[Federal Register Volume 66, Number 85 (Wednesday, May 2, 2001)]
[Rules and Regulations]
[Pages 21877-21886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10991]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-6968-6]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is
granting a petition submitted by BMW Manufacturing Corporation, Greer,
South Carolina (BMW), to exclude (or ``delist'') a certain hazardous
waste from the lists of hazardous wastes. BMW will generate the
petitioned waste by treating wastewater from BMW's automobile assembly
plant when aluminum is one of the metals used to manufacture automobile
bodies. The waste so generated is a wastewater treatment sludge that
meets the definition of F019. BMW petitioned EPA to grant a
``generator-specific'' delisting because BMW believes that its F019
waste does
[[Page 21878]]
not meet the criteria for which this type of waste was listed. EPA
reviewed all of the waste-specific information provided by BMW,
performed calculations, and determined that the waste could be disposed
in a landfill without harming human health and the environment. This
action responds to BMW's petition to delist this waste on a generator-
specific basis from the hazardous waste lists, and to public comments
on the proposed rule. EPA took into account all public comments on the
proposed rule before setting the final delisting levels. Final
delisting levels in the waste leachate are based on the EPA Composite
Model for Leachate Migration with Transformation Products as used in
EPA, Region 6's Delisting Risk Assessment Software. Today's rule also
sets limits on the total concentration of each hazardous constituent in
the waste. In accordance with the conditions specified in this final
rule, BMW's petitioned waste is excluded from the requirements of
hazardous waste regulations under Subtitle C of the Resource
Conservation and Recovery Act (RCRA).
EFFECTIVE DATE: This rule is effective on May 2, 2001.
ADDRESSES: The RCRA regulatory docket for this final rule is located at
the EPA Library, U.S. Environmental Protection Agency, Region 4, Sam
Nunn Atlanta Federal Center, 61 Forsyth Street, S.W., Atlanta, Georgia
30303, and is available for viewing from 9:00 a.m. to 4:00 p.m., Monday
through Friday, excluding Federal holidays.
The reference number for this docket is R4-00-01-BMWF. 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
copying at the South Carolina Department of Health and Environmental
Control, please see below.
FOR FURTHER INFORMATION CONTACT: For general and technical information
concerning this final rule, please contact Judy Sophianopoulos, RCRA
Enforcement and Compliance Branch (Mail Code 4WD-RCRA), U.S.
Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal
Center, 61 Forsyth Street, S.W., Atlanta, Georgia 30303, (404) 562-
8604, or call, toll free (800) 241-1754, and leave a message, with your
name and phone number, for Ms. Sophianopoulos to return your call.
Questions may also be e-mailed to Ms. Sophianopoulos at
[email protected]. You may also contact Cindy Carter,
Appalachia III District, South Carolina Department of Health and
Environmental Control (SCDHEC), 975C North Church Street, Spartanburg,
South Carolina. If you wish to copy documents at SCDHEC, please contact
Ms. Carter for copying procedures and costs.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Background
A. What Is a Delisting Petition?
B. What Laws and Regulations Give EPA the Authority to Delist
Wastes?
C. What is the History of this Rulemaking?
II. Summary of Delisting Petition Submitted by BMW Manufacturing
Corporation, Greer, South Carolina (BMW)
A. What Waste Did BMW Petition EPA to Delist?
B. What Information Did BMW Submit to Support This Petition?
III. EPA's Evaluation and Final Rule
A. What Decision Is EPA Finalizing and Why?
B. What Are the Terms of This Exclusion?
C. When Is the Delisting Effective?
D. How Does This Action Affect the States?
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
B. Comments and Responses From EPA
V. Regulatory Impact
VI. Congressional Review Act
VII. Executive Order 12875
I. Background
A. What Is a Delisting Petition?
A delisting petition is a request made by a hazardous waste
generator to exclude one or more of his/her wastes from the lists of
RCRA-regulated hazardous wastes in Secs. 261.31, 261.32, and 261.33 of
Title 40 of the Code of Federal Regulations (40 CFR 261.31, 261.32, and
261.33). The regulatory requirements for a delisting petition are in 40
CFR 260.20 and 260.22. EPA, Region 6 has prepared a guidance manual,
Region 6 Guidance Manual for the Petitioner,\1\ which is recommended by
EPA Headquarters in Washington, DC and all EPA Regions.
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\1\ This manual may be down-loaded from Region 6's Web Site at
the following URL address: http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dlistpdf.htm
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B. What Laws and Regulations Give EPA the Authority To Delist Wastes?
On January 16, 1981, as part of its final and interim final
regulations implementing section 3001 of RCRA, EPA published an amended
list of hazardous wastes from non-specific and specific sources. This
list has been amended several times, and is published in 40 CFR 261.31
and 261.32. These wastes are listed as hazardous because they exhibit
one or more of the characteristics of hazardous wastes identified in
subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and
toxicity) or meet the criteria for listing contained in Sec. 261.11
(a)(2) or (a)(3). Discarded commercial chemical product wastes which
meet the listing criteria are listed in Sec. 261.33(e) and (f).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
that is described in these regulations generally is hazardous, a
specific waste from an individual facility meeting the listing
description may not be. For this reason, Secs. 260.20 and 260.22
provide an exclusion procedure, allowing persons to demonstrate that a
specific waste from a particular generating facility should not be
regulated as a hazardous waste.
To have their wastes excluded, petitioners must show, first, that
wastes generated at their facilities do not meet any of the criteria
for which the wastes were listed. See Sec. 260.22(a) and the background
documents for the listed wastes. Second, the Administrator must
determine, where he/she has a reasonable basis to believe that factors
(including additional constituents) other than those for which the
waste was listed could cause the waste to be a hazardous waste, that
such factors do not warrant retaining the waste as a hazardous waste.
