[Federal Register: December 31, 2002 (Volume 67, Number 251)]
[Rules and Regulations]
[Page 79874-79879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de02-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7432-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is granting a
petition submitted by Tokusen USA, Inc. (Tokusen) to exclude from
hazardous waste control (or delist) a certain solid waste. This final
rule responds to the petition submitted by Tokusen to delist F006
dewatered sludge generated from the on-site Wastewater Treatment Plant
(WWTP) from its electroplating operations.
After careful analysis and use of the Delisting Risk Assessment
Software, the EPA has concluded the petitioned waste is not hazardous
waste when disposed of in Subtitle D landfills. This exclusion applies
to 670 cubic yards annually of dewatered WWTP sludge resulting from its
electroplating operations. Accordingly, this final rule excludes the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA) when disposed
of in Subtitle D landfills.
EFFECTIVE DATE: December 31, 2002.
ADDRESSES: The public docket for this final rule is located at the U.S.
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in the EPA Freedom of
Information Act review room on the 7th floor from 9 a.m. to 4 p.m.,
Monday through Friday, excluding Federal holidays. Call (214) 665-6444
for appointments. The reference number for this docket is ``F-02-ARDEL-
TOKUSEN.'' The public may copy material from any regulatory docket at
no cost for the first 100 pages and at a cost of $0.15 per page for
additional copies.
FOR FURTHER INFORMATION CONTACT: For general information, contact
Catherine E. Carter, U.S. Environmental Protection Agency, 1445 Ross
Avenue, Dallas, Texas 75202 at (214) 665-6792. For technical
information concerning this notice, contact Larry K. Landry, U.S.
Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202,
(214) 665-8134.
SUPPLEMENTARY INFORMATION:
The information in this section is organized as follows:
I. Overview Information
A. What Rule Is EPA Finalizing?
B. Why Is EPA Approving This Delisting?
C. What Are the Limits of This Exclusion?
D. How Will Tokusen Manage the Waste if It Is Delisted?
E. When Is the Final Delisting Exclusion Effective?
F. How Does This Final Rule Affect States?
II. Background
A. What Is a Delisting Petition?
B. What Regulations Allow Facilities To Delist a Waste?
C. What Information Must the Generator Supply?
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Tokusen Petition EPA To Delist?
B. How Much Waste Did Tokusen Propose To Delist?
C. How Did Tokusen Sample and Analyze the Waste Data in This
Petition?
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
B. Response to Comments
I. Overview Information
A. What Action Is EPA Finalizing?
After evaluating the petition, EPA proposed, on July 12, 2002 to
exclude the Tokusen waste from the lists of hazardous waste under
Sec. Sec. 261.31 and 261.32 (see 65 FR 75897). The EPA is finalizing:
(1) The decision to grant Tokusen's petition to have its wastewater
treatment sludge excluded, or delisted, from the definition of a
hazardous waste, subject to certain continued verification and
monitoring conditions; and
(2) the decision to use the Delisting Risk Assessment Software to
evaluate the potential impact of the petitioned waste on human health
and the environment. The Agency used this model to predict the
concentration of hazardous constituents released from the petitioned
waste, once it is disposed.
B. Why Is EPA Approving This Delisting?
Tokusen's petition requests a delisting for an F006 listed
hazardous waste. Tokusen does not believe the petitioned waste meets
the criteria for which EPA listed it as a hazardous waste. Tokusen also
believes no additional constituents or factors could cause the waste to
be hazardous. EPA's review of this petition included consideration of
the original listing criteria and the additional factors required by
the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4)
(hereinafter all sectional references are to 40 CFR unless otherwise
indicated). In making the final delisting determination, EPA also
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. Sec. 261.11(a)(2) and (a)(3). Based on this review, the
EPA agrees with the petitioner that the waste is nonhazardous with
respect to the original listing criteria. If the EPA had found, based
on this review, that the waste remained hazardous based on the factors
for which the waste was originally listed, EPA would have proposed to
deny the petition. The EPA evaluated the waste with respect to other
factors or criteria to assess whether there is a reasonable basis to
believe that such additional factors could cause the waste to be
hazardous. The EPA considered whether the waste is: (1) Acutely toxic;
(2) the concentration of the constituents in the waste; (3) their
tendency to migrate and to bioaccumulate; (4) their persistence in the
environment once released from the waste; (5) plausible and specific
types of management of the petitioned waste; (6) the quantities of
waste generated; and (7) waste variability. The EPA believes the
petitioned waste does not meet these criteria or the listing criteria.
