Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion, 54760-54770 [E8-21227]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Proposed Rules]
[Pages 54760-54770]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21227]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2008-0456; SW FRL-8713-2]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: EPA is proposing to grant a petition submitted by BAE Systems, 
Inc. (BAE) to exclude (or delist) a certain solid waste generated by 
its Sealy, Texas, facility from the lists of hazardous wastes. EPA used 
the Delisting Risk Assessment Software (DRAS) Version 3.0 in the 
evaluation of the impact of the petitioned waste on human health and 
the environment.

DATES: We will accept comments until October 23, 2008. We will stamp 
comments received after the close of the comment period as late. These 
late comments may not be considered in formulating a final decision. 
Your requests for a hearing must reach EPA by October 8, 2008. The 
request must contain the information prescribed in 40 CFR 260.20(d) 
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2008-0456 by one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov: Follow 
the on-line instructions for submitting comments.
    2. E-mail: jacques.wendy@epa.gov.
    3. Mail: Wendy Jacques, Environmental Protection Agency, Multimedia 
Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-F, 1445 
Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier: Deliver your comments to: Wendy 
Jacques, Environmental Protection Agency, Multimedia Planning and 
Permitting Division, RCRA Branch, Mail Code: 6PD-F, 1445 Ross Avenue, 
Dallas, TX 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2008-0456. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://
www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment.

[[Page 54761]]

Electronic files should avoid the use of special characters, any form 
of encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The 
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2008-0456, is available for viewing from 8 a.m. to 5 p.m., Monday 
through Friday, excluding Federal holidays. The public may copy 
material from any regulatory docket at no cost for the first 100 pages 
and at a cost of $0.15 per page for additional copies. EPA requests 
that you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The interested persons 
wanting to examine these documents should make an appointment with the 
office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: For further technical information 
concerning this document or for appointments to view the docket or the 
BAE facility petition, contact Wendy Jacques, Environmental Protection 
Agency, Multimedia Planning and Permitting Division, RCRA Branch, Mail 
Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by calling 214-665-
7395 or by e-mail at jacques.wendy@epa.gov.

SUPPLEMENTARY INFORMATION: BAE submitted a petition under 40 CFR 260.20 
and 260.22(a). Section 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of Sec. Sec.  260 
through 266, 268 and 273. Section 260.22(a) specifically provides 
generators the opportunity to petition the Administrator to exclude a 
waste on a ``generator specific'' basis from the hazardous waste lists.
    The Agency bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would conditionally exclude the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA).
    If finalized, we would conclude the petitioned waste from this 
facility is non-hazardous with respect to the original listing criteria 
and that the waste process used will substantially reduce the 
likelihood of migration of hazardous constituents from this waste. We 
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the 
environment. The information in this section is organized as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will BAE manage the waste, if it is delisted?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did BAE petition EPA to delist?
    B. Who is BAE and what process do they use to generate the 
petitioned waste?
    C. What information did BAE submit to support this petition?
    D. What were the results of BAE's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What changes have been made to the DRAS model?
    G. What did EPA conclude about BAE's analysis?
    H. What other factors did EPA consider in its evaluation?
    I. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if BAE violates the terms and conditions?
V. 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 
exclusion?
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA proposing?

    EPA is proposing to grant the delisting petition submitted by BAE 
to have its waste filter cake (F019 listed hazardous waste) excluded, 
or delisted, from the definition of a hazardous waste.

B. Why is EPA proposing to approve this delisting?

    BAE's petition requests a delisting for the waste filter cake 
derived from the treatment of hazardous waste water listed as F019. BAE 
does not believe that the petitioned waste meets the criteria for which 
EPA listed it. BAE also believes no additional constituents or factors 
could cause the waste to be hazardous. EPA's review of this petition 
included consideration of the original listing criteria, and the 
additional factors required by the Hazardous and Solid Waste Amendments 
of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 
CFR 260.22(d)(1)-(4). In making the initial delisting determination, 
EPA evaluated the petitioned waste against the listing criteria and 
factors cited in Sec. Sec.  261.11(a)(2) and (a)(3). Based on this 
review, EPA agrees with the petitioner that the waste is non-hazardous 
with respect to the original listing criteria. If EPA had found, based 
on this review, that the waste remained hazardous based on the factors 
for which the waste was originally listed, EPA would have proposed to 
deny the petition. EPA evaluated the waste with respect to other 
factors or criteria to assess whether there is a reasonable basis to 
believe that such additional factors could cause the waste to be 
hazardous. EPA considered whether the waste is acutely toxic, the 
concentration of the constituents in the waste, their tendency to 
migrate and to bioaccumulate, their persistence in the environment once 
released from the waste, plausible and specific types of management of 
the petitioned waste, the quantities of waste generated, and waste 
variability. EPA believes that the petitioned waste does not meet the 
listing criteria and thus should not be a listed waste. EPA's proposed 
decision to delist waste from the facility is based on the information 
submitted in support of this rule, including descriptions of the waste 
and analytical data from the BAE, Sealy, Texas facility.