Accordingly, a petitioner also must demonstrate that the waste does not
exhibit any of the hazardous waste characteristics (i.e., ignitability,
reactivity, corrosivity, and toxicity), and must present sufficient
information for the EPA to determine whether the waste contains any
other toxicants at hazardous levels. See Sec. 260.22(a), 42 U.S.C.
6921(f), and the background documents for the listed wastes. Although
wastes which are ``delisted'' (i.e., excluded) have been evaluated to
determine whether or not they exhibit any of the characteristics of
hazardous waste, generators remain obligated under RCRA to determine
whether or not their wastes continue to be nonhazardous based on the
hazardous waste characteristics (i.e., characteristics which may be
promulgated subsequent to a delisting decision.)
In addition, residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
are also considered hazardous wastes. See 40 CFR 261.3 (a)(2)(iv) and
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,
respectively. Such wastes are also eligible for exclusion and remain
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of
Appeals for the District of
[[Page 21879]]
Columbia vacated the ``mixture/derived-from'' rules and remanded them
to the EPA on procedural grounds. Shell Oil Co. v. EPA, 950 F.2d 741
(D.C. Cir. 1991). On March 3, 1992, EPA reinstated the mixture and
derived-from rules, and solicited comments on other ways to regulate
waste mixtures and residues (57 FR 7628). These rules became final on
October 30, 1992 (57 FR 49278), and should be consulted for more
information regarding waste mixtures and solid wastes derived from
treatment, storage, or disposal of a hazardous waste. The mixture and
derived-from rules are codified in 40 CFR 261.3 (b)(2) and (c)(2)(i).
EPA plans to address waste mixtures and residues when the final portion
of the Hazardous Waste Identification Rule (HWIR) is promulgated.
On October 10, 1995, the Administrator delegated to the Regional
Administrators the authority to evaluate and approve or deny petitions
submitted in accordance with Secs. 260.20 and 260.22 by generators
within their Regions (National Delegation of Authority 8-19) in States
not yet authorized to administer a delisting program in lieu of the
Federal program. On March 11, 1996, the Regional Administrator of EPA,
Region 4, redelegated delisting authority to the Director of the Waste
Management Division (Regional Delegation of Authority 8-19).
C. What Is the History of This Rulemaking?
BMW manufactures BMW automobiles, and is seeking a delisting for
the sludge that will be generated by treating wastewater from its
manufacturing operations, when aluminum will be used to replace some of
the steel in the automobile bodies. Wastewater treatment sludge does
not meet a hazardous waste listing definition when steel-only
automobile bodies are manufactured. However, the wastewater treatment
sludge generated at automobile manufacturing plants where aluminum is
used as a component of automobile bodies, meets the listing definition
of F019 in Sec. 261.31.\2\
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\2\ ``Wastewater treatment sludges from the chemical conversion
coating of aluminum except from zirconium phosphating in aluminum
can washing when such phosphating is an exclusive conversion coating
process.''
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BMW petitioned EPA, Region 4, on June 2, 2000, to exclude this F019
waste on a generator-specific basis from the lists of hazardous wastes
in 40 CFR part 261, subpart D.
The hazardous constituents of concern for which F019 was listed are
hexavalent chromium and cyanide (complexed). BMW petitioned the EPA to
exclude its F019 waste because BMW does not use either of these
constituents in the manufacturing process. Therefore, BMW does not
believe that the waste meets the criteria of the listing.
BMW claims that its F019 waste will not be hazardous because the
constituents of concern for which F019 is listed will be present only
at low concentrations and will not leach out of the waste at
significant concentrations. BMW also believes that this waste will not
be hazardous for any other reason (i.e., there will be no additional
constituents or factors that could cause the waste to be hazardous).
Review of this petition included consideration of the original listing
criteria, as well as the additional factors required by the Hazardous
and Solid Waste Amendments (HSWA) of 1984. See section 222 of HSWA, 42
U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). As a result of the EPA's
evaluation of BMW's petition, the Agency proposed to grant a delisting
to BMW, on February 12, 2001. See 66 FR 9781-9798, February 12, 2001,
for details. Today's rulemaking addresses public comments received on
the proposed rule and finalizes the proposed decision to grant BMW's
petition for delisting.
II. Summary of Delisting Petition Submitted by BMW Manufacturing
Corporation, Greer, South Carolina (BMW)
A. What Waste Did BMW Petition EPA To Delist?
BMW petitioned EPA, Region 4, on June 2, 2000, to exclude a maximum
annual weight of 2,400 tons (2,850 cubic yards) of its F019 waste, on a
generator-specific basis, from the lists of hazardous wastes in 40 CFR
part 261, subpart D. BMW manufactures BMW automobiles, and is seeking a
delisting for the sludge that will be generated by treating wastewater
from its manufacturing operations, when aluminum will be used to
replace some of the steel in the automobile bodies. Wastewater
treatment sludge does not meet a hazardous waste listing definition
when steel-only automobile bodies are manufactured. However, the
wastewater treatment sludge generated at automobile manufacturing
plants where aluminum is used as a component of automobile bodies meets
the listing definition of F019 in Sec. 261.31.
