[Federal Register Volume 69, Number 205 (Monday, October 25, 2004)]
[Rules and Regulations]
[Pages 62217-62224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23842]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 262

[OA-2004-0004; FRL-7830-1]
RIN 2090-AA13


National Environmental Performance Track Program; Corrections

AGENCY: Environmental Protection Agency (EPA)

ACTION: Direct final rule; corrections.

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SUMMARY: EPA is taking direct final action to revise and correct 
certain provisions in the Resource Conservation and Recovery Act (RCRA) 
program applicable only to members of the National Environmental 
Performance Track Program. The revisions concern the proposed rule 
published on August 13, 2002 (67 FR 52674), and the subsequent final 
rule published on April 22, 2004 (69 FR 21737). Both the proposal and 
the final rule contained an inconsistency between the preamble language 
and regulatory language. The final rule also inadvertently omitted 
three references to applicable regulatory provisions that were properly 
referenced in the proposed rule. The proposed and final rules cover 
provisions under both the Clean Air Act and RCRA. Today's direct final 
rule applies only to the RCRA provisions. The Clean Air Act provisions 
are unchanged.
    The regulatory proposal of August 13, 2002 was published with a 
description in the preamble that was inconsistent with the proposed 
regulatory language. EPA used the word ``or'' in the preamble 
description of the provision requiring notice when a generator 
accumulates hazardous waste, while the subject regulatory language used 
the word ``and.'' No public comment was received during the public 
comment period concerning the inconsistent language, and the April 2004 
rule repeated the inconsistency between the preamble and the regulatory 
language.
    Today's rule corrects the preamble language to clarify that the 
rule requires notification to both the Regional Administrator and the 
authorized State.
    In addition, the April 2004 final rule did not include three 
applicable regulatory provisions that were included in the original 
preamble of August 13, 2002 (67 FR 52674) proposal. The applicable 
regulatory provisions omitted from the final rule were correctly 
published in the proposal. Today's rule corrects the April 2004 final 
rule to include the applicable regulatory provisions.
    EPA is publishing today's direct final rulemaking to address the 
inconsistency between the preamble and regulatory language, and to 
correct the inadvertently omitted applicable regulatory provisions. The 
applicable regulatory provisions corrected and finalized today are the 
same as the language that was proposed in August 2002 and received 
public comment.
    Today's corrections are being published as a direct final rule 
because EPA believes these revisions to be non-controversial and does 
not anticipate any adverse comment. We are approving these revisions to 
correct the earlier inconsistency and omissions.

DATES: This direct final rule is effective December 27, 2004 unless EPA 
receives adverse comments by November 24, 2004. If the Agency receives 
adverse comments it will withdraw this direct final rule by publishing 
a timely withdrawal in the Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. OA-2004-
0004, by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
    <bullet> Mail: Mr. Robert D. Sachs, Environmental Protection 
Agency, Mail code 1807T, 1200 Pennsylvania Avenue, Washington, DC 20460 
telephone number 202-566-2884; fax number 202-566-0966; e-mail address: 
<a href="/cdn-cgi/l/email-protection#a4d7c5c7ccd78ad6cbc6c1d6d0e4c1d4c58ac3cbd2"><span class="__cf_email__" data-cfemail="126173717a613c607d70776066527762733c757d64">[email protected]</span></a>.
    <bullet> Hand Delivery: Office of Environmental Information Docket, 
Environmental Protection Agency, EPA West Building, Room B102, 1301 
Constitution Ave., NW., Washington, DC 20460. 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. OA-2004-0004. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket, 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 EDOCKET,

[[Page 62218]]

regulations.gov, or e-mail. The EPA EDOCKET and the federal 
regulations.gov websites are ``anonymous access'' systems, 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 e-mail comment 
directly to EPA without going through EDOCKET or regulations.gov, your 
e-mail 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.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Office of Environmental Information Docket, EPA/DC, EPA 
West, Room B102, 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 Office 
of Environmental Information Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Mr. Robert D. Sachs, Performance 
Incentives Division, Office of Business and Community Innovation, 
Office of Policy, Economics and Innovation, Office of Administrator, 
Mail Code 1807T, United States Environmental Protection Agency, 1200 
Pennsylvania Avenue, Washington, DC 20460, telephone number 202-566-
2884; fax number 202-566-0966; e-mail address: <a href="/cdn-cgi/l/email-protection#4132202229326f332e23243335012431206f262e37"><span class="__cf_email__" data-cfemail="bccfdddfd4cf92ced3ded9cec8fcd9ccdd92dbd3ca">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Is There a Parallel Proposal to Today's Action?

