Hazardous Waste Management System; Final Exclusion for Identification and Listing Hazardous Waste

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency is finalizing its proposed action to grant a petition submitted by the United States Department of Energy, Richland Operations Office (Energy) to exclude (or ‘delist’) from regulation as listed hazardous waste certain mixed waste (‘petitioned waste’) following treatment at the 200 Area Effluent Treatment Site (200 Area ETF) on the Hanford Facility, Richland, Washington. This action conditionally grants the exclusion based on an evaluation of waste stream-specific and treatment process information provided by Energy. Wastes meeting the conditions of this exclusion are exempt from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) of 1976 as amended. In finalizing this action, EPA has concluded that Energy's petitioned waste does not meet any of the criteria under which the wastes were originally listed, and that there is no reasonable basis to believe other factors exist which could cause the waste to be hazardous.

DATES:

This final rule is effective on September 2, 2005.

ADDRESSES:

The RCRA regulatory docket for this final rule is maintained by EPA, Region 10. You may examine docket materials at the EPA Region 10 library, 1200 6th Avenue, Seattle, WA 98101, (206) 553-1289, during the hours from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Copies of key docket documents are available for review at the following Hanford Site Public Information Repository locations:

University of Washington, Suzzallo Library, Government Publications Division, Box 352900, Seattle, WA 98195-2900. (206) 543-4664. Contact: Eleanor Chase, echase@u.washington.edu, (206) 543-4664.

Gonzaga University, Foley Center, East 502 Boone, Spokane, WA 99258-0001. (509) 323-5806. Contact: Connie Scarppelli, carter@its.gonzaga.edu.

Portland State University, Branford Price Millar Library, 934 SW Harrison, Portland, OR 97207-1151. (503) 725-3690. Contact: Michael Bowman, bowman@lib.pdx.edu.

U.S. DOE Public Reading Room, Washington State University-TC, CIC Room 101L, 2770 University Drive, Richland, WA 99352. (509) 372-7443. Contact: Janice Parthree, reading_room@pnl.gov.

Copies of material in the regulatory docket can be obtained by contacting the Hanford Site Administrative Record via mail, phone, fax, or e-mail:

Address: Hanford Site Administrative Record, PO Box 1000, MSIN H6-08, 2440 Stevens Center Place, Richland, WA 99352. (509) 376-2530. E-mail: Debra_A_Debbie_Isom@rl.gov.

The docket contains the petition, and all information used by EPA to evaluate the petition including public comments received by EPA and comment responses.

FOR FURTHER INFORMATION CONTACT:

For information concerning this document, contact Dave Bartus, Office of Air, Waste and Toxics (OAWT), EPA, Region 10, 1200 6th Avenue, MS AWT-127, Seattle, WA 98101, telephone (206) 553-2804, or via e-mail at bartus.dave@epa.gov.

SUPPLEMENTARY INFORMATION:

The information in this section is organized as follows:

I. Overview Information

A. What Rule is EPA Finalizing?

B. Why is EPA Finalizing the Proposed Exclusion?

C. What Are the Limits of This Exclusion?

D. When Is the Final Rule Effective

II. Background

A. What is a Delisting Petition?

B. What Regulations Allow Wastes to be Delisted?

C. What Information Must the Generator Supply for a Delisting Petition?

D. How Will This Action Affect States?

III. EPA's Evaluation of the Waste Information for 200 Area ETF Treated Effluent

What waste did Energy petition EPA to delist?

