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Daily Rules, Proposed Rules, and Notices of the Federal Government

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 263, 264, 265, 266, 268 and 270

[EPA-RCRA-2008-0678; FRL-9127-9]

RIN 2050-AG52

Hazardous Waste Technical Corrections and Clarifications Rule

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is taking Direct Final action on a number of technical changes that correct or clarify several parts of the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations that relate to hazardous waste identification, manifesting, the hazardous waste generator requirements, standards for owners and operators of hazardous waste treatment, storage and disposal facilities, standards for the management of specific types of hazardous waste and specific types of hazardous waste management facilities, the land disposal restrictions program, and the hazardous waste permit program. These changes correct existing errors in the hazardous waste regulations that have occurred over time in numerous final rules published in theFederal Register, such as typographical errors, incorrect or outdated citations, and omissions. Some of the corrections are necessary to make conforming changes to all appropriate parts of the RCRA hazardous waste regulations for new rules that have since been promulgated. In addition, these changes clarify existing parts of the hazardous waste regulatory program and update references to Department of Transportation (DOT) regulations that have changed since the publication of various RCRA hazardous waste final rules.
DATES: This Direct Final Rule is effective on June 16, 2010 without further notice unless EPA receives adverse comments by May 3, 2010. If adverse comment is received, EPA will publish a timely withdrawal of the Direct Final rule in theFederal Registerinforming the public that the rule will not take effect.
ADDRESSES: *http://www.regulations.gov:Follow the on-line instructions for submitting comments.

*E-mail: rcra-docket@epa.govandoleary.jim@epa.gov.Attention Docket ID No. EPA-HQ-RCRA-2008-0678.

*Fax:(202) 566-9744. Attention Docket ID No. EPA-HQ-RCRA-2008-0678.

*Mail:RCRA Docket (2822T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Attention Docket ID No. EPA-HQ-RCRA-2008-0678. Please include a total of 2 copies.

*Hand Delivery:EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to Docket ID No. EPA-HQ-RCRA-2008-0678. EPA's policy is that all comments received will be included in the public docket without change and may be made available online athttp://www.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential BusinessInformation (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughhttp://www.regulations.govor e-mail. Thehttp://www.regulations.govWeb site is an "anonymous access" system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going throughhttp://www.regulations.gov,your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with anydisk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPADocket Center homepage athttp://www.epa.gov/epahome/dockets.htm.

Docket:All documents in the docket are listed in thehttp://www.regulations.govindex. Although listed in the index, some information is not publicly available,e.g.,CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically inhttp://www.regulations.govor in hard copy at the HQ-Docket Center, Docket ID No. EPA-HQ-RCRA-2008-0678, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270. A reasonable fee may be charged for copying docket materials.

FOR FURTHER INFORMATION CONTACT: For more information on this rulemaking, contact Jim O'Leary, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery (MC:5304P), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Phone: (703) 308-8827; or e-mail:oleary.jim@epa.gov.
SUPPLEMENTARY INFORMATION: I. Why Is EPA Using a Direct Final Rule?

EPA is publishing this rule without prior proposal because we view this as a non-controversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today'sFederal Registerpublication, we are publishing a separate document that will serve as the proposed rule to adopt the provisions in this Direct Final rule if adverse comments are filed. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see theADDRESSESsection of this document.

If we receive adverse comment on any individual correction, we will publish a timely withdrawal in theFederal Registerto notify the public about a specific paragraph or amendment in the Direct Final rule that will not take effect.

II. Does This Action Apply to Me?

Entities potentially affected by this action include facilities subject to the RCRA hazardous waste regulations and States implementing the RCRA hazardous waste regulations.

III. What Should I Consider as I Prepare My Comments for EPA?

1.Tips for Preparing Your Comments.When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading,Federal Registerdate and page number).

• Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you disagree, suggest alternatives, and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible.

• Make sure to submit your comments by the comment period deadline identified.

IV. Acronyms Acronym Definition CFR United States Code of Federal Regulations. EPA United States Environmental Protection Agency. HSWA Hazardous and Solid Waste Amendments. OMB Office of Management and Budget. RCRA Resource Conservation and Recovery Act. U.S.C. United States Code. V. Preamble A. What Is the Legal Authority for This Direct Final Rule?

This rule is authorized under Sections 1004, 3001, 3002, 3003, 3004 and 3005 of the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6903, 6921-6925.

B. Why Are We Amending Various Sections of Parts 260-266, 268 and 270?

In the process of publishing numerous final rules in theFederal Register, typographical errors, incorrect or outdated citations, and omissions have occurred. Similarly, the Agency has sometimes failed to make conforming changes to all appropriate parts of the RCRA hazardous wasteregulations when new rules were promulgated. These inadvertent errors and oversights have sometimes resulted in confusion and inefficiency on the part of the regulated community and Federal and State regulators implementing the hazardous waste regulatory program.

This rule addresses these problems by correcting the RCRA hazardous waste management regulations—specifically the general requirements under 40 CFR part 260, the hazardous waste identification requirements under 40 CFR part 261, the manifesting and hazardous waste generator requirements under 40 CFR part 262, the hazardous waste transporter requirements under 40 CFR part 263, the related manifesting and emergency preparedness requirements under 40 CFR parts 264 and 265, the requirements for recycling of hazardous wastes in a manner constituting disposal under 40 CFR part 266, the land disposal restrictions requirements under 40 part 268, and the hazardous waste permit program requirements under 40 CFR part 270. Several re-designation and format corrections are also included for severalparagraphs in the permitting and interim status requirements under 40 CFR parts 264 and 265.

However, unlike most of the technical corrections and clarifications in today's rule, the changes associated with the hazardous waste manifest regulations are closely interrelated, and involve changes to several sections and paragraphs in 40 CFR parts 262, 264 and 265. Therefore, in the interest of clarity, we describe all of the changes associated with the hazardous waste manifest in Section V.C.10.

When the 40 CFR part 267 standards for owners and operators of hazardous waste facilities operating under a standardized permit were promulgated in September, 2005, EPA failed to make conforming changes to certain paragraphs in 40 CFR parts 260-263 and 266. This rule addresses that inadvertent oversight. Affected sections are identified at the end of Section V.C.7.

Today's Direct Final rule is similar to the Final rule published on July 14, 2006. See 71 FR 40254, Parts 260, 261et al.Hazardous Waste and Used Oil; Corrections to Errors in the Code of Federal Regulations; Final rule. EPA continues to review its regulations for additional technical corrections or errors and will address any such edits in forthcoming rules.

Today's action makes approximately 90 changes to 40 CFR parts 260-266, 268 and 270. References to the 40 CFR sections where technical corrections are being made are organized by part. In addition, EPA provides a description and explanation of the changes in the preamble to today's Direct Final rule.

