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 Environmental Protection Agency 40 CFR Parts 1, 40, 63, 260, 261, 262, 266, 271, 750 and 761
[FRL 8911-7]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Final rule.
 SUMMARY: On January 18, 2009, the Office of Solid Waste (OSW) was reorganized and changed its name to the 
                        *Office of Resource Conservation and Recovery (ORCR).*
                         The name change reflects the breadth of the responsibilities/authorities that Congress provided to EPA under the Resource Conservation and Recovery Act (RCRA), the primary authorizing statute. ORCR has three divisions, which consolidate the operations of the six divisions under the OSW structure. This reorganization will create a more efficient structure, consistent with current program priorities and resource levels, and will enable EPA to better serve the needs of the public and its key stakeholders over the next 5-10 years. EPA has increased focus on resource conservation and materials management; it is expected that focus on this important aspect of the RCRA program will continue, while maintaining a strong waste management regulatory and implementation program. EPA is taking final action to amend the Code of Federal Regulations (CFR) to reflect the reorganization and name change of the Office of Solid Waste.
 DATES: This rule is effective on June 25, 2009.
 FOR FURTHER INFORMATION CONTACT: Kathy Bruneske, Office of Resource Conservation and Recovery (ORCR), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002; telephone (703) 308-0096; fax 
                        ( print page 30229)
                        number (703) 308-7904; e-mail address 
                        *Bruneske.kathy@epa.gov.*
                         For more information regarding this rule, please visit 
                        *http://www.epa.gov/​epawaste/​basicinfo.htm.*


SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? This action is directed to the public in general, and has particular applicability to anyone who wants to communicate with the new Office of Resource Conservation and Recovery, or to submit information to the Office. Because this action may apply to everyone, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under 
                    **FOR FURTHER INFORMATION CONTACT**
                    . B. How Can I Get Additional Information, Including Copies of This Document or Other Related Documents? To obtain electronic copies of this document, and certain other related documents that are available electronically, please visit 
                    *http://www.epa.gov/​epawaste/​basicinfo.htm.* II. Background A. What Action Is the Agency Taking? In recent years, EPA has been increasing its focus on resource conservation and materials management. It is expected that this will continue; thus, the new organization increases emphasis on this important aspect of the RCRA program, while maintaining a strong waste management regulatory and implementation program. The reorganization consolidates operations from six to three divisions and adds a program management staff to the Immediate Office. The reorganization creates a more efficient structure, consistent with current Office priorities. The reorganization consolidates complementary functions in order to achieve efficiencies in operations. The reorganization: —Consolidates the four major areas of the Resource Conservation Challenge (RCC) under one division; —Combines data collection and data analysis activities thus streamlining operations to better coordinate efforts to analyze and present the benefits of the RCRA program; and —Consolidates waste-to-energy activities in one division and branch. The three divisions in the new organization are: The Materials Recovery and Waste Management Division; the Resource Conservation and Sustainability Division; and, the Program Implementation and Information Division. In addition to announcing the reorganization, EPA is amending the Code of Federal Regulations to reflect the new name of the Office of Solid Waste. B. What Is the Agency's Authority for Taking This Action? EPA is issuing this document under its general rulemaking authority, Reorganization Plan No. 3 of 1970 (5 U.S.C. app.). Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(A), provides that “rules of agency organization, procedure, or practice” are exempt from notice and comment requirements. Accordingly, EPA is not taking comment on this action. III. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to OMB review. Because this action is not subject to notice and comment requirements under the Administrative Procedures Act or any other statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 601 
                    *et seq.*) or Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments. This action does not create new binding legal requirements that substantially and directly affect Tribes under Executive Order 13175 (63 FR 67249, November 9, 2000). This action does not have significant Federalism implications under Executive Order 13132 (64 FR 43255, August 10, 1999). This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action does not involve technical standards; thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
                    *et seq.*). The Congressional Review Act, 5 U.S.C. 801 
                    *et seq.,*
                     generally provides that before certain actions may take effect, the agency promulgating the action must submit a report, which includes a copy of the action, to each House of the Congress and to the Comptroller General of the United States. Because this final action does not contain legally binding requirements, it is not subject to the Congressional Review Act. List of Subjects 40 CFR Part 1 Organization and functions 40 CFR Part 40 Grants administration 40 CFR Part 63 Environmental protection 40 CFR Parts 260, 261, and 262 Environmental protection
Hazardous waste 40 CFR Part 266 Environmental protection
Hazardous waste
Waste treatment and disposal 40 CFR Part 271 Environmental protection
Hazardous waste 40 CFR Part 750 Administrative practice and procedure 40 CFR Part 761 Environmental protection
Hazardous waste
 Dated: May 26, 2009. Barry N. Breen, Acting Assistant Administrator,  Office of Solid Waste and Emergency Response.
 For the reasons set out in the preamble, title 40 Chapter I of the Code of Federal Regulations is amended as follows: PART 1—STATEMENT OF ORGANIZATION AND GENERAL INFORMATION
 1.The authority citation for part 1 continues to read as follows: Authority:
                        5 U.S.C. 552 2.Section 1.47 is amended by revising the paragraph heading and the first sentence in paragraph (b) to read as follows: § 1.47
  