IV. Public Comments Received on the Proposed Rule

A. Department of Energy Comments

B. Individual Commenter

V. Statutory and Executive Order Reviews

A. Executive Order 12866

B. Paperwork Reduction Act

C. Regulatory Flexibility

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks

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

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations

K. Congressional Review Act

I. Overview Information

A. What Rule Is EPA Finalizing?

After evaluating Energy's petition and supplemental information provided by Energy, EPA proposed on July 15, 2004 (69 FR 42395), to exclude the petitioned mixed wastes managed or generated by the 200 Area ETF on the Hanford Facility in Richland, Washington. The action relates to treated liquid effluents produced by the 200 Area ETF, which were first delisted in June 1995. See 60 FR 6054, February 1, 1995. EPA's final exclusion modifies this existing delisting by increasing the annual quantity of waste delisted to conform to the expected full treatment capacity of the 200 Area ETF and by expanding the list of hazardous waste numbers and F039 constituents for which 200 Area ETF treated effluent is delisted. Changes relating to waste numbers for which 200 Area ETF treated effluent is excluded include expanding the list of constituents associated with hazardous waste number F039 (multisource leachate), from the current F001 to F005 constituents to all constituents for which F039 waste is listed, adding certain wastewater forms of U- and P-listed wastes, and certain additional F-listed waste numbers. These additional U-, P- and F-listed waste numbers are those whose chemical constituents are included in the list of hazardous constituents for which F039 was listed (see 40 CFR part 261, appendix VII). This latter addition is intended to accommodate possible management of U-, P- and F-listed wastewaters from spill cleanup or decontamination associated with management of these wastes at the Central Waste Complex (CWC) or other storage facilities. These spill cleanup wastes include exactly the same constituents that will eventually contribute to F039 when the source wastes are land disposed, so today's analysis of expanding the 200 Area ETF treated effluent to include F039 applies equally to the wastewater forms of the same chemical constituents in their U-, P- and F-listed waste forms.

The effect of these changes is to allow the 200 Area ETF to fulfill an expanded role in supporting Hanford Facility cleanup actions beyond those activities considered in the 1995 delisting rulemaking. In particular, these changes will allow the 200 Area ETF to treat mixed wastewaters from a number of additional sources beyond 242-A Evaporator process condensate (PC) upon which the original delisting was based.

B. Why Is EPA Finalizing the Proposed Exclusion?

We believe that the petitioned waste should be conditionally delisted because the waste, when managed in accordance with today's final conditions, do not meet the criteria for which the wastes originally were listed and the waste do not contain other constituents or factors that could cause the waste stream to be a hazardous waste or warrant retaining the waste as a hazardous waste. Our final decision to delist the petitioned waste is based on information submitted by Energy, including the description of the wastewaters managed by the ETF and their original generating sources, the ETF treatment processes, and the analytical data characterizing performance of the 200 Area ETF.

In reviewing this petition, we considered the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments (HSWA) of 1984. See 42 U.S.C. 6921(f), and 40 CFR 260.22. These factors include: (1) Whether the waste are considered acutely toxic; (2) the toxicity of the constituents; (3) the concentration of the constituents in the waste; (4) the tendency of the hazardous constituents to migrate and to bio-accumulate; (5) persistence of the constituents in the environment once released from the waste; (6) plausible and specific types of management of the petitioned waste; (7) the quantity of waste produced; and (8) variability of the waste. We also evaluated the petitioned waste against the listing criteria at 40 CFR 261.11(a)(1), (2) and (3) and factors required by 40 CFR 260.22(a)(2). EPA finds the petitioned wastes do not meet the listing criteria and determined that none of the factors listed above warrant retaining the petitioned wastes as hazardous.

C. What Are the Limits of This Exclusion?

This exclusion applies to certain 200 Area ETF treated effluents identified in today's final rule, provided the conditions contained herein are satisfied.

D. When Is the Final Rule Effective?

The effective date of today's action is September 2, 2005. RCRA Section 3010(b)(1), 42 U.S.C. 6930(b)(1), allows rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance with the new regulatory requirements. In the proposed rule preamble, EPA noted that the rule, if finalized, would reduce existing regulatory requirements, so that a six-month period was not necessary for Energy to come into compliance. EPA further noted that, if finalized, the proposal would be effective immediately upon final publication, and that a later date would impose unnecessary hardship and expense on the petitioner.

