[Federal Register: November 26, 2004 (Volume 69, Number 227)]
[Proposed Rules]
[Page 68851-68859]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no04-35]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-7842-9]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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[[Page 68852]]
SUMMARY: The Environmental Protection Agency (EPA, also ``the Agency''
or ``we'' in this preamble) is proposing to modify a conditional
exclusion (or ``delisting'') from the lists of hazardous waste,
previously granted to BMW Manufacturing Co., LLC (BMW), in Greer, South
Carolina. This action responds to a petition for amendment requested by
BMW to eliminate the total concentration limits its wastewater
treatment sludge covered by its current conditional exclusion.
The Agency is basing its tentative decision to grant the petition
for amendment on a re-evaluation of the specific information initially
provided by the petitioner in its original request and on an evaluation
of delistings granted to other automobile manufactures for its F019
waste. This tentative decision, if finalized, would eliminate the total
concentration limits of barium, cadmium, chromium, lead, nickel, and
cyanide from its conditionally excluded wastewater treatment sludge
from the requirements of the hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA). The waste will still be
subject to local, State, and Federal regulations for nonhazardous solid
wastes.
DATES: EPA is requesting public comments on this proposed amendment. We
will accept comments on this proposal until January 10, 2005. Comments
postmarked after the close of the comment period will be stamped
``late.'' These late comments may not be considered in formulating a
final decision.
Any person may request a hearing on this proposed decision by
filing a request by December 13, 2004.
ADDRESSES: Send two copies of your comments to Narindar Kumar, Chief,
RCRA Enforcement and Compliance Branch, U.S. Environmental Protection
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
Atlanta, Georgia 30303. Send one copy to Cindy Carter, Appalachia III
District, South Carolina Department of Health and Environmental
Control, 975C North Church Street, Spartanburg, South Carolina 29303.
Requests for a hearing should be addressed to Winston A. Smith,
Director, Waste Management Division, U.S. Environmental Protection
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
SW., Atlanta, Georgia 30303. The request must contain the information
prescribed in 40 CFR 260.20(d).
The RCRA regulatory docket for this proposed rule is located at the
EPA Library, U.S. Environmental Protection Agency, Region 4, Sam Nunn
Atlanta Federal Center, 61 Forsyth Street, Atlanta, Georgia 30303, and
is available for viewing from 9 a.m. to 4 p.m., Monday through Friday,
excluding Federal holidays. The docket contains the petition, all
information submitted by the petitioner, and all information used by
EPA to evaluate the petition.
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 and technical information
about this proposed amendment, contact Kris Lippert, North Enforcement
and Compliance Section, (Mail Code 4WD-RCRA), RCRA Enforcement and
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia
30303, (404) 562-8605.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Background
A. What Laws and Regulations Give EPA the Authority to Delist
Wastes?
B. What is Currently Delisted at BMW?
C. What Does BMW Request in Its Petition for Amendment?
II. Disposition of Delisting Petition
A. What Information Did BMW Submit to Support Its Petition for
Amendment?
B. How Did EPA Evaluate this Petition?
1. How Did EPA Evaluate the 2000 BMW's Petition?
2. How Did EPA Evaluate this Proposed Amendment?
C. What Conclusions Did EPA Reach?
What Are the Terms of this Exclusion?
III. Limited Effect of Federal Exclusion
Will this Rule Apply in All States?
IV. Effective Date
V. Paperwork Reduction Act
VI. National Technology Transfer and Advancement Act
VII. Unfunded Mandates Reform Act
VIII. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement and Fairness Act
IX. Executive Order 12866
X. Executive Order 12875
XI. Executive Order 13045
XII. Executive Order 13084
XIII. Submission to Congress and General Accounting Office
XIV. Executive Order 13132
I. Background
A. What Laws and Regulations Give EPA the Authority To Delist Wastes?
On January 16, 1981, as part of its final and interim final
regulations implementing section 3001 of RCRA, EPA published an amended
list of hazardous wastes from non-specific and specific sources. This
list has been amended several times, and is published in 40 CFR 261.31
and 261.32. These wastes are listed as hazardous because they exhibit
one or more of the characteristics of hazardous wastes identified in
subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and
toxicity) or meet the criteria for listing contained in Sec. 261.11
(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
that is described in these regulations generally is hazardous, a
specific waste from an individual facility meeting the listing
description may not be. For this reason, Sec. Sec. 260.20 and 260.22
provide an exclusion procedure, allowing persons to demonstrate that a
specific waste from a particular generating \1\ facility should not be
regulated as a hazardous waste.