C. Description of Direct Final Amendments to Parts 260-266, 268 and 270 1. Corrections to 40 CFR Part 260 (Hazardous Waste Management System: General)

In 40 CFR part 260, EPA is amending the following sections in order to make a number of changes: Section 260.10 and Appendix I

a. 40 CFR 260.10: In 40 CFR part 260, EPA is amending 40 CFR 260.10 to correct the date cited in the definition of “New hazardous waste management facilityornew facility.”The date is changed from “October 21, 1976” to “November 19, 1980.” This date refers to the date a facility began operation, or for which construction commenced.

A review of the May 19, 1980 preamble to the first set of RCRA hazardous waste regulations shows that EPA was aware that the October 21, 1976 date specified in the statute was an unrealistic date to establish, and anticipated statutory amendments to correct this problem. Specifically, in May 1980, EPA wrote:

“Definition of Existing Facility”

Several commenters pointed out what they perceived as a serious fault inSection 3005(e) of RCRA, which is that the Section limits interim status toowners and operators of facilities “in existence” on or before October 21,1976. The statute requires that, in order to operate legally, facilities which havecome into existence after October 21, 1976, must obtain a permit by theeffective date of the Section 3005 regulations (i.e.,within 180 days afterthe promulgation date of the regulations). Because it is unlikely thatpermits can be issued within 180 days for all facilities not “in-existence” byOctober 21, 1976, the commenters felt that the language of the statute wasunfair to the owners and operators of these facilities.

“EPA agrees that the language of the statute as it now stands would make the RCRA program unworkable. However, the language of RCRA is clear and EPAhas had no alternative but to follow it in the regulations. As the preamble to thePart 122 regulations discusses, EPA expects that amendments to RCRA nowin conference will be passed shortly and will cure this problem.”(45 FR 33068, May 19, 1980)

RCRA Section 3005(e) related to Interim Status facilities was amended to correct this problem. Section 3005(e)(1) now reads: “Any person who—(A) owns or operates a facility required to have a permit under this section which facility—(i) was in existence on November 19, 1980, or (ii) is in existence on the effective date of statutory or regulatory changes under this Act that render the facility subject to the requirement to have a permit under this section * * * shall be treated as having been issued such permit until such time as final administrative disposition of such application is made, unless the Administrator * * *.”

Therefore, EPA is amending § 260.10 to make this conforming change by revising the date “October 21, 1976” to read “November 19, 1980.” More specifically, the regulatory citation will read as follows:

“New hazardous waste management facilityornew facility”means a facility which began operation, or for which construction commenced after November 19, 1980.”

Note that the definition at § 260.10 for “Existing hazardous waste management facility” includes the correct date (i.e.,November 19, 1980), which further supports this conforming change.

b. 40 CFR part 260, Appendix I: In 40 CFR part 260, EPA is deleting the appendix entitled, Appendix I to Part 260: Overview of Subtitle C Regulations, which includes a brief discussion of the hazardous waste regulations, along with associated Figures 1-4. This Appendix was initially developed when the hazardous waste regulations were first promulgated in May 1980. Since then, the regulations have changed a number of times and this Appendix is no longer accurate. Therefore, we are deleting it to avoid any confusion.

2. Corrections to 40 CFR Part 261 (Identification and Listing of Hazardous Waste)

In 40 CFR part 261, EPA is amending the following sections in order to correct typographical errors, include correct citations, and incorporate conforming changes: Sections 261.1, 261.2, 261.4, 261.5, 261.6, 261.7, 261.23, 261.30, 261.31, 261.32, 261.33 and Appendix VII to part 261.

a. 40 CFR 261.1(c)(10): In 40 CFR part 261, EPA is amending this paragraph to correct a citation error by revising “§ 261.4(a)(13)” to read “§ 261.4(a)(14)” in the parenthetical note at the end of paragraph (c)(10). 40 CFR 261.1(c)(10) defines “Processed scrap metal.” As part of this definition, the parenthetical note at the end of the paragraph states:

“(Note:shredded circuit boards being sent for recycling are not considered processed scrap metal. They are covered under the exclusion from the definition of solid waste for shredded circuit boards being recycled (§ 261.4(a)(13)).”

However, § 261.4(a)(13) relates to excluded scrap metal, not shredded circuit boards. The correct citation for shredded circuit boards being recycled is found at § 261.4(a)(14). Thus, we are correcting this incorrect citation.

b. 40 CFR 261.2(c), Table 1: In 40 CFR part 261, EPA is amending § 261.2(c), Table 1 by removing the phrase, “Scrap metal other than excluded scrap metal (see 261.1(c)(9))” and replacing it with “Scrap metal that is not excluded under § 261.4(a)(13).” This change more concisely describes scrap metal that is subject to the RCRA Subtitle C regulations, namely regulated scrap metal. This phrase also is consistent with paragraph 40 CFR 261.6(a)(3)(ii) related to the requirements for regulated scrap metal.

c. 40 CFR 261. 4(a)(17)(vi): In 40 CFR part 261, EPA is amending § 261.4(a)(17)(vi) to correct a citation error by revising the citation “paragraph (a)(7)” to read “paragraph (b)(7).”

The reference to “paragraph (a)(7),” which relates to spent sulfuric acid, was incorrectly revised in the final rule published in 67 FR 11254 (March 13, 2002) and should have properly referred to paragraph (b)(7). Thus, we are correcting this incorrect citation.

d. 40 CFR 261.5(e)(1): In 40 CFR part 261, EPA is amending this paragraph to read, “A total of one kilogram of acute hazardous wastes listed in §§ 261.31 or 261.33(e).”

This change removes a reference to acute hazardous wastes listed under “§ 261.32,” because currently, there are no acute hazardous wastes listed in § 261.32.

e. 40 CFR 261.5(e)(2): In 40 CFR part 261, EPA is amending this paragraph to remove the reference to acute hazardous wastes listed under “§ 261.32,” because, as noted previously, there are no acute hazardous wastes listed in § 261.32.

EPA is also amending the parenthetical comment at the end of § 261.5(e)(2) to correct the term “generators of greater than 1,000 kg” to read “generators of 1,000 kg or greater” and to eliminate the redundant term “non-acutely.”

Specifically, § 261.5(e) addresses those amounts of acute hazardous waste that are subject to full regulation under 40 CFR parts 262-268, 270, and 124, and the notification requirements of Section 3010 of RCRA. At the end of § 261.5(e)(2) is a comment which reads:

[Comment: “Full regulation” means those regulations applicable to generators of greater than 1,000 kg of non-acutely hazardous waste in a calendar month.]

