264.253( b)( 1)

264.253( b)( 2)

264.253( b)( 6) Notify EPA in writing of the exceedence within 7 days of the determination.

Submit a written assessment to the Regional Administrator within 14 days of determining leakage.

Compile and submit information to the EPA each month that the Action Leakage Rate is exceeded.

264.278 Land Treatment. Unsaturated zone monitoring.

264.278( g)( 1)

264.278( h)( 1)( 2) Prepare and submit a notice of statistically significant increases in hazardous constituents below treatment zone.

Prepare and submit a notice of intent to make a demonstration that other sources or error led to increases below treatment zone.

264.304 Landfills. Response actions. CFR Section Regulatory Requirement 232 264.304( b)( 1)

264.304( b)( 2)

264.304( b)( 6) Notify EPA if Action Leakage Rate is exceeded within 7 days of determination.

Submit a written assessment to the Regional Administrator within 14 days of determination of leakage.

Submit information to EPA each month the Action Leakage Rate is exceeded.

264.573 Drip Pads. Design and operating standards.

264.573( m)( 1)( iv)

264.573( m)( 2)

264.573( m)( 3) Notify EPA in writing of release.

Regional Administrator will make a determination and will notify owner/ operator of the determination.

Notify EPA and certify completion of repairs.

264.1036 Air Emission Standards for Process Vents. Reporting requirements.

264.1036( a) Notify EPA semi annually of exceedences.

264.1065 Air Emission Standards for Equipment Leaks. Reporting requirements.

264.1065( a) Notify EPA semi annually of exceedences.

264/ 5.1101 Containment Buildings. Design and operating standards.

265.1101( c)( 2)

264/ 5.1101( c)( 3)( i)( D)

264/ 5.1101( c)( 3)( ii)( iii)

264/ 5.1101( c)( 4) Certify by qualified registered professional engineer.

Notify EPA in writing of release.

Notify EPA and verify in writing that the cleanup and repairs have been completed after a release.

Inspection frequency.

265.1( b) Purpose, scope, and applicability. CFR Section Regulatory Requirement 233 265.93 Ground Water Monitoring. Preparation, evaluation, and response.

265.93( c)( 1)

265.93( d)( 1)

265.93( e)

265.93( f) Notify of increased indicator parameter concentrations.

Notify of increased indicator parameter concentrations.

Any ground water assessment to satisfy the requirements of § 265.93( d)( 4) which is initiated prior to final closure must be completed and reported in accordance with § 265.93( d)( 5).

Evaluate data and if § 265.91( a) are not satisfied, immediately modify the number, location, or depth of the monitoring wells.

265.94 Ground Water Monitoring. Recordkeeping and reporting.

265.94( a)( 2)( i)

265.94( a)( 2)( ii)

265.94( a)( 2)( iii)

265.94( b)( 2) Prepare and submit a quarterly report of concentrations of values of the drinking water suitability parameters.

Prepare and submit a report on indicator parameter concentrations and evaluations.

Prepare and submit a report on ground water surface elevations.

Prepare and submit a report on the results of the ground water quality assessment program.

265.259 Waste Piles. Response actions.

265.259( b)( 1)

265.259( b)( 2)

265.259( b)( 6) Notify EPA in writing of the exceedence amount of the leakage.

Submit a written assessment to the Regional Administrator within 14 days of determination of leakage.

Submit information to EPA each month that the Action Leakage Rate is exceeded.

265.276 Land Treatment. Food chain crops.

265.276( a) Submit notification for food chain crops at land treatment facility. CFR Section Regulatory Requirement 234 265.303 Landfills. Response actions.

265.303( b)( 1)

265.303( b)( 2)

265.303( b)( 6) Notify EPA if Action Leakage Rate is exceeded within 7 days of determination.

Submit a written assessment to the Regional Administrator within 14 days of determination of leakage.

Submit information to EPA each month the Action Leakage Rate is exceeded.

265.443 Drip Pads. Design and operating requirements.

265.443( m)( 1)( iv)( 2)

265.443( m)( 2)

265.443( m)( 3) Notify EPA of release and provide written notice of procedures and schedule for cleanup.

Regional Administrator will make a determination and notify the owner/ operator of the determination.

Notify Regional Administrator and certify completion of repairs.

266.103 Hazardous Waste Burned in Boilers and Industrial Furnaces. Interim status standards for burners.

266.103( b)( 2)( ii)( D) Certification of pre compliance.

268.7 Land Disposal Restrictions. General. Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities.

268.7( a)( 6) Requirement to keep in the facility's files all supporting data and waste analysis data for " knowledge of the waste"

determinations and for testing determinations.

268.7( d)( 1) Requirement to submit to the regulatory authority one time notifications that hazardous debris is excluded form the definition of hazardous waste.

270.17( d) Permit Application. Specific part B information requirements for surface impoundments 235 V. We Will Implement this Rule via the Class I Permit Modification Process Without Prior Approval.

Several comments on the proposed rule pointed out that implementing many of the changes in the proposal would require a Class 2 Permit modification for facilities with permits ( see the following website for information about Permit modifications:

http:// www. epa. gov/ epaoswer/ hotline/ training/ perm. pdf). Obtaining a Class 2 Permit modification requires a substantial effort on the part of a regulated facility, which is contrary to the intent of today's rule. We believe the changes in this rule will provide no significant risk to human health or the environment, and thus, we prefer that these changes become effective as quickly as possible so that the paperwork reduction benefits from the rule can be realized.

Therefore, in our October 29, 2003 NODA, we requested comment on allowing permitted facilities to use the Class 1 permit modification procedure, with prior Agency approval, to implement the changes arising from this rulemaking. We also requested comment on whether the Class 1 permit modifications should be without prior Agency approval.

States represented by the Association of State and Territorial Solid Waste Management Officials ( ASTSWMO) requested that we use the Class 1 permit modification procedure with prior Agency approval. They expressed an interest in retaining oversight in the implementation of our burden reductions. After weighing this interest against the interest in achieving savings as soon as possible, we 236 have decided in favor of not delaying the benefits of this rule. This is based on our judgment that, in general, the risks associated with these changes are negligible. We will allow the changes in today's rule to be implemented as Class 1 permit modifications without prior approval, except for Class 1 permit modification for reduced inspection frequency for Performance Track member facilities which will be implemented as Class 1 permit modification with prior approval. To implement this approach, we are adding regulatory language and an entry to the permit modification classification table in Appendix I to 270.42, denoting modifications pursuant to the burden reduction rule. However, we wish to point out that, unless state law prevents it, states can be more stringent than the EPA rules if there are specific concerns with the consequences of these changes in any state. All states also can use the omnibus authority of RCRA Section 3005( c) for specific facilities where they believe there is risk due to site specific circumstances not identified in our rulemaking process. This will allow states to retain oversight where they choose to do so.

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

A. Applicability of Federal Rules in Authorized States Under section 3006 of RCRA, EPA may authorize qualified states to administer their own hazardous waste programs in lieu of the federal program within the state. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 237 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR Part 271.

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 ( HSWA), a state with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law.

In contrast, under RCRA section 3006( g) ( 42 U. S. C. 6926( g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so. 238 Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the federal program ( see also 40 CFR 271.1). Therefore, authorized states may, but are not required to, adopt federal regulations, both HSWA and non HSWA, that are considered less stringent than previous federal regulations.

C Authorization of States for Today's Rule Today's rule affects many aspects of the RCRA program and is promulgated pursuant to both HSWA and non HSWA statutory authority. Today's rule amends a number of provisions in the RCRA regulations which were promulgated pursuant to HSWA. These provisions include, among others, the land disposal restrictions and the regulation of air emissions from hazardous waste facilities,

which were promulgated pursuant to authority in sections 3004( m) and ( o) respectively, of RCRA. Therefore, the Agency is adding the rule to Table 1 in 40 CFR 271.1( j), which identifies the Federal program requirements that are promulgated pursuant to the statutory authority that was added by HSWA.

Other sections of today's rule are being promulgated pursuant to non HSWA authority. All of the HSWA and non HSWA requirements in today's rulemaking are equivalent to, or less stringent than, the existing provisions in the Federal regulations which they would amend. Authorized states are required to modify their program only when EPA promulgates Federal regulations that are 239 more stringent or broader in scope than the authorized state regulations. For those changes that are less stringent or reduce the scope of the Federal program, states are not required to modify their program. This is a result of section 3009 of RCRA, which allows states to impose more stringent regulations than the Federal program. Therefore, states are not required to adopt and seek authorization for this rulemaking. EPA will implement this rulemaking only in those states which are not authorized for the RCRA program, and will implement provisions promulgated pursuant to HSWA only in those states which have not received authorization for the HSWA provision that is amended today.

