[Federal Register: June 24, 2005 (Volume 70, Number 121)]
[Proposed Rules]
[Page 36547-36554]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn05-33]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7925-2]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Amendment
AGENCY: Environmental Protection Agency.
ACTION: Proposed amendment and request for comment.
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SUMMARY: The Environmental Protection Agency (EPA, also ``the Agency''
or ``we'' in this preamble) is proposing to modify an exclusion (or
``delisting'') from the lists of hazardous waste previously granted to
Nissan North America, Inc. (Nissan) in Smyrna, Tennessee.
This action responds to a petition for amendment submitted by
Nissan to increase the maximum annual volume covered by its current
exclusion for a F019 listed hazardous waste.
The Agency is basing its tentative decision to grant the petition
for amendment on an evaluation of specific information provided by the
petitioner. This tentative decision, if finalized, would increase the
annual volume of waste conditionally excluded from the requirements of
the hazardous waste regulations under the Resource Conservation and
Recovery Act (RCRA).
DATES: EPA is requesting public comments on this proposed amendment. We
will accept comments on this proposal until August 8, 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 tentative decision to
grant the petition for amendment by filing a request by July 11, 2005.
The request must contain the information prescribed in 40 CFR
260.20(d).
ADDRESSES: Please send two copies of your comments to Daryl R. Himes,
South Enforcement and Compliance Section, RCRA Enforcement and
Compliance Branch, Waste Management Division, U.S. EPA Region 4, 61
Forsyth Street SW., Atlanta, GA, 30303. Comments may also be sent to
Daryl R. Himes via email at Himes.Daryl@epa.gov.
Your request for a hearing should be addressed to Narindar M.
Kumar, Chief, RCRA Enforcement and Compliance Branch, Waste Division,
U.S. Environmental Protection Agency Region 4, Atlanta Federal Center,
61 Forsyth Street SW., Atlanta, Georgia 30303.
The RCRA regulatory docket for this proposed rule is located at the
offices of U.S. EPA Region 4, 61 Forsyth Street SW., Atlanta, GA,
30303, and is available for your viewing from 8:30 a.m. to 5 p.m.,
Monday through Friday, except on Federal holidays. Please call Daryl R.
Himes, at (404) 562-8614 for appointments. The public may copy material
from the regulatory docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this document, please contact Daryl R. Himes at the address above or at
(404) 562-8614.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Background
A. What Laws and Regulations Give EPA the Authority to Delist
Waste?
B. What Waste is Currently Delisted at Nissan?
C. What Does Nissan Request in Its Petition for Amendment?
II. Disposition of Petition for Amendment
A. What Information Did Nissan Submit To Support Its Petition
for Amendment?
B. How Did EPA Evaluate Risk for the Original November 19, 2001,
Petition and this Proposed Amendment?
C. What Conclusion Did EPA Reach?
III. Conditions for Exclusion
A. What Are the Maximum Allowable Concentrations of Hazardous
Constituents?
B. How Frequently Must Nissan Test the Waste and How Must It Be
Managed Until It Is Disposed?
C. What Must Nissan Do If the Process Changes?
D. What Data Must Nissan Submit?
E. What Happens If Nissan Fails To Meet the Conditions of the
Exclusion?
IV. Effect on State Authorization
V. Effective Date
VI. Administrative Requirements
VII. Public Comments
A. How May I as an Interested Party Submit Comments?
B. How May I Review the Docket or Obtain Copies of the Proposed
Exclusions?
VIII. Regulatory Impact
IX. Regulatory Flexibility Act
X. Paperwork Reduction Act
XI. Unfunded Mandates Reform Act
XII. Executive Order 13045
XIII. Executive Order 13084
XIV. National Technology Transfer and Advancements Act
XV. Executive Order 13132 Federalism
I. Background
A. What Laws and Regulations Give EPA the Authority To Delist Waste?
EPA published amended lists of hazardous wastes from nonspecific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing Section 3001 of RCRA. These
lists have been amended several times, and are found at 40 CFR 261.31
and 261.32.
