Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion, 17414-17419 [E9-8646]

Download as PDF 17414 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations Dated: April 3, 2009. Michelle L. Pirzadeh, Acting Regional Administrator, Region 10. For the reasons set out in the preamble, chapter I of title 40 of the Code of Federal Regulations is amended as set forth below: ■ PART 228—[AMENDED] 1. The authority citation for part 228 continues to read as follows: ■ Authority: 33 U.S.C. Sections 1412 and 1418 2. Section 228.15 is amended by adding paragraph (n)(6) to read as follows: ■ § 228.15 Dumping sites designated on a final basis. * * * * * (n) * * * (6) Rogue River, OR—Dredged Material Site (i) Location: 42° 24′15.40″ N, 124° 26′52.39″ W; 42° 24′03.40″ N, 124° 26′39.39″ W; 42° 23′39.40″ N, 124° 27′17.40″ W; 42° 23′51.40″ N, 124° 27′30.40″ W (NAD 83) (ii) Size: Approximately 1.1 kilometers long and 0.4 kilometers wide (iii) Depth: Ranges from approximately 15 to 27 meters (iv) Primary Use: Dredged material (v) Period of Use: Continuing Use (vi) Restrictions: (A) Disposal shall be limited to dredged material determined to be suitable for ocean disposal according to 40 CFR 227.13, from the Rogue River navigation channel and adjacent areas; (B) Disposal shall be managed by the restrictions and requirements contained in the currently-approved Site Management and Monitoring Plan (SMMP); (C) Monitoring, as specified in the SMMP, is required. * * * * * [FR Doc. E9–8660 Filed 4–14–09; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 261 [EPA–R06–RCRA–2008–0456; SW–FRL– 8787–9] rwilkins on PROD1PC63 with RULES Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: Environmental Protection Agency (EPA) is granting a petition VerDate Nov<24>2008 16:06 Apr 14, 2009 Jkt 217001 submitted by BAE Systems, Inc. (BAE) to exclude (or delist) the waste filter cake from its waste water treatment plant generated by BAE Sealy, Texas from the lists of hazardous wastes. This final rule responds to the petition submitted by BAE to delist F019 waste filter cake generated from the facility’s waste water treatment plant. After careful analysis and use of the Delisting Risk Assessment Software (DRAS), EPA has concluded the petitioned waste is not hazardous waste. This exclusion applies to 1,200 cubic yards per year of the F019 waste filter cake. Accordingly, this final rule excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when it is disposed in a Subtitle D Landfill. DATES: Effective Date: April 15, 2009. ADDRESSES: The public docket for this final rule is located at the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202, and is available for viewing in EPA Freedom of Information Act review room on the 7th floor from 8 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call (214) 665–6444 for appointments. The reference number for this docket is EPA–R06–RCRA–2008–0456. The public may copy material from any regulatory docket at no cost for the first 100 pages and at a cost of $0.15 per page for additional copies. FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division (6PD–C), Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. For technical information concerning this notice, contact Wendy Jacques, Environmental Protection Agency Region 6, 1445 Ross Avenue, (6PD–F), Dallas, Texas 75202, at (214) 665–7395, or jacques.wendy@epa.gov. SUPPLEMENTARY INFORMATION: The information in this section is organized as follows: I. Overview Information A. What action is EPA finalizing? B. Why is EPA approving this action? C. What are the limits of this exclusion? D. How will BAE manage the waste if it is delisted? E. When is the final delisting exclusion effective? F. How does this final rule affect states? II. Background A. What is a delisting? B. What regulations allow facilities to delist a waste? C. What information must the generator supply? PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 III. EPA’s Evaluation of the Waste Information and Data A. What waste did BAE petition EPA to delist? B. How much waste did BAE propose to delist? C. How did BAE sample and analyze the waste data in this petition? IV. Public Comments Received on the Proposed Exclusion A. Who submitted comments on the proposed rule? V. Statutory and Executive Order Reviews I. Overview Information A. What action is EPA finalizing? After evaluating the petition, EPA proposed, on September 23, 2008, to exclude the waste filter cake from the lists of hazardous waste under 40 CFR 261.31 and 261.32 (see 73 FR 54760). EPA is finalizing the decision to grant BAE’s delisting petition to have its waste filter cake managed and disposed as non-hazardous waste provided certain verification and monitoring conditions are met. B. Why is EPA approving this action? BAE’s petition requests a delisting from the F019 waste listing under 40 CFR 260.20 and 260.22. 