Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57769 

recordkeeping requirements, Sulfur 

oxides, Sulfuric acid plants, Waste 

treatment and disposal. 

Dated: September 19, 2005. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

■ 40 CFR part 62 is amended as follows: 

PART 62—[AMENDED] 

■ 1. The authority citation for part 62 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart LL—Oklahoma 

■ 2. Section 62.9100 is amended by 

adding paragraphs (c)(6) to read as 

follows: 

§ 62.9100 Identification of plan. 

* * * * * 

(b) * * * 

* * * * * 

(6) Control of air emissions from 

existing commercial and industrial solid 

waste incineration units, submitted by 

the Oklahoma Department of 

Environmental Quality on June 29, 

2005. (OAC 252:100–17, Part 9). 

* * * * * 

(c) * * * 

* * * * * 

(6) Commercial and industrial solid 

waste incineration units. 

■ 3. Subpart LL is amended by adding 

a new undesignated center heading and 

new § 62.9190 and new § 62.9191 to 

read as follows: 

Existing Commercial and Industrial 

Solid Waste Incineration Units 

§ 62.9190 Identification of sources. 

(a) The plan applies to the following 

existing commercial and industrial solid 

waste incineration units: 

(a) A&A Enterprises, Ardmore, 

Oklahoma. 

(b) Henryetta Pallet Company, 

Henryetta, Oklahoma. 

(c) Oklahoma AAA Pallet Co., Inc., 

Oklahoma City, Oklahoma. 

(d) Simer Pallet Recycling, Inc., 

Chickasha, Oklahoma. 

§ 62.9191 Effective date. 

The effective date of this portion of 

the State’s plan applicable to existing 

commercial and industrial solid waste 

incineration units is December 5, 2005. 

[FR Doc. 05–19838 Filed 10–3–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[RCRA–2002–0028; FRL–7980–1] 

RIN 2050–AE84 

Revision of Wastewater Treatment 

Exemptions for Hazardous Waste 

Mixtures (‘‘Headworks Exemptions’’) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In today’s action, the 

Environmental Protection Agency is 

finalizing the addition of benzene and 2- 

ethoxyethanol to the list of solvents 

whose mixtures with wastewaters are 

exempted from the definition of 

hazardous waste under the Resource 

Conservation and Recovery Act. The 

scrubber waters derived-from the 

combustion of any of the exempted 

solvents also are included in the 

exemption. In addition, the Agency is 

revising the rule by adding an option to 

allow generators to directly measure 

solvent chemical levels at the 

headworks of the wastewater treatment 

system to determine whether the 

wastewater mixture is exempt from the 

definition of hazardous waste. Finally, 

the Agency is extending the eligibility 

for the de minimis exemption to other 

listed hazardous wastes (beyond 

discarded commercial chemical 

products) and to non-manufacturing 

facilities. 

DATES: This final rule is effective on 

November 3, 2005 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. RCRA–2002–0028. 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 RCRA 

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 RCRA Docket is (202) 566–0270. 

FOR FURTHER INFORMATION CONTACT: Lisa 

Lauer, Hazardous Waste Identification 

Division, Office of Solid Waste (5304W), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460; telephone number: 703–308–

7418; fax number: 703–308–0514; e-mail 

address: Lauer.Lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: 

General Information 

Entities potentially affected by this 

action are generators of industrial 

hazardous waste, and entities that treat, 

store, transport and/or dispose of these 

wastes. The table below is not intended 

to be exhaustive, but rather provides a 

guide for readers regarding the types of 

entities likely to be affected by this 

action. 

LIST OF ECONOMIC SUBSECTORS POTENTIALLY AFFECTED BY THE EXPANSION IN SCOPE OF THE RCRA HAZARDOUS

WASTE ‘‘HEADWORKS EXEMPTION’’ FOR INDUSTRIAL WASTEWATER TREATMENT SYSTEMS

Item 

Economic subsector or industry identity 

Description 

SIC code NAICS code 

1 ........................................................ 02 112 Agricultural production—livestock. 

2 ........................................................ 20 311 Food & kindred products. 

3 ........................................................ 22 313 Textile mill products. 

4 ........................................................ 24 321 Lumber & wood products. 

5 ........................................................ 25 337 Furniture & fixtures. 

6 ........................................................ 26 322 Paper & allied products. 

7 ........................................................ 28 325 Chemicals & allied products. 

8 ........................................................ 29 324 Petroleum & coal products. 

9 ........................................................ 30 326 Rubber & miscellaneous plastics products. 

10 ...................................................... 31 316 Leather & leather products. 

11 ...................................................... 32 327 Stove, clay, glass & concrete products. 

57770 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 

LIST OF ECONOMIC SUBSECTORS POTENTIALLY AFFECTED BY THE EXPANSION IN SCOPE OF THE RCRA HAZARDOUS

WASTE ‘‘HEADWORKS EXEMPTION’’ FOR INDUSTRIAL WASTEWATER TREATMENT SYSTEMS—Continued 

Item 

Economic subsector or industry identity 

Description 

SIC code NAICS code 

12 ...................................................... 33 331 Primary metal industries. 

13 ...................................................... 34 332 Fabricated metal products. 

14 ...................................................... 35 333 Industrial machinery & equipment. 

15 ...................................................... 36 334, 335 Electrical & electronic equipment. 

16 ...................................................... 37 336 Transportation equipment. 

17 ...................................................... 38 3333, 3345 Instruments & related products. 

18 ...................................................... 42 493 Motor freight transportation & warehousing. 

19 ...................................................... 4581 48819, 56172 Airports, flying fields, & airport terminal services.

20 ...................................................... 4789 488999 Transportation services nec. 

21 ...................................................... 49 221 Electric, gas, & sanitary services. 

22 ...................................................... 50 421 Wholesale trade—durable goods. 

23 ...................................................... 51 422 Wholesale trade—nondurable goods. 

24 ...................................................... 5999 453998 Miscellaneous retail. 

25 ...................................................... 721 8123 Dry-cleaning & industrial laundry services. 

26 ...................................................... 73 514, 532, 541, 561 Business services. 

27 ...................................................... 80 621, 622, 623 Health services. 

28 ...................................................... 87 712 Engineering & management services. 

29 ...................................................... 8999 54162 Miscellaneous services. 

30 ...................................................... 91 921 Executive, legislative & general government. 

31 ...................................................... 95 924, 925 Environmental quality & housing. 

32 ...................................................... 97 928 National security & international affairs. 

Notes: 

(a) SIC=1987 Standard Industrial Classification system (U.S. Department of Commerce’s traditional code system last updated in 1987). 

(b) NAICS=1997 North American Industrial Classification System (U.S. Department of Commerce’s new code system as of 1997). 

(c) This list is based upon industry codes reported to the USEPA RCRA hazardous waste 1997 ‘‘Biennial Reporting System’’ database by 

F002/F005 aqueous spent solvent generators which manage such wastes in wastewater treatment systems, supplemented by industry codes 

which have USEPA Clean Water Act ‘‘Categorical Pretreatment Standards’’ for indirect discharge of industrial wastewaters to POTWs (as of July 

2002). 

(d) The USEPA Office of Solid Waste matched 1987 2-digit level SIC codes to 1997 NAICS codes using the U.S. Census Bureau website: 

http://www.census.gov/epcd/naics/nsic2ndx.htm#S0. Refer to the Internet Web site http://www.census.gov/epcd/www/naicstab.htm for additional 

information and a cross-walk table for the SIC and NAICS codes systems. 

This table lists the types of entities 

that EPA believes could be affected by 

this action, based on industrial sectors 

identified in the ‘‘Economics 

Background Document’’ in support of 

this rule. A total of about 3,266 to 

10,446 entities are expected to benefit 

from the revisions to 40 CFR 261.3 in 

the 32 industrial sectors listed above, 

but primarily in the chemicals and 

allied products sector (i.e., SIC code 28, 

or NAICS code 325). Other entities not 

listed in the table also could be affected. 

To determine whether your facility is 

covered by this action, you should 

examine 40 CFR part 261 carefully in 

concert with the final rules found at the 

end of this Federal Register 

announcement. If you have questions 

regarding the applicability of the action 

to a particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

LIST OF ACRONYMS

Acronym Meaning 

ACC .................... American Chemistry 

Council. 

CAA .................... Clean Air Act. 

CERCLA ............. Comprehensive Environmental Response, Compensation, and Liability 

Act. 

CFR .................... Code of Federal Regulations. 

CWA ................... Clean Water Act 

EPA .................... Environmental Protection 

Agency. 

FR ...................... Federal Register. 

HSWA ................ Hazardous and Solid 

Waste Amendments. 

HWIR .................. Hazardous Waste Identification Rule. 

LDR .................... Land Disposal Restrictions. 

MACT ................. Maximum Achievable 

Control Technology. 

NAICS ................ North American Industrial 

Classification System. 

LIST OF ACRONYMS—Continued 

Acronym Meaning 

NPDES ............... National Pollutant Discharge Elimination System. 

NSPS ................. New Source Performance 

Standard. 

NTTAA ............... National Technology 

Transfer and Advancement Act. 

OMB ................... Office of Management 

and Budget. 

POTW ................ Publicly Owned Treatment 

Works. 

ppm .................... parts per million. 

RCRA ................. Resource Conservation 

and Recovery Act. 

RFA .................... Regulatory Flexibility Act. 

SBREFA ............. Small Business Regulatory Enforcement Fairness Act. 

SIC ..................... Standard Industrial Classification. 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57771 

LIST OF ACRONYMS—Continued 

Acronym Meaning 

UMRA ................. Unfunded Mandates Reform Act. 

WAP ................... Waste Analysis Plan. 

Outline 

The information in this preamble is 

organized as follows: 

I. Background 

A. What Law Authorizes These Rules? 

B. What Is the History of the Headworks 

Rule? 

C. When Will the Final Rule Become 

Effective? 

II. Summary of the Proposed Rule 

A. Which Solvents Were Proposed To Be 

Added to the Headworks Exemption? 

B. What Revisions Were Proposed for the 

Headworks Compliance Monitoring 

Method? 

C. What Scrubber Waters Were Proposed 

To Be Exempted? 

D. Exempting Leachate Derived-From 

Solvent Wastes 

E. Exempting Other Types of Leachate 

F. What Expansions to the De Minimis 

Exemption Were Proposed? 

III. Changes From the Proposed Rule 

A. Exemption for Scrubber Waters DerivedFrom Spent Solvent Combustion 

B. Facilities Using the De Minimis 

Exemption Will Not Be Required To List 

Limits for Appendix VII and LDR 

Constituents in Their Clean Water Act 

Permits 

C. ‘‘Unscheduled,’’ ‘‘Uncontrollable,’’ and 

‘‘Insignificant,’’ Will Not Remain in the 

Regulatory Text of the De Minimis 

Exemption 

IV. Summary of Responses to Major 

Comments 

A. Addition of Benzene and 2- 

Ethoxyethanol to the Headworks 

Exemption 

B. Addition of Direct Monitoring as a 

Headworks Compliance Monitoring 

Method 

1. General Issues 

2. The Informal Headworks Definition 

3. Sampling and Analysis Plan Issues 

4. Allowing Performance-Based Reduction 

in Sampling Frequency and Changing 

the Current Compliance Standard 

C. The Exemption of Scrubber Waters 

Derived-From the Incineration of Listed 

Wastes 

D. Expansion of the De Minimis Exemption 

1. General Issues 

2. Clean Water Act Permit Requirement 

3. Inclusion of ‘‘Unscheduled,’’

‘‘Uncontrollable,’’ ‘‘Insignificant,’’ and 

‘‘Inadvertent’’ in the Regulatory 

Definition of De Minimis 

4. Removal of ‘‘Rinsates From Empty 

Containers’’ From the Regulatory 

Definition of De Minimis 

E. The Potential Exemptions of Leachates 

Derived-From Solvent Wastes and 

Leachates Derived-From Other Types of 

Hazardous Wastes 

V. State Authorization 

A. How Will Today’s Regulatory Changes 

Be Administered and Enforced in the 

States? 

VI. Statutory and Executive Order Reviews 

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 

Risks and Safety Risks 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act of 1995 

J. Congressional Review Act 

I. Background 

A. What Law Authorizes These Rules? 

These rules are promulgated under 

the authority of Sections 2002(a), 3001, 

3002, 3004 and 3006 of the Solid Waste 

Disposal Act of 1970, as amended by the 

Resource Conservation and Recovery 

Act of 1976 (RCRA), 42 U.S.C. 6912(a), 

6921, 6922, 6924, 6938. 