We list these wastes as hazardous because: (1) They typically and
frequently exhibit one or more of the characteristics of hazardous
wastes identified in Subpart C of 40 CFR Part 261 (i.e., ignitability,
corrosivity, reactivity, and toxicity), or (2) they meet the criteria
for listing contained in 40 CFR 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, 40 CFR 260.20 and 260.22 provide an exclusion
procedure which allows a person to demonstrate that a specific listed
waste from a particular generating facility should not be regulated as
a hazardous waste, and should, therefore, be delisted.
According to 40 CFR 260.22(a)(1), in order to have these wastes
excluded a petitioner must first show that wastes generated at its
facility do not meet any of the criteria for which the wastes were
listed. The criteria which we use to list wastes are found in 40 CFR
261.11. An explanation of how these criteria apply to a particular
waste is contained in the background document for that listed waste.
In addition to the criteria that we considered when we originally
listed the waste, we are also required by the provisions of 40 CFR
260.22(a)(2) to consider any other factors (including additional
constituents), if there is a reasonable basis to believe that these
factors could cause the waste to be hazardous.
In a delisting petition, the petitioner must demonstrate that the
waste does not exhibit any of the hazardous waste characteristics
defined in Subpart C of
[[Page 36548]]
40 CFR Part 261 (i.e., ignitability, corrosivity, reactivity, and
toxicity), and must present sufficient information for EPA to determine
whether the waste contains any other constituents at hazardous levels.
A generator remains obligated under RCRA to confirm that its waste
remains nonhazardous based on the hazardous waste characteristics
defined in Subpart C of 40 CFR Part 261 even if EPA has delisted its
waste.
We also define residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
as hazardous wastes. (See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i),
referred to as the ``mixture'' and ``derived-from'' rules,
respectively.) These wastes are also eligible for exclusion but remain
hazardous wastes until delisted.
B. What Waste Is Currently Delisted at Nissan?
Nissan operates a light-duty vehicle manufacturing facility in
Smyrna, Tennessee. As a result of Nissan's use of aluminum as a
component of its automobile bodies, Nissan generates a sludge meeting
the listing definition of F019 at 40 CFR 261.31.
On October 12, 2000, Nissan petitioned EPA under the provisions in
40 CFR 260.20 and 260.22 to exclude the F019 sludge, discussed above,
from hazardous waste regulation.
In support of its October 12, 2000, petition, Nissan 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 the Agency's evaluation of the 2000 Nissan
petition is contained in the Proposed Rule and Request for Comments
published in the Federal Register on November 19, 2001, (223 FR 57918).
After evaluating public comment on the Proposed Rule, we published
a final decision in the Federal Register on June 21, 2002, (67 FR
41287) to exclude the Nissan F019 wastewater treatment sludge from the
list of hazardous wastes found in 40 CFR 261.31.
EPA's final decision in 2002 was conditioned on the volume of waste
identified in the 2001 Nissan petition. Specifically, the exclusion
granted by EPA is limited to a maximum annual volume of 2400 cubic
yards. Any additional waste volume in excess of this limit generated by
Nissan in a calendar year was to have been managed as hazardous waste.
C. What Does Nissan Request in Its Petition for Amendment?
As a result of an increase in wastewater treatment sludge filter
cake production associated with an increase in vehicle production,
Nissan petitioned EPA on February 3, 2004, for an amendment to its June
21, 2002, final exclusion. In its petition, Nissan requested an
increase in the maximum annual waste volume that is covered by its
exclusion from 2400 cubic yards to 3500 cubic yards.
II. Disposition of Petition Amendment
A. What Information Did Nissan Submit to Support Its Petition for
Amendment?
The exclusion which we granted to Nissan on June, 21, 2002, is a
conditional exclusion. In order for its exclusion to have remained
effective, Nissan has performed verification testing on its delisted
F019 waste water treatment sludge. Constituents tested for by the
required verification testing were previously identified for Nissan by
EPA in the June 21, 2002, final exclusion. The constituents identified
were those detected in initial analysis of Nissan's F019 waste water
treatment sludge.