 (b) 
                            *Office of Resource Conservation and Recovery.*
                             The Office of Resource Conservation and Recovery, under the supervision of a Director, is responsible 
                            ( print page 30230)
                            for the solid and hazardous waste activities of the Agency. * * *
 PART 40—RESEARCH AND DEMONSTRATION GRANTS
 3.The authority citation for part 40 continues to read as follows: Authority:
                        7 U.S.C. 136 
                            *et seq.*; 15 U.S.C. 2609 
                            *et seq.*; 33 U.S.C. 1254 
                            *et seq.*
                             and 1443; 42 U.S.C. 241 
                            *et seq.*, 300f 
                            *et seq.*, 1857 
                            *et seq.*, 1891 
                            *et seq.*, and 6901 
                            *et seq.* 4.Section 40.135-1 is amended by revising paragraph (b) to read as follows: § 40.135-1
  
 (b) Applications for grants for demonstration projects funded by the Office of Resource Conservation and Recovery will be solicited through the Department of Commerce Business Daily, and selections will be made on a competitive basis.
 PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES
 5.The authority citation for part 63 continues to read as follows: Authority:
                        42 U.S.C. 7401 
                            *et seq.* 6.Appendix D to part 63 is amended by revising Section 1. to read as follows: Appendix D to Part 63—Alternative Validation Procedure for EPA Waste and Wastewater Methods 1. Applicability This procedure is to be applied exclusively to Environmental Protection Agency methods developed by the Office of Water and the Office of Resource Conservation and Recovery. Alternative methods developed by any other group or agency shall be validated according to the procedures in Sections 5.1 and 5.3 of Test Method 301, 40 CFR Part 63, Appendix A. For the purposes of this appendix, “waste” means waste and wastewater. 
 PART 260—HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
 7.The authority citation for part 260 continues to read as follows: Authority:
                        42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974. 8.Section 260.21 is amended by revising paragraph (d) to read as follows: § 260.21
  