C. How will BAE manage the waste, if it is delisted?

    BAE will dispose of the waste filter cake in a Subtitle D landfill. 
The Subtitle D landfill should be permitted or approved by a State 
regulatory agency.

D. When would the proposed delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide notice 
and an opportunity for comment before granting or denying a final 
exclusion.

[[Page 54762]]

Thus, EPA will not grant the exclusion unless and until it addresses 
all timely public comments (including those at public hearings, if any) 
on this proposal.
    RCRA section 3010(b)(1), at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months after EPA addresses public 
comments when the regulated facility 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 persons 
generating hazardous wastes.
    EPA believes that this exclusion should be effective immediately 
upon final publication because a six-month deadline is not necessary to 
achieve the purpose of section 3010(b), and a later effective date 
would impose unnecessary hardship and expense on this petitioner. These 
reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How would this action affect the states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from EPA to make their own delisting decisions 
(e.g., Oklahoma, Louisiana, etc.).
    EPA allows the states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the state. Because a dual system (that is, both Federal 
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the state regulatory authority 
to establish the status of their wastes under the state law. Delisting 
petitions approved by EPA Administrator or his designee under Sec.  
260.22 are effective in the State of Texas only after the final rule 
has been published in the Federal Register.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list 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. EPA has 
amended this list several times and published it in Sec. Sec.  261.31 
and 261.32. EPA lists 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 part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet 
the criteria for listing contained in Sec. Sec.  261.11(a)(2) or 
(a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations generally is hazardous, a specific waste 
from an individual facility meeting the listing description may not be 
hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

B. What is a delisting petition, and what does it require of a 
petitioner?

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude wastes from the list of hazardous wastes. 
The facility petitions EPA because it does not believe the wastes 
should be hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which EPA lists a waste 
are in part 261 and further explained in the background documents for 
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics and 
present sufficient information for EPA to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste. See part 261 and the background documents for the 
listed waste.
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

C. What factors must EPA consider in deciding whether to grant a 
delisting petition?

    Besides considering the criteria in Sec.  260.22(a) and section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for 
the listed wastes, EPA must consider any factors (including additional 
constituents) other than those for which EPA listed the waste, if a 
reasonable basis exists to determine that these additional factors 
could cause the waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec. Sec.  261.3(a)(2)(iii) 
and (iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' 
rules, respectively. These wastes are also eligible for exclusion and 
remain hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

III. EPA's Evaluation of the Waste Information and Data

A. What waste did BAE petition EPA to delist?

    BAE petitioned EPA on December 23, 2005, to exclude from the lists 
of hazardous waste contained in Sec.  261.31, the waste filter cake 
from its waste water treatment plant.
    The waste filter cake is generated from the BAE facility located in 
Sealy, Texas. The waste filter cake is listed under EPA Hazardous Waste 
No. F019, because it is derived from the chemical conversion coating of 
aluminum except from zirconium phosphating in aluminum can washing when 
such phosphating is an exclusive conversion coating process. 
Specifically, in its petition, BAE requested that EPA grant exclusion 
for 1,200 cubic yards per calendar year of F019 waste resulting from 
the treatment of waste waters from the manufacturing processes at its 
facility.

B. Who is BAE and what process do they use to generate the petitioned 
waste?

    BAE manufactures trucks for the U.S. Army. Manufacturing consists 
of machining, cutting, welding, metal prep and priming, painting, 
assembly and final prep. Wastewater is treated and discharged to waters 
of the United States through permitted outfalls.
    BAE's preprocess steps include fabrication and surface preparation 
and coating. The waste stream is a by-product of one main manufacturing 
process consisting of five process lines; Steel E-Coat (E-Coat 1 and E-
Coat 2), Small Parts Steel E-Coat, Long-Term Armored Survivability 
(LTAS) and Small Parts Aluminum E-Coat. The waste generated is a solid 
by-product of BAE's wastewater treatment system.
    BAE intends to dispose of the delisted waste filter cake at a 
Subtitle D Landfill. Treatment of the waste waters, which result from 
the manufacturing process generates the waste filter cake that is 
classified as F019 listed hazardous wastes pursuant to Sec.  261.31. 
The 40 CFR

[[Page 54763]]

part 261, Appendix VII hazardous constituents, which are the basis for 
listing F019 hazardous wastes are: hexavalent chromium and cyanide.

