[Federal Register: October 29, 2003 (Volume 68, Number 209)]
[Notices]
[Page 61662-61669]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc03-35]
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ENVIRONMENTAL PROTECTION AGENCY
[RCRA-1999-0031; FRL-7580-3]
RCRA Burden Reduction Initiative; Notice of Data Availability
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of data availability.
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SUMMARY: The Environmental Protection Agency (EPA) is requesting
additional comment on ideas for reducing the recordkeeping and
reporting burden imposed on the states, the public, and the regulated
community under the Subtitle C hazardous waste regulations of the
Resource Conservation and Recovery Act (RCRA). The burden reduction
ideas in today's notice were suggested by commenters on our Proposed
Rulemaking, published in the Federal Register on January 17, 2002. This
notice provides EPA with the opportunity to receive public input on
these ideas before we issue a final burden reduction rule. EPA is only
taking comment on the ideas discussed in today's notice. We are not
reopening for comment any of the other ideas discussed in the proposed
rule.
DATES: Submit comments on or before December 15, 2003.
ADDRESSES: Comments may be submitted by mail to: EPA Docket Center,
Mailcode: 5305T, Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID Number RCRA-1999-
0031. Comments may also be submitted electronically, by facsimile, or
through hand delivery/courier. Follow the detailed instructions as
provided in Section 1.B. of the Supplementary Information section.
FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA
Call
[[Page 61663]]
Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired).
Callers within the Washington Metropolitan Area must dial (703) 412-
9810 or TDD (703) 412-3323 (hearing impaired). For more information on
specific aspects of this NODA, contact Robert Burchard at (703) 308-8450, burchard.robert@epa.gov, or write him at EPA Office of Solid
Waste (5302W), 1200 Pennsylvania Ave., NW., Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How Can I Get Copies of This Document and Other Related Information?
1. Docket
EPA has established an official public docket for this action under
Docket ID No. RCRA-1999-0031. The official public docket consists of
the documents specifically referenced in this action, any public
comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the OSWER Docket in the EPA Docket Center at 1301 Constitution Avenue,
Washington, DC. The EPA Docket Center Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The phone number for the Reading Room is (202) 566-1744.
Copies cost $0.15/page.
2. Electronic Access
You may access this Federal Register document electronically
through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr/
, and you can make comments on this notice at the
federal e-rulemaking portal, http://www.regulations.gov.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket or to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Docket,
although they will be part of the rulemaking record. Information
claimed as CBI and other information whose disclosure is restricted by
statute, which is not included in the official public docket, will not
be available for public viewing in EPA's electronic public docket.
EPA's policy is that copyrighted material will not be placed in EPA's
electronic public docket but will be available only in printed, paper
form in the official public docket. To the extent feasible, publicly
available docket materials will be made available in EPA's electronic
public docket. When a document is selected from the index list in EPA
Dockets, the system will identify whether the document is available for
viewing in EPA's electronic public docket. Although not all docket
materials may be available electronically, you may still access any of
the publicly available docket materials through the docket facility
identified in Unit I.A.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
B. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, by facsimile, or
through hand delivery/courier. To ensure proper receipt by EPA,
identify the appropriate docket identification number in the subject
line on the first page of your comment. Please ensure that your
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
EPA is not required to consider these late comments.
1. Electronically
If you submit an electronic comment as prescribed below, EPA
recommends that you include your name, mailing address, and an e-mail
address or other contact information in the body of your comment. Also
include this contact information on the outside of any disk or CD-ROM
you submit, and in any cover letter accompanying the disk or CD-ROM.
This ensures that you can be identified as the submitter of the comment
and allows EPA to contact you in case EPA cannot read your comment due
to technical difficulties or needs further information on the substance
of your comment. EPA's policy is that EPA will not edit your comment,
and any identifying or contact information provided in the body of a
comment will be included as part of the comment that is placed in the
official public docket, and made available in EPA's electronic public
docket. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.
a. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket
, and follow the online instructions for submitting comments. To
access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID Number
RCRA-1999-0031. The system is an ``anonymous access'' system, which
means EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
b. E-mail. Comments may be sent by electronic mail (e-mail) to rcra-docket@epamail.epa.gov, Attention Docket ID Number RCRA-1999-0031.