EPA's final decision to delist waste from Tokusen's facility is based
on the information submitted by
[[Page 79875]]
Tokusen in its petition, including descriptions of the dewatered WWTP
sludge and analytical data from the Conway, Arkansas facility.
C. What Are the Limits of This Exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in Table 1 of 40 CFR part 261 and the
conditions contained herein are satisfied.
D. How Will Tokusen Manage the Waste if It Is Delisted?
Tokusen currently sends the petitioned waste (dewatered WWTP
sludge) to Envirite Corporation, a hazardous landfill in Harvey,
Illinois. If the delisting exclusion is finalized, Tokusen will dispose
of the sludge in a permitted solid waste landfill. At this time,
Tokusen is planning to dispose of the delisted sludge at Waste
Management Industrial Landfill in Little Rock, Arkansas.
E. When Is the Final Delisting Exclusion Effective?
This rule is effective December 31, 2002. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA, 42 USCA
6930(b)(1), allow rules to become effective in less than six months
after the rule is published when the regulated community does not need
the six-month period to come into compliance. That is the case here
because this rule reduces, rather than increases, the existing
requirements for persons generating hazardous waste. This reduction in
existing requirements also provides a basis for making this rule
effective immediately, upon publication, under the Administrative
Procedure Act, pursuant to 5 USCA 553(d).
F. How Does This Final Rule Affect States?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude two categories of
States: States having a dual system that includes Federal RCRA
requirements and their own requirements, and States who have received
EPA authorization to make their own delisting decisions.
We allow states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 USCA 6929. These more stringent requirements may include a
provision that prohibits a federally issued exclusion from taking
effect in the State. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, we urge petitioners to contact the State regulatory authority to
establish the status of their waste under the State law. Delisting
petitions approved by the EPA Administrator under 40 CFR 260.22 are
effective in the State of Arkansas only after the final rule has been
published in the Federal Register and the rule has been adopted and
approved by the Arkansas Pollution Control and Ecology Commission in
Regulation No. 23.
EPA has also authorized some States (for example, Louisiana,
Georgia, Illinois) to administer a RCRA delisting program in place of
the Federal program, that is, to make State delisting decisions.
Therefore, this exclusion does not apply in those authorized States. If
Tokusen transports the petitioned waste to or manages the waste in any
State with delisting authorization, Tokusen must obtain delisting
authorization from that State before they can manage the waste as
nonhazardous in the State.
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 Facilities to Delist a Waste?
Under 40 CFR Sec. Sec. 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
Sec. Sec. 261.31 and 261.32. Specifically, Sec. 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. Section 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?
Petitioners must provide sufficient information to the EPA to allow
the 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.
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Tokusen Petition EPA To Delist?
On October 24, 2001, Tokusen petitioned the EPA to exclude from the
lists of hazardous waste contained in Sec. Sec. 261.31 and 261.32, a
waste by-product (stabilized sludge from the wastewater treatment plant
in Conway, Arkansas) which falls under the classification of listed
waste because of the ``derived-from'' rule in RCRA, 40 CFR 261.3.
Specifically, in its petition, Tokusen, located in Conway, Arkansas,
requested that EPA grant an exclusion for 670 cubic yards annually of
dewatered WWTP sludge generated from electroplating operations. The
resulting waste is listed, in accordance with Sec. 261.3(c)(2)(i)
(i.e., the ``derived-from'' rule). The waste code of the constituents
of concern is EPA Hazardous Waste No. F006. The constituents of concern
for F006 are cadmium, hexavalent chromium, nickel, and cyanide
(complexed).
