05-11915. Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Correction

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule; correcting amendments.

SUMMARY:

The Environmental Protection Agency (EPA) is correcting errors that appeared in the Hazardous Waste Manifest Final Rule, which was published in the Federal Register (FR) on March 4, 2005 (70 FR 10776). This final rule does not create new regulatory requirements.

EFFECTIVE DATE:

This final rule is effective September 6, 2005.

ADDRESSES:

EPA has established a docket for the manifest final rule under Docket ID No. RCRA-2001-0032. All documents—including this correction—in the docket are listed in the EDOCKET index at http://www.epa.gov/​edocket. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be available publicly only in hard copy form. Docket materials are available either electronically in EDOCKET or in hard copy at the EPA Docket Center (EPA/DC), EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the EPA Docket Center is [phone].

FOR FURTHER INFORMATION CONTACT:

For further information regarding specific aspects of this document, contact Bryan Groce, Office of Solid Waste, [phone], [e-mail], or Richard LaShier, Office of Solid Waste, [phone], [e-mail]. Mail inquiries may be directed to the Office of Solid Waste, (5304W), 1200 Pennsylvania Avenue NW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Does This Rule Create New Federal Requirements?

II. What Does This Rule Do?

III. Why Is This Correction Issued as a Final Rule?

IV. Why Are the Clarifications and Corrections in This Rule Necessary?

A. Corrections and Clarifications to the PRA Burden Statement.

B. Corrections to Item 5 of the Manifest Form Instructions.

C. Corrections to Item 15 of the Manifest Form Instructions.

D. Corrections and Clarifications to 40 CFR 262.33 and to 262.20(a)(2).

E. Corrections to 40 CFR 264.72(e)(4) and to 265.72(e)(4).

V. Statutory and Executive Order Reviews.

I. Does This Rule Create New Federal Requirements?

No. This rule creates no new regulatory requirements; rather, it corrects errors made in the Appendix to part 262 of chapter 40 of the Code of Federal Regulations (CFR) and corrects certain manifest regulations that were promulgated in the March 4, 2005 Federal Register.

II. What Does This Rule Do?

This rule corrects the printing omissions of the manifest form (EPA Form 8700-22) and the continuation sheet (EPA Form 8700-22A), which were omitted inadvertently from the final rule promulgated on March 4, 2005 (70 FR 10776), by inserting the manifest form (EPA Form 8700-22) and the continuation sheet (EPA Form 8700-22A) into the corresponding manifest instructions. In addition, this rule amends portions of the instructions for the manifest form and continuation sheet, which are contained in the Appendix to part 262 of chapter 40 of the CFR, amends the marking requirements at 40 CFR 262.33 for hazardous waste generators and amends the manifest discrepancy requirements at 40 CFR 264.72 and 265.72. Specifically, the rule:

(1) Corrects the EPA mailing address for comment submissions regarding the Paperwork Reduction Act (PRA) burden statement estimates;

(2) Corrects the incorrect description of the telephone number to insert in Item 5 of the manifest instructions;

(3) Corrects the wording in the instructions to the first certification (i.e., the Generator Certification) in Item 15 so that it is consistent with the revised certification wording on the manifest form;

(4) Clarifies that the reference to the DOT marking regulation (i.e., 49 171.3(b)(1)) in 40 CFR 262.33 does not apply to generators, and deletes it from the placarding regulation that is applicable to generators; and,

(5) Corrects errors in 40 CFR 264.72(e)(4) and in 265.72(e)(4) pertaining to manifest discrepancies.

This final rule will be effective on September 6, 2005, which is the same effective date of the March 4, 2005 Manifest Final Rule. We believe this approach will minimize confusion about the new manifest form and procedures.

III. Why Is This Correction Issued as a Final Rule?

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides when an agency for good cause finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this action final without prior proposal and opportunity for comment because these corrections to the final rule do not change the requirements of the final rule. They are minor corrections and are not controversial. Thus, notice and public comment are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

IV. Why Are the Clarifications and Corrections in This Rule Necessary?

EPA believes the errors in the March 4, 2005 Federal Register notice may cause confusion about the new manifest form and procedures. Therefore, we are explaining the corrections below.