In contrast to EPA's electronic public docket, EPA's e-mail system is
not an ``anonymous access'' system. If you send an e-mail comment
directly to the Docket without going through EPA's electronic public
docket, EPA's e-mail system automatically captures your e-mail address.
E-mail addresses that are automatically captured by EPA's e-mail system
are included as part of the comment that is placed in the official
public docket, and made available in EPA's electronic public docket.
c. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that
[[Page 61664]]
you mail to the mailing address identified in this section. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By Mail
Send your comments to: OSWER Docket, EPA Docket Center, Mailcode:
5305T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention Docket ID Number RCRA-1999-0031.
3. By Hand Delivery or Courier
Deliver your comments to: Environmental Protection Agency, EPA
Docket Center, Room B102, 1301 Constitution Avenue, NW., Washington,
DC, Attention Docket ID Number RCRA-1999-0031. Such deliveries are only
accepted during the Docket's normal hours of operation as identified
above.
4. By Facsimile.
Fax your comments to: (202) 566-0272, Attention Docket ID Number
RCRA-1999-0031.
C. How Should I Submit Confidential Business Information (CBI) to the
Agency?
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail.
Send or deliver information identified as CBI only to the following
address: RCRA CBI Document Control Officer, Office of Solid Waste
(5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460,
Attention Docket ID No. RCRA-1999-0031. You may claim information that
you submit to EPA as CBI by marking any part or all of that information
as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the
disk or CD-ROM as CBI and then identify electronically within the disk
or CD-ROM the specific information that is CBI). Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD-ROM, mark the outside
of the disk or CD-ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person identified in the FOR FURTHER INFORMATION CONTACT section.
D. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
II. Background
A. What Is the Resource Conservation and Recovery Act (RCRA) Burden
Reduction Initiative?
The RCRA Burden Reduction Initiative is the Office of Solid Waste's
effort to reduce recordkeeping and reporting burden, while maintaining
the protections the Agency has in place to safeguard human health and
the environment. This notice seeks additional comment on ideas to
reduce burden imposed by the reporting and recordkeeping requirements
under the RCRA Subtitle C hazardous waste regulations at 40 CFR,
Chapter I (Environmental Protection Agency), Subchapter I [``Eye'']
(``Solid Wastes''). For more information on this Initiative, as well as
the definition of burden, how burden is estimated and the baseline
burden estimates for the RCRA hazardous waste program, see the proposed
rule published in the Federal Register on January 17, 2002 (67 FR
2518).
B. What Are the Recordkeeping and Reporting Requirements for Generators
and Treatment, Storage and Disposal Facilities (TSDFs)?
1. What Are the Existing Reporting and Recordkeeping Requirements?
The existing hazardous waste regulations require the submittal of
334 notifications, reports, certifications, demonstrations, and plans
from generators and TSDFs to demonstrate compliance with the RCRA
regulations. We also ask for this information as part of applications
for extensions, permits, variances, and exemptions. In addition, the
regulations require generators and facility owners and operators to
keep certain records on-site.
2. Why Do We Collect This Information?
When we promulgated the hazardous waste regulations, we decided to
collect as much information as we thought was necessary about facility
operations. Without prior experience as a guide, our philosophy was
that it was better to collect information in all cases, knowing that we
could eliminate information requirements later if they turned out to
not be useful.
We are using what we have learned during our 25-year operating
history in RCRA to reevaluate this all-encompassing information
collection approach, and we are moving towards collecting only the
information that has actually proven useful to the RCRA hazardous waste
program. This is consistent with the President's Management Agenda,
which directs federal agencies to show that their programs actually
accomplish their goals. Requiring facilities to collect and submit
information that is seldom or never used is not only wasteful, but it
diverts available environmental protection resources away from the RCRA
goals of protecting human health and the environment to generating
unnecessary paperwork.