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\1\ Although no one produces hazardous waste intentionally, many
industrial processes result in the production of hazardous waste, as
well as useful products and services. A ``generating facility'' is a
facility in which hazardous waste is produced, and a ``generator''
is a person who produces hazardous waste or causes hazardous waste
to be produced at a particular place. Please see 40 CFR 260.10 for
regulatory definitions of ``generator,'' ``facility,'' ``person,''
and other terms related to hazardous waste, and 40 CFR part 262 for
regulatory requirements for generators.
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To have their wastes excluded, petitioners must show, first, that
wastes generated at their facilities do not meet any of the criteria
for which the wastes were listed. See Sec. 260.22(a) and the
background documents for the listed wastes. Second, 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. Accordingly, a petitioner also must demonstrate that the waste
does not exhibit any of the hazardous waste characteristics (i.e.,
ignitability, reactivity, corrosivity, and toxicity), and must present
sufficient information for the EPA to determine whether the waste
contains any other toxicants at hazardous levels. See Sec. 260.22(a),
42 U.S.C. 6921(f), and the background documents for the listed wastes.
Although wastes which are ``delisted'' (i.e., excluded) have been
evaluated to determine whether or not they exhibit any of the
characteristics of hazardous waste, generators remain obligated under
RCRA to determine whether or not their wastes continue to be
nonhazardous based on the hazardous waste characteristics (i.e.,
characteristics which may be
[[Page 68853]]
promulgated subsequent to a delisting decision.)
In addition, residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
are also considered hazardous wastes. See Sec. 261.3(a)(2)(iv) and
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,
respectively. Such wastes are also eligible for exclusion and remain
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of
Appeals for the District of Columbia vacated the ``mixture/derived-
from'' rules and remanded them to the EPA on procedural grounds. Shell
Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA
reinstated the mixture and derived-from rules, and solicited comments
on other ways to regulate waste mixtures and residues (57 FR 7628).
These rules became final on October 30, 1992, 57 FR 49278, and should
be consulted for more information regarding waste mixtures and solid
wastes derived from treatment, storage, or disposal of a hazardous
waste. The mixture and derived-from rules are codified in 40 CFR 261.3
(b)(2) and (c)(2)(i). EPA plans to address waste mixtures and residues
when the final portion of the Hazardous Waste Identification Rule
(HWIR) is promulgated.
On October 10, 1995, the Administrator delegated to the Regional
Administrators the authority to evaluate and approve or deny petitions
submitted in accordance with Sec. Sec. 260.20 and 260.22, by
generators within their Regions (National Delegation of Authority 8-
19), in States not yet authorized to administer a delisting program in
lieu of the Federal program. On March 11, 1996, the Regional
Administrator of EPA, Region 4, redelegated delisting authority to the
Director of the Waste Management Division (Regional Delegation of
Authority 8-19).
B. What Is Currently Delisted at BMW?
BMW manufactures BMW automobiles at its facility in Greer, South
Carolina. On June 2, 2000, BMW petitioned EPA under the provisions in
40 CFR 260.20 and 260.22 to exclude from hazardous waste regulations
its F019 wastewater treatment sludge.
In support of its petition, BMW submitted sufficient information to
EPA to allow us to determine that the waste was not hazardous based
upon the criteria for which it was listed and that no other hazardous
constituents were present in the waste at levels of regulatory concern.
A full description of this waste and the Agency's evaluation of the
2000 BMW's petition are contained in the proposed rule and request for
comments published in the Federal Register on February 12, 2001, (66 FR
9781-9798).