B. What Information Did BMW Submit To Support This Petition?
In support of its petition, BMW submitted: (1) Descriptions of its
manufacturing and wastewater treatment processes, the generation point
of the petitioned waste, and the manufacturing steps that will
contribute to its generation; (2) Material Safety Data Sheets (MSDSs)
for materials used to manufacture automobiles and to treat wastewater;
(3) the minimum and maximum annual amounts of wastewater treatment
sludge generated from 1996 through 1999, and an estimate of the maximum
annual amount expected to be generated in the future; (4) results of
analysis for metals, cyanide, sulfide, fluoride, and volatile organic
compounds in the currently generated waste at the BMW plants in Greer,
South Carolina, and Dingolfing, Germany; (5) results of the analysis of
leachate from these wastes, obtained by means of the Toxicity
Characteristic Leaching Procedure ((TCLP), SW-846 Method 1311 \3\); (6)
results of the determinations for the hazardous characteristics of
ignitability, corrosivity, and reactivity in these wastes; (7) results
of determinations of dry weight percent, bulk density, and free liquids
in these wastes; and (8) results of the analysis of the waste currently
generated at the plant in Greer, South Carolina, by means of the
Multiple Extraction Procedure (MEP), SW-846 Method 1320, in order to
evaluate the long-term resistance of the waste to leaching in a
landfill.
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\3\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this
publication are referred to in today's proposed rule as ``SW-846,''
followed by the appropriate method number.
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The hazardous constituents of concern for which F019 was listed are
hexavalent chromium and cyanide (complexed). BMW petitioned the EPA to
exclude its F019 waste because BMW does not believe that the waste
meets the criteria of the listing.
BMW submitted to the EPA analytical data from its Greer, South
Carolina plant and from the BMW plant in Dingolfing, Germany. Four
composite samples of wastewater treatment sludge, from approximately 60
batches of wastewater, were collected from each plant over a three-week
period. Based on this information, EPA identified the following
constituents of concern: barium, cadmium, chromium, cyanide, lead, and
nickel. The maximum reported concentrations of the toxicity
characteristic (TC) metals barium, cadmium, chromium, and lead in the
[[Page 21880]]
TCLP extracts of the samples were below the TC regulatory levels. The
maximum reported concentration of total cyanide in unextracted waste
was 3.35 milligrams per kilogram (mg/kg), which is greater than the
generic exclusion level of 1.8 mg/kg for high temperature metal
recovery (HTMR) residues in 40 CFR 261.3(c)(2)(ii)(C)(1), and less than
590 mg/kg, the Land Disposal Restrictions (LDR) Universal Treatment
Standards (UTS) level, in section 268.48. Chromium was undetected in
the TCLP extract of any sample. The maximum reported concentration of
chromium in unextracted samples was 100 mg/kg for the German plant and
222 mg/kg for the Greer, South Carolina plant. The maximum
concentration of nickel in the TCLP extract of any sample was 0.73
milligrams per liter (mg/l) for the German plant and 6.25 mg/l for the
Greer, South Carolina plant. The maximum reported concentration of
nickel in unextracted samples was 6,500 mg/kg for the German plant and
1,700 mg/kg for the Greer, South Carolina plant. See the proposed rule,
66 FR 9781-9798, February 12, 2001, for details on BMW's analytical
data, production process, and generation process for the petitioned
waste. EPA does not generally verify submitted test data before
proposing delisting decisions. The sworn affidavit submitted with this
petition binds the petitioner to present truthful and accurate results.
The Agency, however, has maintained a spot-check sampling and analysis
program to verify the representative nature of data for some percentage
of the submitted petitions. A spot-check visit to a selected facility
may be initiated before or after granting a delisting. Section 3007 of
RCRA gives EPA the authority to conduct inspections to determine if a
delisted waste is meeting the delisting conditions.
III. EPA's Evaluation and Final Rule
A. What Decision Is EPA Finalizing and Why?
For reasons stated in both the proposal and this final rule, EPA
believes that BMW's petitioned waste should be excluded from hazardous
waste control. EPA, therefore, is granting a final generator-specific
exclusion to BMW, of Greer, South Carolina, for a maximum annual
generation rate of 2,850 cubic yards of the waste described in its
petition as EPA Hazardous Waste Number F019. This waste is required to
undergo verification testing before being considered as excluded from
Subtitle C regulation. Requirements for waste to be land disposed have
been included in this exclusion. The exclusion applies only to the
waste as described in BMW's petition, dated June 2000.
Although management of the waste covered by this petition is
relieved from Subtitle C jurisdiction, the generator of the delisted
waste must either treat, store, or dispose of the waste in an on-site
facility, or ensure that the waste is delivered to an off-site storage,
treatment, or disposal facility, either of which is permitted, licensed
or registered by a State to manage municipal or industrial solid waste.
Alternatively, the delisted waste may be delivered to a facility that
beneficially uses or reuses, or legitimately recycles or reclaims the
waste, or treats the waste prior to such beneficial use, reuse,
recycling, or reclamation. See 40 CFR part 260, appendix I. BMW's
preferred method of waste management for its delisted waste is
recycling, rather than land disposal. Nonhazardous waste management is
subject to all applicable federal, state, and local regulations.
B. What Are the Terms of This Exclusion?
In the rule proposed on February 12, 2001, EPA requested public
comment on which of the following possible methods should be used to
evaluate BMW's delisting petition and set delisting levels for the
petitioned waste (see 66 FR 9781-9798, February 12, 2001):
(1) Delisting levels based on the EPA Composite Model for Landfills
(EPACML), modified for delisting; (2) delisting levels based on the EPA
Composite Model for Leachate Migration with Transformation Products
(EPACMTP model) as used in EPA, Region 6's Delisting Risk Assessment
Software (DRAS); (3) use of the Multiple Extraction Procedure (MEP),
SW-846 Method 1320, to evaluate the long-term resistance of the waste
to leaching in a landfill; (4) setting limits on total concentrations
of constituents in the waste that are more conservative than results of
calculations of constituent release from waste in a landfill to surface
water and air, and release during waste transport; and (5) setting
delisting levels at the Land Disposal Restrictions (LDR) Universal
Treatment Standards (UTS) levels in 40 CFR 268.48. See the proposed
rule, 66 FR 9781-9798, February 12, 2001, for details of calculating
delisting levels using these methods.