 (d) If the Administrator amends the regulations to permit use of a new testing method, the method will be incorporated by reference in § 260.11 and added to “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery, Washington, DC 20460.
 PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
 9.The authority citation for part 261 continues to read as follows: Authority:
                        42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 6938. 10.Appendix IX to part 261 is amended by revising entry (5) under Waste Description for Aptus, Inc. in Table 1 to read as follows: Appendix IX to Part 261—Wastes Excluded Under Sections 260.20 and 260.22 Table 1—Wastes Excluded From Non-Specific Sources
Facility
Address
Waste description*         *         *         *         *         *         *Aptus, Inc
* * *
(5) The test data from Conditions (1), (2), (3), and (4) must be kept on file by Aptus for inspection purposes and must be compiled, summarized, and submitted to the Director for the Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery, by certified mail on a monthly basis and when the treatment of the cancelled pesticides and related materials is concluded. The testing requirements for Conditions (2), (3), and (4) will continue until Aptus provides the Director with the results of four consecutive batch analyses for the petitioned wastes, none of which exceed the maximum allowable levels listed in these conditions and the Director notifies Aptus that the conditions have been lifted. All data submitted will be placed in the RCRA public docket.*         *         *         *         *         *         *
 PART 262—STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
 11.The authority citation for part 262 continues to read as follows: Authority:
                        42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938. 12.Section 262.21 is amended by revising paragraphs (a)(1), (b) introductory text, (b)(8), (h)(1), and (h)(2) to read as follows: § 262.21
  (a)(1) A registrant may not print, or have printed, the manifest for use of distribution unless it has received approval from the EPA Director of the Office of Resource Conservation and Recovery to do so under paragraphs (c) and (e) of this section. 
 (b) A registrant must submit an initial application to the EPA Director of the Office of Resource Conservation and Recovery that contains the following information: 
 (8) A signed certification by a duly authorized employee of the registrant that the organizations and companies in its application will comply with the procedures of its approved application and the requirements of this section and that it will notify the EPA Director of the Office of Resource Conservation and Recovery of any duplicated manifest tracking numbers on manifests that have been used or distributed to other parties as soon as this becomes known. 
 (h)(1) If an approved registrant would like to update any of the information provided in its application approved 
                            ( print page 30231)
                            under paragraph (c) of this section (e.g., to update a company phone number or name of contact person), the registrant must revise the application and submit it to the EPA Director of the Office of Resource Conservation and Recovery, along with an indication or explanation of the update, as soon as practicable after the change occurs. The Agency either will approve or deny the revision. If the Agency denies the revision, it will explain the reasons for the denial, and it will contact the registrant and request further modification before approval. (2) If the registrant would like a new tracking number suffix, the registrant must submit a proposed suffix to the EPA Director of the Office of Resource Conservation and Recovery, along with the reason for requesting it. The Agency will either approve the suffix or deny the suffix and provide an explanation why it is not acceptable.
 PART 266—STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
 13.The authority citation for part 266 continues to read as follows: Authority:
                        42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 6905, 6906, 6912, 6921, 6922, 6924-6927, 6934, and 6937. 14.Appendix IX to Part 266 is amended by revising Section 7.3 to read as follows: Appendix IX to Part 266—Methods Manual for Compliance With the BIF Regulations 
 7.3 Normal Distribution Assumption As noted in Section 7.2 above, this statistical approach (use of the upper tolerance limit) for calculation of the concentration in normal residue is based on the assumption that the concentration data are distributed normally. The Agency is aware that concentration data of this type may not always be distributed normally, particularly when concentrations are near the detection limits. There are a number of procedures that can be used to test the distribution of a data set. For example, the Shapiro-Wilk test, examination of a histogram or plot of the data on normal probability paper, and examination of the coefficient of skewness are methods that may be applicable, depending on the nature of the data (References 1 and 2). If the concentration data are not adequately represented by a normal distribution, the data may be transformed to attain a near normal distribution. The Agency has found that concentration data, especially when near detection levels, often exhibit a lognormal distribution. The assumption of a lognormal distribution has been used in various programs at EPA, such as in the Office of Resource Conservation and Recovery Land Disposal Restrictions program for determination of BDAT treatment standards. The transformed data may be tested for normality using the procedures identified above. If the transformed data are better represented by a normal distribution than the untransformed data, the transformed data should be used in determining the upper tolerance limit using the procedures in Section 7.2 above. In all cases where the owner or operator wishes to use other than an assumption of normally distributed data or believes that use of an alternate statistical approach is appropriate to the specific data set, he/she must provide supporting rationale in the operating record that demonstrates that the data treatment is based upon sound statistical practice. 
 PART 271—REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS
 15.The authority citation for part 271 continues to read as follows: Authority:
                        42 U.S.C. 6905, 6912(a), and 6926. 16.Section 271.1 is amended by revising the entry for “Office of Solid Waste Burden Reduction Project” in Table 1 to read as follows: § 271.1
  