B. What Is the History of the Headworks 

Rule? 

The current wastewater treatment 

exemptions (‘‘headworks rule’’) under 

40 CFR 261.3(a)(2)(iv)(A)–(G) exempt 

from the mixture rule spent solvents, 

commercial chemical products, lab 

wastes, and certain additional listed 

wastes which are a minuscule and 

treatable part of the mix in wastewaters. 

The ‘‘mixture rule’’ dictates that a solid 

waste becomes regulated as a hazardous 

waste if it is mixed with one or more 

listed hazardous waste (40 CFR 

261.3(a)(2)(iv)). The rationale for these 

exemptions is the risk to the 

environment would be negligible 

because wastewater treatment systems 

are capable of easily and effectively 

handling small volumes of these organic 

constituents. After the promulgation of 

the original headworks rule (46 FR 

56582, November 17, 1981), the Agency 

listed four additional solvents (1,1,2- 

trichloroethane, benzene, 2- 

nitropropane, and 2-ethoxyethanol) in 

the F002 and F005 categories (51 FR 

6537, February 25, 1986). However, at 

the time, the Agency did not determine 

whether or not to add these solvents to 

the headworks rule exemptions. 

In August 1999, EPA received a 

request from the American Chemistry 

Council (ACC, formerly the Chemical 

Manufacturers Association) to add 1,1,2- 

trichloroethane, benzene, 2- 

nitropropane, and 2-ethoxyethanol to 

the headworks exemption. ACC also 

asked the Agency to allow direct 

monitoring as an alternative method for 

determining compliance with the 

headworks rule. Other ACC-requested 

headworks rule changes included 

allowing those wastes listed in 40 CFR 

261.31 and 261.32 to be added to the de 

minimis exemption and expanding the 

headworks rule to include certain 

landfill leachates. EPA included a 

request for comment in the November 

19, 1999, proposed Hazardous Waste 

Identification Rule (HWIR) (64 FR 

63382) on these and other ACCsuggested exemptions to the mixture 

and derived-from rules. Many of the 

changes in the April 8, 2003, proposed 

rule (68 FR 17234) are an outgrowth of 

ACC’s suggested revisions and the 

public comments that EPA received in 

response to the discussion of these 

suggested revisions in the 1999 HWIR 

proposal. 

C. When Will the Final Rule Become 

Effective? 

These final regulations will become 

effective November 3, 2005. 

II. Summary of the Proposed Rule 

A. Which Solvents Were Proposed To Be 

Added to the Headworks Exemption? 

On April 8, 2003, we proposed to add 

to the headworks exemption two of the 

four solvents that were listed in 1986 

(68 FR 17234). Benzene was proposed to 

be added at the level of 1 part per 

million (ppm) with these conditions: 

wastewaters containing benzene are 

managed in aerated biological waste 

management units; and, surface 

impoundments used prior to secondary 

clarification are lined (40 CFR 

261.3(a)(2)(iv)(A)). The addition of these 

contingent management practices was 

supported by data from the groundwater 

pathway human health risk analysis 

which demonstrated that non-aerated 

treatment scenarios resulted in 

exposures above the level of concern for 

all components of the treatment 

scenario and that aerated biological 

treatment scenarios resulted in 

exposures above the level of concern 

only when primary clarifier wastewaters 

were managed in an unlined surface 

impoundment. (See Risk Assessment to 

Support the Wastewater Treatment 

Exemptions (Headworks Exemptions) 

Proposed Rule, U.S. EPA 2003). 

In addition, we proposed to add 2- 

ethoxyethanol to the headworks 

exemption at the level of 25 ppm (40 

CFR 261.3(a)(2)(iv)(B)). Data from the 

groundwater pathway human health 

risk analysis supported this proposed 

addition of 2-ethoxyethanol at 25 ppm 

57772 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 

in the headworks as it posed no 

significant human health risk at this 

level. (See Risk Assessment to Support 

the Wastewater Treatment Exemptions 

(Headworks Exemptions) Proposed 

Rule, U.S. EPA 2003). 

The Agency did not take any action to 

add 2-nitropropane and 1,1,2- 

trichloroethane to the exemption due to 

the lack of available risk information 

and the failures in the groundwater 

pathway human health risk analysis, 

respectively. 

B. What Revisions Were Proposed for 

the Headworks Compliance Monitoring 

Method? 

The Agency proposed to add an 

additional approach for facilities to 

demonstrate compliance with 40 CFR 

261.3(a)(2)(iv)(A), (B), (F) and (G) of the 

wastewater treatment exemptions. The 

additional method is an option to 

directly measure solvent chemical levels 

at the headworks of the wastewater 

treatment system in lieu of performing 

mass balance calculations. Direct 

monitoring will be an option for those 

facilities subject to Clean Air Act (CAA) 

regulations that minimize fugitive 

process or wastewater emissions (e.g., 

MACT standards under 40 CFR part 61 

or 63 or NSPS requirements under 40 

CFR part 60). Facilities taking advantage 

of the proposed direct monitoring 

approach will be required to report the 

entire concentration of the chemical in 

question if any of it was used as a 

solvent. 

The proposed addition of direct 

monitoring as a headworks compliance 

monitoring method required the Agency 

to address a number of implementation 

issues not associated with the mass 

balance approach. To ensure facilities 

utilizing the direct monitoring method 

will understand where in the 

wastewater treatment train sampling is 

to occur, the Agency provided guidance 

describing the headworks location in 

the proposal (67 FR 17242, April 8, 

2003). This guidance mirrors the 

language in the 1981 preamble and 

provides maximum flexibility by 

accommodating the numerous facility 

configurations present in the regulated 

community. 

The Agency also proposed that 

facilities taking advantage of the direct 

monitoring approach are to develop a 

site-specific sampling and analysis plan 

that demonstrates compliance with the 

weekly average standards set for the 

appropriate solvent(s). The sampling 

and analysis plan must include the 

monitoring point location, the sampling 

frequency and methodology, and a list 

of appropriate constituents to be 

monitored. The Agency proposed that 

facilities file a copy of the sampling and 

analysis plan with the overseeing 

agency. However, no approval of the 

plan is required prior to the 

commencement of the direct monitoring 

method; nevertheless, the facility must 

have confirmation of the plan’s receipt 

(e.g., a certified mail return receipt or 

written confirmation of delivery from a 

commercial delivery service) by the 

overseeing agency prior to 

implementation of the direct monitoring 

scheme. 

C. What Scrubber Waters Were Proposed 

To Be Exempted? 

The Agency proposed to add those 

scrubber waters derived-from the 

combustion of spent solvents that are 

then subsequently sent to a facility’s 

wastewater treatment system to the 

headworks exemption. The Agency 

believes that the scrubber waters 

derived-from combustion of spent 

solvent wastes will be comparable in 

expected constituents and concentration 

levels with spent solvent wastewaters. 

D. Exempting Leachate Derived-From 

Solvent Wastes 

The Agency discussed the ACC 

request to consider adding leachate from 

landfills that accept only F001–F005 

spent solvent wastes to the headworks 

exemption. Because we lacked sufficient 

data concerning the variability, the 

Agency did not propose an exemption 

but considered the discussion of the 

issue as an Advanced Notice of 

Proposed Rulemaking. 

E. Exempting Other Types of Leachate 

The Agency also discussed and 

sought comment regarding a possible 

future addition of leachate from captive, 

on-site hazardous waste landfills to the 

headworks exemption. Again, because 

EPA lacked adequate information to 

determine if the levels of constituents 

present in the leachate pose an 

unacceptable risk, it did not propose an 

exemption for non-solvent leachate. 

F. What Expansions to the De Minimis 

Exemption Were Proposed? 

The Agency proposed to broaden the 

scope of the de minimis exemption (40 

CFR 261.3(a)(2)(iv)(D)) in two ways: (1) 

By expanding the eligibility for the 

exemption beyond manufacturing 

facilities to include non-manufacturing 

sites such as raw material storage 

terminals and hazardous waste 

facilities; and, (2) by expanding the 

types of waste eligible for the exemption 

to include the F- and K-listed wastes 

(§§ 261.31 and 261.32). To qualify for 

the newly expanded portions of the de 

minimis exemption, we also proposed 

that either the manufacturing facilities 

claiming a de minimis loss of F- or Klisted wastes or non-manufacturing 

facilities claiming a de minimis loss of 

waste listed in §§ 261.31 through 261.33 

would need to have limits for the 

Appendix VII and Land Disposal 

Restrictions (LDR) constituents 

associated with their wastes included in 

their Clean Water Act (CWA) permits or 

that the facilities had to have eliminated 

the discharge of wastewater altogether. 

In addition, the Agency proposed that 

the words ‘‘unscheduled,’’

‘‘uncontrollable,’’ ‘‘inadvertent,’’ and 

‘‘insignificant’’ be added to the 

regulatory definition. The reasoning 

behind the addition of these words was 

to provide a clearer understanding of 

what a de minimis release is for all the 

listed wastes. 

III. Changes From the Proposed Rule 

A. Exemption for Scrubber Waters 

Derived-From Spent Solvent 

Combustion 

In the April 8, 2003, notice, EPA 

proposed to include in the exemption 

under § 261.3(a)(2)(iv)(A) and (B) those 

scrubber waters derived-from the 

combustion of spent solvents that then 

are sent to a facility’s wastewater 

treatment system. However, specific 

regulatory language for the inclusion of 

these scrubber waters in the headworks 

exemption was not included in the 

proposal. Based on the comments 

received, the final rule includes such 

language. 

As discussed in the preamble of the 

proposed rule, scrubber waters derivedfrom the combustion of spent solvents 

previously were not considered eligible 

for the headworks exemption because 

they are derived-from residuals of spent 

solvents and their release into the 

wastewater treatment system is not 

incidental (68 FR 17243, April 8, 2003). 

However, in the carbamates rule (60 FR 

7824–7859, February 9, 1995), the 

Agency allowed scrubber waters 

derived-from the incineration of 

carbamate production wastes to be 

eligible for the headworks exemption 

because the scrubber waters would be 

comparable in the expected constituents 

and concentration levels with the 

already-exempted wastewaters. 

Following the rationale in the 

carbamates rule, the Agency decided to 

propose in the April 8, 2003 notice that 

scrubber waters derived-from spent 

solvent combustion which are then sent 

to a facility’s wastewater treatment 

system will be eligible for the 

headworks exemption under 

§ 261.3(a)(2)(iv)(A) and (B). Similar to 

the carbamate scrubber waters, the 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57773 

Agency believes that the scrubber 

waters derived-from such combustion 

will be comparable in expected 

constituents and concentration levels 

with spent solvent wastewaters. 

Regulatory language has been 

included under § 261.3(a)(2)(iv)(A) and 

(B). The Agency notes the requirement 

that the scrubber waters must be solely 

derived-from the combustion of the 

listed spent solvents remains unchanged 

from the proposal. 

B. Facilities Using the De Minimis 

Exemption Will Not Be Required To List 

Limits for Appendix VII and LDR 

Constituents in Their Clean Water Act 

Permits 

The proposed rule contained a new 

requirement for those facilities taking 

advantage of the expanded de minimis 

exemption. Under this proposed 

requirement, a manufacturing facility 

claiming a de minimis loss of F- or Klisted wastes or a non-manufacturing 

facility claiming any de minimis loss of 

waste listed in §§ 261.31 through 261.33 

would have needed limits for the 

Appendix VII and LDR constituents 

associated with its wastes included in 

its CWA permit. 

However, commenters noted that 

permit writers usually do not set 

specific permit limits for every 

constituent that may be present in the 

effluent. In response to this comment, 

the Agency instead is requiring any 

facility that would like to claim any part 

of the expanded exemption to list all 

expected Appendix VII and LDR 

constituents in the CWA permit 

application. Alerting the permit writers 

of all expected Appendix VII and LDR 

constituents by listing them in the CWA 

permit application will allow the permit 

writers to ensure that the permit is 

sufficiently protective of human health 

and the environment. Similarly, 

facilities that discharge to publicly 

owned treatment works (POTW) must 

disclose every Appendix VII and LDR 

constituent that may be released to the 

POTW, as this will alert the POTW of 

any potential chemicals that may pass 

through or interfere with its operation or 

cause a permit violation. This 

notification to the permit writer or 

control authority must occur before the 

facility claims the newly expanded 

portions of the de minimis exemption. 