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. See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)–(4) (hereinafter all sectional references are to 40 CFR unless otherwise indicated). In making the final delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in § 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 as 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 E:\FR\FM\15APR1.SGM 15APR1 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 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 final decision to delist waste from BAE’s facility is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data from the Sealy, Texas facility. C. What are the limits of this exclusion? This exclusion applies to the waste described in the petition only if the requirements described in 40 CFR part 261, Appendix IX, Table 1 and the conditions contained herein are satisfied. EPA has also authorized some states (for example, Louisiana, Oklahoma, Georgia, and Illinois) to administer a RCRA delisting program in place of the Federal program; that is, to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states unless that state makes the rule part of its authorized program. If BAE transports the petitioned waste to or manages the waste in any state with delisting authorization, BAE must obtain delisting authorization from that state before it can manage the waste as non-hazardous in the state. of hazardous wastes contained in § 261.31, waste filter cake (F019) generated from its facility located in Sealy, Texas. The waste falls under the classification of listed waste pursuant to § 261.31. II. Background C. How did BAE sample and analyze the waste data in this petition? To support its petition, BAE submitted: • Analytical results of the toxicity characteristic leaching procedure and total constituent analysis for volatile and semi volatile organics, pesticides, herbicides, dioxins/furans, PCBs and metals for seven filter cake samples; • Analytical results from multiple pH leaching of metals; and • Descriptions of the waste water treatment process. E. When is the final delisting exclusion effective? This rule is effective April 15, 2009. The Hazardous and Solid Waste Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C. 6930(b)(1) allows rules to become effective less than six months after the rule is published when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous waste. This reduction in existing requirements also provides a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d). rwilkins on PROD1PC63 with RULES D. How will BAE manage the waste if it is delisted? The waste filter cake from BAE will be disposed of in a RCRA Subtitle D landfill. A. What is a delisting petition? A delisting petition is a request from a generator to EPA, or another agency with jurisdiction, to exclude or delist from the RCRA list of hazardous waste, certain wastes the generator believes should not be considered hazardous under RCRA. B. What regulations allow facilities to delist a waste? Under §§ 260.20 and 260.22, facilities may petition EPA to remove their wastes from hazardous waste regulation by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of 40 CFR parts 260 through 265 and 268. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste from a particular generating facility from the hazardous waste lists. F. How does this final rule affect states? Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude states which have received authorization from EPA to make their own delisting decisions. EPA allows 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. VerDate Nov<24>2008 16:06 Apr 14, 2009 Jkt 217001 17415 C. What information must the generator supply? Petitioners must provide sufficient information to EPA to allow EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. Based on the information supplied by the generator, the Administrator must determine whether factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste. The generator must also supply information to demonstrate that the waste does not exhibit any of the characteristics defined in § 261.21–§ 261.24. III. EPA’s Evaluation of the Waste Information and Data A. What waste did BAE petition EPA to delist? On December 23, 2005, BAE petitioned EPA to exclude from the lists PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 B. How much waste did BAE propose to delist? Specifically, in its petition, BAE requested that EPA grant a standard exclusion for 1,200 cubic yards per year of waste filter cake resulting from the treatment of waste waters from the manufacturing processes at its facility. IV. Public Comments Received on the Proposed Exclusion A. Who submitted comments on the proposed rule? No comments were received during the comment period. However, the EPA received a Freedom of Information request for BAE’s original delisting petition and all supporting documents from Arnold & Porter LLP. The EPA submitted BAE’s original delisting petition and all supporting documents, excluding all confidential material, to Arnold & Porter LLP. V. 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, E:\FR\FM\15APR1.SGM 15APR1 17416 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 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 final 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 final 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 today’s 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: March 16, 2009. Carl Edlund, Director, Multimedia Planning and Permitting Division, Region 6. 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 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 §§ 260.20 and 260.22. TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES Facility * Address * * rwilkins on PROD1PC63 with RULES BAE Systems, Inc, ............................................ VerDate Nov<24>2008 16:06 Apr 14, 2009 Jkt 217001 Waste description * Sealy, TX .................... PO 00000 Frm 00046 Fmt 4700 * * * Filter Cake (EPA Hazardous Waste Number F019) generated at a maximum rate of 1,200 cubic yards per calendar year after April 15, 2009. For the exclusion to be valid, BAE must implement a verification testing program that meets the following Paragraphs: (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—103; 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—0.125685; 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. Sfmt 4700 E:\FR\FM\15APR1.SGM 15APR1 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 17417 TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued rwilkins on PROD1PC63 with RULES Facility Address Waste description (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 must 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. Methods must meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to demonstrate that samples of the BAE filter cake are representative for all constituents listed in paragraph (1). (iii) The samples for the annual testing taken for the second and subsequent annual testing events shall be taken within the same calendar month as the first annual sample taken. (iv) The annual testing report should include the total amount of waste in cubic yards disposed during the calendar year. (4) Changes in Operating Conditions: If BAE significantly changes the process described in its petition or starts any processes that generate(s) the waste that may or could affect the composition or type of waste generated (by illustration, but not limitation, changes in equipment or operating conditions of the treatment process), it must notify EPA in writing and it may no longer handle the wastes generated from the new process as non-hazardous until the wastes meet the delisting levels set in paragraph (1) and it has received written approval to do so from EPA. 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. (5) Data Submittals: BAE must submit the information described below. If BAE fails to submit the required data within the specified time or maintain the required records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in paragraph (6). BAE must: (A) Submit the data obtained through paragraph (3) to the Chief, Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, Texas 75202, within the time specified. All supporting data can be submitted on CD–ROM or some comparable electronic media. VerDate Nov<24>2008 16:06 Apr 14, 2009 Jkt 217001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\15APR1.SGM 15APR1 17418 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued rwilkins on PROD1PC63 with RULES Facility Address Waste description (B) Compile records of analytical data from paragraph (3), summarized, and maintained on-site for a minimum of five years. (C) Furnish these records and data when either EPA or the State of Texas requests them for inspection. (D) Send along with all data a signed copy of the following certification statement, to attest to the truth and accuracy of the data submitted: ‘‘Under civil and criminal penalty of law for the making or submission of false or fraudulent statements or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C. 6928), I certify that the information contained in or accompanying this document is true, accurate and complete. As to the (those) identified section(s) of this document for which I cannot personally verify its (their) truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete. If any of this information is determined by EPA in its sole discretion to be false, inaccurate or incomplete, and upon conveyance of this fact to the company, I recognize and agree that this exclusion of waste will be void as if it never had effect or to the extent directed by EPA and that the company will be liable for any actions taken in contravention of the company’s RCRA and CERCLA obligations premised upon the company’s reliance on the void exclusion.’’ (6) Reopener (A) If, anytime after disposal of the delisted waste BAE possesses or is otherwise made aware of any environmental data (including but not limited to leachate data or ground water monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting level allowed by the Division Director in granting the petition, then the facility must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. (B) If either the quarterly or annual testing of the waste does not meet the delisting requirements in paragraph (1), BAE must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. (C) If BAE fails to submit the information described in paragraphs (5), (6)(A) or (6)(B) or if any other information is received from any source, the Division Director will make a preliminary determination as to whether the reported information requires EPA action to protect human health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment. (D) If the Division Director determines that the reported information requires action by EPA, the Division Director will notify the facility in writing of the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to present information as to why the proposed EPA action is not necessary. The facility shall have 10 days from the date of the Division Director’s notice to present such information. (E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no information is presented under paragraph (6)(D)) the initial receipt of information described in paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination describing EPA actions that are necessary to protect human health and/or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise. (7) Notification Requirements BAE Systems must do the following before transporting the delisted waste. Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the decision. (A) Provide a one-time written notification to any state Regulatory Agency to which or through which it will transport the delisted waste described above for disposal, 60 days before beginning such activities. VerDate Nov<24>2008 16:06 Apr 14, 2009 Jkt 217001 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 E:\FR\FM\15APR1.SGM 15APR1 17419 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued Facility Address Waste description (B) Update the one-time written notification if it ships the delisted waste into a different disposal facility. (C) Failure to provide this notification will result in a violation of the delisting variance and possible revocation of the decision. * * * [FR Doc. E9–8646 Filed 4–14–09; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 261 [EPA–R06–RCRA–2008–0457; SW–FRL– 8787–8] Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion rwilkins on PROD1PC63 with RULES AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: Environmental Protection Agency (EPA) is granting a petition submitted by Cooper Crouse-Hinds to exclude (or delist) the sludge and filter sand (called sludge hereinafter) from its wastewater treatment plant (WWTP) generated by Cooper Crouse-Hinds in Amarillo, Texas from the lists of hazardous wastes. This final rule responds to the petition submitted by Cooper Crouse-Hinds, to delist the WWTP sludge with Hazardous Waste Number, F006. After careful analysis and use of the Delisting Risk Assessment Software (DRAS), EPA has concluded the petitioned waste is not hazardous waste. This exclusion applies to 816 cubic yards per year of the WWTP sludge with Hazardous Waste Number: F006. Accordingly, this final rule excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when it is disposed in a Subtitle D Landfill. DATES: Effective Date: April 15, 2009. ADDRESSES: The public docket for this final rule is located at the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202, and is available for viewing in EPA Freedom of Information Act review room on the 7th floor from 8 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call (214) 665–6444 for appointments. The reference number for this docket is VerDate Nov<24>2008 16:06 Apr 14, 2009 Jkt 217001 * * EPA–R06–RCRA–2008–0457. The public may copy material from any regulatory docket at no cost for the first 100 pages and at a cost of $0.15 per page for additional copies. FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division (6PD–C), Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. For technical information concerning this notice, contact Youngmoo Kim, Environmental Protection Agency Region 6, 1445 Ross Avenue, (6PD–C), Dallas, Texas 75202, at (214) 665–6788, or kim.youngmoo@epa.gov. SUPPLEMENTARY INFORMATION: The information in this section is organized as follows: I. Overview Information A. What action is EPA finalizing? B. Why is EPA approving this action? C. What are the limits of this exclusion? D. How will Cooper Crouse-Hinds manage the waste if it is delisted? E. When is the final delisting exclusion effective? F. How does this final rule affect states? II. Background A. What is a delisting? B. What regulations allow facilities to delist a waste? C. What information must the generator supply? III. EPA’s Evaluation of the Waste Information and Data A. What waste did Cooper Crouse-Hinds petition EPA to delist? B. How much waste did Cooper CrouseHinds propose to delist? C. How did Cooper Crouse-Hinds sample and analyze the waste data in this petition? IV. Public Comments Received on the Proposed Exclusion A. Who submitted comments on the proposed rule? V. Statutory and Executive Order Reviews I. Overview Information A. What action is EPA finalizing? After evaluating the petition, EPA proposed on September 23, 2008, to exclude the WWTP sludge from the lists of hazardous waste under 40 CFR 261.31 and 261.32 (see 73 FR 54770). PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 * * EPA is finalizing the decision to grant Cooper Crouse-Hinds’ delisting petition to have its WWTP sludge managed and disposed as non-hazardous waste provided certain verification and monitoring conditions are met. B. Why is EPA approving this action? Cooper Crouse-Hinds’ petition requests a delisting from the F006 waste listing under 40 CFR 260.20 and 260.22. Cooper Crouse-Hinds does not believe that the petitioned waste meets the criteria for which EPA listed it. Cooper Crouse-Hinds 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. See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)–(4) (hereinafter all sectional references are to 40 CFR unless otherwise indicated). In making the final delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in § 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 as 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 final decision to delist waste from Cooper Crouse-Hinds’ facility is based on the E:\FR\FM\15APR1.SGM 15APR1

