[Federal Register Volume 77, Number 35 (Wednesday, February 22, 2012)]
[Rules and Regulations]
[Pages 10387-10390]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4060]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 302
[EPA-HQ-SFUND-2011-0965; FRL-9635-9]
Designation of Hazardous Substances; Designation, Reportable
Quantities, and Notification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to reinstate the maximum
observed constituent concentrations for several listed hazardous wastes
that were inadvertently removed from the regulations by a November 8,
2000 final rule.
DATES: This rule is effective on April 23, 2012 without further notice,
unless EPA receives adverse comment by March 23, 2012. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-2011-0965, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: superfund.docket@epa.gov.
Fax: 202-566-9744.
Mail: Environmental Protection Agency, EPA Docket Center
(EPA/DC), Superfund Docket, Mailcode: 28221T, 1200 Pennsylvania Ave.
NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room
3334, 1301 Constitution Ave. NW., Washington, DC 20460. Attention
Docket ID No. EPA-HQ-SFUND-2011-0965. Such deliveries are only accepted
during the Docket's normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-
2011-0965. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., 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
in www.regulations.gov or in hard copy at the EPA-HQ-SFUND-2011-0965
docket. This Docket Facility is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The Superfund Docket
telephone number is (202) 566-0276. EPA Docket Center (EPA/DC), EPA
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP and Oil Information Center at (800) 424-9346
or TDD (800) 553-7672 (hearing impaired). In the Washington, DC
metropolitan area, call (703) 412-9810 or TDD (703) 412-3323. For more
detailed information on specific aspects of this direct final rule,
contact Lynn Beasley at (202) 564-1965 (beasley.lynn@epa.gov), U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460-0002, Mail Code 5104A.
SUPPLEMENTARY INFORMATION:
I. Why is EPA using a direct final rule?
EPA is publishing this rule without a prior proposed rule because
we view this as a noncontroversial action and anticipate no adverse
comment. This action merely reinstates the maximum observed constituent
concentrations for several listed hazardous wastes that were
inadvertently removed from regulations by a November 8, 2000 final
rule. However, in the ``Proposed Rules'' section of today's Federal
Register, we are also publishing a separate proposed rule to reinstate
these same maximum observed constituent concentrations for several
listed hazardous wastes that were inadvertently removed from the
regulations if adverse comments are received on this direct final rule.
We will not institute a second comment period on this action. Any
parties interested in commenting must do so at this time. For further
information about commenting on this rule, see the ADDRESSES section of
this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect until EPA addresses all public
comments in any subsequent final rule based on the proposed rule.
II. Does this action apply to me?
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Type of entity Examples of affected entities
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Federal Agencies.................. National Response Center and any
Federal agency that may release or
respond to releases of hazardous
substances.
[[Page 10388]]
State and Local Governments....... State Emergency Response
Commissions, and Local Emergency
Planning Committees.
Responsible Parties............... Those entities responsible for the
release of a hazardous substance
from a vessel or facility. Those
entities with an interest in the
substances that were inadvertently
removed from the table of maximum
observed constituent concentrations
for listed hazardous wastes K169,
K170, K171, and K172 in 40 CFR
302.6(b)(1)(iii).
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
III. What should I consider as I prepare my comments for EPA?
A. Submitting CBI
Do not submit this information to EPA through www.regulations.gov
or email. Clearly mark the part or all of the information that you
claim to be CBI. For CBI information in a disk or CD-ROM that you mail
to EPA, mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with the procedures set forth in 40 CFR
part 2.
B. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
IV. What does this amendment do?
This direct final rule reinstates the maximum observed constituent
concentrations for listed hazardous wastes K169, K170, K171, and K172
to the table found in 40 CFR 302.6(b)(1)(iii). A November 8, 2000 final
rule (Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Chlorinated Aliphatics Production Wastes; Land
Disposal Restrictions for Newly Identified Wastes; CERCLA Hazardous
Substance Designation and Reportable Quantities; Final Rule)
inadvertently removed the maximum observed constituent concentrations
for those listed hazardous wastes from the table in that section when
it was amended to include the maximum observed constituent
concentrations for listed hazardous wastes K174 and K175. (See 65 FR
67132.) The maximum observed constituent concentrations were included
in the 40 CFR 302.6 regulations to allow generators, transporters, and
disposal facilities handling these hazardous wastes to calculate
reportable quantities (RQs) using the mixture rule \1\ developed in
connection with the Clean Water Act section 311 regulations. The listed
hazardous wastes K169, K170, K171, and K172 and their respective RQs
are included in Table 302.4--List of Hazardous Substances and
Reportable Quantities and Appendix A to section 302.4--Sequential CAS
Registry Number List of CERCLA Hazardous Substances of Title 40 of the
Code of Federal Regulations. However, the aforementioned Table 302.4
and Appendix A do not contain the maximum observed constituent
concentrations. Section 302.6 is the only source of these maximum
observed constituent concentrations contained in 40 CFR 302--
Designation, Reportable Quantities, and Notification.
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\1\ 44 FR 50767, Aug. 29, 1979, Final Rulemaking; Water
Programs; Determination of Reportable Quantities for Hazardous
Substances; and 50 FR 13463, Apr. 4, 1985, Final rule; Notification
Requirements; Reportable Quantity Adjustments. Discharges of
mixtures and solutions are subject to these regulations only where a
component hazardous substance of the mixture or solution is
discharged in a quantity equal to or greater than its reportable
quantity.
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V. How were the maximum observed constituent concentrations
inadvertently removed?
The inadvertent removal of the maximum observed constituent
concentrations for K169, K170, K171, and K172 from Sec. 302.6 was the
result of a formatting error. On November 8, 2000, EPA issued a final
rule (65 FR 67132) in the Federal Register that amended 40 CFR
302.6(b)(1)(iii) by adding entries K174 and K175 to an existing table
of maximum observed constituent concentrations for listed hazardous
wastes K169, K170, K171, and K172. The Federal Register final rule did
not contain the proper signal (5 asterisks) to the Office of the
Federal Register that would cause the addition of entries K174 and K175
to the existing table and instead replaced the existing table with a
table that only included entries for K174 and K175. The missing signal
(5 asterisks) was a formatting error. The proper signal (5 asterisks)
was contained in the proposed rule that was published on August 25,
1999. (See 64 FR 46539.)
On November 14, 2011, Artisan EHS Consulting, LLC (Artisan EHS)
submitted a request for correction of information under the Data
Quality Act (also known as the Information Quality Act),\2\ as
implemented through the Office of Management and Budget \3\ and the
EPA.4 5 EPA confirmed the accuracy
[[Page 10389]]
of the Artisan EHS' request which led to this direct final rule.\6\
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\2\ Section 5(a) of the Treasury and General Government
Appropriations Act for Fiscal Year 2001, Public Law 106-554; 44
U.S.C. 3516 (notes).
\3\ Guidelines for Ensuring and Maximizing the Quality,
Objectivity, Utility, and Integrity of Information Disseminated by
Federal Agencies, 67 FR 8452 (Feb. 22, 2002).
\4\ Guidelines for Ensuring and Maximizing the Quality,
Objectivity, Utility, and Integrity, of Information Disseminated by
the Environmental Protection Agency, EPA/260R-02-008 (October 2002).
\5\ The letter from Artisan EHS can be found in the docket for
this final rule, EPA-HQ-SFUND-2011-0965.
\6\ In their letter, Artisan EHS also pointed out a
typographical error--that is, at the end of 40 CFR 302.6 there is an
erroneous reference--`65 FR 87132, Nov. 8, 2001' should read `65 FR
67132, Nov. 8, 2000. Typographical errors are corrected by the
Office of the Federal Register. On November 23, 2011, EPA requested
that the Office of Federal Register change the reference
accordingly--that change was made and is available to view at:
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/index.tpl;
follow the links to 40 CFR 302.6.