This comment describes full regulation as regulations applicable to generators of greater than 1,000 kg of non-acutely hazardous waste in a calendar month (a large quantity generator), but 40 CFR 262.34(d) lists conditions for facilities who generate greater than 100 kg but less than 1,000 kg of hazardous waste in a calendar month (e.g.,a small quantity generator). Therefore, facilities that generate exactly 1,000 kg are not included in either range. At 40 CFR 262.34(g) and (h), we state that generators who generate 1,000 kilograms of hazardous waste per month and generators that generate greater than 1,000 kilograms of hazardous waste per calendar month (as this quantity relates to generators of wastewater treatment sludges from electroplating operations (EPA Hazardous Waste No. F006)) are subject to the same regulatory standards. Likewise, at 40 CFR 262.34(j), we state that generators who generate 1,000 kilograms of hazardous waste per calendar month and generators that generate greater than 1,000 kilograms of hazardous waste per calendar month (as this quantity relates to members of the Performance Track program) are subject to the same regulatory standards.1 Therefore, our intent always has been to regulate facilities generating exactly 1,000 kilograms of hazardous waste in a calendar month the same as those generators who generate greater than 1,000 kilograms of hazardous waste in a calendar month (i.e.,large quantity generators) rather than the requirements for facilities generating greater than 100 kilograms in a calendar month, but less than 1,000 kilograms of hazardous waste in a calendar month, (i.e.,small quantity generators). Clarifying the parenthetical comment at the end of § 261.5(e)(2) resolves the inconsistency that exists between this comment and §§ 262.34(d), 262.34(g), 262.34(h) and 262.34(j).

1EPA terminated the Performance Track Program on May 14, 2009 (74 FR 22741) and thus the program's incentives, including the hazardous waste incentives, are no longer available. EPA plans to take steps to rescind the final rules that enabled these incentives.

Also, since this comment refers to non-acute hazardous wastes, use of the term “non-acutely” is redundant and unnecessary.

f. 40 CFR 261.5(f): In 40 CFR part 261, EPA is amending this paragraph to read, “In order for acute hazardous wastes generated by a generator of acute hazardous wastes in quantities equal to or less than those set forth in paragraphs (e)(1) or (e)(2) of this section to be excluded from full regulation under this section, the generator must comply with the following requirements:”

This change clarifies that the relevant paragraphs of section 261.5 (e) are both (e)(1) and (e)(2). The current regulation references paragraph (e)(1) or (2).

g. 40 CFR 261.5(g): In 40 CFR part 261, EPA is amending this paragraph to read, “In order for hazardous waste generated by a conditionally exempt small quantity generator in quantities of 100 kilograms or less of hazardous waste during a calendar month to be excluded from full regulation under this section, the generator must comply with the following requirements:”

This paragraph currently refers to “in quantities of less than 100 kilograms of hazardous waste” which is inconsistent with 40 CFR 261.5 (a) which describes a conditionally exempt small quantity generator as one who generates no more than 100 kilograms of hazardous waste in a calendar month (i.e.,100 kilograms or less). Thus, this change makes 40 CFR 261.5(g) consistent with 40 CFR 261.5(a).

h. 40 CFR 261.5(g)(2): In 40 CFR part 261, EPA is amending this paragraph to read, “The conditionally exempt small quantity generator may accumulate hazardous waste on-site. If he accumulates at any time more than a total of 1,000 kilograms of his hazardous wastes, all of those accumulated wastes are subject to regulation under the special provisions of part 262 applicable to generators of greater than 100 kg and less than 1000 kg of hazardous waste in a calendar month as well as the requirements of parts 263 through 268, and parts 270 and 124 of this chapter, and the applicable notification requirements of section 3010 of RCRA. The time period of § 262.34(d) for accumulation of wastes on-site begins for a conditionally exempt small quantity generator when the accumulated wastes exceed 1000 kilograms;”

This change clarifies the amount of hazardous wastes a generator can generate in a calendar month and still be classified as a small quantity generator;e.g.,greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month. Similarly, this change is consistent with paragraphs § 262.34(d)-(f).2

2The Agency is also adding part 267 to this CFR section,i.e.,§ 261.5(g). See discussion later in the preamble for the basis of this change.

i. 40 CFR 261.6(a)(2): In 40 CFR part 261, EPA is making a conforming change to add “268” to § 261.6(a)(2) so that it reads “* * * and all applicable provisions in parts 268, 270, and 124 of this chapter.” This change is necessary to be clear that the requirements of part 268 are applicable to the subject of this provision (recycled wastes regulated under part 266). An examination of § 261.6(a)(3) clearly shows that the Agency was aware that Part 268 is applicable to recycled wastes. Thus, the failure to cite part 268 in paragraph (a)(2) was an oversight. A December 20, 1989 memo from EPA Headquarters to EPA Region 1 (RCRA Online 11482), a copy of which is included in today's docket, explained this oversight and the need to correct this error in a future rulemaking.

j. 40 CFR 261.6(a)(2)(ii): In 40 CFR part 261, EPA is amending § 261.6(a)(2)(ii) to read “Hazardous waste burned (as defined in section 266.100(a)) in boilers and industrial furnaces that are not regulated under subpart O of part 264 or 265 of this chapter (40 CFR part 266, subpart H).”

Specifically, § 261.6(a)(2) indicates which subparts of part 266 govern the management of certain recycled materials. Paragraph § 261.6(a)(2)(ii) currently indicates that hazardous waste burned for energy recovery in boilers and industrial furnaces is covered under Subpart H of part 266. Prior to 1991, hazardous waste burned for energy recovery was subject to Subpart D of part 266, and § 261.6(a)(2)(ii) specifically referred to Subpart D. In1991, the boiler and industrial furnace rule expanded the scope of the part 266 boiler and industrial furnace regulations to address burning for both energy recovery and materials recovery, and the Subpart D regulations were replaced with regulations under Subpart H of part 266. The 1991 rule amended the reference in § 261.6(a)(2)(ii) from subpart D to subpart H of part 266, but inadvertently omitted the parallel conforming change to the text of (a)(2)(ii) to reflect the expanded scope of the regulations, which now cover both burning for energy recovery and burning for material recovery. This amendment makes that conforming change.

k. 40 CFR 261.7(a)(1), (a)(2), (b)(1) and (b)(3): In 40 CFR part 261, EPA is making conforming changes to §§ 261.7(a)(1) and (a)(2) to add “part 266.”

Specifically, an examination of theFederal Registerfrom 1980 to the present reveals that §§ 261.7(a)(1) and (a)(2) have been amended several times to include additional parts to the list of applicable regulations as the RCRA regulatory program evolved. As examples, paragraphs (a)(1) and (a)(2) of § 261.7 were amended in 1983 (48 FR 14294) to remove part 122 and substitute part 270; were amended in 1986 to include part 268 (the Land Disposal Restrictions program) (51 FR 40637); and were amended again in 2005 to incorporate part 267 (the Standardized Permit program) (70 FR 53453). However, references to part 266, which addresses Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities, were not added when part 266 was promulgated. Because part 266 is one of the parts applicable to the wastes discussed in § 261.7, it should have been added to the lists of applicable parts. The Agency is now correcting this oversight.