After considering all public comments on the proposed rule, and the
MEP analysis of the petitioned waste which indicated long-term
resistance to leaching (see 66 FR 9793-9794, February 12, 2001), EPA is
granting BMW, in today's final rule, an exclusion from the lists of
hazardous wastes in subpart D of 40 CFR part 261 for its petitioned
waste when disposed in a Subtitle D \4\ landfill. BMW must meet all of
the following delisting conditions in order for this exclusion to be
valid: (1) Delisting levels in mg/l in the TCLP extract of the waste
based on the DRAS EPACMTP model of 100.0 \5\ for Barium, 1.0 for
Cadmium, 5.0 for Chromium, 33.6 for Cyanide, 5.0 for Lead, and 70.3 for
Nickel; (2) the total concentration of cyanide (total, not amenable) in
the waste, not the waste leachate, must not exceed 200 mg/kg; (3) the
total concentrations, in mg/kg, of metals in the waste, not the waste
leachate, must not exceed 2,000 for Barium, 500 for Cadmium, 1,000 for
Chromium, 2,000 for Lead, and 20,000 for Nickel.
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\4\ The term, ``Subtitle D landfill,'' refers to a landfill that
is licensed to land dispose nonhazardous wastes, that is, wastes
that are not RCRA hazardous wastes. A Subtitle D landfill is subject
to federal standards in 40 CFR parts 257 and 258 and to state and
local regulations for nonhazardous wastes and nonhazardous waste
landfills.
\5\ Delisting levels cannot exceed the Toxicity Characteristic
(TC) regulatory levels. Therefore, although the DRAS EPACMTP
calculates higher concentrations (see the proposed rule, 66 FR 9793,
February 12, 2001, and Table 1, below), the delisting levels in the
final rule are set at the TC levels for barium, cadmium, chromium,
and lead. In order for the waste to be delisted, concentrations in
the TCLP extract of the waste must be less than the TC levels. See
the regulatory definition of a TC waste in 40 CFR 261.24.
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Delisting levels and risk levels calculated by DRAS, using the
EPACMTP model, are presented in Table 1 below.\6\ DRAS found that the
major pathway for human exposure to this waste is groundwater
ingestion, and calculated delisting and risk levels based on that
pathway. For details, see the following Federal Registers: 65 FR 75637-
75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000; and the
proposed rule for BMW's petitioned waste, 66 FR 9792-9793, February 12,
2001.
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\6\ Table 1 is identical to Table 3B of the proposed rule (66 FR
9793, February 12, 2001), except that typographical errors for the
entries for lead and chromium have been corrected in response to
verbal comments by BMW. Specifically, the DRAS-calculated delisting
level for chromium was corrected to read ``5.39 x 10\5\*,''
instead of ``5.39 x 10\-\\5\,'' and the DAF for lead was corrected
to read ``1.24 x 10\4\,'' instead of ``1.24 x 10-4.''
The acronym, ``DAF,'' in Table 1, means the Dilution Attenuation
Factor calculated by DRAS. The ``*'' in Table 1 means that the DRAS-
calculated delisting level exceeds the Toxicity Characteristic
regulatory level. See Footnote 5 above.
[[Page 21881]]
Table 1.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for BMW Petitioned Waste
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DRAS-calculated hazard
DRAS-calculated risk for quotient for maximum
Constituent Delisting level (mg/l TCLP) DAF maximum concentration of concentration of non-
carcinogen in waste carcinogen in waste
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Barium.............................. 182* 69.2 ........................... 4.87 x 10-2
Cadmium............................. 1.4* 74.6 1.62 x 10-13 3.57 x 10-2
Chromium............................ 5.39 x 105* 9,580 ........................... 5.8 x 10-7
Cyanide............................. 33.6 44.8 ........................... 1.49 x 10-3
Lead................................ 187* 1.24 x 104 ........................... Not Calculable; No
Reference Dose for Lead
Nickel.............................. 70.3 93.5 ........................... 8.9 x 102
Total Hazard Quotient for All Waste ........................... ........................... ........................... 0.187
Constituents.
Total Carcinogenic Risk for the ........................... ........................... 1.62 x 10-13 ...........................
Waste (due to Cadmium).
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EPA believes that the limits on total concentrations in conditions
(2) and (3) above are protective of human health and the environment,
and that they are appropriate, given that the delisted waste is not
subject to regulation as a hazardous waste. EPA also believes that
these limits are realistic, attainable values for wastewater treatment
sludges that contain metals and cyanide. The limit for cyanide was
chosen so that the waste could not exhibit the reactivity
characteristic for cyanide by exceeding the interim guidance for
reactive cyanide of 250 mg/kg of releasable hydrogen cyanide (SW-846,
Chapter Seven, section 7.3.3.)
After taking into account all public comments on the proposed rule,
EPA is retaining in today's final rule to exclude BMW's petitioned
waste Conditions (2) through (7) in Table 1, appendix IX of part 261 of
the proposed rule (66 FR 9796-9798, February 12, 2001). In response to
public comments, EPA is changing Condition (1) for BMW's waste in
Appendix IX, by replacing the proposed delisting levels in the TCLP
leachate with the leachate delisting levels in the first condition of
today's Preamble, section III.B: delisting levels, in mg/l in the TCLP
extract of the waste, of 100.0 \7\ for Barium, 1.0 for Cadmium, 5.0 for
Chromium, 33.6 for Cyanide, 5.0 for Lead, and 70.3 for Nickel. The
limits on total concentrations in today's final rule are the same as
proposed in Condition (1) of Table 1, appendix IX, part 261: The total
concentration of cyanide (total, not amenable) in the waste, not the
waste leachate, must not exceed 200 mg/kg; the total concentrations, in
mg/kg, of metals in the waste, not the waste leachate, must not exceed
2,000 for Barium, 500 for Cadmium, 1,000 for Chromium, 2,000 for Lead,
and 20,000 for Nickel.