EPA has promulgated updated 

regulatory language under 

§ 261.3(a)(2)(iv)(D) in response to these 

comments. 

C. ‘‘Unscheduled,’’ ‘‘Uncontrollable,’’

and ‘‘Insignificant,’’ Will Not Remain in 

the Regulatory Text of the De Minimis 

Exemption 

In the proposed rule, the words 

‘‘unscheduled,’’ ‘‘uncontrollable,’’

‘‘insignificant’’ and ‘‘inadvertent’’ were 

added to the regulatory definition of de 

minimis (§ 261.3(a)(2)(iv)(D)). Numerous 

commenters were opposed to the 

addition of these four words and 

requested that they be removed from the 

regulatory text because the words would 

cause confusion to the regulated 

community and narrow the scope of the 

exemption. The Agency agrees that 

these descriptors are not necessary and 

is removing the words ‘‘unscheduled,’’

‘‘uncontrollable,’’ and ‘‘insignificant’’

from the regulatory text of de minimis. 

However, the word ‘‘inadvertent’’ will 

remain in the regulatory language. The 

purpose for the addition of 

‘‘inadvertent’’ in the regulatory 

definition of de minimis is to reinforce 

the concept that the losses must not be 

a result of neglectful or careless facility 

management. Rather, de minimis refers 

to small losses that occur during normal 

operating procedures at well-maintained 

facilities. The Agency believes that it is 

imperative that this concept be 

conveyed due to the exemption being 

expanded to include the F- and K-listed 

wastes (§ 231.31 and § 231.32), as well 

as to non-manufacturing facilities. 

Please see Section IV.D.3. for further 

discussion regarding the addition of the 

word ‘‘inadvertent’’ to the regulatory 

definition. 

IV. Summary of Responses to Major 

Comments 

The Agency summarizes below the 

responses to the most significant 

comments received in response to the 

proposal. All comments received by the 

Agency are addressed in the Response 

to Comments Background Document 

that is available in the docket associated 

with this rulemaking. 

A. Addition of Benzene and 2- 

Ethoxyethanol to the Headworks 

Exemption 

Many commenters supported the 

addition of benzene and 2- 

ethoxyethanol as proposed stating that 

their inclusion in the exemption will 

add consistency to the current 

regulatory scheme. Several commenters 

emphasized that the spent solvents will 

remain a very small and treatable part 

of the wastewater mixture. In addition, 

one commenter stated that the 

contingent management practices 

placed on the addition of benzene to the 

exemption were very reasonable. 

While there was strong support for the 

inclusion of the two solvents, one 

commenter disagreed with the addition 

of benzene and 2-ethoxyethanol to the 

exemption at the current concentration 

levels of 1 ppm and 25 ppm, 

respectively. The commenter stated that 

these levels are not protective of human 

health and the environment and that the 

calculated and direct measurement 

concentrations need to be reduced. In 

addition, the commenter suggested that 

the current weekly averaging period be 

decreased to daily or to some other 

shorter-term averaging period; however, 

the commenter did not submit data to 

support the reduction of the calculated 

and direct measurement concentrations, 

nor was data submitted to support a 

reduction in the averaging period. 

The Agency disagrees that the 

concentration limits of 1 ppm and 25 

ppm for benzene and 2-ethoxyethanol, 

respectively, are not protective. The 

environmentally conservative risk 

assessment performed on benzene 

demonstrated that the 1 ppm standard is 

protective when groundwater is 

indirectly exposed to the wastewater 

treatment sludge and when groundwater 

is directly exposed to wastewaters and 

sludge from aerated treatment trains 

(after secondary clarification). Scenarios 

from non-aerated systems and primary 

clarifier sludge from the aerated 

treatment scenario did result in some 

risks of concern. As a result, we are 

requiring that wastewaters containing 

benzene be managed in an aerated 

biological treatment unit and that 

surface impoundments used prior to 

secondary clarification be lined to be 

eligible for the exemption. The risk 

assessment performed on 2- 

ethoxyethanol demonstrated it does not 

pose a risk of concern for direct air 

exposure or for indirect and direct 

groundwater exposures at the 

concentration limit of 25 ppm. (See Risk 

Assessment to Support the Wastewater 

Treatment Exemptions (Headworks 

Exemptions) Proposed Rule, U.S. EPA 

2003). In regards to the commenter’s 

statement that the weekly average be 

reduced (i.e., that the compliance 

standard be changed), decreasing the 

averaging period from weekly to daily or 

to some other shorter averaging time 

addresses a provision in the current rule 

not identified specifically in the 

proposal as subject to possible 

amendment. EPA stated in the proposed 

rule that it would not respond to 

comments addressing such provisions 

(68 FR 17241, April 8, 2003). 

One commenter supported the 

addition of benzene but not the 

conditional management practices. The 

commenter requested that we reconsider 

57774 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 

our proposed conditions and allow 

benzene to be discharged into 

wastewater treatment systems in the 

same manner that the other solvents 

listed in § 261.3(a)(2)(iv)(A) are allowed. 

In the commenter’s opinion, the 

conditional management practices are 

too restrictive and inflexible for the 

addition of benzene to the exemption to 

be of any use to facilities. 

EPA disagrees that the exemption for 

benzene be unrestricted. Due to the 

exemption being based on the 

concentration level of benzene entering 

the wastewater treatment system and 

not wastewater and/or sludge waste 

leaving a facility, evaluation of the risks 

associated with benzene at this level 

required assuming various treatment 

methods and determining the risks from 

managing effluents from each interim 

point in a given treatment method (for 

further discussion, please see Risk 

Assessment to Support the Wastewater 

Treatment Exemptions (Headworks 

Exemptions) Proposed Rule, U.S. EPA 

2003). Aerated and non-aerated 

biological treatment, the two methods 

evaluated during the risk assessment, 

are understood by EPA to be the 

treatment methods used by the vast 

majority of facilities potentially affected 

by this rule. The conditional 

requirements on benzene are based 

directly on the results of the risk 

assessment for benzene (see above). If a 

facility using a method other than 

aerated biological treatment wishes to 

exempt their wastewater, they can apply 

for a site-specific delisting for their 

wastewater under § 260.22. 

One commenter requested that we 

include benzene still bottoms in the 

headworks exemption. This commenter 

argued that there is no regulatory relief 

for facilities recycling benzene in a still 

since the still bottoms must be managed 

as a hazardous waste (F005). The 

commenter stated that if the facility’s 

wastewater treatment system has the 

capability of treating the impurities that 

can be found in still bottoms, then the 

facility should be able to benefit from 

the exemption as well. 

EPA did not consider benzene still 

bottoms or still bottoms resulting from 

the distillation of other F-listed solvents 

within the scope of the proposed 

headworks rule. Therefore, still bottoms 

were not included in the risk 

assessment we performed in support of 

the addition of the spent solvents to 

§ 261.3(a)(2)(iv)(A) and (B). Due to 

concerns regarding constituents, such as 

metals, which can be found in still 

bottoms, EPA does not believe that it is 

appropriate to include benzene still 

bottoms in the wastewater treatment 

exemption without having performed a 

risk assessment. EPA notes that if a 

facility recycling benzene wishes to 

exempt their benzene still bottoms, they 

can apply for a site-specific delisting for 

their still bottoms under § 260.22. 

B. Addition of Direct Monitoring as a 

Headworks Compliance Monitoring 

Method 

1. General Issues 

Most commenters supported the 

addition of direct monitoring as a 

compliance option. Several cited the 

complexity for some sites to perform the 

mass balance calculations and 

commended the Agency for proposing 

to allow direct monitoring at the 

headworks location as an alternative 

compliance option. No commenters 

opposed the addition of direct 

monitoring, although several 

commenters did raise a number of 

issues related to direct monitoring. 

Separate sections discuss commenters’

issues and the Agency’s responses 

regarding the informal definition of 

headworks, eliminating the requirement 

to submit the sampling and analysis 

plan, and allowing performance-based 

reductions in sampling frequency. 

In addition to the issues listed above, 

many commenters expressed support for 

the requirement that a facility wanting 

to use direct monitoring be subject to 

CAA rules that minimize fugitive 

emissions. One commenter, however, 

questioned the eligibility status of those 

facilities that have adopted voluntary 

limits or controls as part of a federally 

enforceable permit. The Agency agrees 

that those facilities having federally 

enforceable permits that limit fugitive 

emissions in the facility prior to the 

headworks are eligible for the 

exemption as these federally enforceable 

permits are equivalent to a facility being 

subjected to CAA regulations that 

minimize fugitive emissions. Therefore, 

regulatory language explicitly allowing 

those facilities that have adopted limits 

or controls for fugitive emissions as part 

of a federally enforceable permit has 

been added in § 261.3(a)(2)(iv)(A), (B), 

(F), and (G). 

Another commenter expressed 

confusion about whether the CAA rule 

had to apply to the entire facility or just 

to the wastewater treatment unit 

specifically. The purpose of the 

requirement is to ensure that 

volatilization of solvents are minimized, 

and thereby preventing fugitive 

emissions from lowering spent solvent 

concentration levels, prior to the 

monitoring point at the headworks. EPA 

considered volatilization from the 

wastewater treatment unit after the 

headworks point (such as from the 

activated sludge unit or primary 

clarifier) in the Agency’s risk 

assessment and did not find 

volatilization to be an unacceptable 

source of risk as long as the solvent 

concentrations at the headworks did not 

exceed the specified levels. Because the 

intention of the requirement is to 

minimize volatilization prior to the 

headworks point and the risk 

assessment found that volatilization 

from the wastewater treatment unit did 

not present an unacceptable risk, it is 

not necessary for the receiving 

wastewater treatment unit itself to be 

subject to CAA regulations. However, 

EPA stresses that the process streams 

and wastewater streams that lead up to 

the headworks point must be subject to 

CAA regulations, or an enforceable limit 

federal operating permit, that minimizes 

fugitive emissions. 

One commenter objected to the 

requirement that, under the direct 

monitoring alternative, the generator 

must count the total amount of the 

chemical in the waste stream, even if 

some portion of it was from a nonsolvent source. In addition, another 

commenter stated that only allowing the 

sampling to occur at the headworks 

location is unnecessarily limiting 

because the chemical not being used for 

its solvent purposes will be included in 

the measured level. They asserted that 

these requirements are overly 

conservative and should be modified, 

suggesting that facilities be allowed to 

reduce the measured concentration by 

the fraction known to be from nonsolvent sources and that facilities be 

allowed to sample wastewaters closer to 

the point of generation. The Agency 

disagrees. The risk assessment 

performed by the Agency demonstrated 

that the 1 ppm and 25 ppm standards 

were protective for the total amount of 

the chemicals (benzene and 2- 

ethoxyethanol, respectively) introduced 

at the headworks. The source of these 

chemicals is irrelevant for the purposes 

of determining risk. If the solvent 

fraction of the chemical in the waste 

stream contributed to the total chemical 

concentration in the wastestream which 

exceeds the 1 ppm or 25 ppm threshold, 

then that constituent is posing an 

unacceptable risk to human health. 

Therefore, facilities cannot use a hybrid 

of the results from the mass balance and 

direct monitoring methods to discount 

the non-solvent source from the total 

measured concentration, nor can 

facilities sample at alternate locations in 

lieu of sampling at the headworks point. 

The Agency notes that facilities 

continue to have the option of using 

mass balance. 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57775 

1The provision in the proposed chlorinated 

aliphatics rule which stated that facilities must 

develop but do not need to submit their sampling 

and analysis plan was never finalized. 

2The Agency notes that while the paints rule has 

been finalized, no wastestreams were listed. 

Therefore, any provisions involving sampling and 

analysis plans were not finalized. 

Another issue of concern by a 

commenter is the possibility of the 

overseeing agency finding a facility to 

have exceeded the exemption levels on 

the basis of a compliance method 

different than the one the facility chose 

to use (e.g., the facility using mass 

balance and the agency using sampling). 

The overseeing agency will not be 

bound to use the same compliance 

method chosen by the facility; however, 

the procedures utilized by the 

overseeing agency when investigating a 

potential violation will be 

comprehensive enough to determine if 

the facility has exceeded the exemption 

levels before being found in violation. 