 Table 1—Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
Promulgation date
Title of regulation
**Federal Register**
                                     reference
Effective date*         *         *         *         *         *         *May 4, 2006
Office of Resource Conservation and Recovery Burden Reduction Project
71 FR 16862-16915
May 4,  2006.*         *         *         *         *         *         *
 17.Section 271.21 is amended by revising the entry for “Office of Solid Waste Testing and Monitoring Activities, Methods Innovation Rule” in Table 1 to read as follows: § 271.21
  
 Table 1 to § 271.21
Title of regulation
Promulgation date
**Federal Register**
                                     reference*         *         *         *         *         *         *Office of Resource Conservation and Recovery Testing and Monitoring Activities, Methods Innovation Rule
July 14, 2005
70 FR 34538, June 14, 2005.*         *         *         *         *         *         *
 PART 750—PROCEDURES FOR RULEMAKING UNDER SECTION 6 OF THE TOXIC SUBSTANCES CONTROL ACT
 18.The authority citation for part 750 continues to read as follows: Authority:
                        15 U.S.C. 2605. 19.Section 750.11 is amended by revising paragraph (b)(2) to read as follows: § 750.11
  
 (b)  * * * (2) PCB disposal, which includes cleanup, storage for disposal, processing related to disposal, distribution in commerce related to disposal or processing for disposal, and decontamination, must be submitted to: Document Control Officer, Office of Resource Conservation and Recovery (5305P), Environmental Protection Agency, 1200 Pennsylvania, NW., Washington, DC 20460-0001.
 20.Section 750.31 is amended by revising paragraph (b)(2) to read as follows: § 750.31
  
 (b)  * * * (2) PCB disposal, which includes cleanup, storage for disposal, processing related to disposal, distribution in commerce related to disposal or processing for disposal, and decontamination, must be submitted to: Document Control Officer, Office of Resource Conservation and Recovery (5305P), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0001.
 PART 761—POLYCHLORINATED BIPHENYLS (PCBs) MANUFACTURING, PROCESSING, DISTRIBUTION IN COMMERCE, AND USE PROHIBITIONS
 21.The authority citation for part 761 continues to read as follows: Authority:
                        15 U.S.C. 2605, 2607, 2611, 2614, and 2616. 22.Section 761.60 is amended by revising paragraph (e) to read as follows: § 761.60
  
 (e) Any person who is required to incinerate any PCBs and PCB items under this subpart and who can demonstrate that an alternative method of destroying PCBs and PCB items exists and that this alternative method can achieve a level of performance equivalent to an incinerator approved under § 761.70 or a high efficiency boiler operating in compliance with § 761.71, must submit a written request to the Regional Administrator or the Director, Office of Resource Conservation and Recovery, for a waiver from the incineration requirements of § 761.70 or § 761.71. Requests for approval of alternate methods that will be operated in more than one Region must be submitted to the Director, Office of Resource Conservation and Recovery, except for research and development activities involving less than 500 pounds of PCB material (see paragraph (i)(2) of this section). Requests for approval of alternate methods that will be operated in only one Region must be submitted to the appropriate EPA Regional Administrator. The applicant must show that his or her method of destroying PCBs will not present an unreasonable risk of injury to health or the environment. On the basis of such information and any available information, EPA may, in its discretion, approve the use of the alternate method if it finds that the alternate disposal method provides PCB destruction equivalent to disposal in a § 761.60 incinerator or a § 761.61 high efficiency boiler and will not present an unreasonable risk of injury to health or the environment. Any approval must be stated in writing and may include such conditions and provisions as EPA deems appropriate. The person to whom such waiver is issued must comply with all limitations contained in such determination. No person may use the alternate method of destroying PCBs or PCB items prior to obtaining permission from the appropriate EPA official.
 23.Section 761.61 is amended by revising paragraph (c)(1) to read as follows: § 761.61
  