After evaluating public comment on the proposed rule, we published
a final decision in the Federal Register on May 2, 2001, (66 FR 21877-
21886), to exclude BMW's wastewater treatment sludge derived from the
treatment of EPA Hazardous Waste No. F019 from the list of hazardous
wastes found in 40 CFR 261.31.
EPA's final decision in 2001 was conditional on the TCLP and total
concentration limits of barium, cadmium, chromium, cyanide, lead, and
nickel. If the sludge exceeds the TCLP or total concentration limits,
then that sludge would have to be managed as hazardous waste.
C. What Does BMW Request in Its Petition for Amendment?
As a result of delistings granted to other automobile manufactures
by EPA, BMW petitioned EPA on December 11, 2003, for an amendment to
its May 2, 2001, final exclusion.
In its petition, BMW requested to eliminate the total concentration
limits.
II. Disposition of Delisting Petition
A. What Information Did BMW Submit To Support Its Petition for
Amendment?
BMW petitioned EPA, Region 4, on June 2, 2000, to exclude its F019
waste, on a generator-specific basis, from the lists of hazardous
wastes in 40 CFR part 261, subpart D. BMW requested EPA to review its
original submittals to support its 2000 petition for this petition
amendment to eliminate all total concentration limits. BMW also
requested EPA to review other delisting petitions granted by EPA to
automobile manufactures for the F019 waste to support this petition for
amendment.
In support of its 2000 petition, BMW submitted: (1) Descriptions of
its manufacturing and wastewater treatment processes, the generation
point of the petitioned waste, and the manufacturing steps that will
contribute to its generation; (2) Material Safety Data Sheets (MSDSs)
for materials used to manufacture automobiles and to treat wastewater;
(3) the minimum and maximum annual amounts of wastewater treatment
sludge generated from 1996 through 1999, and an estimate of the maximum
annual amount expected to be generated in the future; (4) results of
analysis for metals, cyanide, sulfide, fluoride, and volatile organic
compounds in the currently generated waste at the BMW plants in Greer,
South Carolina, and Dingolfing, Germany; (5) results of the analysis of
leachate from these wastes, obtained by means of the Toxicity
Characteristic Leaching Procedure ((TCLP), SW-846 Method 1311 \2\); (6)
results of the determinations for the hazardous characteristics of
ignitability, corrosivity, and reactivity in these wastes; (7) results
of determinations of dry weight percent, bulk density, and free liquids
in these wastes; and (8) results of the analysis of the waste currently
generated at the plant in Greer, South Carolina, by means of the
Multiple Extraction Procedure (MEP), SW-846 Method 1320, in order to
evaluate the long-term resistance of the waste to leaching in a
landfill.
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\2\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this
publication are referred to in today's proposed rule as ``SW-846,''
followed by the appropriate method number.
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B. How Did EPA Evaluate This Petition?
1. How Did EPA Evaluate the 2000 BMW's Petition?
In making the initial delisting determination, EPA evaluated the
petitioned waste against the listing criteria and factors cited in
Sec. 261.11 (a)(2) and (a)(3). Based on this review, EPA agreed with
the petitioner that the waste was nonhazardous with respect to the
original listing criteria. (If 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.) EPA then 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. See
Sec. 260.22 (a) and (d). EPA considered whether the waste was acutely
toxic, and considered the toxicity of the constituents, the
concentration of the constituents in the waste, their tendency to
migrate and to bioaccumulate, their persistence in the environment once
released from the waste, plausible and specific types of management of
the petitioned waste, the quantities of waste generated, and waste
variability.
BMW submitted to EPA analytical data from its Greer, South Carolina
plant and from the BMW plant in Dingolfing, Germany. Four composite
samples of wastewater treatment sludge, from approximately 60 batches
of wastewater, were collected from each plant over a three-week period.