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[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Rules and Regulations]
[Pages 17414-17419]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8646]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2008-0456; SW-FRL-8787-9]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Environmental Protection Agency (EPA) is granting a petition 
submitted by BAE Systems, Inc. (BAE) to exclude (or delist) the waste 
filter cake from its waste water treatment plant generated by BAE 
Sealy, Texas from the lists of hazardous wastes. This final rule 
responds to the petition submitted by BAE to delist F019 waste filter 
cake generated from the facility's waste water treatment plant. After 
careful analysis and use of the Delisting Risk Assessment Software 
(DRAS), EPA has concluded the petitioned waste is not hazardous waste. 
This exclusion applies to 1,200 cubic yards per year of the F019 waste 
filter cake. Accordingly, this final rule excludes the petitioned waste 
from the requirements of hazardous waste regulations under the Resource 
Conservation and Recovery Act (RCRA) when it is disposed in a Subtitle 
D Landfill.

DATES: Effective Date: April 15, 2009.

ADDRESSES: The public docket for this final rule is located at the 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in EPA Freedom of Information 
Act review room on the 7th floor from 8 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The reference number for this docket is EPA-R06-RCRA-
2008-0456. The public may copy material from any regulatory docket at 
no cost for the first 100 pages and at a cost of $0.15 per page for 
additional copies.

FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the 
Corrective Action and Waste Minimization Section, Multimedia Planning 
and Permitting Division (6PD-C), Environmental Protection Agency Region 
6, 1445 Ross Avenue, Dallas, Texas 75202. For technical information 
concerning this notice, contact Wendy Jacques, Environmental Protection 
Agency Region 6, 1445 Ross Avenue, (6PD-F), Dallas, Texas 75202, at 
(214) 665-7395, or jacques.wendy@epa.gov.

SUPPLEMENTARY INFORMATION: 
    The information in this section is organized as follows:
I. Overview Information
    A. What action is EPA finalizing?
    B. Why is EPA approving this action?
    C. What are the limits of this exclusion?
    D. How will BAE manage the waste if it is delisted?
    E. When is the final delisting exclusion effective?
    F. How does this final rule affect states?
II. Background
    A. What is a delisting?
    B. What regulations allow facilities to delist a waste?
    C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did BAE petition EPA to delist?
    B. How much waste did BAE propose to delist?
    C. How did BAE sample and analyze the waste data in this 
petition?
IV. Public Comments Received on the Proposed Exclusion
    A. Who submitted comments on the proposed rule?
V. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA finalizing?

    After evaluating the petition, EPA proposed, on September 23, 2008, 
to exclude the waste filter cake from the lists of hazardous waste 
under 40 CFR 261.31 and 261.32 (see 73 FR 54760). EPA is finalizing the 
decision to grant BAE's delisting petition to have its waste filter 
cake managed and disposed as non-hazardous waste provided certain 
verification and monitoring conditions are met.

B. Why is EPA approving this action?

    BAE's petition requests a delisting from the F019 waste listing 
under 40 CFR 260.20 and 260.22. 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. See section 3001(f) 
of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter 
all sectional references are to 40 CFR unless otherwise indicated). In 
making the final delisting determination, EPA evaluated the petitioned 
waste against the listing criteria and factors cited in Sec.  
261.11(a)(2) and (a)(3). Based on this review, EPA 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 as 
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

[[Page 17415]]

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 final decision to delist waste from BAE's facility 
is based on the information submitted in support of this rule, 
including descriptions of the wastes and analytical data from the 
Sealy, Texas facility.