Lastly, a commenter requested that we 

clarify our intent with regards to 

allowing facilities to alternate between 

the two compliance methods or to use 

a combination of the two methods to 

demonstrate compliance. Facilities will 

have the option to alternate between the 

two methods or to concurrently use both 

methods and report the result of either 

method. However, as discussed above, 

facilities cannot use a hybrid of the two 

methods to demonstrate compliance 

(e.g., apply the solvent percentage to 

measured concentrations to discount the 

non-solvent use). EPA encourages 

facilities to notify the overseeing agency 

via the sampling and analysis plan that 

alternating between the compliance 

methods may occur. EPA also 

encourages facilities to provide 

examples of when a facility may switch 

from one method to the other. EPA 

notes that facilities may switch 

monitoring methods even if their 

submitted sampling and analysis plan 

did not discuss examples of when such 

an occurrence would happen. 

2. The Informal Headworks Description 

Several commenters supported the 

Agency’s approach of not proposing a 

formal regulatory definition for the term 

‘‘headworks,’’ but rather providing 

guidance on what it considers to be the 

‘‘headworks’’ location. In the preamble 

to the proposed rule, EPA stated that for 

purposes of this rule, ‘‘headworks can 

include a central catch basin for 

industrial wastewaters, a pump station 

outfall, equalization tank, or some other 

main wastewater collection area that 

exists in which transport of process 

wastewaters stops and chemical or 

biological treatment begins’’ (68 FR 

17242). The Agency did solicit 

comments on this non-regulatory 

description. Supporters for the informal 

description stated that the description of 

the term ‘‘headworks’’ in the preamble 

to the proposal is flexible enough to 

accommodate a myriad of different 

facilities within the regulated 

community. In addition, commenters 

agreed that creating a regulatory 

definition for ‘‘headworks’’ would result 

in the loss of this flexibility. 

However, one commenter believed 

that confusion might result from EPA’s 

headworks description because it 

assumes that no pretreatment is 

occurring prior to the wastewaters’

arrival at the headworks. The 

commenter explained that pretreatment 

frequently occurs upstream to the 

headworks location, and typically there 

is no one central location where all 

wastewaters come together prior to 

pretreatment. Therefore, the headworks 

location should be the point where the 

exemption is claimed regardless of 

whether or not pretreatment has 

occurred. The commenter also stated 

that the definition of headworks should 

be codified; however, as an alternative 

to incorporating the definition into the 

regulatory code, the commenter 

suggested that clarification of the 

location be provided in the preamble of 

the final rule. 

First, EPA disagrees with the 

commenter’s statement that a definition 

of headworks should be codified. The 

Agency believes that it would be 

difficult to develop a regulatory 

definition of the term ‘‘headworks’’ that 

could apply at all or even most facilities 

given the varied nature of facility 

configurations. The guidance approach 

to identifying the headworks location 

accommodates a range of facility 

configurations, thereby providing 

maximum flexibility. However, EPA 

does agree that the in-process pretreatment of wastewaters prior to their 

arrival at the headworks location occurs 

and is allowable under this provision. 

Therefore, EPA is modifying its 

guidance regarding the informal 

description of the term ‘‘headworks’’ so 

that the headworks location can now be 

described as the point at which final 

combination of raw or pre-treated 

process wastewater streams typically 

takes place. 

3. Sampling and Analysis Plan Issues 

Many supporters of the direct 

monitoring option commented that it 

was too burdensome to submit the 

sampling and analysis plan and to 

obtain confirmation of its receipt before 

direct monitoring can begin. One 

commenter, who misunderstood the 

proposed requirement, objected to 

explicit approval having to be obtained 

by the overseeing agency prior to 

starting direct monitoring. However, the 

Agency is not requiring that the facility 

obtain explicit approval from their 

overseeing agency prior to the start of 

direct monitoring. The facility simply is 

required to obtain confirmation of 

receipt (e.g., a certified mail return 

receipt or written confirmation of 

delivery from a commercial delivery 

service) prior to starting direct 

monitoring. 

The Agency disagrees that submittal 

of the sampling and analysis plan is 

overly burdensome. Submittal of the 

sampling and analysis plan will provide 

notification to the overseeing agency 

that a change in compliance 

methodology is planned. This 

notification is a one-time event, unless 

there is a change in the facility’s 

operations that causes a change in 

monitoring that renders the SAP 

obsolete. The majority of the burden in 

this requirement is the preparation of 

the sampling and analysis plan, and no 

commenter objected to developing the 

sampling and analysis plan, correctly 

recognizing that it is the foundation for 

any rigorous monitoring program. 

Several commenters asserted that 

requiring the facility to submit their 

sampling and analysis plan ran counter 

to EPA’s recently proposed RCRA 

Burden Reduction Initiative (67 FR 

2518, Jan. 17, 2002). In addition, 

commenters noted that in 1997, the 

Agency specifically eliminated the 

requirement that generators managing 

and treating prohibited waste in tanks, 

containers and containment buildings 

under 40 CFR 262.34 submit sampling 

and analysis plans to its overseeing 

Agency under 268.7(a)(5). These 

commenters also pointed out that 

neither the chlorinated aliphatics final 

rule (65 FR 67068) nor the paint 

production proposed rule (66 FR 10060) 

required facilities to submit their 

sampling and analysis plans to the 

overseeing agency, instead allowing the 

facilities to keep their plans on-site. 

EPA believes that it is inappropriate 

to compare the proposed chlorinated 

aliphatics rule 1 (64 FR 46476; August 

25, 1999) and the proposed paints rule 2

to the headworks rule. While it is true 

that the proposed chlorinated aliphatics 

rule and the proposed paint production 

rule required sampling and analysis 

plans to be developed but not 

submitted, there are two significant 

differences between these listing rules 

and the headworks exemption. First, the 

testing required under the two listing 

rules is on currently non-hazardous 

waste to document that the waste 

57776 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 

should continue to be out of the 

hazardous waste regulatory system. In 

contrast, the testing required under the 

headworks rule is on currently 

hazardous waste to determine whether 

or not it can safely exit the hazardous 

waste regulatory system. The Agency 

has generally taken a different approach 

for determining whether a waste is 

hazardous, as opposed to demonstrating 

that hazardous waste in fact is not 

hazardous. Second, direct monitoring is 

not a requirement to qualify for the 

headworks exemption; it is an option. If 

the facility determines that submitting 

the sampling and analysis plan is too 

burdensome, then the facility can opt 

not to use the direct monitoring method 

to demonstrate compliance but can 

continue to use the mass balance 

approach. 

EPA also disagrees that submitting the 

sampling and analysis plan is 

contradictory to the proposed RCRA 

Burden Reduction Initiative (67 FR 

2518, Jan. 17, 2002) and the removal in 

1997 of the LDR requirement to submit 

the facility’s sampling and analysis 

plan. The purpose of the proposed 

burden reduction rule is to eliminate 

reports that are found to be duplicative 

or not used by state or regional agencies 

to protect human health and the 

environment. In today’s rule, submitting 

the sampling and analysis plan serves as 

a notification to the overseeing agency 

that the facility will be using direct 

monitoring to demonstrate compliance 

with the headworks exemption. The 

sampling and analysis plan also will 

provide important information on key 

sampling parameters that the facility 

intends to use. EPA notes that the 

facility has a wide latitude to design the 

sampling and analysis plan, and the 

facility initially will set the conditions 

with which they intend to comply. As 

the sampling and analysis plan is not 

duplicative of any other requirement 

and serves as notification to the 

overseeing agency, EPA believes 

retaining the requirement to submit the 

sampling and analysis plan is 

reasonable and consistent with the 

proposed burden reduction rule. 

In addition, while it is true that in 

1997 EPA removed the requirement of 

submitting waste analysis plans for 

generators managing and treating 

prohibited waste in tanks, containers 

and containment buildings, the purpose 

of removing this requirement was to 

streamline the LDR process (60 FR 

43678, August 22, 1995). This 

streamlining was in response to the 

Burden Reduction Initiative set forth in 

the President’s report on ‘‘Reinventing 

Environmental Regulations,’’ March 16, 

1995. EPA stated that due to the growth 

of the LDR program and the regulated 

community’s better understanding of 

the program, it was unnecessary to 

maintain all of the reporting and 

recordkeeping requirements. Thus, 

certain LDR paperwork requirements 

were eliminated to reduce the regulatory 

burden (61 FR 2363, January 25, 1996). 

EPA notes several key differences 

between the headworks rule and the 

LDR Phase IV rule. First, while the 

headworks exemption is not a new 

exemption, the addition of direct 

monitoring as a compliance method is a 

new option. Second, submitting the 

sampling and analysis plan is not a 

requirement to qualify for the 

exemption; it is a requirement for the 

use of the direct monitoring option. 

Therefore, EPA is requiring submittal of 

sampling and analysis plans to provide 

the overseeing agency the opportunity 

to ensure that facilities are utilizing the 

newly instituted compliance method 

properly. 

Two commenters requested further 

clarification regarding the rejection of 

the sampling and analysis plan. One 

commenter stated that if a sampling and 

analysis plan is submitted in good faith, 

but only exhibits minor flaws, then that 

facility should be able to continue to use 

the direct monitoring method while the 

minor inadequacies are being addressed. 

The other commenter requested more 

explanation regarding the actions that 

need to be taken in order for a facility 

to restart direct monitoring if the 

sampling and analysis plan is rejected. 

The Agency notes that the parameters 

of the sampling and analysis plan must 

enable the facility to accurately 

calculate the weekly average 

concentration, and the plan must 

include the monitoring point location, 

the sampling frequency and 

methodology, and a list of the 

constituents to be monitored. Therefore, 

the Agency maintains that if the 

sampling and analysis plan is rejected 

for major deficiencies (e.g., fails to 

include the above information or does 

not enable the facility to accurately 

calculate the weekly average) or if the 

facility is found not to be following the 

plan, then the facility can no longer use 

the direct monitoring option until the 

bases for rejection are corrected. Even if 

the overseeing agency does reject the 

sampling and analysis plan, the facility 

continues to have the option to 

demonstrate compliance using the mass 

balance method, while the facility is 

addressing the sampling and analysis 

plan issues. The Agency does support 

the continued use of direct monitoring 

while deficiencies are being corrected if 

the sampling and analysis plan is 

submitted in good faith and the 

deficiencies are minor. However, it is 

left to the discretion of the overseeing 

agency to determine the severity of the 

deficiencies and whether or not direct 

monitoring may continue while the 

facility addresses such minor 

deficiencies. 

It is the facility’s responsibility to 

determine from the overseeing agency 

the reason for the rejection and the steps 

that need to be taken to rectify the 

insufficiencies. The overseeing agency 

will determine whether the facility is to 

resubmit the entire sampling and 

analysis plan or just the amended 

sections once the facility corrects the 

bases for the rejection. Once the facility 

has received confirmation that the 

overseeing agency no longer has 

concerns with the amended sections of 

the plan, the facility may begin using 

the direct monitoring option. 

4. Allowing Performance-Based 

Reduction in Sampling Frequency and 

Changing the Current Compliance 

Standard 

Several commenters offered detailed 

suggestions of how the proposed sitespecific sampling and analysis plan 

could establish a sampling schedule that 

would allow a reduced sampling 

frequency once compliance with the 1 

ppm and 25 ppm thresholds was 

established. The commenters stated that 

this approach would be analogous to 

those taken historically in RCRA Waste 

Analysis Plans (WAP) and in CWA 

NPDES permits. 

The Agency is interested in the 

possibility of allowing a facility’s 

sampling and analysis plan to include a 

provision to reduce sampling frequency 

based on performance as long as the 

current compliance standards under 

261.3(a)(2)(iv)(A) and (B) are maintained 

and the facility’s provisions for reduced 

sampling frequency are thoroughly 

discussed in the plan. However, EPA 

would first need to propose the specific 

requirements of such a provision in 

order to allow for adequate notice and 

comment. 

In addition, a number of commenters 

suggested that EPA increase the length 

of the current compliance period in 

order to reduce the costs associated with 

direct monitoring. The commenters’

suggestion to increase the averaging 

period from weekly to monthly (i.e., the 

compliance period) addresses a 

provision in the current rule not 

specifically identified in the proposal as 

subject to possible amendment. EPA 

stated in the proposed rule that it would 

not respond to comments addressing 

such provisions (68 FR 17241, April 8, 

2003). 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57777 

C. The Exemption of Scrubber Waters 

Derived-From the Incineration of Listed 

Wastes 

Numerous commenters supported the 

proposed addition of scrubber waters 

derived-from the incineration of F-listed 

solvents to the headworks exemption. 