After further reflection and consideration of Energy's comments, EPA continues to believe that a full six month period is not necessary to achieve full compliance with this rule. EPA recognizes, however, that the revised exclusion will contain somewhat different conditions than the original exclusion rule. Even though today's final rule provides relief from RCRA regulatory requirements for significantly more wastes than was previously the case, Energy must still demonstrate compliance with the new conditions of the new exclusion, even for wastes currently being processed in compliance with the existing exclusion. One example of such a condition is preparation of a waste processing strategy. To ensure Energy has adequate opportunity to update its internal procedures and produce documentation required by the new exclusion conditions, EPA is delaying the effective date of the final rule to 30 days after publication.

II. Background

A. What Is a Delisting Petition?

A delisting petition is a request from a generator to EPA or another agency with jurisdiction to exclude, or delist, from the RCRA list of hazardous waste, waste the generator believes should not be considered hazardous under RCRA.

B. What Regulations Allow Wastes To Be Delisted?

Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste regulation by excluding them from the lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 265 and 268 of Title 40 of the Code of Federal Regulations. 40 CFR 260.22 provides generators the opportunity to petition the Administrator to exclude a waste from a particular generating facility from the hazardous waste lists.

C. What Information Must the Generator Supply for a Delisting Petition?

Petitioners must provide sufficient information to EPA to allow EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste.

D. How Will This Action Affect States?

This final rule is issued under the federal (RCRA) delisting authority found at 40 CFR 260.22. Some states are authorized to administer a delisting program in lieu of the federal program, i.e., to make their own delisting decision. Therefore, this rule does not apply under RCRA in those authorized states. For states not authorized to administer a delisting program in lieu of the federal program (as is the case with the State of Washington as of the date of today's final rule), today's rule will become effective with respect to the federal (RCRA) program. Energy will, however, have to comply with any additional applicable state requirements.

States are allowed to impose regulatory requirements that are more stringent than EPA's, pursuant to section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a federally-issued exclusion from taking effect in a state. Because a petitioner's waste may be regulated under a dual system, (i.e., both federal and state programs), petitioners are urged to contact state regulatory authorities to determine the current status of their wastes under the state laws.

III. EPA's Evaluation of the Waste Information for 200 Area ETF Treated Effluent

What Waste Did Energy Petition EPA To Delist?

The original delisting action considered treatment of only one waste stream, process condensate from the 242-A Evaporator (242-A Evaporator PC). Since promulgation of the original delisting, the operating mission of the 200 Area ETF has expanded considerably. Currently, the operating capacity of the 200 Area ETF provides treatment of 242-A Evaporator PC, treatment of Hanford Site contaminated groundwater from various pump-and-treat systems, and a variety of other wastewaters generated from waste management and cleanup activities at Hanford.

As discussed in section 3.0 of Energy's November 2001 petition, the mission of the 200 Area ETF is to treat wastewater generated on the Hanford Facility from cleanup activities including multisource leachate from operation of hazardous/mixed waste landfills, and other hazardous wastewaters from a variety of sources including analytical laboratory operations, research and development studies, waste treatment processes, environmental restoration and deactivation projects, and other waste management activities. Based on this change in the 200 Area ETF mission, Energy petitioned EPA to modify the existing delisting applicable to treated liquid effluent from the 200 Area ETF by increasing the effluent volume limit to 210 million liters per year, and to conditionally exclude treated effluents from treatment by the 200 Area ETF of certain liquid Hanford wastes with hazardous waste numbers identified at 40 CFR 261.31 and 261.33 as F001-F005, F039, and all U- and P-listed substances and selected additional F-listed waste numbers whose associated compounds appear in the listing definition of F039. Under the current delisting, the liquid effluent volume is limited to approximately 86 million liters per year, and delisted only for F001-F005 waste numbers and F039 waste constituents from F001 through F005 waste numbers.

