ construction, leak detection systems, and installation should be required. In some cases complex tank systems require professional engineer judgement on structural integrity and design. It is important that the tank be design, and installation be overseen by a qualified independent P. E. to ensure that it will not fail.

Response: The Agency acknowledges and appreciates this comment, however we are not pursuing this change in today's rule to allow a CHMM to make these certifications. We are however deleting the term " independent" from the qualifications necessary for the Professional Engineer. Because of State oversight and licensing requirements, the Agency believes that a PE regardless of whether he/ she is employed by the facility can conduct an unbiased and through review of the certification requirements. The reaser is referred to the preamble langauge for the Burden Reduction final rule for additional discussion on these points. .

264.193/ 265.193 Containment and detection of releases: Proposed Action: Remove obsolete language.

Document #: 0222/ 0223  ACC  317 Retain allowable exceptions to tank secondary containment. ACC supports removing obsolete language, but suggests retention of certain existing regulatory language that provides clarification regarding allowable exceptions to secondary containment.

HAZARDOUS WASTE TANK SYSTEM SECONDARY CONTAINMENT ACC agrees with the proposal to remove obsolete language in 264.193( a) and 265.193( a), primarily by removing paragraphs ( 1) through ( 5) in each of those sections. However, the parenthetical phrase "( except as provided in paragraphs ( f) and ( g) of this section)" that currently appears at the end of the introductory text in both 264,193( a) and 265.193( a) should be retained in the revised sections such that the revised text in both sections reads:

( a) Secondary containment must be provided for all existing and new tank systems and components ( except as provided in paragraphs ( f) and ( g) of this section).

This clarification is necessary to ensure that there is not apparent discrepancy between paragraph ( a) and the allowed exceptions to secondary containment in paragraphs ( f) and ( g).

Response: Deleting the subparagraphs as proposed would eliminate the provision for phasing in secondary containment for tanks storing newly listed wastes, and for using the secondary containment variance. Eliminating these provisions was not our intent and we will retain them provision in the regulations. The final rule will remove only subparagraphs ( 2) through ( 4) and retain a revised subparagraph ( 1) and a revised and renumbered subparagraph ( 5).

Document #: 0327 ( 264/ 265.193/ 195) API supports the proposal to change the tank self inspection frequencies from daily to weekly for both large and small quantity generators. We also support EPA's proposal to reduce inspection frequency for ancillary tank equipment ( piping, pumps, valves and other associated equipment) at both small and large quantity generator facilities.

Response: The Agency acknowledges and appreciates this commenter supporting the changes to the inspection frequencies for LQG and SQG under certain conditions.

Document #: 0347 Eastman supports changing the tank self inspection frequencies from daily to weekly at small quantity generator sites and ancillary equipment at small and large quantity generator facilities. While daily tank inspections are part of our regulatory " culture" and some of our facilities may prefer to continue that practice, we appreciate the flexibility to go to weekly inspections, believing that hazardous waste tanks are designed and operated such that there is no need for a daily inspection.

Response: The Agency acknowledges and appreciates this commenter supporting the changes to the inspection frequencies for LQGs and SQGs under certain conditions.  318 Document #: 0348 The change of inspection frequency should require the following addition: if problems are observed, the frequency of inspections must be daily until the problem is fixed and two weeks of daily inspections demonstrate the fix was appropriate.

Response: The Agency acknowledges and appreciates this commenter supporting the changes to the inspection frequencies for LQGs and SQGs, however the Agency is unconvinced as to the need to require additional inspection frequency in the event of a problem. Sufficient regulatory requirements are in place that would alleviate the need for this additional oversight.

Document #: 0349 ADEQ does not object to comments suggesting EPA also allow small quantity generators reduce tank inspection frequencies from daily to weekly. However, ADEQ notes 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 264/ 265.15 and, therefore, are not required to maintain a schedule or a record of inspections.

Response: The Agency acknowledges and appreciates this commenter supporting the changes to the inspection frequencies for SQGs under certain conditions.

Document #: 0350 US EPA proposes to change the frequency of tank inspections for small quantity generators from daily to weekly. However, US EPA has not provided any data that suggests that the reduced frequency of tank inspections is as protective as the intent of the current standard which as stated in 51 FR 25454, July 14, 1986 is to "... enable the detection of releases or potential releases at the earliest possible time."

We do not believe that the reduced tank inspection frequency should be afforded to small quantity generators unless their tank systems are upgraded to meet additional standards. Currently small quantity generators only have to inspect their tank systems for proper operational controls daily. Otherwise, small quantity generators are not required to do any type of additional leak detection, except for the weekly requirement already in place. Also, since small quantity generators are not required to provide secondary containment, the operating day inspections assist in protecting from a release or potential release. We believe, if small quantity generators wish to receive this reduced inspection frequency, then they must comply with the same secondary containment requirements as large quantity generators and would need to install an automated leak detection system that alerts a person designated to respond.

Overall, Ohio EPA does not support changing the frequency of any current tank inspection provided for in the rules unless certain standards are met. We believe that the tank inspection frequency should only be reduced to weekly when the tank system has secondary containment and has an automated leak detection system that notifies response personnel.

ADEQ Comment: ADEQ does not object to comments suggesting EPA also allow small quantity  319 generators reduce tank inspection frequencies from daily to weekly. However, ADEQ notes 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 264/ 265.15 and, therefore, are not required to maintain a schedule or a record of inspections.

