Authenticated PDF VersionSection 264.1 Purpose, scope and applicability.
(a) The purpose of this part is to establish minimum standards which define the acceptable management of hazardous waste.
(b) The standards in this part apply to owners and operators of all facilities which treat, store, or dispose of hazardous waste, except as specifically provided otherwise in this part or Part 261 of these regulations.
(c) The requirements of this part apply to a person disposing of hazardous waste by means of ocean disposal subject to permit issued under the Marine Protection, Research, and Sanctuary Act, only to the extent they are included in a permit by rule granted to such a person under §122.60(a) of these regulations.
(d) The underground injection of hazardous waste is banned in the State of Delaware.
(e) The requirements of this part apply to the owner or operator of POTW which treats, stores, or disposes of hazardous waste only to the extent they are included in a permit by rule granted to such a person under Section 122.60(c) of these regulations.
(f) [Reserved]
(g) The requirements of this part do not apply to:
(1) The owner or operator of a facility permitted, licensed, or registered by a state to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this part by §262.14 of these regulations;
(2) The owner or operator of a facility managing recyclable materials described in §261.6(a)(2), (3), and (4) of these regulations (except to the extent they are referred to in Part 279 or Subparts C, F, G or H of Part 266 of these regulations).
(3) A generator accumulating waste on‑site in compliance with §§262.14, 262.15, 262.16, or 262.17 of these regulations.
(4) A farmer disposing of waste pesticides from his own use in compliance with §262.70 of these regulations;
(7) To a person who treats, stores, or disposes of hazardous waste in a state which is authorized under Subpart A or B of 40 CFR Part 271 if the state has not been authorized to carry out the requirements and prohibitions applicable to the treatment, storage, or disposal of hazardous waste at his facility which are imposed pursuant to the Hazardous and Solid Waste Amendments of 1984. The requirements and prohibitions that are applicable until a state receives authorization to carry them out include all Federal program requirements identified in 40 CFR §271.1(j).
(8) (i) Except as provided in paragraph (g)(8)(ii) of this section, a person engaged in treatment or containment activities during immediate response to any of the following situations:
(D) An immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist as defined in §260.10.
(ii) An owner or operator of a facility otherwise regulated by this part must comply with all applicable requirements of Subparts C and D.
(iii) Any person who is covered by paragraph (g)(8)(i) of this section and who continues or initiates hazardous waste treatment or containment activities after the immediate response is over is subject to all applicable requirements of this part and Parts 122 ‑ 124 of these regulations for those activities.
(iv) In the case of an explosives or munitions emergency response, if a Federal, State, Tribal or local official acting within the scope of his or her official responsibilities, or an explosives or munitions emergency response specialist, determines that immediate removal of the material or waste is necessary
(9) A transporter storing manifested shipments of hazardous waste in containers meeting the requirements of §262.30 at a transfer facility for a period of ten days or less, except as otherwise specified in §263.12.
(10) The addition of absorbent material to waste in a container (as defined in §260.10 of these regulations) or the addition of waste to absorbent material in a container, provided that these actions occur at the time waste is first placed in the container; and §§264.17(b), 264.171, and 264.172 are complied with.
(11) Universal waste handlers and universal waste transporters (as defined in 260.10) handling the wastes listed below. These handlers are subject to regulation under Part 273, when handling the below listed universal wastes.
(13) Reverse distributors accumulating potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals, as defined in §266.500. Reverse distributors are subject to regulation under Part 266 Subpart P in lieu of this part for the accumulation of potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals.
(h) The requirements of this part apply to owners or operators of all facilities which treat, store, or dispose of hazardous wastes referred to in Part 268.
(i) Section 266.205 of these regulations identifies when the requirements of this part apply to the storage of military munitions classified as solid waste under §266.202 of these regulations. The treatment and disposal of hazardous waste military munitions are subject to the applicable permitting, procedural, and technical standards in Parts 260 through 268 and 122.
(j) The requirements of Subparts B, C, and D of this part and §264.101 do not apply to remediation waste management sites. (However, some remediation waste management sites may be a part of a facility that is subject to a traditional hazardous waste permit because the facility is also treating, storing or disposing of hazardous wastes that are not remediation wastes. In these cases, Subparts B, C, and D of this part, and §264.101 do apply to the facility subject to the traditional hazardous waste permit.) Instead of the requirements of Subparts B, C, and D of this part, owners or operators of remediation waste management sites must:
(1) Obtain an EPA identification number by applying to the Secretary using EPA Form 8700‑12;
(2) Obtain a detailed chemical and physical analysis of a representative sample of the hazardous remediation wastes to be managed at the site. At a minimum, the analysis must contain all of the information which must be known to treat, store or dispose of the waste according to this part and Part 268 of these regulations, and must be kept accurate and up to date;
(3) Prevent people who are unaware of the danger from entering, and minimize the possibility for unauthorized people or livestock to enter onto the active portion of the remediation waste management site, unless the owner or operator can demonstrate to the Secretary that:
(i) Physical contact with the waste, structures, or equipment within the active portion of the remediation waste management site will not injure people or livestock who may enter the active portion of the remediation waste management site; and
(ii) Disturbance of the waste or equipment by people or livestock who enter onto the active portion of the remediation waste management site, will not cause a violation of the requirements of this part;
(4) Inspect the remediation waste management site for malfunctions, deterioration, operator errors, and discharges that may be causing, or may lead to, a release of hazardous waste constituents to the environment, or a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment, and must remedy the problem before it leads to a human health or environmental hazard. Where a hazard is imminent or has already occurred, the owner or operator must take remedial action immediately;
(5) Provide personnel with classroom or on-the-job training on how to perform their duties in a way that ensures the remediation waste management site complies with the requirements of this part, and on how to respond effectively to emergencies;
(6) Take precautions to prevent accidental ignition or reaction of ignitable or reactive waste, and prevent threats to human health and the environment from ignitable, reactive and incompatible waste;
(7) For remediation waste management sites subject to regulation under Subparts I through O and Subpart X of this part, the owner or operator must design, construct, operate, and maintain a unit within a 100-year floodplain to prevent washout of any hazardous waste by a 100-year flood, unless the owner or operator can meet the demonstration of §264.18(b);
(8) Not place any non-containerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave;
(9) Develop and maintain a construction quality assurance program for all surface impoundments, waste piles and landfill units that are required to comply with §§ 264.221(c) and (d), 264.251(c) and (d), and 264.301(c) and (d) at the remediation waste management site, according to the requirements of §264.19;
(10) Develop and maintain procedures to prevent accidents and a contingency and emergency plan to control accidents that occur. These procedures must address proper design, construction, maintenance, and operation of remediation waste management units at the site. The goal of the plan must be to minimize the possibility of, and the hazards from a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water that could threaten human health or the environment. The plan must explain specifically how to treat, store and dispose of the hazardous remediation waste in question, and must be implemented immediately whenever a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment;
(11) Designate at least one employee, either on the facility premises or on call (that is, available to respond to an emergency by reaching the facility quickly), to coordinate all emergency response measures. This emergency coordinator must be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the contingency plan;
(12) Develop, maintain and implement a plan to meet the requirements in paragraphs (j)(2) through (j)(6) and (j)(9) through (j)(10) of this section; and
(13) Maintain records documenting compliance with paragraphs (j)(1) through (j)(12) of this section.
Section 264.3 Relationship to interim status standards.
A facility owner or operator who has fully complied with the requirements for interim status ‑ as defined in 7 Del.C., §6307(g) and regulations under §122.70 of these regulations - must comply with the regulations specified in Part 265 of these regulations in lieu of the regulations in this part, until final administrative disposition of his permit application is made, except as provided under Part 264, Subpart S.
[Comment: As stated in 7 Del.C., §6307(g), after the effective date of regulations under that §, i.e., Parts 122 and 124 of these regulations, the treatment, storage, or disposal of hazardous waste is prohibited except in accordance with a permit. Seven Del.C., §6307(g) provides for the continued operation of an existing facility which meets certain conditions until final administrative disposition of the owner's or operator's permit application is made.]
Section 264.4 Imminent hazard action.
Notwithstanding any other provisions of these regulations, enforcement actions may be brought pursuant to 7 Del.C., §6308.
(a) The regulations in this subpart apply to owners and operators of all hazardous waste facilities, except as provided in §264.1 and in paragraph (b) of this section.
(b) §264.18(b) is applicable only to facilities subject to regulation under Subparts I through O of this part and Subpart X of this part.
Section 264.11 Identification number.
Section 264.12 Required notices.
(1) As per §262.84(b) of these regulations, for imports where the competent authority of the country of export does not require the foreign exporter to submit to it a notification proposing export and obtain consent from EPA and the competent authorities for the countries of transit, such owner or operator of the facility, if acting as the importer, must provide notification of the proposed transboundary movement in English to EPA using the allowable methods listed in §262.84(b)(1) of these regulations at least 60 days before the first shipment is expected to depart the country of export. The notification may cover up to one year of shipments of wastes having similar physical and chemical characteristics, the same United Nations classification, the same RCRA waste codes and OECD waste codes, and being sent from the same foreign exporter.
(2) As per §262.84(d)(2)(xv) of these regulations, a copy of the movement document bearing all required signatures within three (3) working days of receipt of the shipment to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit shipment of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original of the signed movement document must be maintained at the facility for at least three (3) years. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system for which the owner or operator of a facility bears no responsibility.
(3) As per §262.84(f)(4) of these regulations, if the facility has physical control of the waste and it must be sent to an alternate facility or returned to the country of export, such owner or operator of the facility must inform EPA, using the allowable methods listed in §262.84(b)(1) of these regulations of the need to return or arrange alternate management of the shipment.
(i) Send copies of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the foreign exporter, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and for shipments recycled or disposed of on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system.
(ii) If the facility performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17, promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, or DC15 to DC16, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and on or after the electronic import- export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The recovery and disposal operations in this paragraph are defined in §262.81 of these regulations.
(b) The owner or operator of a facility that receives hazardous waste from an off‑site source (except where the owner or operator is also the generator) must inform the generator in writing that he has the appropriate permit(s) for, and will accept, the waste the generator is shipping. The owner or operator must keep a copy of this written notice as part of the operating record.
(c) Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post‑closure care period, the owner or operator must notify the new owner or operator in writing of the requirements of this part and Part 122 of these regulations.
[Comment: An owner's or operator's failure to notify the new owner or operator of the requirements of this part in no way relieves the new owner or operator of his obligation to comply with all applicable requirements.]
Section 264.13 General waste analysis.
(a) (1) Before an owner or operator treats, stores, or disposes of any hazardous wastes, he must obtain a detailed chemical and physical analysis of a representative sample of the wastes. At a minimum, the analysis must contain all the information which must be known to treat, store, or dispose of the waste in accordance with this part and Part 268 of these regulations.
(2) The analysis may include data developed under Part 261 of these regulations, and existing published or documented data on the hazardous waste or on hazardous waste generated from similar processes.
[Comment: For example, the facility's records of analyses performed on the waste before the effective date of these regulations, or studies conducted on hazardous waste generated from process similar to that which generated the waste to be managed at the facility, may be included in the data base required to comply with paragraph (a)(1) of this section. The owner or operator of an off-site facility may arrange for the generator of the hazardous waste to supply part of the information required by paragraph (a)(1) of this section except as otherwise specified in §268.7(b) and (c) of these regulations. If the generator does not supply the information, and the owner or operator chooses to accept a hazardous waste, the owner or operator is responsible for obtaining the information required to comply with this section.]
(3) The analysis must be repeated as necessary to ensure that it is accurate and up to date. At a minimum, the analysis must be repeated:
(i) When the owner or operator is notified, or has reason to believe, that the process or operation generating the hazardous waste has changed; and
(ii) For off‑site facilities, when the results of the inspection required in paragraph (a)(4) of this section indicate that the hazardous waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper.
(4) The owner or operator of an off‑site facility must inspect and, if necessary, analyze each hazardous waste movement received at the facility to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper.
(b) The owner or operator must develop and follow a written waste analysis plan which describes the procedures which he will carry out to comply with paragraph (a) of this section. He must keep this plan at the facility. At a minimum, the plan must specify:
(1) The parameters for which each hazardous waste will be analyzed and the rationale for the selection of these parameters (i.e., how analysis for these parameters will provide sufficient information on the waste's properties to comply with paragraph (a) of this section);
(3) The sampling method which will be used to obtain a representative sample of the waste to be analyzed. A representative sample may be obtained using either:
(4) The frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up-to-date; and
(5) For off‑site facilities, the waste analyses that hazardous waste generators have agreed to supply.
(6) Where applicable, the methods that will be used to meet the additional waste analysis requirements for specific waste management methods as specified in §§264.17, 264.314, 264.341, 264.1034(d), 264.1063(d), 264.1083, and 268.7 of these regulations.
(7) For surface impoundments exempted from land disposal restrictions under §268.4(a), the procedures and schedules for:
(iii) The annual removal of residues which are not delisted under §260.22 of these regulations or which exhibit a characteristic of hazardous waste and either:
(8) For owners and operators seeking an exemption to their air emission standards of Subpart CC in accordance with §264.1082.
(i) If direct measurement is used for the waste determination, the procedures and schedules for waste sampling and analysis, and the results of the analysis of test data to verify the exemption.
(ii) If knowledge of the waste is used for the waste determination, any information prepared by the facility owner or operator or by the generator of the hazardous waste, if the waste is received from off-site, that is used as the basis for knowledge of the waste.
(c) For off‑site facilities, the waste analysis plan required in paragraph (b) of this section must also specify the procedures which will be used to inspect and, if necessary, analyze each movement of hazardous waste received at the facility to ensure that it matches the identity of the waste designated on the accompanying manifest or shipping paper. At a minimum, the plan must describe:
(1) The procedures which will be used to determine the identity of each movement of waste managed at the facility; and
(2) The sampling method which will be used to obtain a representative sample of the waste to be identified, if the identification method includes sampling.
(3) The procedures that the owner or operator of an off-site landfill receiving containerized hazardous waste will use to determine whether a hazardous waste generator or treater has added a biodegradable sorbent to the waste in the container.
(1) Physical contact with the waste, structures, or equipment within the active portion of the facility will not injure unknowing or unauthorized persons or livestock which may enter the active portion of a facility; and
(2) Disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or livestock onto the active portion of a facility, will not cause a violation of the requirements of this part.
(b) Unless the owner or operator has made a successful demonstration under paragraphs (a)(1) and (a)(2) of this section, facility must have:
(1) A 24‑hour surveillance system (e.g., television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or
(2) (i) An artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and
(ii) A means to control entry, at all times, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility).
[Comment: The requirements of paragraph (b) of this section are satisfied if the facility or plant within which the active portion is located itself has a surveillance system, or a barrier and a means to control entry, which complies with the requirements of paragraph (b)(1) or (b)(2) of this section.]
(c) Unless the owner or operator has made a successful demonstration under paragraphs (a)(1) and (a)(2) of this section, a sign with legend, "Danger ‑ Unauthorized Personnel Keep Out", must be posted at each entrance to the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion. The legend must be written in English and in any other language predominant in the area surrounding the facility (e.g., facilities in counties bordering the Canadian province of Quebec must post signs in French; facilities in counties bordering Mexico must post signs in Spanish), and must be legible from a distance of at least 25 feet. Existing signs with a legend other than "Danger ‑ Unauthorized Personnel Keep Out" may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous.
[Comment: See §264.117(b) for discussion of security requirements at disposal facilities during the post‑closure care period.]
Section 264.15 General inspection requirements.
(a) The owner or operator must inspect his facility for malfunctions and deterioration, operator errors, and discharges which may be causing ‑ or may lead to ‑ (1) release of hazardous waste constituents to the environment or (2) a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment.
(b) (1) The owner or operator must develop and follow a written schedule for inspecting monitoring equipment, safety, and emergency equipment, security devices, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting, or responding to environmental or human health hazards.
(2) He must keep this schedule at the facility.
(3) The schedule must identify the types of problems (e.g., malfunctions or deterioration) which are to be looked for during the inspection (e.g., inoperative sump pump, leaking fitting, eroding dike, etc.).
(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 any operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use. 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. Part 122 of these regulations requires the inspection schedule to be submitted with Part B of the permit application. The Department will evaluate the schedule along with the rest of the application to ensure that it adequately protects human health and the environment. As part of this review, the Department may modify or amend the schedule as necessary.
(c) The owner or operator must remedy any deterioration or malfunction of equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately.
(d) The owner or operator must record inspections in an inspection log or summary. He must keep these records for at least three years from the date of inspection. At a minimum, these records must include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions.
Section 264.16 Personnel Training.
(a) (1) Facility personnel must successfully complete a program of classroom instruction or on‑the‑job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part. The owner or operator must ensure that this program includes all the elements described in the document required under paragraph (d)(3) of this section.
[Comment: Part 122, Subpart B, of these regulations requires that owners and operators submit with Part B of the permit application, an outline of the training program used (or to be used) at the facility and a brief description of how the training program is designed to meet actual job tasks.]
(2) This program must be directed by a person trained in hazardous waste management procedures, and must include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.
(3) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergency procedures, emergency equipment, and emergency systems, including where applicable:
(i) Procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment;
(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.
(b) Facility personnel must successfully complete the program required in paragraph (a) of this section within six months after the effective date of these regulations or six months after the date of their employment or assignment to a facility, or to a new position at a facility, whichever is later. Employees hired after the effective date of these regulations must not work in unsupervised positions until they have completed the training requirements of paragraph (a) of this section.
(c) Facility personnel must take part in an annual review of the initial training required in paragraph (a) of this section.
(1) The job title for each position at the facility related to hazardous waste management, and the name of the employee filling each job;
(2) A written job description for each position listed under paragraph (d)(1) of this section. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but must include the requisite skill, education, or other qualifications, and duties of employees assigned to each position;
(3) A written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under paragraph (d)(1) of this section;
(4) Records that document that the training or job experience required under paragraphs (a), (b), and (c) of this section has been given to, and completed by, facility personnel.
Section 264.17 General requirements for Ignitable, Reactive, or Incompatible wastes.
(a) The owner or operator must take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste must be separated and protected from sources of ignition or reaction including but not limited to: open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, or mechanical), spontaneous ignition (e.g., from heat‑producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator must confine smoking and open flame to specially designated locations. "No Smoking" signs must be conspicuously placed wherever there is a hazard from ignitable or reactive waste.
(b) Where specifically required by other sections of the part, the owner or operator of a facility that treats, stores, or disposes ignitable or reactive waste, or mixes incompatible waste or incompatible wastes and other materials, must take precautions to prevent reactions which:
(2) Produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health or the environment;
(3) Produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions;
(c) When required to comply with paragraph (a) or (b) of this section, the owner or operator must document that compliance. This documentation may be based on references to published scientific or engineering literature, data from trial tests (e.g., bench scale or pilot scale tests), waste analyses (as specified in §264.13), or the result of the treatment of similar wastes by similar treatment processes and under similar operating conditions.
Section 264.18 Location standards.
(1) Portions of new facilities where treatment, storage, or disposal of hazardous waste will be conducted must not be located within 61 meters (200 feet) of a fault which has had displacement in Holocene time.
(i) Fault means a fracture along which rocks on one side have been displaced with respect to those on the other side.
(ii) Displacement means the relative movement of any two sides of a fault measured in any direction.
(iii) Holocene means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene to the present.
[Comment: Procedures for demonstrating compliance with this standard in Part B of the permit application are specified in §122.14(b)(11). Facilities which are located in political jurisdictions other than those listed in Appendix VI of this part, are assumed to be in compliance with this requirement.]
(1) A facility located in a 100‑year floodplain must be designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100‑year flood unless the owner or operator can demonstrate to the Secretary's satisfaction that:
(i) Procedures are in effect which will cause the waste to be removed safely, before flood waters can reach the facility, to a location where the wastes will not be vulnerable to flood waters; or
(ii) For existing surface impoundments, waste piles, land treatment units, landfills, and miscellaneous units, no adverse effects on human health or the environment will result if washout occurs, considering:
(B) The concentration of hazardous constituents that would potentially affect surface waters as a result of washout;
(C) The impact of such concentrations on the current or potential uses of and water quality standards established for the affected surface waters; and
(D) The impact of hazardous constituents on the sediments of affected surface waters or the soils of the 100‑year floodplain that could result from washout.
[Comment: The location where wastes are moved must be a facility which is either permitted by DNREC under Part 122 of these regulations, authorized to manage hazardous waste by a State with a hazardous waste management program authorized under 40 CFR, Part 123, or in interim status under Parts 122 and 265 of these regulations.]
(i) 100‑year floodplain means any land area which is subject to a one percent or greater chance of flooding in any given year from any source.
(ii) Washout means the movement of hazardous waste from the active portion of the facility as a result of flooding.
(iii) 100‑year flood means a flood that has a one percent chance of being equaled or exceeded in any given year.
[Comment: Requirements pertaining to other laws which affect the location and permitting of facilities are found in §122.12 of these regulations. For details relative to these laws, see DNREC's manual for SEA (special environmental area) requirements for hazardous waste facility permits. Though DNREC is responsible for complying with these requirements, applicants are advised to consider them in planning the location of a facility to help prevent subsequent project delays. Also, refer to the Delaware Regulations Governing the Location of Hazardous Waste Storage, Treatment and Disposal Facilities for further requirements which affect the location and permitting of facilities. Applicants are responsible for complying with these requirements.]
(c) Salt dome formations, salt bed formations, underground mines and caves. The placement of any non‑containerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave is prohibited.
[Note: The definition of a wetland can be found in the DNREC Wetland Regulations of 1976 which were adopted under 7 Del.C., §6607.]
Section 264.19 Construction quality assurance program.
(1) A construction quality assurance (CQA) program is required for all surface impoundment, waste pile, and landfill units that are required to comply with §§ 264.221(c) and (d), 264.251(c) and (d), and 264.301(c) and (d). The program must ensure that the constructed unit meets or exceeds all design criteria and specifications in the permit. The program must be developed and implemented under the direction of a CQA officer who is a registered professional engineer.
(b) Written CQA plan. The owner or operator of units subject to the CQA program under paragraph (a) of this section must develop and implement a written CQA plan. The plan must identify steps that will be used to monitor and document the quality of materials and the condition and manner of their installation. The CQA plan must include:
(2) Identification of key personnel in the development and implementation of the CQA plan, and CQA officer qualifications.
(3) A description of inspection and sampling activities for all unit components identified in paragraph (a)(2) of this section, including observations and tests that will be used before, during, and after construction to ensure that the construction materials and the installed unit components meet the design specifications. The description must cover: Sampling size and locations; frequency of testing; data evaluation procedures; acceptance and rejection criteria for construction materials; plans for implementing corrective measures; and data or other information to be recorded and retained in the operating record under §264.73.
(1) The CQA program must include observations, inspections, tests, and measurements sufficient to ensure:
(i) Structural stability and integrity of all components of the unit identified in paragraph (a)(2) of this section;
(ii) Proper construction of all components of the liners, leachate collection and removal system, leak detection system, and final cover system, according to permit specifications and good engineering practices, and proper installation of all components (e.g., pipes) according to design specifications;
(iii) Conformity of all materials used with design and other material specifications under §§ 264.221, 264.251, and 264.301.
(2) The CQA program shall include test fills for compacted soil liners, using the same compaction methods as in the full scale unit, to ensure that the liners are constructed to meet the hydraulic conductivity requirements of §§ 264.221(c)(1)(i)(B), 264.251(c)(1)(i)(B), and 264.301(c)(1)(i)(B) in the field. Compliance with the hydraulic conductivity requirements must be verified by using in-situ testing on the constructed test fill. The Secretary may accept an alternative demonstration, in lieu of a test fill, where data are sufficient to show that a constructed soil liner will meet the hydraulic conductivity requirements of §§ 264.221(c)(1)(i)(B), 264.251(c)(1)(i)(B), and 264.301(c)(1)(i)(B) in the field.
Section 264.31 Design and operation of facility.
Section 264.32 Required equipment.
[Comment: Part 122, Subpart B, of these regulations requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.]
Section 264.33 Testing and maintenance of equipment.
Section 264.34 Access to communications or alarm system.
Section 264.35 Required aisle space.
[Comment: Part 122, Subpart B, of these regulations requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.]
Section 264.37 Arrangements with local authorities.
(a) The owner or operator must attempt to make the following arrangements, as appropriate for the type of waste handled at his facility and the potential need for the services of these organizations:
(1) Arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous waste handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to and roads inside the facility, and possible evacuation routes;
(2) Where more than one police and fire department might respond to an emergency, agreements designating primary emergency authority to a specific police and a specific fire department, and agreements with any other to provide support to the primary emergency authority;
(3) Agreements with State emergency response teams, emergency response contractors, and equipment suppliers; and
(4) Arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or illnesses which could result from fires, explosions, or releases at the facility.
(b) Where State or local authorities decline to enter into such arrangements, the owner or operator must document the refusal in the operating record.
Section 264.51 Purpose and implementation of contingency plan.
(a) Each owner or operator must have a contingency plan for his facility. The contingency plan must be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non‑sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.
(b) The provisions of the plan must be carried out immediately whenever there is a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment.
Section 264.52 Content of contingency plan.
(c) The plan must describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and State and local emergency services, pursuant to §264.37.
(d) The plan must list names, addresses (office and home), and telephone numbers (office and home) of all persons qualified to act as emergency coordinator (see §264.55), and this list must be kept up to date. Where more than one person is listed, one must be named as primary emergency coordinator and others must be listed in the order in which they will assume responsibility as alternates. For new facilities, this information must be provided to the DNREC Secretary at the time of certification, rather than at the time of permit application.
(e) The plan must include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external), and decontamination equipment), where this equipment is required. This list must be kept up-to-date. In addition, the plan must include the location and a physical description of each item on the list, and a brief outline of its capabilities.
(f) The plan must include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan must describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by releases of hazardous waste or fires).
Section 264.53 Copies of contingency plan.
(a) Maintained at the facility and made available immediately upon request; and
(b) Submitted to all local police departments, fire departments, hospitals, and State and local emergency response teams that may be called upon to provide emergency services.
[Comment: The contingency plan must be submitted to the Secretary with Part B of the permit application under Part 122, Subparts A and B, of these regulations and, after modification or approval, will become a condition of any permit issued.]
Section 264.54 Amendment of contingency plan.
(a) The facility permit is revised;
(b) The plan fails in an emergency;
(c) The facility changes ‑ in its design, construction, operation, maintenance, or other circumstances ‑ in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;
(d) The list of emergency coordinators changes; or
(e) The list of emergency equipment changes
Section 264.55 Emergency coordinator.
[Comment: The emergency coordinator's responsibilities are more fully spelled out in §264.56. Applicable responsibilities for the emergency coordinator vary, depending on factors such as type and variety of waste(s) handled by the facility, and type and complexity of the facility.]
Section 264.56 Emergency procedures.
(a) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) must immediately:
(1) Activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and
(2) Notify appropriate State or local agencies with designated response roles if their help is needed.
(b) Whenever there is a release, fire, or explosion, the emergency coordinator must immediately identify the character, exact source, amount, and a real extent of any released materials. He may do this by observation or review of facility records or manifests, and if necessary, by chemical analysis.
(c) Concurrently, the emergency coordinator must assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that are generated, or the effects of any hazardous surface water run‑off from water or chemical agents used to control fire and heat‑induced explosions).
(d) If the emergency coordinator determines that the facility has had a release, fire, or explosion which would threaten human health, or the environment, outside the facility, he must report his findings as follows:
(1) If his assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities. He must be available to help appropriate officials decide whether local areas should be evacuated; and
(2) He must immediately notify either the government official designated as the on‑scene coordinator for that geographical area or the National Response Center (using their 24‑hour toll free number (800) 424‑8802) and the Department of Natural Resources and Environmental Control (using the nos. (800) 662-8802 or (302) 739-9401). The report must include:
(e) During an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous waste at the facility. These measures must include, where applicable, stopping processes and operations, collecting and containing release waste, and removing or isolating containers.
(f) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator must monitor for leaks, pressure build‑up, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate.
(g) Immediately after an emergency, the emergency coordinator must provide for treating,
[Comment: Unless the owner or operator can demonstrate, in accordance with §261.3(c) or (d) of these regulations, that the recovered material is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263, and 264 of these regulations.]
(h) The emergency coordinator must ensure that, in the affected area(s) of the facility:
(1) No waste that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and
(2) All emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.
(i) The owner or operator must notify the Secretary, and appropriate State and local authorities, that the facility is in compliance with paragraph (h) of this section before operations are resumed in the affected area(s) of the facility.