The November 2001 delisting petition explains that wastes bearing numbers P029, P030, P098, P106, P120, and U123, as well as other U- and P-listed numbers corresponding to F039 constituents, are currently managed, or may be managed in the future, as part of Hanford cleanup operations. Wastes bearing these waste numbers are intended for future disposal in the mixed waste landfill (Low-Level Burial Grounds (LLBG)). These wastes, therefore, eventually will contribute to generation of F039 multisource leachate from this unit, and are specifically considered in the analysis of F039 constituents in Energy's delisting petition (refer to Appendix B of the November 2001 delisting petition). Energy believes that wastewaters bearing these waste numbers could be generated from activities such as spill cleanup or equipment decontamination, and such wastewaters could be managed best at the 200 Area ETF. Energy's petition did not propose to manage the discarded commercial chemical products in the 200 Area ETF, but only wastewaters from spill cleanup or equipment decontamination.

To ensure that the commercial chemical compounds themselves are not inappropriately managed at the 200 Area ETF, EPA's proposal limited the wastes that could be managed by the 200 Area ETF to only those influent wastewaters bearing less than 1.0 weight percent of any hazardous constituent. These wastewaters would also bear the same U- and P-listed numbers by virtue of the 'derived from' rule discussed in Section I.A of the proposed rule. Because the hazardous constituents from these U- and P-listed wastes are already included in the analysis of 200 Area ETF performance for treatment of F039, EPA is not proposing any separate analysis specific to U- and P-listed numbers. EPA's proposal to include these U- and P-listed waste numbers is intended to include influent wastewaters that might be generated from management of wastes currently stored in CWC, as well as such wastewaters managed elsewhere at Hanford or which may be generated in the future.

As discussed below in section IV, comments from Energy clarified Energy's intent in the November 29, 2001 petition to include a number of other F-listed waste numbers among those considered in the requested exclusion.

IV. Public Comments Received on the Proposed Rule

EPA received comments on the proposed rule from the applicant and from an individual commenter. Individual comments and EPA's response may be found in the response to comments document, which has been included in the docket for this final rulemaking. A summary of key comments and changes, if any, to the proposed rule, appear below.

In addition to changes made in response to public comments, EPA is also making changes to the proposed rule necessary to conform to the Methods Innovation Rule, 70 FR 34538, June 14, 2005. Details of these changes and EPA's rationale for them can also be found in the response to comments document.

A. Department of Energy Comments

Comments from the Department of Energy focused on the proposed regulatory language and explanatory preamble text. One of Energy's comments questioned the addition of a number of conditions in the proposed exclusion which do not appear in the current exclusion, stating that EPA had not provided an explanation for the additional conditions. Energy presented as a basis for its comment statements in the proposed rule generally noting EPA's perspective that the 200 Area ETF is a robust, well-designed and well-operated wastewater treatment unit. While EPA affirms its statements regarding the robust nature of the facility, EPA fundamentally disagrees with Energy's comment. As noted in the proposal preamble and in EPA's response to comments, a key objective of the revised 200 Area ETF “upfront” delisting is to accommodate treatment of a wide range of waste streams not considered in the original exclusion, many of which have not yet been generated or characterized. Since Energy could not reasonably provide detailed characterization of wastes streams that have yet to be generated, EPA proposed a waste acceptance framework based on an engineering evaluation of waste streams. This model provides a degree of confidence that treatment in the 200 Area ETF will meet delisting exclusion limits to the same degree of confidence as if detailed waste stream characterization were available, while avoiding the need to frequently revise the delisting rule itself. As a result, EPA finds that the additional conditions noted in Energy's comments are not only fully justified, but absolutely essential to achieving the degree of flexibility requested by Energy in their delisting petition, given the lack of complete waste characterization information.

Another of Energy's comments provided clarification of Energy's intent to expand the suite of waste numbers covered by the proposed exclusion. Essentially, Energy provided a defensible argument that a number of additional F-listed waste numbers should be addressed by the exclusion. EPA agrees with this comment in part, but is limiting the additional F-listed waste numbers to those with a reasonable nexus to wastes expected to be managed by the 200 Area ETF. See the first paragraph of the regulatory exclusion language finalized today, appearing below in Table 2 in Appendix IX of 40 CFR part 261.