After reviewing this analytical data and information on
[[Page 68854]]
processes and raw materials, EPA identified the following constituents
of concern: barium, cadmium, chromium, cyanide, lead, and nickel. The
maximum reported concentrations of the toxicity characteristic (TC)
metals barium, cadmium, chromium, and lead in the TCLP extracts of the
samples were below the TC regulatory levels. The maximum reported
concentration of total cyanide in unextracted waste was 3.35 milligrams
per kilogram (mg/kg), which is greater than the generic exclusion level
of 1.8 mg/kg for high temperature metal recovery (HTMR) residues in 40
CFR 261.3(c)(2)(ii)(C)(1), and less than 590 mg/kg, the Land Disposal
Restrictions (LDR) Universal Treatment Standards (UTS) level, in 40 CFR
268.48. Chromium was undetected in the TCLP extract of any sample. The
maximum reported concentration of barium in unextracted samples was 144
mg/kg for the German plant and 402 mg/kg for the Greer, South Carolina
plant. The maximum reported concentration of chromium in unextracted
samples was 100 mg/kg for the German plant and 222 mg/kg for the Greer,
South Carolina plant. The maximum concentration of nickel in the TCLP
extract of any sample was 0.73 milligrams per liter (mg/l) for the
German plant and 6.25 mg/l for the Greer, South Carolina plant. The
maximum reported concentration of nickel in unextracted samples was
6,500 mg/kg for the German plant and 1,700 mg/kg for the Greer, South
Carolina plant. See the proposed rule, 66 FR 9781-9798, February 12,
2001, for details on BMW's analytical data, production process, and
generation process for the petitioned waste.
After developing the list of constituents of concern, EPA
calculated delisting levels for each of them using Maximum Contaminant
Levels (MCLs) and EPA Composite Model for Landfills (EPACML) Dilution
Attenuation Factors (DAFs) and calculated delisting levels and risks
using Delisting Risk Assessment Software (DRAS) and EPA Composite Model
for Leachate Migration with Transformation Products (EPACMTP) DAFs.
EPA also used three additional methods of evaluating BMW's
delisting petition and determining delisting levels: (1) Use of the
Multiple Extraction Procedure (MEP), SW-846 Method 1320,\3\ to evaluate
the long-term resistance of the waste to leaching in a landfill; (2)
setting limits on total concentrations of constituents in the waste
that are more conservative than results of calculations of constituent
release from waste in a landfill to surface water and air, and release
during waste transport; and (3) setting delisting levels at the Land
Disposal Restrictions (LDR) Universal Treatment Standards (UTS) levels
in 40 CFR 268.48. The UTS levels for BMW's constituents of concern are
the following: Barium: 21 mg/l TCLP; Cadmium: 0.11 mg/l TCLP; Chromium:
0.60 mg/l TCLP; Cyanide Total: 590 mg/kg; Cyanide Amenable 30 mg/kg;
Lead: 0.75 mg/l TCLP; Nickel: 11 mg/l TCLP.
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\3\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this
publication are referred to in today's proposed rule as ``SW-846,''
followed by the appropriate method number.
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After considering all public comments on the February 12, 2001,
Proposed Rule, and the MEP analysis of the petitioned waste which
indicated long-term resistance to leaching (see 66 FR 9793-9794,
February 12, 2001), EPA granted BMW, in the May 2, 2001, Final Rule, an
exclusion from the lists of hazardous wastes in subpart D of 40 CFR
part 261 for its petitioned waste when disposed in a Subtitle D \4\
landfill. In the 2001 Final Rule, BMW was required to meet delisting
conditions based on the DRAS EPACMTP model in order for this exclusion
to be valid. For details, see the following Federal Registers: 65 FR
75637-75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000;
the proposed rule for BMW's petitioned waste, 66 FR 9792-9793, February
12, 2001, and Final Rule for BMW's petitioned waste, 66 FR 21877-21886,
May 2, 2001.
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\4\ The term, ``Subtitle D landfill,'' refers to a landfill that
is licensed to land dispose nonhazardous wastes, that is, wastes
that are not RCRA hazardous wastes. A Subtitle D landfill is subject
to federal standards in 40 CFR parts 257 and 258 and to state and
local regulations for nonhazardous wastes and nonhazardous waste
landfills.