 (c)  * * *  (1) Any person wishing to sample, cleanup, or dispose of PCB remediation waste in a manner other than prescribed in paragraphs (a) or (b) of this section, or store PCB remediation waste in a manner other than prescribed in § 761.65, must apply in writing to the Regional Administrator in the Region where the sampling, cleanup, disposal, or storage site is located, for sampling, cleanup, disposal, or storage occurring in a single EPA Region; or to the Director, Office of Resource Conservation and Recovery, for sampling, cleanup, disposal, or storage occurring in more than one EPA Region. Each application must include information described in the notification required by paragraph (a)(3) of this section. EPA may request other information that it believes necessary to evaluate the application. No person may conduct cleanup activities under this paragraph prior to obtaining written approval by EPA.
 24.Section 761.62 is amended by revising paragraph (c)(1) to read as follows: § 761.62
  
 (c)  * * *  (1) Any person wishing to sample or dispose of PCB bulk product waste in a manner other than prescribed in paragraphs (a) or (b) of this section, or store PCB bulk product waste in a manner other than prescribed in § 761.65, must apply in writing to the Regional Administrator in the Region where the sampling, disposal, or storage site is located, for sampling, disposal, or storage occurring in a single EPA Region; or to the Director, Office of Resource Conservation and Recovery, for sampling, disposal, or storage occurring in more than one EPA Region. Each application must contain information indicating that, based on technical, environmental, or waste-specific characteristics or considerations, the proposed sampling, disposal, or storage methods or locations will not pose an unreasonable risk or injury to health or the environment. EPA may request other information that it believes necessary to evaluate the application. No person may conduct sampling, disposal, or storage activities under this paragraph prior to obtaining written approval by EPA.
 25.Section 761.65 is amended as follows: a.By revising paragraph (d)(8). b.By revising paragraph (e)(4) introductory text. c.By revising paragraph (e)(6)(i). d.By revising paragraph (e)(8), e.By revising paragraph (g)(1)(ii). § 761.65
  
 (d)  * * * (8) The approval of any existing TSCA-approved disposal facility ancillary to a commercial storage facility that is deficient in any of the conditions of paragraph (d)(7)(i) through (d)(7)(v) of this section shall be called in by the Regional Administrator (or the appropriated official at EPA Headquarters, if approval was granted 
                            ( print page 30233)
                            by an official at EPA Headquarters). The approval shall be modified to meet the requirements of paragraph (d)(7) of this section within 180 days of the effective date of this final rule, or a separate application for approval of the storage facility may be submitted to the Regional Administrator or the Director, Office of Resource Conservation and Recovery, in the cases where an official at EPA Headquarters issued the approval. 
 (e) * * * (4) The commercial storer of PCB waste shall submit a written request to the Regional Administrator (or the Director, Office of Resource Conservation and Recovery, if an official at EPA Headquarters approved the closure plan) for a modification to its storage approval to amend its closure plan, whenever: 
 (6) * * * (i) The commercial storer shall notify in writing the Regional Administrator or the Director, Office of Resource Conservation and Recovery, if an official at EPA Headquarters approved the closure plan, at least 60 days prior to the date on which final closure of its PCB storage facility is expected to begin. 
 (8) Within 60 days of completion of closure of each facility for the storage of PCB waste, the commercial storer of PCB waste shall submit to the Regional Administrator (or the Director, Office of Resource Conservation and Recovery, if an official at EPA Headquarters approved the closure plan), by registered mail, a certification that the PCB storage facility has been closed in accordance with the approved closure plan. The certification shall be signed by the owner or operator and by an independent registered professional engineer. 
 (g) * * * (1) * * * (ii) For a new facility, the first payment into the closure trust fund shall be made before EPA grants final approval of the application and before the facility may accept the initial shipment of PCB waste for commercial storage. A receipt from the trustee shall be submitted by the owner or operator to the Regional Administrator (or the Director, Office of Resource Conservation and Recovery, if the commercial storage area is ancillary to a disposal facility approved by an official at EPA Headquarters) before this initial delivery of PCB waste. The first payment shall be at least equal to the current closure cost estimate, divided by the number of years in the pay-in period, except as provided in paragraph (g)(7) of this section for multiple mechanisms. Subsequent payments shall be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment shall be determined by subtracting the current value of the trust fund from the current closure cost estimate, and dividing this difference by the number of years remaining in the pay-in period.
 26.Section 761.70 is amended as follows: a.By revising paragraph (a) introductory text. b.By revising paragraph (b) introductory text. c.By revising paragraph (d)(1) introductory text. d.By revising paragraph (d)(2)(ii) introductory text. e.By revising paragraph (d)(5). § 761.70
  