C. How Have We Identified Burden Reduction?
The RCRA Burden Reduction Initiative has weighed the RCRA reporting
and recordkeeping requirements versus the burden they impose to answer
the question ``Which recordkeeping and reporting requirements can be
eliminated or modified without compromising protection of human health
and the environment.'' We obtained input from program offices at EPA
Headquarters and Regions, the States, the regulated community, and
public interest groups in this process. To answer this question, we
asked the following specific
[[Page 61665]]
questions: who uses the hazardous waste information?; why do they need
it?; is the information useful as it is currently collected?; and how
can the quality and timeliness of the information be improved?
Our ideas were announced for comment in a June 18, 1999, Federal
Register ``Notice of Data Availability'' (64 FR 32859). In the
``Notice'' and background documents (see http://www.epa.gov/epaoswer/hazwaste/data/index.htm#burden
), we included every burden reduction
idea we considered. Based on comments we received on the ``Notice,'' we
eliminated ideas when a practical use for the information was
demonstrated, or information was presented showing how eliminating/
modifying a requirement would negatively impact protection of human
health and the environment. Based on these comments, we added ideas
which appeared in our January 17, 2002, ``Proposed Rulemaking'' (67 FR
2518). Today's notice seeks comment on some additional ideas that were
suggested by commenters or are outgrowths of the Proposed Rule, based
on our evaluation of those comments.
III. Discussion of Additional Items for Comment
A. Small Quantity Generator Tanks and Tank Ancillary Equipment
Inspection Frequencies
In the Proposed Rule, we requested comment on changing the tank
self-inspection frequencies from daily to weekly for large quantity
generators. We received comments suggesting that we expand this change
to include tanks located at small quantity generator sites (see Sec.
265.201(c)) and ancillary equipment at small and large quantity
generator facilities (see Sec. 264.193(f) and Sec. 265.193(f)).
Changing these inspection frequencies would be consistent with our
intent, as discussed in the 1999 ``Notice of Data Availability,'' the
Proposed Rule, and background documents to establish weekly tank
inspections for all tanks and tank systems. The estimated burden hour
savings from extending to weekly the inspection frequency for tanks
located at small quantity generator sites ranges from 200,000-600,000
burden hours (depending on the percentage of small quantity generators
assumed to have tanks). We consider this to be substantial savings. We
request comment on the merits of this change.
B. Further Reduced Inspection Frequencies for Performance Track
Facilities
In addition to allowing weekly inspection frequency for tanks, we
also proposed to allow, on a case-by-case basis, decreased inspection
frequencies for tanks, containers, and containment buildings (from the
frequency currently required by regulation). In all cases, inspections
would have to occur at least monthly and would be established on a
site-specific basis by authorized States or by EPA in States that do
not have a delegated program. In proposing this change, we suggested
that decreased inspection frequencies should be based on factors such
as: (1) A demonstrated commitment by facility management to sound
environmental practices; (2) demonstrations of good management
practices over the years--that is, having a record of sustained
compliance with environmental laws and requirements; (3) a demonstrated
commitment to continued environmental improvement; (4) a demonstrated
commitment to public outreach and performance reporting; (5) the
installation of automatic monitoring devices at the facility; and (6)
the chemical and physical characteristics of the waste being managed in
the unit.
Based on comments received on the proposal, the Agency is
reconsidering whether to make such a change available to all generators
because of the burden it might impose on authorized States to evaluate
compliance with the criteria. However, at a minimum, we believe that
providing relief is appropriate for companies that are demonstrated
``good performers.'' Therefore, the Agency is soliciting comment on
whether to limit this provision--the ability to file a case-by-case
application for reduced self-inspection frequencies--to member
companies of the National Performance Track Program. The National
Environmental Performance Track Program recognizes and encourages top
environmental performance among private and public facilities in the
United States. Performance Track facilities go beyond compliance with
regulatory requirements to achieve environmental excellence. Currently,
the program has approximately 300 members. See the following Web site
for information about the National Performance Track Program: http://www.epa.gov/performancetrack.