Response: Today's final rule reduces the inspection frequencies for interim status, permitted, and LQG tank systems, 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 leak detection equipment, 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, except for case by case situations with performance track facilities.) We also recognize that SQG are not required to maintain an inspection log. Any burden reduction that results from the changes made in today's rule, will be on the labor saved not paperwork reduced.

Document #: 0352 EPA requested comment on establishing weekly tank inspections for all tank and tank systems for small quantity generators. Inspections currently must be conducted daily, as required by 40 CFR § 265.201( c), § 264.193( f), and § 265.193( f). Because the physical state of the tank and surrounding area change only slowly under normal operating conditions, LANL believes that the visual inspection frequency of tanks and tank systems could be decreased to a minimum of weekly. LANL also believes some well operated systems may warrant even less frequent inspection. Therefore, we suggest that the variance provisions provided for ancillary equipment by 40 CFR § 264.193( g) and § 265.193( g) be extended to 40 § 265.201( c).

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 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, except for case by case situations with Performance Track facilities. We disagree with the commenter that variance provisions could be utilized for reducing tank systems inspection frequency up to monthly. There are two reasons why we do not support this idea; 1) There is no data/ information to suggest that this type of frequency would be protective of human health and the environment; and 2) evaluation of a variance petitions could put a significant burden on the regulatory agency .

Document #: 0357 A basic principle of RCRA is prevention, including preventing a major release from a waste management unit. The proposed rule changes appear primarily guided by a desire to project an image of providing a " burden reduction" for the regulated community. In doing so, the proposed  320 changes are disregarding prevention mechanisms. The chances of releases occurring and going undetected are greatly increased by allowing for weekly inspections of tank systems. Hazardous waste tank systems are designed to accumulate large quantities of hazardous waste. The current requirement for daily inspections of tank systems provides a reasonable means to detect and minimize releases of hazardous waste in a timely manner. In addition, it is the Department's position that the requirement for daily inspections of tank systems has not been a significant burden on the regulated community. The Department strongly recommends the requirements for daily inspections of tank system be maintained.

Response: The Agency disagrees with the commenter, 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 its absence, 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, except for case by case situations with Performance Track facilities.)

Today's final rule provides regulatory incentive provisions to facilities who are members of the National Environmental Performance Track Program. Performance Track member facilities are provided the opportunity to apply for reduced self inspections of tank systems, containers, containment buildings, and areas subject to spills to a frequency not less than one month. The Agency has determined these provisions are appropriate for these 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 264.193( a) Containment and detection of releases:

Document #: 0286 We believe some provision which allows for a phased in approach for newly listed wastes stored in tanks to meet the secondary containment requirements is reasonable. By removing all the language in this paragraph, an increased burden would be placed upon facilities which may be storing waste in tanks. Additionally, we may be required to take enforcement action against facilities which were not in compliance with the secondary containment requirements, which would be an increased burden placed upon us.

Response: We agree with the commenter that deleting the subparagraphs as proposed would eliminate the provision for phasing in secondary containment for tanks storing newly listed wastes. Eliminating this provision was not our intent and we will retain the provision in the regulations. The final rule will remove only subparagraphs ( 2) through ( 4) and retain a revised subparagraph ( 1) and a revised and renumbered subparagraph ( 5).  321 264.193( a), ( a)( 1) ( 5) Containment and detection of releases: Proposed Action: Remove obsolete language 264.193/ 265.193( c)( 4) Reporting of precipitation and material in secondary containment.

Document #: 0215 A reporting obligation that appears minor, but that has caused significant problems in practice, appears at 40 CFR § 264.193( c)( 4), regarding containment and detection of releases from tank systems. In brief, small amounts of material may often be present in the secondary containment for tank systems. In the winter, there's snow. Throughout the year, a small amount of water or other material may remain in the secondary containment because the quantity is not sufficient to trigger the drain. The quantities of material involved are almost always less than 1% of the total capacity of the secondary containment ( and the secondary containment is typically twice th site the size of the tank it is designed to contain). In these situations, the regulations at § 264.193( c)( 4) require the tank's owner or operator to " demonstrate to the Regional Administrator that removal of the released wastes or accumulated precipitation cannot be accomplished within 24 hours." In practice, this " demonstration" has often proved remarkably difficult, even in a context that would pose no plausible environmental hazard. I strongly recommend that EPA add a sentence at the end of this regulation to reduce this burden. For example: " No demonstration is required for de minimis amounts of precipitation or waste, constituting less than 1% of the total volume of the secondary containment, in a tank system that otherwise meets the requirements of this section." In the alternative, I recommend that EPA follow the approach taken in Indiana's " Secondary Containment for Hazardous Materials" regulations ( 327 IAC 2 10). These regulations state: " Liquid that collects within the secondary containment area must be removed within seventy two ( 72) hours of its discovery in order to maintain the available capacity of the secondary containment at one hundred percent ( 100%) of the largest above ground tank, or portable tank in the secondary containment area. Ice must be removed as soon as weather permits." [ 327 IAC 2 10 6( e)]

Response: The Agency appreciates these comments, however the recommended changes are outside the scope of today's rulemaking. No change to existing regulations 264.193( c)( 3), ( c)( 4), ( e)( 3)( iii) Leak Detection System for Tanks: Proposed Action: Eliminate need for demonstrations to the regulatory authorities, and make this requirement self implementing. The owner or operator is in the best position to make the determination as to what is the earliest practical time, based on the site characteristics. Final Action: We are not pursuing this change. No change in CFR.

