Virginia Administrative Code › Title 9 - ENVIRONMENT › Agency 20 - VIRGINIA WASTE MANAGEMENT BOARD › Chapter 60 - VIRGINIA HAZARDOUS WASTE MANAGEMENT REGULATIONS › Part III - Incorporation of Federal Regulations by Reference › Section 9VAC20-60-264 - Adoption of 40 CFR Part 264 by reference

Current through Register Vol. 40, No. 24, July 15, 2024
A. Except as otherwise provided, the
				  regulations of the United States Environmental Protection Agency set forth in
				  40 CFR Part 264 are hereby incorporated as part of the Virginia Hazardous Waste
				  Management Regulations. Except as otherwise provided, all material definitions,
				  reference materials and other ancillaries that are a part of 40 CFR Part 264
				  are also hereby incorporated as part of the Virginia Hazardous Waste Management
				  Regulations.
B. In all locations in
				  these regulations where 40 CFR Part 264 is incorporated by reference, the
				  following additions, modifications, and exceptions shall amend the incorporated
				  text for the purpose of its incorporation into these regulations:
1. Sections
				  40 CFR
				  264.1(d), 40 CFR 264.1(f),
				  40 CFR
				  264.149, 40 CFR 264.150,
				  40 CFR
				  264.301(l), and Appendix VI
				  are not included in the incorporation of 40 CFR Part 264 by reference and are
				  not a part of the Virginia Hazardous Waste Management Regulations.
2. In
				  40 CFR
				  264.1(g)(11) and wherever
				  elsewhere in Title 40 of the Code of Federal Regulations there is a listing of
				  universal wastes or a listing of hazardous wastes that are the subject of
				  provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended
				  by addition of the following sentence: "In addition to the hazardous wastes
				  listed here, the term "universal waste" and all lists of universal waste or
				  waste subject to provisions of 40 CFR Part 273 shall include those hazardous
				  wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous
				  Waste Management Regulations as universal wastes, in accordance with the terms
				  and requirements described."
3. In
				  40 CFR
				  264.12(a), the term
				  "Regional Administrator" shall mean the Regional Administrator of Region III of
				  the United States Environmental Protection Agency or his designee.
4. In
				  40 CFR
				  264.33, the following sentence shall be added
				  to the end of the paragraph: "A record of tests or inspections will be
				  maintained on a log at that facility or other reasonably accessible and
				  convenient location."
5. In
				  addition to the notifications required by
				  40 CFR
				  264.56(d)(2), notification
				  shall be made to the on-scene coordinator, the National Response Center, and
				  the Virginia Department of Emergency Management, Emergency Operations Center.
				  In the associated report filed under
				  40 CFR
				  264.56(i), the owner or
				  operator shall include such other information specifically requested by the
				  director, which is reasonably necessary and relevant to the purpose of an
				  operating record.
6. In
				  40 CFR
				  264.93, "hazardous constituents" shall
				  include constituents identified in 40 CFR Part 264 Appendix IX in addition to
				  those in 40 CFR Part 261 Appendix VIII.
7. The federal text at
				  40 CFR
				  264.94(a)(2) is not
				  incorporated by reference. The following text shall be substituted for
				  40 CFR
				  264.94(a)(2): "For any of
				  the constituents for which the USEPA has established a Maximum Contaminant
				  Level (MCL) under the National Primary Drinking Water Regulation, 40 CFR Part
				  141 (regulations under the Safe Drinking Water Act), the concentration must not
				  exceed the value of the MCL; or."
8. The owner or operator must submit the
				  detailed, written closure cost estimate described in
				  40 CFR
				  264.142 upon the written request of the
				  director.
9. In
				  40 CFR
				  264.143(b)(1), 40 CFR
				  264.143(c)(1),
				  40 CFR
				  264.145(b)(1), and 40 CFR
				  264.145(c)(1), any surety company issuing surety bonds to guarantee payment or
				  performance must be licensed pursuant to Chapter 10 (§
											38.2-1000
				  et seq.) of Title 38.2 of the Code of Virginia.
10. In
				  40 CFR
				  264.143(b), 40 CFR
				  264.143(c),
				  40 CFR
				  264.145(b), and 40 CFR
				  264.145(c), any owner or operator demonstrating financial assurance for closure
				  or post-closure care using a surety bond shall submit with the surety bond a
				  copy of the deed book page documenting that the power of attorney of the
				  attorney-in-fact executing the bond has been recorded pursuant to §
											38.2-2416
				  of the Code of Virginia.