Today, we also are clarifying that this
provision was meant to apply not just to the tanks, but to the complete
tank systems. This includes piping, pumps, valves and other associated
equipment.
We also received a comment suggesting that we extend reduced
inspection frequencies, granted on a case-by-case basis, to areas
subject to spills (see Sec. 264.15(b)(4)). While the Agency is
considering this comment as a general matter, we also solicit comment
on whether to grant relief only to companies that are National
Performance Track members. We think the risk from this change is
minimal at facilities that have met the requirements to be accepted
into the National Performance Track Program. Again, the Agency believes
it is important to recognize the difference in the need for oversight
of companies that are top environmental performers and, therefore,
believes that such a change may be appropriate.
C. RCRA/OSHA Overlap in Emergency Response Training
EPA and the Occupational Safety and Health Administration (OSHA)
have both promulgated regulations to ensure the safety and health of
workers at hazardous waste facilities. While RCRA Subtitle C includes
requirements to provide protection to workers, worker safety and health
are not its primary goal. This is the goal of OSHA, the Federal agency
responsible for enforcing the safety and health of workers at
facilities producing, using, storing, transporting, and disposing of
hazardous materials.
In a study by the General Accounting Office (GAO) published in
October 2000, OSHA and EPA worker training requirements in emergency
response procedures were found to be duplicative. GAO concluded that
this overlap in training requirements creates an unnecessary burden by
confusing the regulated community, diminishes the efficiency of the
facility (which could jeopardize worker safety), and wastes funds.
Hazardous waste treatment, storage and disposal facility (TSDF)
workers are required to receive OSHA training, including training for
emergency response, under 29 CFR 1910.120(p). OSHA's regulations have
specific training requirements for RCRA-permitted facilities to teach
hazardous waste workers how to respond to emergencies.
Based primarily on the GAO findings, EPA proposed to eliminate the
RCRA emergency response training requirements in favor of the OSHA
requirements. Unfortunately, there has been some confusion about what
we proposed. We did not propose to eliminate the entire RCRA personnel
training requirements, only the emergency response training
[[Page 61666]]
requirements located at Sec. 264.16(a)(3) and Sec. 265.16(a)(3).
While many of the commenters supported the proposal, we received a
number of comments expressing concern that two of the RCRA emergency
response training requirements are not covered in OSHA's requirements,
which could lead to gaps in workplace safety and health. After
consultation with OSHA, we determined that the two requirements
identified in comments (key parameters for automatic waste feed cut-off
systems and response to ground-water contamination incidents) would be
captured under the OSHA performance standard that employees must be
trained in the safe use of engineering controls and equipment on the
site, and the OSHA requirement that a site safety and health plan must
contain a spill containment program. Moreover, the RCRA requirements
are duplicated elsewhere in the RCRA regulations, where we establish
requirements for safe facility operations. For example, Sec.
266.102(e)(7)(ii) establishes automatic waste feed cutoff requirements
for combustors, Sec. 264.194(b)(2) establishes controls for tanks, and
Sec. 264.193 requires groundwater release training. Thus, we do not
find any gaps between the two programs on the subject of emergency
response training.
Deferring to the standards of other organizations whose expertise
is greater than ours has precedent in the RCRA regulations. An example
is Sec. 264.198(b), which establishes special requirements for
ignitable or reactive wastes. We require facilities storing or treating
these wastes to comply with the standards of the National Fire
Protection Association, a non-profit organization that develops
consensus codes and standards to protect the public against fire
dangers.
However, a number of commenters suggested that the Agency provide
additional flexibility to this change by allowing the facility owner/
operator to determine whether to follow the RCRA or OSHA requirements
(as opposed to the proposed rule's approach of requiring facilities to
follow the OSHA regulations), especially for those facilities which are
not otherwise required to comply with OSHA training requirements. This
seems a reasonable accommodation to facilities, that, for any of a
number of reasons, have elected to comply with the RCRA regulation and
would be burdened by the need to demonstrate compliance under the OSHA
rule. Therefore, we request comment on this approach.