(j) The owner or operator must note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, he must submit a written report on the incident to the Secretary. The report must include:
(6) An assessment of actual or potential hazards to human health or the environment, where this is applicable; and
(b) The revised Manifest form and procedures in DRGHW 260.10, 261.7, 264.70, 264.71. 264.72, and 264.76, shall not apply until September 5, 2006. The Manifest form and procedures in §260.10, 261.7, 264.70, 264.71. 264.72, and 264.76, contained in parts 260 to 265 shall be applicable until September 5, 2006.
(a) (1) If a facility receives hazardous waste accompanied by a manifest, the owner, operator, or the owner or operator’s agent, must sign and date the manifest as indicated in paragraph (a)(2) of this section to certify that the hazardous waste covered by the manifest was received, that the hazardous waste was received except as noted in the discrepancy space of the manifest, or that the hazardous waste was rejected as noted in the manifest discrepancy space.
(2) If the facility receives a hazardous waste shipment accompanied by a manifest, the owner, operator or his agent must:
(A) Options for compliance on June 30, 2018. Beginning on June 30, 2018, send the top copy (Page 1) of any paper manifest and any paper continuation sheet to the e-Manifest system for purposes of data entry and processing, or in lieu of submitting the paper copy to EPA, the owner or operator may transmit to the EPA system an image file of Page 1 of the manifest and any continuation sheet, or both a data file and image file corresponding to Page 1 of the manifest and any continuation sheet, within 30 days of the date of delivery. Submissions of copies to the e-Manifest system shall be made at the mailing address or electronic mail/submission address specified at the e-Manifest program website's directory of services. Beginning on June 30, 2021, EPA will not accept mailed paper manifests from facilities for processing in e-Manifest.
(B) Options for compliance on June 30, 2021. Beginning on June 30, 2021, the requirement to submit the top copy (Page 1) of the paper manifest and any paper continuation sheet to the e-Manifest system for purposes of data entry and processing may be met by the owner or operator only by transmitting to the EPA system an image file of Page 1 of the manifest and any continuation sheet, or by transmitting to the EPA system both a data file and the image file corresponding to Page 1 of the manifest and any continuation sheet, within 30 days of the date of delivery. Submissions of copies to the e-Manifest system shall be made to the electronic mail/submission address specified at the e-Manifest program website's directory of services; and
(vi) Retain at the facility a copy of each manifest for at least three years from the date of delivery. (3) The owner or operator of a facility receiving hazardous waste subject to Part 262, Subpart H of these regulations from a foreign source must:
(i) Additionally list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, matched to the relevant list number for the waste from block 9b. If additional space is needed, the owner or operator should use a Continuation Sheet(s) (EPA Form 8700-22A); and
(ii) Send a copy of the manifest within thirty (30) days of delivery to EPA using the addresses listed in §262.82(e) of these regulations until the facility can submit such a copy to the e-Manifest system per paragraph (a)(2)(v) of this section.
(1) Sign and date each copy of the manifest or shipping paper (if the manifest has not been received) to certify that the hazardous waste covered by the manifest or shipping paper was received;
(2) Note any significant discrepancies (as defined in §264.72(a) in the manifest or shipping paper (if the manifest has not been received) on each copy of the manifest or shipping paper.
(3) Immediately give the rail or water (bulk shipment) transporter at least one copy of the manifest or shipping paper (if the manifest has not been received);
(4) Within 30 days after the delivery, send a copy of the signed and dated manifest or a signed and dated copy of the shipping paper (if the manifest has not been received within 30 days after delivery) to the generator; and
(5) Retain at the facility a copy of the manifest and shipping paper (if signed in lieu of the manifest at the time of delivery) for at least three years from the date of delivery.
(d) As per §262.84(d)(2)(xv) of these regulations, within three (3) working days of the receipt of a shipment subject to Part 262, Subpart H of these regulations, the owner or operator of a facility must provide a copy of the movement document bearing all required signatures to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original copy of the movement document must be maintained at the facility for at least three (3) years from the date of signature. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system, for which the owner or operator of a facility bears no responsibility.
(f) Legal equivalence to paper manifests. Electronic manifests that are obtained, completed, and transmitted in accordance with §262.20(a)(3) of these regulations, and used in accordance with this section in lieu of the paper manifest form are the legal equivalent of paper manifest forms bearing handwritten signatures, and satisfy for all purposes any requirement in these regulations to obtain, complete, sign, provide, use, or retain a manifest.
(1) Any requirement in these regulations for the owner or operator of a facility to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of 40 CFR §262.25.
(2) Any requirement in these regulations to give, provide, send, forward, or to return to another person a copy of the manifest is satisfied when a copy of an electronic manifest is transmitted to the other person.
(3) Any requirement in these regulations for a manifest to accompany a hazardous waste shipment is satisfied when a copy of an electronic manifest is accessible during transportation and forwarded to the person or persons who are scheduled to receive delivery of the waste shipment.
(4) Any requirement in these regulations for an owner or operator to keep or retain a copy of each manifest is satisfied by the retention of the facility's electronic manifest copies in its account on the e-Manifest system, provided that such copies are readily available for viewing and production if requested by any EPA or DNREC inspector.
(5) No owner or operator may be held liable for the inability to produce an electronic manifest for inspection under this section if the owner or operator can demonstrate that the inability to produce the electronic manifest is due exclusively to a technical difficulty with the electronic manifest system for which the owner or operator bears no responsibility.
(h) Special procedures applicable to replacement manifests. If a facility receives hazardous waste that is accompanied by a paper replacement manifest for a manifest that was originated electronically, the following procedures apply to the delivery of the hazardous waste by the final transporter:
(1) Upon delivery of the hazardous waste to the designated facility, the owner or operator must sign and date each copy of the paper replacement manifest by hand in Item 20 (Designated Facility Certification of Receipt) and note any discrepancies in Item 18 (Discrepancy Indication Space) of the paper replacement manifest,
(2) The owner or operator of the facility must give back to the final transporter one copy of the paper replacement manifest,
(3) Within 30 days of delivery of the waste to the designated facility, the owner or operator of the facility must send one signed and dated copy of the paper replacement manifest to the generator, and send an additional signed and dated copy of the paper replacement manifest to the electronic manifest system, and
(4) The owner or operator of the facility must retain at the facility one copy of the paper replacement manifest for at least three years from the date of delivery.
(i) Special procedures applicable to electronic signature methods undergoing tests. If an owner or operator using an electronic manifest signs this manifest electronically using an electronic signature method which is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the owner or operator shall also sign with an ink signature the facility's certification of receipt or discrepancies on the printed copy of the manifest provided by the transporter. Upon executing its ink signature on this printed copy, the owner or operator shall retain this original copy among its records for at least 3 years from the date of delivery of the waste.
(j) Imposition of user fee for electronic manifest submissions. (1) As prescribed in 40 CFR §264.1311, and determined in 40 CFR §264.1312, an owner or operator who is a user of the electronic manifest system shall be assessed a user fee by EPA for the submission and processing of each electronic and paper manifest. EPA shall update the schedule of user fees and publish them to the user community, as provided in 40 CFR §264.1313.
(2) An owner or operator subject to user fees under this section shall make user fee payments in accordance with the requirements of 40 CFR §264.1314, subject to the informal fee dispute resolution process of 40 CFR §264.1316, and subject to the sanctions for delinquent payments under 40 CFR §264.1315.
(k) Electronic manifest signatures. Electronic manifest signatures shall meet the criteria described in 40 CFR §262.25.
(l) Post-receipt manifest data corrections. After facilities have certified to the receipt of hazardous wastes by signing Item 20 of the manifest, any post-receipt data corrections may be submitted at any time by any interested person (e.g., waste handler) shown on the manifest.
(1) Interested persons must make all corrections to manifest data by electronic submission, either by directly entering corrected data to the web based service provided in e-Manifest for such corrections, or by an upload of a data file containing data corrections relating to one or more previously submitted manifests.
(i) The Manifest Tracking Number and date of receipt by the facility of the original manifest(s) for which data are being corrected;
(ii) The item number(s) of the original manifest that is the subject of the submitted correction(s); and
(iii) For each item number with corrected data, the data previously entered and the corresponding data as corrected by the correction submission.
(3) Each correction submission shall include a statement that the person submitting the corrections certifies that to the best of his or her knowledge or belief, the corrections that are included in the submission will cause the information reported about the previously received hazardous wastes to be true, accurate, and complete:
(4) Upon receipt by the system of any correction submission, other interested persons shown on the manifest will be provided electronic notice of the submitter's corrections.
(5) Other interested persons shown on the manifest may respond to the submitter's corrections with comments to the submitter, or by submitting another correction to the system, certified by the respondent as specified in paragraph (l)(3) of this section, and with notice of the corrections to other interested persons shown on the manifest.
Section 264.72 Manifest Discrepancies.
(1) Significant differences (as defined by paragraph (b) of this section) between the quantity or type of hazardous waste designated on the manifest or shipping paper, and the quantity and type of hazardous waste a facility actually receives;
(2) Rejected wastes, which may be a full or partial shipment of hazardous waste that the TSDF cannot accept; or
(3) Container residues, which are residues that exceed the quantity limits for ‘‘empty’’ containers set forth in §261.7(b) of these regulations.
(c) Upon discovering a significant difference in quantity or type, the owner or operator must attempt to reconcile the discrepancy with the waste generator or transporter (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the owner or operator must immediately submit to the Secretary a letter describing the discrepancy and attempts to reconcile it, and a copy of the manifest or shipping paper at issue.
(d) (1) Upon rejecting waste or identifying a container residue that exceeds the quantity limits for ‘‘empty’’ containers set forth in DRGHW 261.7(b), the facility must consult with the generator prior to forwarding the waste to another facility that can manage the waste. If it is impossible to locate an alternative facility that can receive the waste, the facility may return the rejected waste or residue to the generator. The facility must send the waste to the alternative facility or to the generator within 60 days of the rejection or the container residue identification.
(2) While the facility is making arrangements for forwarding rejected wastes or residues to another facility under this section, it must ensure that either the delivering transporter retains custody of the waste, or, the facility must provide for secure, temporary custody of the waste, pending delivery of the waste to the first transporter designated on the manifest prepared under paragraph (e) or (f) of this section.
(1) Write the generator’s U.S. EPA ID number in Item 1 of the new manifest. Write the generator’s name and mailing address in Item 5 of the new manifest. If the mailing address is different from the generator’s site address, then write the generator’s site address in the designated space for Item 5.
(2) Write the name of the alternate designated facility and the facility’s U.S. EPA ID number in the designated facility block (Item 8) of the new manifest.
(3) Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest, and indicate that the shipment is a residue or rejected waste from the previous shipment.
(4) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).
(5) Write the DOT description for the rejected load or the residue in Item 9 (U.S. DOT Description) of the new manifest and write the container types, quantity, and volume(s) of waste.
(6) Sign the Generator’s/Offeror’s Certification to certify, as the offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation, and mail a facility-signed copy of the manifest to the generator identified in Item 5 of the new manifest.
(7) For full load rejections that are made while the transporter remains present at the facility, the facility may forward the rejected shipment to the alternate facility by completing Item 18b of the original manifest and supplying the information on the next destination facility in the Alternate Facility space. The facility must retain a copy of this manifest for its records, and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with paragraphs (e)(1), (2), (3), (4), (5), and (6) of this section.
(1) Write the facility’s U.S. EPA ID number in Item 1 of the new manifest. Write the designated facility's name and mailing address in Item 5 of the new manifest. If the mailing address is different from the facility’s site address, then write the facility’s site address in the designated space for Item 5 of the new manifest.
(2) Write the name of the initial generator and the generator’s U.S. EPA ID number in the designated facility block (Item 8) of the new manifest.
(3) Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest, and indicate that the shipment is a residue or rejected waste from the previous shipment.
(4) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).
(5) Write the DOT description for the rejected load or the residue in Item 9 (U.S. DOT Description) of the new manifest and write the container types, quantity, and volume(s) of waste.
(6) Sign the Generator’s/Offeror’s Certification to certify, as offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation.
(7) For full load rejections that are made while the transporter remains at the facility, the facility may return the shipment to the generator with the original manifest by completing Item 18a and 18b of the manifest and supplying the generator’s information in the Alternate Facility space. The facility must retain a copy for its records and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with paragraphs (f)(1), (2), (3), (4), (5), (6) and (8) of this section.
(8) For full or partial load rejections and container residues contained in non-empty containers that are returned to the generator, the facility must also comply with the exception reporting requirements in § 262.42(a) and (b).
Section 264.73 Operating Record.
(a) The owner or operator must keep a written operating record at his facility.
(b) The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility:
(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;
(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. [Comment: See §264.119 for related requirements.];
(3) Records and results of waste analyses and waste determinations performed as specified in §§ 264.13, 264.17, 264.314, 264.341, 264.1034, 264.1063, 264.1083, 268.4(a), and 268.7 of these regulations;
(4) Summary reports and details of all incidents that require implementing the contingency plan as specified in §264.56(j);
(5) Records and results of inspections as required by §264.15(d) (except these data need be kept only three years);
(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, 264.347, 264.602, 264.1034(c) - 264.1034(f), 264.1035, 264.1063(d) - 264.1063(i), 264.1064, and 264.1082 - 264.1090 of this part;
(8) All closure cost estimates under §264.142, and for disposal facilities, all post‑closure cost estimates under §264.144 of this part;
(9) A certification by the permittee no less often than annually, that the permittee has a program in place to reduce the volume and toxicity of hazardous waste that he generates to the degree determined by the permittee to be economically practicable; and the proposed method of treatment, storage or disposal is that practicable method currently available to the permittee which minimizes the present and future threat to human health and the environment;
(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, a petition pursuant to §268.6, and the applicable notice required by a generator under §268.7(a);
(11) For an off-site treatment facility, a copy of the notice, and the certification and demonstration, if applicable, required by a the generator or the owner or operator under §268.7;
(12) For an on-site treatment facility, the information contained in the notice (except the manifest number), and the certification and demonstration if applicable, required by the generator or the owner or operator under §268.7;
(13) For an off-site land disposal facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator of a treatment facility under §268.7, whichever is applicable;
(14) For an on-site land disposal facility, the information contained in the notice required by the generator or owner or operator of a treatment facility under §268.7, except for the manifest number;
(15) For an off-site storage facility, a copy of the notice required by the generator or the owner or operator under §268.7
(16) For an on-site storage facility, the information contained in the notice (except the manifest number) required by the generator or the owner or operator under §268.7;
Section 264.74 Availability, retention, and disposition of records.
(a) All records, including plans, required under this part must be furnished upon request, and made available at all reasonable times for inspection, by any officer, employee, or representative of DNREC who is duly designated by the Secretary.
(b) The retention period for all records required under this part is extended automatically during the course of any unresolved enforcement action regarding the facility or as requested by the Secretary.
(c) A copy of records of waste disposal locations and quantities under §264.73(b)(2) must be submitted to the Secretary and local land authority upon closure of the facility.
(a) The EPA identification number, name, and address of the facility;
(b) The calendar year covered by the report;
(c) For off‑site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year; for imported shipments, the report must give the name and address of the foreign generator;
(d) A description and the quantity of each hazardous waste the facility received during the year. For off‑site facilities, this information must be listed by EPA identification number of each generator;
(e) The method of treatment, storage, or disposal for each hazardous waste;
(f) [Reserved]
(g) The most recent closure cost estimate under §264.142, and for disposal facilities, the most recent post‑closure cost estimate under §264.144; and
(h) For generators who treat, store or dispose of hazardous waste on‑site, a description of the efforts undertaken during the year to reduce the volume and toxicity of waste generated.
(i) For generators who treat, store, or dispose of hazardous waste on‑site, a description of the changes in volume and toxicity of waste actually achieved during the year in comparison to previous years to the extent such information is available for the years prior to 1984.
(j) The certification signed by the owner or operator of the facility or his authorized representative.
Section 264.76 Unmanifested waste report.
(3) The EPA identification number, name, and address of the generator and the transporter, if available;
(6) The certification signed by the owner or operator of the facility or his authorized representative; and
(b) Reserved
Section 264.77 Additional reports.
(a) Releases, fires, and explosions as specified in §264.56(j);
(b) Facility closure as specified in §264.115.
(c) As otherwise required by Subparts F, K through N, AA, BB, and CC of this part.
(d) Groundwater contaminations and monitoring data as specified in §265.93 and §265.94.
Note: In this subpart, At least the uppermost aquifer means any aquifer which the facility has the potential to affect.
(a) (1) Except as provided in paragraph (b) of this section, the regulations in this subpart apply to owners or operators of facilities that treat, store or dispose of hazardous waste. The owner or operator must satisfy the requirements identified in paragraph (a)(2) of this section for all wastes (or constituents thereof) contained in solid waste management units at the facility, regardless of the time at which waste was placed in such units.
(2) All solid waste management units must comply with the requirements in §264.101. A surface impoundment, waste pile, and land treatment unit or landfill that receives hazardous waste after July 26, 1982 (hereinafter referred to as a "regulated unit") must comply with the requirements of §§264.91 ‑ 264.100 in lieu of §264.101 for purposes of detecting, characterizing and responding to releases to the uppermost aquifer. The financial responsibility requirements of §264.101 apply to regulated units.
(b) The owner or operator's regulated unit or units are not subject to regulation for releases into the uppermost aquifer under this subpart if:
(vi) The owner or operator will provide continuing operation and maintenance of these leak detection systems during the active life of the unit and the closure and post‑closure care periods, and
(vii) To a reasonable degree of certainty, will not allow hazardous constituents to migrate beyond the outer containment layer prior to the end of the post‑closure care period.
(3) The Secretary finds, pursuant to §264.280(d), that the treatment zone of a land treatment unit that qualifies as a regulated unit does not contain levels of hazardous constituents that are above background levels of those constituents by an amount that is statistically significant, and if an unsaturated zone monitoring program meeting the requirements of §264.278 has not shown a statistically significant increase in hazardous constituents below the treatment zone during the operating life of unit. An exemption under this paragraph can only relieve an owner or operator of responsibility to meet the requirements of this subpart during the post‑closure care period; or
(4) The Secretary finds that there is no potential for migration of liquid from a regulated unit to the uppermost aquifer during the active life of the regulated unit (including the closure period) and the post‑closure care period specified under §264.117. This demonstration must be certified by a qualified geologist or geotechnical engineer. In order to provide an adequate margin of safety in the prediction of potential migration of liquid, the owner or operator must base any predictions made under this paragraph on assumptions that maximize the rate of liquid migration.
(1) Do not apply if all waste, waste residues, contaminated containment system components, and contaminated subsoils are removed or decontaminated at closure;
(2) Apply during the post closure care period under §264.117 if the owner or operator is conducting a detection monitoring program under §264.98; or
(3) Apply during the compliance period under §264.96 if the owner or operator is conducting a compliance monitoring program under §264.99 or a corrective action program under §264.100.
(e) The regulations of this subpart apply to all owners and operators subject to the requirements of §122.1(c)(7), when the DNREC issues either a post‑closure permit or an enforceable document (as defined in §122.1(c)(7)) at the facility. When the DNREC issues an enforceable document, references in this subpart to “in the permit” mean “in the enforceable document.”
(f) The Secretary may replace all or part of the requirements of §§ 264.91 through 264.100 applying to a regulated unit with alternative requirements for groundwater monitoring and corrective action for releases to groundwater set out in the permit (or in an enforceable document) (as defined in §122.1(c)(7)) where the Secretary determines that:
(1) The regulated unit is situated among solid waste management units (or areas of concern), a release has occurred, and both the regulated unit and one or more solid waste management unit(s) (or areas of concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the groundwater monitoring and corrective action requirements of §§ 264.91 through 264.100 because alternative requirements will protect human health and the environment.
Section 264.91 Required programs.
(1) Whenever hazardous constituents under §264.93 from a regulated unit are detected at the compliance point under §264.95, the owner or operator must institute a compliance monitoring program under §264.99. Detected is defined as statistically significant evidence of contamination as described in §264.98(f);
(2) Whenever the groundwater protection standard under §264.92 is exceeded, the owner or operator must institute a corrective action program under §264.100. Exceeded is defined as statistically significant evidence of increased contamination as described in §264.99(d);
(3) Whenever hazardous constituents under §264.93 from a regulated unit exceed concentration limits under §264.94 in ground‑water between the compliance point under §264.95 and the downgradient facility property boundary, the owner or operator must institute a corrective action program under §264.100;
(4) In all other cases, the owner or operator must institute a detection monitoring program under §264.98.
(c) The owner or operator of a facility which is used to manage hazardous waste must submit to the Department within 120 days of the effective date of these regulations, a hydrogeologic report, except as paragraph (d) of this section provides otherwise. This report must be certified by a qualified engineer or qualified geologist except for (c)(1) of this section which must be certified by a qualified geologist. (See §260.10 for definitions of qualified engineer and qualified geologist). This report shall include at a minimum the following:
(i) A description of the various lithologic units including mineralogy, grain size distribution, shape and color to a depth which includes at least the uppermost confined aquifer underlying the site; and
(ii) Isopachous and structural contour maps and cross-sections showing these various lithostratigraphic units.
(2) A description of the ground‑water movement in at least the water table and uppermost confined aquifers underlying the site and the surrounding area including:
(iii) A map showing the difference in hydraulic head between the water table and uppermost confined aquifers.
(3) A description of hydrologic characteristics of the lithostratigraphic units to a depth which includes at least the uppermost confined aquifer underlying the site and the surrounding area such as, but not limited to, hydraulic conductivity, porosity, aquifer thickness, transmissivity, and storage coefficient.
(4) A description of the chemical quality of the ground‑water of at least the water table and uppermost confined aquifer underlying the site and surrounding area to include the parameters specified in §265.9(a) and any other parameters specified by the Department depending on the composition of the waste; a description of the chemical quality of nearby surface water may be required if deemed necessary by the Department.
(5) A prediction of the potential movement of any contaminants that may enter the ground‑water underlying the site and the surrounding area including the rate, extent and direction, both horizontal and vertical migration and the potential impact on ground‑water and if applicable on surface water.
(6) An estimate of the amount of leachate which may be generated at the site. This shall be done by using methods described in the following publications: "Hydrologic Simulation on Solid Waste Disposal Sites", U.S. Environmental Protection Agency, Office of Water and Waste Management, SW‑868, September 1980; or the "Use of the Water Balance Method for Predicting Leachate Generation from Solid Waste Disposal Sites", U.S. Environmental Protection Agency, Office of Solid Waste Management Program, SW‑168, October, 1975; or an equivalent method approved by the Department.
(7) A description of the existing ground‑water and, if applicable, surface water monitoring program used to detect and determine any contaminant migration at the site and the surrounding area.
(8) A proposal for future monitoring including additional monitoring wells and if applicable surface water monitoring stations, parameters for analysis and monitoring schedule.
(d) All or part of the ground‑water monitoring requirements of this section may be waived if the owner or operator can demonstrate that there is a low potential for migration of hazardous waste or hazardous waste constituents from the facility via the uppermost aquifer to water supply wells, (domestic, industrial or agricultural) or to surface water. This demonstration must be in writing, and must be kept at the facility at all times and also must be submitted to and approved by the Department. This demonstration must be certified by a qualified engineer or qualified geologist except in defining the geology and geologic materials in (d)(1)(ii) and d(2)(i) which must be certified by a qualified geologist.
(1) The potential for migration of hazardous waste or hazardous waste constituents from the facility to the upper most aquifer, by an evaluation of:
(ii) Unsaturated zone characteristics (i.e., geology and geologic materials, physical properties, and depth to ground‑water); and
(2) The potential for hazardous waste or hazardous waste constituents which enter the uppermost aquifer to migrate to a water supply well or surface water, by an evaluation of:
(i) Saturated zone characteristics (i.e., geology and geologic materials, physical properties, and rate of ground‑water flow); and
Section 264.92 Ground‑water protection standard.
Section 264.93 Hazardous constituents.
(i) The physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;
(vi) The existing quality of ground‑water, including other sources of contamination and their cumulative impact on the ground‑water quality;
(viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;
(vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters;
(vii) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;
(ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and
Section 264.94 Concentration limits.
(1) Must not exceed the background level of that constituent in the ground‑water at the time that limit is specified in the permit; or
(2) For any of the constituents listed in Table 1, must not exceed the respective value given in that Table if the background level of the constituent is below the value given in Table 1; or
(3) Must not exceed an alternate limit established by the Secretary under paragraph (b) of this section.
Table 1 ‑‑ Maximum Concentration of Constituents for Ground‑Water Protection
(i) The physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;
(vi) The existing quality of ground‑water, including other sources of contamination and their cumulative impact on the ground‑water quality;
(viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;
(vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters;
(vii) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;
(ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and
Section 264.95 Point of compliance.
(1) The waste management area includes horizontal space taken up by any liner, dike, or other barrier designed to contain waste in a regulated unit.
(2) If the facility contains more than one active regulated unit, the waste management area is described by an imaginary line circumscribing the several regulated units.
Section 264.96 Compliance period.
Section 264.97 General ground‑water monitoring requirements.
(1) Represent the quality of background ground water that has not been affected by leakage from a regulated unit;
(i) A determination of background ground-water quality may include sampling of wells that are not hydraulically upgradient of the waste management area where:
(A) Hydrogeologic conditions do not allow the owner or operator to determine what wells are hydraulically upgradient; and
(B) Sampling at other wells will provide an indication of background ground‑water quality that is representative or more representative than that provided by the upgradient wells; and
(3) Allow for the detection of contamination when hazardous waste or hazardous constituents have migrated from the waste management area to the uppermost aquifer.
(1) A sequence of at least four samples, taken at an interval that assures, to the greatest extent technically feasible, that an independent sample is obtained, by reference to the uppermost aquifer's effective porosity, hydraulic conductivity, and hydraulic gradient, and the fate and transport characteristics of the potential contaminants, or
(2) An alternate sampling procedure proposed by the owner or operator and approved by the Secretary.
(1) A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent.
(2) An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent.
(3) A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit.
(5) Another statistical test method submitted by the owner or operator and approved by the Secretary.
(2) If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a ground‑water protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experiment wise error rate for each testing period shall be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained. This performance standard does not apply to tolerance intervals, prediction intervals or control charts.
(3) If a control chart approach is used to evaluate ground‑water monitoring data, the specific type of control chart and its associated parameter values shall be proposed by the owner or operator and approved by the Secretary if he or she finds it to be protective of human health and the environment.
(4) If a tolerance interval or a prediction interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be proposed by the owner or operator and approved by the Secretary if he or she finds these parameters to be protective of human health and the environment. These parameters will be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.
(5) The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any practical quantification limit (pql) approved by the Secretary under §264.97(h) that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.
(6) If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.
Section 264.98 Detection monitoring program
(1) The types, quantities, and concentrations of constituents in wastes managed at the regulated unit;
(2) The mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the waste management area;
(3) The detectability of indicator parameters, waste constituents, and reaction products in ground‑water; and
(4) The concentrations or values and coefficients of variation of proposed monitoring parameters or constituents in the ground-water background.
(1) In determining whether statistically significant evidence of contamination exists, the owner or operator must use the method(s) specified in the permit under §264.97(h). These method(s) must compare data collected at the compliance point(s) to the background ground‑water quality data.
(2) The owner or operator must determine whether there is a statistically significant evidence of contamination at each monitoring well at the compliance point within a reasonable period of time after completion of sampling. The Secretary will specify in the facility permit what period of time is reasonable, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of groundwater samples.
(1) Notify the Secretary of this finding in writing within seven days. The notification must indicate what chemical parameters or hazardous constituents have shown statistically significant evidence of contamination;
(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 Secretary, 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 Secretary and repeat the analysis for 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.
(4) Within 90 days, submit to the Secretary an application for a permit modification to establish a compliance monitoring program meeting the requirements of §264.99. The application must include the following information:
(i) An identification of the concentration of any Appendix IX constituent detected in the ground water at each monitoring well at the compliance point;
(ii) Any proposed changes to the ground‑water monitoring system at the facility necessary to meet the requirements of §264.99;
(iii) Any proposed additions or changes to the monitoring frequency, sampling and analysis procedures or methods, or statistical methods used at the facility necessary to meet the requirements of §264.99;
(iv) For each hazardous constituent detected at the compliance point, a proposed concentration limit under §264.99(a)(1) or (2), or a notice of intent to seek an alternate concentration limit under §264.94(b); and
(ii) An engineering feasibility plan for a corrective action program necessary to meet the requirement of §264.100, unless:
(A) All hazardous constituents identified under paragraph (g)(2) of this section are listed in Table 1 of §264.94 and their concentrations do not exceed the respective values given in that Table; or
(B) The owner or operator has sought an alternate concentration limit under §264.94(b) for every hazardous constituent identified under paragraph (g)(2) of this section.