C. What are the limits of this exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in 40 CFR part 261, Appendix IX, Table 1 
and the conditions contained herein are satisfied.

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

    The waste filter cake from BAE will be disposed of in a RCRA 
Subtitle D landfill.

E. When is the final delisting exclusion effective?

    This rule is effective April 15, 2009. The Hazardous and Solid 
Waste Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C. 
6930(b)(1) allows rules to become effective less than six months after 
the rule is published when the regulated community does not need the 
six-month period to come into compliance. That is the case here because 
this rule reduces, rather than increases, the existing requirements for 
persons generating hazardous waste. This reduction in existing 
requirements also provides a basis for making this rule effective 
immediately, upon publication, under the Administrative Procedure Act, 
pursuant to 5 U.S.C. 553(d).

F. How does this final rule affect states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from EPA to make their own delisting decisions.
    EPA allows 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.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, and Illinois) to administer a RCRA delisting program 
in place of the Federal program; that is, to make state delisting 
decisions. Therefore, this exclusion does not apply in those authorized 
states unless that state makes the rule part of its authorized program. 
If BAE transports the petitioned waste to or manages the waste in any 
state with delisting authorization, BAE must obtain delisting 
authorization from that state before it can manage the waste as non-
hazardous in the state.

II. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to EPA, or 
another agency with jurisdiction, to exclude or delist from the RCRA 
list of hazardous waste, certain wastes the generator believes should 
not be considered hazardous under RCRA.

B. What regulations allow facilities to delist a waste?

    Under Sec. Sec.  260.20 and 260.22, facilities may petition EPA to 
remove their wastes from hazardous waste regulation by excluding them 
from the lists of hazardous wastes contained in Sec. Sec.  261.31 and 
261.32. Specifically, Sec.  260.20 allows any person to petition the 
Administrator to modify or revoke any provision of 40 CFR parts 260 
through 265 and 268. Section 260.22 provides generators the opportunity 
to petition the Administrator to exclude a waste from a particular 
generating facility from the hazardous waste lists.

C. What information must the generator supply?

    Petitioners must provide sufficient information to EPA to allow EPA 
to determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. Based 
on the information supplied by the generator, the Administrator must 
determine whether factors (including additional constituents) other 
than those for which the waste was listed could cause the waste to be a 
hazardous waste. The generator must also supply information to 
demonstrate that the waste does not exhibit any of the characteristics 
defined in Sec.  261.21-Sec.  261.24.

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

A. What waste did BAE petition EPA to delist?

    On December 23, 2005, BAE petitioned EPA to exclude from the lists 
of hazardous wastes contained in Sec.  261.31, waste filter cake (F019) 
generated from its facility located in Sealy, Texas. The waste falls 
under the classification of listed waste pursuant to Sec.  261.31.

B. How much waste did BAE propose to delist?

    Specifically, in its petition, BAE requested that EPA grant a 
standard exclusion for 1,200 cubic yards per year of waste filter cake 
resulting from the treatment of waste waters from the manufacturing 
processes at its facility.

C. How did BAE sample and analyze the waste data in this petition?

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

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    No comments were received during the comment period. However, the 
EPA received a Freedom of Information request for BAE's original 
delisting petition and all supporting documents from Arnold & Porter 
LLP. The EPA submitted BAE's original delisting petition and all 
supporting documents, excluding all confidential material, to Arnold & 
Porter LLP.

V. 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,

[[Page 17416]]

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 final 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 final 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 today's 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: March 16, 2009.
Carl Edlund,
Director, Multimedia Planning and Permitting Division, Region 6.

0
For the reasons set out in the preamble, 40 CFR part 261 is amended as 
follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

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


0
2. In Table 1 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 1--Waste Excluded From Non-Specific Sources
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                Facility                            Address                        Waste description
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                                                  * * * * * * *
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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 April 15, 2009.
                                                                       For the exclusion to be valid, BAE must
                                                                        implement a verification testing program
                                                                        that meets the following Paragraphs:
                                                                       (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--
                                                                        103; 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--
                                                                        0.125685; 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.

