Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion, 17414-17419 [E9-8646]
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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.
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(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.
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[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]
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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
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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?
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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
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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).
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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.
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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
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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,
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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
*
*
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BAE Systems, Inc, ............................................
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Waste description
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Sealy, TX ....................
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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.
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TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
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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.
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TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
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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.
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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
]]>Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
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 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
