[Federal Register Volume 77, Number 72 (Friday, April 13, 2012)]
[Rules and Regulations]
[Pages 22229-22232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8924]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 261 and 266

[EPA-RCRA-2008-0678; FRL-9659-7]
RIN 2050-AG52


Hazardous Waste Technical Corrections and Clarifications Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
taking final action on two of six technical amendments that were 
withdrawn in a June 4, 2010, Federal Register partial withdrawal 
notice. The two amendments that are the subject of today's final rule 
are: A correction of the typographical error in the entry ``K107'' in a 
table listing hazardous wastes from specific sources; and a conforming 
change to alert certain recycling facilities that they have existing 
certification and notification requirements under the Land Disposal 
Restrictions regulations. The other four amendments that were withdrawn 
in the June 2010 partial withdrawal notice will remain withdrawn unless 
and until EPA determines action is warranted in the future.

DATES: This final rule is effective on May 14, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-RCRA-2008-0678. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, will 
be publicly available only in hard copy. Publicly available docket 
materials are available either electronically at www.regulations.gov or 
in hard copy at the OSWER Docket, EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave. NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the RCRA Docket is (202) 566-
0270.

FOR FURTHER INFORMATION CONTACT: Jim O'Leary, U.S. Environmental 
Protection Agency, Office of Resource Conservation and Recovery, MC 
5304P, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Phone: (703) 
308-8827; or email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Why is EPA publishing this final rule?

    On March 18, 2010, EPA published in the Federal Register a Direct 
Final rule entitled, Hazardous Waste Technical Corrections and 
Clarifications Rule (75 FR 12989) (hereafter the Direct Final rule). 
This Direct Final rule included approximately 90 specific technical 
amendments to correct or clarify parts of the Resource Conservation and 
Recovery Act (RCRA) hazardous waste regulations. At the same time, EPA 
also published a parallel proposed rule (75 FR 13006) that requested 
comment on the same changes.
    We stated in that Direct Final rule that if we received adverse 
comment on any of the amendments by May 3, 2010, the affected 
amendments would not take effect and we would publish a timely 
withdrawal in the Federal Register of those specific amendments. We 
received some adverse comments and as a result withdrew six amendments 
on June 4, 2010 (75 FR 31716). The remaining amendments for which we 
did not receive adverse comment became effective on June 16, 2010.
    The six amendments that were withdrawn are:
     40 CFR 262.34(a)--related to the hazardous waste 
accumulation time for large quantity generators;
     40 CFR 262.34(a)(2)--related to the date upon which each 
period of accumulation begins and which must be clearly marked and 
visible for inspection on each container and tank;
     40 CFR 262.34(a)(5)--related to the closure requirements 
for tanks, containers, drip pads and containment buildings;
     40 CFR 262.34(a)(1)(iv)(B)--also related to the closure 
requirements for tanks, containers, drip pads and containment 
buildings;
     40 CFR 266.20(b)--related to recyclable materials used in 
a manner constituting disposal; and
     40 CFR 261.32(a)--related to the entry for hazardous waste 
number K107 in a table.
    EPA is publishing today's final rule to address the adverse 
comments received on the last two amendments listed above and to 
finalize these amendments. The amendments we are finalizing are: (1) 
Making the conforming change to 40 CFR 266.20(b); and (2) correcting 
the entry ``K107'' in the table at 40 CFR 261.32(a). The other four 
amendments that were withdrawn will remain withdrawn unless and until 
EPA decides to take action on them in the future.\1\
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    \1\ See the public docket for this rule regarding the specific 
comments that were submitted on the four amendments that are not 
being finalized today.
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II. Does this action apply to me?

    Entities potentially affected by this action include facilities 
subject to the RCRA hazardous waste regulations and states implementing 
the RCRA hazardous waste regulations.

III. Acronyms

------------------------------------------------------------------------
                  Acronym                            Definition
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CFR.......................................  United States Code of
                                             Federal Regulations.
EPA.......................................  United States Environmental
                                             Protection Agency.
HSWA......................................  Hazardous and Solid Waste
                                             Amendments.
OMB.......................................  Office of Management and
                                             Budget.
RCRA......................................  Resource Conservation and
                                             Recovery Act.
U.S.C.....................................  United States Code.
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[[Page 22230]]

IV. Background

A. What is the legal authority for this final rule?

    This rule is authorized under Sections 1004 and 3001 through 3005 
of the Resource Conservation and Recovery Act of 1976, as amended, 42 
U.S.C. 6903, 6921-6925.