Nevertheless, this rule will provide significant benefits to EPA, states, and the regulated community, without compromising human health or environmental protection. Because this rulemaking will not become effective in authorized states until they have adopted and are authorized for it, we strongly encourage states to amend their programs and seek authorization for today's rule. EPA will try to act promptly on any such requests for authorization.

VII. Statutory and Executive Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 ( 58 FR 51735, October 4, 1993), the Agency must determine whether a regulatory action is significant and therefore subject to OMB review and the requirements of the Executive Order. The Order defines significant 240 regulatory action as one that is likely to result in a rule that may: ( 1) have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; ( 2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; ( 3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or ( 4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Although this rule clarifies inconsistencies in the regulations and decreases burden, it is still considered a significant regulatory action under the terms of Executive Order 12866 since it addresses one of the President's priorities of reducing burden.

VIII. Paperwork Reduction Act EPA has prepared a document listing the information collection requirements of the final rule, and has submitted this document to OMB for approval under the provisions of the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them.

EPA estimates that the reporting and recordkeeping hour burden reduction for this rule ranges from 22,000 hours to 37,500 hours. EPA also estimates that the reporting and recordkeeping cost burden reduction for this rule ranges from approximately $ 2 241 million to $ 3 million. " Burden" means the total time, effort, or financial resources expended by persons to generate, maintain, retain,

or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire,

install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. Based on analysis of previous ICRs, EPA estimates the current annual burden of RCRA regulations at 3.4 million hours and $ 329 million.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in this final rule.

C. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 ( RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 ( SBREFA), requires EPA to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on 242 a substantial number of small entities ( i. e., small businesses, small governments, and small non profit organizations). However, a regulatory flexibility analysis is not required if the Administrator certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA further requires EPA to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

For purposes of assessing the impacts of the final rule on small entities, a " small entity" is defined as: ( 1) a small business; ( 2)

a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and ( 3) a small organization that is any not for profit enterprise which is independently owned and operated and is not dominant in its field.

EPA has examined the final rule's potential effects on small entities as required by the Regulatory Flexibility Act and has determined that this action will not have a significant economic impact on a substantial number of small entities. The final rule is specifically intended to reduce, not increase, the paperwork and related burdens of the RCRA hazardous waste program. For businesses in general, including all small businesses, the regulatory changes will reduce the labor time and other costs of preparing,

keeping records of, and submitting reports to the Agency. The final rule, for example, reduces the frequency by which businesses must conduct specified recordkeeping and reporting activities ( e. g., decreased inspection frequency for hazardous waste tanks from 243 daily to weekly). It also eliminates certain recordkeeping and reporting requirements altogether, i. e., in cases where the documents are little used by the public or regulators. In addition, the rule eliminates redundancies between the RCRA regulations and other regulatory programs ( e. g., RCRA and OSHA requirements for personnel training), thereby streamlining facilities' compliance activities. Finally, the rule provides increased flexibility in how waste handlers may comply with the regulations ( e. g., establishment of decreased inspection frequencies for facilities in the National Performance Track Program).

Based on the above, EPA certifies that the final rule will not have a significant adverse economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under Section 202 of the UMRA, EPA must prepare a written statement for rules with Federal mandates that may result in the expenditure by state, local, and tTribal governments, in the aggregate, or by the private sector, of $ 100 million or more in any one year. Before promulgating a rule for which a written statement is needed, Section 205 of the UMRA requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The 244 provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed, under Section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments; enabling officials of affected small governments to provide meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates; and informing,

educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that the final rule does not contain a Federal mandate that may result in expenditures of $ 100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector, in any one year. In addition, the rule contains no regulatory requirements for small governments. Thus, the final rule is not subject to the requirements of Sections 202, 203, and 205 of the UMRA.

E. Executive Order 13132: Federalism 245 Executive Order 13132 requires EPA to develop an accountable process to ensure " meaningful and timely input by state and local officials in the development of regulatory policies that have Federalism implications." As defined in Executive Order 13132,

" policies that have Federalism implications" include regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA may not issue a regulation that has Federalism implications and that preempts state law, unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

The final rule does not have Federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it will not impose any requirements on states or any other level of government. As explained above, the final rule eliminates or relaxes many of the paperwork requirements in the regulations. Because 246 these changes are equivalent to or less stringent than the existing Federal program, states will not be required to adopt and seek authorization for them. Thus, the requirements of Section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments Executive Order 13175 requires EPA to develop an accountable process to ensure " meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications." As defined in Executive Order 13175, " policies that have Tribal implications" include regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

The final rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. As explained above, the final rule eliminates or relaxes many of the paperwork requirements in the regulations. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks 247 Executive Order 13045 applies to any rule that may: ( 1) be " economically significant" under Executive Order 12866 ( i. e., a rulemaking that has an annual effect on the economy of $ 100 million or more or would adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities), and ( 2) concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA has determined that the final rule is not subject to Executive Order 13045 because it is not an " economically significant"

rule as defined by Executive Order 12866. EPA also expects the rule does not have a disproportionate effect on children's health. The basic reason for this finding is that the rule modifies or eliminates paperwork requirements that were deemed unnecessary or infrequently used by regulators. However, the rule preserves the technical requirements underlying these paperwork requirements. In addition, regulators continue to have access to all facility paperwork held on site, should the need arise.

In addition, EPA has reduced the inspection frequency of tank systems from each operating day to at least weekly, provided that the tank systems have full secondary containment with leak detection equipment or established workplace practices that will alert 248 facility personnel. SQG tank systems are required to have secondary containment with leak detection equipment or established workplace practices to adopt the weekly inspections.

H. Executive Order 13211: Actions that Significantly Affect Energy Supply,

Distribution, or Use Executive Order 13211 requires EPA to prepare and submit a Statement of Energy Effects to OMB for those matters identified as significant energy actions. As defined in Executive Order 13211, a " significant energy action" is any action by an agency ( normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking that: ( 1) is a significant regulatory action under Executive Order 12866 or any successor order and is likely to have a significant adverse effect on the supply, distribution,

or use of energy; or ( 2) is designated by OMB as a significant energy action.

The final rule does not involve the supply, distribution, or use of energy. Thus, Executive Order 13211 does not apply to this rule. I. National Technology Transfer and Advancement Act of 1995 249 Section 12( d) of the National Technology Transfer and Advancement Act of 1995 ( NTTAA), Public Law 104 113, directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures) that are developed or adopted by voluntary consensus standards bodies. The NTTAA also directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

The final rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations Under Executive Order 12898, as well as through EPA's April 1995 " Environmental Justice Strategy, OSWER Environmental Justice Task Force Action Agency Report" and National Environmental Justice Advisory Council, EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns, and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the U. S. The Agency's goals 250 are to ensure that no segment of the population, regardless of race, color, national origin, or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities.

EPA has considered the impacts of the final rule on low income populations and minority populations and concluded that there are no disproportionately high impacts under the rule. The basic reason for this finding is that the rule modifies or eliminates paperwork requirements that were deemed unnecessary or infrequently used by regulators. However, the rule preserves the technical requirements underlying these paperwork requirements. In addition, regulators continue to have access to all facility paperwork held on site, should the need arise.

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

K. Congressional Review Act The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the 251 United States. EPA will submit a report containing this rule and other required information to the U. S. Senate, the U. S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a " major rule" as defined by 5 U. S. C.

804( 2). This rule will be effective [ INSERT 30 DAYS AFTER DATE OF PUBLICATION].

List of Subjects 40 CFR Part 260 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste Reporting and recordkeeping requirements.

40 CFR Part 261 Excluded hazardous waste, Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 264 Air pollution control, Hazardous waste, Insurance, Packaging and containers, Reporting and recordkeeping requirements, Security measures, Surety bonds. 252 40 CFR Part 265 Air pollution control, Hazardous waste, Insurance, Packaging and containers, Reporting and recordkeeping requirements, Security measures, Surety bonds, Water supply.

40 CFR Part 266 Energy, Hazardous waste, Recycling, Reporting and recordkeeping requirements.

40 CFR Part 268 Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 270 Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste,

Reporting and recordkeeping requirements, Water pollution control, Water supply.

40 CFR Part 271 253 Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste,

Indians lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control, Water supply.

Dated Stephen L. Johnson, Administrator 254 For the reasons set out in the preamble, title 40 of the Code of Federal Regulations is amended as follows:

PART 260 HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL 1. The authority citation for part 260 continues to read as follows:

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

Subpart B  Definitions 2. Section 260.10 is amended by adding in alphabetical order the definition of Performance Track member facility to read as follows:

§ 260.10 Definitions.