Energy requested relief from the proposed exclusion condition relating to recording of treated effluent conductivity, contending that doing so would be without basis and a burden. EPA disagrees, since both measuring and recording of treated effluent provides important documentation confirming performance of the 200 Area ETF. This measurement also provides a basis, in part, for EPA's decision to relax the verification sampling frequency for treated effluent from every 10th verification tank, as in the original exclusion, to every 15th verification tank. Given the extended interval between full verification sampling, measuring and recording of treated effluent conductivity provide a simple but effective indicator or 200 Area ETF performance with regard to inorganic treatment efficiency. Therefore, EPA is retaining the recording condition as proposed.

Energy requested relief from the condition generally limiting disposal of treated effluent at the State Authorized Land Disposal Site, or SALDS. Energy's comment is based on jurisdictional grounds, and Energy's belief that treated effluent “is essentially demineralized water.” As described in Section III.C of the proposed rule preamble, the condition in question is established on the grounds that EPA evaluated the risk of treated effluent only with respect to a groundwater ingestion pathway, consistent with the approach taken by EPA in the original exclusion. The requirement to generally dispose of treated effluent at SALDS is intended to ensure exposure pathways other than groundwater do not occur without EPA analysis of potential risks from such pathways. EPA is retaining this condition as proposed, noting that the proposed and final rules do provide flexibility with respect to disposal practices through Condition 7 of the exclusion rule. Energy also requested deletion of Condition 7, on the basis that no non-radiological considerations warrant the condition, and that Energy is already engaged in various reuse activities using treated effluent. EPA is retaining Condition 7, since it relates directly to the scope of EPA's analysis of treated effluent risks, and since it provides flexibility for exactly the reuse practices noted in the comment.

Energy raised issues concerning reporting of environmental data, including groundwater data, to EPA in Condition (4)(a) of the proposed rule. Energy requested deletion of this condition on the grounds of being vague, and if retained, reconsideration of the requirement to report certain data within a ten-day period. EPA does not agree that the proposed condition is vague—in fact, EPA specifically crafted the condition to be specific in its scope. Although EPA did not propose explicit environmental or groundwater monitoring requirements as a condition of the proposed exclusion, EPA continues to believe that information that may otherwise become available to Energy relating to performance deficiencies of the 200 Area ETF (or any treatment facility subject to a delisting exclusion, for that matter) should be timely made available to EPA for consideration. EPA needs to ensure its ability to timely obtain and consider data that may indicate adverse environmental impacts of activities subject to the exclusion. Therefore, EPA is retaining the environmental data submission condition as defensible and implementable.

Finally, Energy requested modification to condition 4(b) relating to notification to EPA of changes to the 200 Area ETF. EPA accepted this comment in part, and has added clarifying language to more clearly define facility changes subject to this reporting requirement. See condition (4)(b).

Energy also provided a number of comments on preamble language in the proposed rule. In general, EPA notes these comments, and where appropriate, provides a clarifying analysis in the response to comments document to assist in implementing the regulatory exclusion conditions themselves. EPA has also provided an expanded discussion in the response to comments document of the relationship between exclusion conditions and Land Disposal Restriction treatment standards to assist Energy and the public in understanding this nexus, noting that the delisting exclusion rule does not impose nor demonstrate compliance with LDR treatment standards.

B. Individual Commenter

One individual provided a number of detailed comments. A number of these comments applied to Energy's November 29, 2001 petition document, rather than EPA's proposed rule. EPA has noted these comments, but finds that they were appropriately addressed in the proposal itself. One comment, however raised a valid point about a technical issue relating to how inorganic treatment/removal efficiencies were presented in Energy's petition. Energy's petition presented historical data in terms of maximum removal efficiencies. In some cases, data exists for some waste streams indicating removal efficiencies less than the maximum. While EPA does not believe that these differences would require significant change in the exclusion from what EPA proposed, EPA is never the less updating exclusion conditions to better relate removal efficiencies referenced by Condition (1)(a)(i) for purposes of establishing waste treatment strategies to actual or measured performance of the 200 Area ETF. More specifically, EPA is requiring Energy to adopt a more conservative approach to use of existing removal efficiency data that are applied to influent waste streams other than from which they were generated. In addition, EPA is defining more explicit methodology for Energy to update these removal efficiency data as it gains additional processing experience with new influent waste streams. See exclusion conditions 1(a)(ii) and 1(b). EPA expects that this change will not alter actual operations of the 200 Area ETF, but it will provide a more defensible basis for the engineering demonstrations that Energy must make under terms of the final exclusion.