In this section, EPA is also amending paragraphs (b)(1) and (b)(3) to remove the reference to acute hazardous wastes listed in “§ 261.32,” because currently, there are no acute hazardous wastes listed in § 261.32.

l. 40 CFR 261.23(a)(8): In 40 CFR part 261, EPA is amending this paragraph to read, “It is a forbidden explosive as defined in 49 CFR 173.54, or is a Division 1.1, 1.2 or 1.3 explosive as defined in 49 CFR 173.50 and 173.53.”

Specifically, 40 CFR 261.23(a)(8) cross-references Department of Transportation (DOT) regulations addressing forbidden explosives, Class A explosives, and Class B explosives. However, these cross-references are out of date with the current DOT regulations, and the referenced sections either no longer exist or no longer address these explosives. This change modifies the rule to provide the correct citations.

m. 40 CFR 261.30(d). In 40 CFR part 261, EPA is amending this paragraph to read, “The following hazardous wastes listed in § 261.31 are subject to the exclusion limits for acutely hazardous wastes established in § 261.5: EPA Hazardous Wastes Nos. F020, F021, F022, F023, F026 and F027.”

The existing paragraph indicates that acutely hazardous wastes are listed in § 261.31 and § 261.32. However, because there are no acute hazardous wastes currently listed in § 261.32, we are removing the reference to § 261.32.

n. 40 CFR 261.31: In 40 CFR part 261, EPA is amending the listing for EPA Hazardous Waste No. F037 by correcting the phrase “* * * oil cooling wastewaters” to read “* * * oily cooling wastewaters.” It is clear from the 1990 and 1998Federal Registernotices promulgating and subsequently revising this listing that the correct phrase is “oily cooling wastewaters” (55 FR 46396 and 63 FR 42185, respectively). This phrase is also consistent with the listing description of F037 and F038 in the table in 40 CFR 268.40 and Table 302.4—List of Hazardous Substances and Reportable Quantities.

o. 40 CFR 261.32: In 40 CFR part 261, EPA is amending the listing for K107, by correcting the misspelled chemical name “* * * carboxylic acid hydrazines” to read “* * * carboxylic acid hydrazides.” That this is a misspelling is clear from the original listing background document supporting the K107 listing which discusses “carboxylic acid hydrazides.” The proposed rule (December 20, 1984; 49 FR 49559) included this error in the listings for K107, K108, K109, and K110. The error was corrected in the final rule (May 2, 1990; 55 FR 18505) for all the listings except K107.

p. 40 CFR 261.32: In 40 CFR part 261, EPA is amending the table in this section to remove the section headings that have no waste codes included: “Primary Copper:”, “Primary Lead:”, “Primary Zinc:”; and “Ferroalloys:”.

Specifically, the entries for Hazardous Waste Nos. K064 (Primary Copper), K065 (Primary Lead), K066 (Primary Zinc) and K090 and K091 (Ferroalloys) were removed from the table in 1999 (64 FR 56470, October 20, 1999; see also 63 FR 28599-29600, May 26, 1998). Although these were the only waste codes listed in the sections having the same title, the section headings were inadvertently not removed with the waste codes. Thus, they are being deleted in today's Direct Final rule.

q. 40 CFR 261.33(f): In 40 CFR part 261, EPA is amending this section to revise the listing for U239, “Benzene, dimethyl- (I,T)” to read “Benzene, dimethyl- (I).” Inclusion of the “T” (for toxicity) in the parentheses was an oversight because this chemical was listed only for ignitability (“I”) and not for toxicity (“T”). This error was first identified in 1990, but the Agency failed to correct this error in previous technical correction rules (see memo from Scarberry to Kreider (April 5, 1990, RO115020), a copy of which is included in today's docket). This correction is also consistent with the same listing under the more common name for U239, “xylene,” which has only an “I” in the parentheses.

r. Part 261, APPENDIX VII: In 40 CFR part 261, EPA is amending this section to remove the entries “K064,” “K065,” “K066,” “K090,” and “K091.” In the final rule published in 64 FR 56470 (October 20, 1999), see also 63 FR 28599-29600, May 26, 1998, EPA removed these K-listed wastes from § 261.32, but failed to make the necessary conforming changes in Appendix VII of part 261. This amendment makes that conforming change.

3. Corrections to 40 CFR Part 262 (Standards Applicable to Generators of Hazardous Waste)

In 40 CFR part 262, EPA is amending the following sections in order to clarify regulatory citations and address incorrect citations: Sections 262.10, 262.11, 262.23,3 262.34, 262.41, 262.42 and 262.60.4

3Discussed under section V.C.10.

4 Note:The changes at 40 CFR 262.10, 262.11 and 262.41 refer to the conforming change to include part 267.

a. 40 CFR 262.34(a): In 40 CFR part 262, EPA is amending this paragraph by revising 40 CFR 262.34(a) to read, “A generator who generates 1,000 kilograms or greater of hazardous waste in a calendar month, or greater than 1 kg of acute hazardous waste listed in §§ 261.31 or 261.33(e) in a calendar month, may accumulate hazardous waste on-site for 90 days or less without a permit or without having interim status, provided that:”

Specifically, the current language in 40 CFR 262.34(a) fails to clarify that this paragraph applies to large quantity generators only—that is, generators who generate 1,000 kilograms or greater of hazardous waste in a calendar month, or greater than 1 kg of acute hazardous waste listed in §§ 261.31 or 261.33(e) in a calendar month. Small quantity generators can accumulate hazardous waste on site for 180 days (or 270 daysif he must transport his waste or offer his waste for transportation over a distance of 200 miles or more) or less without a permit or without having interim status.

b. 40 CFR 262.34(a)(1)(iv)—as related to Closure: EPA is amending CFR 262.34(a) by moving a sentence from one portion of the regulation to another, more appropriate, portion of the regulation where it will be easier to find.

Specifically, EPA is moving the language that currently appears after 40 CFR 262.34(a)(1)(iv)(B) which states that generators accumulating hazardous waste on-site for 90 days or less without a permit or interim status are exempt from all the requirements in subparts G and H of 40 CFR part 265, except for 40 CFR 265.111 and 265.114.

This amendment is necessary because this sentence stating the requirements for large quantity generators closing their waste accumulation units is incorrectly and awkwardly found after 40 CFR 262.34 (a)(1)(iv)(B), when it should be elsewhere in the regulation. That is, this section of the regulations has no relationship to the closure requirements, but instead addresses the documentation needed by a large quantity generator accumulating hazardous waste in containment buildings to demonstrate that the unit has been emptied at least once every 90 days. Thus, requirements for large quantity generators closing their 90-day waste accumulation units should properly be located in another portion of this regulation. EPA has expressed this same intent in a Hotline document in the December 1998 Hotline Monthly Report entitled, Generator Closure Requirements, a copy of which is included in today's docket. (Also see RCRA Online 14321.5 )

5RCRA Online is an electronic database of selected letters, memoranda, questions and answers, publications, and other outreach materials, written by EPA's Office of Solid Waste (now the Office of Resource Conservation and Recovery) since 1980.