A. Corrections and Clarifications to the PRA Burden Statement

The EPA mailing address contained in the PRA burden statement for manifest completion is incorrect. We are amending the manifest instructions in the Appendix to 40 CFR part 262 by correcting the EPA mailing instructions contained in the PRA burden statement so that any correspondence regarding the manifest burden estimate is sent to the appropriate division in the Office of Information Collection. We also are amending the PRA burden statement by removing the mailing address for the Office of Management and Budget. Any correspondence regarding the PRA burden statement for the manifest must be sent to the Director of the Collection Strategies Division in EPA's Office of Information Collection at the following address: U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460.

B. Corrections to Item 5 of the Manifest Form Instructions

Item 5 instructions require a manifest preparer to enter the generator's name, the mailing address to which the completed manifest signed by the designated facility should be mailed, and the generator's telephone number (including the area code). However, the instructions published on March 4 incorrectly state that the telephone number should be the number where the generator or his authorized agent may be reached to provide instructions in the event of an emergency. Given that Item 3 already requires an emergency phone number, that information does not need to be repeated in Item 5. Instead, the number provided in Item 5 should be the normal business phone number for the generator, or the number where the generator or his authorized agent may be reached to provide instructions in the event the designated and/or alternate (if any) facility rejects some or all of the shipment. Therefore, we are correcting the Item 5 instruction accordingly.

C. Corrections to Item 15 of the Manifest Instructions

The wording of the shipper's certification statement contained in the Generator's certification on the manifest, and the wording of the shipper's certification statement contained in the instructions to Item 15 are different. This final rule corrects the wording in the shipper's certification statement contained in the instructions to Item 15 so that it matches exactly the wording in the Generator's certification on the manifest. The corrected wording in the instructions is as follows:

“I hereby declare that the contents of this consignment are fully and accurately described above by the proper shipping name, and are classified, packaged, marked, and labeled/placarded, and are in all respects in proper condition for transport by highway according to applicable international and national governmental regulations. If export shipment and I am the Primary Exporter, I certify that the contents of this consignment conform to the terms of the attached EPA Acknowledgment of Consent.”

D. Corrections and Clarifications to 40 CFR 262.33 and to 262.20(a)(2)

In the May 2001 proposed rule, EPA proposed to amend 40 CFR 262.33 by referencing an existing DOT marking regulation (49 CFR 171.3(b)(1)) in 40 CFR part 262.33, which requires hazardous material (Hazmat) carriers (i.e., transporters) to mark their name and motor carrier identification number on their vehicles. We proposed this change and subsequently retained it in the March 4, 2005 final rule to make generators aware of the DOT requirement, and because we believed that generators also are required to mark transportation vehicles, according to 49 CFR 171.3(b)(1), in situations where placards are not required. We did not intend to create new marking requirements for hazardous waste generators; rather, we added the reference to 49 CFR 171.3(b)(1) because at that time we understood the existing DOT regulation to apply to both generators and transporters. However, we now understand that 49 CFR 171.3(b)(1) only applies to persons who accept for transportation, transport, or deliver hazardous waste (i.e., carriers or transporters), and it is therefore inappropriate to include this reference in EPA's generator regulations. This final rule deletes the DOT reference to 49 CFR 171.3(b)(1) from the placarding requirement at 40 CFR 262.33 and reinstates the placarding provisions that were in effect prior to the March 4, 2005 final rule. Therefore, existing generator marking requirements remain unchanged. Generators must placard or offer the initial transporter the appropriate placards according to DOT regulations in part 172, subpart F of Chapter 49 of the CFR, before transporting hazardous waste or offering hazardous waste for transportation off-site. Per the correction made to 40 CFR part 262.33 in this final rule, we also are correcting 40 CFR 262.20(a)(2). The reference to 40 CFR 262.33 in that section no longer is relevant. Therefore, we are removing it accordingly.