B. Description of Final Rule Amendments to Parts 261 and 266

    For each of the two technical corrections being finalized today, 
the following sections provide a summary of the Agency's original 
proposal, a discussion of the adverse comments received on the 
proposal, and the Agency's response to those comments.
1. Correction to 40 CFR 261.32(a)
    In our March 18, 2010, Direct Final rule (and companion proposed 
rule), we amended the entry for K107 in the table at 40 CFR 261.32 by 
correcting the misspelled chemical name ``* * * carboxylic acid 
hydrazines'' to read ``* * * carboxylic acid hydrazides.'' We explained 
that this was a misspelling as evidenced by the original listing 
background document supporting the K107 listing, which discusses 
``carboxylic acid hydrazides.''
    However, in the process of making this correction in the Direct 
Final rule, we inadvertently omitted the word ``acid'' in ``carboxylic 
acid hydrazides'' from the entry for K107. We withdrew this correction 
given the omission of the word ``acid'' on June 4, 2010 (see 75 FR 
31716). Today's final rule corrects the misspelled chemical name.
2. Conforming Change to 40 CFR 266.20(b)
    In 1988, EPA promulgated various certification and notification 
requirements under the Land Disposal Restrictions (``LDR'') regulatory 
program (53 FR 31138, August 17, 1988). This rule included, in 40 CFR 
268.7(b)(8), specific certification and notification requirements for 
recyclers using recyclable materials in a manner constituting disposal. 
This provision included a reference to 40 CFR 266.20(b), a separate 
provision that specifies regulatory requirements for certain use 
constituting disposal activities. However, at that time, the Agency 
failed to add a similar reference in 40 CFR 266.20(b) alerting 
recyclers to the LDR certification and notification requirements in 40 
CFR 268.7(b)(8). The LDR certification and notification requirement for 
use constituting disposal was later renumbered from 40 CFR 268.7(b)(8) 
to 40 CFR 268.7(b)(6).
    In the March 18, 2010, Direct Final rule (and parallel proposed 
rule), 40 CFR 266.20(b) was revised by adding the phrase ``and the 
recycler complies with Sec.  268.7(b)(6) of this chapter'' to alert 
recyclers to the existing LDR certification and notification 
requirement that is located elsewhere in the regulations.
    EPA received one adverse comment concerning this amendment from 
Safe Food and Fertilizer (hereafter referred to as Safe Food), a 
grassroots citizens' organization. In their comments, Safe Food stated 
that making this change to 40 CFR 266.20(b) would not be a `technical 
correction' but rather the promulgation of a new rule. Safe Food stated 
that when, in 2006, EPA amended 40 CFR 268.7(b)(6) as part of a larger 
RCRA Burden Reduction Initiative to require less frequent notification 
and certification (71 FR 16862, April 4, 2006), many states did not 
adopt this less-stringent provision and retained the more frequent 
notification and certification requirements.\2\ Safe Food believes that 
because the amendment to 40 CFR 266.20(b) references the federal 
requirements in 40 CFR 268.7(b)(6), a state that adopts this amendment 
will also be inadvertently forced to adopt the more recent federal 
less-stringent notification and certification provision in 40 CFR 
268.7(b)(6).
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    \2\ When 40 CFR 268.7(b)(6) was revised in 2006, it was deemed 
less stringent than the previous version, and therefore states with 
final authorization for their RCRA base program were not required to 
adopt it. Section 3009 of RCRA allows states to be more stringent 
than the federal hazardous waste rules. Specifically, it states, ``* 
* * Nothing in this title shall be construed to prohibit any State 
or political subdivision thereof from imposing any requirements, 
including those for site selection, which are more stringent than 
those imposed by such regulations * * *''
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    EPA disagrees. The amendment simply alerts persons subject to 40 
CFR 266.20(b) that they also have an existing obligation to certify and 
notify under the LDR regulations. If and when states adopt this 
reference, they will translate the reference into their own existing 
regulatory structure and the reference will point to the existing state 
LDR certification and notification requirements, not the federal 
requirements. Thus, adoption of today's amendment by a state as part of 
their authorized RCRA program will not change that state's existing 
authorized LDR notification and certification requirements for 
recyclers using materials in a manner constituting disposal. The 
proposed addition to section 40 CFR 266.20(b) is an informational 
reference to alert recyclers to the existing LDR certification and 
notification obligations applicable to their activities. When 
incorporated into state regulations, the reference will refer to the 
appropriate existing state LDR requirements.
    Safe Food also commented that the proposed change would be contrary 
to law, specifically, to 42 U.S.C. 6929. They believe such a change 
would ``prohibit a State from requiring that the State be provided with 
a copy of each manifest used in conjunction with hazardous waste which 
is generated within that State or transported to a treatment, storage, 
or disposal facility.'' Safe Food argues that the proposed amendment 
would change states' regulations governing materials used in a manner 
constituting disposal, including any state manifesting requirements, 
because the change made to the federal regulations would go into effect 
immediately on the effective date in all states.
    The Agency disagrees. In the Direct Final rule (and parallel 
proposed rule), EPA explained that amendments to 40 CFR part 266 would 
only go into effect in authorized states if and when a state adopts the 
amendment. When an authorized state adopts this amendment, it will not 
retain the federal regulatory citation. The state will translate the 
citation into the appropriate state citation to refer to the existing 
state LDR certification and notification requirements for materials 
used in a manner constituting disposal (see section V.B. of this 
notice). Thus, this amendment will not change a state's existing 
regulations for materials used in a manner constituting disposal, 
including any existing state manifesting requirements.
    Finally, Safe Food argued that the clarification to 40 CFR 
266.20(b) is not necessary because recyclers subject to 40 CFR 
266.20(b) are also subject to 40 CFR 266.23, which references all of 40 
CFR part 268 (which would include 40 CFR 268.7(b)(6)). Again, the 
Agency disagrees. The parenthetical phrase at the end of 40 CFR 
266.23(a), ``these requirements do not apply to products which contain 
these recycled materials under the provisions of 40 CFR 266.20(b) of 
this chapter,'' specifically exempts materials regulated under 40 CFR 
266.20(b) from 40 CFR 266.23. This means that the reference in 40 CFR 
266.23 to 40 CFR part 268 (which would include 40 CFR 268.7(b)(6)) is 
not applicable to, and not likely to be seen by, persons managing 
materials under 40 CFR 266.20(b). Thus, the amendment being promulgated 
today is a useful and important informational aid alerting recyclers 
managing hazardous wastes under 40 CFR 266.20(b) to their existing