Nissan has submitted its verification testing results to EPA as
required in the June 21, 2002, Final Rule. A summary of the maximum
values detected from samples of Nissan's F019 waste for each of
Nissan's verification testing constituents are presented in Table 1
below. The values presented were identified from a review of the
verification testing results as well as the initial testing results
which were performed to identify the verification testing constituents.
Table 1.--Maximum Total Constituent and Leachate Concentrations \1\ WWTP
Filter Cake
------------------------------------------------------------------------
Total constituent TCLP leachate
Inorganic constituents concentration (mg/ concentration (mg/
kg) l)
------------------------------------------------------------------------
Barium.......................... 6600.0 0.18
Cadmium......................... 6.0 < 0.010
Chromium........................ 160.00 < 0.050
Lead............................ 390.0 < 0.0050
Nickel.......................... 4600 < 0.050
4-Methyl-phenol ([rho]-cresol).. .................. 0.31
Bis (2-ethylhexyl) phthalate.... .................. < 0.050
Di-n-octyl phthalate............ .................. < 0.050
Cyanide......................... 3.2 0.0095
------------------------------------------------------------------------
\1\These levels represent the highest concentration of each constituent
found in any one sample. These levels do not necessarily represent the
specific levels found in one sample.
< Denotes that the constituent was not detected at the concentration
specified in the table.
The verification testing program specified by the current exclusion
for Nissan requires leachate constituent analysis for the metal and
organic constituents. In addition, analysis for totals levels for each
of the metal constituents as well as cyanide is also currently
required.
B. How did EPA evaluate risk for the November 19, 2001, Nissan
petition and this proposed amendment?
In the rule proposed on November 19, 2001, and this proposed
amendment, EPA has determined the delisting levels for Nissan's F019
waste water treatment plant sludge based on the following: (1) EPA
Composite Model for Leachate Migration with Transformation Products
(EPACMTP model) as used in EPA, Region 6's Delisting Risk Assessment
Software (DRAS); (2) use of DRAS-calculated levels based on Safe
Drinking Water Act Maximum Contaminant Levels (MCLs) if more
conservative delisting levels would be obtained; (3) use of the
Multiple Extraction Procedure (MEP), SW-846 Method 1320, to evaluate
the long-term resistance of the waste to leaching in a landfill; (4)
setting limits on total concentrations of constituents in the waste.
[[Page 36549]]
C. What Conclusion Did EPA Reach?
EPA believes that the information provided by Nissan provides a
reasonable basis to grant Nissan's petition for an amendment to its
current delisting. We, therefore, propose to grant Nissan an amendment
for an increase in waste volume. The data submitted to support the
petition and the Agency's evaluation show that the constituents in the
Nissan wastewater treatment sludge filter cake are below health-based
levels used by the Agency for delisting decision-making even at the
increased maximum annual waste volume of 3500 cubic yards.
For this delisting determination, we used information gathered to
identify plausible exposure routes (i.e., groundwater, surface water,
air) for hazardous constituents present in the petitioned waste. We
determined that disposal in a Subtitle D landfill is the most
reasonable, worst-case disposal scenario for Nissan's petitioned waste.
We applied the Delisting Risk Assessment Software (DRAS) described
above to predict the maximum allowable concentrations of hazardous
constituents that may be released from the petitioned waste after
disposal, and we determined the potential impact of the disposal of
Nissan's petitioned waste on human health and the environment. In
assessing potential risks to groundwater, we used the increased maximum
waste volume and the maximum measured or calculated leachate
concentrations as inputs to the DRAS program to estimate the
constituent concentrations in the groundwater at a hypothetical
receptor well downgradient from the disposal site. Using an established
risk level, the DRAS program can back-calculate receptor well
concentrations (referred to as a compliance-point concentration) using
standard risk assessment algorithms and Agency health-based numbers.