* * * * *

Performance Track member facility means a facility that has been accepted by EPA for membership in the National Environmental Performance Track Program and is still a member of the Program. The National Environmental Performance Track Program is a voluntary, facility based, program for top environmental performers. Facility members must demonstrate a good record 255 of compliance, past success in achieving environmental goals, and commit to future specific quantified environmental goals,

environmental management systems, local community outreach, and annual reporting of measurable results.

* * * * *

Subpart C  Rulemaking Petitions § 260.31  [ Amended]

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

through ( b)( 7).

PART 261  IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 4. The authority citation for part 261 continues to read as follows:

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

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

§ 261.4 Exclusions. 256 ( a) * * *

( 9) * * *

( iii) * * *

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

* * * * *

( f) * * * 257 ( 9) The facility prepares and submits a report to the Regional Administrator, or state Director ( if located in an authorized state), by March 15 of each year, that includes the following information for the previous calendar year:

* * * * *

PART 264  STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT,

STORAGE, AND DISPOSAL FACILITIES 6. The authority citation for part 264 continues to read as follows:

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

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

§ 264.15 General inspection requirements.

* * * * *

( b) * * * 258 ( 4) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use, except for Performance Track member facilities, that must inspect at least once each month, upon approval by the Director, as described in paragraph ( b)( 5) of this section. At a minimum, the inspection schedule must include the items and frequencies called for in § § 264.174, 264.193, 264.195, 264.226, 264.254, 264.278, 264.303, 264.347, 264.602, 264.1033, 264.1052,

264.1053, 264.1058, and 264.1083 through 264.1089 of this part, where applicable.

* * * * *

( 5) Performance Track member facilities that choose to reduce their inspection frequency must:

( i) Submit a request for a Class I permit modification with prior approval to the Director. The modification request must identify the facility as a member of the National Environmental Performance Track Program and identify the management units for reduced inspections and the proposed frequency of inspections. The modification request must also specify, in writing, that the reduced inspection frequency will apply for as long as the facility is a Performance Track member facility, and that within seven 259 calendar days of ceasing to be a Performance Track member, the facility will revert to the non Performance Track inspection frequency. Inspections must be conducted at least once each month.

( ii) Within 60 days, the Director will notify the Performance Track member facility, in writing, if the request is approved,

denied, or if an extension to the 60 day deadline is needed. This notice must be placed in the facility's operating record. The Performance Track member facility should consider the application approved if the Director does not: ( 1) deny the application; or ( 2)

notify the Performance Track member facility of an extension to the 60 day deadline. In these situations, the Performance Track member facility must adhere to the revised inspection schedule outlined in its request for a Class 1 permit modification and keep a copy of the application in the facility's operating record.

( iii) Any Performance Track member facility that discontinues their membership or is terminated from the program must immediately notify the Director of their change in status. The facility must place in its operating record a dated copy of this notification and revert back to the non Performance Track inspection frequencies within seven calendar days.

* * * * *

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

§ 264.16 Personnel training. 260 ( a)( 1) * * *

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

* * * * *

Subpart D  Contingency Plan and Emergency Procedures 9. Section 264.52 is amended by revising paragraph ( b) to read as follows:

§ 264.52 Content of contingency plan.

* * * * *

( b) If the owner or operator has already prepared a Spill Prevention, Control, and Countermeasures ( SPCC) Plan in accordance with part 112 of this chapter, or part 1510 of chapter V, or some other emergency or contingency plan, he need only amend that plan to incorporate hazardous waste management provisions that are sufficient to comply with the requirements of this part. The owner or operator may develop one contingency plan which meets all regulatory requirements. EPA recommends that the plan be based on the 261 National Response Team's Integrated Contingency Plan Guidance (" One Plan"). When modifications are made to non RCRA provisions in an integrated contingency plan, the changes do not trigger the need for a RCRA permit modification.

* * * * *

§ 264.56  [ Amended]

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

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

§ 264.73 Operating record.

* * * * *

( b) The following information must be recorded, as it becomes available, and maintained in the operating record for three years unless noted as follows: 262 ( 1) A description and the quantity of each hazardous waste received, and the method( s) and date( s) of its treatment, storage, or disposal at the facility as required by Appendix I of this part. This information must be maintained in the operating record until closure of the facility;

( 2) The location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram that shows each cell or disposal area. For all facilities, this information must include cross references to manifest document numbers if the waste was accompanied by a manifest.

This information must be maintained in the operating record until closure of the facility.

* * * * *

( 6) Monitoring, testing or analytical data, and corrective action where required by subpart F of this part and § § 264.19,

264.191, 264.193, 264.195, 264.222, 264.223, 264.226, 264.252 264.254, 264.276, 264.278, 264.280, 264.302 264.304, 264.309,

264.602, 264.1034( c) 264.1034( f), 264.1035, 264.1063( d) 264.1063( i), 264.1064, and 264.1082 through 264.1090 of this part.

Maintain in the operating record for three years, except for records and results pertaining to ground water monitoring and cleanup which must be maintained in the operating record until closure of the facility.

* * * * * 263 ( 8) All closure cost estimates under § 264.142, and for disposal facilities, all post closure cost estimates under § 264.144 of this part. This information must be maintained in the operating record until closure of the facility.

* * * * *

( 10) Records of the quantities and date of placement for each shipment of hazardous waste placed in land disposal units under an extension to the effective date of any land disposal restriction granted pursuant to § 268.5 of this chapter, a petition pursuant to § 268.6 of this chapter, or a certification under § 268.8 of this chapter, and the applicable notice required by a generator under § 268.7( a)

of this chapter. This information must be maintained in the operating record until closure of the facility.

* * * * *

( 18) Monitoring, testing or analytical data where required by § 264.347 must be maintained in the operating record for five years. ( 19) Certifications as required by § 264.196( f) must be maintained in the operating record until closure of the facility.

Subpart F  Releases From Solid Waste Management Units 12. Section 264.98 is amended by revising paragraphs ( d), ( g)( 2), and ( g)( 3) to read as follows: 264 § 264.98 Detection monitoring program.

* * * * *

( d) The Regional Administrator will specify the frequencies for collecting samples and conducting statistical tests to determine whether there is statistically significant evidence of contamination for any parameter or hazardous constituent specified in the permit conditions under paragraph ( a) of this section in accordance with § 264.97( g).

* * * * *

( g) * * *

( 2) Immediately sample the ground water in all monitoring wells and determine whether constituents in the list of appendix IX of this part are present, and if so, in what concentration. However, the Regional Administrator, on a discretionary basis, may allow sampling for a site specific subset of constituents from the Appendix IX list of this part and other representative/ related waste constituents.

( 3) For any appendix IX compounds found in the analysis pursuant to paragraph ( g)( 2) of this section, the owner or operator may resample within one month or at an alternative site specific schedule approved by the Administrator and repeat the analysis for 265 those compounds detected. If the results of the second analysis confirm the initial results, then these constituents will form the basis for compliance monitoring. If the owner or operator does not resample for the compounds in paragraph ( g)( 2) of this section, the hazardous constituents found during this initial appendix IX analysis will form the basis for compliance monitoring.

* * * * *

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

§ 264.99 Compliance monitoring program.

* * * * *

( f) The Regional Administrator will specify the frequencies for collecting samples and conducting statistical tests to determine statistically significant evidence of increased contamination in accordance with § 264.97( g).

( g) Annually, the owner or operator must determine whether additional hazardous constituents from Appendix IX of this part,

which could possibly be present but are not on the detection monitoring list in the permit, are actually present in the uppermost aquifer and, if so, at what concentration, pursuant to procedures in § 264.98( f). To accomplish this, the owner or operator must consult with the Regional Administrator to determine on a case by case basis: which sample collection event during the year will involve enhanced 266 sampling; the number of monitoring wells at the compliance point to undergo enhanced sampling; the number of samples to be collected from each of these monitoring wells; and, the specific constituents from Appendix IX of this part for which these samples must be analyzed. If the enhanced sampling event indicates that Appendix IX constituents are present in the ground water that are not already identified in the permit as monitoring constituents, the owner or operator may resample within one month or at an alternative site specific schedule approved by the Regional Administrator, and repeat the analysis. If the second analysis confirms the presence of new constituents, the owner or operator must report the concentration of these additional constituents to the Regional Administrator within seven days after the completion of the second analysis and add them to the monitoring list. If the owner or operator chooses not to resample, then he or she must report the concentrations of these additional constituents to the Regional Administrator within seven days after completion of the initial analysis, and add them to the monitoring list.

* * * * *

14. Section 264.100 is amended by revising paragraph ( g) to read as follows:

§ 264.100 Corrective action program.

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

* * * * *

Subpart G  Closure and Post Closure 15. Section 264.113 is amended by revising paragraph ( e)( 5) to read as follows:

§ 264.113 Closure; time allowed for closure.