(6) If the owner or operator determines, pursuant to paragraph (f) of this section, that there is a statistically significant difference for chemical parameters or hazardous constituents specified pursuant to paragraph (a) of this section at any monitoring well at the compliance point, he or she may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in sampling, analysis, or statistical evaluation or natural variation in the ground water. The owner operator may make a demonstration under this paragraph in addition to, or in lieu of, submitting a permit modification application under paragraph (g)(4) of this section; however, the owner or operator is not relieved of the requirement to submit a permit modification application within the time specified in paragraph (g)(4) of this section unless the demonstration made under this paragraph successfully shows that a source other than a regulated unit caused the increase, or that the increase resulted from error in sampling, analysis, or evaluation. In making a demonstration under this paragraph, the owner or operator must:
(i) Notify the Secretary in writing within seven days of determining statistically significant evidence of contamination at the compliance point that he intends to make a demonstration under this paragraph;
(ii) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the contamination or that the contamination resulted from error in sampling, analysis, or evaluation;
(iii) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the detection monitoring program facility; and
(iv) Continue to monitor in accordance with the detection monitoring program established under this section.
Section 264.99 Compliance monitoring program.
(1) The owner or operator must conduct a sampling program for each chemical parameter or hazardous constituent in accordance with §264.97(g).
(2) The owner or operator must record ground‑water analytical data as measured and in form necessary for the determination of statistical significance under §264.97(h) for the compliance period of the facility.
(1) In determining whether statistically significant evidence of increased contamination exists, the owner or operator must use the method(s) specified in the permit under §264.97(h). The method(s) must compare data collected at the compliance point(s) to a concentration limit developed in accordance with §264.94.
(2) The owner or operator must determine whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point within a reasonable time period after completion of sampling. The Secretary will specify that time period in the facility permit, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of ground‑water samples.
(1) Notify the Secretary of this finding in writing within seven days. The notification must indicate what concentration limits have been exceeded.
(2) Submit to the Secretary an application for a permit modification to establish a corrective action program meeting the requirements of §264.100 within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the Secretary under §264.98(g)(5). The application must at a minimum include the following:
(i) A detailed description of corrective actions that will achieve compliance with the ground‑water protection standard specified in the permit under paragraph (a) of this section; and
(ii) A plan for a ground‑water monitoring program that will demonstrate the effectiveness of the corrective action. Such a ground‑water monitoring program may be based on a compliance monitoring program developed to meet the requirements of this section.
(1) Notify the Secretary in writing within seven days that he intends to make a demonstration under this paragraph;
(2) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the standard to be exceeded or that the apparent noncompliance with the sampling, analysis, or evaluation;
(3) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the compliance monitoring program at the facility; and
(4) Continue to monitor in accord with the compliance monitoring program established under this section.
Section 264.100 Corrective action program.
(2) Beyond the facility boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the Secretary that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner/operator is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis.
(3) Corrective action measures under this paragraph must be initiated and completed within a reasonable period of time considering the extent of contamination.
(4) Corrective action measures under this paragraph may be terminated once the concentration of hazardous constituents under §264.93 is reduced to levels below their respective concentration limits under §264.94.
Section 264.101 Corrective action for solid waste management units.
(b) Sections 264.116‑264.120 (which concern post‑closure care) apply to the owners and operators of:
(2) Waste piles and surface impoundments from which the owner or operator intends to remove the wastes at closure to the extent that these sections are made applicable to such facilities in §§264.228 or 264.258;
(1) The regulated unit is situated among solid waste management units (or areas of concern), a release has occurred, and both the regulated unit and one or more solid waste management unit(s) (or areas of concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the closure requirements of this subpart (and those referenced herein) because the alternative requirements will protect human health and the environment and will satisfy the closure performance standard of §264.111(a) and (b).
Section 264.111 Closure performance standard.
Section 264.112 Closure plan; amendment of plan.
(1) The owner or operator of a hazardous waste management facility must have a written closure plan. In addition, certain surface impoundments and waste piles from which the owner or operator intends to remove or decontaminate the hazardous waste at partial or final closure are required by §§ 264.228(c)(1)(i) and 264.258(c)(1)(i) to have contingent closure plans. The plan must be submitted with the permit application, in accordance with §122.14(b)(13) of these regulations, and approved by the Secretary as part of the permit issuance procedures under Part 124 of these regulations. In accordance with §122.32, the approved closure plan will become a condition of any permit.
(2) The Secretary's approval of the plan must ensure that the approved closure plan is consistent with §§ 264.111 through 264.115 and the applicable requirements of Subpart F of this part, §§ 264.178, 264.197, 264.228, 264.258, 264.280, 264.310, 264.351, 264.601, and 264.1102. Until final closure is completed and certified in accordance with §264.115, a copy of the approved plan and all approved revisions must be furnished to the Secretary upon request, including requests by mail.
(1) A description of how each hazardous waste management unit at the facility will be closed in accordance with §264.111;
(2) A description of how final closure of the facility will be conducted in accordance with §264.111. The description must identify the maximum extent of the operations which will be unclosed during the active life of the facility; and
(3) An estimate of the maximum inventory of hazardous wastes ever on‑site over the active life of the facility and a detailed description of the methods to be used during partial closures and final closure, including, but not limited to, methods for removing, transporting, treating, storing, or disposing of all hazardous wastes, and identification of the type(s) of the off‑site hazardous waste management units to be used, if applicable; and
(4) A detailed description of the steps needed to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures, and soils during partial and final closure, including, but not limited to, procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination required to satisfy the closure performance standard; and
(5) A detailed description of other activities necessary during the closure period to ensure that all partial closures and final closures satisfy the closure performance standards, including, but not limited to, ground‑water monitoring, leachate collection, and run‑on and run‑off control; and
(6) A schedule for closure of each hazardous waste management unit and for final closure of the facility. The schedule must include, at a minimum, the total time required to close each hazardous waste management unit and the time required for intervening closure activities which will allow tracking of the progress of partial and final closure. (For example, in the case of a landfill unit, estimates of the time required to treat or dispose of all hazardous waste inventory and of the time required to place a final cover must be included.)
(7) For facilities that use trust funds to establish financial assurance under §264.143 or 264.145 and that are expected to close prior to the expiration of the permit, an estimate of the expected year of final closure.
(8) For facilities where the Secretary has applied alternative requirements at a regulated unit under §§ 264.90(f), 264.110(c), and/or 264.140(d), either the alternative requirements applying to the regulated unit, or a reference to the enforceable document containing those alternative requirements.
(1) The owner or operator may submit a written notification or request to the Secretary for a permit modification to amend the closure plan at any time prior to the notification of partial or final closure of the facility.
(2) The owner or operator must submit a written notification or request for a permit modification to authorize a change in the approved closure plan whenever:
(iii) In conducting partial or final closure activities, unexpected events require a modification of the approved closure plan.
(iv) The owner or operator requests the Secretary to apply alternative requirements to a regulated unit under §§ 264.90(f), 264.110(c), and/or 264.140(d).
(3) The owner or operator must submit a written request for a permit modification including a copy of the amended closure plan for approval at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which had affected the closure plan. If an unexpected event occurs during the partial or final closure period, the owner or operator must request a permit modification no later than 30 days after the event. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to prepare a contingent closure plan under §264.228(c)(1)(i) or 264.258(c)(1)(i), must submit an amended closure plan to the Secretary no later than 60 days from the date that the owner or operator or Secretary determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of §264.310, or no later than 30 days from that date if the determination is made during partial or final closure. The Secretary will approve, disapprove, or modify this amended plan in accordance with the procedures in Parts 124 and 122. In accordance with §122.32 of these regulations, the approved closure plan will become a condition of any permit issued.
(4) The Secretary may request modifications to the plan under the conditions described in §264.112(c)(2). The owner or operator must submit the modified plan within 60 days of the Secretary's request, or within 30 days if the change in facility conditions occurs during partial or final closure. Any modifications requested by the Secretary will be approved in accordance with the procedures in Parts 124 and 122.
(1) The owner or operator must notify the Secretary in writing at least 60 days prior to the date on which he expects to begin closure of a surface impoundment, waste pile, land treatment or landfill unit, or final closure of a facility with such a unit. The owner or operator must notify the Secretary in writing at least 45 days prior to the date on which he expects to begin final closure of a facility with only treatment or storage tanks, container storage, or incinerator units to be closed. The owner or operator must notify the Secretary in writing at least 45 days prior to the date on which he expects to begin partial or final closure of a boiler or industrial furnace, whichever is earlier.
(2) The date when he "expects to begin closure" must be either no later than 30 days after the date on which any hazardous waste management unit receives the known final volume of hazardous wastes or, if there is a reasonable possibility that the hazardous waste management unit will receive additional hazardous wastes, no later than one year after the date on which the unit received the most recent volume of hazardous waste. If the owner or operator of a hazardous waste management unit can demonstrate to the Secretary that the hazardous waste management unit or facility has the capacity to receive additional hazardous wastes and he has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements, the Secretary may approve an extension to this one‑year limit.
(3) If the facility's permit is terminated, or if the facility is otherwise ordered, by judicial decree or final order under 7 Del.C., Chapter 63 to cease receiving hazardous wastes or to close, then the requirements of this paragraph do not apply. However, the owner or operator must close the facility in accordance with the deadlines established in §264.113.
Section 264.113 Closure; time allowed for closure.
(1) (i) The activities required to comply with this paragraph will, of necessity, take longer than 90 days to complete; or
(ii) (A) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes; and
(B) There is a reasonable likelihood that he or another person will recommence operation of the hazardous waste management unit or the facility within one year, and
(C) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and
(2) He has taken and will continue to take all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements.
(1) (i) The partial or final closure activities will, of necessity, take longer than 180 days to complete; or
(ii) (A) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes; and
(B) There is reasonable likelihood that he or another person will recommence operation of the hazardous waste management unit or the facility within one year; and
(C) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and
(2) He has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed but not operating hazardous waste management unit or facility, including compliance with all applicable permit requirements.
(1) The demonstration in paragraph (a) must be made at least 30 days prior to the expiration of the 90‑day period in paragraph (a); and
(2) The demonstration in paragraph (b) must be made at least 30 days prior to the expiration of the 180‑day period in paragraph (b).
Section 264.114 Disposal or decontamination of equipment.
Section 264.115 Certification of closure.
Section 264.117 Post‑closure care and use of property.
(a) (1) Post closure care for each hazardous waste management unit subject to the requirements of §§264.117‑264.120 must begin after completion of closure of the unit and continue for 30 years after that date and must consist of at least the following:
(i) Monitoring and reporting in accordance with the requirements of Subparts F, K, L, M, N and X of this part; and
(ii) Maintenance and monitoring of waste containment systems in accordance with the requirements of Subparts F, K, L, M, N and X of this part.
(2) Any time preceding partial closure of a hazardous waste management unit subject to post‑closure care requirements or final closure, or any time during the post‑closure period for a particular unit, the Secretary may, in accordance with the permit modification procedures in Parts 124 and 122:
(i) Shorten the post‑closure care period applicable to the hazardous waste management unit, or facility, if all disposal units have been closed, if he finds that the reduced periods is sufficient to protect human health and the environment (e.g., leachate or ground‑water monitoring results, characteristics of the hazardous wastes, application of advanced technology, or alternative disposal, treatment, or re‑use techniques indicate that the hazardous waste management unit or facility is secure); or
(ii) Extend the post‑closure care period applicable to the hazardous waste management unit or facility if he finds that the extended period is necessary to protect human health and the environment (e.g., leachate or ground‑water monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment).
(1) Is necessary to the proposed use of the property, and will not increase the potential hazard to human health or the environment; or
Section 264.118 Post‑closure plan; amendment of plan.
(1) A description of the planned monitoring activities and frequencies at which they will be performed to comply with Subparts F, K, L, M, N and X of this part during the post‑closure care period; and
(2) A description of the planned maintenance activities, and frequencies at which they will be performed, to ensure:
(i) The integrity of the cap and final cover or other containment systems in accordance with the requirements of Subparts K, L, M, N and X of this part; and
(ii) The function of the monitoring equipment in accordance with the requirements of Subparts F, K, L, M, N and X of this part, and
(3) The name, address, and phone number of the person or office to contact about the hazardous waste disposal unit or facility during the post‑closure care period.
(4) For facilities where the Secretary has applied alternative requirements at a regulated unit under §§ 264.90(f), 264.110(c), and/or §264.140(d), either the alternative requirements that apply to the regulated unit, or a reference to the enforceable document containing those requirements.
(1) The owner or operator may submit a written notification or request to the Secretary for a permit modification to amend the post‑closure plan at any time during the active life of the facility or during the post‑closure care period.
(2) The owner or operator must submit a written notification of or request for a permit modification to authorize a change in the approved post‑closure plan whenever:
(iii) Events which occur during the active life of the facility, including partial and final closures, affect the approved post‑closure plan.
(iv) The owner or operator requests the Secretary to apply alternative requirements to a regulated unit under §§ 264.90(f), 264.110(c), and/or §264.140(d).
(3) The owner or operator must submit a written request for a permit modification at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which has affected the post‑closure plan. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to submit a contingent post‑closure plan under §§264.228(c)(1)(ii) and 264.258(c)(1)(ii) must submit a post closure plan
(4) The Secretary may request modifications to the plan under the conditions described in §264.118(d)(2). The owner or operator must submit the modified plan no later than 60 days after the Secretary's request, or no later than 90 days if the unit is a surface impoundment or waste pile not previously required to prepare a contingent post‑closure plan. Any modifications requested by the Secretary will be approved, disapproved, or modified in accordance with the procedures in Parts 124 and 122.
Section 264.119 Post‑closure notices.
(1) Record, in accordance with State law, an environmental covenant, per Delaware Code Title 7, Chapter 79, Subchapter II, with the deed to the facility property that will in perpetuity notify any potential purchaser of the property that:
(iii) The survey plat and record of the type, location, and quantity of hazardous wastes disposed of within each cell or other hazardous waste disposal unit of the facility required by §264.116 and §264.119(a) have been filed with the local zoning authority or the authority with jurisdiction over local land use and with the Secretary, and
(2) Submit a certification, signed by the owner or operator, that he has recorded the notation specified in paragraph (b)(1) of this section, including a copy of the document in which the notation has been placed, to the Secretary.
(1) The termination of the environmental covenant to the facility property or other instrument normally examined during title search; or
Section 264.120 Certification of completion of post‑closure care.
Section 264.140 Applicability.
(2) Piles and surface impoundments from which the owner or operator intends to remove the wastes at closure, to the extent that these sections are made applicable to such facilities in §264.228 and §264.258;
(1) Prescribes alternative requirements for the regulated unit under §264.90(f) and/or §264.110(c); and
(2) Determines that it is not necessary to apply the requirements of this subpart because the alternative financial assurance requirements will protect human health and the environment.
(a) Closure plan means the plan for closure prepared in accordance with the requirements of §264.112.
(b) Current closure cost estimate means the most recent of the estimates prepared in accordance with §264.142 (a), (b), and (c).
(c) Current post‑closure cost estimate means the most recent of the estimates prepared in accordance with §264.144(a), (b), and (c).
(d) Parent corporation means a corporation which directly owns at least 50 percent of the voting stock of the corporation which is the facility owner or operator; the latter corporation is deemed a subsidiary of the parent corporation.
(e) Post‑closure plan means the plan for post‑closure care prepared in accordance with the requirements of §§264.117‑264.120.
Assets means all existing and all probable future economic benefits obtained or controlled by a particular entity.
Current assets means cash or other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.
Current liabilities means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.
Independently audited refers to an audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.
Liabilities means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.
Net working capital means current assets minus current liabilities.
Net worth means total assets minus total liabilities and is equivalent to owner's equity.
Tangible net worth means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.
(g) In the liability insurance requirements the terms bodily injury and property damage shall have the meanings given these terms by applicable State law. However, these terms do not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury and property damage. The Department intends the meanings of other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry. The definitions given below of several of the terms are intended to assist in the understanding of these regulations and are not intended to limit their meanings in a way that conflicts with general insurance industry usage.
Accidental occurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
Legal defense costs means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.
Nonsudden accidental occurrence means an occurrence which takes place over time and involves continuous or repeated exposure.
Sudden accidental occurrence means an occurrence which is not continuous or repeated in nature.
(h) Substantial business relationship means the extent of a business relationship necessary under applicable State law to make a guarantee contract issued incident to that relationship valid and enforceable. A “substantial business relationship” must arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of the Secretary.
Section 264.142 Cost estimate for closure.
(1) The estimate must equal the cost of final closure at the point in the facility's active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see §264.112(b)); and
(2) The closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary of the owner or operator (See definition of parent corporation in §264.141(d)). The owner or operator may use costs for on‑site disposal if he can demonstrate that on‑site disposal capacity will exist at all times over the life of the facility.
(3) The closure cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous wastes, facility structures or equipment, land, or other assets associated with the facility at the time of partial or final closure.
(4) The owner or operator may not incorporate a zero cost for hazardous wastes that might have economic value.
(5) Owners or operators using the trust fund for closure must include any costs or fees associated with administering the fund into the cost estimate for closure.
(b) During the active life of the facility, the owner or operator must adjust the closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instrument(s) used to comply with §264.143. For owners and operators using the financial test or corporate guarantee, the closure cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before submission of updated information to the Secretary as specified in §264.143(f)(3). The adjustment may be made by recalculating the maximum costs of closure in current dollars, or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business, as specified in paragraphs (b)(1) and (b)(2) of this section. The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year.
(1) The first adjustment is made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate.
(2) Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor.
Section 264.143 Financial assurance for closure.
(1) An owner or operator may satisfy the requirements of this section by establishing a closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Secretary. An owner or operator of a new facility must submit the originally signed duplicate of the trust agreement to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.
(2) The wording of the trust agreement must be identical to the wording specified in §264.151(a)(1), and the trust agreement must be accompanied by a formal certification of acknowledgment (for example, see §264.151(a)(2)). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current closure cost estimate covered by the agreement.
(3) Payments into the trust fund must be made annually by the owner or operator over the term of the initial RCRA permit or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the pay‑in period. The payments into the closure trust fund must be made as follows:
(i) For a new facility, the first payment must be made before the initial receipt of hazardous waste for treatment, storage, or disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the Secretary before this initial receipt of hazardous waste. The first payment must be at least equal to the current closure cost estimate, except as provided in §264.143(g), divided by the number of years in the pay‑in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:
(ii) If an owner or operator establishes a trust fund as specified in §265.143(a) of these regulations, and the value of that trust fund is less than the current closure cost estimate when a permit is awarded for the facility, the amount of the current closure cost estimate still to be paid into the trust fund must be paid in over the pay‑in period as defined in paragraph (a)(3) of this section.
(4) The owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the current closure cost estimate at the time the fund is established. However, he must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in paragraph (a)(3) of this section.
(5) If the owner or operator establishes a closure trust fund after having used one or more alternate mechanisms specified in this section or in §265.143 of these regulations, his first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to specifications of this paragraph and §265.143(a) of these regulations, as applicable.
(6) After the pay‑in period is completed, whenever the current closure cost estimate changes, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current closure cost estimate, or obtain other financial assurance as specified in this section to cover the difference.
(7) If the value of the trust fund is greater than the total amount of the current closure cost estimate, the owner or operator may submit a written request to the Secretary for release of the amount in excess of the current closure cost estimate.
(8) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, he may submit a written request to the Secretary for release of the amount in excess of the current closure cost estimate covered by the trust fund.
(9) Within 60 days after receiving a request from the owner or operator for release of funds as specified in paragraphs (a)(7) or (8) of this section, the Secretary will instruct the trustee to release to the owner or operator such funds as the Secretary specifies in writing.
(10) After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request reimbursements for partial or final closure expenditures by submitting itemized bills to the Secretary. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for partial or final closure activities, the Secretary will instruct the trustee to make reimbursements in those amounts as the Secretary specifies in writing, if the Secretary determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the Secretary has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, he may withhold reimbursements of such amounts as he deems prudent until he determines, in accordance with §264.143(i) that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the Secretary does not instruct the trustee to make such reimbursements, he will provide the owner or operator with a detailed written statement of reasons.
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the Secretary. An owner or operator of a new facility must submit the bond to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The bond must be effective before this
(3) The owner or operator who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the stand by trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond, and
(ii) Until the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(i) Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or
(ii) Fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin final closure issued by the Secretary becomes final, or within 15 days after an order to begin final closure is issued by a U.S. District Court or other court of competent jurisdiction; or
(iii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.
(6) The penal sum of the bond must be in an amount at least equal to the current closure cost estimate, except as provided in §264.143(g).
(7) Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Secretary or obtain other financial assurance as specified in this section to cover the increase. Whenever the current closure cost estimate decreases, the penal sum maybe reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond if the Secretary has given prior written consent based on his receipt of evidence of alternate financial assurance as specified in this section.
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the Secretary. An owner or operator of a new facility must submit the bond to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.
(3) The owner or operator who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust must meet the requirements specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(i) Perform final closure in accordance with the closure plan and other requirements of the permit for the facility whenever required to do so; or
(ii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a final administrative determination pursuant to 7 Del.C., Chapter 63, that the owner or operator has failed to perform final closure in accordance with the approved closure plan and other permit requirements when required to do so, under the terms of the bond the surety will perform final closure as guaranteed by the bond or will deposit the amount of the penal sum into the standby trust fund.
(6) The penal sum of the bond must be in an amount at least equal to the current closure cost estimate.
(7) Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section. Whenever the current closure cost estimate decreases, the penal sum may be reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond if the Secretary has given prior written consent. The Secretary will provide such written consent when:
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting the letter to the Secretary. An owner or operator of a new facility must submit the letter of credit to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The letter of credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity which has the authority to issue letters of credit and whose letter‑of‑credit operations are regulated and examined by a Federal or State agency.
(3) An owner or operator who uses a letter of credit to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Secretary will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements of the trust fund specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the letter of credit; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(8) Following a final administrative determination pursuant to 7 Del.C., Chapter 63, that the owner or operator has failed to perform final closure in accordance with the he closure plan and other permit requirements when required to do so, the Secretary may draw on the letter of credit.
(10) The Secretary will return the letter of credit to the issuing institution for termination when:
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(3) The closure insurance policy must be issued for a face amount at least equal to the current closure cost estimate, except as provided in §264.143(g). The term face amount means the total amount the insurer
(iii) Closure is ordered by the Secretary or a U.S. District Court or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), USC; or
(10) The Secretary will give written consent to the owner or operator that he may terminate the insurance policy when:
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and
(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post‑closure cost estimates; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's and
(B) Tangible net worth at least six times the sum of the current closure and post‑closure cost estimates; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(2) The phrase current closure and post‑closure cost estimates as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1‑4 of the letter from the owner's or operator's chief financial officer [§264.151(f)].
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year end financial statements for the latest fiscal year with the amounts in such financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(10) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (8) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). The certified copy of the guarantee must accompany the items sent to the Secretary as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:
(i) If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.143(a) in the name of the owner or operator.
(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(iii) If the owner or operator fails to provide alternative financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator.
Section 264.144 Cost estimate for post‑closure care.
(b) During the active life of the facility, the owner or operator must adjust the post‑closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instrument(s) used to comply with §264.145. For owners or operators using the financial test or corporate guarantee, the post‑closure cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before the submission of updated information to the Secretary as specified in §264.145(f)(5). The adjustment may be made by recalculating the post‑closure cost estimate in current dollars or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business as specified in §264.145(b)(1) and (b)(2). The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year.
Section 264.145 Financial assurance for post‑closure care.
(3) Payments into the trust fund must be made annually by the owner or operator over the term of the initial RCRA/State permit or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the pay‑in period. The payments into the post‑closure trust fund must be made as follows:
(i) For a new facility, the first payment must be made before the initial receipt of hazardous waste for disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the Secretary before this initial receipt of hazardous waste. The first payment must be at lease equal to the current post‑closure cost estimate, except as provided in §264.145(g), divided by the number of years in the pay‑in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:
(ii) If an owner of operator establishes a trust fund as specified in §265.145(a) of these regulations, and the value of that trust fund is less than the current post‑closure cost estimate when a permit is awarded for the facility, the amount of the current post‑closure cost estimate still to be paid into the fund must be paid in over the pay‑in period as defined in paragraph (a)(3) of this section. Payments must continue to be made no later than 30 days after each anniversary date of the first payment made pursuant to Part 265 of these regulations. The amount of each payment must be determined by this formula:
(10) During the period of post‑closure care, the Secretary may approve a release of funds if the owner or operator demonstrates to the Secretary that the value of the trust fund exceeds the remaining cost of post‑closure care.
(11) An owner or operator or any other person authorized to conduct post‑closure care may request reimbursements for post‑closure care expenditures by submitting itemized bills to the Secretary. Within 60 days after receiving bills for post‑closure care activities, the Secretary will instruct the trustee to make reimbursements in those amounts as the Secretary specifies in writing, if the Secretary determines that the post‑closure care expenditures are in accordance with the approved post‑closure plan or otherwise justified. If the Secretary does not instruct the trustee to make such reimbursements, he will provide the owner or operator with a detailed written statement of reasons.
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and;
(ii) Until the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post‑closure cost estimates;
(i) Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or
(ii) Fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin final closure issued by the Secretary becomes final, or within 15 days after an order to begin final closure is issued by a U.S. District court or other court of competent jurisdiction; or
(iii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days of receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post‑closure cost estimates;
(i) Perform post‑closure care in accordance with the post‑closure plan and other requirements of the permit for the facility; or
(ii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days of receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a final administrative determination pursuant to 7 Del.C., Chapter 63 that the owner or operator has failed to perform post‑closure care in accordance with the approved post‑closure plan and other permit requirements, under the terms of the bond the surety will perform post‑closure care in accordance with the post‑closure plan and other permit requirements or will deposit the amount of the penal sum into the standby trust fund.
(10) The owner or operator may cancel the bond if the Secretary has given prior written consent. The Secretary will provide such written consent when:
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(I).
(11) The surety will not be liable for deficiencies in the performance of post‑closure care by the owner or operator after the Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the letter of credit; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations.
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post‑closure cost estimates;
(4) The letter of credit must be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: the EPA identification number, name, and address of the facility, and the amount of funds assured for post‑closure care of the facility by the letter of credit.
(9) Following a final administrative determination pursuant to 7 Del.C., Chapter 63 that the owner or operator has failed to perform post‑closure care in accordance with the approved post‑closure plan and other permit requirements, the Secretary may draw on the letter of credit.
(10) If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the Secretary will draw on the letter of credit. Secretary may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the Secretary will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the Secretary.
(11) The Secretary will return the letter of credit to the issuing institution for termination when:
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(3) The post‑closure insurance policy must be issued for a face amount at least equal to the current post‑closure cost estimate, except as provided in §264.145(g). The term face amount means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments.
(iii) Closure is ordered by the Secretary or a U.S. District Court or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 USC (Bankruptcy); or
(10) Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase must be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of the most recent investment rate or of the equivalent coupon‑issue yield announced by the U.S. Treasury for 26‑week Treasury securities.
(11) The Secretary will give written consent to the owner or operator that he may terminate the insurance policy when:
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(I).
(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and
(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post‑closure cost estimates; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; and
(B) Tangible net worth at least six times the sum of the current closure and post‑closure cost estimates; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(2) The phrase "current closure and post‑closure cost estimates" as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1‑4 of the letter from the owner's or operator's chief financial officer [§264.151(f)].
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year‑end financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(10) The owner or operator is no longer required to submit the items specified in paragraph (f)(3) of this section when:
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(11) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (9) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). A certified copy of the guarantee must accompany the items sent to the Secretary as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:
(i) If the owner or operator fails to perform post‑closure care of a facility covered by the corporate guarantee in accordance with the post‑closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.145(a) in the name of the owner or operator.
(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(iii) If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.
Section 264.146 Use of a mechanism for financial assurance of both closure and post‑closure care.
Section 264.147 Liability requirements.
(i) Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in §264.151(i). The wording of the certificate of insurance must be identical to the wording specified in §264.151(j). The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the Secretary, or EPA Regional Administrator if the facilities are located in more than one EPA Region. If requested by a Secretary, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the insurance policy.
(ii) Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
(i) A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in paragraphs (a)(1) through (a)(6) of this section; or
(ii) A Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under paragraphs (a)(1) through (a)(6) of this section; or
(iii) A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under paragraphs (a)(1) through (a)(6) of this section.
(i) Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in §264.151(i). The wording of the certificate of insurance must be identical to the wording specified in §264.151(j). The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the Secretary, or EPA Regional Administrator if the facilities are located in more than one Region. If requested by a Secretary, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The insurance must be effective before this initial receipt of hazardous waste.
