MEMORANDUM
SUBJECT:
Review
of
Comments
on
Independent
Registered
Professional
Engineer
Changes
Proposed
in
the
Burden
Reduction
Rule
and
Addressed
in
the
Subsequent
NODA.

FROM:
Carolyn
L.
Cunningham
TO:
Record
Comments
in
Favor
of
Allowing
Certified
Hazardous
Materials
Managers
(
CHMM)
to
Make
Certifications
Many
comments
supported
the
proposed
Burden
Reduction
preamble
language
and
are
in
favor
of
allowing
Certified
Hazardous
Materials
Managers
(
CHMM)
to
make
certifications
under
the
RCRA
program.
These
comments
can
be
found
in
the
docket
for
this
rule
EPA­
HQ­
RCRA­
1999­
0031.

Throughout
the
RCRA
regulations,
there
are
various
requirements
for
the
services
of
an
independent,
qualified,
registered,
professional
engineer
to
certify
the
effectiveness
of
the
design
and
operation
of
various
hazardous
waste
management
units.
We
proposed
to
add
CHMM
as
professionals
qualified
to
make
these
certifications
on
a
number
of
selected
certifications.
This
proposed
change
was
a
result
of
comments
received
on
our
June
18,
1999
NODA
(
64
FR
32859).

In
response
to
this
proposal,
the
Agency
received
significant
comment,
primarily
requesting
that
we
expand
the
category
of
persons
allowed
to
provide
the
various
certifications.
Commenters
argued
that
we
were
being
arbitrary
in
proposing
to
allow
only
two
professional
disciplines
(
i.
e.,
CHMM
and
professional
engineers)
to
certify
hazardous
waste
management
operations.
Conversely,
professional
engineers
and
many
States
strongly
opposed
the
proposed
change
in
the
regulatory
requirements.
They
suggested
that
CHMM
were
not
qualified
to
certify
the
design,
construction,
and
structural
integrity
of
hazardous
waste
management
units.

In
addition,
numerous
States
also
opposed
the
change
on
the
grounds
that
their
State
laws
allow
only
licensed
engineers
to
make
these
certifications.
State
comments
also
pointed
out
that
State
licensing
boards
can
investigate
complaints
of
negligence
or
incompetence,
on
the
part
of
professional
engineers,
and
may
impose
fines
and
other
disciplinary
actions
such
as
cease­
anddesist
orders
or
license
revocation.
According
to
commenters,
similar
controls
do
not
exist
for
other
professions.
This
personal
liability
of
the
professional
engineer
is
one
of
the
reasons
why
State
commenters
supported
the
idea
that
RCRA
certifications
should
only
be
done
by
licensed
professional
engineers.

We
are
persuaded
by
the
arguments
presented
by
the
States
and
are
not
going
forward
with
the
proposed
change.
Comments
Against
Allowing
Certified
Hazardous
Materials
Managers
(
CHMM)
to
Make
the
Certifications.

Other
commenters
were
against
the
proposed
Burden
Reduction
preamble
language
that
was
in
favor
of
allowing
Certified
Hazardous
Materials
Managers
(
CHMM)
to
make
certifications
under
the
RCRA
program.
These
comments
can
be
found
in
EPA­
HQ­
RCRA­
1999­
0031.

In
response
to
the
proposal,
the
Agency
received
many
comments
on
this
issue,
some
of
which
opposed
the
proposed
allowance
for
CHMMs
to
perform
inspections
and
certifications
that
are
currently
performed
by
professional
engineers.
As
such,
the
professional
engineers
were
strongly
opposed
to
the
proposal.
They
suggested
that
Certified
Hazardous
Materials
Managers
are
not
qualified
to
certify
the
design,
construction,
and
structural
integrity
of
hazardous
waste
management
units.

Several
states
also
suggested
that
the
certifications
involve
the
design,
installation,
and
assessment
of
structures,
and
that
their
state
laws
allow
only
licensed
professional
engineers
to
make
these
kinds
of
certification.
The
state
comments
also
indicated
that
their
licensing
boards
can
investigate
complaints
of
negligence
or
incompetence,
and
may
impose
fines
and
other
disciplinary
actions
such
as
cease­
and­
desist
orders
or
license
revocation.
This
personal
liability
of
the
professional
engineer
is
one
of
the
reasons
why
the
State
comments
support
the
concept
that
RCRA
certifications
should
only
be
done
by
state­
licensed
professional
engineers
or
professional
geologists.

