[Federal Register Volume 75, Number 243 (Monday, December 20, 2010)]
[Rules and Regulations]
[Pages 79304-79308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31746]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 262

[EPA-HQ-RCRA-2003-0012; FRL-9240-5]


Technical Corrections to the Standards Applicable to Generators 
of Hazardous Waste; Alternative Requirements for Hazardous Waste 
Determination and Accumulation of Unwanted Material at Laboratories 
Owned by Colleges and Universities and Other Eligible Academic Entities 
Formally Affiliated With Colleges and Universities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action for six technical 
corrections to an alternative set of hazardous waste generator 
requirements known as the ``Academic Laboratories rule'' or ``Subpart 
K'' which is applicable to laboratories owned by eligible academic 
entities. These changes correct errors published in the Academic 
Laboratories Final rule, including omissions and redundancies, as well 
as remove an obsolete reference to the Performance Track program, which 
has been terminated. These technical corrections will improve the 
clarity of the Academic Laboratories rule.

DATES: This rule is effective on March 7, 2011 without further notice, 
unless EPA receives adverse comment by January 19, 2011. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the specific amendments in 
this Direct Final rule for which the Agency received adverse comment 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2003-0012 by one of the following methods:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#443627362569202b272f2130042134256a232b32"><span class="__cf_email__" data-cfemail="f684958497db9299959d9382b6938697d8919980">[email protected]</span></a>.
    <bullet> Fax: 202-566-9794.
    <bullet> Mail: RCRA Docket, Environmental Protection Agency, 
Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    <bullet> Hand Delivery: EPA West Building, Room 3334, 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.

[[Page 79305]]

    Instructions: Direct your comments to Docket ID No. EPA-HQ-2003-
0012. 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.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 http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without 
going through www.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. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/dockets.
    Docket: All documents in the docket are listed in the http://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 http://www.regulations.gov or in hard copy at the RCRA 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: Kristin Fitzgerald, Office of Resource 
Conservation and Recovery, (5304P), Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460; (703) 308-8286; 
<a href="/cdn-cgi/l/email-protection#cb8da2bfb1acaeb9aaa7afe580b9a2b8bfa2a58baebbaae5aca4bd"><span class="__cf_email__" data-cfemail="f4b29d808e939186959890dabf869d87809d9ab4918495da939b82">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

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 since the changes are minor and consistent with the preamble 
language from the Final rule of December 1, 2008 (73 FR 72912). 
However, in the ``Proposed Rules'' section of today's Federal Register, 
we are publishing a separate document that will serve as the Proposed 
rule to amend 40 CFR Part 262, Subpart K 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 to notify the public that those 
specific amendments in this Direct Final rule for which the Agency 
received adverse comment will not take effect, and the reason for such 
withdrawal. We would address all public comments in a subsequent Final 
rule based on the Proposed rule.

Does this action apply to me?

    This Direct Final rule amends Subpart K of 40 CFR part 262. 
Entities potentially affected by this action are any of the following 
which generate hazardous waste in laboratories: (1) Colleges and 
universities; (2) non-profit research institutes that are either owned 
by or have a formal written affiliation agreement with a college or 
university; and (3) teaching hospitals that are either owned by or have 
a formal written affiliation agreement with a college or university.

                     NAICS Codes of Entities Potentially Affected by this Direct Final Rule
----------------------------------------------------------------------------------------------------------------
                               NAICS codes                                       Description of NAICS code
----------------------------------------------------------------------------------------------------------------
Colleges & Universities:
    6112, 61121, 611210.................................................  Junior Colleges.
    6113, 61131, 611310.................................................  Colleges, Universities, and
                                                                           Professional Schools.
    6115, 61151.........................................................  Technical and Trade Schools.
    611519..............................................................  Other Technical and Trade Schools.
    61161, 611610.......................................................  Fine Arts Schools.
Teaching Hospitals:
    54194, 541940.......................................................  Veterinary Services (Animal
                                                                           Hospitals).
    622.................................................................  Hospitals.
    6221, 62211, 622110.................................................  General Medical and Surgical
                                                                           Hospitals.
    6222, 62221, 622210.................................................  Psychiatric and Substance Abuse
                                                                           Hospitals.
    6223, 62231, 622310.................................................  Specialty (except Psychiatric and
                                                                           Substance Abuse) Hospitals.
Non-profit Research Institutes:
    5417, 54171, 541710.................................................  Research and Development in the
                                                                           Physical, Engineering, and Life
                                                                           Sciences.
    54172, 541720.......................................................  Research and Development in the Social
                                                                           Sciences and Humanities.
----------------------------------------------------------------------------------------------------------------

What should I consider as I prepare my comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information on 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

[[Page 79306]]

accordance with the procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    <bullet> 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.
    <bullet> Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
    <bullet> Describe any assumptions and provide any technical 
information and/or data that you used.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    <bullet> Explain your views as clearly as possible.
    <bullet> Make sure to submit your comments by the comment period 
deadline identified.