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\7\ Delisted wastes cannot exhibit a hazardous waste
characteristic. Therefore, when delisting levels are set at the
Toxicity Characteristic (TC) regulatory levels, the TCLP extract of
the petitioned waste must have concentrations less than the TC
levels in order to meet conditions for delisitng. Although the DRAS
EPACMTP calculates higher concentrations (see the proposed rule, 66
FR 9793, February 12, 2001, and Table 1, section III.B. of today's
preamble), the delisting levels in the final rule are set at the TC
levels for barium, cadmium, chromium, and lead.
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C. When Is the Delisting Effective?
This rule is effective on May 2, 2001. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here, because this rule reduces the existing requirements for
persons generating hazardous wastes. In light of the unnecessary
hardship and expense that would be imposed on this petitioner by an
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of section 3010,
EPA believes that this exclusion should be effective immediately upon
final publication.
These reasons also provide a basis for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, pursuant to 5 U.S.C. 553(d).
D. How Does This Action Affect the States?
The final exclusion being granted today is issued under the Federal
(RCRA) delisting program. States, however, are allowed to impose their
own non-RCRA regulatory requirements that are more stringent than
EPA's, pursuant to section 3009 of RCRA. These more stringent
requirements may include a provision which prohibits a Federally-issued
exclusion from taking effect in the States. Because a petitioner's
waste may be regulated under a dual system (i.e., both Federal (RCRA)
and State (non-RCRA) programs, petitioners are urged to contact State
regulatory authorities to determine the current status of their wastes
under the State laws.
Furthermore, some States are authorized to administer a delisting
program in lieu of the Federal program, i.e., to make their own
delisting decisions. Therefore, this exclusion does not apply in those
authorized States. If the petitioned waste will be transported to and
managed in any State with delisting authorization, BMW must obtain
delisting authorization from that State before the waste may be managed
as nonhazardous in that State.
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
EPA received public comments on the proposed rule published in 66
FR 9781-9798, February 12, 2001, from (1) BMW Manufacturing
Corporation, Greer, South Carolina (BMW), the petitioner, (2) Alliance
of Automobile Manufacturers, Washington, DC, (3) Nissan North America,
Inc., Smyrna, Tennessee, and (4) The Aluminum Association, Washington,
DC. EPA commends and appreciates the thoughtful comments submitted by
all of the commenters.
B. Comments and Responses From EPA
Comment: BMW stated that the Land Disposal Restrictions (LDR)
should not be used to establish delisting levels, because there is no
scientific or regulatory basis for their use. BMW also stated, in
support of this position, that EPA had decided not to establish
delisting levels based on LDR, in
[[Page 21882]]
response to public comments on a previously proposed rule to delist
F019 waste (64 FR 55443, October 13, 1999).
Response: EPA has decided not to set delisting levels based on LDR
for BMW's petitioned waste, and the final delisting levels in appendix
IX of part 261 established in today's final rule are not based on LDR.
The analytical data submitted by BMW indicate that the petitioned
waste, when generated, would meet LDR treatment standards. See the
proposed rule, 66 FR 9790-9792, February 12, 2001, and today's
preamble, section II.B.
Comment: BMW disagrees with EPA's proposed method of setting
delisting levels based on total concentrations, because there is no
scientific correlation between total concentrations of metals and
environmental impact. BMW stated that EPA modeling and testing
demonstrate that harmful concentrations of constituents will not leach
from the petitioned waste.
Response: BMW brings up some significant issues in this comment and
makes some good points. However, EPA feels that the proposed limits on
total concentrations are reasonable, given that the delisted waste will
not be subject to regulation as a hazardous waste under RCRA Subtitle
C. These limits will provide added reassurance to the public that
management of the waste as nonhazardous will be protective of human
health and the environment.
Comment: BMW disagrees with EPA's proposal to base delisting levels
on the EPACML model (66 FR 9792-9793, 9797, February 12, 2001). BMW
stated that if the new EPACMTP model ``is truly based on improved
science, the concentration limits calculated by the model should be the
basis for establishing delisting levels.''
Response: EPA agrees with the points made in this comment, and
today's final rule uses the DRAS EPACMTP as the basis for the delisting
levels in the TCLP extract of the waste. As stated in today's preamble,
section III.B., concentrations in the TCLP extract of the waste (in mg/
l) are limited to 100.0 \8\ for Barium, 1.0 for Cadmium, 5.0 for
Chromium, 33.6 for Cyanide, 5.0 for Lead, and 70.3 for Nickel.
---------------------------------------------------------------------------
\8\ Delisted wastes cannot exhibit a hazardous waste
characteristic. Therefore, when delisting levels are set at the
Toxicity Characteristic (TC) regulatory levels, the TCLP extract of
the petitioned waste must have concentrations less than the TC
levels in order to meet conditions for delisting. Although the DRAS
EPACMTP calculates higher concentrations (see the proposed rule, 66
FR 9793, February 12, 2001, and Table 1, section III.B. of today's
preamble), the delisting levels in the final rule are set at the TC
levels for barium, cadmium, chromium, and lead.