(ii) Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
(i) A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in paragraphs (b)(1) through (b)(6) of this section; or
(ii) A Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under paragraphs (b)(1) through (b)(6) of this section; or
(iii) A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under paragraphs (b)(1) through (b)(6) of this section.
(c) [Reserved]
(A) Net working capital and tangible net worth each at least six times the amount of liability overage to be demonstrated by this test; and
(C) Assets in the United States amounting to either: (1) At least 90 percent of his total assets; or (2) At least six times the amount of liability coverage to be demonstrated by this test.
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's, or Aaa, Aa, A, or Baa as issued by Moody's; and
(C) Tangible net worth at least six times the amount of liability coverage to be demonstrated by this test; and
(D) Assets in the United States amounting to either: (1) at least 90 percent of his total assets; or (2) at least six times the amount of liability coverage to be demonstrated by this test.
(2) The phrase amount of liability coverage as used in paragraph (f)(l) of this section refers to the annual aggregate amounts for which coverage is required under paragraphs (a) and (b) of this section.
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(g). If an owner or operator is using the financial test to demonstrate both assurance for closure or post‑closure care, as specified by §§264.143(f), 264.145(f), 265.143(e), and 265.145(e), and liability coverage, he must submit the letter specified in §264.151(g) to cover both forms of financial responsibility; a separate letter as specified in §264.151(f) is not required.
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year.
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year‑end financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(i) If the owner or operator fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both as the case may be), arising from the operation of facilities covered by this corporate guarantee, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage.
(ii) In the case of corporations incorporated outside the United States, a guarantee may be used to satisfy the requirements of this section only if (A) the non‑U.S. corporation has identified a registered agent for service of process in each State in which a facility covered by the guarantee is located and in the State in which it has its principal place of business, and (B) the Attorney General or Insurance Commissioner of each State in which a facility covered by the guarantee is located and the State in which the guarantor corporation has its principal place of business, has submitted a written statement to DNREC that a guarantee executed as described in this section and §264.151(h)(2) is a legally valid and enforceable obligation in that State.
(1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this paragraph and submitting a copy of the letter of credit to the Secretary.
(5) The wording of the standby trust fund must be identical to the wording specified in §264.151(n).
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond that conforms to the requirements of this paragraph and submitting a copy of the bond to the Secretary.
(1) An owner or operator may satisfy the requirements of this section by establishing a trust fund that conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Secretary.
Section 264.148 Incapacity of owners or operators, guarantors, or financial institutions.
Sections 264.149 ‑ 264.150 [Reserved]
Section 264.151 Wording of Instruments.
Trust Agreement, the "Agreement," entered into as of [date] by and between [name of the owner or operator], a [name of State] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert "incorporated in the State of____" or "a national bank"], the "Trustee."
Section 1. Definitions. As used in this Agreement:
(a) The term "Grantor" means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
Section 2. Identification of Facilities and Cost Estimates. This agreement pertains to the facilities and cost estimates identified on attached Schedule A [on Schedule A, for each facility list the EPA Identification Number, name, address, and the current closure and/or post‑closure cost estimates, or portions thereof, for which financial assurance is demonstrated by this Agreement].
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the "Fund" for the benefit of DNREC. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund is established initially as consisting of the property, which is acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by DNREC.
Section 4. Payment for Closure and Post Closure Care. The Trustee shall make payments from the Fund as the DNREC Secretary shall direct, in writing, to provide for the payment of the costs of closure and/or post‑closure care of the facilities covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as specified by the DNREC Secretary from the Fund for closure and post‑closure expenditures in such amounts as the DNREC Secretary shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the DNREC Secretary specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and income of the fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of alike character and with like aims; except that;
Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:
Section 8. Express Powers of Trustee. Without in any way limiting the powers and discretion conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
Section 10. Annual Valuation. The Trustee shall annually, at least 30 days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the appropriate DNREC Secretary a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the DNREC Secretary shall constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.
Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.
Section 12. Trustee Compensation. The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
Section 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in a writing sent to the Grantor, the DNREC Secretary, and the present Trustee by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this section shall be paid as provided in Section 9.
Section 14. Instructions to the Trustee. All orders, requests, and instructions by the Grantor to the Trustee shall be in writing signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendment to Exhibit A. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests and instructions by the DNREC Secretary to the Trustee shall be in writing, signed by the DNREC Secretary and/or EPA Regional Administrators if the facilities are located outside the State, or their designees and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the grantor or DNREC hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or DNREC, except as provided for herein.
Section 15. Notice of Nonpayment. The Trustee shall notify the Grantor and the Secretary or appropriate EPA Regional Administrator, by certified mail within 10 days following the expiration of the 30‑day period after the anniversary of the establishment of the Trust, if no payment is received from the Grantor during that period. After the pay‑in period is completed, the Trustee shall not be required to send a notice of nonpayment.
Section 16. Amendment of agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, the Secretary, and the appropriate EPA Regional Administrator, or by the Trustee, the Secretary and the appropriate EPA Regional Administrator if the Grantor ceases to exist.
Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Grantor, the Trustee, and the DNREC Secretary, or by the Trustee and the DNREC Secretary, if the Grantor cease to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.
Section 18. Immunity and Indemnification. The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the DNREC Secretary issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.
Section 19. Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the State of Delaware.
Section 20. Interpretation. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each Section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
Whereas said Principal is required, under the 7 Del.C., Chapter 63, to have a permit or interim status in order to own or operate each hazardous waste management facility identified above, and
We hereby establish our Irrevocable Standby Letter of Credit No._____ in your favor, at the request and for the account of [owner's or operator's name and address] up to the aggregate amount of [in words] U.S. dollars $‑‑, available upon presentation [insert, if other than the DNREC Secretary is a beneficiary, "by any one of you"] of
2. This firm guarantees, through the guarantee specified in Subpart H of Parts 264 and 265, the closure or post-closure care of the following facilities owned or operated by the guaranteed party. The current cost estimates for the closure or post-closure care so guaranteed are shown for each facility: . The firm identified above is [insert one or more: (1) The direct or higher-tier parent corporation of the owner or operator; (2) owned by the same parent corporation as the parent corporation of the owner or operator, and receiving the following value in consideration of this guarantee ; or (3) engaged in the following substantial business relationship with the owner or operator , and receiving the following value in consideration of this guarantee ]. [Attach a written description of the business relationship or a copy of the contract establishing such relationship to this letter].
*9. Total assets in U.S. (required only if less than 90% of firm's assets are located in the U.S.) $
*6. Total assets in U.S. (required only if less than 90% of firm's assets are located in the U.S.) $
The firm identified above guarantees, through the guarantee specified in Subpart H of Parts 264 and 265, liability coverage for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"] accidental occurrences at the following facilities owned or operated by the following: . The firm identified above is [insert one or more: (1) The direct or higher-tier parent corporation of the owner or operator; (2) owned by the same parent corporation as the parent corporation of the owner or operator, and receiving the following value in consideration of this guarantee ; or (3) engaged in the following substantial business relationship with the owner or operator , and receiving the following value in consideration of this guarantee ]. [Attach a written description of the business relationship or a copy of the contract establishing such relationship to this letter.]
(2) Premises that are sold, given away or abandoned by [insert owner or operator] if the property damage arises out of any part of those premises;
1. This endorsement certifies that the policy to which the endorsement is attached provides liability insurance covering bodily injury and property damage in connection with the insured's obligation to demonstrate financial responsibility under §§264.147 or 265.147. The coverage applies at [list EPA Identification Number, name, and address for each facility] for [insert "sudden accidental occurrences", "nonsudden accidental occurrences," or "sudden and non sudden accidental occurrences"; if coverage is for multiple facilities and the coverage is different for different facilities, indicate which facilities are insured for sudden accidental occurrences, which are insured for nonsudden accidental occurrences, and which are insured for both]. The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's liability], exclusive of legal defense costs.
(a) Bankruptcy or insolvency of the insured shall not relieve the Insurer of its obligations under the policy to which this endorsement is attached.
(b) The Insurer is liable for the payment of amounts within any deductible applicable to the policy, with a right of reimbursement by the insured for any such payment made by the Insurer. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated as specified in §§264.147(f) or 265.147(f).
(c) Whenever requested by a DNREC Secretary, the Insurer agrees to furnish to the DNREC Secretary a signed duplicate original of the policy and all endorsements.
(d) Cancellation of this endorsement, whether by the Insurer, the insured, a parent corporation providing insurance coverage for its subsidiary, or by a firm having an insurable interest in and obtaining liability insurance on behalf of the owner or operator of the hazardous waste management facility, will be effective only upon written notice and only after the expiration of sixty (60) days after a copy of such written notice is received by the DNREC Secretary.
(e) Any other termination of this endorsement will be effective only upon written notice and only after the expiration of thirty (30) days after a copy of such written notice is received by the DNREC Secretary.
1. [Name of Insurer], (the "Insurer"), of [address of Insurer] hereby certifies that it has issued liability insurance covering bodily injury and property damage to [name of insured], (the "insured"), of [address of insured] in connection with the insured's obligation to demonstrate financial responsibility under §§264.147 or 265.147. The coverage applies at [list EPA Identification Number, name, and address for each facility] for [insert "sudden accidental occurrences", "nonsudden accidental occurrences", or "sudden and nonsudden accidental occurrences"; if coverage is for multiple facilities and the coverage is different for different facilities, indicate which facilities are insured for sudden accidental occurrences, which are insured for nonsudden accidental occurrences, and which are insured for both]. The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's liability], exclusive of
legal defense costs. The coverage is provided under policy number‑‑‑, issued on [date]. The effective date of said policy is [date].
Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No. in the favor of ["any and all third-party liability claimants" or insert name of trustee of the standby trust fund], at the request and for the account of [owner or operator's name and address] for third-party liability awards or settlements up to [in words] U.S. dollars $ per occurrence and the annual aggregate amount of [in words] U.S. dollars $ , for sudden accidental occurrences and/or for third-party liability awards or settlements up to the amount of [in words] U.S. dollars $ per occurrence, and the annual aggregate amount of [in words] U.S. dollars $ , for nonsudden accidental occurrences available upon presentation of a sight draft bearing reference to this letter of credit No. , and [insert the following language if the letter of credit is being used without a standby trust fund:] (1) a signed certificate reading as follows:
(a) Bodily injury or property damage for which [insert principal] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert principal] would be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert principal] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.
(1) An employee of [insert principal] arising from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert principal].
(B) To any obligation to share damages with or repay another person who must pay damages because of the injury to persons identified in paragraphs (1) and (2).
(3) Rules and regulations of 7 Del.C., Chapter 63, and the Delaware Regulations Governing Hazardous Waste, particularly ["§264.147" or "§265.147"].
(1) An employee of [insert principal] arising from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert principal]. This exclusion applies:
(2) Premises that are sold, given away or abandoned by [insert principal] if the property damage arises out of any part of those premises;
(5) That particular part of real property on which [insert principal] or any contractors or subcontractors working directly or indirectly on behalf of [insert principal] are performing operations, if the property damage arises out of these operations.
Trust Agreement, the "Agreement," entered into as of [date] by and between [name of the owner or operator] a [name of State] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert, "incorporated in the State of " or "a national bank"], the "trustee."
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, hereinafter the "Fund," for the benefit of any and all third parties injured or damaged by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee, in the amounts of [up to $1 million] per occurrence and [up to $2 million] annual aggregate for sudden accidental occurrences and [up to $3 million] per occurrence and [up to $6 million] annual aggregate for nonsudden occurrences, except that the Fund is not established for the benefit of third parties for the following:
Trust Agreement, the "Agreement," entered into as of [date] by and between [name of the owner or operator] a [name of a State] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert, "incorporated in the State of " or "a national bank"], the "trustee."
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a standby trust fund, hereafter the "Fund," for the benefit of any and all third parties injured or damaged by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee, in the amounts of [up to $1 million] per occurrence and [up to $2 million] annual aggregate for sudden accidental occurrences and [up to $3 million] per occurrence and [up to $6 million] annual aggregate for nonsudden occurrences, except that the Fund is not established for the benefit of third parties for the following:
Section 264.170 Applicability.
[Comment: Under §261.7 and §261.33(c) of these regulations, if a hazardous waste is emptied from a container the residue remaining in the container is not considered a hazardous waste if the container is empty as defined in §261.7. In that event, management of the container is exempt from the requirements of this subpart.]
Section 264.171 Condition of containers.
Section 264.172 Compatibility of waste with containers.
Section 264.173 Management of containers.
[Comment: If the collected material is a hazardous waste under Part 261 of these regulations, it must be managed as a hazardous waste in accordance with all applicable requirements of Parts 262‑266 of these regulations. If the collected material is discharged through a point source to waters of the United States, it is subject to the requirements of §402 of the Clean Water Act as amended.]
(2) [Reserved]
Section 264.176 Special requirements for ignitable or reactive waste.
Section 264.177 Special requirements for incompatible wastes.
[Comment: The purpose of this section is to prevent fires, explosions, gaseous emission, leaching, or other discharge of hazardous waste or hazardous waste constituents which could result from the mixing of incompatible wastes or materials if containers break or leak.]
[Comment: At closure as throughout the operating period, unless the owner or operator can demonstrate in accordance with §261.3(d) of these regulations that the solid waste removed from the containment system is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262‑266 of these regulations].
Section 264.179 Air emission standards.
Section 264.190 Applicability.
Section 264.191 Assessment of existing tank system's integrity.
(i) For non‑enterable underground tanks, the assessment must include a leak test that is capable of taking into account the effects of temperature variations, tank end deflection, vapor pockets, and high water table effects, and
(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 a qualified Professional Engineer in accordance with §122.11(d), that addresses cracks, leaks, corrosion, and erosion.
Section 264.192 Design and installation of new tank systems or components.
(A) Corrosion‑resistant materials of construction such as special alloys, fiberglass reinforced plastic, etc.
(B) Corrosion‑resistant coating (such as epoxy, fiberglass, etc.) with cathodic protection (e.g., impressed current or sacrificial anodes); and
(ii) Tank systems will be anchored to prevent flotation or dislodgment where the tank system is placed in a saturated zone, or is located within a seismic fault zone subject to the standards of §264.18(a); and
Section 264.193 Containment and detection of releases.
(i) Designed or operated to contain 100 percent of the capacity of the largest tank within its boundary;
(ii) Designed or operated to prevent run‑on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain run‑on or infiltration. Such additional capacity must be sufficient to contain precipitation from a 25‑ year, 24 hour rainfall event.
(iv) Designed and installed to surround the tank completely and to cover all surrounding earth likely to come into contact with the waste if the waste is released from the tank(s) (i.e., capable of preventing lateral as well as vertical migration of the waste).
(v) Provided with an impermeable interior coating or lining that is compatible with the stored waste and that will prevent migration of wastes into the concrete; and
(vi) For systems installed after January 1, 2011, constructed with chemical-resistant water stops in place at all joints (if any). Documents demonstrating compliance with this requirement must be retained in the facility record.
(i) Designed or operated to contain 100 percent of the capacity of the largest tank within its boundary;
(ii) Designed or operated to prevent run‑on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain precipitation from a 25‑year, 24‑hour rainfall event;
(iv) Provided with an impermeable interior coating or lining that is compatible with the stored waste and that will prevent migration of waste into the concrete;
(v) Provided with a means to protect against the formation of and ignition of vapors within the vault, if the waste being stored or treated:
(B) Meets the definition of reactive waste under §261.23 of these regulations, and may form an ignitable or explosive vapor; and
(vi) Provided with an exterior moisture barrier or be otherwise designed or operated to prevent migration of moisture into the vault if the vault is subject to hydraulic pressure.
(i) Designed as an integral structure (i.e., an inner tank completely enveloped within an outer shell) so that any release from the inner tank is contained by the outer shell;
(ii) Protected, if constructed of metal, from both corrosion of the primary tank interior and of the external surface of the outer shell; and
(iii) Provided with a built‑in continuous leak detection system capable of detecting a release within 24 hours, or at the earliest practicable time, if the owner or operator can demonstrate to the Secretary and the Secretary concludes, that the existing detection technology or site conditions would not allow detection of a release within 24 hours.
(1) In deciding whether to grant a variance based on a demonstration of equivalent protection of groundwater and surface water, the Secretary will consider:
(iii) The hydrogeologic setting of the facility, including the thickness of soils present between the tank system and groundwater; and
(iv) All other factors that would influence the quality and mobility of the hazardous constituents and the potential for them to migrate to groundwater or surface water.
(2) In deciding whether to grant a variance based on a demonstration of no substantial present or potential hazard, the Secretary will consider:
(i) The potential adverse effects on groundwater, surface water, and land quality taking into account:
(A) The physical and chemical characteristics of the waste in the tank system, including its potential for migration,
(D) The potential for damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents, and
(D) The existing quality of groundwater, including other sources of contamination and their cumulative impact on the groundwater quality;
(D) The current and future uses of surface waters in the area and any water quality standards established for those surface waters, and
(E) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and
(iv) The potential adverse effects of a release on the land surrounding the tank system, taking into account:
(A) Enable the tank system for which the variance was granted to resume operation with the capability for the detection of releases at least equivalent to the capability it had prior to the release; and
(B) Prevent the migration of hazardous waste or hazardous constituents to the groundwater or surface water; and
(iii) If contaminated soil cannot be removed or decontaminated in accordance with paragraph (g)(3)(ii) of this section, comply with the requirement of §265.197(b).
(4) The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of paragraph (g)(1) of this section, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control (as established in the variance), must:
(ii) Prevent the migration of hazardous waste or hazardous constituents to groundwater or surface water, if possible, and decontaminate or remove contaminated soil. If contaminated soil cannot be decontaminated or removed or if groundwater has been contaminated, the owner or operator must comply with the requirements of §264.197(b); and
(iii) If repairing, replacing, or reinstalling the tank system, provide secondary containment in accordance with the requirements of paragraphs (a) through (f) of this section or reapply for a variance from secondary containment and meet the requirements for new tank systems in §264.192 if the tank system is replaced. The owner or operator must comply with these requirements even if contaminated soil can be decontaminated or removed and groundwater or surface water has not been contaminated.
(i) For existing tank systems, at least 24 months prior to the date that secondary containment must be provided in accordance with paragraph (a) of this section.
(Note: The practices described in the American Petroleum Institute (API) Publication Guide for Inspection of Refinery Equipment, Chapter XIII, "Atmospheric and Low‑Pressure Storage Tanks," 4th edition, 1981, may be used, where applicable, as guidelines for assessing the overall condition of the tank system.)
Section 264.194 General operating requirements.
(iii) Results of any monitoring or sampling conducted in connection with the release (if available). If sampling or monitoring data relating to the release are not available within 30 days, these data must be submitted to the Secretary as soon as they become available.
[Note: The Secretary may, on the basis of any information received that there is or has been a release of hazardous waste or hazardous constituents into the environment, issue an order under 7 Del.C., Chapter 63 requiring corrective action or such other response as deemed necessary to protect human health or the environment.]
[Note: See §264.15(c) for the requirements necessary to remedy a failure. Seven Del.C., Chapter 60 requires notification to the Department of all spills or discharges, also 40 CFR Part 302 may require the owner or operator to notify the National Response Center of certain releases.]
Section 264.197 Closure and post‑closure care.
(2) A contingent post‑closure plan for complying with paragraph (b) of this section must be prepared and submitted as part of the permit application.
Section 264.198 Special requirements for ignitable or reactive wastes.
(i) The resulting waste, mixture, or dissolved material no longer meets the definition of ignitable or reactive waste under §§261.21 or 261.23 of these regulations, and
Section 264.199 Special requirements for incompatible wastes.
Section 264.200 Air emission standards.
Section 264.220 Applicability.
Section 264.221 Design and operating requirements.
(A) A top liner designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into such liner during the active life and post-closure care period; and
(B) A composite bottom liner, consisting of at least two components. The upper component must be designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into this component during the active life and post-closure care period. The lower component must be designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur. The lower component must be constructed of at least 3 feet (91 cm) of compacted soil material with a hydraulic conductivity of no more than 1X10-7cm/sec.
(ii) Constructed of granular drainage materials with a hydraulic conductivity of 1X10-1cm/sec or more and a thickness of 12 inches (30.5 cm) or more; or constructed of synthetic or geonet drainage materials with a transmissivity of 3X10-4m2/sec or more;
(iii) Constructed of materials that are chemically resistant to the waste managed in the surface impoundment and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes and any waste cover materials or equipment used at the surface impoundment;
(iv) Designed and operated to minimize clogging during the active life and post-closure care period; and
(v) Constructed with sumps and liquid removal methods (e.g., pumps) of sufficient size to collect and remove liquids from the sump and prevent liquids from backing up into the drainage layer. Each unit must have its own sump(s). The design of each sump and removal system must provide a method for measuring and recording the volume of liquids present in the sump and of liquids removed.
(B) The monofill is located more than one‑quarter mile from an “underground source of drinking water” (as that term is defined in §122.2 of the Regulations Governing Underground Injection Control); and
(C) The monofill is in compliance with generally applicable groundwater monitoring requirements for facilities with permits under 7 Del.C., Chapter 63; or
(ii) The owner or operator demonstrates that the monofill is located, designed and operated so as to assure that there will be no migration of any hazardous constituent into groundwater or surface water at any future time.
Section 264.222 Action leakage rate.
Section 264.223 Response actions.
(ii) Conduct a fingerprint, hazardous constituent, or other analyses of the liquids in the leak detection system to identify the source of liquids and possible location of any leaks, and the hazard and mobility of the liquid; and
(iii) Assess the seriousness of any leaks in terms of potential for escaping into the environment; or
Section 264.224 ‑ 264.225 [Reserved]
Section 264.226 Monitoring and inspection.
Section 264.227 Emergency repairs, contingency plans.
(i) For any existing portion of the impoundment, a liner must be installed in compliance with §264.221(a); and
(ii) For any other portion of the impoundment, the repaired liner system must be certified by a qualified engineer as meeting the design specifications approved in the permit.
Section 264.228 Closure and post‑closure care.
(E) Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present.
(i) The closure plan for the impoundment under §264.112 must include both a plan for complying with paragraph (a)(1) of this section and a contingent plan for complying with paragraph (a)(2) of this section in case not all contaminated subsoils can be practicably removed at closure; and
(ii) The owner or operator must prepare a contingent post‑closure plan under §264.118 for complying with paragraph (b) of this section in case not all contaminated subsoils can be practicably removed at closure.
Section 264.229 Special requirements for ignitable or reactive waste.
Section 264.230 Special requirements for incompatible wastes.
Section 264.231 Special requirements for hazardous wastes FO20, FO21, FO22, FO23, FO26, and FO27.
Section 264.232 Air emission standards.
Section 264.233 ‑ 264.249 [Reserved]
Section 264.250 Applicability.
Section 264.251 Design and operating requirements.
(ii) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and
(iii) Installed to cover all surrounding earth likely to be in contact with the waste or leachate; and
(A) Chemically resistant to the waste managed in the pile and the leachate expected to be generated; and
(B) Of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying wastes, waste cover materials, and by any equipment used at the pile; and
(ii) Designed and operated to function without clogging through the scheduled closure of the waste pile.
(A) A top liner designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into such liner during the active life and post-closure care period; and
(B) A composite bottom liner, consisting of at least two components. The upper component must be designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into this component during the active life and post-closure care period. The lower component must be designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur. The lower component must be constructed of at least 3 feet (91 cm) of compacted soil material with a hydraulic conductivity of no more than 1X10-7 cm/sec.
(ii) Constructed of granular drainage materials with a hydraulic conductivity of 1X10-2 cm/sec or more and a thickness of 12 inches (30.5 cm) or more; or constructed of synthetic or geonet drainage materials with a transmissivity of 3X10-5 m2/sec or more:
(iii) Constructed of materials that are chemically resistant to the waste managed in the waste pile and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and equipment used at the waste pile;
(iv) Designed and operated to minimize clogging during the active life and post-closure care period; and
(v) Constructed with sumps and liquid removal methods (e.g., pumps) of sufficient size to collect and remove liquids from the sump and prevent liquids from backing up into the drainage layer. Each unit must have its own sump(s). The design of each sump and removal system must provide a method for measuring and recording the volume of liquids present in the sump and of liquids removed.
Section 264.252 Action leakage rate.
Section 264.253 Response actions.
(2) Submit a preliminary written assessment to the Secretary within 14 days of the determination, as to the amount of liquids, likely sources of liquids, possible location, size, and cause of any leaks, and short-term actions taken and planned;
(4) Determine whether waste receipt should cease or be curtailed, whether any waste should be removed from the unit for inspection, repairs, or controls, and whether or not the unit should be closed;
(5) Determine any other short-term and long-term actions to be taken to mitigate or stop any leaks; and
(6) Within 30 days after the notification that the action leakage rate has been exceeded, submit to the Secretary the results of the analyses specified in paragraphs (b) (3), (4), and (5) of this section, the results of actions taken, and actions planned. Monthly thereafter, as long as the flow rate in the leak detection system exceeds the action leakage rate, the owner or operator must submit to the Secretary a report summarizing the results of any remedial actions taken and actions planned.
(ii) Conduct a fingerprint, hazardous constituent, or other analyses of the liquids in the leak detection system to identify the source of liquids and possible location of any leaks, and the hazard and mobility of the liquid; and
(iii) Assess the seriousness of any leaks in terms of potential for escaping into the environment; or
Section 264.254 Monitoring and inspection.
Section 264.256 Special requirements for ignitable or reactive waste.
Section 264.257 Special requirements for incompatible wastes.
Section 264.258 Closure and post‑closure care.
(i) Include in the closure plan for the pile under §264.112 both a plan for complying with paragraph (a) of this section and a contingent plan for complying with paragraph (b) of this section in case not all contaminated subsoils can be practicably removed at closure; and
(ii) Prepare a contingent post‑closure plan under §264.118 for complying with paragraph(b) of this section in case not all contaminated subsoils can be practicably removed at closure.
(2) The cost estimates calculated under §264.142 and 264.144 for closure and post‑closure care of a pile subject to this paragraph must include the cost of complying with the contingent closure plan and the contingent post‑closure plan, but are not required to include the cost of expected closure under paragraph (a) of this section.
Section 264.259 Special requirements for hazardous wastes FO20, FO21, FO22, FO23, FO26, and FO27.
Section 264.260 ‑ 264.269 [Reserved]
Section 264.270 Applicability.
Section 264.271 Treatment program.
Section 264.272 Treatment Demonstration.
(i) The characteristics of the waste (including the presence of Appendix VIII of Part 261 of these regulations constituents);
(v) In the case of field tests, the potential for migration of hazardous constituents to ground‑water or surface water.
Section 264.273 Design and operating requirements.
Section 264.274 ‑ 264.275 [Reserved]
Section 264.276 Food‑chain crops.
(i) Will not be transferred to the food or feed portions of the crop by plant uptake or direct contact, and will not otherwise be ingested by food‑chain animals (e.g., by grazing); or
(ii) Will not occur in greater concentration in or on the food or feed portions of crops grown on the treatment zone than in or on identical portions of the same crops grown on untreated soils under similar conditions in the same region.
(i) Base the demonstration on conditions similar to those present in the treatment zone, includes soil characteristics (e.g., pH, cation exchange capacity), specific wastes, application rates, application methods, and crops to be grown; and
(ii) Describe the procedures used in conducting any tests, including the sample selection criteria, sample size, analytical methods, and statistical procedures.
(ii) The annual application of cadmium from waste must not exceed 0.5 kilograms per hectare (kg/ha) on land used for production of tobacco, leafy vegetables, or rootcrops grown for human consumption. For other food‑chain crops, the annual cadmium application rate must not exceed:
(iii) The cumulative application of cadmium from waste must not exceed 5 kg/ha if the waste and soil mixture has a pH of less than 6.5; and
(iv) If the waste and soil mixture has a pH of 6.5 or greater or is maintained at a pH of 6.5 or greater during crop growth, the cumulative application of cadmium from waste must not exceed: 5 kg/ha if soil cation exchange capacity (CEC) is less than 5 meq/100g; 10 kg/ha if soil CEC is 5‑ 15 meq/100g; and 20 kg/ha if soil CEC is greater than 15 meq/100g; or
(ii) The pH of the waste and soil mixture must be 6.5 or greater at the time of waste application or at the time the crop is planted, whichever occurs later, and this pH level must be maintained whenever food‑chain crops are grown;
(iii) There must be an operating plan which demonstrates how the animal feed will be distributed to preclude ingestion by humans. The operating plan must describe the measures to be taken to safeguard against possible health hazards from cadmium entering the food chain, which may result from alternative land uses; and
(iv) Future property owners must be notified by a stipulation in the environmental covenant which states that the property has received waste at high cadmium application rates and that food‑chain crops must not be grown except in compliance with paragraph (b)(2) of this section.