[[Page 22231]]

LDR notification and certification requirements.
    As explained above, EPA does not agree that the proposed amendment 
will have any of the consequences that Safe Food is concerned about. 
Thus, to better alert recyclers to their existing LDR certification and 
notification requirements, EPA is today promulgating the change to add 
a reference to 40 CFR 266.20(b) as was proposed.

V. State Authorization

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize a qualified state to 
administer its own hazardous waste program within the state in lieu of 
the federal program. Following authorization, EPA retains enforcement 
authority under Sections 3008, 3013, and 7003 of RCRA, although 
authorized states have primary enforcement responsibility. The 
standards and requirements for state authorization are found at 40 CFR 
part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of 
1984 (HSWA), a state with final RCRA authorization administered its 
hazardous waste program entirely in lieu of EPA administering the 
federal program in that state. The federal requirements no longer 
applied in the authorized state, and EPA could not issue permits for 
any facilities in that state, since only the state was authorized to 
issue RCRA permits. When new, more stringent federal requirements were 
promulgated, the state was obligated to enact equivalent authorities 
within specified time frames. However, the new federal requirements did 
not take effect in an authorized state until the state adopted the 
federal requirements as state law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which 
was added by HSWA, new requirements and prohibitions imposed under HSWA 
authority take effect in authorized states at the same time that they 
take effect in unauthorized states. EPA is directed by the statute to 
implement these requirements and prohibitions in authorized states, 
including the issuance of permits, until the state is granted 
authorization to do so. While states must still adopt HSWA related 
provisions as state law to retain final authorization, EPA implements 
the HSWA provisions in authorized states until the states do so.
    RCRA section 3009 allows states to impose standards more stringent 
than those in the federal program (see also 40 CFR 271.1). Therefore, 
authorized states may, but are not required to, adopt federal 
regulations, both HSWA and non-HSWA, that are considered less stringent 
than previous federal regulations.