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Delisting levels and risk levels calculated by DRAS, using the
EPACMTP model, are presented in Table 1 below. DRAS found that the
major pathway for human exposure to this waste is groundwater
ingestion, and calculated delisting and risk levels based on that
pathway. The input values required by DRAS were the chemical
constituents in BMW's petitioned waste; their maximum reported
concentrations in the TCLP extract of the waste and in the unextracted
waste; the maximum annual volume to be disposed (2,850 cubic yards) in
a landfill; the desired risk level, which was chosen to be no worse
than 10-\6\ for carcinogens; and a hazard quotient of no
greater than 1 for non-carcinogens. The only carcinogenic constituent
in the waste is cadmium, and cadmium also has non-carcinogenic toxic
effects. Allowable total concentrations in the waste, as calculated by
DRAS for the waste, itself, not the TCLP leachate, were all at least
1,000 times greater than the actual maximum total concentrations found
in the waste, and are not included in Table 1, since many amount to
metal or cyanide concentrations of several percent. However, in
addition to limits on the concentrations of constituents in the TCLP
leachate of the petitioned waste, EPA did set the following limits on
total concentrations, in units of milligrams of constituent per
kilogram of unextracted waste (mg/kg): Barium: 2,000; Cadmium: 500;
Chromium: 1,000; Cyanide (Total, not Amenable): 200; Lead: 2,000; and
Nickel: 20,000. The maximum reported total concentrations for BMW's
petitioned waste were all below these limits. The limit for cyanide was
chosen so that the waste could not exhibit the reactivity
characteristic for cyanide by exceeding the interim guidance for
reactive cyanide of 250 mg/kg of releasable hydrogen cyanide (SW-846,
Chapter Seven, Section 7.3.3.)
Table 1.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for BMW Petitioned Waste
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DRAS-calculated
DRAS-calculated hazard quotient
Delisting level risk for maximum for maximum
Constituent (mg/l TCLP) DAF concentration of concentration of
carcinogen in non-carcinogen in
waste waste
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Barium......................... 182\a\ 69.2 .................. 4.87 x 10-\2\
Cadmium........................ 1.4\a\ 74.6 1.62 x 10-\13\ 3.57 x 10-\2\
[[Page 68855]]
Chromium....................... 5.39 x 105 \a\ 9,580 .................. 5.8 x 10-\7\
Cyanide........................ 33.6 44.8 .................. 1.49 x 10-\3\
Lead........................... 187\a\ 1.24 x 10\4\ .................. Not Calculable; No
Reference Dose
for Lead.
Nickel......................... 70.3 93.5 .................. 8.9 x 10-\2\
Total Hazard Quotient for ................... .................. .................. 0.187
All Waste Constituents.
Total Carcinogenic Risk for ................... .................. 1.62 x 10-\13\ ..................
the Waste (due to Cadmium).
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\a\ These levels are all greater than the Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24. A
waste cannot be delisted if it exhibits a hazardous characteristic; therefore, the delisting level for each of
these constituents could not be greater than the TC level of 100 for Barium; 1.0 for Cadmium; 5.0 for
Chromium; and 5.0 for Lead.
2. How Did EPA Evaluate This Proposed Amendment?
EPA reviewed the allowable total concentrations in the waste, as
calculated by DRAS for the waste, to determine if increasing the barium
total concentration limit would be still protective to human health and
the environment. The allowable total concentrations, according to the
DRAS, were all at least 1,000 times greater than the actual maximum
total concentrations found in the waste. Based on the DRAS results, EPA
proposes to grant BMW's petition for amendment to eliminate all total
concentration limits. EPA asks for public comment on this new totals
limit set for barium which has been calculated to be both protective of
human health and the environment and realistic, attainable values for
BMW's wastewater treatment sludge.
C. What Conclusions Did EPA Reach?
EPA believes that the information provided by BMW provides a
reasonable basis to eliminate all total concentration limits. We,
therefore, propose to grant BMW an amendment to its current delisting
for an elimination of all total concentration limits on its delisted
wastewater treatment sludge and are requesting comments solely on
eliminating all total concentration limits.
EPA believes that this proposal to eliminate all concentration
limits will not harm human health and the environment when disposed in
a nonhazardous waste landfill, if the proposed delisting levels are
met.