---------------------------------------------------------------------------
Comment: The Alliance of Automobile Manufacturers (Alliance) stated
that it strongly supports the proposed delisting, and agrees with EPA
that fate and transport models are useful tools to evaluate delisting
petitions. However, the Alliance believes that the F019 listing itself
should be revised to exclude wastewater treatment sludges from
automotive industry conversion coating on aluminum when hexavalent
chromium and cyanides are not used in the process.
Response: Today's final rule is site-specific and waste-specific;
it applies only to BMW's plant in Greer, South Carolina, and only to
the petitioned waste. An exclusion of general applicability would
require a separate rule-making, with more extensive data collection and
risk analysis. EPA understands the Alliance's concern about the need
for each auto company to submit a delisting petition, but is unable to
address this concern at the present time.
Comment: The Alliance disagrees with EPA's proposed use of (1) the
MEP to evaluate BMW's delisting petition; (2) establishing delisting
levels based on total concentrations; and (3) establishing delisting
levels based on LDR treatment standards.
Response: (1) EPA used MEP analysis of the petitioned waste as a
measure of the long-term resistance of the waste to leaching (see 66 FR
9789, 9793-9794, February 12, 2001), which is an important
consideration for waste to be disposed in a Subtitle D (nonhazardous
waste) landfill. (2) The Alliance brings up some significant issues in
this comment and makes some good points. However, EPA feels that the
proposed limits on total concentrations are reasonable, given that the
delisted waste will not be subject to regulation as a hazardous waste
under RCRA Subtitle C. These limits will provide added reassurance to
the public that management of the waste as nonhazardous will be
protective of human health and the environment. (3) EPA has decided not
to set delisting levels based on LDR for BMW's petitioned waste, and
the final delisting levels in appendix IX of part 261 established in
today's final rule are not based on LDR. The analytical data submitted
by BMW indicate that the petitioned waste, when generated, would meet
LDR treatment standards. See the proposed rule, 66 FR 9790-9792,
February 12, 2001, and today's preamble, section II.B.
Comment: The Alliance commented on the use of the EPACMTP and DRAS
by saying that their use should be the subject of a separate rulemaking
because they raise complex issues that EPA should not try to resolve in
this delisting.
Response: Use of the EPACMTP and DRAS has been described in detail
in 65 FR 75637-75651, December 4, 2000, and 65 FR 58015-58031,
September 27, 2000. The December 4, 2000 Federal Register discusses the
key enhancements of the EPACMTP and the details are provided in the
background documents to the proposed 1995 Hazardous Waste
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The
background documents are available through the RCRA HWIR FR proposal
docket (60 FR 66344, December 21, 1995). For every delisting petition
submitted to EPA, EPA proposes and requests comment on all available
methods for evaluating the petition and setting delisting levels,
including the EPACMTP and DRAS. Thus, these models, and future
improvements, will be proposed for comment in every delisting
rulemaking.
Comment: Nissan North America, Inc. (Nissan) stated that none of
the following methods proposed by EPA is appropriate for evaluating
BMW's petition and setting delisting levels for the petitioned waste:
(1) Use of the MEP; (2) setting limits on total concentrations; and (3)
setting delisting levels at the LDR UTS levels in 40 CFR 268.48.
Response: (1) EPA used MEP analysis of the petitioned waste as a
measure of the long-term resistance of the waste to leaching (see 66 FR
9789, 9793-9794, February 12, 2001), which is an important
consideration for waste to be disposed in a Subtitle D (nonhazardous
waste) landfill. (2) Nissan's points are well taken, but EPA feels that
the proposed limits on total concentrations are reasonable, given that
the delisted waste will not be subject to regulation as a hazardous
waste under RCRA Subtitle C. These limits will provide added
reassurance to the public that management of the waste as nonhazardous
will be protective of human health and the environment. (3) EPA has
decided not to set delisting levels based on LDR for BMW's petitioned
waste, and the final delisting levels in appendix IX of part 261
established in today's final rule are not based on LDR. The analytical
data submitted by BMW indicate that the petitioned waste, when
generated, would meet LDR treatment standards. See the proposed rule,
66 FR 9790-9792, February 12, 2001, and today's preamble, section II.B.
Comment: The Aluminum Association (TAA) stated that the
restrictions imposed in the proposed
[[Page 21883]]
rule (66 FR 9781-9798, February 12, 2001) may have an impact on future
delistings submitted by aluminum industry customers that use aluminum
parts in the manufacture of automobiles.
Response: TAA's concern is understandable, but today's final rule
is site-specific and waste-specific. It applies only to BMW's plant in
Greer, South Carolina, and only to the petitioned waste. EPA evaluates
every delisting petition on its own merits, in accordance with 40 CFR
260.20 and 260.22, and every proposed and final rule on delisting is
site-specific and waste-specific.
Comment: TAA expressed support for the proposed delisting and the
determination that BMW's petitioned waste is nonhazardous. TAA also
expressed support for all of the comments on the proposal submitted by
the Alliance of Automobile Manufacturers (Alliance): (1) The F019
listing definition needs to be changed so that conversion coating
processes are excluded when they don't use the constituents of concern
that were the basis of the original listing; (2) BMW's waste should not
be evaluated by means of the MEP; (3) limits for total concentrations
in BMW's waste should not be set; (4) delisting levels for BMW's waste
should not be based on the LDR UTS; and (5) EPA should use a separate
notice and comment rulemaking for use of the EPACMTP and DRAS.
Response: (1) Today's final rule is site-specific and waste-
specific; it applies only to BMW's plant in Greer, South Carolina, and
only to the petitioned waste. An exclusion of general applicability
would require a separate rule-making, with more extensive data
collection and risk analysis. EPA understands the concern of TAA and
the Alliance about the need for each auto company to submit a delisting
petition, but is unable to address this concern at the present time.