E. Corrections to 40 CFR 264.72(e)(4) and to 265.72(e)(4)

Paragraph (e)(4) in 40 CFR 264.72 and in 265.72 incorrectly contains the words “of this chapter” at the end of the sentence. These words are not necessary, and this notice corrects the error by removing those words from the end of the sentence in 40 CFR 264.72(e)(4) and in 265.72(e)(4).

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order No. 12866 (58 FR 51735, October 4, 1993), Federal agencies must determine whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may: “(1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients; or, (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.”

Pursuant to the terms of Executive Order 12866, it has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

B. Paperwork Reduction Act

This final rule corrects errors in a previous rule and does not create any new regulatory requirements, and thus it does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Analysis

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. EPA has determined that today's rule will not have significant economic impact on a substantial number of small entities. The rule does not impose any additional burdens on small entities because it does not create any new regulatory requirements. Therefore, EPA has determined that it is appropriate to certify that this rule will not have a significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. For the reason described above, the rule does not create any new requirements, anddoes not contain a Federal mandate that may result in expenditures of $100 million or more to State, local, or tribal governments in the aggregate, or for the private sector. The rule likewise contains no regulatory requirements that might significantly or uniquely affect small governments under section 203 of the UMRA and imposes no burdens that may result in annual expenditures of $100 million or more. Accordingly, the requirements of UMRA do not apply.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires Federal agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The Executive Order defines “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not create any new Federal requirements. Therefore, this final rule does not have federalism implications, and it would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

F. Executive Order 13175: Consultation With Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”

This final rule does not have tribal implications, as specified in Executive Order 13175. It does not impose any new requirements on tribal officials nor does it impose substantial direct compliance costs on them. This rule does not create a mandate for tribal governments, nor does it impose any enforceable duties on these entities. This rule corrects errors to existing regulations governing the tracking of hazardous waste from a generator's site to the site of its disposition. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children—Applicability of Executive Order 13045

The Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that EPA determines (1) to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered.

This correction is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined by Executive Order 12866, and it does not involve decisions on environmental health risks or safety risks that may disproportionately affect children.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because this correction does not create any new Federal requirements, and it will not have a significant adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This correction does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will become effective on September 6, 2005.

List of Subjects

40 CFR Part 262

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

40 CFR Part 264

• Environmental protection
• Hazardous waste
• Packaging and containers
• Reporting and recordkeeping requirements
• Security measures

40 CFR Part 265

• Environmental protection
• Hazardous waste
• Packaging and containers
• Reporting and recordkeeping requirements

Dated: June 10, 2005.

Stephen L. Johnson,

Administrator.

For the reasons stated in the preamble, title 40, chapter 1 of the Code of Federal Regulations is amended as follows:

PART 262—STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

1. The authority citation for part 262 continues to read as follows:

Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

2. Section 262.20 is amended by revising paragraph (a)(2) to read as follows:

§ 262.20

General Requirements

* * * * *

(a) * * *

(2) The revised manifest form and procedures in 40 CFR 260.10, 261.7, 262.20, 262.21, 262.27, 262.32, 262.34, 262.54, 262.60, and the appendix to part 262, shall not apply until September 5, 2006. The manifest form and procedures in 40 CFR 260.10, 261.7, 262.20, 262.21, 262.32, 262.34, 262.54, 262.60, and the Appendix to part 262, contained in the 40 CFR, parts 260 to 265, edition revised as of July 1, 2004, shall be applicable until September 5, 2006.

* * * * *

3. Section 262.33 is revised to read as follows:

§ 262.33

Placarding.

Before transporting hazardous waste or offering hazardous waste for transportation off-site, a generator must placard or offer the initial transporter the appropriate placards according to Department of Transportation regulations for hazardous materials under 49 CFR part 172, subpart F.