Several supporters stated that the 

rationales used by EPA to advocate the 

addition of these scrubber waters are 

both accurate and justifiable. However, 

many commenters were concerned over 

the Agency reinterpreting the current 

regulatory language and requested that 

the exemption be incorporated into the 

regulatory text. Even though specific 

regulatory text for this provision was 

not proposed, we expressly stated in the 

preamble that the ‘‘Agency is proposing 

that scrubber waters derived from the 

combustion of spent solvents and sent 

to a facility’s wastewater treatment 

system qualify for the exemption under 

40 CFR 261.3(a)(2)(iv)(A) and (B)’’ (68 

FR 17243; April 8, 2003). Nevertheless, 

based on the rational set forth in the 

preamble to the proposal, EPA is 

promulgating regulatory text to 

implement the proposed addition to the 

headworks exemption. 

Many commenters stated that limiting 

the exemption to only scrubber waters 

derived-from the incineration of F-listed 

solvents was too narrow in scope and 

that the exemption as proposed would 

not be of much benefit to the regulated 

community. For the exemption to be 

useful, commenters requested that the 

exemption also apply to scrubber waters 

derived-from the incineration of other 

F-, K-, P-, and U-listed wastes. The 

commenters claimed that the rationales 

used to exempt the scrubber waters 

derived-from the F-listed solvents and 

to exempt the de minimis quantities of 

P- and U-listed wastes could be used to 

support the exemption of the scrubber 

waters derived-from the incineration of 

other listed wastes in the headworks 

exemption. As an alternative, some 

commenters stated that the other 

F-, K-, P-, and U-listed wastes in the 

scrubber waters are analogous to the de 

minimis quantities of the same 

chemicals. Therefore, the rationale used 

to exempt the release of de minimis 

quantities of these listed wastes can be 

applied to justify the addition of these 

scrubber waters into the de minimis 

exemption (§ 261.3(a)(2)(iv)(D)). 

The Agency disagrees that scrubber 

waters derived-from the incineration of 

other listed wastes should be included 

in the headworks exemption. Scrubber 

waters derived-from the incineration of 

F-listed solvents are eligible for the 

exemption because these scrubber 

waters would be comparable in 

expected constituents and concentration 

levels with the already exempted Flisted solvents (§ 261.3(a)(2)(iv)(A) & 

(B)). This rationale cannot be applied 

universally to the scrubber waters 

derived-from the incineration of the 

other listed wastes because not all of 

these listed wastes are currently 

exempted in § 261.3(a)(2)(iv)(A) & (B). 

Therefore, if the listed wastes 

themselves are not exempt, then the 

scrubber waters derived-from their 

incineration cannot be exempt using 

this rationale. 

The Agency also will not be including 

scrubber waters derived-from the 

incineration of U-, P-, K- and other Flisted wastes in the de minimis 

exemption (§ 261.3(a)(2)(iv)(D)). EPA’s 

proposal discussed expanding the de 

minimis exemption to facilities other 

than manufacturing facilities and 

discussed expanding the type of wastes 

that could qualify for the exemption. 

The proposal did not discuss expanding 

the de minimis exemption to systematic 

discharges of small amounts of waste to 

a wastewater treatment system. Since 

originally adopted in 1981, the de 

minimis exemption has removed from 

regulation small amounts of listed 

wastes that are inadvertently and often 

unavoidably lost under normal material 

handling operations at well-maintained 

facilities. The systematic release of 

scrubber waters into the wastewater 

treatment system advocated by some of 

the commenters would neither be 

inadvertent or unavoidable as the 

scrubber water is a segregated 

wastewater stream at its point of 

generation. Allowing systematic releases 

to come within the de minimis 

exemption would be a fundamental 

change in how the de minimis 

exemption operates and arguably would 

require additional notice and comment 

to adopt. 

D. Expansion of the De Minimis 

Exemption 

1. General Issues 

All who commented on the proposed 

de minimis expansion generally 

supported it, but many commenters 

raised specific issues. Separate sections 

discuss commenters’ issues and the 

Agency’s responses regarding the CWA 

permit requirement, the inclusion of 

‘‘unscheduled,’’ ‘‘uncontrollable,’’

‘‘insignificant’’ and ‘‘inadvertent’’ in the 

regulatory language and the removal of 

‘‘rinsates from empty container’’ from 

the regulatory language. 

In addition to the issues listed above, 

one commenter stated that they were 

interpreting the de minimis exemption 

expansions to include facilities that 

have eliminated the discharge of 

wastewaters using permitted Class I 

injection wells. The Agency agrees with 

this interpretation. As explained in the 

preamble of the original headworks rule, 

the exemptions not only apply to 

wastewaters that are managed in 

wastewater treatment systems whose 

discharges are subject to regulation 

under Section 402 or 307(b) of the CWA, 

but also apply to ‘‘those facilities 

(known as ‘‘zero dischargers’’) that have 

eliminated the discharge of wastewater 

as a result of, or by exceeding, NPDES 

or pretreatment program requirements’’

(46 FR 56584, November 17, 1981). 

These wastewater management 

requirements remain unchanged by the 

amendments to the final headworks 

rule. 

In addition, EPA continues to believe 

that underground injection wells can 

meet the headworks’ definition of zero 

discharge if the injection well is being 

used for the purposes of complying with 

a NPDES permit, other applicable 

effluent guideline, or pretreatment 

program requirements. See discussion 

in Third Third Rule (55 FR 22672, June 

1, 1990). Wastewaters disposed of via 

injection well usually are not 

considered discharges under the CWA. 

However, if underground injection of 

wastewaters occurs for reasons other 

than to comply with a NPDES permit, 

other applicable effluent guideline or 

pretreatment program requirements, 

then those wastewaters are not eligible 

for the wastewater treatment 

(headworks) exemptions (in 40 CFR 

261.3(a)(2)(iv)). 

2. Clean Water Act Permit Requirement 

The Agency proposed that for 

manufacturing facilities claiming a de 

minimis loss of F- or K-listed wastes or 

non-manufacturing facilities claiming a 

de minimis loss of wastes listed in 

§§ 261.31 through 261.33, the CWA 

permit must include limits for the 

Appendix VII hazardous constituents 

and the LDR constituents associated 

with the listed wastes. Many 

commenters objected to this proposed 

requirement. Several of these 

commenters argued that it usually is not 

the permit writer’s practice to set 

specific permit limits for every 

constituent that may be present in the 

facility’s effluent. Rather, they argued 

that listing the waste streams or 

constituents of concern in the CWA 

permit application will provide the 

permit writer or control authority with 

the necessary information to decide 

whether or not a specified level or 

method of treatment is necessary in the 

permit for the various constituents. 

57778 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 

The rationale for requiring a facility’s 

CWA permit to contain limits for 

Appendix VII and LDR constituents 

associated with the specific wastes was 

due to the de minimis eligibility being 

expanded to include F- and K-listed 

wastes. At the time of the proposal, the 

Agency wanted to ensure that the 

releases of F- and K-listed wastes would 

be minimized so that these wastes 

would not have a significant effect upon 

wastewater treatment systems, the 

quality of effluent discharges, solid 

wastes generated, occupational safety 

and health, and human health and the 

environment (67 FR 17244, April 8, 

2003). However, the Agency recognizes 

that it usually is not the permit writer’s 

practice to set specific permit limits for 

every constituent that may be present in 

a facility’s effluent. For instance, some 

constituents are controlled through the 

use of limits on conventional pollutants 

(such as biochemical oxygen demand, 

total suspended solids, or pH), or 

through limits on other bulk parameters 

(such as chemical oxygen demand or 

total organic carbon), while other 

constituents may require limitations on 

whole effluent toxicity or special 

monitoring procedures to be performed, 

or may be present at such low levels 

that no permit limit is necessary. 

Therefore, we agree with the 

commenters that it is sufficiently 

protective for direct discharging 

facilities to list all expected Appendix 

VII and LDR constituents in their CWA 

permit application (or for indirect 

dischargers to POTWs, in their 

submission to their control authority) 

and to rely on the permit writer’s (or 

control authority’s) judgment to 

determine if specific permit limits are 

needed. Further, as discussed in the 

preamble of the proposed rule, the 

toxicity characteristics and CERCLA’s 

reportable quantities will remain as 

additional protective mechanisms (68 

FR 17244). Therefore, in the final rule, 

facilities only will be required to list all 

Appendix VII and LDR constituents in 

the CWA permit application or POTW 

submission which will allow the permit 

writer or control authority to determine 

if specific permit limits are needed. In 

addition, facilities will be required to 

keep a copy of the CWA permit 

application or POTW submission on-site 

as an alert to inspectors that the permit 

writer or control authority was notified 

of the possible de minimis releases of 

constituents of concern. Finally, the 

Agency notes that alerting the permit 

writer or control authority must occur 

before the facility claims the newly 

expanded portions of the de minimis 

exemption. 

In addition, several commenters 

stated that facilities that discharge to 

POTWs should be allowed to take 

advantage of the exemption, and if 

allowed, they should not be required to 

have pretreatment limits for each 

constituent that may be released. 

Further, the POTW’s CWA permit 

should not be required to have specific 

limits for each of the constituents 

managed at the indirect discharger’s 

facility. 

Indirect dischargers are eligible for 

the de minimis exemption if the POTWs 

they discharge to have valid CWA 

permits that include an approved 

pretreatment program as a condition of 

the POTW’s permit. As discussed above, 

the rationale for requiring all 

constituents to have pretreatment limits 

was to ensure the protection of human 

health and the environment and to 

minimize the incentive to ‘‘dispose of’’

F- and K-listed wastes into the 

wastewater treatment system. However, 

EPA believes indirect dischargers can 

qualify for the de minimis exemption 

using mechanisms other than requiring 

pretreatment limits for each constituent 

potentially released and still be 

protective of human health and the 

environment. The disclosure of each 

Appendix VII and LDR constituent that 

may be released to the POTW by the 

indirect discharger will sufficiently 

protect human health and the 

environment by alerting the POTW of 

any potential chemicals that may pass 

through or interfere with its operation or 

cause a permit violation of the POTW’s 

discharge permit. The control authority 

(i.e., POTW, state, or EPA Region) can 

determine if specific pretreatment limits 

are necessary once all potential 

Appendix VII and LDR constituents are 

disclosed. In addition, as with the direct 

dischargers, POTWs do not need to have 

specific limits listed for each 

constituent in the indirect discharger’s 

permit (or control mechanism) but must 

have received a list of all Appendix VII 

and LDR constituents from the indirect 

discharger in order for the discharger to 

use the exemption. 

3. Inclusion of ‘‘Unscheduled,’’

‘‘Uncontrollable,’’ ‘‘Insignificant,’’ and 

‘‘Inadvertent’’ in the Regulatory 

Definition of De Minimis 

Commenters also objected to the 

proposed addition of the words 

‘‘unscheduled,’’ ‘‘uncontrollable,’’

‘‘insignificant,’’ and ‘‘inadvertent’’

which were used to describe de minimis 

releases to a wastewater treatment 

system (§ 261.3(a)(2)(iv)(D)). 

Commenters expressed concern that 

EPA did not adequately announce or 

explain these qualifiers and that the 

qualifiers would cause confusion to the 

regulated community as well as narrow 

the scope of the exemption. 

Because the expansion of the de 

minimis exemption includes the F- and 

K-listed wastes for which there is no 

economic incentive to prevent their loss 

into the wastestream, the Agency 

believed that it was necessary to 

reaffirm its understanding of what is 

meant by a de minimis release. 

However, EPA has been persuaded by 

commenters that the intended meanings 

of ‘‘unscheduled’’ and ‘‘uncontrollable’’

can be misinterpreted and that they 

should not be included in this final rule. 

EPA also recognizes the redundancy of 

including ‘‘insignificant’’ in the 

regulatory definition of de minimis. 

Therefore, in today’s final rule, 

‘‘insignificant’’ also will not be included 

in the regulatory language. However, 

EPA disagrees that facilities will be 

confused over the meaning of 

‘‘inadvertent.’’ The inclusion of 

‘‘inadvertent’’ in the regulatory 

definition of de minimis reinforces that 

these losses, no matter if a F-, K-, P- or 

U-listed waste, must be minor and must 

result from normal operating procedures 

at well-maintained facilities. 