    There is a parallel proposal to today's action. EPA is publishing 
this rule without prior proposal because we view this as a 
noncontroversial amendment and anticipate no adverse comment, since 
these provisions were previously proposed, the Agency accepted public 
comment, and no comments were received concerning the subject issues 
today's action addresses. However, in the ``Proposed Rules'' section of 
today's Federal Register publication, we are publishing a separate 
document that will serve as the proposal to revise the RCRA provisions 
described in this action if adverse comments are filed. This rule will 
be effective on December 27, 2004 without further notice unless we 
receive adverse comment by November 24, 2004. 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. We will 
address all public comments in a subsequent final rule based on the 
proposed rule. We will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time.

B. Does This Action Apply to Me?

    Categories and entities potentially regulated by this action 
include all entities regulated by EPA, pursuant to its authority under 
the various environmental statutes, who voluntarily decide to join the 
Performance Track Program. Thus, potential respondents may fall under 
any North American Industry Classification System (NAICS) Code. The 
following table lists the Primary NAICS Codes for all current 
Performance Track members.
    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. To determine whether 
your facility is eligible to be regulated by this action, you should 
carefully examine the qualifying criteria for the Performance Track 
Program at http://www.epa.gov/performancetrack. 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.

 Primary North American Industry Classification System (NAICS) Codes of
                    Current Performance Track Members
------------------------------------------------------------------------
              Industry group                      SIC           NAICS
------------------------------------------------------------------------
Surgical Appliance and Supplies            ................       339113
 Manufacturing.
Laboratory Apparatus and Furniture         ................       339111
 Manufacturing.
Pharmaceutical Preparation Manufacturing.  ................       325412
All Other Miscellaneous Chemical Product   ................       325998
 and Preparation Manufacturing.
Fossil Fuel Electric Power Generation....  ................       221112
Dry Cleaning and Laundry Services (except  ................       812320
 Coin-Operated).
Heating Oil Dealers......................  ................       454311
Paper (except Newsprint) Mills...........  ................       322121
Radio and Television Broadcasting and      ................       334220
 Wireless Communications Equipment
 Manufacturing.
Surgical and Appliance and Supplies        ................       339113
 Manufacturing.
Research and Development in the Physical,  ................       541710
 Engineering, and Life Sciences.
Plastics Material and Resin Manufacturing  ................       325211
Wood Preservation........................  ................       321114
All Other Basic Organic Chemical           ................       325199
 Manufacturing.
Ball and Roller Bearing Manufacturing....  ................       332991
Tire Manufacturing (except Retreading)...  ................       326211
Semiconductor and Related Device           ................       334413
 Manufacturing.
All Other Motor Vehicle Parts              ................       336399
 Manufacturing.
Fruit and Vegetable Canning..............  ................       311421
Paperboard Mills.........................  ................       322130
Commercial Screen Printing...............  ................       323113

[[Page 62219]]