11. Where
				  in
				  40 CFR
				  264.143(c)(5) the phrase
				  "final administrative determination pursuant to section 3008 of RCRA" appears,
				  it shall be replaced with "final determination pursuant to Chapter 40 (§
											2.2-4000 et
				  seq.) of Title 2.2 of the Code of Virginia."
12. The following text shall be substituted
				  for
				  40 CFR
				  264.143(d)(8): "Following a
				  final administrative determination pursuant to Chapter 40 (§
											2.2-4000 et
				  seq.) of Title 2.2 of the Code of Virginia that the owner or operator has
				  failed to perform final closure in accordance with the approved closure plan,
				  the applicable regulations or other permit requirements when required to do so,
				  the director may draw on the letter of credit."
13. The following text shall be substituted
				  for
				  40 CFR
				  264.143(e)(1): "An owner or
				  operator may satisfy the requirements of this section by obtaining closure
				  insurance which conforms to the requirements of this paragraph and submitting a
				  certificate of such insurance, along with a complete copy of the insurance
				  policy, to the department. An owner or operator of a new facility must submit
				  the certificate of insurance along with a complete copy of the insurance policy
				  to the department at least 60 days before the date on which the hazardous waste
				  is first received for treatment, storage or disposal. The insurance must be
				  effective before this initial receipt of hazardous waste. At a minimum, the
				  insurer must be licensed pursuant to Chapter 10 (§
											38.2-1000
				  et seq.) of Title 38.2 of the Code of Virginia."
14. The following text shall be substituted
				  for
				  40 CFR
				  264.143(f)(3)(ii), 40 CFR
				  264.145(f)(3)(ii), and
				  40 CFR
				  264.147(f)(3)(ii): "A copy
				  of the owner's or operator's audited financial statements for the latest
				  completed fiscal year; including 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"
15. In addition to the other requirements in
				  40 CFR
				  264.143(f)(3), 40 CFR
				  264.145(f)(3) and
				  40 CFR
				  264.147(f)(3), an owner or
				  operator must submit confirmation from the rating service that the owner or
				  operator has a current rating for its 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 if the owner or operator passes the financial test with a bond rating
				  as provided in
				  40 CFR
				  264.143(f)(1)(ii)(A).
16. The following text shall be substituted
				  for
				  40 CFR
				  264.143(h) and 40 CFR
				  264.145(h): "An owner or operator may use a financial assurance mechanism
				  specified in this section to meet the requirements of this section for more
				  than one facility in Virginia. Evidence of financial assurance submitted to the
				  department must include a list showing, for each facility, the EPA
				  Identification Number, name, address, and the amount of funds for closure or
				  post-closure assured by the mechanism. The amount of funds available through
				  the mechanism must be no less than the sum of funds that would be available if
				  a separate mechanism had been established and maintained for each facility. In
				  directing funds available through the mechanism for closure or post-closure
				  care of any of the facilities covered by the mechanism, the director may direct
				  only the amount of funds designated for that facility, unless the owner or
				  operator agrees to the use of additional funds available under the
				  mechanism."
17. In addition to the
				  requirements of
				  40 CFR
				  264.144, "the owner or operator must submit a
				  detailed, written post-closure cost estimate upon the written request of the
				  director."
18. The following text
				  shall be substituted for
				  40 CFR
				  264.144(b): "During the
				  active life of the facility and the post-closure period, 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 instruments used
				  to comply with
				  40 CFR
				  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 department as specified
				  in
				  40 CFR
				  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
				  40 CFR 264.142(b)(1) and
				  (2). The inflation factor is the result of
				  dividing the latest published annual Deflator by the Deflator for the previous
				  year.
a. The first adjustment is made by
				  multiplying the post-closure cost estimate by the inflation factor. The result
				  is the adjusted post-closure cost estimate.
b. Subsequent adjustments are made by
				  multiplying the latest adjusted post-closure cost estimate by the latest
				  inflation factor."
19.
				  The following text shall be substituted for
				  40 CFR
				  264.144(c): "During the
				  active life of the facility and the post-closure period, the owner or operator
				  must revise the post-closure cost estimate within 30 days after the director
				  has approved the request to modify the post-closure plan, if the change in the
				  post-closure plan increases the cost of post-closure care. The revised
				  post-closure cost estimate must be adjusted for inflation as specified in
				  264.144(b)."
20. Where in
				  40 CFR
				  264.145(c)(5) the phrase
				  "final administrative determination pursuant to section 3008 of RCRA" appears,
				  it shall be replaced with "final determination pursuant to Chapter 40 (§
											2.2-4000 et
				  seq.) of Title 2.2 of the Code of Virginia."