The commenters also state that EPA 

failed to explain how these words 

would effect the current interpretation 

of the de minimis exemption. Regarding 

the remaining additional term 

‘‘inadvertent,’’ it is not the Agency’s 

intent to alter the interpretation of the 

exemption. It is clearly illustrated in the 

preamble of the original rule that the de 

minimis exemption was intended for 

minor losses resulting from normal 

operating procedures, such as when 

small amounts of raw material are lost 

in various unloading or material transfer 

operations, or when small losses occur 

as a result from purgings and relief 

valve discharges. In addition, the 

original preamble states that it was not 

the Agency’s intention for the 

exemption to include losses from 

normal operating procedures occurring 

at facilities that use neglectful or 

careless management practices. In fact, 

the preamble states that the Agency will 

use its listing authority to list the 

wastewaters from those facilities whose 

neglectful or careless management 

practices cause such high losses of 

§ 261.33 hazardous wastes (46 FR 

56586, November 17, 1981). Therefore, 

‘‘inadvertent’’ is not altering the 

interpretation of de minimis but is 

reinforcing the Agency’s original intent 

that the exemption apply only to those 

minor losses resulting from normal 

operating procedures at well-maintained 

facilities. The Agency believes that it is 

imperative to reinforce that the minor 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57779 

losses of waste must be inadvertent 

because the expanded exemption 

includes listed wastes that are not 

commercial chemical products. As is 

discussed in the 1981 preamble, 

facilities have an economical incentive 

to minimize the loss of commercial 

chemical products during normal 

operating procedures. Id. This economic 

incentive does not exist for the F- and 

K-listed wastes being added to the de 

minimis exemption. Therefore, it is 

imperative that there is an 

understanding that any large intentional 

losses of these wastes will not be 

considered as de minimis and 

accordingly, will not be exempted under 

§ 261.3(a)(2)(iv)(D). 

Commenters stated that the inclusion 

of the four new terms in the regulatory 

language would narrow the scope of the 

exemption. However, the Agency 

disagrees that the inclusion of the 

remaining term ‘‘inadvertent’’ in the 

regulatory language will narrow the 

scope of the exemption. Our use of the 

term ‘‘inadvertent’’ implies that the de 

minimis loss must not be a result of 

neglect or carelessness. As stated in the 

1981 preamble, small losses of listed 

wastes do occur during normal 

operating procedures at well-maintained 

facilities because it is exceedingly 

expensive to prevent such losses. In 

addition, EPA recognized that the 

segregation and separate management of 

these losses would also be exceedingly 

expensive as well as unnecessary 

because wastewater treatment systems 

would be capable of efficiently treating 

these small quantities of listed wastes. 

Id. Our inclusion of the word 

‘‘inadvertent’’ in the regulatory language 

is not intended to alter the original 

scope of the exemption, as these small 

losses that are occurring during normal 

operating procedures at well-maintained 

facilities will remain in the exemption. 

Inclusion of the term ‘‘inadvertent’’ only 

reinforces that losses, which result from 

mismanagement, neglectfulness or 

carelessness during normal operating 

procedures, are not (and have never 

been) included in the exemption. 

The commenters also suggest that 

‘‘inadvertent’’ is not consistent with the 

examples provided in the existing 

regulatory language, as the examples 

describe losses that are ‘‘predictable,’’

not ‘‘inadvertent.’’ As acknowledged in 

the 1981 preamble, well-maintained 

facilities will have predictable losses 

that can be prevented but only at a 

considerable cost. Id. The Agency 

recognizes these ‘‘predictable’’ losses as 

‘‘inadvertent’’ as long as they are 

occurring during normal operating 

procedures at a facility that is not 

managed in a neglectful or careless 

manner. 

Finally, some commenters suggested 

applying the qualifying terms 

‘‘unscheduled,’’ ‘‘uncontrollable,’’

‘‘insignificant,’’ and ‘‘inadvertent’’ to 

only F- and K-listed wastes. As we have 

decided not to include the first three of 

those terms in the final rule, we will 

address the comment with respect to the 

remaining term ‘‘inadvertent.’’ We 

disagree with the comments requesting 

the qualifiers apply to only F- and Klisted wastes. The universe of the de 

minimis exemption is being expanded 

to include both the listed wastes in 

§ 261.31 and § 261.32 and nonmanufacturing facilities. Therefore, it is 

imperative that those facilities that do 

not have a history with the exemption 

have a clear understanding of what a de 

minimis release is for all the listed 

wastes. 

4. Removal of ‘‘Rinsates From Empty 

Containers’’ From the Regulatory 

Definition of De Minimis 

Two commenters raise what they 

believe is an inconsistency between two 

existing regulatory provisions. The 

commenters believe that the phrase 

‘‘rinsates from empty containers’’ in 40 

CFR 261.3(a)(2)(iv)(D) conflicts with 

language found in 40 CFR 261.7, which 

excludes ‘‘residues of hazardous waste 

in empty containers’’ from regulation 

under part 261. As argued by the 

commenters, ‘‘rinsates from empty 

containers’’ are ‘‘residues of hazardous 

waste in empty containers,’’ and since 

‘‘residues of hazardous waste in empty 

containers’’ are not considered 

hazardous wastes, it is inconsistent for 

EPA to retain the ‘‘rinsates from empty 

containers’’ phrase in the de minimis 

regulatory language. Because the de 

minimis regulatory language is being 

amended to include the new expansions 

to the exemption, the commenters claim 

that the Agency now has the 

opportunity to fix the apparently 

inconsistent language. 

EPA notes that this comment raises an 

issue that is outside the scope of the 

proposed rulemaking. As stated in the 

preamble, the Agency made clear that it 

would not respond to any comments 

addressing any provisions of the 

headworks rule not specifically 

identified as subject to possible 

amendment (68 FR 17233, April 8, 

2003). 

However, EPA would like to take this 

opportunity to clarify how the existing 

‘‘empty container’’ exemption operates. 

Under 40 CFR 261.7, a container can 

contain a small amount of non-acute 

hazardous waste and still be considered 

‘‘empty’’ for the purpose of hazardous 

waste regulation. (40 CFR 261.7 

includes very specific definitions on 

how much waste can remain in an 

‘‘empty container.’’) The waste 

remaining in this ‘‘empty’’ container is 

not subject to hazardous waste 

regulation (including the mixture rule). 

However, even though rinse water 

from an ‘‘empty’’ container may often 

times be non-hazardous, 40 CFR 261.7 

does not directly exempt rinse water 

from Subtitle C regulation. Specifically, 

rinse water is not a waste ‘‘remaining 

in’’ an ‘‘empty’’ container. Indeed, while 

40 CFR 261.7 clearly exempts residue 

remaining in an ‘‘empty’’ container from 

Subtitle C regulation, the Agency has 

made it clear that when the residue is 

removed from an ‘‘empty’’ container, 

the residue is subject to full regulation 

under Subtitle C if the removal or 

subsequent management of the residue 

generates a new hazardous waste that 

exhibits any of the characteristics 

identified in Part 261, Subpart C (see 45 

FR 78529, November 25, 1980, where it 

states ‘‘[C]ontainer cleaning facilities 

which handle only ‘‘empty’’ containers 

are not currently subject to regulation 

unless they generate a waste that meets 

one of the characteristics in Subpart 

D.’’). (See also April 12, 2004 letter from 

Robert Springer, Director, Office of 

Solid Waste to Casey Coles, Hogan and 

Hartson, LLP). 

Finally, it also should be noted that if 

the rinsing agent includes a solvent (or 

other chemical) that would be a listed 

hazardous waste when discarded, then 

the rinsate from an ‘‘empty’’ container 

would be considered a listed hazardous 

waste. This is not due to the nature of 

the waste being rinsed from the 

‘‘empty’’ container, but rather, because 

of the nature of the rinsing agent. In this 

scenario, the rinsate still may be eligible 

for the exemptions from the mixture 

rule found in 40 CFR 261.3(a)(2)(iv) (i.e., 

headworks exemptions) if it meets the 

conditions of those exemptions (e.g., 

solvent levels at the headworks below 

those in 40 CFR 261.3(a)(2)(iv)(A) and 

(B)). 

E. The Potential Exemptions of 

Leachates Derived-From Solvent Wastes 

and Leachates Derived-From Other 

Types of Hazardous Wastes 

Commenters generally supported 

potential exemptions of solvent waste 

and non-solvent waste leachates and 

urged EPA to continue developing a 

future proposal addressing such 

exemptions. One commenter stated that 

exempting such leachates would 

provide facilities flexibility in waste 

management that currently is not 

available to them. The commenter also 

added that if exempted, leachates could 

57780 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 

3 Development Document for Final Effluent 

Limitations Guidelines and Standards for the 

Landfills Point Source Category, EPA–821–R–99–

019, U.S. EPA, January 2000. 

be treated in a biological wastewater 

treatment unit without the facility 

having to manage the resulting 

treatment residue as a listed hazardous 

waste. 

While very supportive of a potential 

rulemaking addressing leachates, 

several commenters objected to our use 

of the most recent EPA study of landfill 

leachate characteristics (65 FR 3007, 

January 19, 2000) as a factor in our 

decision to not exempt non-solvent 

leachates during this rulemaking. This 

study, which was conducted as part of 

data collected to establish technologybased effluent limitations guidelines 

and standards for landfills, determined 

that leachates from hazardous waste 

landfills had a greater number of 

constituents than leachates from nonhazardous landfills. In addition, the 

study concluded that the constituents 

present in the leachates from hazardous 

waste landfills were an order of 

magnitude greater than their 

counterparts in non-hazardous waste 

landfills.3 The commenters argued that 

the results of the study might be biased 

for two reasons. First, the commenters 

stated that leachates from hazardous 

waste landfills are analyzed for more 

constituents as well as analyzed more 

frequently than leachates from nonhazardous landfills. Therefore, the lack 

of data resulting from non-hazardous 

waste landfill leachates not being 

routinely analyzed cannot be an 

indicator for the absence of constituents 

in those leachates. Second, commenters 

were concerned that the contents of the 

non-hazardous landfill database may 

have been skewed towards landfills that 

do not accept hazardous wastes from 

households, conditionally exempt small 

quantity generators, or other wastes that 

do not require pretreatment, such as 

construction/demolition types of 

landfills. Therefore, the commenters 

question whether or not the comparison 

made between leachates from hazardous 

waste and non-hazardous waste 

landfills is based upon equivalent data. 

Finally, due to the concern that our 

decision was based upon an insufficient 

analysis, one commenter submitted 

analytical data from their facilities on 

leachate composition. 

The Agency disagrees that it is 

inappropriate to base the decision not to 

include leachates in the exemption, in 

part, on the study of landfill leachate 

characteristics. The results of the study 

are based on data gathered to support 

the final effluent guidelines for the 

landfill point source category (65 FR 

3007, January 19, 2000) and was 

therefore designed to be comparable. 

The Agency analyzed all wastewater 

samples that it collected for the study 

for the same list of constituents 

regardless of whether the landfill was 

considered a hazardous or nonhazardous waste landfill. While the 

Agency disagrees with the commenters 

regarding the appropriateness of 

utilizing the landfill leachate 

characteristics study as a decision factor 

to not include leachates in the 

exemption at this time, we do believe, 

as stated in the preamble to the 

proposed rule, that the results of the 

study indicate that further analysis is 

needed before an exemption is 

considered. 

V. State Authorization 

A. How Will Today’s Regulatory 

Changes Be Administered and Enforced 

in the 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. Following 

authorization, the state requirements 

authorized by EPA apply in lieu of 

equivalent Federal requirements and 

become federally enforceable as 

requirements of RCRA. EPA maintains 

independent authority to bring 

enforcement actions under RCRA 

sections 3007, 3008, 3013, and 7003. 

Authorized states also have 

independent authority to bring 

enforcement actions under state law. 