EPA Region 4 generally defines acceptable risk levels for the
delisting program as wastes with an excess cancer risk of no more than
1 x 10-5 and a hazard quotient of no more than 1.0 for
individual constituents.
Using the maximum compliance-point concentrations and the EPACMTP
fate and transport modeling factors, the DRAS further back-calculates
the maximum waste constituent concentrations which would not exceed the
compliance-point concentrations in groundwater.
The Agency believes that the EPACMTP fate and transport model
represents a reasonable worst-case scenario for possible groundwater
contamination resulting from disposal of the petitioned waste in a
landfill and that a reasonable worst-case scenario is appropriate when
evaluating whether a waste should be relieved of the protective
management constraints of the RCRA Subtitle C program. The use of a
reasonable worst-case scenario results in conservative values for the
compliance-point concentrations and ensures that the waste, once
removed from hazardous waste regulation, will not pose a significant
threat to human health or the environment.
Similarly, the DRAS used the increased waste volume requested in
the petition and the maximum reported total concentrations to predict
possible risks associated with releases of waste constituents through
surface pathways (e.g., volatilization or wind-blown particulate from
the landfill). As in the groundwater analyses, the DRAS uses the
established acceptable risk level, the health-based data, and standard
risk assessment and exposure algorithms to predict maximum compliance-
point concentrations of waste constituents at a hypothetical point of
exposure. Using fate and transport equations, the DRAS uses the maximum
compliance-point concentrations and back-calculates the maximum
allowable waste constituent concentrations. In most cases, because a
delisted waste is no longer subject to hazardous waste control, the
Agency is generally unable to predict, and does not presently control,
how a petitioner will manage a waste after it is excluded. Therefore,
we believe that it is inappropriate to consider extensive site-specific
factors when applying the fate and transport model.
As a condition of Nissan's current delisting, Nissan must continue
to test for a list of verification constituents. Based on the increased
waste volume requested in the petition, new proposed maximum allowable
leachate concentrations and maximum allowable total constituent
concentrations (as explained below) for these constituents were derived
by back-calculating from the delisting health-based levels through the
proposed fate and transport model for a landfill management scenario.
The maximum allowable concentration of the verification constituents,
both in leachate and totals levels, were recalculated for each of the
current verification constituents. These concentration limits are shown
in Table 2 below.
Table 2.--Maximum Allowable Concentration of Constituents in Leachate or
in Waste \1\
------------------------------------------------------------------------
Maximum allowable Maximum allowable
leachate total
Constituent concentration concentration
(mg/l) (mg/kg)
------------------------------------------------------------------------
Barium............................ 1.00e+02 6.16e+07
Cadmium........................... 1.00e+00 6.43e+05
Chromium.......................... 5.00e+00 1.93e+09
Lead.............................. 5.00e+00 4.56e+05
Nickel............................ 6.07e+01 2.57e+07
Cyanide........................... 7.73e+00 2.57e+07
Bis(2-ethylhexyl)phthalate........ 6.01e-01 .................
[rho]-Cresol...................... 7.66e+00 .................
Di-n-octyl phthalate.............. 7.52e-02 .................
------------------------------------------------------------------------
\1\The term ``e'' in the table is a variation of ``scientific notation''
in base 10 exponential form and is used in this table because it is a
convenient way to represent very large or small numbers. For example,
3.00e-03 is equivalent to 3.00 x 10-\3\ and represents the number
0.003.
The Final Rule published in the Federal Register on June 21, 2002,
(67 FR 41287) included maximum allowable total concentration limits for
each of the inorganic constituents and cyanide for which Nissan would
be required to perform verification testing results. Upon a comparative
review of the maximum total constituent levels analyzed for as shown in
Table 1 to the maximum allowable levels of these constituents as
calculated by the DRAS model, EPA is proposing to remove the
requirement from the June 21, 2002, Final Rule which requires Nissan to
[[Page 36550]]
analyze its verification samples for the currently specified total
values. This proposal is being made based upon a comparison made by EPA
between the results of such totals analysis shown in Table 1 as
compared to the totals levels calculated for these constituents by the
DRAS model in Table 2. The maximum allowable verification levels for
total constituent levels shown in Table 2 are in excess of an order of
magnitude of three (10\3\) times greater than the results of the sample
analysis performed by Nissan for totals values shown in Table 1.