C. What information did BAE submit to support this petition?

    To support its petition, BAE submitted:
    (1) Analytical results of the toxicity characteristic leaching 
procedure and total constituent analysis for volatile and semivolatile 
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for 
seven filter cake samples;
    (2) Analytical results from multiple pH leaching of metals; and
    (3) Description of the waste water treatment process.

D. What were the results of BAE's analysis?

    EPA believes that the descriptions of BAE's waste, and the 
analytical data submitted in support of the petition show that the 
filter cake is non-hazardous. Analytical data from BAE's filter cake 
samples were used in the DRAS program. The data summaries for detected 
constituents are presented in Table 1. EPA has reviewed the sampling 
procedures used by BAE and has determined that they satisfy EPA's 
criteria for collecting representative samples of the variations in 
constituent concentrations in the filter cake. The data submitted in 
support of the petition show that constituents in BAE's wastes are 
presently below health-based risk levels used in the delisting 
decision-making. EPA believes that BAE has successfully demonstrated 
that the filter cake is non-hazardous.

        Table 1--Analytical Results and Maximum Allowable Delisting Concentrations of the Filter Cake \1\
----------------------------------------------------------------------------------------------------------------
                                                                                                      Maximum
                                                                   Maximum total   Maximum TCLP   allowable TCLP
                           Constituent                                (mg/kg)         (mg/l)         delisting
                                                                                                   level  (mg/L)
----------------------------------------------------------------------------------------------------------------
Acetone.........................................................             3.8            <.50            3211
Arsenic.........................................................            2.69           .0108            .052
Barium..........................................................            47.5           .0148             100
Bis(2-ethylhexyl)phthalate......................................             2.3            .010             103
Cadmium.........................................................            2.93           .0500            .561
Chloroform......................................................            .013           <.010           .4924
Chromium........................................................            2740            1.82            5.00
Copper..........................................................            99.2            .371             149
Cyanide.........................................................            2.06            .065              19
Furans..........................................................       .00000893     .0000000536            3.57
Hexavalent Chromium.............................................           <2.00           .0253               5
Lead............................................................            21.2          <.0500            3.57
Lindane.........................................................          <.0017          .00011              .4
Methyl Ethyl Ketone.............................................            .034            <.20             200
Nickel..........................................................            6860           .0235            82.2
Selenium........................................................           <.806            .144               1
2,4,5,-TP (Silvex)..............................................             .77           .0061               1
2,4-D...........................................................           .0050           .0078            6.65
Tin.............................................................             319            .162            9001
Tetrachlorodibenzo-p-dioxins....................................        .0000716     .0000000134             249
Tetrachloroethylene.............................................            .020            <.10         .125685
Zinc............................................................            3190             .81           1240
----------------------------------------------------------------------------------------------------------------
\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 below the detection limit.

E. How did EPA evaluate the risk of delisting this waste?

    The worst case scenario for management of the sludge was modeled 
for disposal in a landfill. EPA used such information gathered to 
identify plausible exposure routes (i.e., ground water, surface water, 
soil, air) for hazardous constituents present in the sludge. EPA 
determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for the wastes. In assessing 
potential risks to ground water, EPA used the maximum estimated waste 
volumes and the maximum reported extract concentrations as inputs to 
the DRAS program to estimate the constituent concentrations in the 
ground water at a hypothetical receptor well down gradient from the 
disposal site. Using the risk level (carcinogenic risk of 
10-5 and non-cancer hazard index of 0.1), the DRAS program 
can back-calculate the acceptable receptor well concentrations 
(referred to as compliance-point concentrations) using standard risk 
assessment algorithms and Agency health-based numbers. Using the 
maximum compliance-point concentrations and EPA Composite Model for 
Leachate Migration with Transformation Products (EPACMTP) fate and 
transport modeling factors, the DRAS further back-calculates the 
maximum permissible waste constituent concentrations not expected to 
exceed the compliance-point concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water 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 
RCRA Subtitle C. The use of some reasonable worst-case scenarios 
resulted in conservative values for the compliance-point concentrations 
and ensured that the waste, once removed from hazardous waste 
regulation, will not pose a significant threat to human health and/or 
the environment. The DRAS also uses the maximum estimated waste volumes 
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 above ground water analyses, the DRAS uses the risk level, the 
health-

[[Page 54764]]

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 (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed.
    EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, the 
facilities have never directly disposed of this material in a solid 
waste landfill, so no representative data exists. Therefore, EPA has 
determined that it would be unnecessary to request ground water 
monitoring data.
    EPA believes that the descriptions of the wastes and analytical 
characterization which illustrate the presence of toxic constituents at 
lower concentrations in these waste streams provide a reasonable basis 
to conclude that the likelihood of migration of hazardous constituents 
from the petitioned waste will be substantially reduced so that short-
term and long-term threats to human health and the environment are 
minimized.
    The DRAS results, which calculated the maximum allowable 
concentration of chemical constituents of the filter cake are presented 
in Table 1. Based on the comparison of the DRAS results and maximum 
TCLP concentrations found in Table 1, the petitioned waste should be 
delisted because no constituents of concern are likely to be present or 
formed as reaction products or by-products in BAE's waste.