We
are
persuaded
by
the
arguments
presented
by
the
states
and
are
not
going
forward
with
the
proposed
change.
The
reader
is
also
referred
to
the
preamble
language
for
this
rule
as
well
as
the
OMB
correspondence
document
that
is
also
a
part
of
the
rulemaking
docket
for
additional
information.

Comments
Regarding
Allowing
a
Certification
by
the
American
Society
for
Testing
and
Materials
(
ASTM)
to
Make
the
Certifications
Commenters
also
addressed
the
use
of
organizations
that
meet
the
criteria
for
assessing
certification
programs
for
environmental
professionals
established
by
the
American
Society
for
Testing
and
Materials
(
ASTM).
These
comments
can
be
found
in
EPA­
HQ­
RCRA­
1999­
0031.

Commenters
suggested
that
rather
than
deciding
which
professions
are
qualified
to
make
certifications,
we
should
establish
an
environmental
professional
performance
standard
based
on
membership
in
a
recognized
professional
organization.
In
response
to
these
comments,
we
solicited
comment
in
our
October
29,
2003
NODA
to
allow
professionals
accredited
by
organizations
meeting
the
American
Society
for
Testing
and
Materials
(
ASTM)
E1929­
98,
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Engineers
:
Accreditation
Criteria
to
conduct
a
limited
number
of
certifications
including:
(
1)
Section
264.573(
a)(
4)(
ii),(
g)
Drip
Pads.
Design
and
operating
requirements;
(
2)
Section
265.443(
a)(
4)(
ii),(
g)
Drip
Pads.
Design
and
operating
requirements;
(
3)
Section
264.574(
a)
Drip
Pads.
Inspections;
(
4)
Section
265.444(
a)
Drip
Pads.
Inspections;
and
(
5)
Section
266.111(
e)(
2)
Boilers
and
Industrial
Furnaces.
Direct
transfer
equipment
­
requirements
prior
to
meeting
secondary
containment
requirements.

Comments
on
the
change
described
in
the
NODA
were
mixed.
Some
commenters
supported
this
change
in
qualifications
for
a
selected
few
certifications,
while
a
number
of
states
and
professional
organizations
still
strongly
opposed
allowing
anyone
other
than
a
professional
engineer
to
perform
these
certifications.
We
are
persuaded
by
the
arguments
presented
by
the
states
and
are
not
going
forward
with
this
proposed
change.
The
reader
is
also
referred
to
the
preamble
discussion
for
additional
information
as
well
as
the
document
in
the
docket
addressing
correspondence
between
OMB
and
EPA
during
the
final
review
process.

Comments
Regarding
Using
a
Professional
Geologist
to
Make
Certifications
Numerous
commenters
supported
the
idea
that
a
"
professional
geologist"
should
be
allowed
to
perform
certain
RCRA
inspections
and
certifications
in
cases
where
professional
engineers
are
currently
required
to
do
such
activities.

Several
commenters
stated
that
in
cases
where
inspections
and
certifications
are
required
to
be
performed
by
professional
engineers
(
and
under
the
proposed
preamble
language,
Certified
Hazardous
Materials
Managers
(
CHMM)),
it
should
be
allowable
for
geologists
and
geoscientists
to
make
such
determinations.
They
believe
that
disallowing
geologists
and
geoscientists
creates
a
monopoly
for
engineers
(
and,
as
proposed
but
not
finalized,
CHMM)
and
would
reduce
or
eliminate
the
opportunity
for
equally
qualified
geologists
and
geoscientists
to
conduct
and
manage
certain
projects
under
RCRA.

The
Agency
did
not
propose
to
allow
geologists
and
geoscientists
to
make
certain
RCRA
determinations,
thus
the
issue
is
outside
the
scope
of
the
final
Burden
Reduction
rule.
In
fact,
in
the
final
rule,
we
made
no
changes
to
the
existing
requirements
that
professional
engineers
must
be
the
ones
to
do
certain
RCRA
inspections
and
certifications.