Document #: 0169 We do not agree with this change. Owners and operators frequently decide that the earliest practical time is at their convenience. It is absurd to allow the regulated community to determine when they can get to it. The elimination of this requirement effectively voids the entire rule since  322 the regulatory agency would never be able to compel facilities to respond to leaks since they could legally argue that the time to respond to the leak was not yet practical.

Response: The Agency is persuaded by the arguments presented by the commenter and there will be no change to existing regulations.

Document #: 0181 Many times the facility is not the best entity to determine when it is applicable to allow liquids in secondary containment to exceed 24 hours. This demonstration should remain in the regulators purview as to whether or not continued or future operation of the unit should be allowed at all. Removal of the demonstration requirement eliminates an effective regulatory tool. Too often, fiscal and difficulty of compliance are used as major reasons by the facility, and protection of human health and the environment are not considered.

Response: The Agency is persuaded by the arguments presented by the commenter and there will be no change to existing regulations. Document #: 0213 We do not agree with this proposal. These variance demonstration requirements are important requirements that should be met with approval by the Agency prior to use. TSDs are sometimes inspected every other year. The term earliest practicable time should be justified by the facility if the 24 hour time limit is not met. The Agency may not be aware of such a determination for 1 2 years.

Response: The Agency is persuaded by the arguments presented by the commenter and there will be no change to existing regulations.

264.193( c)( 3), ( 4), ( e)( 3)( iii)/ 265.193 ( g)( 1, ( h) Leak Detection System for Tanks: Final Action: No change to existing regulation.

Document #: 0216 Elimination of notifications and demonstrations.

  Leak Detection System for Tanks; and   Variance from Leak Detection Systems for Tanks ( Permitted & Interim Status)

We disagree with the proposal to eliminate the need for demonstrations to the regulatory authorities, as well as making this requirement self implementing. If would be too easy for an owner/ operator to simply state that the situation would not allow for 24 hour detection and removal of waste within 24 hours. It is also difficult to envision the variance from leak detection as self implementing. There are basic elements of a regulatory program that require timely agency oversight, and variance approvals are one such element.

Response: The Agency agrees with the commenter. There will be no change to existing  323 regulations.

264/ 265.193( f) Request for Comment for SQG tanks and SQG/ LQG Ancillary Equipment on Tanks Document #: 0317 Large Quantity Generators: For the RCRA Burden Reduction proposal of January 17, 2002, Dow submitted comments on April 12, 2002. In addition to agreeing with the proposal to reduce tank inspection frequency, Dow commented on the need to also reduce the frequency of inspection for tank ancillary equipment [ 40 CFR 264.193( f) and 40 CFR 265.193( f) from daily to weekly. At the time, Dow commented that reducing the frequency of inspection of these items should not diminish from environmental protection.

Dow continues to believe that such a reduction in inspection frequency for this equipment is needed if anything is to be achieved by reducing the tank inspection frequency. Since both of these inspections are usually performed at the same time, there will be very little benefit if only the inspection frequency for the tank itself is reduced.

Dow proposed language in the comments of April 12, 2002 and still suggests the following changes to the regulatory text:

40 CFR 264.193 ( f) ( 1) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 264.193 ( f) ( 2) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 264.193 ( f) ( 3) "... are visually inspected for leaks on a daily weekly basis;" and 40 CFR 264.193 ( f) ( 4) "... are visually inspected for leaks on a daily weekly basis." 40 CFR 265.193 ( f) ( 1) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 265.193 ( f) ( 2) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 265.193 ( f) ( 3) "... are visually inspected for leaks on a daily weekly basis;" and 40 CFR 265.193 ( f) ( 4) "... are visually inspected for leaks on a daily weekly basis;"

Response: The Agency acknowledges and appreciates this comment. In response to several commenters to the proposed rule suggested changing the inspection frequencies for ancillary equipment, specifically citing § § 264.193( f) and 265.193( f). ( These requirements specify that ancillary equipment must have secondary containment, except in four instances, each involving daily visual inspections for leaks.) While most commenters provided little information to support making the change, one commenter did argue that if the proposed changes to § § 264.195 and 265.195 were finalized, the existing provisions in § § 264.193( f) and 265.193( f), if not also changed, would be inconsistent. As background, the October 29, 2003 NODA requested comment on expanding the proposed rule to include ancillary equipment at LQG and SQG sites. The NODA referenced the  324 regulations at § § 264.193( f) and 265.193( f), suggesting making the change would be consistent with our intent, as discussed in the proposed rule. Because today's rule changes the inspection frequencies for tank systems provided with secondary containment, where leak detection equipment or workplace practices are used, as discussed previously, any ancillary equipment associated with such tank systems would, therefore, be eligible for reduced inspections. We considered allowing ancillary equipment without secondary containment, as described at § § 264.193( f)( 1)( 4) and 265.193( f)( 1)( 4), to be visually inspected weekly instead of daily. While most of the commenters supported this change, upon further analysis we now conclude that expanding the rule to include ancillary equipment without secondary containment is not consistent with how the final rule addresses reduced inspection frequency for tanks systems. The proposed rule discussed reducing inspection frequencies for tanks and tank systems because of, among other reasons, the presence of secondary containment. Allowing ancillary equipment without secondary containment to change from daily visual inspections to weekly visual inspections would not be consistent with our approach. We are including regulatory language in § § 264.194( d) and 265.195( c) to say that ancillary equipment that is not provided with secondary containment, as described in § § 264.193( f)( 1)( 4), must be inspected at least once each operating day.