F. What changes have been made to the DRAS model?

    Since 2004, U.S. EPA has been preparing an update of the Delisting 
Risk Assessment Software (DRAS) Version 2.0. The updates will be 
released as DRAS version 3.0. The update addresses a number of issues 
with version 2 and improved the fate and transport modeling.
    To estimate the downgradient concentrations of waste leachate 
constituents released into groundwater, the DRAS utilizes conservative 
dilution-attenuation factors (DAFs) taken from Monte-Carlo applications 
of U.S. EPA's Composite Model for Leachate Migration with 
Transformation Products (CMTP). DRAS 3.0 includes all new DAFs from new 
CMTP modeling runs. The new modeling takes advantage of: updated 
saturated flow and transport modules; a new surface impoundment module 
and database; model corrections for unrealistic scenarios (like water 
tables modeled above the ground surface); new isotherms for metals; and 
a revised recharge and infiltration database. As a result, many of the 
DAFs used in previous versions of DRAS have changed. Further affecting 
the groundwater calculation, the relationships for determining scaling 
factors used to scale the DAFs to account for very small waste streams 
have been updated to reflect the new database information on landfills 
and surface impoundments and were also corrected for a metric 
conversion of cubic meters to cubic yards. The new scaling factors are 
generally higher than those of previous versions of DRAS, resulting in 
higher estimated dilution and attenuation at lower waste volumes for 
both landfills and surface impoundments.
    The new metals DAFs, based on MINTEQA2 isotherms, can vary as a 
function of the landfill leachate concentration. This means that the 
effective DAF (including a scaling factor adjustment, if necessary) for 
an input concentration may differ significantly with the effective DAF 
that corresponds to the allowable leachate concentration. DRAS 3.0 now 
displays the DAFs in both the forward calculated risk tables and the 
tables of maximum allowable concentrations so that the difference is 
evident to the user. The isotherms that vary by leachate concentration 
are represented in DRAS by a look-up table with leachate concentrations 
paired with DAFs. In the event that an actual concentration input to 
DRAS lies between two values in the table, or an allowable receptor 
concentration lies between two calculated receptor concentrations from 
the table, DRAS 3.0 will linearly and proportionally extrapolate 
between the two values to determine the corresponding exposure or 
allowable leachate concentration.
    EPA changed the calculation for particle emissions caused by 
vehicles driving over the waste at the landfill to provide a more 
realistic estimate. The estimate depends upon the number of trips per 
day landfill vehicles make back and forth over the waste. In previous 
versions of DRAS, this value was conservatively set at 100 trips per 
day, corresponding with an extremely high annual waste volume. In DRAS 
3.0, a minimum number of trips per day was conservatively assumed from 
the Subtitle D landfill survey (7.4 trips per day at the 95th 
percentile of values reported). The number of trips per day specific to 
the actual waste volume is then added to the minimum to reflect the 
impact of very large waste streams. This will considerably reduce the 
particle emission estimate for wastes generated at all but the largest 
annual volumes.
    EPA added a conversion from English to metric tons to the 
calculation of particle emissions from waste unloading, resulting in a 
decrease of roughly 10% over previous versions of DRAS. We also made a 
unit-conversion factor correction to part of the air-volatile pathway 
which will reduce the impact to the receptor.
    An error in the back-calculation for fish ingestion pathway was 
corrected to reflect the difference between freely dissolved and total 
water column waste constituent concentrations.
    For the estimation of risk and hazard, we made a number of updates 
to the forward and back calculations. Previous versions of DRAS assumed 
that only 12.5% of particles are absorbed by the receptor's respiratory 
system. This is no longer necessary as toxicity reference values for 
inhalation currently recommended by U.S. EPA relate risk or hazard 
directly to exposure concentration. DRAS 3.0 does not include the 12.5% 
reduction. This change significantly increases estimated risks due to 
particle inhalation and lowers corresponding allowable concentrations.
    DRAS Version 3.0 has a reformulated back calculation of the 
allowable leachate concentrations from exposure due to contaminants 
volatilized during household water use to match the forward calculation 
of risk. In previous versions of DRAS, the forward calculation summed 
the risks from exposure to all three evaluated household compartments 
(the shower, the bathroom, and the whole house) while the back 
calculation based the maximum allowable level on the single most 
conservative compartment. The DRAS 3.0 maximum allowable leachate 
concentrations are now based on the combined impact of all three 
compartments. The house exposure was also expanded to a 900 minute (15 
hour) daily exposure to reflect non-working residents who have an 
overall 16 hour in-house exposure (the other 1 hour is spent in the 
shower and bathroom).
    EPA resolved the inconsistencies with the way DRAS chooses limiting