21. The following text shall be substituted
				  for
				  40 CFR
				  264.145(d)(9): "Following a
				  final administrative determination pursuant to Chapter 40 (§
											2.2-4000 et
				  seq.) of Title 2.2 of the Code of Virginia that the owner or operator has
				  failed to perform post-closure in accordance with the approved post-closure
				  plan, the applicable regulations, or other permit requirements when required to
				  do so, the director may draw on the letter of credit."
22. The following text shall be substituted
				  for
				  40 CFR
				  264.145(e)(1): "An owner or
				  operator may satisfy the requirements of this section by obtaining post-closure
				  insurance which conforms to the requirements of this paragraph and submitting a
				  certificate of such insurance to the department. An owner or operator of a new
				  facility must submit the certificate of insurance along with a complete copy of
				  the insurance policy to the department at least 60 days before the date on
				  which the hazardous waste is first received for treatment, storage or disposal.
				  The insurance must be effective before this initial receipt of hazardous waste.
				  At a minimum, the insurer must be licensed pursuant to Chapter 10 (§
											38.2-1000
				  et seq.) of Title 38.2 of the Code of Virginia."
23. In
				  40 CFR
				  264.147(a)(1)(ii), 40 CFR
				  264.147(b)(1)(ii),
				  40 CFR
				  264.147(g)(2), and 40 CFR
				  264.147(i)(4), the term "Virginia" shall not be substituted for the term
				  "State" or "States."
24. In
				  40 CFR
				  264.191(a), the compliance
				  date of January 12, 1988, applies only for HSWA tanks. For non-HSWA tanks, the
				  compliance date is November 2, 1997, instead of January 12, 1997.
25. In
				  40 CFR
				  264.191(c), the reference to
				  July 14, 1986, applies only to HSWA tanks. For non-HSWA tanks, the applicable
				  date is November 2, 1987, instead of July 14, 1986.
26. In
				  40 CFR
				  264.193, the federal effective dates apply
				  only to HSWA tanks. For non-HSWA tanks, the applicable date is November 2,
				  1997, instead of January 12, 1997.
27. A copy of all reports made in accordance
				  with
				  40
				  CFR 264.196(d) shall be sent
				  to the director and to the chief administrative officer of the local government
				  of the jurisdiction in which the event occurs. The sentence in
				  40
				  CFR 264.196(d)(1), "If the
				  release has been reported pursuant to 40 CFR Part 302, that report will satisfy
				  this requirement." is not incorporated by reference into these regulations and
				  is not a part of the Virginia Hazardous Waste Management Regulations.
28. The following text shall be substituted
				  for
				  40
				  CFR 264.570(a): "The
				  requirements of this subpart apply to owners and operators of facilities that
				  use new or existing drip pads to convey wood drippage, precipitation and/or
				  surface water run-off to an associated collection system. Existing HSWA drip
				  pads are those constructed before December 6, 1990, and those for which the
				  owner or operator has a design and has entered into a binding financial or
				  other agreement for construction prior to December 6, 1990. Existing non-HSWA
				  drip pads are those constructed before January 14, 1993, and those for which
				  the owner or operator has a design and has entered into a binding financial or
				  other agreements for construction prior to January 14, 1993. All other drip
				  pads are new drip pads. The requirement at
				  40 CFR
				  264.573(b)(3) to install a
				  leak collection system applies only to those HSWA drip pads that are
				  constructed after December 24, 1992, except for those constructed after
				  December 24, 1992, for which the owner or operator has a design and has entered
				  into a binding financial or other agreement for construction prior to December
				  24, 1992. For non-HSWA drip pads, the requirement at
				  40 CFR
				  264.573(b)(3) to install a
				  leak collection system applies only to those non-HSWA drip pads that are
				  constructed after September 8, 1993, except for those constructed after
				  September 8, 1993, for which the owner or operator has a design and has entered
				  into a binding financial or other agreement for construction prior to September
				  8, 1993."
29. In
				  40
				  CFR 264.1030(c), the
				  reference to
				  40 CFR
				  124.15 shall be replaced by a reference to
				  40
				  CFR 124.5.
30. The underground injection of hazardous
				  waste for treatment, storage or disposal shall be prohibited throughout the
				  Commonwealth of Virginia.