* * * * *

( e) * * *

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

* * * * *

16. Section 264.115 is revised to read as follows: 268 § 264.115 Certification of closure.

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

17. Section 264.120 is revised to read as follows:

§ 264.120 Certification of completion of post closure care.

No later than 60 days after completion of the established post closure care period for each hazardous waste disposal unit, the owner or operator must submit to the Regional Administrator, by registered mail, a certification that the post closure care period for the hazardous waste disposal unit was performed in accordance with the specifications in the approved post closure plan. The certification must be signed by the owner or operator and an independent, qualified Professional Engineer. Documentation supporting 269 the independent, Professional Engineer's certification must be furnished to the Regional Administrator upon request until he releases the owner or operator from the financial assurance requirements for post closure care under § 264.145( i).

Subpart H  Financial Requirements 18. Section 264.143 is amending by revising paragraph ( i) to read as follows:

§ 264.143 Financial assurance for closure.

* * * * *

( i) Release of the owner or operator from the requirements of this section. Within 60 days after receiving certifications from the owner or operator and a qualified n independent, Professional Engineer that final closure has been completed in accordance with the approved closure plan, the Regional Administrator will notify the owner or operator in writing that he is no longer required by this section to maintain financial assurance for final closure of the facility, unless the Regional Administrator has reason to believe that final closure has not been approved in accordance with the approved closure plan. The Regional Administrator shall provide the owner or operator a detailed written statement of any such reason to believe that closure has not been in accordance with the approved closure plan. 270 19. Section 264.145 is amending by revising paragraph ( i) to read as follows:

§ 264.145 Financial assurance for post closure care.

* * * * *

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

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

§ 264.147 Liability requirements.

* * * * * 271 ( e) Period of coverage. Within 60 days after receiving certifications from the owner or operator and an independent, qualified Professional Engineer that final closure has been completed in accordance with the approved closure plan, the Regional Administrator will notify the owner or operator in writing that he is no longer required by this section to maintain liability coverage for that facility,

unless the Regional Administrator has reason to believe that closure has not been in accordance with the approved closure plan.

* * * * *

Subpart I  Use and Management of Containers 21. Section 264.174 is revised ( the comment to § 264.174 is unchanged) to read as follows:

§ 264.174 Inspections.

At least weekly, the owner or operator must inspect areas where containers are stored, except for Performance Track member facilities, that may conduct inspections at least once each month, upon approval by the Director. To apply for reduced inspection frequency, the Performance Track member facility must follow the procedures identified in § 264.15( b)( 5) of this part. The owner or operator must look for leaking containers and for deterioration of containers and the containment system caused by corrosion or other factors. 272 * * * * *

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

§ 264.191 Assessment of existing tank system's integrity.

( a) For each existing tank system that does not have secondary containment meeting the requirements of § 264.193, the owner or operator must determine that the tank system is not leaking or is unfit for use. Except as provided in paragraph ( c) of this section,

the owner or operator must obtain and keep on file at the facility an assessment reviewed and certified by an independent, qualified Professional Engineer, in accordance with § 270.11( d) of this chapter, that attests to the tank system's integrity by January 12, 1988.

( b) * * *

( 5) * * * 273 ( ii) For other than non enterable underground tanks and for ancillary equipment, this assessment must include either a leak test,

as described above, or other integrity examination that is certified by an independent, qualified Professional Engineer in accordance with § 270.11( d) of this chapter, that addresses cracks, leaks, corrosion, and erosion.

* * * * *

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

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

( a) Owners or operators of new tank systems or components must obtain and submit to the Regional Administrator, at time of submittal of part B information, a written assessment, reviewed and certified by an independent, qualified Professional Engineer, in accordance with § 270.11( d) of this chapter, attesting that the tank system has sufficient structural integrity and is acceptable for the storing and treating of hazardous waste. The assessment must show that the foundation, structural support, seams, connections, and pressure controls ( if applicable) are adequately designed and that the tank system has sufficient structural strength, compatibility with the waste( s) to be stored or treated, and corrosion protection to ensure that it will not collapse, rupture, or fail. This assessment, which will be used by the Regional Administrator to review and approve or disapprove the acceptability of the tank system design, must include, at a minimum, the following information: 274 * * * * *

( b) The owner or operator of a new tank system must ensure that proper handling procedures are adhered to in order to prevent damage to the system during installation. Prior to covering, enclosing, or placing a new tank system or component in use, an independent, qualified, installation inspector or an independent, qualified Professional Engineer, either of whom is trained and experienced in the proper installation of tanks systems or components, must inspect the system for the presence of any of the following items:

* * * * *

24. Section 264.193 is amended by:

a. Removing paragraphs ( a)( 2) through ( a)( 4);

b. Redesignating ( a)( 5) as ( a)( 2);

c. Revising paragraphs ( a)( 1), newly designated ( a)( 2), and ( h)( 4)( i)( 2) to read as follows:

§ 264.193 Containment and detection of releases.

( a) * * * 275 ( 1) For all new and existing tank systems or components, prior to their being put into service.

( 2) For tank systems that store or treat materials that become hazardous wastes, within two years of the hazardous waste listing,

or when the tank system has reached 15 years of age, whichever comes later.

* * * * *

( h) * * *

( 4) * * *

( i) * * *

( 2) For other than non enterable underground tanks, the owner or operator must either conduct a leak test as in paragraph ( i)( 1)

of this section or develop a schedule and procedure for an assessment of the overall condition of the tank system by an independent,

qualified Professional Engineer. The schedule and procedure must be adequate to detect obvious cracks, leaks, and corrosion or erosion that may lead to cracks and leaks. The owner or operator must remove the stored waste from the tank, if necessary, to allow the condition of all internal tank surfaces to be assessed. The frequency of these assessments must be based on the material of construction 276 of the tanks and its ancillary equipment, the age of the system, the type of corrosion or erosion protection used, the rate of corrosion or erosion observed during the previous inspection, and the characteristics of the waste being stored or treated.

* * * * *

25. Section 264.195 is amended by:

a. Revising paragraph ( b) ( the note to paragraph ( b) is unchanged);

b. Redesignating existing paragraphs ( c) and ( d), as paragraphs ( g) and ( h), respectively;

c. Adding new paragraphs ( c) through ( f), to read as follows:

§ 264.195 Inspections.

* * * * *

( b) The owner or operator must inspect at least once each operating day data gathered from monitoring and leak detection equipment ( e. g., pressure or temperature gauges, monitoring wells) to ensure that the tank system is being operated according to its design.

* * * * * 277 ( c) In addition, except as noted under the provision of § 264.195( d), the owner or operator must inspect at least once each operating day:

( 1) Above ground portions of the tank system, if any, to detect corrosion or releases of waste.

( 2) The construction materials and the area immediately surrounding the externally accessible portion of the tank system,

including the secondary containment system ( e. g., dikes) to detect erosion or signs of releases of hazardous waste ( e. g., wet spots, dead vegetation).

( d) Owners or operators of tank systems with full secondary containment and that either use leak detection systems to alert facility personnel to leaks, or implement established workplace practices to ensure leaks are promptly identified, must inspect at least weekly those areas described in paragraphs ( c)( 1) and ( c)( 2) of this section. Use of the alternate inspection schedule must be documented in the facility's operating record. This documentation must include a description of the established workplace practices at the facility.

( e) Performance Track member facilities may inspect on a less frequent basis, upon approval by the Director, but must inspect at least once each month. To apply for a less than weekly inspection frequency, the Performance Track member facility must follow the procedures described in § 264.15( b)( 5). 278 ( f) Ancillary equipment that is not provided with secondary containment, as described in § 264.193( f)( 1) through ( 4), must be inspected at least once each operating day.

* * * * *

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

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

* * * * *

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

* * * * * 279 Subpart L  Waste Piles 27. Section 264.251 is amended by revising the introductory text to paragraph ( c) to read as follows:

§ 264.251 Design and operating requirements.

* * * * *

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

* * * * *

Subpart M  Land Treatment 28. Section 264.280 is amended by revising paragraph ( b) to read as follows:

§ 264.280 Closure and post closure care.

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

* * * * *

Subpart N  Landfills 29. Section 264.314 is amended by:

a. Removing paragraph ( a);

b. Redesignating paragraphs ( b) through ( f) as paragraphs ( a) through ( e); and,

c. Revising newly designated paragraphs ( a) and newly designated paragraph ( e) introductory text to read as follows:

§ 264.314 Special requirements for bulk and containerized liquids.

( a) The placement of bulk or non containerized liquid hazardous waste or hazardous waste containing free liquids ( whether or not sorbents have been added) in any landfill is prohibited.