[[Page 17417]]

 
                                                                       (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 must
                                                                        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. Methods must meet
                                                                        Performance Based Measurement System
                                                                        Criteria in which the Data Quality
                                                                        Objectives are to demonstrate that
                                                                        samples of the BAE filter cake are
                                                                        representative for all constituents
                                                                        listed in paragraph (1).
                                                                       (iii) The samples for the annual testing
                                                                        taken for the second and subsequent
                                                                        annual testing events shall be taken
                                                                        within the same calendar month as the
                                                                        first annual sample taken.
                                                                       (iv) The annual testing report should
                                                                        include the total amount of waste in
                                                                        cubic yards disposed during the calendar
                                                                        year.
                                                                       (4) Changes in Operating Conditions: If
                                                                        BAE significantly changes the process
                                                                        described in its petition or starts any
                                                                        processes that generate(s) the waste
                                                                        that may or could affect the composition
                                                                        or type of waste generated (by
                                                                        illustration, but not limitation,
                                                                        changes in equipment or operating
                                                                        conditions of the treatment process), it
                                                                        must notify EPA in writing and it may no
                                                                        longer handle the wastes generated from
                                                                        the new process as non-hazardous until
                                                                        the wastes meet the delisting levels set
                                                                        in paragraph (1) and it has received
                                                                        written approval to do so from EPA.
                                                                       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.
                                                                       (5) Data Submittals:
                                                                       BAE must submit the information described
                                                                        below. If BAE fails to submit the
                                                                        required data within the specified time
                                                                        or maintain the required records on-site
                                                                        for the specified time, EPA, at its
                                                                        discretion, will consider this
                                                                        sufficient basis to reopen the exclusion
                                                                        as described in paragraph (6). BAE must:
                                                                       (A) Submit the data obtained through
                                                                        paragraph (3) to the Chief, Corrective
                                                                        Action and Waste Minimization Section,
                                                                        Multimedia Planning and Permitting
                                                                        Division, U.S. Environmental Protection
                                                                        Agency Region 6, 1445 Ross Ave., Dallas,
                                                                        Texas 75202, within the time specified.
                                                                        All supporting data can be submitted on
                                                                        CD-ROM or some comparable electronic
                                                                        media.

[[Page 17418]]