Comments
For
Retaining
the
Term
"
Independent"
in
the
Certification
Requirements
A
number
of
commenters
were
in
support
of
the
proposed
Burden
Reduction
Preamble
language
that
certain
RCRA
inspections
and
certifications
be
performed
by
"
independent,"
professional
engineers.
We
solicited
comment
on
eliminating
the
requirement
that
the
certifier
be
"
independent,"
reasoning
that
we
could
rely
on
the
professional
standards
of
the
certifier
to
ensure
accurate
certifications.
This
could
potentially
save
expenses
for
companies
with
in­
house
engineers,
since
they
would
not
have
to
hire
outside
consultants.
Several
commenters
strongly
argued
that
the
word
"
independent"
should
be
retained
because
an
independent
review
and
certification
avoids
any
potential
of
conflict
of
interest.
Commenters
stated
that
an
employee
of
a
facility
would
more
likely
have
a
biased
approach
to
review
and
certification,
and
that
State
agencies
would
have
less
confidence
in
the
accuracy
and
quality
of
review
and
certification.
Furthermore,
the
commenters
argued
that
the
public
would
have
reduced
confidence
in
the
accuracy
and
meaning
of
the
engineering
review
and
certification
if
it
was
conducted
by
an
employee
of
the
facility.
The
public
would
more
likely
suspect
a
conflict
of
interest
and
demand
a
more
rigorous
review
by
State
agencies.

Commenters
also
noted
that
a
similar
change,
regarding
whether
to
retain
the
term
"
independent"
for
professional
engineers
certifying
closure,
was
proposed
by
EPA
on
March
19,
1985
(
50
FR
11074).
After
receiving
public
comment,
a
final
rule
was
issued
on
May
2,1986
with
the
term
"
independent"
retained.
In
the
preamble
to
the
May
2,
1986
final
rule,
we
stated
that,
because
certification
of
final
closure
is
the
final
step
in
the
closure
process
and
triggers
the
release
of
the
owner
or
operator
from
financial
responsibility
requirements
for
closure
and
third
party
liability
coverage
requirements,
we
believed
that
the
certification
should
be
made
by
a
person
who
is
least
subject
to
conscious
or
subconscious
pressures
to
certify
to
the
adequacy
of
a
closure
that,
in
fact,
is
not
in
accordance
with
the
approved
closure
plan.
Commenters
also
noted
that
in
the
October
9,
1991
Federal
Register,
EPA
addressed
concerns
regarding
proposed
language
that
would
have
allowed
a
"
qualified
party"
to
perform
closure
and
post
closure
certification.
In
that
FR
notice,
we
stated
on
page
51103:

While
Agency
agrees
with
commenters
that
objective
closure
and
post­
closure
certifications
are
essential
for
avoiding
any
potential
conflicts
of
interest
and
ensuring
protection
of
human
health
and
the
environment
and
that
more
specific
requirements
concerning
the
qualification
of
the
certifying
party
are
necessary
to
ensure
the
adequacy
of
the
certification.
We
also
have
been
convinced
that
the
objectivity
of
a
PE
is
inherent
in
the
licensing
of
the
individual
by
the
state.
We,
therefore,
are
requiring
in
this
final
rule
that
certifications
be
obtained
from
qualified,
Professional
Engineers.
The
reader
is
referred
to
the
preamble
discussion
in
the
Burden
Reduction
rule
for
additional
information
on
this
point.

Comments
Against
Deleting
the
Term
"
Independent"
in
the
Certification
Requirements
A
number
of
commenters
were
against
requiring
that
professional
engineers
making
certain
RCRA
inspections
and
certifications
be
"
independent."
We
solicited
comment
on
eliminating
the
requirement
that
the
certifier
be
"
independent,"
reasoning
that
we
could
rely
on
the
professional
standards
of
the
certifier
to
ensure
accurate
certifications.
This
could
potentially
save
expenses
for
companies
with
in­
house
engineers,
since
they
would
not
have
to
hire
outside
consultants.

Commenters
on
this
issue
stated
that
all
professional
engineers,
whether
employed
by
the
facility
be
inspected
or
by
an
independent
firm,
are
bound
by
a
code
of
professional
responsibility.
Furthermore,
their
competency
is
reviewed
by
state
engineering
licensure
boards.
Therefore,
there
should
be
no
presumption
that
a
professional
engineer
who
is
an
employee
rather
than
an
independent
consultant
is
less
likely
to
exercise
sound
and
independent
engineering
judgment.
In
addition,
commenters
argued
that
it
takes
a
lot
of
time
to
hire
an
independent
professional
engineer,
which
adds
to
the
administrative
burden.