* * * * * 281 ( e) The placement of any liquid which is not a hazardous waste in a landfill is prohibited unless the owner or operator of such landfill demonstrates to the Regional Administrator, or the Regional Administrator determines that:

* * * * *

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

§ 264.343 Performance standards.

* * * * *

( a)( 1) * * *

( 2) An incinerator burning hazardous wastes FO20, FO21, FO22, FO23, FO26, or FO27 must achieve a destruction and removal efficiency ( DRE) of 99.9999% for each principal organic hazardous constituent ( POHC) designated ( under § 264.342) in its permit. This performance must be demonstrated on POHCs that are more difficult to incinerate than tetra, penta, and hexachlorodibenzo p dioxins and dibenzofurans. DRE is determined for each POHC from the equation in § 264.343( a)( 1).

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

§ 264.347 Monitoring and inspections.

* * * * *

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

Subpart S  Special Provisions for Cleanup 32. Section 264.554 is amended by revising paragraph ( c)( 2) to read as follows:

§ 264.554 Staging piles.

* * * * *

( c) * * *

( 2) Certification by an independent, qualified Professional Engineer for technical data, such as design drawings and specifications, and engineering studies, unless the Director determines, based on information that you provide, that this certification is not necessary to ensure that a staging pile will protect human health and the environment; and 283 * * * * *

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

§ 264.571 Assessment of existing drip pad integrity.

( a) For each existing drip pad as defined in § 264.570 of this subpart, the owner or operator must evaluate the drip pad and determine whether it meets all of the requirements of this subpart, except the requirements for liners and leak detection systems of §

264.573( b). No later than the effective date of [ Insert Date 30 Days for Date of Publication], the owner or operator must obtain and keep on file at the facility a written assessment of the drip pad, reviewed and certified by an independent, qualified Professional Engineer that attests to the results of the evaluation. The assessment must be reviewed, updated and re certified annually until all upgrades, repairs, or modifications necessary to achieve compliance with all the standards of § 264.573 are complete. The evaluation must document the extent to which the drip pad meets each of the design and operating standards of § 264.573, except the standards for liners and leak detection systems, specified in § 264.573( b).

( b) The owner or operator must develop a written plan for upgrading, repairing, and modifying the drip pad to meet the requirements of § 264.573( b) and submit the plan to the Regional Administrator no later than 2 years before the date that all repairs, 284 upgrades, and modifications are complete. This written plan must describe all changes to be made to the drip pad in sufficient detail to document compliance with all the requirements of § 264.573. The plan must be reviewed and certified by an independent, qualified Professional Engineer.

( c) Upon completion of all upgrades, repairs, and modifications, the owner or operator must submit to the Regional Administrator or state Director, the as built drawings for the drip pad together with a certification by an independent, qualified Professional Engineer attesting that the drip pad conforms to the drawings.

* * * * *

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

§ 264.573 Design and operating requirements.

( a) * * *

( 4) * * *

( ii) The owner or operator must obtain and keep on file at the facility a written assessment of the drip pad, reviewed and certified by an independent, qualified Professional Engineer that attests to the results of the evaluation. The assessment must be 285 reviewed, updated and recertified annually. The evaluation must document the extent to which the drip pad meets the design and operating standards of this section, except for paragraph ( b) of this section.

* * * * *

( g) The drip pad must be evaluated to determine that it meets the requirements of paragraphs ( a) through ( f) of this section and the owner or operator must obtain a statement from an independent, qualified Professional Engineer certifying that the drip pad design meets the requirements of this section.

* * * * *

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

§ 264.574 Inspections.

( a) During construction or installation, liners and cover systems ( e. g., membranes, sheets, or coatings) must be inspected for uniformity, damage and imperfections ( e. g., holes, cracks, thin spots, or foreign materials). Immediately after construction or installation, liners must be inspected and certified as meeting the requirements in § 264.573 of this subpart by a independent, qualified 286 Professional Engineer. This certification must be maintained at the facility as part of the facility operating record. After installation,

liners and covers must be inspected to ensure tight seams and joints and the absence of tears, punctures, or blisters.

* * * * *

Subpart BB  Air Emission Standards for Equipment Leaks § 264.1061  [ Amended]

36. Section 264.1061 is amended by:

a. Removing paragraphs ( b)( 1) and ( d); and,

b. Redesignating paragraphs ( b)( 2) and ( b)( 3) as paragraphs ( b)( 1) and ( b)( 2).

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

* * * * *

Subpart DD  Containment Buildings 38. Section 264.1100 is amended by revising the introductory text to read as follows:

§ 264.1100 Applicability. 287 The requirements of this subpart apply to owners or operators who store or treat hazardous waste in units designed and operated under § 264.1101 of this subpart. The owner or operator is not subject to the definition of land disposal in RCRA section 3004( k)

provided that the unit:

* * * * *

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

§ 264.1101 Design and operating standards.

* * * * *

( c) * * *

( 2) Obtain and keep on site a certification by a qualified Professional Engineer that the containment building design meets the requirements of paragraphs ( a), ( b), and ( c) of this section.

* * * * *

( 4) Inspect and record in the facility's operating record, at least once every seven days, except for Performance Track member facilities that must inspect at least once each month, upon approval by the Director, data gathered from monitoring and leak detection 288 equipment as well as the containment building and the area immediately surrounding the containment building to detect signs of releases of hazardous waste. To apply for reduced inspection frequency, the Performance Track member facility must follow the procedures described in § 264.15( b)( 5).

* * * * *

PART 265  INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES 40. The authority citation for Part 265 continues to read as follows:

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

Subpart B  General Facility Standards 41. Section 265.15 is amended by revising paragraph ( b)( 4) and adding paragraph ( b)( 5) to read as follows:

§ 265.15 General inspection requirements.

* * * * *

( b) * * * 289 ( 4) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use, except for Performance Track member facilities, that must inspect at least once each month, upon approval by the Director, as described in paragraph ( b)( 5) of this section. At a minimum, the inspection schedule must include the items and frequencies called for in § § 265.174, 265.193, 265.195, 265.226, 265.260, 265.278, 265.304, 265.347, 265.377, 265.403, 265.1033,

265.1052, 265.1053, 265.1058, and 265.1084 through 265.1090, where applicable.

( 5) Performance Track member facilities that choose to reduce inspection frequencies must:

( i) Submit an application to the Director. The application must identify the facility as a member of the National Environmental Performance Track Program and identify the management units for reduced inspections and the proposed frequency of inspections.

Inspections must be conducted at least once each month.

( ii) Within 60 days, the Director will notify the Performance Track member facility, in writing, if the application is approved,

denied, or if an extension to the 60 day deadline is needed. This notice must be placed in the facility's operating record. The Performance Track member facility should consider the application approved if the Director does not: ( 1) deny the application; or ( 2) 290 notify the Performance Track member facility of an extension to the 60 day deadline. In these situations, the Performance Track member facility must adhere to the revised inspection schedule outlined in its application and maintain a copy of the application in the facility's operating record.

( iii) Any Performance Track member facility that discontinues its membership or is terminated from the program must immediately notify the Director of its change in status. The facility must place in its operating record a dated copy of this notification and revert back to the non Performance Track inspection frequencies within seven calendar days.

* * * * *

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

§ 265.16 Personnel training.

( a)( 1) * * *

( 4) For facility employees that receive emergency response training pursuant to Occupational Safety and Health Administration ( OSHA) regulations 29 CFR 1910.120( p)( 8) and 1910.120( q), the facility is not required to provide separate emergency response training pursuant to this section, provided that the overall facility training meets all the requirements of this section. 291 * * * * *

Subpart D  Contingency Plans and Emergency Procedures 43. Section 265.52 is amended by revising paragraph ( b) to read as follows:

§ 265.52 Content of contingency plan.

* * * * *

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

* * * * *

§ 265.56  [ Amended] 292 44. Section 265.56 is amended by removing paragraph ( i) and redesignating paragraph ( j) as paragraph ( i).

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

§ 265.73 Operating record.

* * * * *

( b) The following information must be recorded, as it becomes available, and maintained in the operating record for three years unless noted below:

( 1) A description and the quantity of each hazardous waste received, and the method( s) and date( s) of its treatment, storage, or disposal at the facility. This information must be maintained in the operating record until closure of the facility;

( 2) The location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram of each cell or disposal area. For all facilities, this 293 information must include cross references to manifest document numbers if the waste was accompanied by a manifest. This information must be maintained in the operating record until closure of the facility;

* * * * *

( 6) Monitoring, testing or analytical data, and corrective action where required by subpart F of this part and § § 265.19, 265.94,

265.191, 265.193, 265.195, 265.222, 265.226, 265.255, 265.260, 265.276, 265.278, 265.280( d)( 1), 265.302, 265.304, 265.347,

265.377, 265.1034( c) through 265.1034( f), 265.1035, 265.1063( d) through 265. 265.1063( i), 265.1064, and 265.1083 through 265.1090. Maintain in the operating record for three years, except for records and results pertaining to ground water monitoring and cleanup, and response action plans for surface impoundments, waste piles, and landfills, which must be maintained in the operating record until closure of the facility.