B. How Much Waste Did Tokusen Propose To Delist?
Specifically, in its petition, Tokusen requested that EPA grant a
conditional exclusion for 670 cubic yards annually of dewatered WWTP
sludge.
C. How Did Tokusen Sample and Analyze the Waste Data in This Petition?
To support its petition, Tokusen submitted:
(1) Historical information on past waste generation and management
practices;
(2) Results of the total constituent list for 40 CFR part 264,
appendix IX volatiles, semivolatiles, metals, pesticides, herbicides,
and PCBs;
(3) Results of the constituent list for appendix IX on Toxicity
Characteristic Leaching Procedure (TCLP) extract for volatiles,
semivolatiles, and metals;
(4) Analytical constituents of concern for F006;
(5) Results from total oil and grease analyses;
(6) Multiple pH testing for the petitioned waste.
[[Page 79876]]
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
The EPA received public comments on August 6, 2002, from a business
student with Florida International University.
The student raised concerns that EPA had reached a quick decision
to remove the waste from the hazardous list based on data submitted by
the company. Also, the student felt more concrete evidence was needed
to delist the waste. She stated that no evidence was given as to any
test that proves or disproves hazardous content.
Response: F006 is a listed hazardous waste but the regulations in
Sec. 260.22 give individual facilities like Tokusen the ability to
petition for ``delisting.'' The procedures outlined in Sec. Sec.
260.20 and 260.22 provide EPA with the framework to consider these
decisions. EPA believes that Tokusen has provided all the data
requested in Sec. Sec. 260.20 and 260.22 and meets the requirement for
excluding the waste at this particular facility.
Tokusen provided analytical data for 5 representative samples of
the sludge it has petitioned for delisting. This data has undergone
review for quality control and quality assurance and EPA believes that
the hazardous constituents detected through the Toxicity
Characteristics Leaching Procedures (TCLP) as well as the Total
analyses indicated the waste constituent concentrations do not pose a
threat to human health and environment based on the risk assessment
determined using the Delisting Risk Assessment Software (DRAS). We
believed the potential effects determined from the DRAS model that if
this waste were released into the environment, it is within the
acceptable [protectiveness] risk range of 10-5 to
10-6. Also EPA has required the company to submit samples
quarterly for the first year and samples annually each subsequent year
while the company is in business to demonstrate that the waste does not
exceed the constituent levels listed in Table 1.
V. Regulatory Impact
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions. The final rule to grant an exclusion is not significant, since
its effect, if promulgated, would be to reduce the overall costs and
economic impact of EPA's hazardous waste management regulations. This
reduction would be achieved by excluding waste generated at a specific
facility from EPA's lists of hazardous waste, thereby enabling this
facility to manage its waste as nonhazardous. There is no additional
impact therefore, due to this final rule. Therefore, this proposal
would not be a significant regulation and no cost/benefit assessment is
required. The Office of Management and Budget (OMB) has also exempted
this rule from the requirement for OMB review under section (6) of
Executive Order 12866.
VI. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis which
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
No regulatory flexibility analysis is required, however, if the
Administrator or delegated representative certifies the rule will not
have any impact on small entities.
This rule if promulgated, will not have an adverse economic impact
on small entities since its effect would be to reduce the overall costs
of EPA's hazardous waste regulations. Accordingly, I hereby certify
that this regulation, if promulgated, will not have a significant
economic impact on a substantial number of small entities. This
regulation therefore, does not require a regulatory flexibility
analysis.
VII. Paperwork Reduction Act
Information collection and recordkeeping requirements associated
with this final rule have been approved by the Office of Management and
Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Public Law 96-511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050-0053.