B. Effect on State Authorization

    Today's Final rule promulgates two technical corrections to 
regulations in 40 CFR parts 261 and 266 under non-HSWA authority. Thus, 
the technical corrections and clarifications finalized today under non-
HSWA authority would be applicable on the effective date only in those 
states that do not have final authorization of their base RCRA 
programs. Moreover, authorized states are required to modify their 
programs only when EPA promulgates federal regulations that are more 
stringent or broader in scope than the authorized state regulations. 
For those changes that are less stringent or reduce the scope of the 
federal program, states are not required to modify their program. This 
is a result of section 3009 of RCRA, which allows states to impose more 
stringent regulations than the federal program. Today's final rule is 
considered to be neither more nor less stringent than the current 
standards. Therefore, authorized states are not required to modify 
their programs to adopt the technical corrections promulgated today, 
although we strongly urge authorized states to adopt these technical 
corrections to avoid any confusion or misunderstanding by the regulated 
community and the public.

VI. Statutory and Executive Order Reviews

    As explained above, this rule takes final action on two amendments 
for which we received adverse comment in response to our March 18, 
2010, RCRA Technical Corrections and Clarifications Direct Final rule 
(and parallel proposed rule). Because today's Final rule does not 
create any new regulatory requirements, but rather makes technical 
corrections, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866: Regulatory Planning and Review (58 FR 51735, October 4, 1993) or 
Executive Order 13563: Improving Regulation and Regulatory Review (76 
FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132: Federalism (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045: Protection 
of Children from Environmental Health and Safety Risks (62 FR 19885, 
April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211: Actions that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001);
     Does not involve technical standards; thus the 
requirements of Section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) do not apply; and
     Does not have tribal implications as specified by 
Executive Order 13175: Consultation and Coordination with Indian Tribal 
Governments (65 FR 67249, November 9, 2000), because as the rule does 
not make any substantive change, it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to the 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impact of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
does not create any new regulatory requirements, but rather

[[Page 22232]]

clarifies existing requirements and makes conforming changes.

B. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
information required by the Congressional Review Act (5 U.S.C. 801 et 
seq., as amended) to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule 
will be effective May 14, 2012.

List of Subjects

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

40 CFR Part 266

    Environmental protection, Energy, Hazardous waste, Recycling, 
Reporting and recordkeeping requirements.

    Dated: April 4, 2012.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.


0
2. In Sec.  261.32(a), the table is amended by revising the entry for 
``K107'' to read as follows:


Sec.  261.32  Hazardous wastes from specific sources.

* * * * *
    (a) * * *

------------------------------------------------------------------------
 Industry and EPA  hazardous waste
                No.                   Hazardous waste     Hazard code
------------------------------------------------------------------------
 
                              * * * * * * *
Organic chemicals
 
                              * * * * * * *
K107...............................  Column bottoms    (C,T)
                                      from product
                                      separation from
                                      the production
                                      of 1,1-
                                      dimethylhydrazi
                                      ne (UDMH) from
                                      carboxylic acid
                                      hydrazides.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES 
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

0
3. The authority citation for part 266 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912, 6922-6925, 6935-6937, unless 
otherwise noted.


0
4. Amend Sec.  266.20 by revising paragraph (b) to read as follows:


Sec.  266.20  Applicability.

* * * * *
    (b) Products produced for the general public's use that are used in 
a manner that constitutes disposal and that contain recyclable 
materials are not presently subject to regulation if the recyclable 
materials have undergone a chemical reaction in the course of producing 
the products so as to become inseparable by physical means and if such 
products meet the applicable treatment standards in subpart D of part 
268 (or applicable prohibition levels in Sec.  268.32 of this chapter 
or RCRA section 3004(d), where no treatment standards have been 
established) for each recyclable material (i.e., hazardous waste) that 
they contain, and the recycler complies with Sec.  268.7(b)(6) of this 
chapter.
* * * * *
[FR Doc. 2012-8924 Filed 4-12-12; 8:45 am]
BILLING CODE 6560-50-P