[[Page 54765]]

pathways for specific waste constituents in DRAS 3.0.
    EPA checked all toxicity reference values in DRAS and updated where 
necessary. Approximately 180 changes were made to the toxicity 
reference values in DRAS based on data in IRIS, PPRTV, HEAST, NCEA, 
CalEPA and other sources. Some route-to-route extrapolations of oral 
toxicity data to inhalation exposure have been returned to DRAS 3.0 is 
consistent with Agency policy. See the Delisting Technical Support 
Document for full accounting of this methodology. The same reference 
also includes discussions of toxicity reference choices where the 
multiple values were available or where the toxicity reference values 
were specific to particular species of constituents.
    The DRAS results, which calculated the maximum allowable 
concentration of chemical constituents in the filter cake are presented 
in Table 1. Based on the comparison of the DRAS results and maximum 
TCLP concentrations found in Table 1, the petitioned waste should be 
delisted because no constituents of concern are likely to be present or 
formed as reaction products or by-products in BAE's waste.

G. What did EPA conclude about BAE's analysis?

    EPA concluded, after reviewing BAE's processes that no other 
hazardous constituents of concern, other than those for which BAE 
tested, are likely to be present or formed as reaction products or by-
products in BAE's wastes. In addition, on the basis of explanations and 
analytical data provided by BAE, pursuant to Sec.  260.22, EPA 
concludes that the petitioned waste, filter cake, does not exhibit any 
of the characteristics of ignitability, corrosivity, reactivity, or 
toxicity. See Sec. Sec.  261.21, 261.22, 261.23, and 261.24, 
respectively.

H. What other factors did EPA consider in its evaluation?

    During the evaluation of this petition, in addition to the 
potential impacts to the ground water, EPA also considered the 
potential impact of the petitioned waste via non-ground water exposure 
routes (i.e., air emissions and surface runoff) for the filter cake. 
With regard to airborne dispersion in particular, EPA believes that 
exposure to airborne contaminants from the petitioned waste is 
unlikely. No appreciable air releases are likely from the filter cake 
under any likely disposal conditions. EPA evaluated the potential 
hazards resulting from the unlikely scenario of airborne exposure to 
hazardous constituents released from the waste water in an open 
landfill. The results of this worst-case analysis indicated that there 
is no substantial present or potential hazard to human health and the 
environment from airborne exposure to constituents from the filter 
cake.

I. What is EPA's evaluation of this delisting petition?

    The descriptions by BAE of the hazardous waste process and 
analytical characterization, with the proposed verification testing 
requirements (as discussed later in this notice), provide a reasonable 
basis for EPA to grant the petition. The data submitted in support of 
the petition show that constituents in the waste are below the maximum 
allowable concentrations (See Table 1). EPA believes that the filter 
cake generated by BAE contains hazardous constituents at levels which 
will present minimal short-term and long-term threats from the 
petitioned waste to human health and the environment.
    Thus, EPA believes that it should grant to BAE an exclusion from 
the list of hazardous wastes for the filter cake. EPA believes that the 
data submitted in support of the petition show the BAE's filter cake to 
be non-hazardous.
    EPA has reviewed the sampling procedures used by BAE and has 
determined they satisfy EPA's criteria for collecting representative 
samples of variable constituent concentrations in the filter cake. The 
data submitted in support of the petition show that constituents in 
BAE's wastes are presently below the compliance-point concentrations 
used in the delisting decision-making process and would not pose a 
substantial hazard to the environment and the public. EPA believes that 
BAE has successfully demonstrated that the filter cake is non-
hazardous.
    EPA, therefore, proposes to grant an exclusion to BAE for the 
filter cake described in its December 2005 petition. EPA's decision to 
exclude this waste is based on analysis performed on samples taken of 
the filter cake.
    If EPA finalizes the proposed rule, EPA will no longer regulate 
1,200 cubic yards/year of filter cake from BAE's Sealy facility under 
parts 262 through 268 and the permitting standards of part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, BAE, must comply with the requirements in 40 CFR 
part 261, Appendix IX, Table 2 as amended by this notice. The text 
below gives the rationale and details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituent concentrations 
for which BAE must test in the filter cake, below which these wastes 
would be considered non-hazardous.
    EPA selected the set of inorganic and organic constituents 
specified in paragraph (1) and listed in 40 CFR part 261, Appendix IX, 
Table 2, based on information in the petition. EPA compiled the 
inorganic and organic constituents list from descriptions of the 
manufacturing process used by BAE, previous test data provided for the 
waste, and the respective health-based levels used in delisting 
decision-making. These delisting levels correspond to the allowable 
levels measured in the leachable concentrations of the filter cake.
(2) Waste Holding and Handling
    Waste classification as non-hazardous cannot begin until compliance 
with the limits set in paragraph (1) has occurred for two consecutive 
quarterly sampling events. For example, if BAE is issued a final 
exclusion in August, the first quarter samples are due in November and 
the second quarter samples are due in February. If EPA deems that both 
the first and second quarter samples (a total of four) meet all the 
delisting limits, classification of the waste as non-hazardous can 
begin in March. If constituent levels in any sample taken by BAE exceed 
any of the delisting levels set in paragraph (1), BAE must: (i) notify 
EPA in accordance with paragraph (6), and; (ii) manage and dispose of 
the filter cake as hazardous waste generated under Subtitle C of RCRA.
(3) Verification Testing Requirements
    BAE must complete a verification testing program on the filter cake 
to assure that the wastes do not exceed the maximum levels specified in 
paragraph (1). If EPA determines that the data collected under this 
paragraph do not support the data provided in the petition, the 
exclusion will not cover the tested waste. This verification program 
operates on two levels.
    The first part of the quarterly verification testing program 
consists of testing a batch of filter cake for specified indicator 
parameters as described in paragraph (1). Each quarterly sampling event 
will consist of at least two samples of the filter cake. Levels of 
constituents measured in the samples of the filter cake that do not 
exceed the levels set forth in paragraph (1) can be considered non-
hazardous after two consecutive quarters of sampling data meet the 
levels listed in paragraph (1).