31. In
				  addition to the notices required in Subpart B and others parts of 40 CFR Part
				  264, the following notices are also required:
a. The owner or operator of a facility that
				  has arranged to receive hazardous waste from a foreign source (a source located
				  outside of the United States of America) shall notify the department and
				  administrator in writing at least four weeks in advance of the date the waste
				  is expected to arrive at the facility. Notice of subsequent shipments of the
				  same waste from the same foreign source is not required.
b. The owner or operator of a facility that
				  receives hazardous waste from an off-site source (except where the owner or
				  operator of the facility is also the generator of this waste) shall inform the
				  generator in writing that he has appropriate permits for, and will accept, the
				  waste that the generator is shipping. The owner or operator shall 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 shall notify the new owner or
				  operator in writing of the requirements contained in this section and
				  9VAC20-60-270. An owner or operator's failure to notify the new owner or
				  operator of the requirements in this section and 9VAC20-60-270 in no way
				  relieves the new owner or operator of his obligation to comply with all
				  applicable requirements.
d. Any
				  person responsible for the release of a hazardous substance from the facility
				  that poses an immediate or imminent threat to public health and who is required
				  by law to notify the National Response Center shall notify the department and
				  the chief administrative officer of the local government of the jurisdiction in
				  which the release occurs or their designees. In cases when the released
				  hazardous substances are hazardous wastes or hazardous waste constituents
				  additional requirements are prescribed by Subpart D of 40 CFR Part
				  264.
32. In
				  40 CFR
				  264.71, the terms "EPA" and "Environmental
				  Protection Agency" shall mean the United States Environmental Protection
				  Agency, and the reference to "system" means the United States Environmental
				  Protection Agency's national electronic manifest system.
33. Subpart FF of 40 CFR Part 264 shall not
				  be incorporated into this chapter.
34. Requirements for mercury-containing lamp
				  recycling facilities. The following requirements apply to all facilities that
				  recover or reclaim mercury from lamps.
a. All
				  owners and operators of mercury-containing lamp recycling facilities shall:
(1) Have established markets for the
				  utilization of reclaimed materials and be able to identify these markets to the
				  department;
(2) Only introduce into
				  the processing equipment lamps or devices for which the equipment was
				  specifically designed to process and operate and maintain processing equipment
				  consistent with the equipment manufacturer's specifications; and
(3) Not speculatively accumulate the
				  materials.
b. If a
				  mercury-containing lamp recycling facility's processed materials are to be
				  delivered to a facility other than a mercury reclamation facility, the owner or
				  operator shall:
(1) Demonstrate proper
				  equipment operation and efficiency by sampling and analytical testing of the
				  processed materials. The testing shall ensure that such processed materials (i)
				  have less than three parts per million of "average mercury" during each
				  consecutive 12-week time period of operations ("average mercury" shall be
				  calculated pursuant to subdivision 34 b (3) of this subsection); (ii) have less
				  than five parts per million of total mercury as reported in the "weekly
				  composite sample of process operations" ("weekly composite sample of process
				  operations" shall be calculated pursuant to subdivision 34 b (3) of this
				  subsection); (iii) are not a hazardous waste; and (iv) comply with 40 CFR Part
				  268, if applicable.
(2) Retest,
				  reprocess, or deliver to a mercury reclamation facility processed materials
				  that are in excess of the allowable levels of mercury specified in subdivision
				  34 b (1) of this subsection.
(3)
				  Sample and perform analytical testing of the processed material for total
				  mercury as follows:
(a) Facility operators
				  shall take daily physical samples of the mercury-containing materials at the
				  point at which they exit the processing equipment. These samples shall be
				  representative of the materials processed during that day.
(b) At the beginning of each week, the prior
				  week's daily samples shall be consolidated into one weekly sample, which shall
				  be submitted for chemical analysis of total mercury content using an approved
				  EPA methodology. At least three separate daily samples shall be taken in order
				  to obtain a weekly sample. When a facility is not operating at least three days
				  during a week, that week will be dropped out of the 12-week rolling average as
				  calculated under subdivision 34 b (3) (c) of this subsection. However, all
				  daily samples that are in a week that has been dropped out shall be counted
				  towards the very next weekly sample that is included in a 12-week rolling
				  average. The result of this analysis shall be considered the "weekly composite
				  sample of process operations."
(c)
				  The "average mercury" value calculation shall be the rolling average of weekly
				  composite sample results from samples taken during the most recent 12-week time
				  period with each new weekly composite sample result replacing the oldest sample
				  result that was used in the previous 12-week period.
c. Mercury-containing lamp
				  recycling facilities shall ensure that the separated materials that are
				  generated from their operations are suitable and safe for their intended end
				  use and shall bear the burden of responsibility for the safety of these
				  materials sold or delivered from the operations. Facilities shall notify in
				  writing receiving sources, other than mercury reclamation facilities, of the
				  amount and type of hazardous substances present in the processed materials as
				  demonstrated by laboratory analysis.
d. Operating requirements. Mercury-containing
				  lamp recycling facilities shall be operated in accordance with the following
				  requirements:
(1) Mercury-containing lamp
				  recycling facilities shall control mercury emissions through the use of a
				  single air handling system with redundant mercury controls and comply with the
				  following:
(a) The owner or operator shall
				  operate, monitor, and maintain an air handling system with redundant air
				  pollution control equipment in order to reduce the mercury content of the air
				  collected during the volume reduction and mercury recovery and reclamation
				  processes.