Preamble Outline

I. Statutory Authority
II. Explanation of Changes
III. State Authorization
    A. Applicability of Rules in Authorized States
    B. Effect on State Authorization
IV. Statutory and Executive Order Reviews
    A. Regulatory Flexibility Act
    B. Congressional Review Act

I. Statutory Authority

    These regulations are promulgated under the authority of Sec. Sec.  
2002, 3001, 3002, and 3004 of the Solid Waste Disposal Act (SWDA) of 
1970, as amended by the Resource Conservation and Recovery Act (RCRA) 
of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984 
(HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924.

II. Explanation of Changes

    In today's Direct Final rule, there are six technical corrections 
to the final Academic Laboratories rule (also referred to as Subpart 
K), which was published in the Federal Register on December 1, 2008 (73 
FR 72912).
    The first two corrections in today's Direct Final rule are to the 
definition of ``central accumulation area,'' which is in the section of 
the Academic Laboratories Final rule entitled Definitions for this 
subpart (Sec.  262.200). First, in the Academic Laboratories Final 
rule, the definition of ``central accumulation area'' included a 
reference to the RCRA hazardous waste generator regulations for what 
are typically called ``large quantity generators.'' The regulatory 
reference that was included in the Academic Laboratories Final rule was 
Sec.  262.34(a). However, large quantity generators are also subject to 
Sec.  262.34(b), if they accumulate hazardous waste for more than 90 
days. In the Academic Laboratories Final rule, we inadvertently omitted 
that additional regulatory reference for large quantity generators; 
therefore, we are adding it in today's Direct Final rule.
    Second, the definition of ``central accumulation area'' included a 
reference to the RCRA hazardous waste generator regulations for 
Performance Track members (specifically Sec.  262.34(j) and (k)) in 
order to indicate that eligible academic entities that were Performance 
Track members were eligible to use the Academic Laboratories rule. 
However, after the Academic Laboratories rule became final, EPA's 
Performance Track program was terminated (74 FR 22742). Therefore, we 
are removing the parenthetical statement from the definition of 
``central accumulation area'' that references the generator regulations 
specifically for Performance Track members, since the reference is now 
moot.
    The third correction in today's Direct Final rule is in the section 
of the Academic Laboratories Final rule entitled Labeling and 
management standards for containers of unwanted material in the 
laboratory (Sec.  262.206). The regulatory text of the Final rule 
requires that containers of unwanted material be kept closed at all 
times, with three exceptions. One of the exceptions to the ``closed 
container rule'' is when adding, removing or consolidating unwanted 
material (Sec.  262.206(b)(3)(i)). In this instance, we use the term 
``consolidating'' to mean combining the contents of several containers 
into a single container. This is often also referred to as ``bulking.''
    In the preamble to the Final rule (see page 72937), we used the 
term ``consolidation'' in a different sense. In this instance, we used 
the term ``consolidation'' to mean moving containers of unwanted 
material from one laboratory to another laboratory, such that 
containers from multiple laboratories can be collected or 
``consolidated'' to accumulate in one laboratory. Under this use of the 
term, the contents of the containers remain in their original 
containers, but the location of the containers changes. To eliminate 
confusion caused by using the same term in two different ways, in Sec.  
262.206(b)(3)(i), we are changing the term ``consolidating'' to 
``bulking.''
    The fourth correction in today's Direct Final rule is in the 
section of the Academic Laboratories Final rule entitled ``Making the 
hazardous waste determination at an on-site interim status or permitted 
treatment, storage or disposal facility'' (Sec.  262.212). Under 
paragraph (e)(1) of that section, if an unwanted material is a 
hazardous waste, an eligible academic entity must ``Write the words 
``hazardous waste'' on the container label that is affixed or attached 
to the container * * *'' In a parenthetical following the quoted text, 
we inadvertently included the phrase ``(or on the label that is affixed 
or attached to the container, if that is preferred).'' This 
parenthetical is repetitive of the text immediately preceding it in 
paragraph (e)(1); therefore we are amending paragraph Sec.  
262.212(e)(1) to eliminate the redundant parenthetical phrase.
    The last two corrections in today's Direct Final rule are in the 
``Laboratory management plan'' (LMP) section of the Academic 
Laboratories rule (Sec.  262.214). Specifically, eligible academic 
entities that choose to opt into Subpart K are required to have a 
written LMP with two parts, and a total of nine elements. Part I of the 
LMP must contain two elements, while Part II of the LMP must contain 
seven elements.
    The fifth correction in today's Direct Final rule is in the first 
element of Part I of the LMP (Sec.  262.214(a)(1)). The preamble to the 
Academic Laboratories Final rule makes it clear that we intended the 
first element of Part I of the LMP to include just two items, but the 
regulatory language inadvertently made it seem like those two items 
were just part of the requirement, rather than the entire requirement. 
Therefore, in Sec.  262.214(a)(1), we are replacing the word 
``including'' with the words ``as follows'' in order to make clear our 
intent. In fact, it is in the first element of Part II of the LMP 
(Sec.  262.214(b)(1)) that eligible academic entities must include 
their best intended practices for container labeling and management 
that go beyond the two items required in the first element of Part I.
    The sixth correction in today's Direct Final rule is in the first 
element of Part II of the LMP (Sec.  262.214(b)(1)). When the Academic 
Laboratories rule was proposed (71 FR 29712), EPA did not specifically 
address in-line containers in the container management standards in 
Sec.  262.206(b). In the Final rule, we added Sec.  
262.206(b)(3)(iii)(A) to the container management standards, which 
specifically addresses the management of in-line containers by allowing 
venting