[[Page 54766]]

    The second part of the verification testing program is the annual 
testing of two representative composite samples of the filter cake for 
all constituents specified in paragraph (1).
    If BAE demonstrates for two consecutive quarters complete 
attainment of all specified limits, then BAE may request approval of 
EPA to reduce the frequency of testing to annually. If, after review of 
performance of the treatment system, EPA finds that annual testing is 
adequately protective of human health and the environment, then EPA may 
authorize BAE to reduce the quarterly comprehensive sampling frequency 
to an annual basis. If the annual testing of the wastes does not meet 
the delisting levels in paragraph (1), BAE must notify EPA according to 
the requirements in paragraph (6). EPA will then take the appropriate 
actions necessary to protect human health and the environment as 
described in paragraph (6). BAE must provide sampling results that 
support the rationale that the delisting exclusion should not be 
withdrawn.
    The exclusion is effective upon publication in the Federal Register 
but the change in waste classification as ``non-hazardous'' cannot 
begin until two consecutive quarters of verification sampling comply 
with the levels specified in paragraph (1). The waste classification as 
``non-hazardous'' is also not authorized, if BAE fails to perform the 
quarterly and yearly testing as specified herein. Should BAE fail to 
conduct the quarterly/yearly testing as specified herein, then disposal 
of filter cake as delisted waste may not occur in the following 
quarter(s)/year(s) until BAE obtains the written approval of EPA.
(4) Changes in Operating Conditions
    Paragraph (4) would allow BAE the flexibility of modifying its 
processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment processes. However, BAE must prove 
the effectiveness of the modified process and request approval from 
EPA. BAE must manage wastes generated during the new process 
demonstration as hazardous waste through verification sampling within 
30 days of start-up.
(5) Data Submittals
    To provide appropriate documentation that the BAE facility is 
correctly managing the filter cake, BAE must compile, summarize, and 
keep delisting records on-site for a minimum of five years. It should 
keep all analytical data obtained pursuant to paragraph (3), including 
quality control information, for five years. Paragraph (5) requires 
that BAE furnish these data upon request for inspection by any employee 
or representative of EPA or the State of Texas.
    If the proposed exclusion is made final, then it will apply only to 
1,200 cubic yards per calendar year of filter cake generated at the BAE 
facility after successful verification testing.
    EPA would require BAE to submit additional verification data under 
any of the following circumstances:
    (a) If BAE significantly alters the manufacturing process treatment 
system except as described in paragraph (4).
    (b) If BAE uses any new manufacturing or production process(es), or 
significantly changes the current process(es) described in its 
petition; or
    (c) If BAE makes any changes that could affect the composition or 
type of waste generated.
    BAE must submit a modification to the petition complete with full 
sampling and analysis for circumstances where the waste volume changes 
and/or additional waste codes are added to the waste stream. EPA will 
publish an amendment to the exclusion if the changes are acceptable.
    BAE must manage waste volumes greater than 1,200 cubic yards of 
filter cake as hazardous waste until EPA grants a revised exclusion. 
When this exclusion becomes final, the management by BAE of the filter 
cake covered in this petition would be relieved from Subtitle C 
jurisdiction. BAE may not classify the waste as non-hazardous until the 
revised exclusion is finalized.
(6) Reopener
    The purpose of paragraph (6) is to require BAE to disclose new or 
different information related to a condition at the facility or 
disposal of the waste, if it is pertinent to the delisting. BAE must 
also use this procedure if the waste sample in the annual testing fails 
to meet the levels found in paragraph (1). This provision will allow 
EPA to reevaluate the exclusion, if a source provides new or additional 
information to EPA. EPA will evaluate the information on which it based 
the decision to see if it is still correct or if circumstances have 
changed so that the information is no longer correct or would cause EPA 
to deny the petition, if presented.
    This provision expressly requires BAE to report differing site 
conditions or assumptions used in the petition in addition to failure 
to meet the annual testing conditions within 10 days of discovery. If 
EPA discovers such information itself or from a third party, it can act 
on it as appropriate. The language being proposed is similar to those 
provisions found in RCRA regulations governing no-migration petitions 
at Sec.  268.6.
    It is EPA's position that it has the authority under RCRA and the 
Administrative Procedure Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. EPA may reopen a delisting decision when 
it receives new information that calls into question the assumptions 
underlying the delisting.
    EPA believes a clear statement of its authority in delisting is 
merited in light of EPA's experience. See the Federal Register notice 
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62 
FR 63458 (December 1, 1997) where the delisted waste leached at greater 
concentrations into the environment than the concentrations predicted 
when conducting the TCLP, leading EPA to repeal the delisting. If an 
immediate threat to human health and the environment presents itself, 
EPA will continue to address these situations on a case-by-case basis. 
Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA 553(b)(3)(B).