EPA proposes to eliminate all total concentration limits, based on
descriptions of waste management and waste history, evaluation of the
results of waste sample analysis, and on the requirement that BMW's
petitioned waste must meet this proposed amendment delisting level of
all the constituents of concern concentration limits as state in the
May 2, 2001, Final Rule before disposal. If this proposed amendment
becomes final, the petitioned waste would not be subject to regulation
under 40 CFR parts 262 through 268 and the permitting standards of 40
CFR part 270. Although management of the waste covered by this petition
would, upon final promulgation, be relieved from Subtitle C
jurisdiction, the waste would remain a solid waste under RCRA. As such,
the waste must be handled in accordance with all applicable Federal,
State, and local solid waste management regulations. Pursuant to RCRA
section 3007, EPA may also sample and analyze the waste to determine if
delisting conditions are met.
EPA believes that BMW's petitioned waste will not harm human health
and the environment when disposed in a nonhazardous waste landfill if
the delisting levels are met as granted in the May 2, 2001, Final Rule
and amended in this petition.
What Are the Terms of This Exclusion?
The following summarizes the maximum allowable constituent
concentrations (delisting levels) for BMW's waste. We calculated these
delisting levels for each constituent that is part of BMW's current
delisting based on the DRAS EPACMTP model, which grants BMW an
exclusion from the lists of hazardous wastes in subpart D of 40 CFR
part 261 for its petitioned waste when disposed in a Subtitle D\5\
landfill. BMW must meet all of the following delisting conditions in
order for this exclusion to be valid: delisting levels in mg/l in the
TCLP extract of the waste of 100.0\6\ for Barium, 1.0 for Cadmium, 5.0
for Chromium, 33.6 for Cyanide, 5.0 for Lead, and 70.3 for Nickel.
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\5\ The term, ``Subtitle D landfill,'' refers to a landfill that
is licensed to land dispose nonhazardous wastes, that is, wastes
that are not RCRA hazardous wastes. A Subtitle D landfill is subject
to federal standards in 40 CFR parts 257 and 258 and to state and
local regulations for nonhazardous wastes and nonhazardous waste
landfills.
\6\ Delisting levels cannot exceed the Toxicity Characteristic
(TC) regulatory levels. Therefore, although the DRAS EPACMTP
calculates higher concentrations (see the proposed rule, 66 FR 9793,
February 12, 2001, and Table 1, below), the delisting levels in the
final rule are set at the TC levels for barium, cadmium, chromium,
and lead. In order for the waste to be delisted, concentrations in
the TCLP extract of the waste must be less than the TC levels. See
the regulatory definition of a TC waste in 40 CFR 261.24.
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III. Limited Effect of Federal Exclusion
Will This Rule Apply in All States?
This proposed rule, if promulgated, would be issued under the
Federal (RCRA) delisting program. States, however, are allowed to
impose their own, non-RCRA regulatory requirements that are more
stringent than EPA's, pursuant to section 3009 of RCRA. These more
stringent requirements may include a provision which prohibits a
federally issued exclusion from taking effect in the States. 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
[[Page 68856]]
regulatory authorities to determine the current status of their wastes
under the State laws. Furthermore, some States are authorized to
administer a delisting program in lieu of the Federal program, i.e., to
make their own delisting decisions. Therefore, this proposed exclusion,
if promulgated, would not apply in those authorized States. If the
petitioned waste will be transported to any State with delisting
authorization, BMW must obtain delisting authorization from that State
before the waste may be managed as nonhazardous in that State.
IV. Effective Date
This rule, if made final, will become effective immediately upon
final publication. The Hazardous and Solid Waste Amendments of 1984
amended section 3010 of RCRA to allow rules to become effective in less
than six months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because
this rule, if finalized, would reduce the existing requirements for the
petitioner. In light of the unnecessary hardship and expense that would
be imposed on this petitioner by an effective date six months after
publication and the fact that a six-month deadline is not necessary to
achieve the purpose of section 3010, EPA believes that this exclusion
should be effective immediately upon final publication. These reasons
also provide a basis for making this rule effective immediately, upon
final publication, under the Administrative Procedure Act, pursuant to
5 U.S.C. 553(d).
V. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this proposed 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.