D. Professional Certifications
Currently, the RCRA regulations require an independent, qualified,
registered professional engineer (or registered geologists for some
requirements) to certify the effectiveness of the design and operation
of certain hazardous waste treatment units. We received a comment on
our ``Notice of Data Availability'' dated June 18, 1999 (64 FR 32859)
from the Certified Hazardous Materials Managers' organization asking
that their members also be allowed to make certifications. Based on our
review of the qualifications of Certified Hazardous Materials Managers,
it appeared to the Agency that these certified professionals were
qualified to provide the certifications, increasing marketplace
competition and potentially reducing the cost of those certifications.
As a result, the Agency proposed to add Certified Hazardous Materials
Managers as professionals qualified to make these certifications. We
did not receive similar requests from other professional organizations.
In response to this proposal, the Agency received about 1,900
comments, mostly requesting that we expand the list of individuals who
can do such certifications to include other kinds of professionals,
such as expanding the list of certifications to registered geologists.
These commenters believe that the Agency was being arbitrary in
allowing only two disciplines to certify operations.
On the other hand, professional engineers were strongly opposed to
the proposal. They suggested that Certified Hazardous Materials
Managers are not qualified to certify the design, construction, and
structural integrity of hazardous waste management units.
States likewise suggested that the certifications we proposed to
modify involve the design, installation, and assessment of structures,
and that their laws allow only licensed engineers to make these kinds
of certifications. The States also indicated that their licensing
boards can investigate complaints of negligence or incompetence, and
may impose fines and other disciplinary actions such as cease-and-
desist orders or license revocation. This personal liability of the
professional engineer is one of the reasons why the States believe that
RCRA certifications should only be done by state-licensed professional
engineers.
Other commenters suggested that, rather than deciding which
professions are qualified to make certifications, we should instead
establish an environmental professional performance standard based on
membership in a recognized professional organization. This would be
consistent with our principle of allowing the regulated community to
meet our standards at the lowest possible cost. The challenge we faced
in developing a performance standard was determining which professional
organizations are legitimate. Commenters helped by offering the
suggestion that we recognize only the organizations which meet the
criteria for assessing certification programs for environmental
professionals established by the American Society for Testing and
Materials (ASTM). ASTM is a nonprofit organization that provides a
forum for the development and publication of voluntary, consensus
standards for materials, products, systems, and services. The advantage
of an ASTM standard is that it is developed by individuals with a
diversity of backgrounds, expertise, and knowledge. Through a consensus
approach, the standards that are developed reflect the needs of all the
stakeholders.
ASTM E1929-98, Standard Practice for the Assessment of
Certification Programs for Environmental Engineers: Accreditation
Criteria assesses the credibility of certification programs for
environmental professionals. Under these standards, the certifying body
must have a program to evaluate individual competence for certification
that is objective and based on the knowledge, skills, and abilities
needed to function in the specialty area. Applicants must document
their level of education, supply reference materials, sign and abide by
a code of ethics established by the certifying body, and pass a
comprehensive examination. The ASTM standard also requires that
environmental certification programs be accredited by an independent
entity. This ASTM standard is available for review at the OSWER Docket
in the EPA Docket Center.
Therefore, we are considering allowing only professionals certified
by organizations meeting the ASTM standard to conduct a limited number
of the certifications. Under this standard, anyone who certifies the
operation of facilities must (a) be licensed to practice in the state
where the facility is located or recognized by a certification program
that is compliant with ASTM E1929-98 Standard Practice for the
Assessment of Certification Programs for Environmental Professionals:
Accreditation Criteria, and (b) have the knowledge and experience to
undertake the tasks required for the certification. Based on comments
from and extensive discussions with the States, we may
[[Page 61667]]
limit the flexibility to use persons meeting the criteria of the new
performance standard to three certifications:
Subject to New Performance Standard
264.573(a)(4)(ii),(g); 265.443(a)(4)(ii),(g) Drip pads--evaluate
drip pads.