B. What happens, if BAE violates the terms and conditions?

    If BAE violates the terms and conditions established in the 
exclusion, EPA will start procedures to withdraw the exclusion. Where 
there is an immediate threat to human health and the environment, EPA 
will evaluate the need for enforcement activities on a case-by-case 
basis. EPA expects BAE to conduct the appropriate waste analysis and 
comply with the criteria explained above in paragraph (1) of the 
exclusion.

V. Public Comments

A. How may I as an interested party submit comments?

    EPA is requesting public comments on this proposed decision. Please 
send three copies of your comments. Send two copies to the Chief, 
Corrective Action and Waste Minimization Section, Multimedia Permitting 
and Planning Division, U.S. Environmental Protection Agency Region 6, 
1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to the 
Industrial Hazardous Waste Permits Division, Technical Evaluation Team, 
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, TX 
78711-3087. Identify your comments at the top with this regulatory 
docket number: EPA-R06-RCRA-2008-0456. You may submit your comments

[[Page 54767]]

electronically to Wendy Jacques at jacques.wendy@epa.gov.

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 6, 1445 Ross Avenue, 
Dallas, TX 75202. It is available for viewing in EPA Freedom of 
Information Act Review Room from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 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.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). 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.) because it applies to a 
particular facility only. Because this rule is 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, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this proposed rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132, ``Federalism,'' (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule. Similarly, because this rule will affect only a 
particular facility, this proposed rule does not have tribal 
implications, as specified in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 
2000). Thus, Executive Order 13175 does not apply to this rule. This 
rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not have 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. The basis for 
this belief is that the Agency used the DRAS program, which considers 
health and safety risks to infants and children, to calculate the 
maximum allowable concentrations for this rule. This rule is not 
subject to Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. 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 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform,'' (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. The Congressional Review Act, 5 U.S.C. 
801 et seq., as added by the Small Business Regulatory Enforcement 
Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report 
which includes a copy of the rule to each House of the Congress and to 
the Comptroller General of the United States. Section 804 exempts from 
section 801 the following types of rules: (1) Rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding this action under section 801 because this is a rule of 
particular applicability.

Lists of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

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

    Dated: August 29, 2008.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division, EPA 
Region 6.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

    2. In Table 2 of Appendix IX of Part 261, add the following waste 
stream in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 
260.22

              Table 2--Waste Excluded From Specific Sources
------------------------------------------------------------------------
          Facility                Address          Waste description
------------------------------------------------------------------------
 
                              * * * * * * *
BAE Systems, Inc............  Sealy, TX......  Filter Cake (EPA
                                                Hazardous Waste Number
                                                F019) generated at a
                                                maximum rate of 1,200
                                                cubic yards per calendar
                                                year after [insert
                                                publication date of the
                                                final rule]. For the
                                                exclusion to be valid,
                                                BAE must implement a
                                                verification testing
                                                program that meets the
                                                following Paragraphs:

[[Page 54768]]