We
also
received
comments
strongly
supporting
that
we
retain
the
requirement
that
professional
engineers
be
independent,
because
an
independent
review
and
certification
avoids
any
potential
of
conflict
of
interest.
Commenters
stated
that
an
employee
of
a
facility
would
more
likely
have
a
biased
approach
to
review
and
certification,
and
that
State
agencies
would
have
less
confidence
in
the
accuracy
and
quality
of
review
and
certification.
Furthermore,
the
commenters
argued
that
the
public
would
have
reduced
confidence
in
the
accuracy
and
meaning
of
the
engineering
review
and
certification
if
it
was
conducted
by
an
employee
of
the
facility.
The
public
would
more
likely
suspect
a
conflict
of
interest
and
demand
a
more
rigorous
review
by
State
agencies.

Upon
further
analysis,
we
have
decided
to
delete
the
independent
qualification
for
certification
made
by
a
professional
engineer.
EPA
continues
to
believe
that
this
proposed
modification
retains
the
most
important
requirements:
that
the
engineer
is
qualified
to
perform
the
task
and
is
a
professional
engineer(
i.
e.,
licensed
to
practice
engineering
under
the
title
Professional
Engineer.)
We
believe
that
a
professional
engineer
regardless
of
whether
he/
she
is
independent
is
able
to
give
fair
and
technical
review
because
of
the
programs
established
by
the
state
licensing
boards.
It
is
not
clear
to
us
that
an
in­
house
engineer
faces
a
greater
economic
temptation
than
an
independent
engineer
seeking
to
cultivate
an
ongoing
relationship
with
a
client.
This
is
a
central
mission
of
state
licensing
boards.
If
certifications
are
provided
when
the
facts
to
do
not
warrant
certification,
the
professional
engineer
is
subject
to
penalties,
including
the
loss
of
license
and
the
possibility
of
fines.
Furthermore,
we
are
convinced
that
the
change
to
the
certification
requirements
will
allow
facilities
to
reduce
burden
without
compromising
environmental
safety
by
using
in­
house
expertise.
Professional
engineers
employed
by
a
facility
are
more
familiar
with
its
own
particular
situation
and
are
in
a
position
to
provide
more
on­
site
review
and
oversight
of
the
activity
being
certified.

Preamble
Language
Providing
Justification
and
Summary
of
Comments
The
following
text
is
excerpted
from
the
Burden
Reduction
preamble
and
provides
additional
discussion
of
the
changes
we
are
making
to
the
certification
requirements.

Changes
to
the
Professional
Engineer
Certification
Requirements.

Throughout
the
RCRA
regulations,
there
are
various
requirements
for
the
services
of
an
independent,
qualified,
registered,
professional
engineer
to
certify
the
effectiveness
of
the
design
and
operation
of
various
hazardous
waste
management
units.
We
proposed
to
add
Certified
Hazardous
Materials
Managers
(
CHMMs)
as
professionals
qualified
to
make
selected
certifications.
This
proposed
change
was
a
result
of
comments
received
on
our
June
18,
1999
NODA
(
64
FR
32859).
In
response
to
this
proposal,
the
Agency
received
significant
comment,
primarily
requesting
that
we
expand
the
category
of
persons
allowed
to
provide
the
various
certifications.
Commenters
argued
that
we
were
being
arbitrary
in
proposing
to
allow
only
two
professional
disciplines
(
i.
e.,
CHMMs
and
professional
engineers)
to
certify
hazardous
waste
management
operations.
Conversely,
professional
engineers
strongly
opposed
the
proposed
change
in
the
regulatory
requirements.
They
suggested
that
CHMMs
were
not
qualified
to
certify
the
design,
construction,
and
structural
integrity
of
hazardous
waste
management
units.

In
addition,
numerous
states
opposed
the
change
on
the
grounds
that
their
state
laws
allow
only
licensed
engineers
to
make
these
certifications.
State
comments
also
pointed
out
that
state
licensing
boards
can
investigate
complaints
of
negligence
or
incompetence,
on
the
part
of
professional
engineers,
and
may
impose
fines
and
other
disciplinary
actions
such
as
cease­
anddesist
orders
or
license
revocation.
According
to
commenters,
similar
controls
do
not
exist
for
1
After
publication
of
the
October
29,
2003
NODA,
(
See
68
FR
61662),
EPA
determined
that
the
certification
required
by
§
266.111(
e)(
2)
had
to
be
made
by
August
21,
1992.
As
such,
the
Agency
is
not
pursuing
a
change
to
this
requirement
in
today's
rulemaking,
obviously
because
the
date
has
passed.
other
professions.
This
personal
liability
of
the
professional
engineer
is
one
of
the
reasons
why
state
commenters
supported
the
idea
that
RCRA
certifications
should
only
be
done
by
licensed
professional
engineers.