* * * * *

( 7) All closure cost estimates under § 265.142 and, for disposal facilities, all post closure cost estimates under § 265.144 must be maintained in the operating record until closure of the facility.

( 8) Records of the quantities ( and date of placement) for each shipment of hazardous waste placed in land disposal units under an extension to the effective date of any land disposal restriction granted pursuant to § 268.5 of this chapter, monitoring data required 294 pursuant to a petition under § 268.6 of this chapter, or a certification under § 268.8 of this chapter, and the applicable notice required by a generator under § 268.7( a) of this chapter. All of this information must be maintained in the operating record until closure of the facility.

* * * * *

( 15) Monitoring, testing or analytical data, and corrective action where required by § § 265.90, 265.93( d)( 2), and 265.93( d)( 5),

and the certification as required by § 265.196( f) must be maintained in the operating record until closure of the facility.

Subpart F  Ground  Water Monitoring 46. Section 265.90 is amended by revising paragraphs ( d)( 1) and ( d)( 3) to read as follows:

§ 265.90 Applicability.

* * * * *

( d) * * * 295 ( 1) Within one year after the effective date of these regulations, develop a specific plan, certified by a qualified geologist or geotechnical engineer, which satisfies the requirements of § 265.93( d)( 3), for an alternate ground water monitoring system. This plan is to be placed in the facility's operating record and maintained until closure of the facility.

* * * * *

( 3) Prepare a report in accordance with § 265.93( d)( 5) and place it in the facility's operating record and maintain until closure of the facility.

* * * * *

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

§ 265.93 Preparation, evaluation, and response.

* * * * *

( d)( 1) * * * 296 ( 2) Within 15 days after the notification under paragraph ( d)( 1) of this section, the owner or operator must develop a specific plan, based on the outline required under paragraph ( a) of this section and certified by a qualified geologist or geotechnical engineer, for a ground water quality assessment at the facility. This plan must be placed in the facility operating record and be maintained until closure of the facility.

* * * * *

( 5) The owner or operator must make his first determination under paragraph ( d)( 4) of this section, as soon as technically feasible, and prepare a report containing an assessment of ground water quality. This report must be placed in the facility operating record and be maintained until closure of the facility.

* * * * *

Subpart G  Closure and Post Closure 48. Section 265.113 is amended by revising paragraph ( e)( 5) to read as follows:

§ 265.113 Closure; time allowed for closure.

* * * * * 297 ( e) * * *

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

* * * * *

49. Section 265.115 is revised to read as follows:

§ 265.115 Certification of closure.

Within 60 days of completion of closure of each hazardous waste surface impoundment, waste pile, land treatment, and landfill unit, and within 60 days of completion of final closure, the owner or operator must submit to the Regional Administrator, by registered mail, a certification that the hazardous waste management unit or facility, as applicable, has been closed in accordance with the specifications in the approved closure plan. The certification must be signed by the owner or operator and by an independent, qualified Professional Engineer. Documentation supporting the independent, Professional Engineer's certification must be furnished to the Regional Administrator upon request until he releases the owner or operator from the financial assurance requirements for closure under § 265.143( h). 298 50. Section 265.120 is revised to read as follows:

§ 265.120. Certification of completion of post closure care.

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

Subpart H  Financial Requirements 51. Section 265.143 is amended by revising paragraph ( h) to read as follows:

§ 265.143 Financial assurance for closure.

* * * * * 299 ( h) Release of the owner or operator from the requirements of this section. Within 60 days after receiving certifications from the owner or operator and an independent, qualified Professional Engineer that final closure has been completed in accordance with the approved closure plan, the Regional Administrator will notify the owner or operator in writing that he is no longer required by this section to maintain financial assurance for final closure of the facility, unless the Regional Administrator has reason to believe that final closure has not been approved in accordance with the approved closure plan. The Regional Administrator shall provide the owner or operator a detailed written statement of any such reason to believe that closure has not been in accordance with the approved closure plan. 52. Section 265.145 is amended by revising paragraph ( h) to read as follows:

§ 265.145 Financial assurance for post closure care.

* * * * *

( h) Release of the owner or operator from the requirements of this section. Within 60 days after receiving certifications from the owner or operator and an independent qualified Professional Engineer that the post closure has been completed for a hazardous waste disposal unit in accordance with the approved plan, the Regional Administrator will notify the owner or operator that he is no longer required to maintain financial assurance for post closure of that unit, unless the Regional Administrator has reason to believe that 300 post closure care has not been in accordance with the approved post closure plan. The Regional Administrator shall provide the owner or operator a detailed written statement of any such reason to believe that post closure care has not been in accordance with the approved post closure plan.

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

§ 265.147 Liability requirements.

* * * * *

( e) Period of coverage. Within 60 days after receiving certifications from the owner or operator and an independent qualified Professional Engineer that final closure has been completed in accordance with the approved closure plan, the Regional Administrator will notify the owner or operator in writing that he is no longer required by this section to maintain liability coverage for that facility,

unless the Regional Administrator has reason to believe that closure has not been in accordance with the approved closure plan.

* * * * *

Subpart I  Use and Management of Containers 54. Section 265.174 is revised ( the comment to § 265.174 is unchanged) to read as follows: 301 § 265.174 Inspections.

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

* * * * *

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

§ 265.191 Assessment of existing tank system's integrity.

( a) For each existing tank system that does not have secondary containment meeting the requirements of § 265.193, the owner or operator must determine that the tank system is not leaking or is unfit for use. Except as provided in paragraph ( c) of this section, the 302 owner or operator must obtain and keep on file at the facility a written assessment reviewed and certified by an independent qualified Professional Engineer in accordance with § 270.11( d) of this chapter, that attests to the tank system's integrity by January 12, 1988.

( b) * * *

( 5) * * *

( ii) For other than non enterable underground tanks and for ancillary equipment, this assessment must be either a leak test, as described above, or an internal inspection and/ or other tank integrity examination certified by an independent, qualified Professional Engineer in accordance with § 270.11( d) of this chapter that addresses cracks, leaks, corrosion, and erosion.

* * * * *

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

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

( a) Owners or operators of new tank systems or components must ensure that the foundation, structural support, seams,

connections, and pressure controls ( if applicable) are adequately designed and that the tank system has sufficient structural strength,

compatibility with the waste( s) to be stored or treated, and corrosion protection so that it will not collapse, rupture, or fail. The owner 303 or operator must obtain a written assessment reviewed and certified by an independent, qualified Professional Engineer in accordance with § 270.11( d) of this chapter attesting that the system has sufficient structural integrity and is acceptable for the storing and treating of hazardous waste. This assessment must include the following information:

* * * * *

( b) The owner or operator of a new tank system must ensure that proper handling procedures are adhered to in order to prevent damage to the system during installation. Prior to covering, enclosing, or placing a new tank system or component in use, an independent, qualified installation inspector or an independent qualified Professional Engineer, either of whom is trained and experienced in the proper installation of tank systems, must inspect the system or component for the presence of any of the following items:

* * * * *

56. Section 265.193 is amended by:

a. Removing paragraphs ( a)( 2) through ( a)( 4);

b. Redesignating ( a)( 5) as ( a)( 2); 304 c. Revising paragraphs ( a)( 1), newly designated ( a)( 2) and ( h)( 5)( i)( 2) ( the note to ( h)( 5)( i)( 2) is unchanged) to read as follows.

§ 265.193 Containment and detection of releases.

( a) * * *

( 1) For all new and existing tank systems or components, prior to their being put into service.

( 2) For tank systems that store or treat materials that become hazardous wastes, within two years of the hazardous waste listing,

or when the tank system has reached 15 years of age, whichever comes later.

* * * * *

( h) * * *

( 5) * * *

( i) * * *

( 2) For other than non enterable underground tanks, the owner or operator must either conduct a leak test as in paragraph ( i)( 1)

of this section or an internal inspection or other tank integrity examination by an independent, qualified Professional Engineer that 305 addresses cracks, leaks, and corrosion or erosion at least annually. The owner or operator must remove the stored waste from the tank,

if necessary, to allow the condition of all internal tanks surfaces to be assessed.

* * * * *

58. Section 265.195 is amended by:

a. Revising paragraph ( a) ( the note to paragraph ( a) is unchanged);

b. Redesignating existing paragraphs ( b) and ( c), as paragraphs ( f) and ( g), respectively; and,

c. Adding new paragraphs ( b) through ( e).