264.574(a); 265.444(a) Drip pads--inspections.
266.111(e)(2) BIF Direct transfer equipment--assessment of
equipment.
At the same time, EPA is persuaded by commenters--particularly the
States--who suggested that the remaining RCRA certifications are
inherently ``engineering'' activities and should only be conducted by a
qualified professional engineer. We solicit comment on this revised
approach.
Some commenters further suggested that we streamline the existing
professional engineer requirement by changing it from ``independent,
qualified, registered professional engineer'' to ``qualified
professional engineer.'' They believe that this retains the most
important requirements--that the engineer be qualified to perform the
task, and that she or he be a professional (following a code of ethics
and the potential of losing his/her license for negligence) engineer.
The professional engineers who commented, as well as the professional
engineer advocacy organizations, emphasized the importance of the
``professional'' part of the engineering requirement, rather than the
``independent'' part. Making this change in the RCRA regulations would
allow certifications to be done by a professional engineer employed by
the facility. Commenters believe that this would save facilities money
without compromising environmental safety. This would also be
consistent with the approach we have taken in some newer requirements
for certifications. See the 265.1101(c)(2) containment building design
certification, and the 266.103(b)(2)(ii)(D) evaluation of data for
boilers and industrial furnaces, which allow for certification by
``qualified, registered professional engineers.''
As a point of reference to check the reasonableness of this change,
we examined the certification requirements of another federal
regulatory agency responsible for ensuring the safety of the public,
the Department of Transportation's Federal Highway Administration. The
Federal Highway Administration (FHA) recently proposed revisions and
improvements to its National Bridge Inspection Standards (68 FR 53063).
These standards ensure the safety of the traveling public by
establishing proper safety inspection and evaluation requirements for
highway bridges. The standards apply to publicly-owned bridges, and are
strongly advised for privately-owned bridges. FHA points out in their
preamble discussion that it is extremely important that privately owned
highway bridges be inspected to a nationally-recognized standard, for
at a minimum, private bridge owners that do not inspect their highway
bridges to the standards can open themselves to liability for deaths or
injuries because of possible highway bridge failure. The standards
currently require the person responsible for inspecting bridges to be a
professional engineer. Interestingly, FHA's proposed rule's preamble
discussion on the professional engineer requirement covers the
necessity of these professional engineers having adequate experience to
do the job, which is emphasized in today's notice--and FHA does not
require, nor does it discuss in its proposal for improving the
standards, the need for the professional engineer be ``independent.''
The Occupational Safety and Health Administration (OSHA) Safety and
Health Regulations for Construction; Specific Requirements for
Excavation (see 29 CFR 1926.651) provide another example of a federal
regulatory agency requiring certification by professional engineers,
but not requiring that the engineers be ``independent.'' Under these
regulations, OSHA requires structural ramps that are used to access or
exit excavations to be designed by a ``competent person'' qualified in
structural design. OSHA also requires professional engineers to ensure
the stability of structures adjacent to excavations.
In addition, our understanding of what it means to be
``registered'' is that it means one who is licensed by a State. Since
only States license professional engineers and geologists, we believe
that ``registered'' and ``professional'' mean the same thing in the
context of ``registered professional engineer or geologist.'' Thus,
``registered'' appears to be a redundant requirement. We request
comment on whether to make this conforming change to provide
consistency to our rules, which sometimes include the term
``registered'' and in other cases do not.
In summary, we have identified the following certifications as
needing a qualified professional engineer:
Only Qualified Professional Engineers
264/265.115 Certification of closure.
264/265.120 Certification of post-closure care.
264/265.191(a), (b)(5)(ii) Assessment of tank system's integrity.
264/265.192(a), (b) Assessment of new tank system and components
(also may be done by a qualified installation inspector).
264/265.196(f) Tank systems--submit certification of completion of
major repairs.
264.280(b) Land treatment units, certification of closure (also may
be done by a qualified soil scientist).