VI. 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 proposed rulemaking involves environmental monitoring or
measurement. Consistent with the Agency's Performance Based measurement
System (``PBMS''), EPA proposes not to require the use of specific,
prescribed analytical methods, except when required by regulation in 40
CFR parts 260 through 270. Rather the Agency plans to allow the use of
any method that meets the prescribed performance criteria. The PBMS
approach is intended to be more flexible and cost-effective for the
regulated community; it is also intended to encourage innovation in
analytical technology and improved data quality. EPA is not precluding
the use of any method, whether it constitutes a voluntary consensus
standard or not, as long as it meets the performance criteria
specified.
VII. 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 generally 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. EPA finds that today's
proposed delisting decision is deregulatory in nature and does not
impose any enforceable duty on any State, local, or tribal governments
or the private sector. In addition, the proposed delisting does not
establish any regulatory requirements for small governments and so does
not require a small government agency plan under UMRA section 203.
VIII. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement and Fairness 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 that
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 that the rule will
not have a significant economic impact on a substantial number of small
entities.
This rule, if promulgated, will not have an adverse economic impact
on any small entities since its effect would be to reduce the overall
costs of EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, I hereby certify that this proposed 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.
IX. 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 Office of Management and Budget (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;
[[Page 68857]]
(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 of policy issues arising out of legal
mandates, the President's priorities or the principles set forth in the
Executive Order.
OMB has exempted this proposed rule from the requirement for OMB
review under section (6) of Executive Order 12866.
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 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.''
Today's 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. Today's
proposed rulemaking 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 proposed
rule.
XIII. Submission to Congress and General Accounting Office
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.
The EPA is not required to submit a rule report regarding today's
action under Section 801 because this is a rule of particular
applicability, etc. Section 804 exempts from Section 801 the following
types of rules: rules of particular applicability; rules relating to
agency management or personnel; and rules of agency organization,
procedures, or practice that do not substantially affect the rights or
obligations of non-agency parties. See 5 U.S.C. 804(3). This rule will
become effective on the date of publication as a final rule in the
Federal Register.
XIV. Executive Order 13132
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 the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that impose substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency consults with State and local officials early in the
process of developing the proposed regulation.
This action does not have federalism implication. It will not have
a substantial direct effect on 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, because it affects only one facility.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Dated: November 10, 2004.
Winston A. Smith,
Director, Waste Management Division.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be 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, 6924(y) and 6938.
[[Page 68858]]
2. In Table 1 of Appendix IX, Part 261 revise the entry for BMW
Manufacturing Co., LLC to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22.
Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste Description
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* * * * * * *
BMW Manufacturing Co., LLC.............. Greer, South Carolina...... Wastewater treatment sludge (EPA
Hazardous Waste No. F019) that BMW
Manufacturing Corporation (BMW)
generates by treating wastewater from
automobile assembly plant located on
Highway 101 South in Greer,
SouthCarolina. This is a conditional
exclusion for up to 2,850 cubic yards of
waste(hereinafter referred to as ``BMW
Sludge'') that will be generated each
year and disposed in a Subtitle D
landfill after [date of final rule].
With prior approval by the EPA,
following a public comment period,BMW
may also beneficially reuse the sludge.
BMW must demonstrate that the following
conditions are met for the exclusion to
be valid.
(1) Delisting Levels: All leachable
concentrations for these metals and
cyanide must not exceed the following
levels (ppm): Barium-100; Cadmium-1;
Chromium-5; Cyanide-33.6, Lead-5; and
Nickel-70.3. These metal and cyanide
concentrations must be measured in the
waste leachate obtained by the method
specified in 40 CFR 261.24, except that
for cyanide, deionized water must be the
leaching medium. Cyanide concentrations
in waste or leachate must be measured by
the method specified in 40 CFR 268.40,
Note 7.
(2) Annual Verification Testing
Requirements: Sample collection and
analyses, including quality control
procedures, must be performed according
to SW-846 methodologies, where specified
by regulations in 40 CFR parts 260--270.