§ 265.195 Inspections.

( a) The owner or operator must inspect, where present, at least once each operating day, data gathered from monitoring and leak detection equipment ( e. g., pressure or temperature gauges, monitoring wells) to ensure that the tank system is being operated according to its design.

* * * * * 306 ( b) Except as noted under the provisions of paragraph ( c) of this section, the owner or operator must inspect at least once each operating day:

( 1) Overfill/ spill control equipment ( e. g., waste feed cutoff systems, bypass systems, and drainage systems) to ensure that it is in good working order;

( 2) Above ground portions of the tank system, if any, to detect corrosion or releases of waste; and ( 3) The construction materials and the area immediately surrounding the externally accessible portion of the tank system,

including the secondary containment system ( e. g., dikes) to detect erosion or signs of releases of hazardous waste ( e. g., wet spots, dead vegetation).

( c) Owners or operators of tank systems with full secondary containment and that either use leak detection equipment to alert facility personnel to leaks, or implement established workplace practices to ensure leaks are promptly identified, must inspect at least weekly those areas described in paragraphs ( b)( 1) through ( 3) of this section. Use of the alternate inspection schedule must be documented in the facility's operating record. This documentation must include a description of the established workplace practices at the facility. 307 ( d) Performance Track member facilities may inspect on a less frequent basis, upon approval by the Director, but must inspect at least once each month. To apply for a less than weekly inspection frequency, the Performance Track member facility must follow the procedures described in § 265.15( b)( 5).

( e) Ancillary equipment that is not provided with secondary containment, as described in § 265.193( f)( 1) through ( 4), must be inspected at least once each operating day.

* * * * *

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

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

* * * * *

( f) Certification of major repairs. If the owner/ operator has repaired a tank system in accordance with paragraph ( e) of this section, and the repair has been extensive ( e. g., installation of an internal liner; repair of a ruptured primary containment or secondary containment vessel), the tank system must not be returned to service unless the owner/ operator has obtained a certification by an independent, qualified Professional Engineer in accordance with § 270.11( d) that the repaired system is capable of handling hazardous 308 wastes without release for the intended life of the system. This certification is to be placed in the operating record and maintained until closure of the facility.

* * * * *

60. Section 265.201 is amended by:

a. Revising the paragraph ( c) introductory text;

b. Redesignating paragraph ( d) through ( f), as paragraphs ( f) through ( h), respectively; and,

c. Adding new paragraphs ( d) and ( e). .

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

* * * * *

( c) Except as noted in paragraph ( d) of this section, generators who accumulate between 100 and 1,000 kg/ mo of hazardous in tanks must inspect, where present:

* * * * * 309 ( d) Generators who accumulate between 100 and 1,000 kg/ mo of hazardous waste in tanks or tank systems that have full secondary containment and that either use leak detection equipment to alert facility personnel to leaks, or implement established workplace practices to ensure leaks are promptly identified, must inspect at least weekly, where applicable, the areas identified in paragraphs ( c)( 1) through ( 5) of this section. Use of the alternate inspection schedule must be documented in the facility's operating record. This documentation must include a description of the established workplace practices at the facility.

( e) Performance Track member facilities may inspect on a less frequent basis, upon approval by the Director, but must inspect at least once each month. To apply for a less than weekly inspection frequency, the Performance Track member facility must follow the procedures described in § 265.15( b)( 5).

* * * * *

Subpart K  Surface Impoundments 61. Section 265.221 is amended by revising paragraph ( a) to read as follows:

§ 265.221 Design and operating requirements. 310 ( a) The owner or operator of each new surface impoundment unit, each lateral expansion of a surface impoundment unit, and each replacement of an existing surface impoundment unit must install two or more liners, and a leachate collection and removal system above and between the liners, and operate the leachate collection and removal system, in accordance with § 264.221( c), unless exempted under § 264.221( d), ( e), or ( f) of this Chapter.

* * * * *

62. Section 265.223 is amended by revising paragraph ( a) to read as follows:

§ 265.223 Response actions.

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

* * * * *

Subpart L  Waste Piles 63. Section 265.259 is amended by revising the first sentence of paragraph ( a) to read as follows: 311 § 265.259 Response actions.

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

* * * * *

Subpart M Land Treatment 64. Section 265.280 is amended by revising paragraph ( e) to read as follows:

§ 265.280 Closure and post closure.

* * * * *

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

* * * * *

Subpart N  Landfills 312 65. Section 265.301 is amended by revising paragraph ( a) to read as follows:

§ 265.301 Design and operating requirements.

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

* * * * *

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

§ 265.303 Response actions.

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

* * * * *

67. Section 265.314 is amended by: 313 a. Removing paragraph ( a);

b. Redesignating paragraphs ( b) through ( g) as paragraphs ( a) through ( f); and,

c. Revising newly designated paragraph ( a), and the introductory text of newly designated paragraph ( f) to read as follows:

§ 265.314 Special requirements for bulk and containerized liquids.

( a) The placement of bulk or non containerized liquid hazardous waste or hazardous waste containing free liquids ( whether or not sorbents have been added) in any landfill is prohibited.

* * * * *

( f) The placement of any liquid which is not a hazardous waste in a landfill is prohibited unless the owner or operator of such landfill demonstrates to the Regional Administrator or the Regional Administrator determines that:

* * * * *

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

§ 265.441 Assessment of existing drip pad integrity. 314 ( a) For each existing drip pad as defined in § 265.440, the owner or operator must evaluate the drip pad and determine that it meets all of the requirements of this subpart, except the requirements for liners and leak detection systems of § 265.443( b). No later than the effective date of this rule, the owner or operator must obtain and keep on file at the facility a written assessment of the drip pad, reviewed and certified by an independent, qualified Professional Engineer that attests to the results of the evaluation. The assessment must be reviewed, updated, and re certified annually until all upgrades, repairs, or modifications necessary to achieve compliance with all the standards of § 265.443 are complete. The evaluation must document the extent to which the drip pad meets each of the design and operating standards of § 265.443, except the standards for liners and leak detection systems, specified in § 265.443( b).

( b) The owner or operator must develop a written plan for upgrading, repairing, and modifying the drip pad to meet the requirements of § 265.443( b), and submit the plan to the Regional Administrator no later than 2 years before the date that all repairs,

upgrades, and modifications are complete. This written plan must describe all changes to be made to the drip pad in sufficient detail to document compliance with all the requirements of § 265.443. The plan must be reviewed and certified by an independent, qualified Professional Engineer. 315 ( c) Upon completion of all repairs and modifications, the owner or operator must submit to the Regional Administrator or state Director, the as built drawings for the drip pad together with a certification by an independent, qualified Professional Engineer attesting that the drip pad conforms to the drawings.

* * * * *

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

§ 265.443 Design and operating requirements.

( a) * * *

( 4)( i) * * *

( ii) The owner or operator must obtain and keep on file at the facility a written assessment of the drip pad, reviewed and certified by an independent, qualified Professional Engineer that attests to the results of the evaluation. The assessment must be reviewed, updated and recertified annually. The evaluation must document the extent to which the drip pad meets the design and operating standards of this section, except for paragraph ( b) of this section.

* * * * * 316 ( g) The drip pad must be evaluated to determine that it meets the requirements of paragraphs ( a) through ( f) of this section and the owner or operator must obtain a statement from an independent, qualified Professional Engineer certifying that the drip pad design meets the requirements of this section.

* * * * *

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

§ 265.444 Inspections.

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

* * * * *

Subpart BB  Air Emission Standards for Equipment Leaks 317 § 265.1061   [ Amended]

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

§ 265.1062   [ Amended]

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

Subpart DD  Containment Buildings 73. Section 265.1100 is amended by revising the introductory text to read as follows:

§ 265.1100 Applicability.

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

provided that the unit:

* * * * *

74. Section 265.1101 is amended revising paragraphs ( c)( 2) and ( c)( 4) to read as follows: 318 § 265.1101 Design and operating standards.

* * * * *

( c) * * *

( 2) Obtain and keep on site a certification by a qualified Professional Engineer that the containment building design meets the requirements of paragraphs ( a), ( b), and ( c) of this section.

* * * * *

( 4) Inspect and record in the facility's operating record at least once every seven days, except for Performance Track member facilities, that must inspect up to once each month, data gathered from monitoring and leak detection equipment as well as the containment building and the area immediately surrounding the containment building to detect signs of releases of hazardous waste. To apply for reduced inspection frequency, the Performance Track member facility must follow the procedures described in § 265.15( b)( 5).

* * * * * 319 PART 266  STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES 75. The authority citation for Part 266 continues to read as follows:

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

Subpart H  Hazardous Waste Burned in Boilers and Industrial Furnaces 76. Section 266.102 is amended by revising paragraph ( e)( 10) to read as follows:

§ 266.102 Permit standards for burners.