 
Unlaminated Plastics Film and Sheet        ................       326113
 (except Packaging) Manufacturing.
Electronic Computer Manufacturing........  ................       334111
Other Motor Vehicle Electrical and         ................       336322
 Electronic Equipment Manufacturing.
Surgical and Medical Instrument            ................       339112
 Manufacturing.
Ophthalmic Goods Manufacturing...........  ................       339115
All Other Miscellaneous Manufacturing....  ................       339999
Hydroelectric Power Generation...........  ................       221111
Electric Bulk Power Transmission and       ................       221121
 Control.
Electric Power Distribution..............  ................       221122
Medicinal and Botanical Manufacturing....  ................       325411
All Other Miscellaneous Nonmetallic        ................       327999
 Mineral Product Manufacturing.
Printed Circuit Assembly (Electronic       ................       334418
 Assembly) Manufacturing.
Motor Vehicle Body Manufacturing.........  ................       336211
Dry, Condensed, and Evaporated Dairy       ................       311514
 Product Manufacturing.
Carpet and Rug Mills.....................  ................       314110
Cut Stock, Re-sawing Lumber, and Planing.  ................       321912
All Other Basic Inorganic Chemical         ................       325188
 Manufacturing.
Soap and Other Detergent Manufacturing...  ................       325611
Custom Compounding of Purchased Resins...  ................       325991
All Other Plastics Product Manufacturing.  ................       326199
Concrete Block and Brick Manufacturing...  ................       327331
Iron and Steel Mills.....................  ................       331111
Aluminum Die-Casting Foundries...........  ................       331521
Metal Coating, Engraving (except Jewelry   ................       332812
 and Silverware), and Allied Services to
 Manufacturers.
Farm Machinery and Equipment               ................       333111
 Manufacturing.
Office Machinery Manufacturing...........  ................       333313
Pump and Pumping Equipment Manufacturing.  ................       333911
Electron Tube Manufacturing..............  ................       334411
Search, Detection, Navigation, Guidance,   ................       334511
 Aeronautical, and Nautical System and
 Instrument Manufacturing.
Instrument Manufacturing for Measuring     ................       334515
 and Testing Electricity and Electrical
 Signals.
Prerecorded Compact Disc (except           ................       334612
 Software), Tape, and Record Reproducing.
Magnetic and Optical Recording Media       ................       334613
 Manufacturing.
Motor and Generator Manufacturing........  ................       335312
Motor Vehicle Transmission and Power       ................       336350
 Train Parts Manufacturing.
Aircraft Manufacturing...................  ................       336411
Guided Missile and Space Vehicle           ................       336414
 Manufacturing.
Sporting and Athletic Goods Manufacturing  ................       339920
Solid Waste Combustors and Incinerators..  ................       562213
National Security........................  ................       928110
Potash, Soda, and Borate Mineral Mining..  ................       212391
Malt Manufacturing.......................  ................       311213
Cigarette Manufacturing..................  ................       312221
Canvas and Related Product Mills.........  ................       314912
Reconstituted Wood Product Manufacturing.  ................       321219
Wood Window and Door Manufacturing.......  ................       321911
Pulp Mills...............................  ................       322110
Nonfolding Sanitary Food Container         ................       322215
 Manufacturing.
Synthetic Organic Dye and Pigment          ................       325132
 Manufacturing.
Synthetic Rubber Manufacturing...........  ................       325212
Noncellulosic Organic Fiber Manufacturing  ................       325222
In-Vitro Diagnostic Substance              ................       325413
 Manufacturing.
Adhesive Manufacturing...................  ................       325520
Polish and Other Sanitation Good           ................       325612
 Manufacturing.
Surface Active Agent Manufacturing.......  ................       325613
Printing Ink Manufacturing...............  ................       325910
Rubber Product Manufacturing for           ................       326291
 Mechanical Use.
All Other Rubber Product Manufacturing...  ................       326299
Plate Work Manufacturing.................  ................       332313
Metal Can Manufacturing..................  ................       332431
Other Ordnance and Accessories             ................       332995
 Manufacturing.
Printing Machinery and Equipment           ................       333293
 Manufacturing.
Food Product Machinery Manufacturing.....  ................       333294
Optical Instrument and Lens Manufacturing  ................       333314
Photographic and Photocopying Equipment    ................       333315
 Manufacturing.
Turbine and Turbine Generator Set Units    ................       333611
 Manufacturing.
Bare Printed Circuit Board Manufacturing.  ................       334412
Electronic Capacitor Manufacturing.......  ................       334414
Automatic Environmental Control            ................       334512
 Manufacturing for Residential,
 Commercial, and Appliance Use.
Instruments and Related Products           ................       334513
 Manufacturing for Measuring, Displaying,
 and Controlling Industrial Process
 Variables.
Other Communication and Energy Wire        ................       335929
 Manufacturing.