264.571(a), (b), (c); 265.441(a), (b), (c) Drip pads--submit
written plan, as-built drawings, and certification for upgrading,
repairing and modifying the drip pad.
265.1101(c)(2) Containment building design certification.
266.103(b)(2)(ii)(D) BIFs--Evaluation of data.
270.16(a) Assessment of tank system structural integrity.
270.17(d) Assessment of surface impoundment structural integrity.
The Agency solicits comments on whether the ASTM standard is
appropriate; whether the Agency made the right choices in determining
which certifications must be conducted by qualified professional
engineers, as opposed to persons that are accredited by programs
meeting the ASTM standard; and whether the Agency should modify the
requirement to allow ``qualified professional engineers'' to conduct
the certification instead of ``independent, qualified, registered
professional engineers.''
E. General Facility Standards
When the Agency promulgated the operating record requirements in
the hazardous waste regulations, we believed that records should
routinely be kept for the life of the facility. Our rationale for this
position was that if an issue or problem came up about an earlier
practice at a facility, the records would be available.
After many years of experience in implementing the RCRA hazardous
waste rules, we are better able to distinguish those records that must
be kept for the life of the facility from those which can be discarded
after some period of time without affecting protections of human health
and the environment.
As discussed in the Proposed rule, information about which wastes
are disposed of at a facility and where the disposed waste is located
must be kept for the life of the facility. More routine information,
such as whether certain notices were filed and records of inspections,
can be discarded after three years. In the RCRA regulations, we have
generally settled on three years as a
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reasonable time frame for keeping records. This is consistent with
other Agency programs, such as the Toxics Substance Control Act and the
Toxic Chemical Release Reporting Community Right to Know programs, that
impose a three year record retention time in their regulations.
Therefore, we proposed to modify the Sec. Sec. 264.73 and 265.73
operating record requirements to require only a three-year limit for
keeping certain information.
In response to this proposal, we received a comment that for
Sec. Sec. 264.73(b)(8) and 265.73(b)(8) closure and post-closure cost
estimates, we should only require current estimates to be kept at the
facility. In fact, the commenter argues that 264.142(d) and 264.144(d)
only requires the facility to ``keep .* * * at the facility during the
operating life of the facility (t)he latest'' closure and post-closure
cost estimates. We agree with the commenter that there is an apparent
inconsistency in the rules and thus request comment on the merits of
this change.
We also received a request for clarification of the operating
record requirements for incinerators. The commenter pointed out that
for incinerators, voluminous data is produced and is required to be
kept for the life of the facility, which is burdensome to maintain.
Specifically, data that is required to be collected and maintained
include continuous monitoring of combustion temperature, waste feed
rate, the indicator of combustion gas velocity specified in the
facility permit, and other operating parameters. At the commenter's
facilities, monitoring is done at 75 points, some instantaneously
(every 15 seconds), but all requiring maintenance of 15-second data,
minute averages and rolling hourly averages. This is a large volume of
data that is generated annually. We are requesting comment on requiring
a three year retention for these records instead of for the life of the
facility.
F. Groundwater Monitoring Requirements
Treatment, storage, and disposal facilities must implement a
groundwater monitoring system for hazardous waste land disposal units
to detect the presence of contaminants in groundwater. If contamination
is detected, more extensive monitoring must be performed. If the level
of contamination exceeds the groundwater protection standard,
corrective action must be undertaken.
We proposed allowing owners/operators of facilities to report on
the effectiveness of corrective action on an annual basis instead of
the current semi-annual basis. In combination with other forms of
oversight by regulatory agencies, we suggested that annual reporting
will provide adequate information to ensure compliance.
In addition, we proposed modifying the Sec. 264.99(g) requirement
that facilities who are undertaking compliance monitoring also conduct
an annual Appendix IX analysis of all monitoring wells. Specifically,
we proposed allowing, on a case-by-case basis, sampling in a subset of
the wells.
We received a comment asking that we clarify an inconsistency in
our groundwater regulations. Specifically, we were asked to revise the
Sec. 264.98(d) detection monitoring requirements, which say that a
facility must collect at least four samples from each well at least
semi-annually. Elsewhere in our groundwater regulations--Sec.