(2) EPA used MEP analysis of the petitioned waste as a measure of the
long-term resistance of the waste to leaching (see 66 FR 9789, 9793-
9794, February 12, 2001), which is an important consideration for waste
to be disposed in a Subtitle D (nonhazardous waste) landfill. (3) EPA
feels that the proposed limits on total concentrations are reasonable,
given that the delisted waste will not be subject to regulation as a
hazardous waste under RCRA Subtitle C. These limits will provide added
reassurance to the public that management of the waste as nonhazardous
will be protective of human health and the environment. (4) EPA has
decided not to set delisting levels based on LDR for BMW's petitioned
waste, and the final delisting levels in appendix IX of part 261
established in today's final rule are not based on LDR. The analytical
data submitted by BMW indicate that the petitioned waste, when
generated, would meet LDR treatment standards. See the proposed rule,
66 FR 9790-9792, February 12, 2001, and today's preamble, section II.B.
(5) Use of the EPACMTP and DRAS has been described in detail in 65 FR
75637-75651, December 4, 2000 and 65 FR 58015-58031, September 27,
2000. The December 4, 2000 Federal Register discusses the key
enhancements of the EPACMTP and the details are provided in the
background documents to the proposed 1995 Hazardous Waste
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The
background documents are available through the RCRA HWIR FR proposal
docket (60 FR 66344, December 21, 1995). For every delisting petition
submitted to EPA, EPA proposes and requests comment on all available
methods for evaluating the petition and setting delisting levels,
including the EPACMTP and DRAS. Thus, these models, and future
improvements, will be proposed for comment in every delisting
rulemaking.
V. Regulatory Impact
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a rule of general applicability and therefore is not a
``regulatory action'' subject to review by the Office of Management and
Budget. Because this action is a rule of particular applicability
relating to a 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 the rule will affect only one
facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA, or communities of
tribal governments, as specified in Executive Order 13084 (63 FR 27655,
May 10, 1998). For the same reason, this rule will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.
This rule does not involve technical standards; thus, the
requirements of section 12(c) 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 (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. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
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.).
VI. Congressional Review Act
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 Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, the Comptroller General of the United States prior to
publication of the final rule in the Federal Register. This rule is not
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will become
effective on the date of publication in the Federal Register.
VII. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting
[[Page 21884]]
elected officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
List 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: April 10, 2001.
Richard D. Green,
Director, Waste Management Division.
For the reasons set out in the preamble, 40 CFR part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 1 of appendix IX, part 261 add the following
wastestream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and
260.22
Table 1.--Wastes Excluded From Non-Specific Sources
------------------------------------------------------------------------
Facility Address Waste description
------------------------------------------------------------------------
* * * *
* * *
BMW Manufacturing Corporation. Greer, South Wastewater treatment
Carolina. sludge (EPA
Hazardous Waste No.
F019) that BMW
Manufacturing
Corporation (BMW)
generates by
treating wastewater
from automobile
assembly plant
located on Highway
101 South in Greer,
South Carolina. This
is a conditional
exclusion for up to
2,850 cubic yards of
waste (hereinafter
referred to as ``BMW
Sludge'') that will
be generated each
year and disposed in
a Subtitle D
landfill after May
2, 2001. With prior
approval by the EPA,
following a public
comment period, BMW
may also
beneficially reuse
the sludge. BMW must
demonstrate that the
following conditions
are met for the
exclusion to be
valid.
(1) Delisting Levels:
All leachable
concentrations for
these metals must be
less than the
following levels
(ppm): Barium--
100.0; Cadmium--1.0;
Chromium--5.0; and
Lead--5.0. All
leachable
concentrations for
cyanide and nickel
must not exceed the
following levels
(ppm): Cyanide--
33.6; and Nickel--
70.3. These metal
and cyanide
concentrations must
be measured in the
waste leachate
obtained by the
method specified in
40 CFR 261.24,
except that for
cyanide, deionized
water must be the
leaching medium. The
total concentration
of cyanide (total,
not amenable) in the
waste, not the waste
leachate, must not
exceed 200 mg/kg.
Cyanide
concentrations in
waste or leachate
must be measured by
the method specified
in 40 CFR 268.40,
Note 7. The total
concentrations of
metals in the waste,
not the waste
leachate, must not
exceed the following
levels (ppm):
Barium--2,000;
Cadmium--500;
Chromium--1,000;
Lead--2,000; and
Nickel--20,000.
(2) Verification
Testing
Requirements: Sample
collection and
analyses, including
quality control
procedures, must be
performed according
to SW-846
methodologies, where
specified by
regulations in 40
CFR parts 260-270.
Otherwise, methods
must meet
Performance Based
Measurement System
Criteria in which
the Data Quality
Objectives are to
demonstrate that
representative
samples of the BMW
Sludge meet the
delisting levels in
Condition (1).
(A) Initial
Verification
Testing: BMW must
conduct verification
sampling initially
when test runs of
aluminum vehicle
parts are run and
again when
production of
vehicles with
aluminum body parts
commences. For
verification
sampling during the
test runs, BMW must
collect and analyze
a minimum of four
composite samples of
the dewatered sludge
that is generated
from wastewater
treated during the
time of the test
runs. For
verification
sampling at the
initiation of the
production of
vehicle models with
aluminum parts, BMW
must collect a
minimum of four
composite samples
from the first roll-
off box of sludge
generated after
production of
automobiles with
aluminum parts
reaches 50 units per
day. BMW must
analyze for the
constituents listed
in Condition (1). If
BMW chooses to
beneficially reuse
sludge, and the
reuse has been
approved by EPA,
following a public
comment period,
verification testing
of the sludge must
consist of analyzing
a minimum of four
composite samples of
the sludge for the
constituents listed
in Condition (1).