[[Page 62220]]

 
Current-Carrying Wiring Device             ................       335931
 Manufacturing.
Automobile Manufacturing.................  ................       336111
Truck Trailer Manufacturing..............  ................       336212
Gasoline Engine and Engine Parts           ................       336312
 Manufacturing.
Motor Vehicle Air Conditioning             ................       336391
 Manufacturing.
Dental Equipment and Supplies              ................       339114
 Manufacturing.
Musical Instrument Manufacturing.........  ................       339992
Other Nonhazardous Waste Treatment and     ................       562219
 Disposal.
Industrial Launderers....................  ................       812332
Regulation and Administration of           ................       926120
 Transportation Programs.
Space Research and Technology............  ................       927110
------------------------------------------------------------------------

    Entities potentially affected by this final action also include 
state, local, and Tribal governments that have been authorized to 
implement these regulations.
    Outline. The information presented in this preamble is organized as 
follows:

I. General Information
    A. Is there a parallel proposal to today's action?
    B. Does this action apply to me?
II. Overview
    A. What is the National Environmental Performance Track Program?
    B. What is the history of this action?
    C. What is EPA's rationale for this rule?
III. Final Rulemaking Changes to 180-Day accumulation time for 
Performance Track hazardous waste generators
    A. What are the current requirements for large quantity 
generator accumulation, and what is in today's final rule?
    1. Standards for facilities to notify to States and EPA
    2. Standards for waste management in containers
    3. Standards for waste management in tanks
    4. Standards for preparedness and prevention; and contingency 
plan and emergency procedures
    5. Typographical corrections to the 2004 preamble at 69 FR 21737
    B. How will today's final rule affect applicability of RCRA 
rules in authorized States?
IV. Summary of Environmental, Energy, and Economic Impacts
    A. What are the cost and economic impacts?
    B. What are the health, environmental, and energy impacts?
V. Effective Date for Today's Requirements
VI. Administrative Requirements
    A. Executive Order 12866, Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act
VII. Statutory Authority
VIII. Judicial Review

II. Overview

    A. What is the National Environmental Performance Track Program?
    The National Environmental Performance Track Program is a voluntary 
EPA program that recognizes and rewards private and public facilities 
that demonstrate strong environmental performance beyond current 
requirements. The program is based on the premise that government 
should complement existing programs with new tools and strategies that 
not only protect people and the environment, but also capture 
opportunities for reducing cost and spurring technological innovation.
    Since the program's inception in June 2000, Performance Track 
membership has grown and has produced solid results. Performance Track 
encourages participation by small, medium, and large facilities, and 
its members are located throughout the United States, including Puerto 
Rico. A broad range of industries are represented, with manufacturers 
of chemical, electronic and electrical, and medical equipment 
comprising nearly 40 percent of the members, and both large and small 
facilities. Over the last three years, Performance Track has received 
508 applications and accepted 409. Currently there are 304 members.
    Performance Track also provides recognition, regulatory 
flexibility, and other incentives that promote high levels of 
environmental performance and provides a learning network where best 
practices can be shared. In addition, the program encourages continuous 
environmental improvement through the use of environmental management 
systems, and fosters public outreach, community involvement, and 
performance measurement.
    Once accepted, members remain in the program for three years, as 
long as they continue to meet the program criteria. After three years 
they may apply to renew their membership through a streamlined 
application process. Facilities applying to Performance Track must 
have: (1) An Environmental Management System in place for at least one 
full cycle that has been assessed by an independent party; (2) a 
history of sustained compliance; (3) past environmental achievements 
and a commitment to continuous environmental improvement; and (4) 
community outreach and annual reporting.
    For a closer look at the activities and accomplishments of 
Performance Track members to date, as well as member's goals for future 
achievements, please refer to the program Web site at http://www.epa.gov/performancetrack.

B. What Is the History of This Action?

    The revisions EPA is finalizing today concern the August 13, 2002 
proposed rule (67 FR 52674), and April 22, 2004 final rule (69 FR 
21737) that include provisions under both the Clean Air Act and RCRA. 
However, today's action applies only to the RCRA provisions. The 
provisions under the MACT program finalized at 69 FR 21737 are 
unchanged by today's action.
    Today's action revises RCRA regulations to allow hazardous waste 
generators who are members of Performance Track to extend on-site 
storage of hazardous waste. Performance Track members may extend 
storage time to 180 days, and in certain cases 270 days, to accumulate 
their hazardous waste without a RCRA permit or interim status.
    EPA is issuing today's direct final rule to correct one 
inconsistency and three omissions that were published in the

[[Page 62221]]

April 2004 final rule. Since there was a proposed rule on August 13, 
2002 during which the Agency accepted public comment, and no comments 
were received with regard to the subject provisions being corrected 
today, EPA believes this to be a non-controversial revision and 
anticipates no adverse comments as a result of today's action.