A state may receive authorization by 

following the approval process 

described in 40 CFR part 271. Part 271 

of 40 CFR also describes the overall 

standards and requirements for 

authorization. After a state receives 

initial authorization, new federal 

regulatory requirements promulgated 

under the authority in the RCRA statute 

which existed prior to the 1984 

Hazardous and Solid Waste 

Amendments (HSWA) do not apply in 

that state until the state adopts and 

receives authorization for equivalent 

state requirements. The state must adopt 

such requirements to maintain 

authorization. In contrast, under RCRA 

section 3006(g), (42 U.S.C. 6926(g)), new 

federal requirements and prohibitions 

imposed pursuant to HSWA provisions 

take effect in authorized states at the 

same time that they take effect in 

unauthorized states. Although 

authorized states still are required to 

update their hazardous waste programs 

to remain equivalent to the federal 

program, EPA carries out HSWA 

requirements and prohibitions in 

authorized states, including the 

issuance of new permits implementing 

those requirements, until EPA 

authorizes the state to do so. Authorized 

states are required to modify their 

programs only when EPA promulgates 

federal requirements that are more 

stringent or broader in scope than 

existing federal requirements. 

RCRA section 3009 allows the states 

to impose standards more stringent than 

those in the federal program. See also 40 

CFR 271.1(i). Therefore, authorized 

states are not required to adopt federal 

regulations, either HSWA or nonHSWA, that are considered less 

stringent. 

Today’s rule is finalized pursuant to 

non-HSWA authority. The finalized 

changes in the conditional exemptions 

from the definition of hazardous waste 

under the headworks rule are less 

stringent than the current federal 

requirements. Therefore, states will not 

be required to adopt and seek 

authorization for the finalized changes. 

EPA will implement the changes to the 

exemptions only in those states which 

are not authorized for the RCRA 

program. Nevertheless, EPA believes 

that this rulemaking has considerable 

merit, and we thus strongly encourage 

states to amend their programs and 

become federally-authorized to 

implement these rules. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, [58 

Federal Register 51,735 (October 4, 

1993)] the Agency must determine 

whether the regulatory action is 

‘‘significant’’ and therefore subject to 

OMB review and the requirements of 

the Executive Order. The Order defines 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; (2) create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raise novel legal or policy 

issues arising out of legal mandates, the 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57781 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this rule is a ‘‘significant regulatory 

action’’ because this rule contains novel 

policy issues. As such, this action was 

submitted to OMB for review. Changes 

made in response to OMB suggestions or 

recommendations will be documented 

in the public record. EPA’s economic 

analysis suggests that this rule is not 

economically significant under 

Executive Order 12866, because EPA 

estimates that the overall national 

economic effect of the rule is $11.4 

million to $48.6 million in average 

annual potential cost savings for RCRA 

regulatory compliance. The following 

table presents an itemization of EPA’s 

estimated count of affected facilities, 

affected annual RCRA waste quantities, 

and estimated annual cost savings for 

each of the five main features of this 

final rule. 

SUMMARY OF ESTIMATED POTENTIAL NATIONAL ECONOMIC IMPACT FROM THE FINAL REVISIONS TO THE ‘‘HEADWORKS

EXEMPTION’’ OF THE RCRA HAZARDOUS WASTE MIXTURE RULE (40 CFR 261.3(A)(2)(IV)(A) TO (E)) 

Item Final regulatory revision to 

‘‘headworks exemption’’

Count of potentially affected 

entities 

(eligible industrial facilities) 

Annual quantity of potentially 

affected 

(eligible) RCRA hazardous 

waste (tons/year) 

Estimate of average annual 

economic impact* 

($/year) 

1 .......... Add two F005 spent solvents 

(benzene & 2-ethoxyethanol) 

to the ‘‘headworks exemption; for the RCRA hazardous 

waste mixture rule**.

115 to 1,800 facilities ............... 0.036 to 0.594 million tons/ 

year; spent solvent wastes 

(aqueous & non-aqueous 

forms).

$0.32 to $5.65 million/year in 

spent solvent waste management cost savings (nettingout implementation paperwork costs). 

2 .......... Provide ‘‘headworks exemption’’ for F001 to F005 spent 

solvent hazardous waste 

combustion ‘‘scrubber waters’’.

3 to 9 facilities .......................... 0.20 to 0.61 million tons/year 

scrubber wastewater.

$0.53 to $1.58 million/year in 

scrubber wastewater management cost savings. 

3 .......... Allow ‘‘direct monitoring’’ of 

F001 to F005 spent solvent 

waste concentrations in 

headworks influent 

wastewaters, in lieu of ‘‘mass 

balance’’ computations.

1,811 to 7,300 facilities ............ 1.13 to 4.58 million tons/year; 

spent solvent wastes; (aqueous & non-aqueous forms).

$10.09 to $40.88 million/year in 

spent solvent waste management cost savings. 

4 .......... Revise RCRA hazardous waste 

‘‘de minimis’’ exemption to include RCRA F- & K-listed 

wastes..

71 facilities ................................ 30 tons/year; spill incidents ...... $0.03 million/year in spill response cost savings. 

5 .......... Revise RCRA hazardous waste 

‘‘de minimis’’ exemption to include non-manufacturing facilities.

1,266 facilities ........................... 570 tons/year; spill incidents .... 0.48 million/year in spill response cost savings. 

Column totals = 3,266 to 10,446 facilities .......... 1.37 to 5.78 million; tons/year .. $11.4 to 48.6 million/year cost 

savings. 

*Economic impact based on year 2000 price levels for waste management systems. Also, for reasons explained in the Economic Background 

Document, the upper-ends of the numerical ranges in this table probably represent over-estimation of potential impacts; actual impacts are probably closer to the lower-ends of impact ranges. 

**In comparison, expansion of the RCRA ‘‘headworks exemption’’ to include all four chemical solvents examined in the 8 April 2003 proposed 

rule, would likely only result in addition of one wastestream, at an additional annual cost savings of about $19,000 (consisting tons/year aqueous 

spent solvent). 

A detailed presentation of EPA’s 

methodology, data sources, and 

computations applied for estimating the 

number of affected entities (industrial 

facilities) and economic impacts 

attributable to today’s final rule is 

provided in the ‘‘Economic Background 

Document.’’

B. Paperwork Reduction Act 

The information collection 

requirements in this rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them. 

The rule requires generators wanting 

to demonstrate compliance with the 

RCRA headworks exemptions through 

direct monitoring (rather than by the 

mass balance computation method as 

required before this rule), to submit a 

one-time copy of their wastewater 

headworks sampling and analysis plan 

(SAP), to the EPA Regional 

Administrator (or to the State Director 

in an authorized State), and to maintain 

in on-site files, all direct monitoring 

records for a minimum of three years. 

The SAP requirements for direct 

monitoring shall be site-specific. As 

with all other exemptions and 

exclusions from EPA’s RCRA definition 

of hazardous waste, a facility is required 

under 40 CFR 268.7(a)(7) to place a onetime notice concerning RCRA hazardous 

waste generation, subsequent exclusion 

from the RCRA definition of hazardous 

waste, or RCRA definition of solid 

waste, or exemption from RCRA Subtitle 

C regulation, and the disposition of the 

waste, in the facility’s on-site files. 

Generally, such notification, as well as 

certifications, waste analysis data, and 

other documentation must be kept in 

on-site files for a period of three years, 

unless an enforcement action by the 

Agency extends the record retention 

period (40 CFR 268.7(a)(8)). 

EPA estimates that the incremental, 

three-year average annualized 

respondent burden for the new 

paperwork requirements in the rule, 

including initial burden to exemption 

claimants for reading the rule, is 45,900 

hours per year, and the three-year 

annualized respondent cost for the new 

paperwork requirements in the rule is 

$8.56 million per year. However, in 

57782 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 

addition to the new paperwork 

requirements in the rule, EPA also 

estimated the burden and cost that 

generators could expect as a result of 

complying with the existing RCRA 

hazardous waste information collection 

requirements for the excluded materials. 

Because the addition of benzene and 2- 

ethoxyethanol would increase the 

number of facilities that participate in 

the existing headworks exemptions (and 

the greater possibility of using direct 

monitoring), EPA expects there would 

be both a reduction in some RCRA 

paperwork requirements (i.e., 

preparation of RCRA hazardous waste 

manifests and RCRA Biennial Reports), 

and an increase in other RCRA 

paperwork requirements (i.e., 

demonstrating compliance by using 

mass balance and submitting a one-time 

LDR notification under 40 CFR 

268.7(a)(7)). Taking both revised and 

existing RCRA requirements into 

account, EPA expects the rule’s 

revisions to the headworks exemption, 

would result in a net annualized burden 

of about 46,200 hours per year at a cost 

of $8.53 million per year. EPA expects 

this net additional paperwork cost to be 

offset by annual costs savings to 

respondents from reduced waste 

management costs, resulting in a net 

cost savings of $11.4 to $48.6 million 

per year. In addition to respondent 

burden, EPA estimates the paperwork 

burden cost to RCRA-authorized State 

agencies of administering the rule at 

about 370 hours per year at a cost of 

$13,800 per year. Because of the fact 

that some of the rule’s paperwork 

requirements are one-time only (e.g., 

sampling and analysis plan) rather than 

annually-recurring burden, the actual 

annual burden hours and burden costs 

after the first-year in which the rule 

takes effect, will be lower than the 

three-year average annual values 

summarized above. 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. When 

this ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (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 today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) 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 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. 

In determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the 

proposed rule on small entities.’’ 5 

U.S.C. 603 and 604. Thus, an agency 

may certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, or 

otherwise has a positive economic effect 

on all of the small entities subject to the 

rule. 

Because this final rule expands the 

existing wastewater treatment 

exemptions, the Agency believes that 

the hazardous waste management costs 

for both small and large entities will be 

reduced. In addition, these new 

exemptions are non-mandatory; 

therefore, the exemptions do not need to 

be claimed unless it is cost-effective. 

The net cost savings for affected entities 

has been estimated to be $11.4–48.6 

million (please refer to the economic 

background document to this final rule 

for more information). We have 

therefore concluded that today’s final 

rule will relieve regulatory burden for 

all small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, 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 costeffective 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 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57783 

tribal governments, in the aggregate, or 

the private sector in any one year. This 

is because this final rule imposes no 

enforceable duty on any state, local or 

tribal governments. EPA also has 

determined that this rule contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. In addition, as discussed 

above, the private sector is not expected 

to incur costs exceeding $100 million. 

Thus, 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 

directly affects primarily generators of 

hazardous wastewaters containing spent 

solvents, generators of scrubber waters 

derived-from the incineration of spent 

solvents, and generators releasing de 

minimis amounts of listed wastes under 

certain conditions. There are no state 

and local government bodies that incur 

direct compliance costs by this 

rulemaking. State and local government 

implementation expenditures are 

expected to be less than $500,000 in any 

one year. Thus, Executive Order 13132 

does not apply to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicited comment on the 

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 9, 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.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. Today’s rule 

does not significantly or uniquely affect 

the communities of Indian tribal 

governments, nor would it impose 

substantial direct compliance costs on 

them. Thus, Executive Order 13175 does 

not apply to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and 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. 

This final rule reduces regulatory 

burden. It thus should not adversely 

affect energy supply, distribution or use. 

I. National Technology Transfer and 

Advancement Act of 1995 

As noted in the proposed rule, 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

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. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

rulemaking involves environmental 

monitoring or measurement. Consistent 

with the Agency’s Performance Based 

Measurement System (‘‘PBMS’’), EPA 

has decided not to require the use of 

specific, prescribed analytic methods. 

Rather, the rule will allow the use of 

any method that meets the prescribed 

performance criteria. The PBMS 

approach is intended to be more flexible 

and cost-effective for the regulated 

community; it is also intended to 

encourage innovation in analytical 

technology and improved data quality. 

EPA is not precluding the use of any 

method, whether it constitutes a 

voluntary consensus standard or not, as 

long as it meets the performance criteria 

specified. 

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 rule 

will be effective November 3, 2005. 

List of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, Waste treatment and 

disposal. 

Dated: September 27, 2005. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

57784 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

■ 1. The authority citation for part 261 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921, 

6922, 6924(y), and 6983. 

■ 2. Section 261.3 is amended by 

revising paragraphs (a)(2)(iv)(A), 

(a)(2)(iv)(B), (a)(2)(iv)(D), (a)(2)(iv)(F) 

and (a)(2)(iv)(G) to read as follows: 

§ 261.3 Definition of hazardous waste. 