 (a) 
                            *Liquid PCBs.*
                             An incinerator used for incinerating PCBs shall be approved by EPA pursuant to paragraph (d) of this section. Requests for approval of incinerators to be used in more than one region must be submitted to the Director, Office of Resource Conservation and Recovery, except for research and development involving less than 500 pounds of PCB material (see § 761.60(i)(2)). Requests for approval of incinerators to be used in only one region must be submitted to the appropriate Regional Administrator. The incinerator shall meet all of the requirements specified in paragraphs (a)(1) through (9) of this section, unless a waiver from these requirements is obtained pursuant to paragraph (d)(5) of this section, In addition, the incinerator shall meet any other requirements which may be prescribed pursuant to paragraph (d)(4) of this section. 
 (b) 
                            *Nonliquid PCBs.*
                             An incinerator used for incinerating nonliquid PCBs, PCB Articles, PCB Equipment, or PCB Containers shall be approved by EPA pursuant to paragraph (d) of this section. Requests for approval of incinerators to be used in more than one region must be submitted to the Director, Office of Resource Conservation and Recovery except for research and development involving less that 500 pounds of PCB material (see § 761.60(i)(2)). Requests for approval of incinerators to be used in only one region must be submitted to the appropriate Regional Administrator. The incinerator shall meet all of the requirements specified in paragraphs (b)(1) and (2) of this section unless a waiver from these requirements is obtained pursuant to paragraph (d)(5) of this section. In addition, the incinerator shall meet any other requirements that may be prescribed pursuant to paragraph (d)(4) of this section. 
 (d) * * * (1) 
                            *Application.*
                             The owner or operator shall submit to the Regional Administrator or the Director, Office of Resource Conservation and Recovery an application which contains: 
 (2) * * * (ii) If EPA determines that a trail burn must be held, the person who submitted the report described in paragraph (d)(1) of this section shall submit to the Regional Administrator or the Director, Office of Resource Conservation and Recovery a detailed plan for conducting and monitoring the trail burn. At a minimum, the plan must include: 
 (5) 
                            *Waivers.*
                             An owner or operator of the incinerator may submit evidence to the Regional Administrator or the Director, Office of Resource Conservation and Recovery that operation of the incinerator will not present an unreasonable risk of injury to health or the environment from PCBs, when one or more of the requirements of paragraphs (a) and/or (b) of this section are not met. On the basis of such evidence and any other available information, EPA may, in its discretion, find that any requirement of paragraphs (a) and (b) of this section is not necessary to protect against such a risk, and may waive the requirements in any approval for that incinerator. Any finding and waiver under this paragraph must be stated in writing and included as part of the approval.
 27.Section 761.79 is amended by revising paragraphs (h)(1), (h)(2), and (h)(3) to read as follows: § 761.79
  