Section 264.278 Unsaturated zone monitoring.
(1) The Secretary will specify the hazardous constituents to be monitored in the facility permit. The hazardous constituents to be monitored are those specified under §264.271(b).
(2) The Secretary may require monitoring for principal hazardous constituents (PHCs) in lieu of the constituents specified under §264.271(b). PHCs are hazardous constituents contained in the wastes to be applied at the unit that are the most difficult to treat, considering the combined effects of degradation, transformation, and immobilization. The Secretary will establish PHCs if he finds, based on waste analyses, treatment demonstrations, or other data, that effective degradation, transformation, or immobilization of the PHCs will assure treatment at a least equivalent levels for the other hazardous constituents in the wastes.
(ii) Provides a reasonable balance between the probability of falsely identifying migration from the treatment zone and the probability of failing to identify real migration from the treatment zone.
Section 264.279 Recordkeeping.
Section 264.280 Closure and post-closure care.
(i) Background soil values may be based on a one‑time sampling of a background plot having characteristics similar to those of the treatment zone.
(ii) The owner or operator must express background values and values for hazardous constituents in the treatment zone in a form necessary for the determination of statistically significant increases under paragraph (d)(3) of this section.
(ii) Provides a reasonable balance between the probability of falsely identifying hazardous constituent presence in the treatment zone and the probability of failing to identify real presence in the treatment zone.
Section 264.281 Special requirements for ignitable or reactive waste.
Section 264.282 Special requirements for incompatible wastes.
Section 264.283 Special requirements for hazardous wastes FO20, FO21, FO23, FO26, and FO27.
Section 264.284 ‑ 264.299 [Reserved]
Section 264.300 Applicability.
Section 264.301 Design and operating requirements.
(i) Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic
(ii) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and
(iii) Installed to cover all surrounding earth likely to be in contact with the waste or leachate; and
(A) Chemically resistant to the waste managed in the landfill and the leachate expected to be generated; and
(B) Of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and by any equipment used at the landfill; and
(ii) Designed and operated to function without clogging through the scheduled closure of the landfill.
(A) A top liner designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into such liner during the active life and post-closure care period; and
(B) A composite bottom liner, consisting of at least two components. The upper component must be designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into this component during the active life and post-closure care period. The lower component must be designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur. The lower component must be constructed of at least 3 feet (91 cm) of compacted soil material with a hydraulic conductivity of no more than 1X10-7 cm/sec.
(ii) Constructed of granular drainage materials with a hydraulic conductivity of 1X10-2 cm/sec or more and a thickness of 12 inches (30.5 cm) or more; or constructed of synthetic or geonet drainage materials with a transmissivity of 3X10-5 m2/sec or more;
(iii) Constructed of materials that are chemically resistant to the waste managed in the landfill and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and equipment used at the landfill;
(iv) Designed and operated to minimize clogging during the active life and post-closure care period; and
(v) Constructed with sumps and liquid removal methods (e.g., pumps) of sufficient size to collect and remove liquids from the sump and prevent liquids from backing up into the drainage layer. Each unit must have its own sump(s). The design of each sump and removal system must provide a method for measuring and recording the volume of liquids present in the sump and of liquids removed.
(B) The monofill is located more than one‑quarter mile from an “underground source of drinking water” (as that term is defined in §122.2 of these regulations); and
(C) The monofill is in compliance with generally applicable groundwater monitoring requirements for facilities with permits under 7 Del.C., Chapter 63.
(ii) The owner or operator demonstrates that the monofill is located, designed and operated so as to assure that there will be no migration of any hazardous constituent into groundwater or surface water at any future time.
Section 264.302 Action leakage rate.
Section 264.303 Monitoring and inspection.
Section 264.304 Response actions.
(ii) Conduct a fingerprint, hazardous constituent, or other analyses of the liquids in the leak detection system to identify the source of liquids and possible location of any leaks, and the hazard and mobility of the liquid; and
(iii) Assess the seriousness of any leaks in terms of potential for escaping into the environment; or
Section 264.305‑264.308 [Reserved]
Section 264.309 Surveying and Recordkeeping.
Section 264.310 Closure and Post‑closure Care.
Section 264.312 Special Requirements for Ignitable or Reactive Waste.
Section 264.313 Special Requirements for Incompatible Wastes.
Section 264.314 Special Requirements for Bulk and Containerized Liquids.
(ii) Has been mixed with sorbent or solidified so that free-standing liquid is no longer observed; or
(i) Inorganic minerals, other inorganic materials, and elemental carbon (e.g., aluminosilicates, clays, smectites, Fuller's earth, bentonite, calcium bentonite, montmorillonite, calcined montmorillonite, kaolinite, micas (illite), vermiculites, zeolites; calcium carbonate (organic free limestone); oxides/hydroxides, alumina, lime, silica (sand), diatomaceous earth; perlite (volcanic glass); expanded volcanic rock; volcanic ash; cement kiln dust; fly ash; rice hull ash; activated charcoal/activated carbon); or
(ii) High molecular weight synthetic polymers (e.g., polyethylene, high density polyethylene (HDPE), polypropylene, polystyrene, polyurethane, polyacrylate, polynorborene, polyisobutylene, ground synthetic rubber, cross-linked allylstyrene and tertiary butyl copolymers). This does not include polymers derived from biological material or polymers specifically designed to be degradable; or
(i) The sorbent material is determined to be nonbiodegradable under ASTM Method G21-70 (1984a)-Standard Practice for Determining Resistance of Synthetic Polymer Materials to Fungi; or
(ii) The sorbent material is determined to be nonbiodegradable under ASTM Method G22-76 (1984b)-Standard Practice for Determining Resistance of Plastics to Bacteria; or
(iii) The sorbent material is determined to be non-biodegradable under OECD test 301B: [CO2 Evolution (Modified Sturm Test)].
Section 264.315 Special Requirements for Containers.
Section 264.316 Disposal of Small Containers of Hazardous Waste in Overpacked Drums (Lab Packs).
Section 264.317 Special requirements for hazardous wastes FO20, FO21, FO22, FO23, FO26, and FO27.
Sections 264.318‑264.339 [Reserved]
Section 264.340 Applicability.
(1) Except as provided by paragraph (b)(2) of this section, the standards of this part no longer apply when an owner or operator demonstrates compliance with the maximum achievable control technology (MACT) requirements of 40 CFR, Part 63, Subpart EEE by conducting a comprehensive performance test and submitting to the EPA Administrator with a copy to the DNREC Solid and Hazardous Waste Management Section, a Notification of Compliance under 40 CFR, §§ 63.1207(j) and 63.1210(d) documenting compliance with the requirements of Subpart EEE. Nevertheless, even after this demonstration of compliance with the MACT standards, DNREC hazardous waste permit conditions that were based on the standards of this part will continue to be in effect until they are removed from the permit or the permit is terminated or revoked, unless the permit expressly provides otherwise.
(2) The MACT standards do not supersede the closure requirements of §264.351 or the applicable requirements of Subparts A through H, BB and CC of this part.
(i) Listed as a hazardous waste in Part 261, Subpart D, of these regulations solely because it is ignitable (Hazard Code I), corrosive (Hazard Code C), or both; or
(ii) Listed as a hazardous waste in Part 261, Subpart D, of these regulations solely because it is reactive (Hazard Code R) for characteristics other than those listed in §261.23(a)(4) and (5), and will not be burned when other hazardous wastes are present in the combustion zone; or
(iii) A hazardous waste solely because it possesses the characteristic of ignitability, corrosivity, or both, as determined by the test for characteristics of hazardous wastes under Part 261, Subpart C, of these regulations; or
(iv) A hazardous waste solely because it possesses any of the reactivity characteristics described by §261.23(a)(1), (2), (3), 6), (7), and (8) of these regulations, and will not be burned when other hazardous wastes are present in the combustion zone; and
Section 264.341 Waste Analysis.
Section 264.342 Principal organic hazardous constituents (POHCs).
Section 264.343 Performance Standards.
(W)in = Mass feed rate of one principal organic hazardous constituent (POHC) in the waste stream feeding the incinerator, and
(W)out = Mass emission rate of the same POHC present in exhaust emissions prior to release to the atmosphere.
Pc is the corrected concentration of particulate matter, Pm is the measured concentration of particulate matter, and Y is the measured concentration of oxygen in the stack gas using the Orsat method of oxygen analysis of dry flu gas, presented in Part 60, Appendix A (Method 3). This correction procedure is to be used by all hazardous waste incinerators except those operating under conditions of oxygen enrichment. For these facilities, the Secretary will select an appropriate correction procedure, to be specified in the facility permit.
Section 264.344 Hazardous Waste Incinerator Permits.
Section 264.345 Operating requirements.
Section 264.347 Monitoring and Inspections.
Sections 264.348‑264.350 [Reserved]
[Comment: At closure, as throughout the operating period, unless the owner or operator can demonstrate, in accordance with §261.3(d) of these regulations, that the residue removed from the incinerator is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with applicable requirements of Parts 262‑266 of these regulations.]
Section 264.550 Applicability of Corrective Action Management Unit (CAMU) Regulations.
Section 264.551 Grandfathered Corrective Action Management Units (CAMUs).
(i) The regulated unit is closed or closing, meaning it has begun the closure process under §264.113 or §265.113; and
(ii) Inclusion of the regulated unit will enhance implementation of effective, protective and reliable remedial actions for the facility.
(i) Continue to detect and to characterize the nature, extent, concentration, direction, and movement of existing releases of hazardous constituents in ground water from sources located within the CAMU; and
(ii) Detect and subsequently characterize releases of hazardous constituents to ground water that may occur from areas of the CAMU in which wastes will remain in place after closure of the CAMU.
(B) Control, minimize, or eliminate, to the extent necessary to protect human health and the environment, for areas where wastes remain in place, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products to the ground, to surface waters, or to the atmosphere.
(ii) Requirements for closure of CAMUs shall include the following, as appropriate and as deemed necessary by the Secretary for a given CAMU:
(B) For areas in which wastes will remain after closure of the CAMU, requirements for capping of such areas; and
(C) Requirements for removal and decontamination of equipment, devices, and structures used in remediation waste management activities within the CAMU.
(iii) In establishing specific closure requirements for CAMUs under §264.552(e), the Secretary shall consider the following factors:
(E) Hydrogeological and other relevant environmental conditions at the facility which may influence the migration of any potential or actual releases; and
(F) Potential for exposure of humans and environmental receptors if releases were to occur from the CAMU.
(iv) Post-closure requirements as necessary to protect human health and the environment, to include, for areas where wastes will remain in place, monitoring and maintenance activities, and the frequency with which such activities shall be performed to ensure the integrity of any cap, final cover, or other containment system.
Section 264.552 Corrective Action Management Units (CAMU).
(i) All solid and hazardous wastes, and all media (including ground water, surface water, soils, and sediments) and debris, that are managed for implementing clean-up. As-generated wastes (either hazardous or non-hazardous) from ongoing industrial operations at a site are not CAMU-eligible wastes.
(ii) Wastes that would otherwise meet the description in paragraph (a)(1)(i) of this section are not "CAMU-Eligible Wastes" where:
(A) The wastes are hazardous wastes found during cleanup in intact or substantially intact containers, tanks, or other non-land-based units found above ground, unless the wastes are first placed in the tanks, containers or non-land-based units as part of cleanup, or the containers or tanks are excavated during the course of cleanup; or
(B) The Secretary exercises the discretion in paragraph (a)(2) of this section to prohibit the wastes from management in a CAMU.
(iii) Notwithstanding paragraph (a)(1)(i) of this section, where appropriate, as-generated non-hazardous waste may be placed in a CAMU where such waste is being used to facilitate treatment or the performance of the CAMU.
(3) Prohibition against placing liquids in CAMUs.
(i) The placement of bulk or noncontainerized liquid hazardous waste or free liquids contained in hazardous waste (whether or not sorbents have been added) in any CAMU is prohibited except where placement of such wastes facilitates the remedy selected for the waste.
(ii) The requirements in §264.314(c) for placement of containers holding free liquids in landfills apply to placement in a CAMU except where placement facilitates the remedy selected for the waste.
(iii) The placement of any liquid which is not a hazardous waste in a CAMU is prohibited unless such placement facilitates the remedy selected for the waste or a demonstration is made pursuant to §264.314(e).
(iv) The absence or presence of free liquids in either a containerized or a bulk waste must be determined in accordance with §264.314(b). Sorbents used to treat free liquids in CAMUs must meet the requirements of §264.314(d).
(i) The regulated unit is closed or closing, meaning it has begun the closure process under §264.113 or §265.113 of these regulations; and
(ii) Inclusion of the regulated unit will enhance implementation of effective, protective and reliable remedial actions for the facility.
(3) Whether the disposal and/or release of the waste occurred before or after the land disposal requirements of Part 268 of these regulations were in effect for the waste listing or characteristic.
(i) Unless the Secretary approves alternate requirements under paragraph (e)(3)(ii) of this section, CAMUs that consist of new, replacement, or laterally expanded units must include a composite liner and a leachate collection system that is designed and constructed to maintain less than a 30-cm depth of leachate over the liner. For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30-mil flexible membrane liner (FML), and the lower component must consist of at least a two-foot layer of compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec. FML components consisting of high density polyethylene (HDPE) must be at least 60 mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component;
(A) The Secretary finds that alternate design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents into the ground water or surface water at least as effectively as the liner and leachate collection systems in paragraph (e)(3)(i) of this section; or
(B) The CAMU is to be established in an area with existing significant levels of contamination, and the Secretary finds that an alternative design, including a design that does not include a liner, would prevent migration from the unit that would exceed long-term remedial goals.
(i) Principal hazardous constituents are those constituents that the Secretary determines pose a risk to human health and the environment substantially higher than the cleanup levels or goals at the site.
(1) Carcinogens that pose a potential direct risk from ingestion or inhalation at the site at or above 10−3; and
(2) Non-carcinogens that pose a potential direct risk from ingestion or inhalation at the site an order of magnitude or greater over their reference dose.
(B) The Secretary will also designate constituents as principal hazardous constituents, where appropriate, when risks to human health and the environment posed by the potential migration of constituents in wastes to ground water are substantially higher than cleanup levels or goals at the site; when making such a designation, the Secretary may consider such factors as constituent concentrations, and fate and transport characteristics under site conditions.
(C) The Secretary may also designate other constituents as principal hazardous constituents that the Secretary determines pose a risk to human health and the environment substantially higher than the cleanup levels or goals at the site.
(ii) In determining which constituents are "principal hazardous constituents," the Secretary must consider all constituents which, absent this section, would be subject to the treatment requirements in Part 268.
(iii) Waste that the Secretary determines contains principal hazardous constituents must meet treatment standards determined in accordance with paragraph (e)(4)(iv) or (e)(4)(v) of this section.
(A) For non-metals, treatment must achieve 90 percent reduction in total principal hazardous constituent concentrations, except as provided by paragraph (e)(4)(iv)(C) of this section.
(B) For metals, treatment must achieve 90 percent reduction in principal hazardous constituent concentrations as measured in leachate from the treated waste or media (tested according to the TCLP) or 90 percent reduction in total constituent concentrations (when a metal removal treatment technology is used), except as provided by paragraph (e)(4)(iv)(C) of this section.
(C) When treatment of any principal hazardous constituent to a 90 percent reduction standard would result in a concentration less than 10 times the Universal Treatment Standard for that constituent, treatment to achieve constituent concentrations less than 10 times the Universal Treatment Standard is not required. Universal Treatment Standards are identified in §268.48 Table UTS of these regulations.
(D) For waste exhibiting the hazardous characteristic of ignitability, corrosivity or reactivity, the waste must also be treated to eliminate these characteristics.
(E) For debris, the debris must be treated in accordance with §268.45 of these regulations, or by methods or to levels established under paragraphs (e)(4)(iv)(A) through (D) or paragraph (e)(4)(v) of this section, whichever the Secretary determines is appropriate.
(F) Alternatives to TCLP. For metal bearing wastes for which metals removal treatment is not used, the Secretary may specify a leaching test other than the TCLP (SW846 Method 1311, 40 CFR 260.11(c)(3)(v)) to measure treatment effectiveness, provided the Secretary determines that an alternative leach testing protocol is appropriate for use, and that the alternative more accurately reflects conditions at the site that affect leaching.
(v) Adjusted standards. The Secretary may adjust the treatment level or method in paragraph (e)(4)(iv) of this section to a higher or lower level, based on one or more of the following factors, as appropriate. The adjusted level or method must be protective of human health and the environment:
(A) The technical impracticability of treatment to the levels or by the methods in paragraph (e)(4)(iv) of this section;
(B) The levels or methods in paragraph (e)(4)(iv) of this section would result in concentrations of principal hazardous constituents (PHCs) that are significantly above or below cleanup standards applicable to the site (established either site-specifically, or promulgated under state or federal law);
(C) The views of the affected local community on the treatment levels or methods in paragraph (e)(4)(iv) of this section as applied at the site, and, for treatment levels, the treatment methods necessary to achieve these levels;
(D) The short-term risks presented by the onsite treatment method necessary to achieve the levels or treatment methods in paragraph (e)(4)(iv) of this section;
(E) The long-term protection offered by the engineering design of the CAMU and related engineering controls:
(1) Where the treatment standards in paragraph (e)(4)(iv) of this section are substantially met and the principal hazardous constituents in the waste or residuals are of very low mobility; or
(2) Where cost-effective treatment has been used and the CAMU meets the Subtitle C liner and leachate collection requirements for new land disposal units at §264.301(c) and (d); or
(3) Where, after review of appropriate treatment technologies, the Secretary determines that cost-effective treatment is not reasonably available, and the CAMU meets the Subtitle C liner and leachate collection requirements for new land disposal units at §264.301(c) and (d); or
(4) Where cost-effective treatment has been used and the principal hazardous constituents in the treated wastes are of very low mobility; or
(5) Where, after review of appropriate treatment technologies, the Secretary determines that cost-effective treatment is not reasonably available, the principal hazardous constituents in the wastes are of very low mobility, and either the CAMU meets or exceeds the liner standards for new, replacement, or laterally expanded CAMUs in paragraphs (e)(3)(i) and (ii) of this section, or the CAMU provides substantially equivalent or greater protection.
(vi) The treatment required by the treatment standards must be completed prior to, or within a reasonable time after, placement in the CAMU.
(vii) For the purpose of determining whether wastes placed in CAMUs have met site-specific treatment standards, the Secretary may, as appropriate, specify a subset of the principal hazardous constituents in the waste as analytical surrogates for determining whether treatment standards have been met for other principal hazardous constituents. This specification will be based on the degree of difficulty of treatment and analysis of constituents with similar treatment properties.
(i) Continue to detect and to characterize the nature, extent, concentration, direction, and movement of existing releases of hazardous constituents in ground water from sources located within the CAMU; and
(ii) Detect and subsequently characterize releases of hazardous constituents to ground water that may occur from areas of the CAMU in which wastes will remain in place after closure of the CAMU; and
(iii) Require notification to the Secretary and corrective action as necessary to protect human health and the environment for releases to ground water from the CAMU.
(B) Control, minimize, or eliminate, to the extent necessary to protect human health and the environment, for areas where wastes remain in place, post-closure escape of hazardous wastes, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products to the ground, to surface waters, or to the atmosphere.
(ii) Requirements for closure of CAMUs shall include the following, as appropriate and as deemed necessary by the Secretary for a given CAMU:
(B) Requirements for removal and decontamination of equipment, devices, and structures used in CAMU-eligible waste management activities within the CAMU.
(iii) In establishing specific closure requirements for CAMUs under paragraph (e) of this section, the Secretary shall consider the following factors:
(E) Hydrogeological and other relevant environmental conditions at the facility which may influence the migration of any potential or actual releases; and
(F) Potential for exposure of humans and environmental receptors if releases were to occur from the CAMU.
(A) At final closure of the CAMU, for areas in which wastes will remain after closure of the CAMU, with constituent concentrations at or above remedial levels or goals applicable to the site, the owner or operator must cover the CAMU with a final cover designed and constructed to meet the following performance criteria, except as provided in paragraph (e)(6)(iv)(B) of this section:
(5) Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present.
(B) The Secretary may determine that modifications to paragraph (e)(6)(iv)(A) of this section are needed to facilitate treatment or the performance of the CAMU (e.g., to promote biodegradation).
(v) Post-closure requirements as necessary to protect human health and the environment, to include, for areas where wastes will remain in place, monitoring and maintenance activities, and the frequency with which such activities shall be performed to ensure the integrity of any cap, final cover, or other containment system.
(i) Must operate in accordance with a time limit, established by the Secretary, that is no longer than necessary to achieve a timely remedy selected for the waste, and
(ii) Are subject to the requirements for staging piles at §264.554(d)(1)(i) and (ii), §264.554(d)(2), §264.554(e) and (f), and §264.554(j) and (k) in lieu of the performance standards and requirements for CAMUs in this section at paragraphs (c) and (e)(4) and (6).
Section 264.553 Temporary Units (TU).
Section 264.554 Staging piles.
(2) [Reserved]
(ii) The staging pile must be designed so as to prevent or minimize releases of hazardous wastes and hazardous constituents into the environment, and minimize or adequately control cross-media transfer, as necessary to protect human health and the environment (for example, through the use of liners, covers, run-off/run-on controls, as appropriate); and
(iii) The staging pile must not operate for more than two years, except when the Secretary grants an operating term extension under paragraph (i) of this section (entitled “May I receive an operating extension for a staging pile?”). You must measure the two-year limit, or other operating term specified by the Secretary in the permit, closure plan, or order, from the first time you place remediation waste into a staging pile. You must maintain a record of the date when you first placed remediation waste into the staging pile for the life of the permit, closure plan, or order, or for three years, whichever is longer.
(2) In setting the standards and design criteria, the Secretary must consider the following factors:
(v) Hydrogeological and other relevant environmental conditions at the facility that may influence the migration of any potential releases; and
(i) The remediation waste no longer meets the definition of ignitable or reactive under §261.21 or §261.23 of these regulations; and
(ii) Is necessary to ensure timely and efficient implementation of remedial actions at the facility.
(i) The Secretary must approve the modification under the procedures for DNREC‑initiated permit modifications in §122.41 of these regulations; or
Section 264.555 Disposal of CAMU-eligible wastes in permitted hazardous waste landfills.
(iii) Treatment standards adjusted in accordance with §264.552(e)(4)(v)(E)(2), where treatment has been used and that treatment significantly reduces the toxicity or mobility of the principal hazardous constituents in the waste, minimizing the short-term and long-term threat posed by the waste, including the threat at the remediation site.
Section 264.570 Applicability.
Section 264.571 Assessment of existing drip pad integrity.
Section 264.572 Design and installation of new drip pads.
(b) all of the requirements of §§ 264.573 (except §264.573(b)), 264.574 and 264.575 of this subpart.
Section 264.573 Design and operating requirements.
(4)(i) Have a hydraulic conductivity of less than or equal to 1 X 10-7 centimeters per second, e.g., existing concrete drip pads must be sealed, coated, or covered with a surface material with a hydraulic conductivity of less than or equal to 1 X 10-7 centimeters per second such that the entire surface where drippage occurs or may run across is capable of containing such drippage and mixtures of drippage and precipitation, materials, or other wastes while being routed to an associated collection system. This surface material must be maintained free of cracks and gaps that could adversely affect its hydraulic conductivity, and the material must be chemically compatible with the preservatives that contact the drip pad. The requirements of this provision apply only to existing drip pads and those drip pads for which the owner or operator elects to comply with §264.572(b) instead of §264.572(a).
(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 a qualified Professional Engineer that attests to the results of the evaluation. The assessment must be reviewed, updated and re-certified 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.
(i) Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or drip pad leakage to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation (including stresses from vehicular traffic on the drip pad);
(ii) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression or uplift; and
(iii) Installed to cover all surrounding earth that could come in contact with the waste or leakage; and
(A) Chemically resistant to the waste managed in the drip pad and the leakage that might be generated; and
(B) Of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying materials and by any equipment used at the drip pad;
(ii) Designed and operated to function without clogging through the scheduled closure of the drip pad; and
(iii) Designed so that it will detect the failure of the drip pad or the presence of a release of hazardous waste or accumulated liquid at the earliest practicable time.
(iii) Determine what steps must be taken to repair the drip pad and clean up any leakage from below the drip pad, and establish a schedule for accomplishing the repairs;
(iv) Within 24 hours after discovery of the condition, notify the Secretary of the condition and, within 10 working days, provide written notice to the Secretary with a description of the steps that will be taken to repair the drip pad and clean up any leakage, and the schedule for accomplishing this work.
Note: See §264.573(m) for remedial action required if deterioration or leakage is detected.
(i) Include in the closure plan for the drip pad under §264.112 both a plan for complying with paragraph (a) of this section and a contingent plan for complying with paragraph (b) of this section in case not all contaminated subsoils can be practicably removed at closure; and
(ii) Prepare a contingent post-closure plan under §264.118 of this part for complying with paragraph (b) of this section in case not all contaminated subsoils can be practicably removed at closure.
Section 264.600 Applicability.
Section 264.601 Environmental performance standards.
(11) The potential for damage to domestic animals, wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents.
Section 264.602 Monitoring, analysis, inspection response, reporting, and corrective action.
Section 264.603 Post‑closure care.
Sections 264.604 through 264.999 [Reserved]
Section 264.1030 Applicability.
(3) A unit that is exempt from permitting under the provisions of §262.17 (i.e., a “90-day tank or container) and is not a recycling unit under the provisions of §261.6.
"Air stripping operation" is a desorption operation employed to transfer one or more volatile components from a liquid mixture into a gas (air) either with or without the application of heat to the liquid. Packed towers, spray towers, and bubble-cap, sieve, or valve-type plate towers are among the process configurations used for contacting the air and a liquid.
"Bottoms receiver" means a container or tank used to receive and collect the heavier bottoms fractions of the distillation feed stream that remain in the liquid phase.
"Closed-vent system" means a system that is not open to the atmosphere and that is composed of piping, connections, and, if necessary, flow-inducing devices that transport gas or vapor from a piece or pieces of equipment to a control device.
"Condenser" means a heat-transfer device that reduces a thermodynamic fluid from its vapor phase to its liquid phase.
"Connector" means flanged, screwed, welded, or other joined fittings used to connect two pipelines or a pipeline and a piece of equipment. For the purposes of reporting and recordkeeping, connector means flanged fittings that are not covered by insulation or other materials that prevent location of the fittings.
"Continuous recorder" means a data-recording device recording an instantaneous data value at least once every 15 minutes.
"Control device" means an enclosed combustion device, vapor recovery system, or flare. Any device the primary function of which is the recovery or capture of solvents or other organics for use, reuse, or sale (e.g., a primary condenser on a solvent recovery unit) is not a control device.
"Distillate receiver" means a container or tank used to receive and collect liquid material (condensed) from the overhead condenser of a distillation unit and from which the condensed liquid is pumped to larger storage tanks or other process units.
"Distillation operation" means an operation, either batch or continuous, separating one or more feed stream(s) into two or more exit streams, each exit stream having component concentrations different from those in the feed stream(s). The separation is achieved by the redistribution of the components between the liquid and vapor phase as they approach equilibrium within the distillation unit.
"Double block and bleed system" means two block valves connected in series with a bleed valve or line that can vent the line between the two block valves.
"Equipment" means each valve, pump, compressor, pressure relief device, sampling connection system, open-ended valve or line, or flange or other connector, and any control devices or systems required by this subpart.
"Flame zone" means the portion of the combustion chamber in a boiler occupied by the flame envelope.
"First attempt at repair" means to take rapid action for the purpose of stopping or reducing leakage of organic material to the atmosphere using best practices.
"Fractionation operation" means a distillation operation or method used to separate a mixture of several volatile components of different boiling points in successive stages, each stage removing from the mixture some proportion of one of the components.
"Hazardous waste management unit shutdown" means a work practice or operational procedure that stops operation of a hazardous waste management unit or part of a hazardous waste management unit. An unscheduled work practice or operational procedure that stops operation of a hazardous waste management unit or part of a hazardous waste management unit for less than 24 hours is not a hazardous waste management unit shutdown. The use of spare equipment and technically feasible bypassing of equipment without stopping operation are not hazardous waste management unit shutdowns.
"Hot well" means a container for collecting condensate as in a steam condenser serving a vacuum-jet or steam-jet ejector.
"In gas/vapor service" means that the piece of equipment contains or contacts a hazardous waste stream that is in the gaseous state at operating conditions.