C. What Is EPA's Rationale for This Rule?

    EPA is publishing today's direct final rule solely to revise the 
inconsistency and omissions from the proposed rule (67 FR 52674), and 
final rule (69 FR 21737).

III. Final Rulemaking Changes: 180-Day Accumulation Time for 
Performance Track Hazardous Waste Generators

    There are four provisions in today's direct final rule, and three 
corrections of typographical errors from the rule finalized on April 
22, 2004 (69 FR 21737). The preamble section describing Sec.  
262.34(j)(2) is corrected, and the regulatory language in Sec. Sec.  
262.34(j)(3)(i), 262.34(j)(3)(ii), and 262.34(j)(7) are corrected to 
include applicable regulatory provisions that were unintentionally 
omitted from the April 22, 2004 final rule. There were also three 
typographical errors on 69 FR page 21748; these are corrected today as 
described below in section III A 5.

A. What are the Current Requirements for Large Quantity Generator 
Accumulation, and What Is in Today's Final Rule?

1. Standards for Facilities To Notify States and EPA
    Section 262.34(j)(2), facility notification. The April 2004 
preamble description of Sec.  262.34(j)(2) is inconsistent with the 
regulatory language as finalized. Section 262.24(j)(2) requires a 
facility to submit a notification to the authorized State and the EPA. 
However, the preamble incorrectly described this notification to be 
submitted to the authorized State or EPA. The following paragraph 
replaces the April 22, 2004 preamble section at 69 FR 21747. The 
description of this section is entitled ``Initial Notice.''
    The revised preamble section now reads as follows: ``Initial 
Notice. Under Sec.  262.34(j)(2), Performance Track generators need to 
give prior notice to EPA and the authorized State agency of their 
intent to accumulate hazardous waste in excess of 90 days in accordance 
with this rule. These notices will assist EPA and state agencies in 
monitoring implementation of this incentive. Public comments to the 
proposal expressed concern that such notifications may place an 
additional burden on facilities with dynamic waste streams if re-
notifications are required for each new waste stream. EPA acknowledges 
this concern, clarifies that notifications are generally one-time 
events, and estimates that this burden will be of minimal impact to 
member facilities.''
2. Standards for Waste Management in Containers
    Section 262.34(j)(3)(i) of the regulatory language in the April 
2004 final rule (69 FR 21754) inadvertently omitted a reference for 
compliance with subparts AA, BB, and CC of 40 CFR part 265 and 40 CFR 
264.175 that was included in the preamble of the August 2002 proposal. 
The reference to subpart I remained in that section of the final rule. 
The omitted applicable regulatory provisions refer to compliance with 
RCRA secondary containment standards, and air emission standards for 
process vents; equipment leaks; and tanks, surface impoundments, and 
containers. This reference was included at the proposal stage (67 FR 
52674), and inadvertently omitted from the final rule. Therefore, the 
regulatory language in Section 262.34(j)(3)(i) is amended today to 
read: ``Containers, in accordance with the applicable requirements of 
subparts I, AA, BB, and CC of 40 CFR part 265 and 40 CFR 264.175; or * 
* *''
3. Standards for Waste Management in Tanks
    Section 262.34(j)(3)(ii) of the regulatory language in the April 
2004 final rule at 69 FR 21754 omitted the reference to comply with 
sections AA, BB, and CC of 40 CFR part 265, and omitted an exception to 
compliance with 40 CFR 265.197(c). The reference to subpart J remained 
in that section of the final rule. Subparts AA, BB, and CC of 40 CFR 
part 265 refer to compliance with air emission standards for process 
vents; equipment leaks; and tanks, surface impoundments, and 
containers; 40 CFR 265.197(c) refers to interim status standards for 
closure and post-closure care for tanks. These applicable regulatory 
provisions were included at the proposal stage (67 FR 52674), and 
inadvertently omitted from the final rule.
    Also in section 262.34(j)(3)(ii), the reference to Sec.  265.200 
remained, but the clause ``except for Sec.  265.197(c)'' was omitted. 
The effect of omitting Sec.  265.197(c) is that it inadvertently 
required compliance with Sec.  265.200 (waste analysis and trial tests 
for tanks), rather than waive the requirement to comply with Sec.  
265.200.
    Therefore, the regulatory language in Sec.  262.34(j)(3)(ii) is 
amended today to read: ``Tanks, in accordance with the applicable 
requirements of subparts J, AA, BB, and CC of 40 CFR part 265 except 
for Sec. Sec.  265.197(c) and 265.200; or * * *''
    When EPA finalized the rule in April 2004, the Federal Register 
preamble section on pages 69 FR 21747-8 correctly described Sec. Sec.  
262.34(j)(3)(i) and 262.34(j)(3)(ii). Since EPA is today correcting the 
regulatory language, we are repeating the description of that preamble 
language for clarity.
    The preamble section describing Sec. Sec.  262.34(j)(3)(i) and 
262.34(j)(3)(ii) continues to read as follows: ``Standards for 
Accumulation Units. Condition (Sec.  262.34(j)(3)) in today's rule 
requires Performance Track generators to accumulate hazardous wastes in 
storage units (such as containers, tanks, drip pads, and containment 
buildings) that meet the standards for storing hazardous wastes at RCRA 
interim status facilities (see subparts I, J, W, and DD of 40 CFR part 
265, respectively). These are standard requirements for large quantity 
generators.
    If Performance Track facilities use containers for extended 
accumulation of hazardous wastes, today's rule additionally requires 
secondary containment systems for containers to prevent releases into 
the environment that might be caused by handling accidents, 
deterioration, or other circumstances. Secondary containment is a 
standard requirement for RCRA-permitted facilities that use containers 
to store hazardous wastes containing free liquids and certain listed 
hazardous wastes (i.e., F020, F021, F023, F026, and F027). It is not, 
however, typically required for hazardous waste generators or interim 
status facilities. Public comments (received on the initial proposal 67 
FR 52674) on the secondary containment requirement included support for 
the proposal, concerns about the costs of secondary containment, and 
recommendations for more stringent requirements. EPA believes that 
requiring secondary containment in the context of this rule is a 
reasonable, common-sense precaution to take in exchange for extending 
accumulation time limits and increasing the volume limit.''
4. Standards for Preparedness and Prevention; and Contingency Plan and 
Emergency Procedures
    Section 262.34(j)(7) of the regulatory language at 69 FR 21754 of 
the April 2004 final rule omitted a reference to comply with subparts C 
and D of Part 265. The second sentence of the