VIII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,
EPA must prepare a written statement for rules with Federal mandates
that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector of $100 million
or more in any one year. When such a statement is required for EPA
rules, under section 205 of the UMRA, EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected, or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including tribal governments, it
must develop under section 203 of the UMRA a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements. The UMRA generally defines a Federal
mandate for regulatory purposes as one that imposes an enforceable duty
upon State, local, or tribal governments or the private sector. The EPA
finds that this final delisting decision is deregulatory in nature and
does not impose any enforceable duty upon State, local, or tribal
governments or the private sector. In addition, the final delisting
does not establish any regulatory requirements for small governments
and so does not require a small government agency plan under UMRA
section 203.
IX. 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 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, the Comptroller General of the United States prior to
publication of the final rule in the Federal Register. This rule is not
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will become
effective on the date of publication in the Federal Register.
X. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with
[[Page 79877]]
representatives of affected state, local, and tribal governments, the
nature of their concerns, copies of written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' This rule does not create a
mandate on state, local or tribal governments. The rule does not impose
any enforceable duties on these entities. Accordingly, the requirements
of section 1(a) of Executive Order 12875 do not apply to this rule.
XI. Executive Order 13045
The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that EPA determines (1) is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has 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 rule is
not subject to Executive Order 13045 because this is not an
economically significant regulatory action as defined by Executive
Order 12866.
XII. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If the mandate is
unfunded, EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to meaningful and timely input'' in the
development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. This
rule does not significantly or uniquely affect the communities of
Indian tribal governments. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this rule.
XIII. National Technology Transfer and Advancement Act
Under section 12(d) if the National Technology Transfer and
Advancement Act, the Agency is directed 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, business practices,
etc.) developed or adopted by voluntary consensus standard bodies.
Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires that Agency to provide
Congress, through the OMB, an explanation of the reasons for not using
such standards.
This rule does not establish any new technical standards and thus,
the Agency has no need to consider the use of voluntary consensus
standards in developing this final rule.
Lists 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).
Dated: December 20, 2002.
Stephen A. Gilrein,
Acting Director, Multimedia Planning and Permitting Division (6PD).
For the reasons set out in the preamble, 40 CFR Part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 1 of appendix IX, part 261 add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1.--Waste Excluded From Non-Specific Sources
------------------------------------------------------------------------
Facility Address Waste description
------------------------------------------------------------------------
Tokusen USA, Inc.,.......... Conway, AR........ Dewatered wastewater
treatment plant
(WWTP) sludge (EPA
Hazardous Waste Nos.
F006) generated at a
maximum annual rate
of 670 cubic yards
per calendar year
after December 31,
2002 and disposed of
in a Subtitle D
landfill.
For the exclusion to
be valid, Tokusen
must implement a
testing program that
meets the following
Paragraphs:
(1) Delisting Levels:
All leachable
concentrations for
those constituents
listed below in (i)
and (ii) must not
exceed the following
levels (mg/l). The
petitioner must use
an acceptable
leaching method, for
example SW-846,
Method 1311 to
measure constituents
in the waste
leachate.
Dewatered WWTP sludge
(i) Inorganic
Constituents Antimony-
0.360; Arsenic-
0.0654; Barium-51.1;
Chromium-5.0; Cobalt-
15.7; Copper-7,350;
Lead-5.0; Nickel-
19.7; Selenium-1.0;
Silver-2.68; Vanadium-
14.8; Zinc-196.
(ii) Organic
Constituents 1,4
Dichlorobenzene-3.03;
hexachlorobutadiene-0
.21.
(2) Waste Holding and
Handling:
Tokusen must store the
dewatered WWTP sludge
as described in its
RCRA permit, or
continue to dispose
of as hazardous all
dewatered WWTP sludge
generated, until they
have completed
verification testing
described in
Paragraph (3)(A) and
(B), as appropriate,
and valid analyses
show that paragraph
(1) is satisfied.
[[Page 79878]]
(B) Levels of
constituents measured
in the samples of the
dewatered WWTP sludge
that do not exceed
the levels set forth
in Paragraph (1) are
non-hazardous.
Tokusen can manage
and dispose the non-
hazardous dewatered
WWTP sludge according
to all applicable
solid waste
regulations.