 (h) * * * (1) Any person wishing to decontaminate material described in paragraph (a) of this section in a manner other than prescribed in paragraph (b) of this section must apply in writing to the Regional Administrator in the Region where the activity would take place, for decontamination activity occurring in a single EPA Region; or to the Director, 
                            ( print page 30234)
                            Office of Resource Conservation and Recovery, for decontamination activity occurring in more than one EPA Region. Each application must describe the material to be decontaminated and the proposed decontamination method, and must demonstrate that the proposed method is capable of decontaminating the material to the applicable level set out in paragraphs (b)(1) through (b)(4) of this section. (2) Any person wishing to decontaminate material described in paragraph (a) of this section using a self-implementing procedure other than prescribed in paragraph (c) of this section must apply in writing to the Regional Administrator in the Region where the activity would take place, for decontamination activity occurring in a single EPA Region; or to the Director, Office of Resource Conservation and Recovery, for decontamination activity occurring in more than one EPA Region. Each application must describe the material to be decontaminated and the proposed self-implementing decontamination method and must include a proposed validation study to confirm performance of the method. (3) Any person wishing to sample decontaminated material in a manner other than prescribed in paragraph (f) of this section must apply in writing to the Regional Administrator in the Region where the activity would take place, for decontamination activity occurring in a single EPA Region; or to the Director, Office of Resource Conservation and Recovery, for decontamination activity occurring in more than one EPA Region. Each application must contain a description of the material to be decontaminated, the nature and PCB concentration of the contaminating material (if known), the decontamination method, the proposed sampling procedure, and a justification for how the proposed sampling is equivalent to or more comprehensive than the sampling procedure required under paragraph (f) of this section.
 28.Section 761.120 is amended as follows: a.By revising paragraph (a)(3). b.By revising paragraph (b) introductory text. c.By revising paragraph (b)(2). d.By revising paragraph (c). § 761.120
  (a) * * * (3) For all other spills, EPA generally expects the decontamination standards of this policy to apply. Occasionally, some small percentage of spills covered by this policy may warrant more stringent cleanup requirements because of additional routes of exposure or significantly greater exposures than those assumed in developing the final cleanup standards of this policy. While the EPA regional offices have the authority to require additional cleanup in these circumstances, the Regional Administrator must first make a finding based on the specific facts of a spill that additional cleanup must occur to prevent unreasonable risk. In addition, before a final decision is made to require additional cleanup, the Regional Administrator must notify the Director, Office of Resource Conservation and Recovery of his/her finding and the basis for the finding. 
 (b) 
                            *Spills that may require more stringent cleanup levels.*
                             For spills within the scope of this policy, EPA generally retains, under § 761.135, the authority to require additional cleanup upon finding that, despite good faith efforts by the responsible party, the numerical decontamination levels in the policy have not been met. In addition, EPA foresees the possibility of exceptional spill situations in which site-specific risk factors may warrant additional cleanup to more stringent numerical decontamination levels than are required by the policy. In these situations, the Regional Administrator has the authority to require cleanup to levels lower than those included in this policy upon finding that further cleanup must occur to prevent unreasonable risk. The Regional Administrator will consult with the Director, Office of Resource Conservation and Recovery, prior to making such a finding. 
 (2) In those situations, the Regional Administrator may require cleanup in addition to that required under § 761.125(b) and (c). However, the Regional Administrator must first make a finding, based on the specific facts of a spill, that additional cleanup is necessary to prevent unreasonable risk. In addition, before making a final decision on additional cleanup, the Regional Administrator must notify the Director, Office of Resource Conservation and Recovery of his finding and the basis for the finding. (c) 
                            *Flexibility to allow less stringent or alternative requirements.*
                             EPA retains the flexibility to allow less stringent or alternative decontamination measures based upon site-specific considerations. EPA will exercise this flexibility if the responsible party demonstrates that cleanup to the numerical decontamination levels is clearly unwarranted because of risk-mitigating factors, that compliance with the procedural requirements or numerical standards in the policy is impracticable at a particular site, or that site-specific characteristics make the costs of cleanup prohibitive. The Regional Administrator will notify the Director, Office of Resource Conservation and Recovery of any decision and the basis for the decision to allow less stringent cleanup. The purpose of this notification is to enable the Director, Office of Resource Conservation and Recovery to ensure consistency of spill cleanup standards under special circumstances across the regions.
 29.Section 761.130 is amended by revising paragraph (e) to read as follows: § 761.130
  
