Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Amendment, 36547-36554 [05-12579]
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Federal Register / Vol. 70, No. 121 / Friday, June 24, 2005 / Proposed Rules
Please note that if EPA receives
adverse comment on an amendment,
paragraph, or section of this rule and if
that provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment.
Dated: June 15, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05–12582 Filed 6–23–05; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[SW–FRL–7925–2]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Proposed
Amendment
Environmental Protection
Agency.
ACTION: Proposed amendment and
request for comment.
AGENCY:
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).
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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:
ADDRESSES:
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?
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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
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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
Inorganic constituents
Total constituent
concentration
(mg/kg)
Barium ......................................................................................................................................................
Cadmium ..................................................................................................................................................
Chromium ................................................................................................................................................
Lead .........................................................................................................................................................
Nickel .......................................................................................................................................................
4-Methyl-phenol (r-cresol) .......................................................................................................................
Bis (2-ethylhexyl) phthalate .....................................................................................................................
Di-n-octyl phthalate ..................................................................................................................................
Cyanide ....................................................................................................................................................
6600.0
6.0
160.00
390.0
4600
................................
................................
................................
3.2
TCLP leachate
concentration
(mg/l)
0.18
<0.010
<0.050
<0.0050
<0.050
0.31
<0.050
<0.050
0.0095
1These 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?
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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 DRAScalculated levels based on Safe Drinking
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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.
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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 × 10¥5 and a
hazard quotient of no more than 1.0 for
individual constituents.
Using the maximum compliancepoint 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 sitespecific 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 leachate
concentration
(mg/l)
Constituent
Barium ..........................................................................................................................................................
Cadmium ......................................................................................................................................................
Chromium ....................................................................................................................................................
Lead .............................................................................................................................................................
Nickel ...........................................................................................................................................................
Cyanide ........................................................................................................................................................
Bis(2-ethylhexyl)phthalate ............................................................................................................................
r-Cresol .......................................................................................................................................................
Di-n-octyl phthalate ......................................................................................................................................
1.00e+02
1.00e+00
5.00e+00
5.00e+00
6.07e+01
7.73e+00
6.01e¥01
7.66e+00
7.52e¥02
Maximum allowable total
concentration
(mg/kg)
6.16e+07
6.43e+05
1.93e+09
4.56e+05
2.57e+07
2.57e+07
..............................
..............................
..............................
1The 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 × 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
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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
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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
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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 (103) 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 healthbased 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
concentration
(mg/l)
Constituent
Barium ............................................................................................................................................................................................
Cadmium ........................................................................................................................................................................................
Chromium ......................................................................................................................................................................................
Lead ...............................................................................................................................................................................................
Nickel .............................................................................................................................................................................................
Cyanide ..........................................................................................................................................................................................
Bis(2-ethylhexyl)phthalate ..............................................................................................................................................................
r-Cresol .........................................................................................................................................................................................
Di-n-octyl phthalate ........................................................................................................................................................................
1.00e+02
1.00e+00
5.00e+00
5.00e+00
6.07e+01
7.73e+00
6.01e¥01
7.66e+00
7.52e¥02
1The 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).
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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
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(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
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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,
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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.
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36551
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 costeffective, 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
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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
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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
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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.
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36553
TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES
Facility
*
Nissan North America, Inc
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Address
Waste description
*
*
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).
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Federal Register / Vol. 70, No. 121 / Friday, June 24, 2005 / Proposed Rules
TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
Address
Waste description
(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.
*
*
*
[FR Doc. 05–12579 Filed 6–23–05; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Office of Inspector General
45 CFR Part 61
RIN 0906–AA46
Office of the Secretary, Health Care
Fraud and Abuse Data Collection
Program: Reporting of Final Adverse
Actions; Correction
Office of Inspector General
(OIG), HHS.
ACTION: Proposed correction
amendment.
AGENCY:
SUMMARY: This document proposes a
correction to the final regulations,
which were published in the Federal
Register on October 26, 1999 (64 FR
57740). These regulations established a
national health care fraud and abuse
data collection program for the reporting
and disclosing of certain adverse actions
taken against health care providers,
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*
*
suppliers and practitioners, and for
maintaining a data base of final adverse
actions taken against health care
providers, suppliers and practitioners.
An inadvertent error appeared in the
text of the regulations concerning the
definition of the term ‘‘any other
negative action or finding.’’ As a result,
we are proposing to correct 45 CFR 61.3,
Definitions, to assure the technical
correctness of these regulations.
DATES: To assure consideration, public
comments must be mailed and delivered
to the address provided below by no
later than 5 p.m., July 25, 2005.
ADDRESSES: Please mail or deliver your
written comments to the following
address: Department of Health and
Human Services, Office of Inspector
General, Attention: OIG–46–CA2, 330
Independence Avenue, SW., Room
5246, Washington, DC 20201.
FOR FURTHER INFORMATION CONTACT: Joel
Schaer, OIG Regulations Officer Office
of External Affairs, (202) 619–0089.
SUPPLEMENTARY INFORMATION: The HHS
Office of Inspector General (OIG) issued
final regulations on October 26, 1999
(64 FR 57740) that established a
national health care fraud and abuse
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*
*
data collection program—the Healthcare
Integrity and Protection Data Bank
(HIPDB)—for the reporting and
disclosing of certain final adverse
actions taken against health care
providers, suppliers and practitioners,
and for maintaining a data base of final
adverse actions taken against health care
providers, suppliers and practitioners.
The final rule established a new 45 CFR
part 61 to implement the requirements
for reporting of specific data elements
to, and procedures for obtaining
information from, the HIPDB. In that
final rule, an inadvertent error appeared
in § 61.3—the definitions section of the
regulations—and is now being proposed
for correction.
Section 61.3 expanded on previous
regulatory definitions and provided
additional examples of the scope of
various terms set fort in the statute. On
page 57755 of the preamble,
summarizing the various revisions being
made to the final rule, we indicated that
with respect to the definition for the
term ‘‘any other negative action or
finding’’ there are certain kinds of
actions or findings that would not meet
the intent of the statute and not be
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]]>Agencies
[Federal Register Volume 70, Number 121 (Friday, June 24, 2005)]
[Proposed Rules]
[Pages 36547-36554]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12579]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
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