III. Conditions for Exclusion
A. What Are the Maximum Allowable Concentrations of Hazardous
Constituents?
The following table (Table 3) summarizes the maximum allowable
constituent concentrations (delisting levels) which EPA is proposing
for Nissan's waste. We recalculated these delisting levels for each
constituent that is part of Nissan's current delisting using the DRAS
and the increased maximum annual waste volume of 3500 cubic yards.
These proposed delisting levels were derived from the health-based
calculations performed by the DRAS program using either strict health-
based levels or MCLs, or from Toxicity Characteristic regulatory
levels, whichever resulted in a lower (i.e., more conservative)
concentration.
Table 3.--Maximum Allowable Concentration of Constituents in Leachate or
in Waste \1\
------------------------------------------------------------------------
Maximum allowable
leachate
Constituent concentration
(mg/l)
------------------------------------------------------------------------
Barium............................................... 1.00e+02
Cadmium.............................................. 1.00e+00
Chromium............................................. 5.00e+00
Lead................................................. 5.00e+00
Nickel............................................... 6.07e+01
Cyanide.............................................. 7.73e+00
Bis(2-ethylhexyl)phthalate........................... 6.01e-01
[rho]-Cresol......................................... 7.66e+00
Di-n-octyl phthalate................................. 7.52e-02
------------------------------------------------------------------------
\1\The term ``e'' in the table is a variation of ``scientific notation''
in base 10 exponential form and is used in this table because it is a
convenient way to represent very large or small numbers. For example,
3.00e-03 is equivalent to 3.00 X 10-\3\ and represents the number
0.003.
The current maximum allowable constituent concentrations (delisting
levels) for Nissan as found in 40 CFR 261 Appendix IX, Table 1, are
specified as leachate concentrations for inorganic and organic
constituents and cyanide, and as total constituent concentrations for
inorganic constituents for reasons set forth previously in the Proposed
Rule published in the Federal Register on November 19, 2001 (223 FR
57918).
B. How Frequently Must Nissan Test the Waste and How Must It Be Managed
Until It Is Disposed?
Nissan must continue to test and manage its waste according to the
conditions set forth in its current delisting. We are not proposing in
this amendment to change the method of sample collection, the frequency
of sample analyses or the waste holding procedures currently specified
in EPA's final decision in the Federal Register on June 21, 2002, (67
FR 41287), except the total constituent analyses, which no longer will
be required.
C. What Must Nissan Do If the Process Changes?
We are not proposing to change the conditions regarding process
changes as set forth in EPA's final decision in the Federal Register on
June 21, 2002, (67 FR 41287).
D. What Data Must Nissan Submit?
We are not proposing to change the data Nissan is required to
submit as specified in EPA's final decision in the Federal Register on
June 21, 2002, (67 FR 41287).
E. What Happens If Nissan Fails to Meet the Conditions of the
Exclusion?
We are not proposing to change the reopener language Nissan is
required to comply with as specified in EPA's final decision in the
Federal Register on June 21, 2002, (67 FR 41287).
IV. Effect on State Authorizations
This proposed amendment, if promulgated, would be issued under the
Federal RCRA delisting program. States, however, may impose more
stringent regulatory requirements than EPA 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 State.
Because a petitioner's waste may be regulated under a dual system
(i.e., both Federal (RCRA) and State (RCRA) or State (non-RCRA)
programs), petitioners are urged to contact State 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 amendment, if
promulgated, may not apply in those authorized States, unless it is
adopted by the State. If the petitioned waste is managed in any State
with delisting authorization, Nissan must obtain delisting
authorization from that State before the waste may be managed as
nonhazardous in that State.