264.193( f)( 1)( 2)( 3)( 4) Containment and detection of releases.

Document #: 0138 Dow appreciates the proposed reduction in the inspection frequency for tank systems from daily to weekly. However, Dow believes that changes to other regulatory references besides those in the table ( 67 FR 2521) are needed to accomplish EPA's intent to reduce burden. Specifically, 40 CFR 264.193 ( f) and 40 CFR 265.193( f) both require daily inspection of tank system ancillary equipment in ( 4) four places. If the changes to 40 CFR 264.195 and 40 CFR 265.195 are finalized as proposed these requirements will create an inconsistency. Dow requests that both 40 CFR 264.195 and 40 CFR 265.195. Dow suggests the following changes to the regulatory text: 40 CFR 264.193 ( f) ( 1) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 264.193 ( f) ( 2) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 264.193 ( f) ( 3) "... are visually inspected for leaks on a daily weekly basis;" and 40 CFR 264.193 ( f) ( 4) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 265.193 ( f) ( 1) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 265.193 ( f) ( 2) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 265.193 ( f) ( 3) "... are visually inspected for leaks on a daily weekly basis;" and 40 CFR 265.193 ( f) ( 4) "... are visually inspected for leaks on a daily weekly basis;"

Response to Comment: Reducing the frequency of inspection of these items should not diminish from environmental protection, particularly because this equipment most often has containment for other reasons ( e. g., NPDES, SPCC, etc.) even though the design may not match RCRA  325 requirements. several commenters to the proposed rule suggested changing the inspection frequencies for ancillary equipment, specifically citing § § 264.193( f) and 265.193( f). ( These requirements specify that ancillary equipment must have secondary containment, except in four instances, each involving daily visual inspections for leaks.) While most commenters provided little information to support making the change, one commenter did argue that if the proposed changes to § § 264.195 and 265.195 were finalized, the existing provisions in § § 264.193( f) and 265.193( f), if not also changed, would be inconsistent. As background, the October 29, 2003 NODA requested comment on expanding the proposed rule to include ancillary equipment at LQG and SQG sites. The NODA referenced the regulations at § § 264.193( f) and 265.193( f), suggesting making the change would be consistent with our intent, as discussed in the proposed rule. Because today's rule changes the inspection frequencies for tank systems provided with secondary containment, where leak detection equipment or workplace practices are used, as discussed previously, any ancillary equipment associated with such tank systems would, therefore, be eligible for reduced inspections. We considered allowing ancillary equipment without secondary containment, as described at § § 264.193( f)( 1)( 4) and 265.193( f)( 1)( 4), to be visually inspected weekly instead of daily. While most of the commenters supported this change, upon further analysis we now conclude that expanding the rule to include ancillary equipment without secondary containment is not consistent with how the final rule addresses reduced inspection frequency for tanks systems. The proposed rule discussed reducing inspection frequencies for tanks and tank systems because of, among other reasons, the presence of secondary containment. Allowing ancillary equipment without secondary containment to change from daily visual inspections to weekly visual inspections would not be consistent with our approach. We are including regulatory language in § § 264.194( d) and 265.195( c) to say that ancillary equipment that is not provided with secondary containment, as described in § § 264.193( f)( 1)( 4), must be inspected at least once each operating day.

264.193( f)( 1), ( 3) Containment and detection of releases.

Document #: 0174 Dow appreciates the proposed reduction in the inspection frequency for tank systems from daily to weekly. However, Dow believes that changes to other regulatory references besides those in the table ( 67 FR 2521) are needed to accomplish EPA's intent to reduce burden. Specifically, 40 CFR 264.193( f) and 40 CFR 265.193( f) both require daily inspection of tank system ancillary equipment in ( 4) four places. If the changes to 40 CFR 264.195 and 40 CFR 265.195 are finalized as proposed, these requirements will create an inconsistency. Dow requests that both 40 CFR 264.195 and 40 CFR 265.195. Dow suggests the following changes to the regulatory text:

40 CFR 264.193 ( f) ( 1) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 264.193 ( f) ( 2) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 264.193 ( f) ( 3) "... are visually inspected for leaks on a daily weekly basis;"  326 and 40 CFR 264.193 ( f) ( 4) "... are visually inspected for leaks on a daily weekly basis." 40 CFR 265.193 ( f) ( 1) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 265.193 ( f) ( 2) "... are visually inspected for leaks on a daily weekly basis;" 40 CFR 265.193 ( f) ( 3) "... are visually inspected for leaks on a daily weekly basis;" and 40 CFR 265.193 ( f) ( 4) "... are visually inspected for leaks on a daily weekly basis;"

Reducing the frequency of inspection of these items should not diminish from environmental protection, particularly because this equipment most often has containment for other reasons ( e. g., NPDES, SPCC, etc.) even though the design may not match RCRA requirements.