(b) Redundant air
				  pollution control equipment shall incorporate at least two carbon filters or
				  equivalent technology arranged in a series so that the air passes through both
				  filters before being released. In the event of a single filter failure, each
				  filter shall be designed to ensure compliance with the risk-based
				  protectiveness standards for mercury vapor provided in subdivision 34 e of this
				  subsection.
(c) A sample of air
				  shall be collected after the first carbon filter (or equivalent technology) and
				  upstream of the second once each operating day while mercury-containing lamps
				  or devices are being processed. The mercury content of the sample shall be
				  determined for comparison with the risk-based protectiveness standards provided
				  in subdivision 34 e of this subsection.
(d) The owner or operator shall operate,
				  monitor, and maintain the air pollution control equipment in such a manner as
				  not to exceed the risk-based protectiveness standards under subdivision 34 e of
				  this subsection for mercury vapor downstream of the first carbon filter (or
				  equivalent technology) and upstream of the second carbon filter.
(2) The area in which the
				  processing equipment is located shall be fully enclosed and kept under negative
				  pressure while processing mercury-containing lamps or devices.
e. Testing for mercury releases
				  from lamp crushing units shall be performed using a mercury vapor analyzer that
				  has been approved for the application by the U.S. Occupational Safety and
				  Health Administration or the Virginia Department of Labor and Industry or a
				  comparable device that has been calibrated by the manufacturer or laboratory
				  providing the equipment. Mercury vapor monitors used for testing must be
				  capable of detecting mercury at the applicable concentrations provided below or
				  lower in air and must be equipped with a data recording device to provide a
				  record of measurements taken. Mercury monitoring data shall be documented and
				  available for inspection in accordance with subdivision 34 g of this
				  subsection. The acute exposure protectiveness standard is 300
				  µg/m3 for a 10-minute exposure with the
				  understanding that the acute exposure protectiveness standard is considered a
				  ceiling value and at no time during bulb crushing operation will the air
				  concentrations of mercury exceed 300 µg/m3.
				  The following are risk-based protectiveness standards at a distance of five
				  feet from the bulb crushing unit:
Monthly Bulb Crushing Duration (X
								  Hours/Month)*
Chronic Exposure Air Emission Limit
								  (µg/m3)
Acute Exposure Air Emission Limit
								  (µg/m3)
X = 32
1.314skin
																		µg/m3
300 µg/m3
8 < X < 32
6.317 skin
																		µg/m3
300 µg/m3
X = 8
27.375 skin
																		µg/m3
300 µg/m3
*Monthly crushing duration is determined based on
								  the maximum number of hours that bulb crushing occurred in any one month over
								  the last 12-month period.
f.
				  Closure. Mercury-containing lamp recycling facilities must prepare and maintain
				  a closure plan conforming to the requirements of 40 CFR Part 264, Subpart G as
				  adopted by reference in this section. Financial assurance shall be provided to
				  the department in accordance with 40 CFR Part 264, Subpart H as adopted by
				  reference in this section.
g.
				  Recordkeeping requirements. The owner or operator of a mercury-containing lamp
				  recycling facility shall maintain records of monitoring information that (i)
				  specify the date, place, and time of measurement; (ii) provide the methodology
				  used; and (iii) list the analytical results. The records maintained shall
				  include all calibration and maintenance records of monitoring equipment. The
				  owner or operator shall retain records of all monitoring data and supporting
				  information available for department inspection for a period of at least three
				  years from the date of collection.
35. The following additional information is
				  required from owners or operators of facilities that store or treat hazardous
				  waste in waste piles if an exemption is sought to Subpart F of 40 CFR Part 264
				  and
				  40 CFR
				  264.251 as provided in
				  40
				  CFR 264.250(c) and 40 CFR
				  264.90(b)(2):
a. An explanation of how the
				  standards of
				  40
				  CFR 264.250(c) will be
				  complied with; and
b. Detailed
				  plans and an engineering report describing how the requirements of
				  40
				  CFR 264.90(b)(2) will be
				  met.