[Code of Federal Regulations]
[Title 40, Volume 25]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR268.4]

[Page 135-136]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
                           AGENCY (CONTINUED)
 
PART 268_LAND DISPOSAL RESTRICTIONS--Table of Contents
 
                            Subpart A_General
 
Sec. 268.4  Treatment surface impoundment exemption.

    (a) Wastes which are otherwise prohibited from land disposal under 
this part may be treated in a surface impoundment or series of 
impoundments provided that:
    (1) Treatment of such wastes occurs in the impoundments;
    (2) The following conditions are met:
    (i) Sampling and testing. For wastes with treatment standards in 
subpart D of this part and/or prohibition levels in subpart C of this 
part or RCRA section 3004(d), the residues from treatment are analyzed, 
as specified in Sec. 268.7 or Sec. 268.32, to determine if they meet 
the

[[Page 136]]

applicable treatment standards or where no treatment standards have been 
established for the waste, the applicable prohibition levels. The 
sampling method, specified in the waste analysis plan under Sec. 264.13 
or Sec. 265.13, must be designed such that representative samples of 
the sludge and the supernatant are tested separately rather than mixed 
to form homogeneous samples.
    (ii) Removal. The following treatment residues (including any liquid 
waste) must be removed at least annually; residues which do not meet the 
treatment standards promulgated under subpart D of this part; residues 
which do not meet the prohibition levels established under subpart C of 
this part or imposed by statute (where no treatment standards have been 
established); residues which are from the treatment of wastes prohibited 
from land disposal under subpart C of this part (where no treatment 
standards have been established and no prohibition levels apply); or 
residues from managing listed wastes which are not delisted under Sec. 
260.22 of this chapter. If the volume of liquid flowing through the 
impoundment or series of impoundments annually is greater than the 
volume of the impoundment or impoundments, this flow-through constitutes 
removal of the supernatant for the purpose of this requirement.
    (iii) Subsequent management. Treatment residues may not be placed in 
any other surface impoundment for subsequent management.
    (iv) Recordkeeping. Sampling and testing and recordkeeping 
provisions of Sec. Sec. 264.13 and 265.13 of this chapter apply.
    (3) The impoundment meets the design requirements of Sec. 
264.221(c) or Sec. 265.221(a) of this chapter, regardless that the unit 
may not be new, expanded, or a replacement, and be in compliance with 
applicable ground water monitoring requirements of subpart F of part 264 
or part 264 of this chapter unless:
    (i) Exempted pursuant to Sec. 264.221 (d) or (e) of this chapter, 
or to Sec. 265.221 (c) or (d) of this chapter; or,
    (ii) Upon application by the owner or operator, the Administrator, 
after notice and an opportunity to comment, has granted a waiver of the 
requirements on the basis that the surface impoundment:
    (A) Has at least one liner, for which there is no evidence that such 
liner is leaking;
    (B) Is located more than one-quarter mile from an underground source 
of drinking water; and
    (C) Is in compliance with generally applicable ground water 
monitoring requirements for facilities with permits; or,
    (iii) Upon application by the owner or operator, the Administrator, 
after notice and an opportunity to comment, has granted a modification 
to the requirements on the basis of a demonstration that the surface 
impoundment is located, designed, and operated so as to assure that 
there will be no migration of any hazardous constituent into ground 
water or surface water at any future time.
    (4) The owner or operator submits to the Regional Administrator a 
written certification that the requirements of Sec. 268.4(a)(3) have 
been met. The following certification is required:

    I certify under penalty of law that the requirements of 40 CFR 
268.4(a)(3) have been met for all surface impoundments being used to 
treat restricted wastes. I believe that the submitted information is 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false information, including the possibility of 
fine and imprisonment.

    (b) Evaporation of hazardous constituents as the principal means of 
treatment is not considered to be treatment for purposes of an exemption 
under this section.

[51 FR 40638, Nov. 7, 1986; 52 FR 21016, June 4, 1987, as amended at 52 
FR 25788, July 8, 1987; 53 FR 31212, Aug. 17, 1988; 62 FR 26019, May 12, 
1997; 63 FR 28639, May 26, 1998]