[[Page 62222]]

regulatory language was correct as published. Subparts C and D of 40 
CFR Part 265 are provisions for preparedness and prevention, and 
contingency plan and emergency procedures. The reference to subparts C 
and D was included in the regulatory language at the proposal stage (67 
FR 52674), and inadvertently omitted from the final rule. EPA is 
amending Sec.  262.34(j)(7) today by correcting the omission that 
occurred in the final rule. To remain consistent with Federal Register 
publication guidelines, EPA is publishing both sentences of Sec.  
262.34(j)(7), even though the second sentence is unchanged from the 
April 2004 final rule. Therefore, the regulatory language in Sec.  
262.34(j)(7) is amended today to read: ``The generator complies with 
the requirements for owners and operators in subparts C & D in 40 CFR 
part 265, and with Sec. Sec.  265.16, and 268.7(a)(5). In addition, 
such a generator is exempt from all the requirements in Subparts G and 
H of part 265 of this chapter, except for Sec. Sec.  265.111 and 
265.114; and * * *''
    The preamble section from the final rule at 69 FR 21737 that 
described Sec.  262.34(j)(7) was correct as published. EPA repeats the 
preamble language here.
    General Facility Standards. Under current regulations, all 
hazardous waste generators are subject to certain general facility 
standards relating to personnel training, preparedness and prevention, 
and contingency plans and emergency procedures.
    These general facility requirements also apply to Performance Track 
generators, and have been included in this rule for the sake of 
clarity.
5. Typographical Corrections to the 2004 Preamble at 69 FR 21737
    69 FR 21748, middle column, third line. This preamble paragraph as 
published refers to ``Sec.  262.24(j)(6).'' EPA clarifies that it 
should refer to Sec.  262.34(j)(6).
    69 FR 21748, middle column, the first paragraph under Pollution 
Prevention refers to Sec.  262.34(j)(7), but should refer to Sec.  
262.34(j)(8).
    69 FR 21748, middle column, the third paragraph under Pollution 
Prevention refers to Sec.  262.34(8), but should refer to Sec.  
262.34(j)(8).