4. The appendix to part 262 is amended by adding the manifest form (EPA Form 8700-22) and continuation sheet (EPA Form 8700-22A) into the corresponding manifest instructions, by revising paragraph 2 of the introductory text (the manifest Paperwork Reduction Act burden statement), the two paragarpahs preceeding the Instructions for Generators, and by revising Item 5 and Item 15 of the manifest instructions to read as follows:

Appendix to Part 262—Uniform Hazardous Waste Manifest and Instructions (EPA Forms 8700-22 and 8700-22a and Their Instructions) U.S. EPA Form 8700-22

* * * * *

2. Federal regulations require generators and transporters of hazardous waste and owners or operators of hazardous waste treatment, storage, and disposal facilities to complete this form (FORM 8700-22) and, if necessary, the continuation sheet (FORM 8700-22A) for both inter- and intrastate transportation of hazardous waste.

Manifest 8700-22

The following statement must be included with each Uniform Hazardous Waste Manifest, either on the form, in the instructions to the form, or accompanying the form:

Public reporting burden for this collection of information is estimated to average: 30 minutes for generators, 10 minutes for transporters, and 25 minutes for owners or operators of treatment, storage, and disposal facilities. This includes time for reviewing instructions, gathering data, completing, reviewing and transmitting the form. Any correspondence regarding the PRA burden statement for the manifest must be sent to the Director of the Collection Strategies Division in EPA's Office of Information Collection at the following address: U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460. Do not send the completed form to this address.

I. Instructions for Generators

* * * * *

Item 5. Generator's Mailing Address, Phone Number and Site Address

Enter the name of the generator, the mailing address to which the completed manifest signed by the designated facility should be mailed, and the generator's telephone number. Note, the telephone number (including area code) should be the normal business number for the generator, or the number where the generator or his authorized agent may be reached to provide instructions in the event the designated and/or alternate (if any) facility rejects some or all of the shipment. Also enter the physical site address from which the shipment originates only if this address is different than the mailing address.

* * * * *

Item 15. Generator's/Offeror's Certifications

1. The generator must read, sign, and date the waste minimization certification statement. In signing the waste minimization certification statement, those generators who have not been exempted by statute or regulation from the duty to make a waste minimization certification under section 3002(b) of RCRA are also certifying that they have complied with the waste minimization requirements. The Generator's Certification also contains the required attestation that the shipment has been properly prepared and is in proper condition for transportation (the shipper's certification). The content of the shipper's certification statement is as follows: “I hereby declare that the contents of this consignment are fully and accurately described above by the proper shipping name, and are classified, packaged, marked, and labeled/placarded, and are in all respects in proper condition for transport by highway according to applicable international and national governmental regulations. If export shipment and I am the Primary Exporter, I certify that the contents of this consignment conform to the terms of the attached EPA Acknowledgment of Consent.” When a party other than the generator prepares the shipment for transportation, this party may also sign the shipper's certification statement as the offeror of the shipment.

2. Generator or Offeror personnel may preprint the words, “On behalf of” in the signature block or may hand write this statement in the signature block prior to signing the generator/offeror certification, to indicate that the individual signs as the employee or agent of the named principal.

Note:

All of the above information except the handwritten signature required in Item 15 may be pre-printed.

* * * * *

Item 20. Designated Facility Owner or Operator Certification of Receipt (Except as Noted in Item 18a)

* * * * *

Instructions—Continuation Sheet, U.S. EPA Form 8700-22A

* * * * *

PART 264—STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

5. The authority citation for part 264 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

Subpart E—Manifest System, Recordkeeping, and Reporting

6. Section 264.72 is amended by revising paragraph (e)(4) to read as follows:

§ 264.72

Manifest discrepancies.

* * * * *

(e) * * *

(4) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).

* * * * *

PART 265—INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

7. The authority citation for part 265 continues to read as follows:

Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937, unless otherwise noted.

Subpart E—Manifest System, Recordkeeping, and Reporting

8. Section 265.72 is amended by revising paragraph (e)(4) to read as follows:

§ 265.72

Manifest discrepancies.

* * * * *

(e) * * *

(4) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).

* * * * *