EPA is moving this sentence to a new section 40 CFR 262.34(a)(5). This new location for this long-standing closure requirement for large quantity generators will make it less likely that users of the regulations will miss the provision and thus be unaware of its existence. Putting this sentence in a new subparagraph (5) of paragraph (a) following existing subparagraphs (1) through (4) also makes it much clearer that the closure provision is one of the five existing requirements applicable to large quantity generators accumulating waste on-site.

c. 40 CFR 262.34(a)(2)—as related to Marking:In 40 CFR part 262, EPA is amending this paragraph by revising 40 CFR 262.34(a)(2) to read “each container and tank” instead of “each container.”

Specifically, § 262.34(a)(3) makes clear that displaying the words “Hazardous Waste” is required for both containers and tanks accumulating waste, but the words “and tank” were inadvertently omitted from the text of § 262.34(a)(2) which discusses displaying the accumulation start date. In the preamble to the March 24, 1986Federal Register(51 FR 10146 and 51 FR 10160), EPA makes clear that under 40 CFR 262.34 both containers and tanks must be marked with accumulation start dates. EPA also explained that both containers and tanks must be marked with accumulation start dates in the June 2003 RCRA Call Center Monthly Report, a copy of which is included in today's docket. This amendment corrects this omission.

d. 40 CFR 262.34(a)(4) and 40 CFR 262.34(d)(4)—as related to the Land Disposal Restrictions (LDR): In 40 CFR part 262, EPA is amending these paragraphs by revising 40 CFR 262.34(a)(4) and 40 CFR 262.34(d)(4) to delete “40 CFR 268.7(a)(5)” and substitute the words “all applicable requirements under 40 CFR part 268.”

Both 40 CFR 262.34(a)(4) and 40 CFR 262.34 (d)(4) specifically state that large quantity generators and small quantity generators must comply only with 40 CFR 268.7(a)(5) of the land disposal restriction requirements. This provision addresses waste analysis plans. However, the limited reference to 40 CFR 268.7(a)(5) is in error. As stated elsewhere in the hazardous waste regulations, both small and large quantity generators are subject to the full land disposal restriction requirements program, and not just the requirement to develop waste analysis plans. For example, 40 CFR 262.11 points to the need for materials subject to the hazardous waste regulations to comply with all applicable regulations under 40 CFR part 268 (Land Disposal Restrictions). Similarly, 40 CFR 268.1(b) is clear that the LDR requirements “apply to persons who generate or transport hazardous waste and owners and operators of hazardous waste treatment, storage and disposal facilities.” Thus, EPA is correcting this error by revising these paragraphs to properly conform to the requirements elsewhere for large quantity generators and small quantity generators to comply with all applicable regulations under 40 CFR part 268.

e. 40 CFR 262.34(b): Consistent with the changes being made in section 262.34(a) of today's Direct Final rule, EPA is amending 40 CFR 262.34 by revising the first sentence of 40 CFR 262.34(b) to read, “A generator of 1,000 kilograms or greater of hazardous waste in a calendar month, or greater than 1 kg of acute hazardous waste listed in §§ 261.31 or 261.33(e) in a calendar month, who accumulates hazardous waste or acute hazardous waste for more than 90 days is an operator of a storage facility and is subject to the requirements of 40 CFR parts 264, 265 and 267 and the permit requirements of 40 CFR 270 unless he has been granted an extension to the 90-day period.” (See discussion in section V.3.a regarding paragraph 262.34(a) for explanation of change.)

f. 40 CFR 262.34(c)(1): EPA is amending 40 CFR 262.34 by revising 40 CFR 262.34(c)(1) to read: “A generator may accumulate as much as 55 gallons of hazardous waste or one quart of acutely hazardous waste listed in § 261.31 or § 261.33(e) in containers at or near any point of generation where wastes initially accumulate which is under the control of the operator of the process generating the waste, without a permit or interim status and without complying with paragraphs (a) or (d) of this section provided he:”

This revision clarifies that the satellite accumulation provisions for large quantity generators also are applicable to small quantity generators, and that this provision applies to acutely hazardous wastes listed under § 261.31 as well. As currently constructed, the regulatory citations at 40 CFR 262.34 associated with satellite accumulation are only found under the requirements for large quantity generators, or paragraph (a). The preamble to the final rule promulgating this provision published in the March 24, 1986Federal Registermakes clear that the satellite accumulation provisions also are applicable to small quantity generators. The regulatory text omitted the appropriate reference to implement this intent. See 51 FR 10162. In addition, other EPA documents state that the satellite accumulation provisions apply to small quantity generators as well. See, for example, Memorandum from Robert Springer, Director Office of Solid Waste to Regions 1-10,Frequently Asked Questions about Satellite Accumulation Areas,March 17, 2004 (RO 14703), a copy of which is included in today's docket.

With respect to including acutely hazardous wastes listed under § 261.31, when the dioxin listings for acutelyhazardous wastes listed under § 261.31 were promulgated in 1985 (see 50 FR 2000), we failed to make conforming changes to the satellite accumulation regulations found at 40 CFR 262.34 (c)(1) and (c)(2) which were promulgated in 1984. This amendment corrects this omission.

g. 40 CFR 262.34(c)(2): EPA is amending 40 CFR 262.34 by revising 40 CFR 262.34(c)(2) to read: “A generator who accumulates either hazardous waste or acutely hazardous waste listed in § 261.31 or § 261.33(e) in excess of the amounts listed in paragraph (c)(1) of this section at or near any point of generation must, with respect to that amount of excess waste, comply within three days with paragraph (a) of this section or other applicable provisions of this chapter.

During the three day period the generator must continue to comply with paragraphs (c)(1)(i) and (ii) of this section. The generator must mark the container holding the excess accumulation of hazardous waste with the date the excess amount began accumulating.”

This amendment makes the conforming change discussed above (section V.3.f.) for 40 CFR 262.34(c)(1).

h. 40 CFR 262.42(a)(1), (a)(2), and (c)—Exception Reporting: In 40 CFR part 262, EPA is amending both 40 CFR 262.42(a)(1) and (a)(2) to read, “A generator of 1,000 kilograms or greater of hazardous waste in a calendar month, or greater than1 kg of acute hazardous waste listed in §§ 261.31 or 261.33(e) in a calendar month * * *” Also, EPA is adding paragraph (c) to this section to require a generator to comply with this provision when a designated facility re-ships a generator's hazardous waste shipment of rejected loads or container residues to an alternate facility for further hazardous waste management. This correction is discussed in Section V.C.10 below, along with other corrections and clarifications to the hazardous waste manifest regulations.