 
                                               (1) Delisting Levels: All
                                                concentrations for those
                                                constituents must not
                                                exceed the maximum
                                                allowable concentrations
                                                in mg/l specified in
                                                this paragraph. Filter
                                                Cake Leachable
                                                Concentrations (mg/l):
                                                Acetone--3211; Arsenic--
                                                0.052; Barium--100;
                                                Bis(2-
                                                ethylhexyl)phthalate--10
                                                3; Cadmium--0.561;
                                                Chloroform--0.4924;
                                                Chromium--5.0; Copper--
                                                149; Cyanide--19;
                                                Furans--3.57; Hexavalent
                                                Chromium--5.0; Lead--
                                                3.57; Lindane--0.4;
                                                Methyl Ethyl Ketone--
                                                200; Nickel--82.2;
                                                Selenium--1.0; 2,4,5-TP
                                                (Silvex)--1.0; 2,4-D--
                                                6.65; Tin--9001;
                                                Tetrachlorodibenzo-p-
                                                dioxin--249;
                                                Tetrachloroethylene--0.1
                                                25685; Zinc--1240.
                                               (2) Waste Holding and
                                                Handling:
                                               (A) Waste classification
                                                as non-hazardous can not
                                                begin until compliance
                                                with the limits set in
                                                paragraph (1) for filter
                                                cake has occurred for
                                                two consecutive
                                                quarterly sampling
                                                events.
                                               (B) If constituent levels
                                                in any sample taken by
                                                BAE exceed any of the
                                                delisting levels set in
                                                paragraph (1) for the
                                                filter cake, BAE must do
                                                the following:
                                               (i) Notify EPA in
                                                accordance with
                                                paragraph (6) and
                                               (ii) Manage and dispose
                                                the filter cake as
                                                hazardous waste
                                                generated under Subtitle
                                                C of RCRA.
                                               (3) Testing Requirements:
                                                Upon this exclusion
                                                becoming final, BAE may
                                                perform quarterly
                                                analytical testing by
                                                sampling and analyzing
                                                the filter cake as
                                                follows:
                                               (A) Quarterly Testing:
                                               (i) Collect two
                                                representative composite
                                                samples of the filter
                                                cake at quarterly
                                                intervals after EPA
                                                grants the final
                                                exclusion. The first
                                                composite samples may be
                                                taken at any time after
                                                EPA grants the final
                                                approval. Sampling
                                                should be performed in
                                                accordance with the
                                                sampling plan approved
                                                by EPA in support of the
                                                exclusion.
                                               (ii) Analyze the samples
                                                for all constituents
                                                listed in paragraph (1).
                                                Any composite sample
                                                taken that exceeds the
                                                delisting levels listed
                                                in paragraph (1) for the
                                                filter cake must be
                                                disposed as hazardous
                                                waste in accordance with
                                                the applicable hazardous
                                                waste requirements.
                                               (iii) Within thirty (30)
                                                days after taking its
                                                first quarterly sample,
                                                BAE will report its
                                                first quarterly
                                                analytical test data to
                                                EPA. If levels of
                                                constituents measured in
                                                the samples of the
                                                filter cake do not
                                                exceed the levels set
                                                forth in paragraph (1)
                                                of this exclusion for
                                                two consecutive
                                                quarters, BAE can manage
                                                and dispose the non-
                                                hazardous filter cake
                                                according to all
                                                applicable solid waste
                                                regulations.
                                               (B) Annual Testing:
                                               (i) If BAE completes the
                                                quarterly testing
                                                specified in paragraph
                                                (3) above and no sample
                                                contains a constituent
                                                at a level which exceeds
                                                the limits set forth in
                                                paragraph (1), BAE may
                                                begin annual testing as
                                                follows: BAE must test
                                                two representative
                                                composite samples of the
                                                filter cake for all
                                                constituents listed in
                                                paragraph (1) at least
                                                once per calendar year.
                                               (ii) The samples for the
                                                annual testing shall be
                                                a representative
                                                composite sample
                                                according to appropriate
                                                methods. As applicable
                                                to the method-defined
                                                parameters of concern,
                                                analyses requiring the
                                                use of SW-846 methods
                                                incorporated by
                                                reference in 40 CFR
                                                260.11 must be used
                                                without substitution. As
                                                applicable, the SW-846
                                                methods might include
                                                Methods 0010, 0011,
                                                0020, 0023A, 0030, 0031,
                                                0040, 0050, 0051, 0060,
                                                0061, 1010A, 1020B,
                                                1110A, 1310B, 1311,
                                                1312, 1320, 1330A,
                                                9010C, 9012B, 9040C,
                                                9045D, 9060A, 9070A
                                                (uses EPA Method 1664,
                                                Rev. A), 9071B, and
                                                9095B.