(C) If constituent
levels in a sample
exceed any of the
delisting levels set
in Paragraph (1),
Tokusen must retreat
the batches of waste
used to generate the
representative sample
(according to SW-846
methodologies) until
it meets the levels.
Tokusen must repeat
the analyses of the
treated waste.
(D) If the facility
has not treated the
waste, Tokusen must
manage and dispose
the waste generated
under Subtitle C of
RCRA.
(3) Verification
Testing Requirements:
Tokusen must perform
sample collection and
analyses, including
quality control
procedures, according
to SW-846
methodologies. If EPA
judges the process to
be effective under
the operating
conditions used
during the initial
verification testing,
Tokusen may replace
the testing required
in Paragraph (3)(A)
with the testing
required in Paragraph
(3)(B). Tokusen must
continue to test as
specified in
Paragraph (3)(A)
until and unless
notified by EPA in
writing that testing
in Paragraph (3)(A)
may be replaced by
Paragraph (3)(B).
(A) Initial
Verification Testing:
After EPA grants the
final exclusion,
Tokusen must do the
following:
(i) Collect and
analyze composites of
the dewatered WWTP
sludge.
(ii) Make two
composites of
representative grab
samples (according to
SW-846 methodologies)
collected.
(iii) Analyze the
waste, before
disposal, for all of
the constituents
listed in Paragraph
1.
(iv) Sixty (60) days
after this exclusion
becomes final, report
to EPA the
operational and
analytical test data,
including quality
control information.
(B) Subsequent
Verification Testing:
Following written
notification by EPA,
Tokusen may
substitute the
testing conditions in
(3)(B) for (3)(A).
Tokusen must continue
to monitor operating
conditions, and
analyze
representative
samples (according to
SW-846 methodologies)
each quarter of
operation during the
first year of waste
generation. The
samples must
represent the waste
generated during the
quarter.
(C) Termination of
Organic Testing:
(i) Tokusen must
continue testing as
required under
Paragraph (3)(B) for
organic constituents
in Paragraph
(1)(A)(ii), until the
analytical results
submitted under
Paragraph (3)(B) show
a minimum of two
consecutive samples
below the delisting
levels in Paragraph
(1)(A)(i), Tokusen
may then request that
EPA stop quarterly
organic testing.
After EPA notifies
Tokusen in writing,
the company may end
quarterly organic
testing.
(ii) Following
cancellation of the
quarterly testing,
Tokusen must continue
to test a
representative
composite sample
(according to SW-846
methodologies) for
all constituents
listed in Paragraph
(1) annually (by
twelve months after
final exclusion).
(4) Changes in
Operating Conditions:
If Tokusen
significantly changes
the process described
in its petition or
starts any processes
that generate(s) the
waste that may or
could affect the
composition or type
of waste generated as
established under
Paragraph (1) (by
illustration, but not
limitation, changes
in equipment or
operating conditions
of the treatment
process), they must
notify EPA in
writing; they may no
longer handle the
waste generated from
the new process as
nonhazardous until
the waste meets the
delisting levels set
in Paragraph (1) and
they have received
written approval to
do so from EPA.
(5) Data Submittals:
Tokusen must submit
the information
described below. If
Tokusen fails to
submit the required
data within the
specified time or
maintain the required
records on-site for
the specified time,
EPA, at its
discretion, will
consider this
sufficient basis to
reopen the exclusion
as described in
Paragraph 6. Tokusen
must:
(A) Submit the data
obtained through
Paragraph 3 to the
Region 6 Delisting
Program, EPA, 1445
Ross Avenue, Dallas,
Texas 75202-2733,
Mail Code, (6PD-O)
within the time
specified.
(B) Compile records of
operating conditions
and analytical data
from Paragraph (3),
summarized, and
maintained on-site
for a minimum of five
years.
(C) Furnish these
records and data when
EPA or the State of
Arkansas request them
for inspection.