V. Effective Date
EPA is today making a tentative decision to grant Nissan's petition
for amendment. This proposed rule, if made final, will become effective
immediately upon such 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 a facility generating hazardous wastes. 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
[[Page 36551]]
immediately upon final publication. These reasons also provide a basis
for making this rule effective immediately, upon final publication,
under the Administrative Procedures Act, 5 U.S.C. 553(d).
VI. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a rule of general applicability and therefore is not a
``regulatory action'' subject to review by the Office of Management and
Budget. Because this action is a rule of particular applicability
relating to a particular facility, it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), or to sections 202, 203, and 205 of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because the rule will affect
only one facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA, or communities of
Indian tribal governments, as specified in Executive Order 13175 (65 FR
67249, November 6, 2000). For the same reason, this rule 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 the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This
rule also is not subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is not economically significant.
This rule does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in
issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
VII. Public Comments
A. How May I as an Interested Party Submit Comments?
The EPA is requesting public comments on this proposed decision.
Please send three copies of your comments. Send two copies to the
Chief, North Section, RCRA Enforcement and Compliance Branch, U.S.
Environmental Protection Agency Region 4, Atlanta Federal Center, 61
Forsyth Street SW., Atlanta, Georgia 30303. Send a third copy to Mr.
Mike Apple, Director, Division of Solid Waste Management, Tennessee
Department of Environment and Conservation, 5th Floor, L&C Tower, 401
Church Street, Nashville, Tennessee 37243-1535. You should identify
your comments at the top with this regulatory docket number: R$DLP-
0401-Nissan.
You should submit requests for a hearing to Narrindar M. Kumar,
Chief, RCRA Enforcement and Compliance Branch, Waste Division, U.S.
Environmental Protection Agency Region 4, Atlanta Federal Center, 61
Forsyth Street SW., Atlanta, Georgia 30303.
B. How May I Review the Docket or Obtain Copies of the Proposed
Exclusion?
You may review the RCRA regulatory docket for this proposed rule at
the U.S. Environmental Protection Agency Region 4, Atlanta Federal
Center, 61 Forsyth Street SW., Atlanta, Georgia 30303.
It is available for viewing in the EPA Freedom of Information Act
Review Room from 9 a.m. to 4 p.m., Monday through Friday, excluding
Federal holidays. Call (404) 562-8614 for appointments. The public may
copy material from any regulatory docket at no cost for the first 100
pages, and at fifteen cents per page for additional copies.
VIII. Regulatory Impact
Under Executive Order 12866, the EPA must conduct an ``assessment
of the potential costs and benefits'' for all ``significant''
regulatory actions.
The proposal to grant an exclusion is not significant, since its
effect, if promulgated, would be to reduce the overall costs and
economic impact of the EPA's hazardous waste management regulations.
This reduction would be achieved by excluding waste generated at a
specific facility from the EPA's lists of hazardous wastes, thus
enabling a facility to manage its waste as nonhazardous.
Because there is no additional impact from this proposed rule, 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.
IX. Regulatory Flexibility Act
Under 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 (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 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
the EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, the EPA hereby certifies that this proposed
regulation, if promulgated, will not have a significant economic impact
on a substantial number of small entities. Therefore, this regulation
does not require a regulatory flexibility analysis.
X. Paperwork Reduction Act
Information collection and recordkeeping 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 (Pub. L. 96 511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050 0053.
XI. 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,
the 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 the EPA rules under section
205 of the UMRA, the EPA must identify and consider alternatives. The
alternatives must include the least costly, most cost-effective, or
least burdensome alternative that achieves the objectives of the rule.
The 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 the EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must develop under section 203 of the UMRA
[[Page 36552]]
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 the EPA's 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 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 decision does not establish any regulatory requirements for
small governments and so does not require a small government agency
plan under UMRA section 203.
XII. 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 the 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 EPA 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 EPA. This proposed rule is not
subject to Executive Order 13045 because this is not an economically
significant regulatory action as defined by Executive Order 12866.