Response: We disagree with the commenter. The final rule will reduce inspection frequencies for tank systems from daily to weekly, and for up to monthly, for performance track facilities on a case by case basis. Ancillary equipment, § § 264.193( f) and 265.193( f). without secondary containment will be required to inspect daily. Because today's rule changes the inspection frequencies for tank systems provided with secondary containment, where leak detection equipment or workplace practices are used, any ancillary equipment associated with such tank systems would, therefore, be eligible for reduced inspections. We considered allowing ancillary equipment without secondary containment, as described at § § 264.193( f)( 1)( 4) and 265.193( f)( 1)( 4), to be visually inspected weekly instead of daily. Upon further analysis, we now conclude that expanding the rule to include ancillary equipment without secondary containment is not consistent with how reduced inspection frequency for tanks systems have been addressed in this final rule. The proposed rule discussed reducing inspection frequencies for tanks and tank systems because of, among other reasons, the presence of secondary containment. Allowing ancillary equipment, without secondary containment, to change from daily visual inspections to weekly visual inspections would not be consistent with our approach. Therefore, we are including regulatory language in § § 264.194( d) and 265.195( c) to say that ancillary equipment that is not provided with secondary containment, as described in § § 264.193( f)( 1)( 4), must be inspected at least once each operating day. There are instances, however, where tanks and tanks systems are located within buildings, and where the building itself provides secondary containment. In cases where ancillary equipment is located inside of a building that has been determined to provide secondary containment, and either leak detection systems or workplace practices exist to identify leaks and spills, then the regulatory criteria are met and that ancillary equipment may be inspected weekly. Thus, for example, in a case where ancillary equipment inside a building does not have double walls or leak detection, this ancillary equipment would still be eligible for weekly inspections if the building serves as secondary containment, and if the area is frequented by employees whereby releases will be immediately obvious and the employees, as part of established workplace practices, will promptly identify and remediate leaks and spills. In cases involving buildings serving as secondary containment, as authorized programs, states necessarily have the ultimate authority to make the determination that secondary containment requirements are met ( taking into account all relevant site specific considerations).  327 264/ 265.193( g) Containment and detection of releases. The owner or operator may obtain a variance from the requirements of this Section if the Regional Administrator finds, as a result of a demonstration by the owner or operator, either: that alternative design and operating practices, together with location characteristics, will prevent the migration of hazardous waste or hazardous constituents into the ground water or surface water at least as effectively as secondary containment during the active life of the tank system or that in the event of a release that does migrate to ground water or surface water, no substantial present or potential hazard will be posed to human health or the environment. New underground tank systems may not, per a demonstration in accordance with paragraph ( g)( 2) of this section, be exempted from the secondary containment requirements of this section. Application for a variance as allowed in paragraph ( g) of this section does not waive compliance with the requirements of this subpart for new tank systems. Final Action: No change to existing regulations Document #: 0241 The table of regulatory sections proposed for modification beginning on page 2521 of the preamble indicates that a variance from Leak Detection Systems for Tanks is being proposed for elimination. The variances listed in these sections of the regulations are not variances from leak detection requirements, but variances from the requirements of all of 264/ 265.193, the section that requires that secondary containment be provided for tanks. Secondary containment is the only generally reliable means to achieve control over releases from these tanks before they pose risks to human health and the environment.

We feel that the proposed modifications to this section go beyond a paperwork burden reduction. They would allow any facility owner/ operator to unilaterally decide not to provide secondary containment for his hazardous waste tanks, provided that he writes a demonstration of equivalency and places it in the facility operating record. It has been our experience as a permitting authority that demonstrations of this type are often incomplete or deficient and we are adamantly opposed to making these variances self implementing. We strongly believe that the eligibility for a variance from this critically important requirement should be demonstrated with certainty and that the continued requirement for a detailed agency review of requests for a variance from tank secondary containment requirements is essential.

Response: The Agency acknowledges and appreciates this comment. The Agency is not pursuing this change in today's final rule.

264.193( g), ( h) Variance from Leak Detection Systems for Tanks: Proposed Action: Eliminate need to obtain variance, and make this provision selfimplementing The owner or operator can implement alternate design and operating practices as long as they follow the requirements of this section.  328 Document #: 0134 EPA proposes to modify the existing requirement that the Regional Administrator grant a variance before a permitted hazardous waste tank is allowed to operate with a secondary containment or release detection system that does not meet specifications. Under the proposed modified regulations, no variance would be needed as long as the owner/ operator implements and keeps records of alternate tank design and operating practices that would prevent migration of hazardous waste and hazardous constituents into the groundwater or surface water.

Document #: 0169 We oppose this proposal. This rule is far too important to the protection of human health and the environment to effectively abolish it by allowing the owners and operators to unilaterally determine what is effectively equivalent. EPA took very significant action to stop the well documented problems with tank systems, it is absurd to now allow the regulated community to circumvent this rule by allowing them to do whatever they deem as adequate. Our enforcement files are loaded with examples of tank failures and catastrophic releases caused by tanks that were considered adequate by the owner or operator.

Document #: 0181 With the regulation becoming self implementing, the burden of proof shifts from the facility to the regulator. Now the regulator has to prove the ability or inability of the alternative system. Instead of a facility conducting the system analysis for their own equipment, the regulator must do this for several to many tank systems in the regulated public. This will increase costs and time problems for agencies, or work will not be completed and some systems which do not meet the requirements will go unchanged.

Document #: 0211 EPA is proposing to revise 40 CFR 264.193( g) and eliminate 40 CFR 264.193( h) which concerns variances from secondary containment requirements. The proposed rules would eliminate the submittal of a variance request to the regional administrator, thus requiring facilities to keep records on site to describe the alternative design and operating practices for tanks not complying with the 40 CFR 264.193 requirements. Such information is submitted as an element of the Part B permit application. Therefore, it is unclear to TNRCC why these requirements are being eliminated. Eliminating the requirement to submit this information would make it difficult for regulators to properly evaluate a tank system in light of the regulatory requirements and set permit conditions specific to the tank system.