B. How Will Today's Final Rule Affect Applicability of RCRA Rules in 
Authorized States?

    Under section 3006 of RCRA, EPA may authorize a qualified State to 
administer and enforce a hazardous waste program within the State in 
lieu of the Federal program, and to issue and enforce permits in the 
State. (See 40 CFR Part 271 for the standards and requirements for 
authorization.) Following authorization, a State continues to have 
enforcement responsibilities under its law to pursue violations of its 
hazardous waste program. EPA continues to have independent authority 
under RCRA sections 3007, 3008, 3013, and 7003.
    After authorization, Federal rules written under RCRA provisions 
that predate the Hazardous and Solid Waste Amendments of 1984 (HSWA) no 
longer apply in the authorized state. New Federal requirements imposed 
by those rules that predate HSWA do not take effect in an authorized 
State until the State adopts the requirements as State law.
    In contrast, under section 3006(g) of RCRA, new requirements and 
prohibitions imposed by HSWA take effect in authorized States at the 
same time they take effect in non-authorized States. EPA is directed to 
carry out HSWA requirements and prohibitions in authorized States until 
the State is granted authorization to do so.
    Today's final rule is not promulgated under HSWA authorities. 
Consequently, it does not amend the authorized program for states upon 
promulgation, as EPA does not implement the rule. The authorized RCRA 
program will change when EPA approves a State's application for a 
revision to its RCRA program.
    For today's Performance Track rule, EPA encourages States to 
expeditiously adopt Performance Track regulations and begin program 
implementation. To revise the Federally-authorized RCRA program, States 
need to seek formal authorization for the Performance Track rule after 
program implementation. EPA encourages States to begin implementing 
this incentive as soon as it is allowable under State law, while the 
RCRA authorization process proceeds.\1\
---------------------------------------------------------------------------

    \1\ EPA encourages States to take this approach for less 
stringent Federal requirements where rapid implementation is 
important. For example, EPA encouraged States to implement State 
Corrective Action Management Unit Regulations, once adopted as a 
matter of State law, prior to authorization (see 58 FR 8677, 
February 16, 1993).
---------------------------------------------------------------------------

IV. Summary of Environmental, Energy, and Economic Impacts

    Today's direct final rule corrects provisions finalized on April 
22, 2004 (69 FR 21737). The economic impact of RCRA Sec.  262.34(j) is 
not changed by today's rulemaking. That is, the economic analysis 
conducted by EPA for the Performance Track Rule published in April 2004 
at 69 FR 21737 addresses completely the changes being made today.

A. What Are the Cost and Economic Impacts?

    There are no cost or economic impacts as a result of today's 
rulemaking.

B. What Are the Health, Environmental, and Energy Impacts?

    There are no health, environmental, or energy impacts to today's 
rulemaking. Today's changes do not loosen the underlying environmental 
obligations of Performance Track facilities.

V. Effective Date for Today's Requirements

    The changes contained in this final rule will take effect on 
December 27, 2004. These rule changes apply only to members of the 
Performance Track, which is a voluntary program. The changes are 
intended to provide regulatory relief and do not impose new 
requirements.

VI. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review

    Today's direct final rule corrects provisions finalized on April 
22, 2004 (69 FR 21737). The economic impact of RCRA Sec.  262.34(j) is 
not changed by today's rulemaking. That is, the economic analysis 
conducted by EPA for the Performance Track Rule published in April 2004 
at 69 FR 21737 addresses completely the changes being made today.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This rule makes corrections to a rule published in April 2004 (69 FR 
21737), and requires no additional information collection requirements. 
However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements under the provisions 
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 
OMB control number 2010-0032, and EPA ICR number 1949.04. A copy of the 
OMB approved Information Collection Request (ICR) may be obtained from 
Susan Auby, Collection Strategies Division; U.S. Environmental 
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 
20460 or by calling (202) 566-1672.