Other
commenters
suggested
that,
rather
than
deciding
which
professions
are
qualified
to
make
certifications,
we
should
establish
an
environmental
professional
performance
standard
based
on
membership
in
a
recognized
professional
organization.
In
response
to
these
comments,
we
solicited
comment
in
our
October
29,
2003
NODA
to
allow
professionals
accredited
by
organizations
meeting
the
American
Society
for
Testing
and
Materials
(
ASTM)
E1929­
98,
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Engineers
:
Accreditation
Criteria
to
conduct
a
limited
number
of
certifications,
including:
(
1)
Section
264.573(
a)(
4)(
ii)(
g),
Drip
Pads,
Design
and
operating
requirements;
(
2)
Section
265.443(
a)(
4)(
ii)(
g),
Drip
Pads,
Design
and
operating
requirements;
(
3)
Section
264.574(
a),
Drip
Pads,
Inspections;
(
4)
Section
265.444(
a),
Drip
Pads,
Inspections;
and
(
5)
Section
266.111(
e)(
2),
Boilers
and
Industrial
Furnaces,
Direct
transfer
equipment
­
requirements
prior
to
meeting
secondary
containment
requirements.
1
Comments
to
the
change
described
in
the
NODA
were
mixed.
Some
commenters
supported
this
change
in
qualifications
for
selected
certifications,
while
a
number
of
states
and
professional
organizations
still
strongly
opposed
allowing
anyone
other
than
a
professional
engineer
to
perform
these
certifications.
While
the
Agency
believes
that
added
flexibility
to
the
RCRA
regulations
is
a
goal
worth
pursuing,
in
this
case,
we
are
persuaded
by
the
arguments
presented
by
states
with
regard
to
these
certifications
and
are
not
going
forward
with
these
changes
at
this
time.
Certifications
for
drip
pads
involve
certifying
engineering
designs,
drawings,
plans
and
other
engineering
details,
involving
structural
and
hydraulic
and
other
functions.
As
such,
we
believe
that
while
there
may
be
professionals
other
than
professional
engineers
qualified
to
make
these
certifications,
it
is
imperative
that
the
goals
of
human
health
and
the
environmental
protection
are
maintained.
In
reviewing
the
comments,
we
are
not
convinced
that
all
environmental
professionals
certified
by
the
ASTM
standard
would
be
qualified
to
perform
these
engineering
evaluations.
To
this
end,
we
are
not
going
forward
with
allowing
the
changes
to
the
drip
pad
certification
requirements
that
would
allow
environmental
professionals
recognized
by
a
certification
program
that
is
compliant
with
ASTM
E­
1929­
98
Standard
Practice
for
the
Assessment
of
Certification
Programs
for
Environmental
Professionals:
Accreditation
Criteria.

Although
the
Agency
was
not
persuaded
that
ASTM
board
certified
environmental
professionals,
including
CHMMs,
should
be
allowed
to
make
the
required
RCRA
certifications
that
were
the
subject
of
this
rulemaking,
the
Agency
wants
to
make
it
clear
that
facilities
are
still
permitted
to
utilize
qualified
professionals
who
may
not
be
professional
engineers
in
performing
the
analyses
that
underlie
these
certifications.
Facilities
can
potentially
lower
their
costs
by
utilizing
the
flexibility
to
employ
others
as
part
of
the
certification
requirement.
For
example,
as
part
of
the
2
For
example,
in
the
All
Appropriate
Inquiries
(
AAI)
rule
published
on
November
1,
2005,
(
70
CFR
66070)
EPA
sets
standards
for
CERCLA
liability
protection
by
establishing
criteria
that
prospective
property
owners
must
use
in
the
inquiries
they
conduct
into
the
previous
ownership,
uses,
and
environmental
conditions
of
a
property
prior
to
acquiring
the
property.
The
AAI
rule
differs
from
the
RCRA
burden
reduction
rule
in
that
AAI
does
not
in
any
way
require
the
environmental
professional
to
render
any
judgment
or
opinion
regarding
RCRA
or
CERCLA
compliance
or
liability.
AAI
requirements
include
research
activities
and
a
site
investigation
similar
to
a
Phase
I
environmental
site
assessment.
It
does
not
include
compliance
evaluation
or
an
assessment
of
engineering
or
technical
requirements
(
which
may
inherently
require
the
expertise
of
an
engineer
or
geologist).
closure
and
post
closure
requirements,
some
CHMMs
may
be
qualified
to
make
certain
determinations
associated
with
these
certifications.
to
determine
whether
operations
at
the
site
will
minimize
hazards.