Document #: 0213 We do not agree with this proposal. These variance demonstration requirements are important requirements that should be met with approval by the Agency prior to use. TSDs are sometimes inspected every other year. The term earliest practicable time should be justified by the facility if the 24 hour time limit is not met. The Agency may not be aware of such a determination for 1 2 years.

Document #: 0218  329 The DEQ OPPOSES the elimination of subparagraph ( g), in that allowing an owner or operator to determine and self implement a variance from secondary containment may endanger public safety. The permitting process is intended as an oversight function, allowing an independent ( government) agency to review and approve of the designs and operating plans for hazardous waste facilities. Such an oversight role also provides the public with some assurances that the facility will be safe. Allowing an owner/ operator to make and implement this determination, apparently outside of the permit process, would removal this oversight role and decrease overall public protection. ( Please also refer to paragraph II, above).

Regarding subparagraph ( h), the DEQ believes that this section is outdated and may be deleted, provided that minor clarification text is added to subparagraph ( g), as follows:

( g) The owner or operator may obtain a variance from the requirements of this section if the Regional Administrator finds, as a result of a demonstration by the owner or operator that alternative design and operating practices, together with location characteristics, will prevent the migration of any hazardous waste or hazardous constituents into the groundwater; or surface water at least as effectively as secondary containment during the active life of the tank system or that in the event of a release that does migrate to groundwater or surface water, no substantial present or potential hazard will be posed to human health or the environment. New underground tank systems may not, per a demonstration in accordance with paragraph ( g)( 2) of this section, be exempted from the secondary containment requirements of this section. Such demonstration shall be made as part of permit issuance or modification activities.

Response to Comments: No change to existing regulations. We are retaining the current provisions for variances from secondary containment. We believe it important for the regulatory authority to have oversight in decisions on whether to grant or deny variance requests.

264.193 264.196 Tank Systems.

Document #: 0165 All tank systems and components must have secondary containment. EPA sensibly proposes to replace the convoluted text of § 264.193( a)( 1)( 5) with this simple requirement. In addition, the secondary containment must be provided with a leak detection system that will detect any leakage and remove any accumulated waste or liquids within 24 hours, or at the earliest practicable time. We agree that these requirements in § 263.193( c)( 1)( 2) and ( e)( 3)( iii) should be self implementing, and should not require a demonstration to the regulatory authority. The operator of the tank system is in the best position to know the most timely and practicable manner to detect and remove collected waste materials from the secondary containment system to prevent harm to human health and the environment.

On the other hand, the ETC thinks it unwise for owners or operators of TSD facilities to grant themselves variances from secondary containment and leak detection with no review by the regulatory agency. Under the current regulation, the owner or operator may obtain a variance only  330 if the Director finds, based on a demonstration by the applicant, that alternative design and operating practices, together with location characteristics, will prevent the migration of hazardous waste into ground water or surface water at least as effectively as secondary containment. 40 CFR § 264.193( f). The regulation also spells out the factors that the Director must consider in making a decision to grant or deny a variance. Id. We believe that tank systems with secondary containment are a practical and cost effective way of protecting against releases to the environment, and variances should not be available except for compelling reasons. In order to ensure protections, and to maintain credibility with local communities, we believe that the regulatory agency must carefully review the alternative design and operating practices and the factors that determine equivalent protection of groundwater and surface waters before independently granting a variance. For this reason, the ETC disagrees with EPA's proposal to make the variance self implementing, and we urge the agency not to include this provision in the final rule.

Document #: 0166 All tank systems and components must have secondary containment. EPA sensibly proposes to replace the convoluted text of § 264.193( a)( 1)  ( 5) with this simple requirement. In addition, the secondary containment must be provided with a leak detection system that will detect any leakage and remove any accumulated waste or liquids within 24 hours, or at the earliest practicable time. We agree that these requirements in § 263.193( c) ( 1)( 2) and ( e)( 3)( iii) should be selfimplementing and should not require a demonstration to the regulatory authority. The operator of the tank system is in the best position to know the most timely and practicable manner to detect and remove collected waste materials from the secondary containment system to prevent harm to human health and the environment.

Safety Kleen agrees with EPA that owners or operators of TSD facilities can make use of secondary containment and leak detection variances based on a demonstration that alternative design and operating practices, together with location characteristics, will prevent the migration of hazardous waste into groundwater or surface water at least as effectively as secondary containment. 40 CFR § 264.193( g).

If a tank or secondary containment system has a leak or spill, the operator must immediately stop using the tank, repair it, and clean up any contamination. 40 CFR § 264.196. The regulatory requirements for responses to leaks and spills are appropriately detailed and rigorous. Of course, if there is a release to the environment in a reportable quantity ( RQ), the operator must also make a report to the appropriate authorities pursuant to CERCLA and 40 CFR Part 302. Therefore, we agree that the additional notice requirement in § 264.196( d) is redundant and can be eliminated without compromising protection. Likewise, the report within 30 days to the Regional Administrator is not necessary because the sam information on the response actions must be maintained in facility records. Therefore, § 264.196( d) can be deleted.

In addition, a registered professional engineer must certify that the repaired tank system is capable of handling hazardous wastes without release before it is returned to service. See § 264.197( f). Since this certification will also be kept with facility records, there is no need for submitting it to  331 the Regional Administrator within 7 days after returning the tank system to use. We agree with EPA's proposal to delete this sentence in § 264.197( f).