Specifically, the current language in paragraphs (a)(1) and (a)(2) at 40 CFR 262.42 incorrectly describes the exception reporting requirements as applying only to generators of “greater than 1000 kilograms of hazardous waste” in a calendar month, when it should properly address such requirements for large quantity generators (i.e.,those generators generating 1,000 kilograms or greater of hazardous waste or greater than 1 kg of acute hazardous waste listed in § 261.31 or § 261.33(e) in a calendar month). These amendments are further supported by the language in paragraphs § 262.34(d), § 262.34(g), § 262.34(h) and § 262.34(j) cited under 40 CFR 261.5(e).

i. 40 CFR 262.60(b)—Imports of Hazardous Waste: In 40 CFR part 262, EPA is amending 40 CFR 262.60(b) to replace “§ 262.20 (a)” with “§ 262.20.”

Specifically, paragraph 262.60(b) incorrectly states that “when importing hazardous waste, a person must meet all the requirements of § 262.20(a) for the manifest except that * * *” However § 262.20(a) is only one component of the hazardous waste manifest requirements that facilities must meet in either transporting or importing hazardous wastes. To comply with this requirement only, and no other, would be a violation of the hazardous waste manifest requirements. EPA made this error in the original import regulations (see 51 FR 28685, August 8, 1986) and is now amending this section to reflect the Agency's intent.

4. Corrections to 40 CFR Part 264 (Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities)

In 40 CFR part 264, EPA is amending the following sections in order to include correct citations, clarify regulatory requirements that are either cited elsewhere inFederal Registernotices or documents published in RCRA Online, and incorporate conforming changes: Sections 264.52, 264.56, 264.72,6 264.314, 264.316, and 264.552.

6Discussed under Section V.C.10.

a. 40 CFR 264.52—Content of contingency plan: EPA is amending § 264.52(b) by removing the phrase “or part 1510 of chapter V,” since part 1510 of chapter V no longer exists.

b. 40 CFR 264.56—Emergency Procedures: Consistent with the change being made in 40 CFR 264.52, EPA is amending § 264.56(d)(2) by removing the parenthetical phrase “(in the applicable regional contingency plan under part 1510 of this title),” since this provision no longer exists.

c. 40 CFR 264.314(d) and 264.316(b): The Burden Reduction Rule (71 FR 16906, April 4, 2006) deleted the obsolete paragraph (a) in § 264.314 and moved up the rest of the paragraphs in that section. Thus, paragraphs (b) through (f) were re-designated paragraphs (a) through (e). In doing this, the Burden Reduction Rule failed to update the cross-references in paragraph 264.314(d) from “(e)(1)” to “(d)(1)” and “(e)(2)” to “(d)(2),” and failed to update the cross-reference in § 264.316(b) from “§ 264.314(e)” to “§ 264.314(d)”. Today's rule corrects these errors.

d. 40 CFR 264.552(a)(3): As discussed under 40 CFR 264.314 (section V.4.c), the Burden Reduction Rule (71 FR 16906, April 4, 2006) deleted the obsolete paragraph 264.314(a) and moved up the rest of the paragraphs in that section. Thus, paragraphs (b) through (f) were re-designated paragraphs (a) through (e). In doing this, the Burden Reduction Rule failed to update the cross-references in § 264.552 to these re-designated paragraphs. Today's rule corrects this as follows: Paragraph 264.552(a)(3)(ii) revises the citation “§ 264.314(d)” to read “§ 264.314(c)”; paragraph 264.552(a)(3)(iii) revises the citation “§ 264.314(f)” to read “§ 264.314(e)”; and paragraph 264.552(a)(3)(iv) revises the citation “§ 264.314(c)” to read “§ 264.314(b)” and “§ 264.314(e)” to read “§ 264.314(d).”

e. 40 CFR 264.552(e)(4)(iv)(F): Today's rule revises the citation in § 264.552(e)(4)(iv)(F) from “260.11(a)(11)” to read “260.11(c)(3)(v).” The Corrective Action Management Units (CAMUs) final rule (67 FR 3025, January 22, 2002), in § 264.552(e)(4)(iv)(F), provided for a variance from the “Toxicity Characteristic Leaching Procedure” (TCLP), SW846 Method 1311, and incorrectly cited “40 CFR 260.11(11)” for Method 1311. This reference was an improper citation format. It should have read “40 CFR 260.11(a)(11).” EPA then significantly reorganized and revised 40 CFR 260.11 (70 FR 34538, June 14, 2005), without making the corresponding revision to the citation in § 264.552(e)(4)(iv)(F). However, the June 14, 2005 revision (at 70 FR 34560) also added a new § 260.11(c)(3)(v) referencing Method 1311. The EPA CFR Corrections rule (71 FR 40273, July 14, 2006) corrected the original § 264.552(e)(4)(iv)(F) citation to read “40 CFR 260.11(a)(11),” the paragraph that in 2002 correctly referred to SW846, which includes Method 1311. But, because of the June 14, 2005 revisions, the correct citation in the July 14, 2006 CFR corrections rule should have been “§ 260.11(c)(3)(v).”

5. Corrections to 40 CFR Part 265 (Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities)

In 40 CFR part 265, EPA is amending the following sections in order to include correct citations, clarify particular regulatory requirements that are either cited elsewhere inFederal Registernotices or documents published in RCRA Online, and incorporate conforming changes:Sections 265.52, 265.56, 265.72,7 265.314 and 265.316.

7Discussed under Section V.C.10.

a. 40 CFR 265.52—Content of contingency plan: EPA is amending § 265.52(b) by removing the phrase “or part 1510 of chapter V,” since part 1510 of chapter V no longer exists.

b. 40 CFR 265.56—Emergency Procedures: Consistent with the change being made in 40 CFR 265.52, EPA is amending § 265.56(d)(2) by removing the parenthetical phrase “(in the applicable regional contingency plan under part 1510 of this title),” since the provision no longer exists.

c. 40 CFR 265.314(e) and 265.316(b): As discussed under the sections on 40 CFR 264.314 and 264.316 above (section V.4.c), today's rule corrects some errors made in the Burden Reduction Rule (71 FR 16912, April 4, 2006) in 40 CFR 264.314(e) and 264.316(b). We are also making the same corrections to the corresponding part 265 provisions, which are identical in language to the part 264 provisions. Specifically, the 2006 Burden Reduction Rule deleted obsolete paragraph (a) in § 265.314 and moved up the rest of the paragraphs in that section. Thus, paragraphs (b) through (g) became re-designated as paragraphs (a) through (f). In doing this, the Burden Reduction Rule failed to update the cross-references in paragraph 265.314(e) from “(f)(1)” to “(e)(1)” and “(f)(2)” to “(e)(2),” and failed to update the cross-reference in § 265.316(b) from “§ 265.314(f)” to “§ 265.314(e).” Today's rule corrects these errors.

6. Corrections to 40 CFR Part 266 (Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities)

In 40 CFR part 266, EPA is amending the following section in order to make a necessary conforming change: Section 266.20.