The
Agency
is
sympathetic
to
the
large
number
of
comments
by
the
CHMMs
and
other
environmental
professionals
about
unnecessary
restrictions
in
the
marketplace.
However,
EPA
is
retaining
the
professional
engineering
certification,
in
part,
to
allay
state
concerns
about
the
need
to
monitor
and
control
the
activities
of
personnel
that
are
now
subject
to
state
licensure
control.
Given,
however,
additional
experience
by
the
Agency
with
the
utilization
of
other
environmental
professionals,
EPA
may
re­
examine
this
issue
in
the
future.
2
We
Are
Removing
the
"
Independent"
and
"
Registered"
Requirements
for
Selected
Certifications.

Some
commenters
to
the
proposed
rule
suggested
that
we
change
the
certification
requirements
by
amending
the
qualifications
required
for
the
certification
from
"
independent,
qualified,
registered,
professional
engineer"
to
"
qualified
professional
engineer."
That
is,
the
commenters
suggested
it
was
not
necessary
for
the
professional
engineer
to
be
independent
or
registered.
Commenters
argued
that
the
term
"
qualified
professional
engineer"
retains
the
most
important
components
of
the
requirement:
(
1)
that
the
engineer
be
qualified
to
perform
the
task;
and
(
2)
that
she
or
he
be
a
professional
engineer
(
following
a
code
of
ethics
and
the
potential
of
losing
his/
her
license
for
negligence).

In
the
October
29,
2003
NODA
(
68
FR
61662),
EPA
also
solicited
comment
on
changing
the
qualifications
for
who
can
certify
the
design,
operation
and
closure
of
specific
hazardous
waste
management
units
from
"
independent,
qualified,
registered,
professional
engineer"
to
"
qualified
professional
engineer."
We
solicited
comment
on
eliminating
the
requirement
that
the
certifier
be
"
independent,"
reasoning
that
we
could
rely
on
the
professional
standards
of
the
certifier
to
ensure
accurate
certifications.
This
could
potentially
save
expenses
for
companies
with
in­
house
engineers,
since
they
would
not
have
to
hire
outside
consultants.
State
commenters
strongly
argued
that
the
word
"
independent"
should
be
retained
because
an
independent
review
and
certification
avoids
any
potential
of
conflict
of
interest.
Commenters
stated
that
an
employee
of
a
facility
would
more
likely
have
a
biased
approach
to
review
and
certification,
and
that
state
agencies
would
have
less
confidence
in
the
accuracy
and
quality
of
review
and
certification.
Furthermore,
the
commenters
argued
that
the
public
would
have
reduced
confidence
in
the
accuracy
and
meaning
of
the
engineering
review
and
certification
if
it
was
conducted
by
an
employee
of
the
facility.
The
public
would
more
likely
suspect
a
conflict
of
interest
and
demand
a
more
rigorous
review
by
state
agencies.
Commenters
also
noted
that
a
similar
change,
regarding
whether
to
retain
the
term
"
independent"
for
professional
engineers
certifying
closure,
was
proposed
by
EPA
on
March
19,
1985
(
50
FR
11074).
After
receiving
public
comment,
a
final
rule
was
issued
on
May
2,1986
with
the
term
"
independent"
retained.
In
the
preamble
to
the
May
2,
1986
final
rule,
we
stated
that,
because
certification
of
final
closure
is
the
final
step
in
the
closure
process
and
triggers
the
release
of
the
owner
or
operator
from
financial
responsibility
requirements
for
closure
and
third
party
liability
coverage
requirements,
we
believed
that
the
certification
should
be
made
by
a
person
who
is
least
subject
to
pressures
to
certify
to
the
adequacy
of
a
closure
that,
in
fact,
is
not
in
accordance
with
the
approved
closure
plan.
Commenters
also
noted
that
in
the
October
9,
1991
Federal
Register,
EPA
addressed
concerns
regarding
proposed
language
that
would
have
allowed
a
"
qualified
party"
to
perform
closure
and
post
closure
certification.
In
that
FR
notice,
we
stated
on
page
51103:

The
Agency
agrees
with
commenters
that
objective
closure
and
post­
closure
certifications
are
essential
for
avoiding
any
potential
conflicts
of
interest
and
ensuring
protection
of
human
health
and
the
environment
and
that
more
specific
requirements
concerning
the
qualification
of
the
certifying
party
are
necessary
to
ensure
the
adequacy
of
the
certification.
We,
therefore,
are
requiring
in
this
final
rule
that
certifications
be
obtained
from
independent,
registered,
professional
engineers
(
i.
e.,
registered
professional
engineers
not
in
the
employ
of
the
owner
or
operator),
consistent
with
requirements
under
subtitle
C
and
other
federally
mandated
certification
programs
(
e.
g.,
Clean
Water
Act
grants).

Upon
further
analysis
and
reflection,
we
have
decided
to
delete
the
independent
qualification
for
certification
made
by
a
professional
engineer.
EPA
continues
to
believe
that
this
proposed
modification
retains
the
most
important
requirements:
that
the
engineer
is
qualified
to
perform
the
task
and
is
a
professional
engineer
(
i.
e.,
licensed
to
practice
engineering
under
the
title
Professional
Engineer.)
We
believe
that
a
professional
engineer,
regardless
of
whether
he/
she
is
independent
is
able
to
give
fair
and
technical
review
because
of
the
programs
established
by
the
state
licensing
boards.
It
is
not
clear
to
us
that
an
in­
house
engineer
faces
a
greater
economic
temptation
than
an
independent
engineer
seeking
to
cultivate
an
ongoing
relationship
with
a
client.
This
is
a
central
mission
of
state
licensing
boards.
If
certifications
are
provided
when
the
facts
to
do
not
warrant
certification,
the
professional
engineer
is
subject
to
penalties,
including
the
loss
of
license
and
the
possibility
of
fines.
Furthermore,
we
are
convinced
that
the
change
to
the
certification
requirements
will
allow
facilities
to
reduce
burden
without
compromising
environmental
safety
by
using
in­
house
expertise.
Professional
engineers
employed
by
a
facility
are
more
familiar
with
its
own
particular
situation
and
are
in
a
position
to
provide
more
on­
site
review
and
oversight
of
the
activity
being
certified.

We
also
solicited
comment
on
removing
the
term
"
registered,"
explaining
that
based
on
our
understanding
of
the
term
"
registered"
(
one
who
is
licensed
by
a
state)
the
terms
"
registered,"
"
licensed"
and
"
professional"
mean
the
same
thing
in
the
case
of
certifying
the
design,
operation
and
closure
of
hazardous
waste
management
units.
Thus,
using
the
terms
"
registered"
and
"
professional"
when
defining
the
qualification
of
an
engineer,
in
this
context,
is
redundant.
While
the
majority
of
the
comments
supported
the
change,
agreeing
that
the
term
"
registered"
appears
to
be
redundant
and
could
be
removed,
several
commenters
were
opposed
to
making
the
change.
These
commenters
argued
that
the
word
"
registered"
is
necessary
to
prevent
confusion
in
the
field,
particularly
among
generators,
that
a
license
or
registration
is
required.
The
Agency
is
unconvinced
by
this
argument
and
maintains
that
the
use
of
"
registered"
and
"
professional"
as
qualifications
for
engineers
making
these
certifications
is
redundant
and
should
be
simplified.

As
a
final
matter,
we
unintentionally
failed
to
identify
eight
additional
certification
requirements
that
are
part
of
this
regulatory
change,
i.
e.,
each
contains
one
or
a
combination
of
the
terms:
independent,
registered
and/
or
professional
when
describing
the
qualifications
of
the
engineer.
These
certifications
include:
(
1)
Section
264.193(
h)(
4)(
i)(
2),
Tank
Systems,
Containment
and
detection
of
releases;
(
2)
Section
265.193(
h)(
5)(
i)(
2),
Tank
Systems,
Containment
and
detection
of
releases;
(
3)
Section
264.554(
c)(
2),
Staging
Piles;
(
4)
Section
264.1101(
c)(
2),
Containment
Buildings,
Design
and
operating
standards;
(
5)
Section
265.1101(
c)(
2),
Containment
Buildings,
Design
and
operating
standards;
(
6)
Section
270.14(
a),
Permit
Application,
Content
of
part
B.
General
requirements;
(
7)
Section
270.17(
d)
Permit
Application,
Specific
part
B
information
requirements
for
surface
impoundments;
and
(
8)
Section
270.26(
c)(
15),
Permit
Application,
Special
part
B
information
requirements
for
drip
pads.
EPA
believes
today's
changes
provide
consistency
to
the
certification
requirements,
i.
e.,
removing
the
terms
independent
and
registered.
As
such,
we
are
finalizing
these
eight
additional
certification
changes.