 
                                                                       (B) Compile records of analytical data
                                                                        from paragraph (3), summarized, and
                                                                        maintained on-site for a minimum of five
                                                                        years.
                                                                       (C) Furnish these records and data when
                                                                        either EPA or the State of Texas
                                                                        requests them for inspection.
                                                                       (D) Send along with all data a signed
                                                                        copy of the following certification
                                                                        statement, to attest to the truth and
                                                                        accuracy of the data submitted:
                                                                       ``Under civil and criminal penalty of law
                                                                        for the making or submission of false or
                                                                        fraudulent statements or representations
                                                                        (pursuant to the applicable provisions
                                                                        of the Federal Code, which include, but
                                                                        may not be limited to, 18 U.S.C. 1001
                                                                        and 42 U.S.C. 6928), I certify that the
                                                                        information contained in or accompanying
                                                                        this document is true, accurate and
                                                                        complete.
                                                                       As to the (those) identified section(s)
                                                                        of this document for which I cannot
                                                                        personally verify its (their) truth and
                                                                        accuracy, I certify as the company
                                                                        official having supervisory
                                                                        responsibility for the persons who,
                                                                        acting under my direct instructions,
                                                                        made the verification that this
                                                                        information is true, accurate and
                                                                        complete.
                                                                       If any of this information is determined
                                                                        by EPA in its sole discretion to be
                                                                        false, inaccurate or incomplete, and
                                                                        upon conveyance of this fact to the
                                                                        company, I recognize and agree that this
                                                                        exclusion of waste will be void as if it
                                                                        never had effect or to the extent
                                                                        directed by EPA and that the company
                                                                        will be liable for any actions taken in
                                                                        contravention of the company's RCRA and
                                                                        CERCLA obligations premised upon the
                                                                        company's reliance on the void
                                                                        exclusion.''
                                                                       (6) Reopener
                                                                       (A) If, anytime after disposal of the
                                                                        delisted waste BAE possesses or is
                                                                        otherwise made aware of any
                                                                        environmental data (including but not
                                                                        limited to leachate data or ground water
                                                                        monitoring data) or any other data
                                                                        relevant to the delisted waste
                                                                        indicating that any constituent
                                                                        identified for the delisting
                                                                        verification testing is at level higher
                                                                        than the delisting level allowed by the
                                                                        Division Director in granting the
                                                                        petition, then the facility must report
                                                                        the data, in writing, to the Division
                                                                        Director within 10 days of first
                                                                        possessing or being made aware of that
                                                                        data.
                                                                       (B) If either the quarterly or annual
                                                                        testing of the waste does not meet the
                                                                        delisting requirements in paragraph (1),
                                                                        BAE must report the data, in writing, to
                                                                        the Division Director within 10 days of
                                                                        first possessing or being made aware of
                                                                        that data.
                                                                       (C) If BAE fails to submit the
                                                                        information described in paragraphs (5),
                                                                        (6)(A) or (6)(B) or if any other
                                                                        information is received from any source,
                                                                        the Division Director will make a
                                                                        preliminary determination as to whether
                                                                        the reported information requires EPA
                                                                        action to protect human health and/or
                                                                        the environment. Further action may
                                                                        include suspending, or revoking the
                                                                        exclusion, or other appropriate response
                                                                        necessary to protect human health and
                                                                        the environment.
                                                                       (D) If the Division Director determines
                                                                        that the reported information requires
                                                                        action by EPA, the Division Director
                                                                        will notify the facility in writing of
                                                                        the actions the Division Director
                                                                        believes are necessary to protect human
                                                                        health and the environment. The notice
                                                                        shall include a statement of the
                                                                        proposed action and a statement
                                                                        providing the facility with an
                                                                        opportunity to present information as to
                                                                        why the proposed EPA action is not
                                                                        necessary. The facility shall have 10
                                                                        days from the date of the Division
                                                                        Director's notice to present such
                                                                        information.
                                                                       (E) Following the receipt of information
                                                                        from the facility described in paragraph
                                                                        (6)(D) or (if no information is
                                                                        presented under paragraph (6)(D)) the
                                                                        initial receipt of information described
                                                                        in paragraphs (5), (6)(A) or (6)(B), the
                                                                        Division Director will issue a final
                                                                        written determination describing EPA
                                                                        actions that are necessary to protect
                                                                        human health and/or the environment. Any
                                                                        required action described in the
                                                                        Division Director's determination shall
                                                                        become effective immediately, unless the
                                                                        Division Director provides otherwise.
                                                                       (7) Notification Requirements
                                                                       BAE Systems must do the following before
                                                                        transporting the delisted waste. Failure
                                                                        to provide this notification will result
                                                                        in a violation of the delisting petition
                                                                        and a possible revocation of the
                                                                        decision.
                                                                       (A) Provide a one-time written
                                                                        notification to any state Regulatory
                                                                        Agency to which or through which it will
                                                                        transport the delisted waste described
                                                                        above for disposal, 60 days before
                                                                        beginning such activities.

[[Page 17419]]

 
                                                                       (B) Update the one-time written
                                                                        notification if it ships the delisted
                                                                        waste into a different disposal
                                                                        facility.
                                                                       (C) Failure to provide this notification
                                                                        will result in a violation of the
                                                                        delisting variance and possible
                                                                        revocation of the decision.
 
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 [FR Doc. E9-8646 Filed 4-14-09; 8:45 am]
BILLING CODE 6560-50-P