(D) A company official
having supervisory
responsibility should
send along with all
data a signed copy of
the following
certification
statement, to attest
to the truth and
accuracy of the data
submitted:
Under civil and
criminal penalty of
law for the making or
submission of false
or fraudulent
statements or
representations
(pursuant to the
applicable provisions
of the Federal Code,
which include, but
may not be limited
to, 18 U.S.C. 1001
and 42 U.S.C. 6928),
I certify that the
information contained
in or accompanying
this document is
true, accurate and
complete.
As to the (those)
identified section(s)
of this document for
which I cannot
personally verify its
(their) truth and
accuracy, I certify
as the company
official having
supervisory
responsibility for
the persons who,
acting under my
direct instructions,
made the verification
that this information
is true, accurate and
complete.
If any of this
information is
determined by EPA in
its sole discretion
to be false,
inaccurate or
incomplete, and upon
conveyance of this
fact to the company,
I recognize and agree
that this exclusion
of waste will be void
as if it never had
effect or to the
extent directed by
EPA and that the
company will be
liable for any
actions taken in
contravention of the
company's RCRA and
CERCLA obligations
premised upon the
company's reliance on
the void exclusion.
(6) Reopener
[[Page 79879]]
(A) If, anytime after
disposal of the
delisted waste,
Tokusen possesses or
is otherwise made
aware of any
environmental data
(including but not
limited to leachate
data or groundwater
monitoring data) or
any other data
relevant to the
delisted waste
indicating that any
constituent
identified for the
delisting
verification testing
is at a level higher
than the delisting
level allowed by the
Regional
Administrator or his
delegate in granting
the petition, then
the facility must
report the data, in
writing, to the
Regional
Administrator or his
delegate within 10
days of first
possessing or being
made aware of that
data.
(B) If the annual
testing of the waste
does not meet the
delisting
requirements in
Paragraph 1, Tokusen
must report the data,
in writing, to the
Regional
Administrator or his
delegate within 10
days of first
possessing or being
made aware of that
data.
(C) If Tokusen fails
to submit the
information described
in paragraphs (5),
(6)(A) or (6)(B) or
if any other
information is
received from any
source, the Regional
Administrator or his
delegate will make a
preliminary
determination as to
whether the reported
information requires
Agency action to
protect human health
or the environment.
Further action may
include suspending,
or revoking the
exclusion, or other
appropriate response
necessary to protect
human health and the
environment.
(D) If the Regional
Administrator or his
delegate determines
that the reported
information does
require Agency
action, the Regional
Administrator or his
delegate will notify
the facility in
writing of the
actions the Regional
Administrator or his
delegate believes are
necessary to protect
human health and the
environment. The
notice shall include
a statement of the
proposed action and a
statement providing
the facility with an
opportunity to
present information
as to why the
proposed Agency
action is not
necessary. The
facility shall have
10 days from the date
of the Regional
Administrator or his
delegate's notice to
present such
information.
(E) Following the
receipt of
information from the
facility described in
paragraph (6)(D) or
(if no information is
presented under
paragraph (6)(D)) the
initial receipt of
information described
in paragraphs (5),
(6)(A) or (6)(B), the
Regional
Administrator or his
delegate will issue a
final written
determination
describing the Agency
actions that are
necessary to protect
human health or the
environment. Any
required action
described in the
Regional
Administrator or his
delegate's
determination shall
become effective
immediately, unless
the Regional
Administrator or his
delegate provides
otherwise.
(7) Notification
Requirements: Tokusen
must do following
before transporting
the delisted waste.
Failure to provide
this notification
will result in a
violation of the
delisting petition
and a possible
revocation of the
decision:
(A) Provide a one-time
written notification
to any State
Regulatory Agency to
which or through
which they will
transport the
delisted waste
described above for
disposal, 60 days
before beginning such
activities.
(B) Update the one-
time written
notification if they
ship the delisted
waste into a
different disposal
facility.
* * * * * * *
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[FR Doc. 02-32899 Filed 12-30-02; 8:45 am]
BILLING CODE 6560-50-P