"In heavy liquid service" means that the piece of equipment is not in gas/vapor service or in light liquid service.
“In light liquid service” means that the piece of equipment contains or contacts a waste stream where the vapor pressure of one or more of the organic components in the stream is greater than 0.3 kilopascals (kPa) at 20oC, the total concentration of the pure organic components having a vapor pressure greater than 0.3 kilopascals (kPa) at 20oC is equal to or greater than 20 percent by weight, and the fluid is a liquid at operating conditions.
"In vacuum service" means that equipment is operating at an internal pressure that is at least 5 kPa below ambient pressure.
"Malfunction" means any sudden failure of a control device or a hazardous waste management unit or failure of a hazardous waste management unit to operate in a normal or usual manner, so that organic emissions are increased.
"Open-ended valve or line" means any valve, except pressure relief valves, having one side of the valve seat in contact with hazardous waste and one side open to the atmosphere, either directly or through open piping.
"Pressure release" means the emission of materials resulting from the system pressure being greater than the set pressure of the pressure relief device.
"Process heater" means a device that transfers heat liberated by burning fuel to fluids contained in tubes, including all fluids except water that are heated to produce steam.
"Process vent" means any open-ended pipe or stack that is vented to the atmosphere either directly, through a vacuum-producing system, or through a tank (e.g., distillate receiver, condenser, bottoms receiver, surge control tank, separator tank, or hot well) associated with hazardous waste distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operations.
“Sampling connection system” means an assembly of equipment within a process or waste management unit used during periods of representative operation to take samples of the process or waste fluid. Equipment used to take non-routine grab samples is not considered a sampling connection system.
"Sensor" means a device that measures a physical quantity or the change in a physical quantity, such as temperature, pressure, flow rate, pH, or liquid level.
"Solvent extraction operation" means an operation or method of separation in which a solid or solution is contacted with a liquid solvent (the two being mutually insoluble) to preferentially dissolve and transfer one or more components into the solvent.
"Startup" means the setting in operation of a hazardous waste management unit or control device for any purpose.
"Steam stripping operation" means a distillation operation in which vaporization of the volatile constituents of a liquid mixture takes place by the introduction of steam directly into the charge.
"Surge control tank" means a large-sized pipe or storage reservoir sufficient to contain the surging liquid discharge of the process tank to which it is connected.
"Thin-film evaporation operation" means a distillation operation that employs a heating surface consisting of a large diameter tube that may be either straight or tapered, horizontal or vertical. Liquid is spread on the tube wall by a rotating assembly of blades that maintain a close clearance from the wall or actually ride on the film of liquid on the wall.
"Vapor incinerator" means any enclosed combustion device that is used for destroying organic compounds and does not extract energy in the form of steam or process heat.
"Vented" means discharged through an opening, typically an open-ended pipe or stack, allowing the passage of a stream of liquids, gases, or fumes into the atmosphere. The passage of liquids, gases, or fumes is caused by mechanical means such as compressors or vacuum-producing systems or by process-related means such as evaporation produced by heating and not caused by tank loading and unloading (working losses) or by natural means such as diurnal temperature changes.
Section 264.1032 Standards: Process vents.
Section 264.1033 Standards: Closed-vent systems and control devices.
(2)(i) The owner or operator of an existing facility who cannot install a closed-vent system and control device to comply with the provisions of this subpart on the effective date that the facility becomes subject to the provisions of this subpart must prepare an implementation schedule that includes dates by which the closed-vent system and control device will be installed and in operation. The controls must be installed as soon as possible, but the implementation schedule may allow up to 30 months after the effective date that the facility becomes subject to this subpart for installation and startup.
(ii) Any unit that begins operation after December 21, 1990, and is subject to the provisions of this subpart when operation begins, must comply with the rules immediately (i.e., must have control devices installed and operating on start-up of the affected unit); the 30-month implementation schedule does not apply.
(iii) The owner or operator of any facility in existence on the effective date of a statutory or regulatory amendment that renders the facility subject to this subpart shall comply with all requirements of this subpart as soon as practicable but no later than 30 months after the amendment's effective date. When control equipment required by this subpart can not be installed and begin operation by the effective date of the amendment, the facility owner or operator shall prepare an implementation schedule that includes the following information: Specific calendar dates for award of contracts or issuance of purchase orders for the control equipment, initiation of on-site installation of the control equipment, completion of the control equipment installation, and performance of any testing to demonstrate that the installed equipment meets the applicable standards of this subpart. The owner or operator shall enter the implementation schedule in the operating record or in a permanent, readily available file located at the facility.
(iv) Owners and operators of facilities and units that become newly subject to the requirements of this subpart after December 8, 1997, due to an action other than those described in paragraph (a)(2)(iii) of this section must comply with all applicable requirements immediately (i.e., must have control devices installed and operating on the date the facility or unit becomes subject to this subpart; the 30-month implementation schedule does not apply).
(c) An enclosed combustion device (e.g., a vapor incinerator, boiler, or process heater) shall be designed and operated to reduce the organic emissions vented to it by 95 weight percent or greater; to achieve a total organic compound concentration of 20 ppmv, expressed as the sum of the actual compounds, not carbon equivalents, on a dry basis corrected to 3 percent oxygen; or to provide a minimum residence time of 0.50 seconds at a minimum temperature of 760oC. If a boiler or process heater is used as the control device, then the vent stream shall be introduced into the flame zone of the boiler or process heater.
(iii) A steam-assisted or nonassisted flare designed for and operated with an exit velocity, as determined by the methods specified in paragraph (e)(3) of this section, less than the velocity, 
1, as determined by the method specified in paragraph (e)(4) of this section and less than 122 m/s (400 ft/s) is allowed.
1, as determined by the method specified in paragraph (e)(4) of this section and less than 122 m/s (400 ft/s) is allowed. (5) An air-assisted flare shall be designed and operated with an exit velocity less than the velocity, 
2, as determined by the method specified in paragraph (e)(5) of this section.
2, as determined by the method specified in paragraph (e)(5) of this section.
= Net heating value of the sample, MJ/scm; where the net enthalpy per mole of offgas is based on combustion at 25oC and 760 mm Hg, but the standard temperature for determining the volume corresponding to 1 mol is 20oC;
= Constant, 1.74 x 10-7 (1/ppm) (g mol/scm) (MJ/kcal) where standard temperature for (g mol/scm) is 20oC;
= Concentration of sample component i in ppm on a wet basis, as measured for organics by Reference Method 18 in 40 CFR Part 60 and measured for hydrogen and carbon monoxide by ASTM D 1946-82 (incorporated by reference as specified in §260.11); and
= Net heat of combustion of sample component i, kcal/9 mol at 25oC and 760 mm Hg. The heats of combustion may be determined using ASTM D 2382-83 (incorporated by reference as specified in §260.11) if published values are not available or cannot be calculated. (4) The maximum allowed velocity in m/s, 
, for a flare complying with paragraph (d)(4)(iii) of this section shall be determined by the following equation:
, for a flare complying with paragraph (d)(4)(iii) of this section shall be determined by the following equation:
= Constant,
= Constant,
= The net heating value as determined in paragraph (e)(2) of this section. (5) The maximum allowed velocity in m/s, 
, for an air-assisted flare shall be determined by the following equation:
, for an air-assisted flare shall be determined by the following equation:
= 8.706+0.7084 
= Constant,
= Constant,
= The net heating value as determined in paragraph (e)(2) of this section. (i) For a thermal vapor incinerator, a temperature monitoring device equipped with a continuous recorder. The device shall have an accuracy of ±1 percent of the temperature being monitored in oC or ±0.5 oC, whichever is greater. The temperature sensor shall be installed at a location in the combustion chamber downstream of the combustion zone.
(ii) For a catalytic vapor incinerator, a temperature monitoring device equipped with a continuous recorder. The device shall be capable of monitoring temperature at two locations and have an accuracy of ±1 percent of the temperature being monitored in oC or ±0.5 oC, whichever is greater. One temperature sensor shall be installed in the vent stream at the nearest feasible point to the catalyst bed inlet and a second temperature sensor shall be installed in the vent stream at the nearest feasible point to the catalyst bed outlet.
(iii) For a flare, a heat sensing monitoring device equipped with a continuous recorder that indicates the continuous ignition of the pilot flame.
(iv) For a boiler or process heater having a design heat input capacity less than 44 MW, a temperature monitoring device equipped with a continuous recorder. The device shall have an accuracy of ±1 percent of the temperature being monitored in oC or ±0.5 oC, whichever is greater. The temperature sensor shall be installed at a location in the furnace downstream of the combustion zone.
(v) For a boiler or process heater having a design heat input capacity greater than or equal to 44 MW, a monitoring device equipped with a continuous recorder to measure a parameter(s) that indicates good combustion operating practices are being used.
(A) A monitoring device equipped with a continuous recorder to measure the concentration level of the organic compounds in the exhaust vent stream from the condenser, or
(B) A temperature monitoring device equipped with a continuous recorder. The device shall be capable of monitoring temperature with an accuracy of ±1 percent of the temperature being monitored in degrees Celsius (oC) or ±0.5oC, whichever is greater. the temperature sensor shall be installed at a location in the exhaust vent stream from the condenser exit (i.e., product side).
(vii) For a carbon adsorption system that regenerates the carbon bed directly in the control device such as a fixed-bed carbon adsorber, either:
(A) A monitoring device equipped with a continuous recorder to measure the concentration level of the organic compounds in the exhaust vent stream from the carbon bed, or
(B) A monitoring device equipped with a continuous recorder to measure a parameter that indicates the carbon bed is regenerated on a regular, predetermined time cycle.
(i) An initial leak detection monitoring of the closed-vent system shall be conducted by the owner or operator on or before the date that the system becomes subject to this section. The owner or operator shall monitor the closed-vent system components and connections using the procedures specified in §264.1034(b) of this subpart to demonstrate that the closed-vent system operates with no detectable emissions, as indicated by an instrument reading of less than 500 ppmv above background.
(ii) After initial leak detection monitoring required in paragraph (l)(1)(i) of this section, the owner or operator shall inspect and monitor the closed-vent system as follows:
(A) Closed-vent system joints, seams, or other connections that are permanently or semi-permanently sealed (e.g., a welded joint between two sections of hard piping or a bolted and gasketed ducting flange) shall be visually inspected at least once per year to check for defects that could result in air pollutant emissions. The owner or operator shall monitor a component or connection using the procedures specified in §264.1034(b) of this subpart to demonstrate that it operates with no detectable emissions following any time the component is repaired or replaced (e.g., a section of damaged hard piping is replaced with new hard piping) or the connection is unsealed (e.g., a flange is unbolted).
(B) Closed-vent system components or connections other than those specified in paragraph (l)(1)(ii)(A) of this section shall be monitored annually and at other times as requested by the Secretary, except as provided for in paragraph (o) of this section, using the procedures specified in §264.1034(b) of this subpart to demonstrate that the components or connections operate with no detectable emissions.
(iii) In the event that a defect or leak is detected, the owner or operator shall repair the defect or leak in accordance with the requirements of paragraph (l)(3) of this section.
(iv) The owner or operator shall maintain a record of the inspection and monitoring in accordance with the requirements specified in §264.1035 of this subpart.
(i) The closed-vent system shall be visually inspected by the owner or operator to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in ductwork or piping or loose connections.
(ii) The owner or operator shall perform an initial inspection of the closed-vent system on or before the date that the system becomes subject to this section. Thereafter, the owner or operator shall perform the inspections at least once every year.
(iii) In the event that a defect or leak is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (l)(3) of this section.
(iv) The owner or operator shall maintain a record of the inspection and monitoring in accordance with the requirements specified in §264.1035 of this subpart.
(i) Detectable emissions, as indicated by visual inspection, or by an instrument reading greater than 500 ppmv above background, shall be controlled as soon as practicable, but not later than 15 calendar days after the emission is detected, except as provided for in paragraph (l)(3)(iii) of this section.
(ii) A first attempt at repair shall be made within one calendar day after the emission is detected.
(iii) Delay of repair of a closed-vent system for which leaks have been detected is allowed if the repair is technically infeasible without a process unit shutdown, or if the owner or operator determines that emissions resulting from immediate repair would be greater than the fugitive emissions likely to result from delay of repair. Repair of such equipment shall be completed by the end of the next process unit shutdown.
(iv) The owner or operator shall maintain a record of the defect repair in accordance with the requirements specified in §264.1035 of this subpart.
(i) The owner or operator of the unit has been issued a final permit under Part 122 which implements the requirements of Subpart X of this part; or
(ii) The unit is equipped with and operating air emission controls in accordance with the applicable requirements of Subparts AA and CC of either this part or of Part 265; or
(iii) The unit is equipped with and operating air emission controls in accordance with a national emission standard for hazardous air pollutants under 40 CFR Part 61 or 40 CFR Part 63.
(i) Has been issued a final permit under Part 122 which implements the requirements of Subpart O of this part; or
(ii) Has designed and operates the incinerator in accordance with the interim status requirements of Part 265, Subpart O.
(i) Has been issued a final permit under Part 122 which implements the requirements of Part 266, Subpart H; or
(ii) Has designed and operates the boiler or industrial furnace in accordance with the interim status requirements of Part 266, Subpart H.
Section 264.1034 Test methods and procedures.
(ii) A mixture of methane or n-hexane and air at a concentration of approximately, but less than, 10,000 ppm methane or n-hexane.
(ii) Method 18 or Method 25A in 40 CFR Part 60, Appendix A for organic content. If Method 25A is used, the organic HAP used as the calibration gas must be the single organic HAP representing the largest percent by volume of the emissions. The use of Method 25A is acceptable if the response from the high-level calibration gas is at least 20 times the standard deviation of the response from the zero calibration gas when the instrument is zeroed on the most sensitive scale.
(iii) Each performance test shall consist of three separate runs; each run conducted for at least 1 hour under the conditions that exist when the hazardous waste management unit is operating at the highest load or capacity level reasonably expected to occur. For the purpose of determining total organic compound concentrations and mass flow rates, the average of results of all runs shall apply. The average shall be computed on a time-weighted basis.
= Total organic mass flow rate, kg/h;Q2sd = Volumetric flow rate of gases entering or exiting control device, as determined by Method 2, dscm/h;
= Number of organic compounds in the vent gas;
= Organic concentration in ppm, dry basis, of compound i in the vent gas, as determined by Method 18;
= Molecular weight of organic compound i in the vent gas, kg/kg-mol;
= Conversion factor for molar volume, kg-mol/m3 (@ 293 K and 760 mm Hg);
= Conversion from ppm.Q = Volumetric flow rate of gases entering and exiting control device, as determined by Method 2, dscm/h
C = Organic concentration in ppm, dry basis; as determined by Method 25A
MW = Molecular weight of propane, 44;
= 
= Total organic mass emission rate, kg/y;
= Total organic mass flow rate for the process vent, kg/h;
= Total annual hours of operations for the affected unit, h. (vi) Total organic emissions from all affected process vents at the facility shall be determined by summing the hourly total organic mass emission rates (
as determined in paragraph (c)(1)(iv) of this section) and by summing the annual total organic mass emission rates (
, as determined in paragraph (c)(1)(v) of this section) for all affected process vents at the facility.
as determined in paragraph (c)(1)(iv) of this section) and by summing the annual total organic mass emission rates (, as determined in paragraph (c)(1)(v) of this section) for all affected process vents at the facility. (i) The owner or operator must take a minimum of four grab samples of waste for each waste stream managed in the affected unit under process conditions expected to cause the maximum waste organic concentration.
(ii) For waste generated onsite, the grab samples must be collected at a point before the waste is exposed to the atmosphere such as in an enclosed pipe or other closed system that is used to transfer the waste after generation to the first affected distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operation. For waste generated offsite, the grab samples must be collected at the inlet to the first waste management unit that receives the waste provided the waste has been transferred to the facility in a closed system such as a tank truck and the waste is not diluted or mixed with other waste.
(iii) Each sample shall be analyzed and the total organic concentration of the sample shall be computed using Method 9060A (incorporated by reference under §260.11) of “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846, or analyzed for its individual organic constituents.
(iv) The arithmetic mean of the results of the analyses of the four samples shall apply for each waste stream managed in the unit in determining the time-weighted, annual average total organic concentration of the waste. The time-weighted average is to be calculated using the annual quantity of each waste stream processed and the mean organic concentration of each waste stream managed in the unit.
Section 264.1035 Recordkeeping requirements.
(i) Information and data identifying all affected process vents, annual throughput and operating hours of each affected unit, estimated emission rates for each affected vent and for the overall facility (i.e., the total emissions for all affected vents at the facility), and the approximate location within the facility of each affected unit (e.g., identify the hazardous waste management units on a facility plot plan).
(ii) Information and data supporting determinations of vent emissions and emission reductions achieved by add-on control devices based on engineering calculations or source tests. For the purpose of determining compliance, determinations of vent emissions and emission reductions must be made using operating parameter values (e.g., temperatures, flow rates, or vent stream organic compounds and concentrations) that represent the conditions that result in maximum organic emissions, such as when the waste management unit is operating at the highest load or capacity level reasonably expected to occur. If the owner or operator takes any action (e.g., managing a waste of different composition or increasing operating hours of affected waste management units) that would result in an increase in total organic emissions from affected process vents at the facility, then a new determination is required.
(i) A description of how it is determined that the planned test is going to be conducted when the hazardous waste management unit is operating at the highest load or capacity level reasonably expected to occur. This shall include the estimated or design flow rate and organic content of each vent stream and define the acceptable operating ranges of key process and control device parameters during the test program.
(iii) A detailed description of sampling and monitoring procedures, including sampling and monitoring locations in the system, the equipment to be used, sampling and monitoring frequency, and planned analytical procedures for sample analysis.
(iii) If engineering calculations are used, a design analysis, specifications, drawings, schematics, and piping and instrumentation diagrams based on the appropriate sections of "APTI Course 415: Control of Gaseous Emissions" (incorporated by reference as specified in §260.11) or other engineering texts acceptable to the Secretary that present basic control device design information. Documentation provided by the control device manufacturer or vendor that describes the control device design in accordance with paragraphs (b)(4)(iii)(A) through (b)(4)(iii)(G) of this section may be used to comply with this requirement. The design analysis shall address the vent stream characteristics and control device operation parameters as specified below.
(A) For a thermal vapor incinerator, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average temperature in the combustion zone and the combustion zone residence time.
(B) For a catalytic vapor incinerator, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average temperatures across the catalyst bed inlet and outlet.
(C) For a boiler or process heater, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average flame zone temperatures, combustion zone residence time, and description of method and location where the vent stream is introduced into the combustion zone.
(D) For a flare, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also consider the requirements specified in §264.1033(d).
(E) For a condenser, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design outlet organic compound concentration level, design average temperature of the condenser exhaust vent stream, and design average temperatures of the coolant fluid at the condenser inlet and outlet.
(F) For a carbon adsorption system such as a fixed-bed adsorber that regenerates the carbon bed directly onsite in the control device, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design exhaust vent stream organic compound concentration level, number and capacity of carbon beds, type and working capacity of activated carbon used for carbon beds, design total steam flow over the period of each complete carbon bed regeneration cycle, duration of the carbon bed steaming and cooling/drying cycles, design carbon bed temperature after regeneration, design carbon bed regeneration time, and design service life of carbon.
(G) For a carbon adsorption system such as a carbon canister that does not regenerate the carbon bed directly onsite in the control device, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design outlet organic concentration level, capacity of carbon bed, type and working capacity of activated carbon used for carbon bed, and design carbon replacement interval based on the total carbon working capacity of the control device and source operating schedule.
(iv) A statement signed and dated by the owner or operator certifying that the operating parameters used in the design analysis reasonably represent the conditions that exist when the hazardous waste management unit is or would be operating at the highest load or capacity level reasonably expected to occur.
(v) A statement signed and dated by the owner or operator certifying that the control device is designed to operate at an efficiency of 95 percent or greater unless the total organic concentration limit of §264.1032(a) is achieved at an efficiency less than 95 weight percent or the total organic emission limits of §264.1032(a) for affected process vents at the facility can be attained by a control device involving vapor recovery at an efficiency less than 95 weight percent. A statement provided by the control device manufacturer or vendor certifying that the control equipment meets the design specifications may be used to comply with this requirement.
(i) For a thermal vapor incinerator designed to operate with a minimum residence time of 0.50 second at a minimum temperature of 760oC, period when the combustion temperature is below 760oC.
(ii) For a thermal vapor incinerator designed to operate with an organic emission reduction efficiency of 95 weight percent or greater, when the combustion zone temperature is more than 28oC below the design average combustion zone temperature established as a requirement of paragraph (b)(4)(iii)(A) of this section.
(A) Temperature of the vent stream at the catalyst bed inlet is more than 28oC below the average temperature of the inlet vent stream established as a requirement of paragraph (b)(4)(iii)(B) of this section, or
(B) Temperature difference across the catalyst bed is less than 80 percent of the design average temperature difference established as a requirement of paragraph (b)(4)(iii)(B) of this section.
(A) Flame zone temperature is more than 28oC below the design average flame zone temperature established as a requirement of paragraph (b)(4)(iii)(C) of this section, or
(B) Position changes where the vent stream is introduced to the combustion zone from the location established as a requirement of paragraph (b)(4)(iii)(C) of this section.
(vi) For a condenser that complies with §264.1033(f)(2)(vi)(A), period when the organic compound concentration level or readings of organic compounds in the exhaust vent stream from the condenser are more than 20 percent greater than the design outlet organic compound concentration level established as a requirement of paragraph (b)(4)(iii)(E) of this section.
(A) Temperature of the exhaust vent stream from the condenser is more than 6oC above the design average exhaust vent stream temperature established as a requirement of paragraph (b)(4)(iii)(E) of this section; or
(B) Temperature of the coolant fluid exiting the condenser is more than 6oC above the design average coolant fluid temperature at the condenser outlet established as a requirement of paragraph (b)(4)(iii)(E) of this section.
(viii) For a carbon adsorption system such as a fixed-bed carbon adsorber that regenerates the carbon bed directly onsite in the control device and complies with §264.1033(f)(2)(vii)(A), period when the organic compound concentration level or readings of organic compounds in the exhaust vent stream from the carbon bed are more than 20 percent greater than the design exhaust vent stream organic compound concentration level established as a requirement of paragraph (b)(4)(iii)(F) of this section.
(ix) For a carbon adsorption system such as a fixed-bed carbon adsorber that regenerates the carbon bed directly onsite in the control device and complies with §264.1033(f)(2)(vii)(B), period when the vent stream continues to flow through the control device beyond the predetermined carbon bed regeneration time established as a requirement of paragraph (b)(4)(iii)(F) of this section.
(i) Date and time when control device is monitored for carbon breakthrough and the monitoring device reading.
(10) When each leak is detected as specified in §264.1033(l) of this subpart, the following information shall be recorded:
(i) The instrument identification number, the closed-vent system component identification number, and the operator name, initials, or identification number.
(iv) Maximum instrument reading measured by Method 21 of 40 CFR Part 60, Appendix A after it is successfully repaired or determined to be nonrepairable.
(v) "Repair delayed" and the reason for the delay if a leak is not repaired within 15 calendar days after discovery of the leak.
(A) The owner or operator may develop a written procedure that identifies the conditions that justify a delay of repair. In such cases, reasons for delay of repair may be documented by citing the relevant sections of the written procedure.
(B) If delay of repair was caused by depletion of stocked parts, there must be documentation that the spare parts were sufficiently stocked on-site before depletion and the reason for depletion.
Section 264.1036 Reporting requirements.
Sections 264.1037 -- 264.1049 [Reserved]
Section 264.1050 Applicability.
(3) A unit that is exempt from permitting under the provisions of §262.17 (i.e., a “90-day” tank or container) and is not a recycling unit under the provisions of §261.6.
(g) [Reserved]
Section 264.1052 Standards: Pumps in light liquid service.
(i) Operated with the barrier fluid at a pressure that is at all times greater than the pump stuffing box pressure, or
(ii) Equipped with a barrier fluid degassing reservoir that is connected by a closed-vent system to a control device that complies with the requirements of §264.1060, or
(iii) Equipped with a system that purges the barrier fluid into a hazardous waste stream with no detectable emissions to the atmosphere.
(ii) The owner or operator must determine, based on design considerations and operating experience, a criterion that indicates failure of the seal system, the barrier fluid system, or both.
(ii) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in §264.1059.
(iii) A first attempt at repair (e.g., relapping the seal) shall be made within one calendar day after each leak is detected.
Section 264.1053 Standards: Compressors.
Section 264.1054 Standards: Pressure relief devices in gas/vapor service.
Section 264.1055 Standards: Sampling connecting systems.
(c) In-situ sampling systems and sampling systems without purges are exempt from the requirements of paragraphs (a) and (b) of this section.
Section 264.1056 Standards: Open-ended valves or lines.
Section 264.1057 Standards: Valves in gas/vapor service or in light liquid service.
Section 264.1059 Standards: Delay of repair.
Section 264.1060 Standards: Closed-vent systems and control devices.
(2) Any unit that begins operation after December 21, 1990, and is subject to the provisions of this subpart when operation begins, must comply with the rules immediately (i.e., must have control devices installed and operating on startup of the affected unit); the 30-month implementation schedule does not apply.
(3) The owner or operator of any facility in existence on the effective date of a statutory or regulatory amendment that renders the facility subject to this subpart shall comply with all requirements of this subpart as soon as practicable but no later than 30 months after the amendment's effective date. When control equipment required by this subpart can not be installed and begin operation by the effective date of the amendment, the facility owner or operator shall prepare an implementation schedule that includes the following information: Specific calendar dates for award or contracts or issuance of purchase orders for the control equipment, initiation of onsite installation of the control equipment, completion of the control equipment installation, and performance of any testing to demonstrate that the installed equipment meets the applicable standards of this subpart. The owner or operator shall enter the implementation schedule in the operating record or in a permanent, readily available file located at the facility.
(4) Owners and operators of facilities and units that become newly subject to the requirements of this subpart after December 8, 1997, due to an action other than those described in paragraph (b)(3) of this section must comply with all applicable requirements immediately (i.e., must have control devices installed and operating on the date the facility or unit becomes subject to this subpart; the 30-month implementation schedule does not apply).
(1) An owner or operator must notify the Secretary that the owner or operator has elected to comply with the requirements of this section.
(2) A performance test as specified in paragraph (c) of this section shall be conducted initially upon designation, annually, and at other times requested by the Secretary.
(1) All valves subject to the requirements in §264.1057 within the hazardous waste management unit shall be monitored within 1 week by the methods specified in §264.1063(b).
(3) The leak percentage shall be determined by dividing the number of valves subject to the requirements in §264.1057 for which leaks are detected by the total number of valves subject to the requirements in §264.1057 within the hazardous waste management unit.
(2) After two consecutive quarterly leak detection periods with the percentage of valves leaking equal to or less than 2 percent, an owner or operator may begin to skip one of the quarterly leak detection periods (i.e., monitor for leaks once every six months) for the valves subject to the requirements in §264.1057 of this subpart.
(3) After five consecutive quarterly leak detection periods with the percentage of valves leaking equal to or less than 2 percent, an owner or operator may begin to skip three of the quarterly leak detection periods (i.e., monitor for leaks once every year) for the valves subject to the requirements in §264.1057 of this subpart.
Section 264.1063 Test methods and procedures.
(ii) A mixture of methane or n-hexane and air at a concentration of approximately, but less than, 10,000 ppm methane or n-hexane.
Section 264.1064 Recordkeeping requirements.
(ii) Approximate locations within the facility (e.g., identify the hazardous waste management unit on a facility plot plan).
(vi) Method of compliance with the standard (e.g., "monthly leak detection and repair" or "equipped with dual mechanical seals").
(ii) The designation of this equipment as subject to the requirements of §§ 264.1052(e), 264.1053(i), or 264.1057(f) shall be signed by the owner or operator.
Section 264.1065 Reporting requirements.
(i) The equipment identification number of each valve for which a leak was not repaired as required in §264.1057(d).
(ii) The equipment identification number of each pump for which a leak was not repaired as required in §264.1052 (c) and (d)(6).
(iii) The equipment identification number of each compressor for which a leak was not repaired as required in §264.1053(g).
Sections 264.1066 -- 264.1079 [Reserved]
Section 264.1080 Applicability.
Section 264.1082 Standards: General.
(i) A process that removes or destroys the organics contained in the hazardous waste to a level such that the average VO concentration of the hazardous waste at the point of waste treatment is less than the exit concentration limit (Ct) established for the process. The average VO concentration of the hazardous waste at the point of waste treatment and the exit concentration limit for the process shall be determined using the procedures specified in §264.1083(b) of this subpart.