We
Are
Also
Changing
the
Closure
and
Post­
Closure
Certification
Requirements.

In
the
October
29,
2003
NODA
(
68
FR
61662),
we
also
solicited
comment
on
amending
the
qualifications
for
selected
closure
and
post­
closure
certifications
to
"
qualified
professional
engineer."
These
certifications
included:
(
1)
Section
264.115,
Closure
and
Post­
Closure,
Certification
of
closure;
(
2)
Section
265.115,
Closure
and
Post­
Closure,
Certification
of
closure;
(
3)
Section
264.120,
Closure
and
Post­
Closure,
Certification
of
completion
of
post­
closure
care;
(
4)
Section
265.120,
Closure
and
Post­
Closure,
Certification
of
completion
of
post­
closure
care;
and
(
5)
Section
264.280(
b),
Land
Treatment,
Closure
and
post­
closure
care.

During
the
development
of
today's
final
rule,
we
discovered
that
we
incorrectly
stated
the
required
qualifications
for
engineers
providing
the
closure
and
post­
closure
certifications,
and
we
failed
to
identify
one
additional
certification,
§
265.280(
e)
Land
Treatment,
Closure
and
postclosure
care,
and
six
cross­
reference
citations
to
the
original
closure
and
post­
closure
certifications.
These
cross­
references
are:
(
1)
Section
264.143(
i),
Financial
Assurance
for
Closure,
Release
of
the
owner
or
operator
from
the
requirements
of
this
section;
(
2)
Section
265.143(
h),
Financial
Assurance
for
Closure,
Release
of
the
owner
or
operator
from
the
requirements
of
this
section;
(
3)
Section
264.145(
i),
Financial
Assurance
for
Post­
Closure,
Release
of
the
owner
or
operator
from
the
requirements
of
this
section;
(
4)
Section
265.145(
h),
Financial
Assurance
for
Post­
Closure,
Release
of
the
owner
or
operator
from
the
requirements
of
10
this
section;
(
5)
Section
264.147(
e),
Liability
Requirements,
Period
of
coverage;
and
(
6)
Section
265.147(
e),
Liability
Requirements,
Period
of
coverage.

We
incorrectly
stated,
in
both
the
proposed
rule
and
the
October
29,
2003
NODA
(
68
FR
61662),
the
regulatory
requirements
for
these
certifications.
In
both
these
notices,
we
stated
that
the
regulatory
language
for
closure
and
post­
closure
certifications
require
an
"
independent,
qualified,
registered,
professional
engineer"
to
make
the
certifications.
This
is
incorrect.
The
regulatory
language
for
these
certifications
does
not
include
the
word
"
qualified;"
the
certifications
language
states
that
the
certification
must
be
made
by
an
"
independent,
registered,
professional
engineer."
Hence
our
proposed
regulatory
change
to
"
qualified
professional
engineer"
for
these
certifications
was
inaccurate
and
inconsistent
with
our
other
proposed
certification
requirements.
In
our
view,
this
error
was
minor
and
does
not
change
our
position
regarding
the
redundancy
of
using
both
"
registered"
and
"
professional,"
when
defining
the
necessary
certification
qualifications.
This
error
also
does
not
change
our
position
that
all
certifications
should
be
conducted
by
a
"
qualified
professional
engineer"
i.
e.,
one
that
is
qualified
to
perform
the
task
and
is
a
professional
engineer
(
licensed/
registered
by
the
state
and
following
a
code
of
ethics
and
the
potential
of
losing
his/
her
license
for
negligence).
As
such,
we
are
today
amending
all
the
closure
and
post­
closure
certification
requirements
to
require
qualified
professional
engineers
to
certify
closure
and
postclosure