(a) * * * 

(2) * * * 

(iv) * * * 

(A) One or more of the following 

spent solvents listed in § 261.31—

benzene, carbon tetrachloride, 

tetrachloroethylene, trichloroethylene or 

the scrubber waters derived-from the 

combustion of these spent solvents—

Provided, That the maximum total 

weekly usage of these solvents (other 

than the amounts that can be 

demonstrated not to be discharged to 

wastewater) divided by the average 

weekly flow of wastewater into the 

headworks of the facility’s wastewater 

treatment or pretreatment system does 

not exceed 1 part per million, OR the 

total measured concentration of these 

solvents entering the headworks of the 

facility’s wastewater treatment system 

(at facilities subject to regulation under 

the Clean Air Act, as amended, at 40 

CFR parts 60, 61, or 63, or at facilities 

subject to an enforceable limit in a 

federal operating permit that minimizes 

fugitive emissions), does not exceed 1 

part per million on an average weekly 

basis. Any facility that uses benzene as 

a solvent and claims this exemption 

must use an aerated biological 

wastewater treatment system and must 

use only lined surface impoundments or 

tanks prior to secondary clarification in 

the wastewater treatment system. 

Facilities that choose to measure 

concentration levels must file a copy of 

their sampling and analysis plan with 

the Regional Administrator, or State 

Director, as the context requires, or an 

authorized representative (‘‘Director’’ as 

defined in 40 CFR 270.2). A facility 

must file a copy of a revised sampling 

and analysis plan only if the initial plan 

is rendered inaccurate by changes in the 

facility’s operations. The sampling and 

analysis plan must include the 

monitoring point location (headworks), 

the sampling frequency and 

methodology, and a list of constituents 

to be monitored. A facility is eligible for 

the direct monitoring option once they 

receive confirmation that the sampling 

and analysis plan has been received by 

the Director. The Director may reject the 

sampling and analysis plan if he/she 

finds that, the sampling and analysis 

plan fails to include the above 

information; or the plan parameters 

would not enable the facility to 

calculate the weekly average 

concentration of these chemicals 

accurately. If the Director rejects the 

sampling and analysis plan or if the 

Director finds that the facility is not 

following the sampling and analysis 

plan, the Director shall notify the 

facility to cease the use of the direct 

monitoring option until such time as the 

bases for rejection are corrected; or 

(B) One or more of the following spent 

solvents listed in § 261.31-methylene 

chloride, 1,1,1-trichloroethane, 

chlorobenzene, o-dichlorobenzene, 

cresols, cresylic acid, nitrobenzene, 

toluene, methyl ethyl ketone, carbon 

disulfide, isobutanol, pyridine, spent 

chlorofluorocarbon solvents, 2- 

ethoxyethanol, or the scrubber waters 

derived-from the combustion of these 

spent solvents—Provided That the 

maximum total weekly usage of these 

solvents (other than the amounts that 

can be demonstrated not to be 

discharged to wastewater) divided by 

the average weekly flow of wastewater 

into the headworks of the facility’s 

wastewater treatment or pretreatment 

system does not exceed 25 parts per 

million, OR the total measured 

concentration of these solvents entering 

the headworks of the facility’s 

wastewater treatment system (at 

facilities subject to regulation under the 

Clean Air Act as amended, at 40 CFR 

parts 60, 61, or 63, or at facilities subject 

to an enforceable limit in a federal 

operating permit that minimizes fugitive 

emissions), does not exceed 25 parts per 

million on an average weekly basis. 

Facilities that choose to measure 

concentration levels must file a copy of 

their sampling and analysis plan with 

the Regional Administrator, or State 

Director, as the context requires, or an 

authorized representative (‘‘Director’’ as 

defined in 40 CFR 270.2). A facility 

must file a copy of a revised sampling 

and analysis plan only if the initial plan 

is rendered inaccurate by changes in the 

facility’s operations. The sampling and 

analysis plan must include the 

monitoring point location (headworks), 

the sampling frequency and 

methodology, and a list of constituents 

to be monitored. A facility is eligible for 

the direct monitoring option once they 

receive confirmation that the sampling 

and analysis plan has been received by 

the Director. The Director may reject the 

sampling and analysis plan if he/she 

finds that, the sampling and analysis 

plan fails to include the above 

information; or the plan parameters 

would not enable the facility to 

calculate the weekly average 

concentration of these chemicals 

accurately. If the Director rejects the 

sampling and analysis plan or if the 

Director finds that the facility is not 

following the sampling and analysis 

plan, the Director shall notify the 

facility to cease the use of the direct 

monitoring option until such time as the 

bases for rejection are corrected; or 

* * * * * 

(D) A discarded hazardous waste, 

commercial chemical product, or 

chemical intermediate listed in 

§§ 261.31 through 261.33, arising from 

de minimis losses of these materials. For 

purposes of this paragraph (a)(2)(iv)(D), 

de minimis losses are inadvertent 

releases to a wastewater treatment 

system, including those from normal 

material handling operations (e.g., spills 

from the unloading or transfer of 

materials from bins or other containers, 

leaks from pipes, valves or other devices 

used to transfer materials); minor leaks 

of process equipment, storage tanks or 

containers; leaks from well maintained 

pump packings and seals; sample 

purgings; relief device discharges; 

discharges from safety showers and 

rinsing and cleaning of personal safety 

equipment; and rinsate from empty 

containers or from containers that are 

rendered empty by that rinsing. Any 

manufacturing facility that claims an 

exemption for de minimis quantities of 

wastes listed in §§ 261.31 through 

261.32, or any nonmanufacturing 

facility that claims an exemption for de 

minimis quantities of wastes listed in 

subpart D of this part must either have 

eliminated the discharge of wastewaters 

or have included in its Clean Water Act 

permit application or submission to its 

pretreatment control authority the 

constituents for which each waste was 

listed (in 40 CFR 261 appendix VII) of 

this part; and the constituents in the 

table ‘‘’Treatment Standards for 

Hazardous Wastes’’’ in 40 CFR 268.40 

for which each waste has a treatment 

standard (i.e., Land Disposal Restriction 

constituents). A facility is eligible to 

claim the exemption once the permit 

writer or control authority has been 

notified of possible de minimis releases 

via the Clean Water Act permit 

application or the pretreatment control 

authority submission. A copy of the 

Clean Water permit application or the 

submission to the pretreatment control 

authority must be placed in the facility’s 

on-site files; or 

* * * * * 

(F) One or more of the following 

wastes listed in § 261.32—wastewaters 

Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Rules and Regulations 57785 

from the production of carbamates and 

carbamoyl oximes (EPA Hazardous 

Waste No. K157)—Provided that the 

maximum weekly usage of 

formaldehyde, methyl chloride, 

methylene chloride, and triethylamine 

(including all amounts that cannot be 

demonstrated to be reacted in the 

process, destroyed through treatment, or 

is recovered, i.e., what is discharged or 

volatilized) divided by the average 

weekly flow of process wastewater prior 

to any dilution into the headworks of 

the facility’s wastewater treatment 

system does not exceed a total of 5 parts 

per million by weight OR the total 

measured concentration of these 

chemicals entering the headworks of the 

facility’s wastewater treatment system 

(at facilities subject to regulation under 

the Clean Air Act as amended, at 40 

CFR parts 60, 61, or 63, or at facilities 

subject to an enforceable limit in a 

federal operating permit that minimizes 

fugitive emissions), does not exceed 5 

parts per million on an average weekly 

basis. Facilities that choose to measure 

concentration levels must file copy of 

their sampling and analysis plan with 

the Regional Administrator, or State 

Director, as the context requires, or an 

authorized representative (‘‘Director’’ as 

defined in 40 CFR 270.2). A facility 

must file a copy of a revised sampling 

and analysis plan only if the initial plan 

is rendered inaccurate by changes in the 

facility’s operations. The sampling and 

analysis plan must include the 

monitoring point location (headworks), 

the sampling frequency and 

methodology, and a list of constituents 

to be monitored. A facility is eligible for 

the direct monitoring option once they 

receive confirmation that the sampling 

and analysis plan has been received by 

the Director. The Director may reject the 

sampling and analysis plan if he/she 

finds that, the sampling and analysis 

plan fails to include the above 

information; or the plan parameters 

would not enable the facility to 

calculate the weekly average 

concentration of these chemicals 

accurately. If the Director rejects the 

sampling and analysis plan or if the 

Director finds that the facility is not 

following the sampling and analysis 

plan, the Director shall notify the 

facility to cease the use of the direct 

monitoring option until such time as the 

bases for rejection are corrected; or 

(G) Wastewaters derived-from the 

treatment of one or more of the 

following wastes listed in § 261.32—

organic waste (including heavy ends, 

still bottoms, light ends, spent solvents, 

filtrates, and decantates) from the 

production of carbamates and 

carbamoyl oximes (EPA Hazardous 

Waste No. K156).—Provided, that the 

maximum concentration of 

formaldehyde, methyl chloride, 

methylene chloride, and triethylamine 

prior to any dilutions into the 

headworks of the facility’s wastewater 

treatment system does not exceed a total 

of 5 milligrams per liter OR the total 

measured concentration of these 

chemicals entering the headworks of the 

facility’s wastewater treatment system 

(at facilities subject to regulation under 

the Clean Air Act as amended, at 40 

CFR parts 60, 61, or 63, or at facilities 

subject to an enforceable limit in a 

federal operating permit that minimizes 

fugitive emissions), does not exceed 5 

milligrams per liter on an average 

weekly basis. Facilities that choose to 

measure concentration levels must file 

copy of their sampling and analysis plan 

with the Regional Administrator, or 

State Director, as the context requires, or 

an authorized representative (‘‘Director’’

as defined in 40 CFR 270.2). A facility 

must file a copy of a revised sampling 

and analysis plan only if the initial plan 

is rendered inaccurate by changes in the 

facility’s operations. The sampling and 

analysis plan must include the 

monitoring point location (headworks), 

the sampling frequency and 

methodology, and a list of constituents 

to be monitored. A facility is eligible for 

the direct monitoring option once they 

receive confirmation that the sampling 

and analysis plan has been received by 

the Director. The Director may reject the 

sampling and analysis plan if he/she 

finds that, the sampling and analysis 

plan fails to include the above 

information; or the plan parameters 

would not enable the facility to 

calculate the weekly average 

concentration of these chemicals 

accurately. If the Director rejects the 

sampling and analysis plan or if the 

Director finds that the facility is not 

following the sampling and analysis 

plan, the Director shall notify the 

facility to cease the use of the direct 

monitoring option until such time as the 

bases for rejection are corrected. 

* * * * * 

[FR Doc. 05–19841 Filed 10–3–05; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 405, 412, 413, 415, 419, 

422, and 485 

[CMS–1500–F2] 

RIN–0938–AN57 

Medicare Program; Changes to the 

Hospital Inpatient Prospective 

Payment Systems and Fiscal Year 2006 

Rates; Correcting Amendment 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule; correcting 

amendment. 

SUMMARY: This document corrects 

technical errors in the final rule that 

appeared in the August 12, 2005 

Federal Register entitled ‘‘Changes to 

the Hospital Inpatient Prospective 

Payment Systems and Fiscal Year 2006 

Rates.’’

EFFECTIVE DATE: This correcting 

amendment is effective August 12, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Marc Hartstein, (410) 786–4548. 

SUPPLEMENTARY INFORMATION: 

I. Background and Summary of Errors 

In FR Doc. 05–15406 (70 FR 47278), 

the final rule entitled ‘‘Changes to the 

Hospital Inpatient Prospective Payment 

Systems and Fiscal Year 2006 Rates’’

(hereinafter referred to as the FY 2006 

final rule), there were technical errors 

that are identified and corrected in the 

regulations text of this correcting 

amendment. The provisions of this 

correcting amendment are effective 

August 12, 2005. 

On page 47487 of the FY 2006 final 

rule, we made technical errors in the 

regulation text of § 412.230(d)(2)(iii). In 

this paragraph, we inadvertently 

omitted qualifying language related to 

our reclassification policy. Accordingly, 

we are revising § 412.230(d)(2)(iii) to 

accurately reflect our policy on 

reclassification of a campus of a 

multicampus hospital. Therefore, on 

page 47487 first column, lines 23 

through 25, the phrase ‘‘may seek 

reclassification to a CBSA in which 

another campus(es) is located’’ would 

be corrected to read ‘‘may seek 

reclassification only to a CBSA in which 

another campus(es) is located’’ and on 

lines 29 and 30, the phrase ‘‘may 

submit’’ would be corrected to read 

‘‘must submit.’’