40 CFR 266.20—Subpart C—Recyclable Materials Used in a Manner Constituting Disposal: EPA is amending § 266.20(b) by adding at the end of this paragraph the phrase, “and the recycler complies with § 268.7(b)(6).”

Specifically, when EPA promulgated § 268.7(b)(6), the Agency failed to make the conforming change at § 266.20(b) to clarify that the recycler must comply with the one-time certification requirement described at § 268.7(b)(4) for the initial shipment of the waste, and a one-time notification under paragraph § 268.7(b)(3). This correction addresses this oversight.

7. Conforming Changes To Include Reference to Part 267 in Different Sections of Parts 261, 262, 263, and 266.

In 2005, EPA promulgated 40 CFR part 267, which provides alternative management standards for owners and operators of certain types of hazardous waste treatment and storage facilities operating under a special type of permit—that is, the standardized permit. Management includes storing or non-thermally treating hazardous waste on-site in tanks, containers or containment buildings, or receiving hazardous waste generated off-site by a generator under the same ownership as the receiving facility, and then storing or non-thermally treating the hazardous waste in containers, tanks, or containment buildings. (See 40 CFR 270.255.) When EPA promulgated this rule, the Agency inadvertently failed to make a number of conforming changes to other parts of the RCRA hazardous waste regulations that were affected by this new rule. In particular, there are various paragraphs throughout parts 261, 262, 263 and 266 where the phrase, “parts 262 through 266, 268, and parts 270 and 124,” or variations appear. When part 267 was promulgated, this phrase should have been amended in the applicable paragraphs to add part 267 and reflect this change. The following paragraphs are amended to correct this oversight:

—§ 261.5(b), (e) and (f)(2), and (g)(2) —§ 261.6(a)(3), (c)(1) and (d) —§ 261.7(a)(2) —§ 261.30(c) —§ 262.10(f), (j)(1) and (k). —§ 262.11(d) —§ 262.34(b), (f), and (i) —§ 262.41(b) —§ 263.12 —§ 266.22, 266.70(d), 266.80(b), 266.101(c)(1) and (c)(2) 8. Corrections to Part 268 (Land Disposal Restrictions)

EPA is amending the following sections of 40 CFR part 268 in order to make a number of changes: Sections 268.40 and 268.48.

b. 40 CFR 268.40: In 40 CFR 268.40, EPA is amending the table, Treatment Standards for Hazardous Wastes, by revising the wastewater concentration associated with the regulated hazardous constituent, vinyl chloride, for F025 to read “0.27,” and by revising the wastewater concentration associated with the regulated hazardous constituent, arsenic, for K031 to read “1.4.” With respect to F025, 63 FR 28657-58 identified the wastewater concentration for vinyl chloride to be 0.27 mg/L. With respect to K031, the preamble to the Universal Treatment Standards at 59 FR 48000, and confirmed at 59 FR 48070 for the table, Treatment Standards for Hazardous Wastes found in 40 CFR 268.40, the correct concentration for the regulated hazardous constituent, arsenic, is 1.4 mg/L for K031. Whether through a printing error, or inadvertent technical error, the concentrations for vinyl chloride and arsenic under F025 and K031 were changed in subsequent CFR publications to “0.027” and “14,” respectively. These changes correct those inadvertent errors.

In 40 CFR 268.40, EPA is also amending the table, Treatment Standards for Hazardous Wastes, for the waste codes K156, K157 and K158 by reinserting the parenthetical sentence, “(This listing does not apply to wastes generated from the manufacture of 3-iodo-2-propynyl n-butylcarbamate.)” As a result of the November 1, 1996, ruling of the United States Court of Appeals for the District of Columbia Circuit inDithiocarbamate Task Forcev.EPA,EPA added to the 40 CFR 268.40 table “Treatment Standards for Hazardous Wastes,” at the end of the “Waste description * * *” column for the entries for K156, K157, and K158, the parenthetical sentence “(This listing does not apply to wastes generated from the manufacture of 3-iodo-2-propynyl n-butylcarbamate).” (See 62FR32979, June 17, 1997.) This same parenthetical sentence was also added by the June 17, 1997Federal Registernotice under the entries for K156, K157, and K158 in the following two tables: 40 CFR 261.32 Listed hazardous wastes from specific sources and 40 CFR Table 302.4 List of Hazardous Substances and Reportable Quantities (62 FR 32977 and 32980, respectively). This parenthetical sentence still exists in these latter two tables, but was inadvertently deleted from the § 268.40 table under all three entries (K156-158) by 63 FR 28706-8, May 26, 1998. The purpose of this section of theFederal Register,as discussed in the preamble at 63 FR 28623, was to modify the entry in the § 268.40 table for U108; there was no mention of any revisions to the entries for K156-158. Yet when this table was recreated to reflect the U108 revision, the parenthetical sentence at the end of K156-158 was inadvertently deleted.

b. 40 CFR 268.48: At 59 FR 48103, September 19, 1994, EPA added § 268.48 and a table containing Universal Treatment Standards, including treatment standard entries in the table for “bis(2-Ethylhexyl)phthalate” and for “Hexachloropropylene.” The entries for these two chemicals appear in the 1995-1998 Code of Federal Regulations. They also appear in this same table in the 1998 Phase IV Land Disposal Restrictions (LDR) Final Rule (63 FR 28744, May 26, 1998). By mistake, these entries do not appear in the same table in the 1999 Code of Federal Regulations, or in any CFR since then. There are no FR notices removing these entries. EPA is today restoring these two entries as they first appeared in 1994, and continued unchanged through 1998.

9. Corrections to Part 270 (EPA Administered Permit Programs: The Hazardous Waste Permit Program)

EPA is amending the following section of 40 CFR part 270 in order to make a necessary change: Section 270.4.

40 CFR 270.4(a): Today's rule restores the following sentence at the end of § 270.4(a): “However, a permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in §§ 270.41 and 270.43, or the permit may be modified upon the request of the permittee as set forth in § 270.42.” (except that today's rule deletes the introductory word “However,”). The first part of this sentence was promulgated on April 1, 1983 (48 FR 14232). EPA attempted to add the last phrase of this sentence on September 28, 1988 (53 FR 37935), but was not able tobecause EPA had inadvertently deleted the first part of this sentence December 1, 1987 (52 FR 45799). In order to reinstate the missing sentence, EPA is today re-designating the introductory text of paragraph (a) as (a)(1); re-designating paragraphs (a)(1), (a)(2), (a)(3) and (a)(4) as paragraphs (a)(1)(i), (a)(1)(ii), (a)(1)(iii) and (a)(1)(iv), respectively; and reinstating the missing sentence in a new paragraph (a)(2).

10. Corrections To Manifest Regulations

Today's rule corrects certain omissions and an error in the final manifest rule that was published on March 4, 2005 (See 70 FR 10776).

