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[Federal Register Volume 77, Number 35 (Wednesday, February 22, 2012)]
[Rules and Regulations]
[Pages 10387-10390]
From the Federal Register Online via the Government Publishing 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: [email protected].
     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 ([email protected]), 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) * * *

------------------------------------------------------------------------
             Waste                    Constituent            Max ppm
------------------------------------------------------------------------
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
 
                              * * * * * * *
------------------------------------------------------------------------

[FR Doc. 2012-4060 Filed 2-21-12; 8:45 am]
BILLING CODE 6560-50-P
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