 (e) EPA recommends the use of a sampling scheme developed by the Midwest Research Institute (MRI) for use in enforcement inspections: “Verification of PCB Spill Cleanup by Sampling and Analysis.” Guidance for the use of this sampling scheme is available in the MRI report “Field Manual for Grid Sampling of PCB Spill Sites to Verify Cleanup.” Both the MRI sampling scheme and the guidance document are available on EPA's PCB Web site at 
                            *http://www.epa.gov/​pcb*, or from the Program Management, Communications, and Analysis Office, Office of Resource Conservation and Recovery (5305P), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. The major advantage of this sampling scheme is that it is designed to characterize the degree of contamination within the entire sampling area with a high degree of confidence while using fewer samples than any other grid or random sampling scheme. This sampling scheme also allows some sites to be characterized on the basis of composite samples.
 30.Section 761.205 is amended by revising paragraphs (a)(3) and (d) to read as follows: § 761.205
  (a) * * * (3) Any person required to notify EPA under this section shall file with EPA Form 7710-53. Copies of EPA Form 7710-53 are available on EPA's Web site at 
                            *http://www.epa.gov/​pcb,*
                             or from the Program Management, Communications, and Analysis Office, Office of Resource Conservation and Recovery (5305P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, 
                            ( print page 30235)
                            DC 20460-0001. Descriptive information and instructions for filling in the form are included in paragraphs (a)(4)(i) through (vii) of this section. 
 (d) Persons required to notify under this section shall file EPA Form 7710-53 with EPA by mailing the form to the following address: Document Control Officer, Office of Resource Conservation and Recovery (5305P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
 31.Section 761.243 is amended by revising paragraph (a) to read as follows: § 761.243
  (a) Collect a surface sample from a natural gas pipe segment or pipeline section using a standard wipe test as defined in § 761.123. Detailed guidance for the entire wipe sampling process appears in the document entitled, “Wipe Sampling and Double Wash/Rinse Cleanup as Recommended by the Environmental Protection Agency PCB Spill Cleanup Policy,” dated June 23, 1987 and revised on April 18, 1991. This document is available on EPA's Web site at 
                            *http://www.epa.gov/​pcb*, or from the Program Management, Communications, and Analysis Office, Office of Resource Conservation and Recovery (5305P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
 32.Section 761.386 is amended by revising paragraph (e) to read as follows: § 761.386
  
 (e) 
                            *Confirmatory sampling for the validation study.*
                             Select surface sample locations using representative sampling or a census. Sample a minimum area of 100 cm2
                             on each individual surface in the validation study. Measure surface concentrations using the standard wipe test, as defined in § 761.123, from which a standard wipe sample is generated for chemical analysis. Guidance for wipe sampling appears in the document entitled “Wipe Sampling and Double Wash/Rinse Cleanup as Recommended by the Environmental Protection Agency PCB Spill Cleanup Policy,” available on EPA's Web site at 
                            *http://www.epa.gov/​pcb*, or from the Program Management, Communications, and Analysis Office, Office of Resource Conservation and Recovery (5305P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
 33.Section 761.398 is amended by revising paragraph (a) to read as follows: § 761.398
  (a) Submit validation study results to the Director, Office of Resource Conservation and Recovery (5301P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001, prior to the first use of a new solvent for alternate decontamination under § 761.79(d)(4). The use of a new solvent is not TSCA Confidential Business Information (CBI). From time to time, EPA will confirm the use of validated new decontamination solvents and publish the new solvents and validated decontamination procedures in the 
                            **Federal Register**
                            .


[FR Doc. E9-14859 Filed 6-24-09; 8:45 am] BILLING CODE 6560-50-P