(ii) A process that removes or destroys the organics contained in the hazardous waste to a level such that the organic reduction efficiency (R) for the process is equal to or greater than 95 percent, and the average VO concentration of the hazardous waste at the point of waste treatment is less than 100 ppmw. The organic reduction efficiency for the process and the average VO concentration of the hazardous waste at the point of waste treatment shall be determined using the procedures specified in §264.1083(b) of this subpart.
(iii) A process that removes or destroys the organics contained in the hazardous waste to a level such that the actual organic mass removal rate (MR) for the process is equal to or greater than the required organic mass removal rate (RMR) established for the process. The required organic mass removal rate and the actual organic mass removal rate for the process shall be determined using the procedures specified in §264.1083(b) of this subpart.
(iv) A biological process that destroys or degrades the organics contained in the hazardous waste, such that either of the following conditions is met:
(A) The organic reduction efficiency (R) for the process is equal to or greater than 95 percent, and the organic biodegradation efficiency (Rbio) for the process is equal to or greater than 95 percent. The organic reduction efficiency and the organic biodegradation efficiency for the process shall be determined using the procedures specified in §264.1083(b) of this subpart.
(B) The total actual organic mass biodegradation rate (MRbio) for all hazardous waste treated by the process is equal to or greater than the required organic mass removal rate (RMR). The required organic mass removal rate and the actual organic mass biodegradation rate for the process shall be determined using the procedures specified in §264.1083(b) of this subpart.
(v) A process that removes or destroys the organics contained in the hazardous waste and meets all of the following conditions:
(A) From the point of waste origination through the point where the hazardous waste enters the treatment process, the hazardous waste is managed continuously in waste management units which use air emission controls in accordance with the standards specified in §264.1084 through §264.1087 of this subpart, as applicable to the waste management unit.
(B) From the point of waste origination through the point where the hazardous waste enters the treatment process, any transfer of the hazardous waste is accomplished through continuous hard-piping or other closed system transfer that does not allow exposure of the waste to the atmosphere. The EPA considers a drain system that meets the requirements of 40 CFR Part 63, Subpart RR--National Emission Standards for Individual Drain Systems to be a closed system.
(C) The average VO concentration of the hazardous waste at the point of waste treatment is less than the lowest average VO concentration at the point of waste origination determined for each of the individual waste streams entering the process or 500 ppmw, whichever value is lower. The average VO concentration of each individual waste stream at the point of waste origination shall be determined using the procedures specified in §264.1083(a) of this subpart. The average VO concentration of the hazardous waste at the point of waste treatment shall be determined using the procedures specified in §264.1083(b) of this subpart.
(vi) A process that removes or destroys the organics contained in the hazardous waste to a level such that the organic reduction efficiency (R) for the process is equal to or greater than 95 percent and the owner or operator certifies that the average VO concentration at the point of waste origination for each of the individual waste streams entering the process is less than 10,000 ppmw. The organic reduction efficiency for the process and the average VO concentration of the hazardous waste at the point of waste origination shall be determined using the procedures specified in §264.1083(b) and §264.1083(a) of this subpart, respectively.
(A) Been issued a final permit under Part 122 which implements the requirements of Subpart O of this part; or
(B) Has designed and operates the incinerator in accordance with the interim status requirements of Part 265, Subpart O.
(A) Been issued a final permit under Part 122 which implements the requirements of Part 266, Subpart H, or
(B) Has designed and operates the boiler or industrial furnace in accordance with the interim status requirements of Part 266, Subpart H.
(ix) For the purpose of determining the performance of an organic destruction or removal process in accordance with the conditions in each of paragraphs (c)(2)(i) through (c)(2)(vi) of this section, the owner or operator shall account for VO concentrations determined to be below the limit of detection of the analytical method by using the following VO concentration:
(A) If Method 25D in 40 CFR Part 60, Appendix A is used for the analysis, one-half the blank value determined in the method at Section 4.4 of Method 25D in 40 CFR Part 60, Appendix A, or a value of 25 ppmw, whichever is less.
(B) If any other analytical method is used, one-half the sum of the limits of detection established for each organic constituent in the waste that has a Henry's law constant value at least 0.1 mole‑fraction‑in‑the‑gas‑phase/mole‑fraction‑in‑the‑liquid‑phase (0.1 Y/X) [which can also be expressed as 1.8 x 10‑6 atmospheres/gram‑mole/m3] at 25o C.
(i) Meets the numerical concentration limits for organic hazardous constituents, applicable to the hazardous waste, as specified in Part 268--Land Disposal Restrictions under Table "Treatment Standards for Hazardous Waste" in §268.40; or
(ii) The organic hazardous constituents in the waste have been treated by the treatment technology established by the EPA for the waste in §268.42(a), or have been removed or destroyed by an equivalent method of treatment approved by EPA pursuant to §268.42(b).
(i) The tank is located inside an enclosure vented to a control device that is designed and operated in accordance with all applicable requirements specified under 40 CFR Part 61, Subpart FF--National Emission Standards for Benzene Waste Operations for a facility at which the total annual benzene quantity from the facility waste is equal to or greater than 10 megagrams per year;
(ii) The enclosure and control device serving the tank were installed and began operation prior to November 25, 1996 and
(iii) The enclosure is designed and operated in accordance with the criteria for a permanent total enclosure as specified in "Procedure T--Criteria for and Verification of a Permanent or Temporary Total Enclosure" under 40 CFR 52.741, Appendix B. The enclosure may have permanent or temporary openings to allow worker access; passage of material into or out of the enclosure by conveyor, vehicles, or other mechanical or electrical equipment; or to direct air flow into the enclosure. The owner or operator shall perform the verification procedure for the enclosure as specified in Section 5.0 to "Procedure T--Criteria for and Verification of a Permanent or Temporary Total Enclosure" annually.
(i) In accordance with the method used by the owner or operator to perform the waste analysis, except in the case specified in paragraph (d)(2)(ii) of this section.
(ii) If the Secretary determines that the method used by the owner or operator was not appropriate for the hazardous waste managed in the tank, surface impoundment, or container, then the Secretary may choose an appropriate method.
(i) The average VO concentration of the hazardous waste at the point of waste origination shall be determined by direct measurement in accordance with the requirements of §264.1083(a) of this subpart.
(ii) Results of the waste determination performed or requested by the Secretary showing that the average VO concentration of the hazardous waste at the point of waste origination is equal to or greater than 500 ppmw shall constitute noncompliance with this subpart except in a case as provided for in paragraph (d)(5)(iii) of this section.
(iii) For the case when the average VO concentration of the hazardous waste at the point of waste origination previously has been determined by the owner or operator using an averaging period greater than 1 hour to be less than 500 ppmw but because of normal operating process variations the VO concentration of the hazardous waste determined by direct measurement for any given 1-hour period may be equal to or greater than 500 ppmw, information that was used by the owner or operator to determine the average VO concentration of the hazardous waste (e.g., test results, measurements, calculations, and other documentation) and recorded in the facility records in accordance with the requirements of §264.1083(a) and §264.1089 of this subpart shall be considered by the Secretary together with the results of the waste determination performed or requested by the Secretary in establishing compliance with this subpart.
Section 264.1083 Waste determination procedures.
(i) An initial determination of the average VO concentration of the waste stream shall be made before the first time any portion of the material in the hazardous waste stream is placed in a waste management unit exempted under the provisions of §264.1082(c)(1) of this subpart from using air emission controls, and thereafter an initial determination of the average VO concentration of the waste stream shall be made for each averaging period that a hazardous waste is managed in the unit; and
(ii) Perform a new waste determination whenever changes to the source generating the waste stream are reasonably likely to cause the average VO concentration of the hazardous waste to increase to a level that is equal to or greater than the applicable VO concentration limits specified in §264.1082 of this subpart.
(i) An initial determination of the average VO concentration of the waste stream shall be made before the first time any portion of the material in the treated waste stream is placed in the exempt waste management unit, and thereafter update the information used for the waste determination at least once every 12 months following the date of the initial waste determination; and
(ii) Perform a new waste determination whenever changes to the process generating or treating the waste stream are reasonably likely to cause the average VO concentration of the hazardous waste to increase to a level such that the applicable treatment conditions specified in §264.1082(c)(2) of this subpart are not achieved.
Section 264.1084 Standards: Tanks.
(i) The hazardous waste in the tank has a maximum organic vapor pressure which is less than the maximum organic vapor pressure limit for the tank's design capacity category as follows:
(A) For a tank design capacity equal to or greater than 151 m3, the maximum organic vapor pressure limit for the tank is 5.2 kPa.
(B) For a tank design capacity equal to or greater than 75 m3 but less than 151 m3, the maximum organic vapor pressure limit for the tank is 27.6 kPa.
(C) For a tank design capacity less than 75 m3, the maximum organic vapor pressure limit for the tank is 76.6 kPa.
(ii) The hazardous waste in the tank is not heated by the owner or operator to a temperature that is greater than the temperature at which the maximum organic vapor pressure of the hazardous waste is determined for the purpose of complying with paragraph (b)(1)(i) of this section.
(iii) The hazardous waste in the tank is not treated by the owner or operator using a waste stabilization process, as defined in §265.1081.
(2) For a tank that manages hazardous waste that does not meet all of the conditions specified in paragraphs (b)(1)(i) through (b)(1)(iii) of this section, the owner or operator shall control air pollutant emissions from the tank by using Tank Level 2 controls in accordance with the requirements of paragraph (d) of this section. Examples of tanks required to use Tank Level 2 controls include: A tank used for a waste stabilization process; and a tank for which the hazardous waste in the tank has a maximum organic vapor pressure that is equal to or greater than the maximum organic vapor pressure limit for the tank's design capacity category as specified in paragraph (b)(1)(i) of this section.
(i) The fixed roof and its closure devices shall be designed to form a continuous barrier over the entire surface area of the hazardous waste in the tank. The fixed roof may be a separate cover installed on the tank (e.g., a removable cover mounted on an open-top tank) or may be an integral part of the tank structural design (e.g., a horizontal cylindrical tank equipped with a hatch).
(ii) The fixed roof shall be installed in a manner such that there are no visible cracks, holes, gaps, or other open spaces between roof section joints or between the interface of the roof edge and the tank wall.
(iii) Each opening in the fixed roof, and any manifold system associated with the fixed roof, shall be either:
(A) Equipped with a closure device designed to operate such that when the closure device is secured in the closed position there are no visible cracks, holes, gaps, or other open spaces in the closure device or between the perimeter of the opening and the closure device; or
(B) Connected by a closed-vent system that is vented to a control device. The control device shall remove or destroy organics in the vent stream, and shall be operating whenever hazardous waste is managed in the tank, except as provided for in paragraphs (c)(2)(iii)(B)(1) and (2) of this section.
(1) During periods when it is necessary to provide access to the tank for performing the activities of paragraph (c)(2)(iii)(B)(2) of this section, venting of the vapor headspace underneath the fixed roof to the control device is not required, opening of closure devices is allowed, and removal of the fixed roof is allowed. Following completion of the activity, the owner or operator shall promptly secure the closure device in the closed position or reinstall the cover, as applicable, and resume operation of the control device.
(iv) The fixed roof and its closure devices shall be made of suitable materials that will minimize exposure of the hazardous waste to the atmosphere, to the extent practical, and will maintain the integrity of the fixed roof and closure devices throughout their intended service life. Factors to be considered when selecting the materials for and designing the fixed roof and closure devices shall include: Organic vapor permeability, the effects of any contact with the hazardous waste or its vapors managed in the tank; the effects of outdoor exposure to wind, moisture, and sunlight; and the operating practices used for the tank on which the fixed roof is installed.
(A) To provide access to the tank for performing routine inspection, maintenance, or other activities needed for normal operations. Examples of such activities include those times when a worker needs to open a port to sample the liquid in the tank, or when a worker needs to open a hatch to maintain or repair equipment. Following completion of the activity, the owner or operator shall promptly secure the closure device in the closed position or reinstall the cover, as applicable, to the tank.
(ii) Opening of a spring-loaded pressure-vacuum relief valve, conservation vent, or similar type of pressure relief device which vents to the atmosphere is allowed during normal operations for the purpose of maintaining the tank internal pressure in accordance with the tank design specifications. The device shall be designed to operate with no detectable organic emissions when the device is secured in the closed position. The settings at which the device opens shall be established such that the device remains in the closed position whenever the tank internal pressure is within the internal pressure operating range determined by the owner or operator based on the tank manufacturer recommendations, applicable regulations, fire protection and prevention codes, standard engineering codes and practices, or other requirements for the safe handling of flammable, ignitable, explosive reactive, or hazardous materials. Examples of normal operating conditions that may require these devices to open are during those times when the tank internal pressure exceeds the internal pressure operating range for the tank as a result of loading operations or diurnal ambient temperature fluctuations.
(iii) Opening of a safety device, as defined in §265.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(i) The fixed roof and its closure devices shall be visually inspected by the owner or operator to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in the roof sections or between the roof and the tank wall; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.
(ii) The owner or operator shall perform an initial inspection of the fixed roof and its closure devices on or before the date that the tank becomes subject to this section. Thereafter, the owner or operator shall perform the inspections at least once every year except under the special conditions provided for in paragraph (l) of this section.
(iii) In the event that a defect is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(iv) The owner or operator shall maintain a record of the inspection in accordance with the requirements specified in §264.1089(b) of this subpart.
(i) The internal floating roof shall be designed to float on the liquid surface except when the floating roof must be supported by the leg supports.
(ii) The internal floating roof shall be equipped with a continuous seal between the wall of the tank and the floating roof edge that meets either of the following requirements:
(A) A single continuous seal that is either a liquid-mounted seal or a metallic shoe seal, as defined in §265.1081; or
(A) Each opening in a noncontact internal floating roof except for automatic bleeder vents (vacuum breaker vents) and the rim space vents is to provide a projection below the liquid surface.
(B) Each opening in the internal floating roof shall be equipped with a gasketed cover or a gasketed lid except for leg sleeves, automatic bleeder vents, rim space vents, column wells, ladder wells, sample wells, and stub drains.
(C) Each penetration of the internal floating roof for the purpose of sampling shall have a slit fabric cover that covers at least 90 percent of the opening.
(E) Each penetration of the internal floating roof that allows for passage of a ladder shall have a gasketed sliding cover.
(F) Each penetration of the internal floating roof that allows for passage of a column supporting the fixed roof shall have a flexible fabric sleeve seal or a gasketed sliding cover.
(i) When the floating roof is resting on the leg supports, the process of filling, emptying, or refilling shall be continuous and shall be completed as soon as practical.
(ii) Automatic bleeder vents are to be set closed at all times when the roof is floating, except when the roof is being floated off or is being landed on the leg supports.
(iii) Prior to filling the tank, each cover, access hatch, gauge float well or lid on any opening in the internal floating roof shall be bolted or fastened closed (i.e., no visible gaps). Rim space vents are to be set to open only when the internal floating roof is not floating or when the pressure beneath the rim exceeds the manufacturer's recommended setting.
(i) The floating roof and its closure devices shall be visually inspected by the owner or operator to check for defects that could result in air pollutant emissions. Defects include, but are not limited to: The internal floating roof is not floating on the surface of the liquid inside the tank; liquid has accumulated on top of the internal floating roof; any portion of the roof seals have detached from the roof rim; holes, tears, or other openings are visible in the seal fabric; the gaskets no longer close off the hazardous waste surface from the atmosphere; or the slotted membrane has more than 10 percent open area.
(ii) The owner or operator shall inspect the internal floating roof components as follows except as provided in paragraph (e)(3)(iii) of this section:
(A) Visually inspect the internal floating roof components through openings on the fixed-roof (e.g., manholes and roof hatches) at least once every 12 months after initial fill, and
(B) Visually inspect the internal floating roof, primary seal, secondary seal (if one is in service), gaskets, slotted membranes, and sleeve seals (if any) each time the tank is emptied and degassed and at least every 10 years.
(A) Prior to each visual inspection of an internal floating roof in a tank that has been emptied and degassed, written notification shall be prepared and sent by the owner or operator so that it is received by the Secretary at least 30 calendar days before refilling the tank except when an inspection is not planned as provided for in paragraph (e)(3)(iv)(B) of this section.
(B) When a visual inspection is not planned and the owner or operator could not have known about the inspection 30 calendar days before refilling the tank, the owner or operator shall notify the Secretary as soon as possible, but no later than 7 calendar days before refilling of the tank. This notification may be made by telephone and immediately followed by a written explanation for why the inspection is unplanned. Alternatively, written notification, including the explanation for the unplanned inspection, may be sent so that it is received by the Secretary at least 7 calendar days before refilling the tank.
(v) In the event that a defect is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(vi) The owner or operator shall maintain a record of the inspection in accordance with the requirements specified in §264.1089(b) of this subpart.
(i) The external floating roof shall be designed to float on the liquid surface except when the floating roof must be supported by the leg supports.
(ii) The floating roof shall be equipped with two continuous seals, one above the other, between the wall of the tank and the roof edge. The lower seal is referred to as the primary seal, and the upper seal is referred to as the secondary seal.
(A) The primary seal shall be a liquid-mounted seal or a metallic shoe seal, as defined in 265.1081. The total area of the gaps between the tank wall and the primary seal shall not exceed 212 square centimeters (cm2) per meter of tank diameter, and the width of any portion of these gaps shall not exceed 3.8 centimeters (cm). If a metallic shoe seal is used for the primary seal, the metallic shoe seal shall be designed so that one end extends into the liquid in the tank and the other end extends a vertical distance of at least 61 centimeters above the liquid surface.
(B) The secondary seal shall be mounted above the primary seal and cover the annular space between the floating roof and the wall of the tank. The total area of the gaps between the tank wall and the secondary seal shall not exceed 21.2 square centimeters (cm2) per meter of tank diameter, and the width of any portion of these gaps shall not exceed 1.3 centimeters (cm).
(A) Except for automatic bleeder vents (vacuum breaker vents) and rim space vents, each opening in a noncontact external floating roof shall provide a projection below the liquid surface.
(B) Except for automatic bleeder vents, rim space vents, roof drains, and leg sleeves, each opening in the roof shall be equipped with a gasketed cover, seal, or lid.
(C) Each access hatch and each gauge float well shall be equipped with a cover designed to be bolted or fastened when the cover is secured in the closed position.
(E) Each roof drain that empties into the liquid managed in the tank shall be equipped with a slotted membrane fabric cover that covers at least 90 percent of the area of the opening.
(F) Each unslotted and slotted guide pole well shall be equipped with a gasketed sliding cover or a flexible fabric sleeve seal.
(H) Each slotted guide pole shall be equipped with a gasketed float or other device which closes off the liquid surface from the atmosphere.
(i) When the floating roof is resting on the leg supports, the process of filling, emptying, or refilling shall be continuous and shall be completed as soon as practical.
(ii) Except for automatic bleeder vents, rim space vents, roof drains, and leg sleeves, each opening in the roof shall be secured and maintained in a closed position at all times except when the closure device must be open for access.
(iii) Covers on each access hatch and each gauge float well shall be bolted or fastened when secured in the closed position.
(iv) Automatic bleeder vents shall be set closed at all times when the roof is floating, except when the roof is being floated off or is being landed on the leg supports.
(v) Rim space vents shall be set to open only at those times that the roof is being floated off the roof leg supports or when the pressure beneath the rim seal exceeds the manufacturer's recommended setting.
(vi) The cap on the end of each unslotted guide pole shall be secured in the closed position at all times except when measuring the level or collecting samples of the liquid in the tank.
(vii) The cover on each gauge hatch or sample well shall be secured in the closed position at all times except when the hatch or well must be opened for access.
(viii) Both the primary seal and the secondary seal shall completely cover the annular space between the external floating roof and the wall of the tank in a continuous fashion except during inspections.
(i) The owner or operator shall measure the external floating roof seal gaps in accordance with the following requirements:
(A) The owner or operator shall perform measurements of gaps between the tank wall and the primary seal within 60 calendar days after initial operation of the tank following installation of the floating roof and, thereafter, at least once every 5 years.
(B) The owner or operator shall perform measurements of gaps between the tank wall and the secondary seal within 60 calendar days after initial operation of the tank following installation of the floating roof and, thereafter, at least once every year.
(C) If a tank ceases to hold hazardous waste for a period of 1 year or more, subsequent introduction of hazardous waste into the tank shall be considered an initial operation for the purposes of paragraphs (f)(3)(i)(A) and (f)(3)(i)(B) of this section.
(D) The owner or operator shall determine the total surface area of gaps in the primary seal and in the secondary seal individually using the following procedure:
(1) The seal gap measurements shall be performed at one or more floating roof levels when the roof is floating off the roof supports.
(2) Seal gaps, if any, shall be measured around the entire perimeter of the floating roof in each place where a 0.32-centimeter (cm) diameter uniform probe passes freely (without forcing or binding against the seal) between the seal and the wall of the tank and measure the circumferential distance of each such location.
(3) For a seal gap measured under paragraph (f)(3) of this section, the gap surface area shall be determined by using probes of various widths to measure accurately the actual distance from the tank wall to the seal and multiplying each such width by its respective circumferential distance.
(4) The total gap area shall be calculated by adding the gap surface areas determined for each identified gap location for the primary seal and the secondary seal individually, and then dividing the sum for each seal type by the nominal diameter of the tank. These total gap areas for the primary seal and secondary seal are then compared to the respective standards for the seal type as specified in paragraph (f)(1)(ii) of this section.
(E) In the event that the seal gap measurements do not conform to the specifications in paragraph (f)(1)(ii) of this section, the owner or operator shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(F) The owner or operator shall maintain a record of the inspection in accordance with the requirements specified in §264.1089(b) of this subpart.
(ii) The owner or operator shall visually inspect the external floating roof in accordance with the following requirements:
(A) The floating roof and its closure devices shall be visually inspected by the owner or operator to check for defects that could result in air pollutant emissions. Defects include, but are not limited to: Holes, tears, or other openings in the rim seal or seal fabric of the floating roof; a rim seal detached from the floating roof; all or a portion of the floating roof deck being submerged below the surface of the liquid in the tank; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.
(B) The owner or operator shall perform an initial inspection of the external floating roof and its closure devices on or before the date that the tank becomes subject to this section. Thereafter, the owner or operator shall perform the inspections at least once every year except for the special conditions provided for in paragraph (l) of this section.
(C) In the event that a defect is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(D) The owner or operator shall maintain a record of the inspection in accordance with the requirements specified in §264.1089(b) of this subpart.
(iii) Prior to each inspection required by paragraph (f)(3)(i) or (f)(3)(ii) of this section, the owner or operator shall notify the Secretary in advance of each inspection to provide the Secretary with the opportunity to have an observer present during the inspection. The owner or operator shall notify the Secretary of the date and location of the inspection as follows:
(A) Prior to each inspection to measure external floating roof seal gaps as required under paragraph (f)(3)(i) of this section, written notification shall be prepared and sent by the owner or operator so that it is received by the Secretary at least 30 calendar days before the date the measurements are scheduled to be performed.
(B) Prior to each visual inspection of an external floating roof in a tank that has been emptied and degassed, written notification shall be prepared and sent by the owner or operator so that it is received by the Secretary at least 30 calendar days before refilling the tank except when an inspection is not planned as provided for in paragraph (f)(3)(iii)(C) of this section.
(C) When a visual inspection is not planned and the owner or operator could not have known about the inspection 30 calendar days before refilling the tank, the owner or operator shall notify the Secretary as soon as possible, but no later than 7 calendar days before refilling of the tank. This notification may be made by telephone and immediately followed by a written explanation for why the inspection is unplanned. Alternatively, written notification, including the explanation for the unplanned inspection, may be sent so that it is received by the Secretary at least 7 calendar days before refilling the tank.
(4) Safety devices, as defined in §265.1081, may be installed and operated as necessary on any tank complying with the requirements of paragraph (f) of this section.
(i) The fixed roof and its closure devices shall be designed to form a continuous barrier over the entire surface area of the liquid in the tank.
(ii) Each opening in the fixed roof not vented to the control device shall be equipped with a closure device. If the pressure in the vapor headspace underneath the fixed roof is less than atmospheric pressure when the control device is operating, the closure devices shall be designed to operate such that when the closure device is secured in the closed position there are no visible cracks, holes, gaps, or other open spaces in the closure device or between the perimeter of the cover opening and the closure device. If the pressure in the vapor headspace underneath the fixed roof is equal to or greater than atmospheric pressure when the control device is operating, the closure device shall be designed to operate with no detectable organic emissions.
(iii) The fixed roof and its closure devices shall be made of suitable materials that will minimize exposure of the hazardous waste to the atmosphere, to the extent practical, and will maintain the integrity of the fixed roof and closure devices throughout their intended service life. Factors to be considered when selecting the materials for and designing the fixed roof and closure devices shall include: Organic vapor permeability, the effects of any contact with the liquid and its vapor managed in the tank; the effects of outdoor exposure to wind, moisture, and sunlight; and the operating practices used for the tank on which the fixed roof is installed.
(iv) The closed-vent system and control device shall be designed and operated in accordance with the requirements of §264.1087 of this subpart.
(i) Venting to the control device is not required, and opening of closure devices or removal of the fixed roof is allowed at the following times:
(A) To provide access to the tank for performing routine inspection, maintenance, or other activities needed for normal operations. Examples of such activities include those times when a worker needs to open a port to sample liquid in the tank, or when a worker needs to open a hatch to maintain or repair equipment. Following completion of the activity, the owner or operator shall promptly secure the closure device in the closed position or reinstall the cover, as applicable, to the tank.
(ii) Opening of a safety device, as defined in §265.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(i) The fixed roof and its closure devices shall be visually inspected by the owner or operator to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in the roof sections or between the roof and the tank wall; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.
(ii) The closed-vent system and control device shall be inspected and monitored by the owner or operator in accordance with the procedures specified in §264.1087 of this subpart.
(iii) The owner or operator shall perform an initial inspection of the air emission control equipment on or before the date that the tank becomes subject to this section. Thereafter, the owner or operator shall perform the inspections at least once every year except for the special conditions provided for in paragraph (l) of this section.
(iv) In the event that a defect is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(v) The owner or operator shall maintain a record of the inspection in accordance with the requirements specified in §264.1089(b) of this subpart.
(3) Whenever a hazardous waste is in the tank, the tank shall be operated as a closed system that does not vent to the atmosphere except under either of the following conditions as specified in paragraph (h)(3)(i) or (h)(3)(ii) of this section.
(i) At those times when opening of a safety device, as defined in §265.1081 of this subpart, is required to avoid an unsafe condition.
(ii) At those times when purging of inerts from the tank is required and the purge stream is routed to a closed-vent system and control device designed and operated in accordance with the requirements of §264.1087 of this subpart.
(i) The hazardous waste meets the average VO concentration conditions specified in §264.1082(c)(1) of this subpart at the point of waste origination.
(ii) The hazardous waste has been treated by an organic destruction or removal process to meet the requirements in §264.1082(c)(2) of this subpart.
(i) Prepare a written explanation for the cover stating the reasons why the cover is unsafe to visually inspect or to monitor, if required.
(ii) Develop and implement a written plan and schedule to inspect and monitor the cover, using the procedures specified in the applicable section of this subpart, as frequently as practicable during those times when a worker can safely access the cover.
Section 264.1085 Standards: Surface impoundments.
(i) The floating membrane cover shall be designed to float on the liquid surface during normal operations and form a continuous barrier over the entire surface area of the liquid.
(B) A material or a composite of different materials determined to have both organic permeability properties that are equivalent to those of the material listed in paragraph (c)(1)(ii)(A) of this section and chemical and physical properties that maintain the material integrity for the intended service life of the material.
(iii) The cover shall be installed in a manner such that there are no visible cracks, holes, gaps, or other open spaces between cover section seams or between the interface of the cover edge and its foundation mountings.
(iv) Except as provided for in paragraph (c)(1)(v) of this section, each opening in the floating membrane cover shall be equipped with a closure device designed to operate such that when the closure device is secured in the closed position there are no visible cracks, holes, gaps, or other open spaces in the closure device or between the perimeter of the cover opening and the closure device.
(v) The floating membrane cover may be equipped with one or more emergency cover drains for removal of stormwater. Each emergency cover drain shall be equipped with a slotted membrane fabric cover that covers at least 90 percent of the area of the opening or a flexible fabric sleeve seal.
(vi) The closure devices shall be made of suitable materials that will minimize exposure of the hazardous waste to the atmosphere, to the extent practical, and will maintain the integrity of the closure devices throughout their intended service life. Factors to be considered when selecting the materials of construction and designing the cover and closure devices shall include: Organic vapor permeability; the effects of any contact with the liquid and its vapor managed in the surface impoundment; the effects of outdoor exposure to wind, moisture, and sunlight; and the operating practices used for the surface impoundment on which the floating membrane cover is installed.