* * * * *

( e) * * *

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

* * * * *

77. Section 266.103 is amended by revising paragraphs ( d) and ( k) to read as follows: 320 § 266.103 Interim status standards for burners.

* * * * *

( d) Periodic Recertifications. The owner or operator must conduct compliance testing and submit to the Director a recertification of compliance under provisions of paragraph ( c) of this section within five years from submitting the previous certification or recertification. If the owner or operator seeks to recertify compliance under new operating conditions, he/ she must comply with the requirements of paragraph ( c)( 8) of this section.

* * * * *

( k) Recordkeeping. The owner or operator must keep in the operating record all information and data required by this section for five years.

* * * * *

PART 268   LAND DISPOSAL RESTRICTIONS 78. The authority citation for Part 268 continues to read as follows:

Authority: 42 U. S. C. 6905, 6912( a), 6921, and 6924. 321 Subpart A   General 79. Section 268.7 is amended by revising paragraphs ( a)( 1), ( a)( 2), and ( b)( 6) to read as follows:

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

( a) Requirements for generators: ( 1) A generator of hazardous waste must determine if the waste has to be treated before it can be land disposed. This is done by determining if the hazardous waste meets the treatment standards in § 268.40, 268.45, or § 268.49.

This determination can be made concurrently with the hazardous waste determination required in § 262.11 of this chapter, in either of two ways: testing the waste or using knowledge of the waste. If the generator tests the waste, testing would normally determine the total concentration of hazardous constituents, or the concentration of hazardous constituents in an extract of the waste obtained using test method 1311 in " Test Methods of Evaluating Solid Waste, Physical/ Chemical Methods," EPA Publication SW  846, incorporated by reference, ( see § 260.11 of this chapter), depending on whether the treatment standard for the waste is expressed as a total concentration or concentration of hazardous constituent in the waste's extract. ( Alternatively, the generator must send the waste to a RCRA permitted hazardous waste treatment facility, where the waste treatment facility must comply with the requirements of § 264.13 of this chapter and § 268.7( b) of this part). In addition, some hazardous wastes must be treated by particular treatment methods before they can be land disposed and some soils are contaminated by such hazardous wastes. These treatment standards are also found in 322 § 268.40, and are described in detail in § 268.42, Table 1. These wastes, and solids contaminated with such wastes, do not need to be tested ( however, if they are in a waste mixture, other wastes with concentration level treatment standards would have to be tested). If a generator determines they are managing a waste or soil contaminated with a waste, that displays a hazardous characteristic of ignitability, corrosivity, reactivity, or toxicity, they must comply with the special requirements of § 268.9 of this part in addition to any applicable requirements in this section.

( 2) If the waste or contaminated soil does not meet the treatment standards, or if the generator chooses not to make the determination of whether his waste must be treated, with the initial shipment of waste to each treatment or storage facility, the generator must send a one time written notice to each treatment or storage facility receiving the waste, and place a copy in the file. The notice must include the information in column " 268.7( a)( 2)" of the Generator Paperwork Requirements Table in 268.7( a)( 4). ( Alternatively,

if the generator chooses not to make the determination of whether the waste must be treated, the notification must include the EPA Hazardous Waste Numbers and Manifest Number of the first shipment and must state " This hazardous waste may or may not be subject to the LDR treatment standards. The treatment facility must make the determination.") No further notification is necessary until such time that the waste or facility change, in which case a new notification must be sent and a copy placed in the generator's file.

* * * * * 323 ( b) * * *

( 6) Where the wastes are recyclable materials used in a manner constituting disposal subject to the provisions of § 266.20( b) of this chapter regarding treatment standards and prohibition levels, the owner or operator of a treatment facility ( i. e., the recycler) must,

for the initial shipment of waste, prepare a one time certification described in paragraph ( b)( 4) of this section, and a one time notice which includes the information in paragraph ( b)( 3) of this section ( except the manifest number). The certification and notification must be placed in the facility's on site files. If the waste or the receiving facility changes, a new certification and notification must be prepared and placed in the on site files. In addition, the recycling facility must also keep records of the name and location of each entity receiving the hazardous waste derived product.

* * * * *

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

§ 268.9 Special rules regarding wastes that exhibit a characteristic.

( a) The initial generator of a solid waste must determine each EPA Hazardous Waste Number ( waste code) applicable to the waste in order to determine the applicable treatment standards under subpart D of this part. This determination may be made concurrently with the hazardous waste determination required in § 262.11 of this chapter. For purposes of part 268, the waste will carry 324 the waste code for any applicable listed waste ( 40 CFR Part 261, Subpart D). In addition, where the waste exhibits a characteristic, the waste will carry one or more of the characteristic waste codes ( 40 CFR Part 261, Subpart C), except when the treatment standard for the listed waste operates in lieu of the treatment standard for the characteristic waste, as specified in paragraph ( b) of this section. If the generator determines that their waste displays a hazardous characteristic ( and is not D001 nonwastewaters treated by CMBST, RORGS,

OR POLYM of § 268.42, Table 1), the generator must determine the underlying hazardous constituents ( as defined at § 268.2( i)) in the characteristic waste.

* * * * *

( d) Wastes that exhibit a characteristic are also subject to § 268.7 requirements, except that once the waste is no longer hazardous, a one time notification and certification must be placed in the generator's or treater's on site files. The notification and certification must be updated if the process or operation generating the waste changes and/ or if the subtitle D facility receiving the waste changes.

* * * * *

PART 270 EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE PERMIT PROGRAM 81. The authority citation for part 270 continues to read as follows: 325 Authority: 42 U. S. C. 6905, 6912, 6924, 6925, 6927, 6939, and 6974 Subpart B   Permit Application 82. Section 270.14 is amended by revising paragraph ( a) to read as follows:

§ 270.14 Contents of part B: General requirements.

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

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

§ 270.16 Specific Part B information requirements for tank systems.

* * * * *

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

* * * * *

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

§ 270.26 Special part B information requirements for drip pads.

* * * * *

( c) * * *

( 15) A certification signed by an independent, qualified Professional Engineer, stating that the drip pad design meets the requirements of paragraphs § 264.573 ( a) through( f) of this chapter. 327 * * * * *

Subpart D  Changes to Permits.

85. Section 270.42 is amended by adding new section ( k) and by adding new section O to the table in Appendix I. to read as follows:

§ 270.42 Permit modification at the request of the permittee.

* * * * *

( k) Performance Track member facilities. The following procedures apply to Performance Track member facilities that request a permit modification under Appendix I of this section, section O( 1).

( 1) Performance Track member facilities must have complied with the requirements of § 264.15( b)( 5) in order to request a permit modification under this section.

( 2) The Performance Track member facility should consider the application approved if the Director does not: ( 1) deny the application, in writing; or ( 2) notify the Performance Track member facility, in writing, of an extension to the 60 day deadline within 328 60 days of receiving the request. In these situations, the Performance Track member facility must adhere to the revised inspection schedule outlined in their application and maintain a copy of the application in the facility's operating record.

* * * * * APPENDIX 1 TO § 270.42  CLASSIFICATION OF PERMIT MODIFICATION Modifications Class 329 * * * * * * *

O. Burden Reduction 1. Approval of reduced inspection frequency for Performance Track member facilities for:

a. Tanks systems pursuant to § 264.195.

b. Containers pursuant to § 264.174.

c. Containment buildings pursuant to § 264.1101( c)( 4).

d. Areas subject to spills pursuant to § 264.15( b)( 4).

2. Development of one contingency plan based on Integrated Contingency Plan Guidance pursuant to § 264.52( b)

3. Changes to recordkeeping and reporting requirements pursuant to: § § 264.56( i), 264.343( a)( 2), 264.1061( b)( 1),( d),

264.1062( a)( 2), 264.196( f), 264.100( g), and 264.113( e)( 5).

4. Changes to inspection frequency for tank systems pursuant to § 264.195( b).

5. Changes to detection and compliance monitoring program pursuant to § § 264.98( d),( g)( 2), and( g)( 3), 264.99( f),

and( g). 11 11 11 11 1 1 1 1 1 Class 1 modifications requiring prior Agency approval.

PART 271 REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS 330 86. The authority citation for Part 271 continues to read as follows:

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

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

§ 271.1 Purpose and scope.

* * * * *

( j) * * *

TABLE 1.  REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 Promulgation date Title of Regulation Federal Register reference Effective date * * * * * * * 331 [ Insert date of publication of final rule in the FEDERAL REGISTER ( FR)]. Office of Solid Waste Burden Reduction Project [ Insert FR page numbers]. [ Insert date of 30 days from the date of publication of final rule].

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