Otherwise, methods must meet Performance
Based Measurement System Criteria in
which the Data Quality Objectives are to
demonstrate that representative samples
of the BMW Sludge meet the delisting
levels in Condition (1).
(A) Annual Verification Testing: BMW must
implement an annual testing program to
demonstrate that constituent
concentrations measured in the TCLP
extract do not exceed the delisting
levels established in Condition (1).
(3) Waste Holding and Handling: BMW must
hold sludge containers utilized for
verification sampling until composite
sample results are obtained. If the
levels of constituents measured in the
composite samples of BMW Sludge do not
exceed the levels set forth in Condition
(1), then the BMW Sludge is non-
hazardous and must be managed in
accordance with all applicable solid
waste regulations. If constituent levels
in a composite sample exceed any of the
delisting levels set forth in Condition
(1), the batch of BMW Sludge generated
during the time period corresponding to
this sample must be managed and disposed
of in accordance with Subtitle C of
RCRA.
(4) Changes in Operating Conditions: BMW
must notify EPA in writing when
significant changes in the manufacturing
or wastewater treatment processes are
implemented. EPA will determine whether
these changes will result in additional
constituents of concern. If so, EPA will
notify BMW in writing that the BMW
Sludge must be managed as hazardous
waste F019 until BMW has demonstrated
that the wastes meet the delisting
levels set forth in Condition (1) and
any levels established by EPA for the
additional constituents of concern, and
BMW has received written approval from
EPA. IfEPA determines that the changes
do not result in additional constituents
of concern, EPA will notify BMW, in
writing, that BMW must verify that the
BMW Sludge continues to meet Condition
(1) delisting levels.
(5) Data Retention: Records of analytical
data from Condition (2) must be
compiled, summarized, and maintained by
BMW for a minimum of three years, and
must be furnished upon request by EPA or
the State of South Carolina, and made
available for inspection. Failure to
maintain the required records for the
specified time will be considered by
EPA, at its discretion, sufficient basis
to revoke the exclusion to the extent
directed by EPA. All data must be
accompanied by a signed copy of the
certification statement in 40 CFR
260.22(i)(12).
[[Page 68859]]
(6) Reopener Language: (A) If, at any
time after disposal of the delisted
waste, BMW 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 in the delisting verification
testing is at a level higher than the
delisting level allowed by EPA in
granting the petition, BMW must report
the data, in writing, to EPA and South
Carolina within 10 days of first
possessing or being made aware of that
data. (B) If the testing of the waste,
as required by Condition (2)(A), does
not meet the delisting requirements of
Condition (1), BMW must report the data,
in writing, to EPA and South Carolina
within 10 days of first possessing or
being made aware of that data. (C) Based
on the information described in
paragraphs (6)(A) or (6)(B) and any
other information received from any
source, EPA will make a preliminary
determination as to whether the reported
information requires that EPA take
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 EPA determines that
the reported information does require
Agency action, EPA will notify the
facility in writing of the action
believed necessary to protect human
health and the environment. The notice
shall include a statement of the
proposed action and a statement
providing BMW with an opportunity to
present information as to why the
proposed action is not necessary. BMW
shall have 10 days from the date of
EPA's notice to present such
information.
(E) Following the receipt of information
from BMW, as described in paragraph
(6)(D), or if no such information is
received within 10 days, EPA will issue
a final written determination describing
the Agency actions that are necessary to
protect human health or the environment,
given the information received in
accordance with paragraphs (6)(A) or
(6)(B). Any required action described in
EPA's determination shall become
effective immediately, unless EPA
provides otherwise.
(7) Notification Requirements: BMW must
provide a one-time written notification
to any State Regulatory Agency in a
State to which or through which the
delisted waste described above will be
transported, at least 60 days prior to
the commencement of such activities.
Failure to provide such a notification
will result in a violation of the
delisting conditions and a possible
revocation of the decision to delist.
* * * * * * *
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[FR Doc. 04-26166 Filed 11-24-04; 8:45 am]
BILLING CODE 6560-50-P