[[Page 62223]]

    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rule 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 final rule on 
small entities, small entity is defined as: (1) A small business 
according to the Small Business Administration definition for the 
business's NAICS code; (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 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 final 
rule will not impose any requirements on small entities. Today's direct 
final rule corrects provisions finalized on April 22, 2004 (69 FR 
21737) in 40 CFR Sec.  262.34(j). The economic impact of RCRA Sec.  
262.34(j) is not changed by today's rulemaking. That is, the economic 
analysis conducted by EPA for the Performance Track rule published in 
April 2004 at 69 FR 21737 addresses completely the changes being made 
today.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 04-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written Statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written Statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. Participation by facilities in the Performance 
Track is voluntary, and so is participation by State or local 
government agencies. There are no significant or unique effects on 
State, local, or Tribal governments. Today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 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 
Executive Order 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 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 Executive Order 13132. This rule makes minor 
corrections to a final rule published in April 2004 at 69 FR 21737. 
Executive Order 13132 does not apply to this rule.
    Stakeholders, including many States, were consulted during the 
development of the Performance Track Program. Many suggestions and 
ideas generated by States and other stakeholders provided the basis for 
some of the provisions in the performance track program. In the spirit 
of Executive Order 13132, and consistent with EPA policy to promote 
communications between EPA and State and local governments, EPA 
specifically sought comment on the 2002 proposed rule from State and 
local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' ``Policies that have Tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have Tribal implications. It will not have 
substantial

[[Page 62224]]

direct effects on Tribal governments, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian tribes, 
as specified in Executive Order 13175. Thus, Executive Order 13175 does 
not apply to this rule. In the spirit of Executive Order 13175, and 
consistent with EPA policy to promote communications between EPA and 
Tribal governments, EPA specifically sought additional comment on the 
2002 proposed rule from Tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045: ``Protection of Children From Environmental 
Health & Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Further, EPA has 
concluded that this rule is not likely to have any adverse energy 
effects.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note), directs all Federal agencies to use voluntary consensus 
standards instead of government-unique standards in their regulatory 
and procurement activities, unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (such as materials specifications, test 
methods, sampling procedures, business practices) that are developed or 
adopted by one or more voluntary consensus standards bodies. Examples 
of organizations generally regarded as voluntary consensus standards 
bodies include the American Society for Testing and Materials (ASTM), 
the National Fire Protection Association (NFPA), and the Society of 
Automotive Engineers (SAE). The NTTAA directs EPA to provide Congress, 
through annual reports to OMB, with explanations when an Agency does 
not use available and applicable voluntary consensus standards.
    This final rule does not involve technical standards. Thus, the 
provisions of NTTAA do not apply to this rule and EPA is not 
considering the use of any voluntary consensus standards.

J. 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 United States 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). This final rule is effective on December 27, 2004.

VII. Statutory Authority

    The statutory authority for this action is provided by sections 
2002 and 3002 of the Solid Waste Disposal Act, as amended by the 
Resource Conservation and Recovery Act of 1976, as amended by the 
Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. 6912 and 6922).

VIII. Judicial Review

    Under section 6976(a) of the Resource Conservation and Recovery 
Act, judicial review of the RCRA-portion of this final rule is 
available only by the filing of a petition for review in the U.S. Court 
of Appeals for the District of Columbia Circuit by December 27, 2004. 
Under this same section 6976(a) of RCRA, the requirements that are the 
subject of this final rule may not be challenged later in civil or 
criminal proceedings brought by us to enforce these requirements.

List of Subjects in 40 CFR Part 262

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Labeling, Packaging and containers, Reporting and 
recordkeeping requirements.

    Dated: October 19, 2004.
Michael O. Leavitt,
Administrator.

0
40 CFR part 262 is amended as follows:

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

0
1. The authority citation for part 262 continues to read as follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

Subpart C--[Amended]

0
2. Section 262.34 is amended by revising paragraphs (j)(3)(i), 
(j)(3)(ii), and (j)(7) to read as follows:


Sec.  262.34  Accumulation time.

* * * * *
    (j) * * *
    (3) * * *
    (i) Containers, in accordance with the applicable requirements of 
subparts I, AA, BB, and CC of 40 CFR part 265 and 40 CFR 264.175; or
    (ii) Tanks, in accordance with the applicable requirements of 
subparts J, AA, BB, and CC of 40 CFR part 265, except for Sec. Sec.  
265.197(c) and 265.200; or
* * * * *
    (7) The generator complies with the requirements for owners and 
operators in subparts C and D in 40 CFR part 265, with Sec.  265.16, 
and with Sec.  268.7(a)(5). In addition, such a generator is exempt 
from all the requirements in subparts G and H of part 265 of this 
chapter, except for Sec. Sec.  265.111 and 265.114; and
* * * * *
[FR Doc. 04-23842 Filed 10-22-04; 8:45 am]
BILLING CODE 6560-50-P


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