XIII. Executive Order 13084
Because this action does not involve any requirements that affect
Indian Tribes, the requirements of section 3(b) of Executive Order
13084 do not apply. Under Executive Order 13084, the 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, the EPA must provide to the Office
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of the 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 the EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments to have ``meaningful and timely input'' in
the development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. This
action does not involve or impose any requirements that affect Indian
Tribes. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
XIV. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, the EPA 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 the EPA, the Act requires that the EPA
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 EPA has no need to consider the use of voluntary consensus
standards in developing this final rule.
XV. Executive Order 13132 Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires the 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'' are 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, the EPA may not issue a
regulation that has federalism implications, that imposes 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 the 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 EPA 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.
Authority: Section 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: June 9, 2005.
Jon D. Johnston,
Acting Director, Waste Management Division, Region 4.
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
wastestream in alphabetical order by facility to read as follows:
Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22.
[[Page 36553]]
Table 1.--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * * *
Nissan North America, Inc......... Smyrna, Tennessee................. Wastewater treatment sludge (EPA
Hazardous Waste No. F019) that Nissan
North America, Inc. (Nissan) generates
by treating wastewater from the
automobile assembly plant located at
983 Nissan Drive in Smyrna, Tennessee.
This is a conditional exclusion for up
to 3,500 cubic yards of waste
(hereinafter referred to as ``Nissan
Sludge'') that will be generated each
year and disposed in a Subtitle D
landfill after [Publication Date of the
Final Rule]. Nissan must continue to
demonstrate that the following
conditions are met for the exclusion to
be valid.
(1) Delisting Levels: All leachable
concentrations for these metals,
cyanide, and organic constituents must
not exceed the following levels (ppm):
Barium--100.0; Cadmium--0.422;
Chromium--5.0; Cyanide--7.73, Lead--
5.0; and Nickel--60.7; Bis--(2-
ethylhexyl) phthalate--0.601; Di-n-
octyl phthalate--0.0752; and 4-
Methylphenol--7.66. These
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) 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 Nissan
Sludge meet the delisting levels in
Condition (1). Nissan must perform an
annual testing program to demonstrate
that the constituent concentrations
measured in the TCLP extract do not
exceed the delisting levels established
in Condition (1).
If the levels of constituents measured
in Nissan's annual testing program do
not exceed the levels set forth in
Condition (1), then the Nissan 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 Nissan
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:
Nissan 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 Nissan
in writing that the Nissan Sludge must
be managed as hazardous waste F019
until Nissan 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 Nissan has
received written approval from EPA. If
EPA determines that the changes do not
result in additional constituents of
concern, EPA will notify Nissan, in
writing, that Nissan must verify that
the Nissan Sludge continues to meet
Condition (1) delisting levels.
(5) Data Submittals: Data obtained in
accordance with Condition (2) must be
submitted to Narindar M. Kumar, Chief,
RCRA Enforcement and Compliance Branch,
Mail Code: 4WD-RCRA, U.S. EPA, Region
4, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, SW., Atlanta, Georgia
30303. The submission is due no later
than 60 days after taking each annual
verification samples in accordance with
delisting Conditions (1) through (7).
Records of analytical data from
Condition (2) must be compiled,
summarized, and maintained by Nissan
for a minimum of three years, and must
be furnished upon request by EPA or the
State of Tennessee, and made available
for inspection. Failure to submit the
required data within the specified time
period or 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 36554]]
(6) Reopener Language: (A) If, at any
time after disposal of the delisted
waste, Nissan 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, Nissan
must report the data, in writing, to
EPA 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)(B), does not
meet the delisting requirements of
Condition (1), Nissan must report the
data, in writing, to EPA 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 Nissan with an
opportunity to present information as
to why the proposed action is not
necessary. Nissan shall have 10 days
from the date of EPA's notice to
present such information.
(E) Following the receipt of information
from Nissan, 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: Nissan
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. 05-12579 Filed 6-23-05; 8:45 am]
BILLING CODE 6560-50-P