(A) To provide access to the surface impoundment for performing routine inspection, maintenance, or other activities needed for normal operations. Examples of such activities include those times when a worker needs to open a port to sample the liquid in the surface impoundment, or when a worker needs to open a hatch to maintain or repair equipment. Following completion of the activity, the owner or operator shall promptly replace the cover and secure the closure device in the closed position, as applicable.
(ii) Opening of a safety device, as defined in §265.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(i) The floating membrane cover and its closure devices shall be visually inspected by the owner or operator to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in the cover section seams or between the interface of the cover edge and its foundation mountings; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.
(ii) The owner or operator shall perform an initial inspection of the floating membrane cover and its closure devices on or before the date that the surface impoundment becomes subject to this section. Thereafter, the owner or operator shall perform the inspections at least once every year except for the special conditions provided for in paragraph (g) of this section.
(iii) In the event that a defect is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (f) of this section.
(i) The cover and its closure devices shall be designed to form a continuous barrier over the entire surface area of the liquid in the surface impoundment.
(ii) Each opening in the cover not vented to the control device shall be equipped with a closure device. If the pressure in the vapor headspace underneath the cover is less than atmospheric pressure when the control device is operating, the closure devices shall be designed to operate such that when the closure device is secured in the closed position there are no visible cracks, holes, gaps, or other open spaces in the closure device or between the perimeter of the cover opening and the closure device. If the pressure in the vapor headspace underneath the cover is equal to or greater than atmospheric pressure when the control device is operating, the closure device shall be designed to operate with no detectable organic emissions using the procedure specified in §264.1083(d) of this subpart.
(iii) The cover and its closure devices shall be made of suitable materials that will minimize exposure of the hazardous waste to the atmosphere, to the extent practical, and will maintain the integrity of the cover and closure devices throughout their intended service life. Factors to be considered when selecting the materials of construction and designing the cover and closure devices shall include: Organic vapor permeability; the effects of any contact with the liquid or its vapors managed in the surface impoundment; the effects of outdoor exposure to wind, moisture, and sunlight; and the operating practices used for the surface impoundment on which the cover is installed.
(iv) The closed-vent system and control device shall be designed and operated in accordance with the requirements of §264.1087 of this subpart.
(i) Venting to the control device is not required, and opening of closure devices or removal of the cover is allowed at the following times:
(A) To provide access to the surface impoundment for performing routine inspection, maintenance, or other activities needed for normal operations. Examples of such activities include those times when a worker needs to open a port to sample liquid in the surface impoundment, or when a worker needs to open a hatch to maintain or repair equipment. Following completion of the activity, the owner or operator shall promptly secure the closure device in the closed position or reinstall the cover, as applicable, to the surface impoundment.
(ii) Opening of a safety device, as defined in §265.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(i) The surface impoundment cover and its closure devices shall be visually inspected by the owner or operator to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in the cover section seams or between the interface of the cover edge and its foundation mountings; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.
(ii) The closed-vent system and control device shall be inspected and monitored by the owner or operator in accordance with the procedures specified in §264.1087 of this subpart.
(iii) The owner or operator shall perform an initial inspection of the air emission control equipment on or before the date that the surface impoundment becomes subject to this section. Thereafter, the owner or operator shall perform the inspections at least once every year except for the special conditions provided for in paragraph (g) of this section.
(iv) In the event that a defect is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (f) of this section.
(v) The owner or operator shall maintain a record of the inspection in accordance with the requirements specified in §264.1089(c) of this subpart.
(i) The hazardous waste meets the average VO concentration conditions specified in §264.1082(c)(1) of this subpart at the point of waste origination.
(ii) The hazardous waste has been treated by an organic destruction or removal process to meet the requirements in §264.1082(c)(2) of this subpart.
Section 264.1086 Standards: Containers.
(i) For a container having a design capacity greater than 0.1 m3 and less than or equal to 0.46 m3, the owner or operator shall control air pollutant emissions from the container in accordance with the Container Level 1 standards specified in paragraph (c) of this section.
(ii) For a container having a design capacity greater than 0.46 m3 that is not in light material service, the owner or operator shall control air pollutant emissions from the container in accordance with the Container Level 1 standards specified in paragraph (c) of this section.
(iii) For a container having a design capacity greater than 0.46 m3 that is in light material service, the owner or operator shall control air pollutant emissions from the container in accordance with the Container Level 2 standards specified in paragraph (d) of this section.
(2) When a container having a design capacity greater than 0.1 m3 is used for treatment of a hazardous waste by a waste stabilization process, the owner or operator shall control air pollutant emissions from the container in accordance with the Container Level 3 standards specified in paragraph (e) of this section at those times during the waste stabilization process when the hazardous waste in the container is exposed to the atmosphere.
(i) A container that meets the applicable U.S. Department of Transportation (DOT) regulations on packaging hazardous materials for transportation as specified in paragraph (f) of this section.
(ii) A container equipped with a cover and closure devices that form a continuous barrier over the container openings such that when the cover and closure devices are secured in the closed position there are no visible holes, gaps, or other open spaces into the interior of the container. The cover may be a separate cover installed on the container (e.g., a lid on a drum or a suitably secured tarp on a roll-off box) or may be an integral part of the container structural design (e.g., a "portable tank" or bulk cargo container equipped with a screw-type cap).
(iii) An open-top container in which an organic-vapor suppressing barrier is placed on or over the hazardous waste in the container such that no hazardous waste is exposed to the atmosphere. One example of such a barrier is application of a suitable organic-vapor suppressing foam.
(i) Opening of a closure device or cover is allowed for the purpose of adding hazardous waste or other material to the container as follows:
(A) In the case when the container is filled to the intended final level in one continuous operation, the owner or operator shall promptly secure the closure devices in the closed position and install the covers, as applicable to the container, upon conclusion of the filling operation.
(B) In the case when discrete quantities or batches of material intermittently are added to the container over a period of time, the owner or operator shall promptly secure the closure devices in the closed position and install covers, as applicable to the container, upon either the container being filled to the intended final level; the completion of a batch loading after which no additional material will be added to the container within 15 minutes; the person performing the loading operation leaving the immediate vicinity of the container; or the shutdown of the process generating the material being added to the container, whichever condition occurs first.
(A) For the purpose of meeting the requirements of this section, an empty container as defined in §261.7(b) may be open to the atmosphere at any time (i.e., covers and closure devices are not required to be secured in the closed position on an empty container).
(B) In the case when discrete quantities or batches of material are removed from the container but the container does not meet the conditions to be an empty container as defined in §261.7(b), the owner or operator shall promptly secure the closure devices in the closed position and install covers, as applicable to the container, upon the completion of a batch removal after which no additional material will be removed from the container within 15 minutes or the person performing the unloading operation leaves the immediate vicinity of the container, whichever condition occurs first.
(iii) Opening of a closure device or cover is allowed when access inside the container is needed to perform routine activities other than transfer of hazardous waste. Examples of such activities include those times when a worker needs to open a port to measure the depth of or sample the material in the container, or when a worker needs to open a manhole hatch to access equipment inside the container. Following completion of the activity, the owner or operator shall promptly secure the closure device in the closed position or reinstall the cover, as applicable to the container.
(iv) Opening of a spring-loaded pressure-vacuum relief valve, conservation vent, or similar type of pressure relief device which vents to the atmosphere is allowed during normal operations for the purpose of maintaining the internal pressure of the container in accordance with the container design specifications. The device shall be designed to operate with no detectable organic emissions when the device is secured in the closed position. The settings at which the device opens shall be established such that the device remains in the closed position whenever the internal pressure of the container is within the internal pressure operating range determined by the owner or operator based on container manufacturer recommendations, applicable regulations, fire protection and prevention codes, standard engineering codes and practices, or other requirements for the safe handling of flammable, ignitable, explosive, reactive, or hazardous materials. Examples of normal operating conditions that may require these devices to open are during those times when the internal pressure of the container exceeds the internal pressure operating range for the container as a result of loading operations or diurnal ambient temperature fluctuations.
(v) Opening of a safety device, as defined in §265.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(i) In the case when a hazardous waste already is in the container at the time the owner or operator first accepts possession of the container at the facility and the container is not emptied within 24 hours after the container is accepted at the facility (i.e., does not meet the conditions for an empty container as specified in §261.7(b)), the owner or operator shall visually inspect the container and its cover and closure devices to check for visible cracks, holes, gaps, or other open spaces into the interior of the container when the cover and closure devices are secured in the closed position. The container visual inspection shall be conducted on or before the date that the container is accepted at the facility (i.e., the date the container becomes subject to the Subpart CC container standards). For purposes of this requirement, the date of acceptance is the date of signature that the facility owner or operator enters on Item 20 of the Uniform Hazardous Waste Manifest (EPA Forms 8700-22 and 8700-22A), as required under Subpart E of this part, at §264.71. If a defect is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (c)(4)(iii) of this section.
(ii) In the case when a container used for managing hazardous waste remains at the facility for a period of 1 year or more, the owner or operator shall visually inspect the container and its cover and closure devices initially and thereafter, at least once every 12 months, to check for visible cracks, holes, gaps, or other open spaces into the interior of the container when the cover and closure devices are secured in the closed position. If a defect is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (c)(4)(iii) of this section.
(iii) When a defect is detected for the container, cover, or closure devices, the owner or operator shall make first efforts at repair of the defect within 24 hours after detection and repair shall be completed as soon as possible but no later than 5 calendar days after detection. If repair of a defect cannot be completed within 5 calendar days, then the hazardous waste shall be removed from the container and the container shall not be used to manage hazardous waste until the defect is repaired.
(5) The owner or operator shall maintain at the facility a copy of the procedure used to determine that containers with capacity of 0.46 m3 or greater, which do not meet applicable DOT regulations as specified in paragraph (f) of this section, are not managing hazardous waste in light material service.
(i) A container that meets the applicable U.S. Department of Transportation (DOT) regulations on packaging hazardous materials for transportation as specified in paragraph (f) of this section.
(ii) A container that operates with no detectable organic emissions as defined in §265.1081 and determined in accordance with the procedure specified in paragraph (g) of this section.
(i) Opening of a closure device or cover is allowed for the purpose of adding hazardous waste or other material to the container as follows:
(A) In the case when the container is filled to the intended final level in one continuous operation, the owner or operator shall promptly secure the closure devices in the closed position and install the covers, as applicable to the container, upon conclusion of the filling operation.
(B) In the case when discrete quantities or batches of material intermittently are added to the container over a period of time, the owner or operator shall promptly secure the closure devices in the closed position and install covers, as applicable to the container, upon either the container being filled to the intended final level; the completion of a batch loading after which no additional material will be added to the container within 15 minutes; the person performing the loading operation leaving the immediate vicinity of the container; or the shutdown of the process generating the material being added to the container, whichever condition occurs first.
(A) For the purpose of meeting the requirements of this section, an empty container as defined in §261.7(b) may be open to the atmosphere at any time (i.e., covers and closure devices are not required to be secured in the closed position on an empty container).
(B) In the case when discrete quantities or batches of material are removed from the container but the container does not meet the conditions to be an empty container as defined in §261.7(b), the owner or operator shall promptly secure the closure devices in the closed position and install covers, as applicable to the container, upon the completion of a batch removal after which no additional material will be removed from the container within 15 minutes or the person performing the unloading operation leaves the immediate vicinity of the container, whichever condition occurs first.
(i) A container that is vented directly through a closed-vent system to a control device in accordance with the requirements of paragraph (e)(2)(ii) of this section.
(ii) A container that is vented inside an enclosure which is exhausted through a closed-vent system to a control device in accordance with the requirements of paragraphs (e)(2)(i) and (e)(2)(ii) of this section.
(2) The owner or operator shall meet the following requirements, as applicable to the type of air emission control equipment selected by the owner or operator:
(i) The container enclosure shall be designed and operated in accordance with the criteria for a permanent total enclosure as specified in "Procedure T--Criteria for and Verification of a Permanent or Temporary Total Enclosure" under 40 CFR 52.741, Appendix B. The enclosure may have permanent or temporary openings to allow worker access; passage of containers through the enclosure by conveyor or other mechanical means; entry of permanent mechanical or electrical equipment; or direct airflow into the enclosure. The owner or operator shall perform the verification procedure for the enclosure as specified in Section 5.0 to "Procedure T--Criteria for and Verification of a Permanent or Temporary Total Enclosure" initially when the enclosure is first installed and, thereafter, annually.
(ii) The closed-vent system and control device shall be designed and operated in accordance with the requirements of §264.1087 of this subpart.
(6) Transfer of hazardous waste in or out of a container using Container Level 3 controls shall be conducted in such a manner as to minimize exposure of the hazardous waste to the atmosphere, to the extent practical, considering the physical properties of the hazardous waste and good engineering and safety practices for handling flammable, ignitable, explosive, reactive, or other hazardous materials.
Section 264.1087 Standards: Closed-vent systems and control devices.
(i) If a flow indicator is used to comply with paragraph (b)(3) of this section, the indicator shall be installed at the inlet to the bypass line used to divert gases and vapors from the closed-vent system to the atmosphere at a point upstream of the control device inlet. For this paragraph, a flow indicator means a device which indicates the presence of either gas or vapor flow in the bypass line.
(ii) If a seal or locking device is used to comply with paragraph (b)(3) of this section, the device shall be placed on the mechanism by which the bypass device position is controlled (e.g., valve handle, damper lever) when the bypass device is in the closed position such that the bypass device cannot be opened without breaking the seal or removing the lock. Examples of such devices include, but are not limited to, a car-seal or a lock-and-key configuration valve. The owner or operator shall visually inspect the seal or closure mechanism at least once every month to verify that the bypass mechanism is maintained in the closed position.
(i) A control device designed and operated to reduce the total organic content of the inlet vapor stream vented to the control device by at least 95 percent by weight;
(ii) An enclosed combustion device designed and operated in accordance with the requirements of §264.1033(c) of this part; or
(iii) A flare designed and operated in accordance with the requirements of §264.1033(d) of this part.
(i) Periods of planned routine maintenance of the control device, during which the control device does not meet the specifications of paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this section, as applicable, shall not exceed 240 hours per year.
(ii) The specifications and requirements in paragraphs (c)(1)(i), (c)(1)(ii), and (c)(1)(iii) of this section for control devices do not apply during periods of planned routine maintenance.
(iii) The specifications and requirements in paragraphs (c)(1)(i), (c)(1)(ii), and (c)(1)(iii) of this section for control devices do not apply during a control device system malfunction.
(iv) The owner or operator shall demonstrate compliance with the requirements of paragraph (c)(2)(i) of this section (i.e., planned routine maintenance of a control device, during which the control device does not meet the specifications of paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this section, as applicable, shall not exceed 240 hours per year) by recording the information specified in §264.1089(e)(1)(v) of this subpart.
(v) The owner or operator shall correct control device system malfunctions as soon as practicable after their occurrence in order to minimize excess emissions of air pollutants.
(vi) The owner or operator shall operate the closed-vent system such that gases, vapors, or fumes are not actively vented to the control device during periods of planned maintenance or control device system malfunction (i.e., periods when the control device is not operating or not operating normally) except in cases when it is necessary to vent the gases, vapors, and/or fumes to avoid an unsafe condition or to implement malfunction corrective actions or planned maintenance actions.
(i) Following the initial startup of the control device, all activated carbon in the control device shall be replaced with fresh carbon on a regular basis in accordance with the requirements of §264.1033(g) or §264.1033(h) of this part.
(ii) All carbon that is a hazardous waste and that is removed from the control device shall be managed in accordance with the requirements of §264.1033(n), regardless of the average volatile organic concentration of the carbon.
(i) An owner or operator shall demonstrate using either a performance test as specified in paragraph (c)(5)(iii) of this section or a design analysis as specified in paragraph (c)(5)(iv) of this section the performance of each control device except for the following:
(D) A boiler or industrial furnace burning hazardous waste for which the owner or operator has been issued a final permit under Part 122 and has designed and operates the unit in accordance with the requirements of Part 266, Subpart H; or
(E) A boiler or industrial furnace burning hazardous waste for which the owner or operator has designed and operates in accordance with the interim status requirements of Part 266, Subpart H.
Section 264.1088 Inspection and monitoring requirements.
Section 264.1089 Recordkeeping requirements.
(i) A tank identification number (or other unique identification description as selected by the owner or operator).
(ii) A record for each inspection required by §264.1084 of this subpart that includes the following information:
(B) For each defect detected during the inspection: The location of the defect, a description of the defect, the date of detection, and corrective action taken to repair the defect. In the event that repair of the defect is delayed in accordance with the requirements of §264.1084 of this subpart, the owner or operator shall also record the reason for the delay and the date that completion of repair of the defect is expected.
(i) The owner or operator using a fixed roof to comply with the Tank Level 1 control requirements specified in §264.1084(c) of this subpart shall prepare and maintain records for each determination for the maximum organic vapor pressure of the hazardous waste in the tank performed in accordance with the requirements of §264.1084(c) of this subpart. The records shall include the date and time the samples were collected, the analysis method used, and the analysis results.
(ii) The owner or operator using an internal floating roof to comply with the Tank Level 2 control requirements specified in §264.1084(e) of this subpart shall prepare and maintain documentation describing the floating roof design.
(iii) Owners and operators using an external floating roof to comply with the Tank Level 2 control requirements specified in §264.1084(f) of this subpart shall prepare and maintain the following records:
(B) Records for each seal gap inspection required by §264.1084(f)(3) of this subpart describing the results of the seal gap measurements. The records shall include the date that the measurements were performed, the raw data obtained for the measurements, and the calculations of the total gap surface area. In the event that the seal gap measurements do not conform to the specifications in §264.1084(f)(1) of this subpart, the records shall include a description of the repairs that were made, the date the repairs were made, and the date the tank was emptied, if necessary.
(iv) Each owner or operator using an enclosure to comply with the Tank Level 2 control requirements specified in §264.1084(i) of this subpart shall prepare and maintain the following records:
(A) Records for the most recent set of calculations and measurements performed by the owner or operator to verify that the enclosure meets the criteria of a permanent total enclosure as specified in "Procedure T--Criteria for and Verification of a Permanent or Temporary Total Enclosure" under 40 CFR 52.741, Appendix B.
(B) Records required for the closed-vent system and control device in accordance with the requirements of paragraph (e) of this section.
(ii) For each defect detected during the inspection the following information: The location of the defect, a description of the defect, the date of detection, and corrective action taken to repair the defect. In the event that repair of the defect is delayed in accordance with the provisions of §264.1085(f) of this subpart, the owner or operator shall also record the reason for the delay and the date that completion of repair of the defect is expected.
(i) Certification that is signed and dated by the owner or operator stating that the control device is designed to operate at the performance level documented by a design analysis as specified in paragraph (e)(1)(ii) of this section or by performance tests as specified in paragraph (e)(1)(iii) of this section when the tank, surface impoundment, or container is or would be operating at capacity or the highest level reasonably expected to occur.
(ii) If a design analysis is used, then design documentation as specified in §264.1035(b)(4). The documentation shall include information prepared by the owner or operator or provided by the control device manufacturer or vendor that describes the control device design in accordance with §264.1035(b)(4)(iii) and certification by the owner or operator that the control equipment meets the applicable specifications.
(iii) If performance tests are used, then a performance test plan as specified in §264.1035(b)(3) and all test results.
(v) An owner or operator shall record, on a semiannual basis, the information specified in paragraphs (e)(1)(v)(A) and (e)(1)(v)(B) of this section for those planned routine maintenance operations that would require the control device not to meet the requirements of §264.1087(c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this subpart, as applicable.
(A) A description of the planned routine maintenance that is anticipated to be performed for the control device during the next 6-month period. This description shall include the type of maintenance necessary, planned frequency of maintenance, and lengths of maintenance periods.
(B) A description of the planned routine maintenance that was performed for the control device during the previous 6-month period. This description shall include the type of maintenance performed and the total number of hours during those 6 months that the control device did not meet the requirements of §264.1087 (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this subpart, as applicable, due to planned routine maintenance.
(vi) An owner or operator shall record the information specified in paragraphs (e)(1)(vi)(A) through (e)(1)(vi)(C) of this section for those unexpected control device system malfunctions that would require the control device not to meet the requirements of §264.1087 (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this subpart, as applicable.
(B) The duration of each period during a malfunction when gases, vapors, or fumes are vented from the waste management unit through the closed-vent system to the control device while the control device is not properly functioning.
(C) Actions taken during periods of malfunction to restore a malfunctioning control device to its normal or usual manner of operation.
(vii) Records of the management of carbon removed from a carbon adsorption system conducted in accordance with §264.1087(c)(3)(ii) of this subpart.
(i) For the tanks used at the facility to manage this hazardous waste, sufficient information shall be provided to describe for each tank: A facility identification number for the tank; the purpose and placement of this tank in the management train of this hazardous waste; and the procedures used to ultimately dispose of the hazardous waste managed in the tanks.
(ii) For containers used at the facility to manage these hazardous wastes, sufficient information shall be provided to describe: A facility identification number for the container or group of containers; the purpose and placement of this container, or group of containers, in the management train of this hazardous waste; and the procedures used to ultimately dispose of the hazardous waste handled in the containers.
(i) For tanks used at the facility to manage these hazardous wastes, sufficient information shall be provided to explain: How use of the required air emission controls on the tanks would affect the tank design features and facility operating procedures currently used to prevent an undue safety hazard during the management of this hazardous waste in the tanks; and why installation of safety devices on the required air emission controls, as allowed under this subpart, will not address those situations in which evacuation of tanks equipped with these air emission controls is necessary and consistent with good engineering and safety practices for handling organic peroxides.
(ii) For containers used at the facility to manage these hazardous wastes, sufficient information shall be provided to explain: How use of the required air emission controls on the containers would affect the container design features and handling procedures currently used to prevent an undue safety hazard during the management of this hazardous waste in the containers; and why installation of safety devices on the required air emission controls, as allowed under this subpart, will not address those situations in which evacuation of containers equipped with these air emission controls is necessary and consistent with good engineering and safety practices for handling organic peroxides.
Section 264.1090 Reporting requirements.
Section 264.1100 Applicability.
Section 264.1101 Design and operating standards.
(i) They provide an effective barrier against fugitive dust emissions under paragraph (c)(1)(iv); and
(ii) The unit is designed and operated in a fashion that assures that wastes will not actually come in contact with these openings.
(ii) Liquids and waste must be collected and removed to minimize hydraulic head on the containment system at the earliest practicable time.
(3) A secondary containment system including a secondary barrier designed and constructed to prevent migration of hazardous constituents into the barrier, and a leak detection system that is capable of detecting failure of the primary barrier and collecting accumulated hazardous wastes and liquids at the earliest practicable time.
(i) The requirements of the leak detection component of the secondary containment system are satisfied by installation of a system that is, at a minimum:
(B) Constructed of a granular drainage material with a hydraulic conductivity of 1 X 10-2 cm/sec or more and a thickness of 12 inches (30.5 cm) or more, or constructed of synthetic or geonet drainage materials with a transmissivity of 3 X 10-5 m2/sec or more.
(ii) If treatment is to be conducted in the building, an area in which such treatment will be conducted must be designed to prevent the release of liquids, wet materials, or liquid aerosols to other portions of the building.
(iii) The secondary containment system must be constructed of materials that are chemically resistant to the waste and liquids managed in the containment building and of sufficient strength and thickness to prevent collapse under the pressure exerted by overlaying materials and by any equipment used in the containment building. (Containment buildings can serve as secondary containment systems for tanks placed within the building under certain conditions. A containment building can serve as an external liner system for a tank, provided it meets the requirements of §264.193(e)(1). In addition, the containment building must meet the requirements of §264.193(b) and §§ 264.193(c) (1) and (2) to be considered an acceptable secondary containment system for a tank.)
(i) Provide written notice to the Secretary of their request by February 18, 1993. This notification must describe the unit and its operating practices with specific reference to the performance of existing containment systems, and specific plans for retrofitting the unit with secondary containment;
(i) Maintain the primary barrier to be free of significant cracks, gaps, corrosion, or other deterioration that could cause hazardous waste to be released from the primary barrier;
(ii) Maintain the level of the stored/treated hazardous waste within the containment walls of the unit so that the height of any containment wall is not exceeded;
(iii) Take measures to prevent the tracking of hazardous waste out of the unit by personnel or by equipment used in handling the waste. An area must be designated to decontaminate equipment and any rinsate must be collected and properly managed; and
(iv) Take measures to control fugitive dust emissions such that any openings (doors, windows, vents, cracks, etc.) exhibit no visible emissions (see 40 CFR Part 60, appendix A, Method 22-Visual Determination of Fugitive Emissions from Material Sources and Smoke Emissions from Flares). In addition, all associated particulate collection devices (e.g., fabric filter, electrostatic precipitator) must be operated and maintained with sound air pollution control practices (see 40 CFR Part 60 Subpart 292 for guidance). This state of no visible emissions must be maintained effectively at all times during routine operating and maintenance conditions, including when vehicles and personnel are entering and exiting the unit.
(i) Upon detection of a condition that has led to a release of hazardous waste (e.g., upon detection of leakage from the primary barrier) the owner or operator must:
(B) Immediately remove the portion of the containment building affected by the condition from service;
(C) Determine what steps must be taken to repair the containment building, remove any leakage from the secondary collection system, and establish a schedule for accomplishing the cleanup and repairs; and
(D) Within 7 days after the discovery of the condition, notify the Secretary of the condition, and within 14 working days, provide a written notice to the Secretary with a description of the steps taken to repair the containment building, and the schedule for accomplishing the work.
(ii) The Secretary will review the information submitted, make a determination regarding whether the containment building must be removed from service completely or partially until repairs and cleanup are complete, and notify the owner or operator of the determination and the underlying rationale in writing.
(iii) Upon completing all repairs and cleanup the owner or operator must notify the Secretary in writing and provide a verification, signed by a qualified, registered professional engineer, that the repairs and cleanup have been completed according to the written plan submitted in accordance with paragraph (c)(3)(i)(D) of this section.
Section 264.1102 Closure and post-closure care.
Section 264.1103-264.1110 [Reserved]
Section 264.1200 Applicability.
Section 264.1201 Design and operating standards.
(i) Constructed of waterproofed, reinforced concrete or structural steel arches, with steel doors that are kept closed when not being accessed;
(A) To be of sufficient strength and thickness to support the weight of any explosives or munitions stored and any equipment used in the unit;
(iii) Located and designed, with walls and earthen covers that direct an explosion in the unit in a safe direction, so as to minimize the propagation of an explosion to adjacent units and to minimize other effects of any explosion.
Section 264.1202 Closure and post-closure care.
(1) A description by its common name and the EPA Hazardous Waste Number(s) from Part 261 of these regulations, which apply to the waste. The waste description also must include the waste's physical form, i.e., liquid, sludge, solid, or contained gas. If the waste is not listed in Part 261, Subpart D, of these regulations, the description also must include the process that produced it (for example, solid filter cake from production of ‑‑‑‑, EPA Hazardous Waste Number W051).
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Using all the available background data (nb readings), calculate the background mean (XB) and background variance (sB2). For the single monitoring well under investigation (nm reading), calculate the monitoring mean (Xm) and monitoring variance (sm2).
The t‑test uses these data summary measures to calculate a t‑statistic (t*) and a comparison t‑statistic (tc). The t* value is compared to the tc value and a conclusion reached as to whether there has been a statistically significant change in any indicator parameter.
The t‑statistic (tc), against which t* will be compared, necessitates finding tB and tm from standard (one‑tailed) tables where,
The t‑statistic (t*) is now compared with the comparison t‑statistic (tc) using the following decision‑rule:
If t* is equal to or larger than tc, then conclude that there most likely has been a significant increase in this specific parameter.
If t* is less than tc, then conclude that most likely there has not been a change in this specific parameter.
The t‑statistic for testing pH and similar monitoring parameters is constructed in the same manner as previously described except the negative sign (if any) is discarded and the caveat concerning the negative value is ignored. The standard (two‑tailed) tables are used in the construction tc for pH and similar monitoring parameters.
If t* is equal to or larger than tc, then conclude that there most likely has been a significant increase (if the initial t* had been negative, this would imply a significant decrease). If t* is less than tc, then conclude that there most likely has been no change.
A further discussion of the test may be found in Statistical Methods (6th Edition, Section 4.14) by G. W. Snedecor and W. G. Cochran, or Principles and Procedures of Statistics (1st Edition, Section 5.8) by R. G. D. Steel and J. H. Torrie.
Potential consequences: Fire, explosion, or heat generation; generation of flammable or toxic gases.
Group 2‑‑A wastes