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VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This direct final action does not impose any new information
collection burden. The amendments in this direct final rule simply
reinstates the maximum observed constituent concentrations for several
listed hazardous wastes that were inadvertently removed from the
regulations when they were amended to include the maximum observed
constituent concentrations for other newly listed hazardous wastes in a
November 8, 2000 final rule. This direct final rule does not change any
reporting requirements in the general provisions. However, the Office
of Management and Budget (OMB) has previously approved the information
collection requirements contained in the existing subparts of 40 CFR
302 under the provisions of the Paperwork Reduction Act , 44 U.S.C.
3501 et seq. and has assigned OMB control number 2050-0046. The OMB
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR
part 9. Subparts that will be added through separate rulemakings will
document the respective information collection requirements in their
own ICR documents.
C. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to 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 this 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 impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The direct
final rule simply reinstates the maximum observed constituent
concentrations for several listed hazardous wastes that were
inadvertently removed from the regulations when they were amended to
include the maximum observed constituent concentrations for other newly
listed hazardous wastes in a November 8, 2000 final rule. The direct
final rule does not itself add any additional subparts or requirements.
The direct final rule will not impose any new requirements on small
entities.
D. Unfunded Mandates Reform Act (UMRA)
This action contains no Federal mandates under the provisions of
title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA. This
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. The amendments in this direct
final rule reinstate the maximum observed constituent concentrations
for several listed hazardous wastes that were inadvertently removed
from the regulations when they were amended to include the maximum
observed constituent concentrations for other newly listed hazardous
wastes in a November 8, 2000 final rule.
E. Executive Order 13132: Federalism
Executive Order (EO) 13132, entitled ``Federalism'' (64 FR 43255,
August 10, 1999), requires EPA to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have Federalism
implications.'' ``Policies that have Federalism implications'' is
defined in the EO to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This direct final rule does not have Federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in EO 13132.
This amendment applies directly to responsible parties. They do not
apply to governmental entities unless the government entity releases
any of the listed hazardous wastes. This regulation also does not limit
the power of States or localities to the responsible parties. Thus, EO
13132 does not apply to this direct final rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The changes in
this direct final rule do not result in any changes to the requirements
of 40 CFR 302.6. Thus Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This direct final rule is not subject to EO 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in EO 12866, and because the Agency does not believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. The changes in this direct final
rule do not result in any changes to the requirements in 40 CFR 302.6.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
[[Page 10390]]
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that the direct final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because the amendments do
not affect the level of protection provided to human health or the
environment.
K. 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
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the U.S. prior to
publication of the rule 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).
List of Subjects in 40 CFR Part 302
Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Reporting and recordkeeping requirements, Superfund,
Water pollution control, Water supply.
Dated: February 14, 2012.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
For the reasons set out, title 40, chapter I of the Code of Federal
Regulations is amended as follows:
PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION
0
1. The authority citation for part 302 continues to read as follows:
Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and
1361.
0
2. In Sec. 302.6, paragraph (b)(1)(iii), the table is amended by
adding entries K169, K170, K171, and K172 in numerical order to read as
follows:
Sec. 302.6 Notification requirements.
* * * * *
(b) * * *
(1) * * *
(iii) * * *
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Waste Constituent Max ppm
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K169.......................... Benzene............... 220.0
K170.......................... Benzene............... 1.2
Benzo (a) pyrene...... 230.0
Dibenz (a,h) 49.0
anthracene.
Benzo (a) anthracene.. 390.0
Benzo (b) fluoranthene 110.0
Benzo (k) fluoranthese 110.0
3-Methylcholanthrene.. 27.0
7, 12-Dimethylbenz (a) 1,200.0
anthracene.
K171.......................... Benzene............... 500.0
Arsenic............... 1,600.0
K172.......................... Benzene............... 100.0
Arsenic............... 730.0
* * * * * * *
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[FR Doc. 2012-4060 Filed 2-21-12; 8:45 am]
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