The March 2005 manifest rule (manifest rule) inadvertently omitted certain requirements that were intended for inclusion, and that relate to the use of a manifest in shipments of rejected hazardous wastes or non-empty containers containing regulated residues (“container residues”). In addition, the manifest rule contained an error regarding a designated facility's preparation of a new manifest in certain returned shipment situations. Today's rule corrects these omissions and this error as follows:

1. The generator must confirm receipt of a returned shipment of rejected hazardous wastes or container residues by sending a copy of the final hazardous waste manifest that accompanied the shipment, whether it was a new manifest or the generator's original manifest, to the designated facility. Today's rule adds a new paragraph (f) to 40 CFR 262.23 to reflect this requirement.

The preamble to the May 22, 2001 proposed manifest rule (66 FR 28240) explained the importance of ensuring that a shipment returned to the generator be verified by the designated facility. Hence, it would be necessary for the generator to send to the designated facility a copy of the final manifest. However, the March 2005 final rule regulatory text inadvertently omitted this requirement for the generator to send a final copy of the manifest to the designated facility, even though the proposed rule preamble discussion clearly intended this requirement. Today's rule corrects this inadvertent omission.

2. The generator must sign and date the manifest accompanying the returned shipment of rejected hazardous wastes or container residues, provide the transporter with a copy of the manifest, and retain a copy of the manifest for three years. New paragraph (f) to 40 CFR 262.23, described previously in item 1, reflects these requirements as well.

In the appendix to part 262, the instructions for completing the manifest require the generator to sign and date the manifest for returned shipments involving the original manifest (generator must sign and date Item 18c of the original manifest) or a new manifest (generator must sign and date Item 20 of the new manifest). Moreover, EPA intended to include all of these same requirements (which generators must currently meet under the manifest instructions) to the regulatory text of the final manifest rule for returned shipments for the purpose of completion, but inadvertently omitted these requirements. Today's rule corrects these inadvertent omissions.

3. The generator must comply with the Exception reporting requirements of 40 CFR 262.42(a) or (b) when a designated facility forwards its hazardous waste or container residues to an alternate facility under a new manifest. Today's rule adds a new paragraph (c) to 40 CFR 262.42 to reflect this requirement.

The current exception reporting requirements in 40 CFR § 262.42 require a generator to file an exception report when a copy of that signed original manifest is not received from the designated facility within the specified time frame. EPA also intended to include, but inadvertently omitted in the 2005 final manifest rule, exception reporting for hazardous waste shipments forwarded to an alternate facility by a designated facility using a new manifest (following the procedures of CFR 264.72(e)(1)-(6)). Specifically, EPA intended to require the generator to comply with the exception reporting requirements of 40 CFR 262.42 (a) or (b) when a designated facility forwards rejected wastes or container residues to an alternate facility using a new manifest. Today's rule corrects this inadvertent omission.

4. The designated facility must mail to the generator a signed copy of the new manifest included with the shipments of rejected loads or container residues that are re-shipped to an alternate facility by the designated facility under a new manifest. Today's rule amends paragraph (e)(6) of 40 CFR 264.72 and 40 CFR 265.72 to reflect this requirement.

When a designated facility forwards to an alternate facility shipments of rejected loads or container residues under a new manifest, it is important for the designated facility alsoto send the generator a copy of the new manifest indicating the date on which the shipment was accepted by the initial transporter that is transporting the rejected hazardous waste or container residues to the alternate facility. Otherwise, the generator cannot reasonably determine that the alternate facility received the shipment in the appropriate time frame in order to fulfill its various obligations under the manifest regulations. EPA intended to include, but inadvertently omitted, this requirement in the manifest rule. Today's rule corrects this inadvertent omission.

5. The designated facility must enter its own information (instead of the generator's information) in Item 5 of the new manifest form when it originates the shipments of rejected hazardous waste or container residues. Today's rule amends 40 CFR 264.72(f)(1) and 265.72(f)(1) to correct this error.

This approach provides the most straightforward facility-to-generator tracking of waste shipments and was explained in the preamble to the May 22, 2001, proposed rule (66 FR 28240). In response to requests for clarification of this issue from the regulated community and State waste management officials, EPA's Office of Solid Waste (OSW) issued a memorandum (May 14, 2007) from Matt Hale, OSW Office Director, to the Regional Waste Division Directors and RCRA Enforcement Managers acknowledging this error and recommending that manifests should beconsidered compliant if, in cases of rejected wastes and container residues, designated facilities entered their own information in Item 5 of the new manifest. In addition, the memo indicated that EPA would correct this error in the future. A copy of this memo is in the Docket for this rulemaking.

6. The designated facility using a new manifest to return a full load or partial load of rejected hazardous wastes, or container residues, to the generator must comply with the exception reporting provisions of 40 CFR 262.42(a). Today's rule adds new paragraph (f)(8) to 40 CFR 264.72 and 265.72 to reflect this requirement. Today's rule also makes a necessary conforming amendment to paragraph (f)(7) to 40 CFR 264.72 and 40 CFR 265.72 to reference new paragraph (f)(8).

Under today's rule, the designated facility must file an exception report in situations when a completed copy of the manifest is not received from the generator within 35 days of the date that the shipment was accepted by the initial transporter transporting the shipment. This requirement ensures that the shipment returned to the generator can be verified by the designated facility, as explained in the preamble to the May 22, 2001 proposed manifest rule. EPA intended to include, but inadvertently omitted, this requirement in the initial manifest rule of March 4, 2005. Today's rule corrects this inadvertent omission.

Table 1 provides a summary of the manifest technical corrections.

Table 1—Manifest Related Omissions and Inaccuracies Corrected in Today's Direct Final Rule Citation Action in today's
  • final rule
  • Summary of added or corrected provision Type of shipment affected (RW&CR =
  • rejected waste and container residues)
  • 262.23(f) Add new paragraph (f) Generator (recipient of shipment) must:
  • —sign/complete the manifest.
  • —provide a copy of the completed manifest to transporter.
  • —send a copy of the completed manifest to the Designated Facility (originator of shipment).
  • —keep a copy of completed manifest.
  • RW&CR returned from Designated Facility to Generator using a new or an original manifest.
    262.42(c) Add new paragraph (c) Generator must file an exception report if a copy of the signed new manifest is not received from the alternate facility within a specified time frame RW&CR forwarded from Designated Facility to Alternate Facility using a new manifest. 264.72(e)(6) and 265.72 (e)(6) Add new provision to existing paragraph (6) Designated Facility must send copy of new manifest to the Generator RW&CR forwarded from Designated Facility to Alternate Facility using a new manifest. 264.72(f)(1) and 265.72 (f)(1) Correct paragraph (1) Designated Facility must enter its own information in Box 5 of the manifest RW&CR returned from Designated Facility to Generator using a new manifest. 264.72(f)(7) and 265.72 (f)(7) Correct references in paragraph (7) Designated Facility using original manifest need not comply with new paragraph (8) RW&CR returned from Designated Facility to Generator using the original manifest. 264.72(f)(8) and 265.72 (f)(8)