V. Statutory and Executive Order Reviews

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant”, and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined that today's final rule is not a “significant regulatory action” under the terms of Executive Order 12866, since its effect is to reduce the overall costs and economic impact of EPA's hazardous waste management regulations. This reduction is achieved by excluding waste generated at a specific facility from EPA's lists of hazardous wastes, thus enabling a facility to manage its waste as non-hazardous. Therefore, EPA has determined that this final rule is not subject to OMB review.

B. Paperwork Reduction Act

The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended to minimize the reporting and record-keeping burden on the regulated community, as well as to minimize the cost of Federal information collection and dissemination. In general, the Act requires that information requests and record-keeping requirements affecting ten or more non-Federal respondents be approved by OMB. Although this final rule establishes information and record-keeping requirements for Energy, it does not impose those requirements on any other facility or respondents, and therefore is not subject to the provisions of the Paperwork Reduction Act.

C. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business, as codified in the Small Business Administration Regulations at 13 CFR part 121; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The final exclusion will only have the effect of impacting the waste management of waste proposed for conditional delisting at the Hanford facility in the State of Washington. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Public Law 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why the alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal governments or the private sector. Thus, today's final rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 of the UMRA do not apply to this rule.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government.”

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132. This final rule addresses the conditional delisting of waste at the federal Hanford Facility. Thus, Executive Order 13132 does not apply to this rule. Although Section 6 of the Executive Order 13132 does not apply to this proposed rule, EPA did consult with representatives of State and local governments in developing this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. The final rule conditionally delists certain wastes at the federal Hanford Facility and does not establish any regulatory policy with tribal implications. Thus, Executive Order 13175 does not apply to this final rule.

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

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

This final rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because the Agency does not have reason to believe the environmental health or safety risks addressed by this proposed action present a disproportionate risk to children. The final rule concerns the proposed conditional delisting of certain wastes at the Hanford facility.

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

This final rule 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” as defined under Executive Order 12866.

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) 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 bodies. The NTTAA directs EPA to provide Congress, through the Office of Management and Budget (OMB), explanations when the Agency decides to use “government-unique” standards in lieu of available and applicable voluntary consensus standards.

This final rule involves environmental monitoring and measurement, but is not establishing new technical standards for verifying compliance with concentration limits, data quality or test methodology. EPA is not requiring the use of specific, prescribed analytic methods. Therefore, EPA did not explicitly consider the use of any voluntary consensus standards. Rather, the Agency has specifically accommodated use of an alternative method that meets the prescribed performance criteria. Examples of performance criteria are discussed in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication-846, Third Edition, as amended by updates I, II, IIA, IIB and III.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low Income Populations

To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Mariana Islands. Because this final rule addresses the conditional delisting of certain waste streams at the Hanford Facility, with no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

• Environmental protection
• Hazardous waste
• Recycling
• Reporting and recordkeeping requirements

Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

For the reasons set out in the preamble, 40 CFR part 261 is amended as follows:

PART 261—IDENTIFICATION AND LISTING HAZARDOUS WASTE

1. The authority citation for part 261 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(4), and 6938.

2. In Table 2, of Appendix IX of Part 261, the existing entry for “DOE RL, Richland, WA” is removed and a new entry for “Department of Energy (Energy)” is added in alphabetical order to read as follows:

Appendix IX to Part 261—Wastes Excluded Under §§ 260.20 and 260.22