Response to Comments: No change to existing regulations. We are retaining the current provisions for variances from secondary containment. We believe it important for the regulatory authority to have oversight in decisions on whether to grant or deny variance requests. We also concur to an extent with the commenter on reduced inspection frequency for tanks under certain conditions. The reader is referred to the preamble of today's rule for a further discussion of these points.

Document #: 0217 Eastman supports the proposed regulatory change from daily to weekly inspections, believing that hazardous waste tanks are designed and operated such that there is no need for a daily inspection.

Response: The Agency acknowledges and appreciates this comment.

264/ 5.195( b) Tank Systems ( Permitted)  Inspection frequency: Proposed Action: Change frequency to weekly. Based on comments and the existence of substantial safety features required by regulation, this change will have little negative impact on human health and the environment. Also, inspections may be less frequent than weekly, as determined on a case by case basis by regulatory authorities.

Document #: 0165 The ETC supports the revisions proposed to § 264.195( b) that will reduce the self inspection frequency for tank systems from daily to weekly. 67 Fed. Reg. 2526 col. 1. In general, weekly inspections have proven effective in both the RCRA Subtitle I UST program and the SPCC program of the Clean Water Act. As noted above, tank systems for hazardous wastes are required to have secondary containment and leak detection systems which provide for continuous surveillance for the presence of leaks or spills. 67 Fed. Reg. 2527 col. 1. The integrity and safety of hazardous waste tanks will not be compromised by reducing the inspection frequency to weekly.

In addition, as with containers and containment buildings, the facility and regulatory authorities should have flexibility to allow the inspection frequency to be established on a case bycase basis ( but no less frequent than monthly). For the same reasons stated above with respect to containers, we believe the Director should consider whether the tank system is designed and operated to minimize undetected releases in establishing the inspection frequency. Therefore, we strongly urge EPA to delete the sentence in proposed § 264.195( b) that would base inspection frequency on the compliance record, and allow the Director to exercise good judgment based on relevant factors.

Since changing the inspection frequency will require TSD facilities to obtain a permit modification, EPA must also amend § 270.42 Appendix I to clearly provide that establishing the  332 inspection frequency on a case by case basis under revised § 264.195( b) is a Class I permit modification with prior approval of the Director. If EPA does not make this corresponding change to the permit rules, the burden reduction will not be realized.

Document #: 0169 While we agree that there are instances where the frequency of inspections may warrant some relaxation, the absolute minimum should be weekly. Tank failures can and do have serious consequences. Tank inspections are a very cost effective and efficient way to avoid serious environmental problems. We believe that it is in the public interest to establish an absolute minimum frequency for inspections and we believe that the frequency should not exceed one week.

Document #: 0181 The proposal to change inspection frequency may be acceptable, so long as it does not conflict with the requirements of 264.193( f). This would imply that aboveground portions of the system, that would no longer be subject to daily inspections, would have secondary containment capable of detection of releases.

Document #: 0218 The DEQ generally SUPPORTS the modification proposed, provided that additional language is added to restrict use of less frequent inspections to those tank systems with secondary containment and automatic leak detection alarms. Tanks can and frequently do fail abruptly and with little of no warning, losing most or all of their contents in a very short period of time. If the rule is promulgated as proposed, it may be week or longer before leaks of any size are discovered and remediation begun. For those tanks without secondary containment, waiting such a long time for remediation efforts may lead to extensive environmental damage, beyond the owner/ operator's financial ability regardless of the requirements of 264.147.

Secondly, the simple failure of a tank implies that the tank's design, installation, operating, inspection, and/ or maintenance procedures were inadequate. This conclusion may be extended to include the secondary containment systems as well. For example, if a waste added to a tank is incompatible with the tank materials and causes high corrosion, then the waste operating procedures were not sufficient to keep that waste excluded from the tank, and if the tank itself fails then that waste will probably corrode the secondary containment in the same way.

Therefore, the DEQ recommends that the provisions for reduced frequency inspections be limited only to those tanks with secondary containment and automatic lead detection systems. Suggested language is as follows:

{ Modify subparagraph ( b) as shown; add new subparagraph ( c), and renumber existing subparagraphs ( c) and ( d) as subparagraphs ( d) and ( e) respectively.}

( B) Except under the provisions of 264.195( c), below, tThe owner or operator must inspect at least once each operating day:  333 ( 1) Aboveground portions of the tank system, if any, to detect corrosion or releases of waste;

( 2) Data gathered from monitoring and leak detection equipment ( e. g., pressure or temperature gauges, monitoring wells) to ensure that the tank system is being operated according to its design; and ( 3) The construction materials and the area immediately surrounding the externally accessible portion of the tank system, including the secondary containment system ( e. g., dikes) to detect erosion or signs of releases of hazardous waste ( e. g., wet spots, dead vegetation).

( c) For those tank systems which have full secondary containment and automatic leak detection alarms, the owner or operator must inspect at least weekly, or less frequently as determined by the Director. In all cases, inspections must occur at least monthly. Director decisions about less frequent inpsections will be based on an evaluation of the compliance record of a facility.

[ Note: Section 264.15( c) requires the owner or operator to remedy any deterioration or malfunction he finds. Section 264.196 requires the owner or operator to notify the Regional Administrator within 24 hours of confirming a leak. Also, 40 CFR part 302 may require the owner or operator to notify the National Response Center of a release.]