264.97(g)(2) (the general groundwater monitoring requirements) we allow
facilities to propose (with the Regional Administrator's approval)
alternate sampling procedures. The commenter would like us to extend
this flexibility to the detection monitoring requirements. This appears
to be a reasonable request.
Another commenter suggested that we provide flexibility in another
part of both the groundwater detection and compliance monitoring
requirements. Currently, facilities that find appendix IX compounds in
the groundwater may resample within a month to check again for the
compounds. If found again, the constituents will form the basis for
compliance monitoring (and for detection monitoring, any new
constituents that are found are added to the monitoring list). The
commenter asked that we add language saying that the resampling may
occur within a different time frame, upon approval by the State or EPA.
This also appears to be a reasonable request. This change would
increase the flexibility facilities have in complying with our
regulations, without impacting protections for human health and the
environment.
Finally, we received a comment asking us to change Sec. 264.100(g)
to maintain consistency with our change to 264.113(e)(5)--requiring an
annual instead of semi-annual corrective action report. We
inadvertently omitted this change despite it being consistent with our
preamble discussion. We solicit comment on the merits of this change.
G. Military Munitions
We currently require conditionally exempt munitions to be
transported under shipping controls specified in Sec. 266.203(c). This
section (266.203(c)) requires all shipments to be accompanied by 5
specific forms (the regulations currently lists the name of each form,
as well as the accompanying form identification number). The problem,
according to a commenter, is that every time the name of one of these
forms, or the form identification number changes, the Department of
Defense must publish a Federal Register notice announcing the change.
It was not our intent for this type of minor, administrative action to
require public notification. We believe that reasonable streamlining
can be achieved by eliminating the requirement for a Federal Register
notice and replacing it with a requirement for written notification to
the Director of EPA's Office of Federal Facilities Enforcement. We
request comment on this potential change.
H. Permit Modifications
Several commenters pointed out that implementing many of the
changes in the proposed rule will require a Class 2 Permit modification
for facilities with permits (see the following Web site for information
about Permit modifications: http://www.epa.gov/epaoswer/hotline/training/perm.pdf
). We believe the changes represented in this notice
will provide no significant threat to human health or the environment.
Therefore, our intention is to allow these changes, if finalized, to be
made as quickly as possible as opposed to making a change on paper, but
not being able to implement it quickly. Because of the magnitude of the
savings represented by these changes, delaying implementation would be
costly for no apparent gain in environmental protection. Due to an
oversight on our part, we did not address this issue in the proposed
rule. Therefore, we are requesting comment today on allowing permitted
facilities to use the Class 1 permit modification procedure, with prior
Agency approval, to implement the changes arising from this rulemaking.
However, we also request comment on whether the Class 1 permit
modifications should be without prior Agency approval. Where States
have an authorized RCRA program, the ``Agency approval'' refers to
approval by the State.
IV. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency
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certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's notice on small
entities, 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.
After considering the economic impacts of today's notice on small
entities, we are certifying that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on small entities subject to the rule. Today's notice
is specifically intended to be de-regulatory and to reduce, not
increase, the paperwork and related burdens of the RCRA hazardous waste
program. For businesses in general, including all small businesses, the
changes would reduce the labor time and other costs of preparing,
keeping records of, and submitting reports to the agency. The notice
also reduces the frequency by which businesses must conduct specified
recordkeeping and reporting activities. It also eliminates
recordkeeping and reporting requirements, thereby streamlining
facilities' compliance activities. Finally, the rule increases
flexibility in how waste handlers may comply with the regulations. We
therefore conclude that today's notice relieves regulatory burden for
small entities. We continue to be interested in the potential impacts
of the notice on small entities and welcome comments on issues related
to such impacts.
Dated: October 17, 2003.
Robert Springer,
Director, Office of Solid Waste.
[FR Doc. 03-27270 Filed 10-28-03; 8:45 am]
BILLING CODE 6560-50-P