[[Page 21885]]
(B) Subsequent
Verification
Testing: If the
initial verification
testing in Condition
(2)(A) is successful
for both the test
runs and the
commencement of
production, i.e.,
delisting levels of
Condition (1) are
met for all of the
composite samples,
BMW must implement
an annual testing
program to
demonstrate that
constituent
concentrations
measured in the TCLP
extract and total
concentrations
measured in the
unextracted waste do
not exceed the
delisting levels
established in
Condition (1).
(3) Waste Holding and
Handling: BMW must
store as hazardous
all BMW Sludge
generated until
verification
testing, as
specified in
Condition (2)(A), is
completed and valid
analyses demonstrate
that Condition (1)
is satisfied. If the
levels of
constituents
measured in the
composite samples of
BMW Sludge do not
exceed the levels
set forth in
Condition (1), then
the BMW Sludge is
non-hazardous and
must be managed in
accordance with all
applicable solid
waste regulations.
If constituent
levels in a
composite sample
exceed any of the
delisting levels set
forth in Condition
(1), the batch of
BMW Sludge generated
during the time
period corresponding
to this sample must
be managed and
disposed of in
accordance with
Subtitle C of RCRA.
(4) Changes in
Operating
Conditions: BMW must
notify EPA in
writing when
significant changes
in the manufacturing
or wastewater
treatment processes
are implemented. EPA
will determine
whether these
changes will result
in additional
constituents of
concern. If so, EPA
will notify BMW in
writing that the BMW
Sludge must be
managed as hazardous
waste F019 until BMW
has demonstrated
that the wastes meet
the delisting levels
set forth in
Condition (1) and
any levels
established by EPA
for the additional
constituents of
concern, and BMW has
received written
approval from EPA.
If EPA determines
that the changes do
not result in
additional
constituents of
concern, EPA will
notify BMW, in
writing, that BMW
must verify that the
BMW Sludge continues
to meet Condition
(1) delisting
levels.
(5) Data Submittals:
Data obtained in
accordance with
Condition (2)(A)
must be submitted to
Jewell Grubbs,
Chief, RCRA
Enforcement and
Compliance Branch,
Mail Code: 4WD-RCRA,
U.S. EPA, Region 4,
Sam Nunn Atlanta
Federal Center, 61
Forsyth Street,
Atlanta, Georgia
30303. This
submission is due no
later than 60 days
after filling the
first roll-off box
of BMW Sludge to be
disposed in
accordance with
delisting Conditions
(1) through (7) for
both the test runs
and again for the
commencement of
production. Records
of analytical data
from Condition (2)
must be compiled,
summarized, and
maintained by BMW
for a minimum of
three years, and
must be furnished
upon request by EPA
or the State of
South Carolina, and
made available for
inspection. Failure
to submit the
required data within
the specified time
period or maintain
the required records
for the specified
time will be
considered by EPA,
at its discretion,
sufficient basis to
revoke the exclusion
to the extent
directed by EPA. All
data must be
accompanied by a
signed copy of the
certification
statement in 40 CFR
260.22(i)(12).
[[Page 21886]]
(6) Reopener
Language: (A) If, at
any time after
disposal of the
delisted waste, BMW
possesses or is
otherwise made aware
of any environmental
data (including but
not limited to
leachate data or
groundwater
monitoring data) or
any other data
relevant to the
delisted waste
indicating that any
constituent
identified in the
delisting
verification testing
is at a level higher
than the delisting
level allowed by EPA
in granting the
petition, BMW must
report the data, in
writing, to EPA
within 10 days of
first possessing or
being made aware of
that data. (B) If
the testing of the
waste, as required
by Condition (2)(B),
does not meet the
delisting
requirements of
Condition (1), BMW
must report the
data, in writing, to
EPA within 10 days
of first possessing
or being made aware
of that data. (C)
Based on the
information
described in
paragraphs (6)(A) or
(6)(B) and any other
information received
from any source, EPA
will make a
preliminary
determination as to
whether the reported
information requires
that EPA take action
to protect human
health or the
environment. Further
action may include
suspending or
revoking the
exclusion, or other
appropriate response
necessary to protect
human health and the
environment. (D) If
EPA determines that
the reported
information does
require Agency
action, EPA will
notify the facility
in writing of the
action believed
necessary to protect
human health and the
environment. The
notice shall include
a statement of the
proposed action and
a statement
providing BMW with
an opportunity to
present information
as to why the
proposed action is
not necessary. BMW
shall have 10 days
from the date of
EPA's notice to
present such
information.
(E) Following the
receipt of
information from
BMW, as described in
paragraph (6)(D), or
if no such
information is
received within 10
days, EPA will issue
a final written
determination
describing the
Agency actions that
are necessary to
protect human health
or the environment,
given the
information received
in accordance with
paragraphs (6)(A) or
(6)(B). Any required
action described in
EPA's determination
shall become
effective
immediately, unless
EPA provides
otherwise.
(7) Notification
Requirements: BMW
must provide a one-
time written
notification to any
State Regulatory
Agency in a State to
which or through
which the delisted
waste described
above will be
transported, at
least 60 days prior
to the commencement
of such activities.
Failure to provide
such a notification
will result in a
violation of the
delisting conditions
and a possible
revocation of the
decision to delist.
* * * *
* * *
------------------------------------------------------------------------
[FR Doc. 01-10991 Filed 5-1-01; 8:45 am]
BILLING CODE 6560-50-U