Document #: 0241 We believe that it is important that all facilities continue to inspect tank systems daily, regardless of the compliance record of the facility. A facility's enforcement history has little or no bearing on the need to check tank monitoring data, the potential for equipment breakdown, or the development of leaks. Most of the hazardous waste tank systems in New Jersey are aboveground and are not equipped with leak detection equipment. Visual monitoring is by far the most common method of leak detection employed. It is important that this monitoring be performed frequently in order to minimize the time between a leak and its discovery. The continued requirement for daily inspection of the tank system helps to ensure that visual monitoring for leaks is performed each operating day. Furthermore, allowing less frequent tank system inspections will not significantly reduce the paperwork burden because inspection reports are not required to be submitted to the Agency, but are kept in a log at the facility site.

264.195( b) & 265.195( a)  Tank Systems ( Permitted)  Inspection frequency: Proposed Action: Change frequency to weekly. Based on comments and the existence of substantial safety features required by regulation, this change will have little negative impact on human health and the environment. Also, inspections may be less frequent than weekly, as determined on a case by case basis by regulatory authorities.

Document #: 0205 The NAM supports reducing the tank inspection frequency from daily to weekly § 264.195( b) and  334 § 265.195( a). The rational for the EPA to provide industry this flexibility is quite simple: Companies have implemented advanced technologies, sound environmental practices and have demonstrated a commitment to continued environmental improvement, outreach and performance reporting. Daily inspections were burdensome and unnecessary, often straining limited resources. To further streamline this section, the NAM suggests clarifying which parts of the facility's permitted tank system are to be inspected. Additionally, we strongly urge the EPA to allow small quantity generators to reduce their inspections from daily to weekly.

Document #: 0222 We support reducing the tank inspection frequency from daily to weekly, however, we are requesting a clarification on what needs to be inspected, as well as on a section of the preamble that does not match the proposed regulatory wording. In addition, we recommend allowing reduced frequencies for Small Quantity Generator tank inspections.

The proposed § 264.195( b) and § 265.195( a) revisions, as well as the corresponding preamble language at 67 FR 2526, make clear that the proposed rule would reduce the required inspection frequency for hazardous waste tanks from daily to weekly. ACC supports that revision. The design and operating standards for hazardous waste tanks, including leak detection systems and secondary containment requirements, are adequately protective without an additional need for daily inspections.

It is unclear, however, from the actual proposed wording of revised § 264.195( b) and § 265.195( a) whether § 264.195( b)( 1)  ( 3) and § 265.195( a)( 1)  ( 4), which specify which parts of the tank system are to be inspected, are being retained or not. If so, then the first sentence of both § 264.195( b) and § 265.195( a) should be revised to specifically refer to those sub paragraphs so it is clear what needs to be inspected. If these sub paragraphs are intended to be deleted, then the first sentence of both § 264.195( b) and § 265.195( a) should be revised to clearly state what needs to be inspected.

As noted above, the proposed wording in revised § 265.195( a) [ affecting interim status facilities and large quantity generators via § 262.34( a)( 1)( ii)] clearly states that the frequency for tank inspections would be revised from " at least once each operating day" to " at least weekly." The corresponding preamble language at 67 FR 2526 also supports the intent to change the required frequency from daily to weekly, but that is not reflected in the summary table at 67 FR 2524. In that table, the § 265.195( a) entry only shows that the revision would " allow reduced inspection frequencies on a case by case basis." It appears the summary table is simply in error and inadvertently omits the change to weekly inspection frequency, in that it is inconsistent with the proposed regulatory language and other preamble discussion. EPA should correct the summary table to include the revised inspection frequency in § 265.195( a) to weekly and to ensure consistency with the regulatory language, assuming this section is finalized as proposed.

EPA has not proposed to reduce the tank inspection requirements for small quantity generators in § 265.201( c)( 1)  ( 3) from daily to weekly, or to allow case by case reductions of those inspection frequencies. For many of the same reasons EPA has given for reducing the § 264.195( b) and  335 § 265.195( a) inspection frequencies, and given the relatively small amounts of hazardous waste managed in these small quantity generator tanks, ACC recommends that EPA similarly reduce the § 265.201( c)( 1)  ( 3) inspection frequencies from daily to weekly, or at least allow for case by case reductions based on the compliance record of the facility relative to hazardous waste storage.

264.195( b)( 1) Inspections.

Document #: 0352 Inspection of data from monitoring and leak detection, visible portions of tanks, the surrounding area, and ancillary equipment must be checked daily, as required 40 CFR § 264.195( b)( 1) and ( 3), § 265.195( a)( 2) and ( 4), § 264.193( f). Because the physical state of the tank and surrounding area change only slowly under normal operating conditions, LANL believes that these visual inspection frequencies should be decreased to a minimum of weekly. If a monitoring or leak detection system is operating properly, there also should be no need to inspect the data daily.

Therefore, LANL suggests that visual inspections of tanks and ancillary equipment be changed to a minimum of weekly, with the opportunity to file a case by case application for a lesser frequency, such a monthly. Case by case evaluations could be based on factors such as those described in 40 CFR § 264.15 and § 265.15: " the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or any operator error goes undetected between inspections."

Response to Comments: We are reducing the inspection frequencies for interim status, permitted, and LQG tanks, and adding 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 leak detection equipment, 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 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).  336 As stated above, the reduced inspection requirements apply to tank systems. It is anticipated that workplace practices would provide for the detection of releases from this equipment.