[[Page 79307]]

of a container when it is necessary for the proper operation of 
laboratory equipment, such as with in-line collection of unwanted 
materials from high performance liquid chromatographs.
    When Sec.  262.206(b)(3)(iii)(A) was added, we neglected to 
eliminate the redundant requirement that addresses in-line containers 
in the first element of Part II of the LMP regulations (Sec.  
262.214(b)(1)). Therefore, we are eliminating the redundant language 
today.

III. State Authorization

A. Applicability of Rules in Authorized States

    Under Sec.  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 Sec. Sec.  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 Sec.  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.
    Authorized States are required to modify their program only when 
EPA enacts Federal requirements that are more stringent or broader in 
scope than the existing Federal requirements. RCRA Sec.  3009 allows 
the 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 HSWA and non-HSWA regulations that 
are considered (1) less stringent or (2) neither more nor less 
stringent than previous Federal regulations.

B. Effect on State Authorization

    These amendments are promulgated under non-HSWA RCRA authority. 
These non-HSWA amendments will be applicable on the effective date only 
in those States that do not have final authorization of their base RCRA 
programs. 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 Sec.  3009 of RCRA, which allows States to impose more 
stringent regulations than the Federal program. Today's amendments are 
considered to be neither more nor less stringent than the current 
standards. Therefore, authorized States, while not required to modify 
their programs to adopt the technical corrections discussed above, are 
strongly urged to adopt these technical corrections to avoid any 
confusion or misunderstanding by the regulated community and the 
public.

IV. Statutory and Executive Order Reviews

    As explained above, this action makes technical corrections to the 
text of the Academic Laboratories rule but does not make any 
substantive change to the requirements of that rule. For that reason, 
this action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132: Federalism (64 FR 43255, August 10, 1999);
    <bullet> 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 changes, it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law;
    <bullet> 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);
    <bullet> 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);
    <bullet> Does not involve technical standards; thus the 
requirements of Sec.  12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) do not apply; and
    <bullet> Is one for which the EPA lacks the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994).

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.

[[Page 79308]]

    After considering the economic impact of today's Direct 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 
makes technical corrections to Subpart K of the hazardous waste 
generator regulations. Although this Direct Final rule will not have a 
significant economic impact on a substantial number of small entities, 
EPA nonetheless has tried to reduce the impact of this rule on small 
entities.

B. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 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 
action 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).

List of Subjects in 40 CFR Part 262

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

    Dated: December 13, 2010.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
    For the reasons set out in the preamble, Part 262 of title 40, 
chapter I of the Code of Federal Regulations 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 K--Alternative Requirements for Hazardous Waste 
Determination and Accumulation of Unwanted Material for 
Laboratories Owned by Eligible Academic Entities

0
2. Amend Sec.  262.200 to revise the definition of ``central 
accumulation area'' to read as follows:


Sec.  262.200  Definitions for this subpart.

* * * * *
    Central accumulation area means an on-site hazardous waste 
accumulation area subject to either Sec.  262.34(a)-(b) of this part 
(large quantity generators) or Sec.  262.34(d)-(f) of this part (small 
quantity generators). A central accumulation area at an eligible 
academic entity that chooses to be subject to this subpart must also 
comply with Sec.  262.211 when accumulating unwanted material and/or 
hazardous waste.
* * * * *

0
3. Amend Sec.  262.206 to revise paragraph (b)(3)(i), to read as 
follows:


Sec.  262.206  Labeling and management standards for containers of 
unwanted material in the laboratory.

* * * * *
    (b) * * *
    (3) * * *
    (i) When adding, removing or bulking unwanted material, or
* * * * *

0
4. Amend Sec.  262.212 to revise paragraph (e)(1), to read as follows:


Sec.  262.212  Making the hazardous waste determination at an on-site 
interim status or permitted treatment, storage or disposal facility.

* * * * *
    (e) * * *
    (1) Write the words ``hazardous waste'' on the container label that 
is affixed or attached to the container within 4 calendar days of 
arriving at the on-site interim status or permitted treatment, storage 
or disposal facility and before the hazardous waste may be removed from 
the on-site interim status or permitted treatment, storage or disposal 
facility, and
* * * * *

0
5. Amend Sec.  262.214 to revise paragraphs (a)(1) introductory text 
and (b)(1), to read as follows:


Sec.  262.214  Laboratory management plan.

* * * * *
    (a) * * *
    (1) Describe procedures for container labeling in accordance with 
Sec.  262.206(a), as follows:
* * * * *
    (b) * * *
    (1) Describe its intended best practices for container labeling and 
management (see the required standards at Sec.  262.206).
* * * * *
[FR Doc. 2010-31746 Filed 12-17-10; 8:45 am]
BILLING CODE 6560-50-P


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