[Federal Register Volume 67, Number 120 (Friday, June 21, 2002)]
[Rules and Regulations]
[Pages 42187-42198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15612]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-7235-1]
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 Nissan North America, Inc., Smyrna,
Tennessee (Nissan), to exclude (or ``delist'') a certain hazardous
waste from the lists of hazardous wastes. Nissan will generate the
petitioned waste by treating wastewater from Nissan's automobile
assembly plant in Smyrna, Tennessee 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. Nissan
petitioned EPA to grant a ``generator-specific'' delisting because
Nissan believes that its F019 waste does not meet the criteria for
which this type of waste was listed. EPA reviewed all of the waste-
specific information provided by Nissan, performed calculations, and
determined
[[Page 42188]]
that the waste could be disposed in a landfill without harming human
health and the environment. This action responds to Nissan'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, Nissan's petitioned
waste is excluded from the requirements of hazardous waste regulations
under Subtitle C of the Resource Conservation and Recovery Act (RCRA).
The petitioned waste remains subject to all applicable federal, state,
and local requirements for nonhazardous waste.
EFFECTIVE DATE: This rule is effective on June 21, 2002.
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, SW., Atlanta, Georgia
30303, and is available for viewing from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal holidays.
The reference number for this docket is R4-01-01-NissanF. 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 Tennessee Department of Environment and Conservation
(TDEC), 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, SW., 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 Nina Vo, Tennessee
Department of Environment and Conservation (TDEC), 5th Floor, L & C
Tower, 401 Church Street, Nashville, Tennessee 37243-1535, (615) 532-
9268. If you wish to copy documents at TDEC, please contact Ms. Vo 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 Nissan North America,
Inc., Smyrna, Tennessee (Nissan)
A. What Waste Did Nissan Petition EPA to Delist?
B. What Information Did Nissan 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. Analytical and Regulatory Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. What Economic and Equity Analyses Were Completed in Support
of the Proposed Delisting for Nissan's Wastewater Treatment Sludge?
C. What Substantive Comments Were Received on the Cost/Economic
Aspects of the Proposed Delisting for Nissan's Wastewater Treatment
Sludge?
D. What Are the Potential Costs and Benefits of Today's Final
Rule?
E. What Consideration Was Given to Small Entities Under the
Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
et. seq.?
F. Was the Unfunded Mandates Reform Act Considered in this Final
Rule?
G. Were Equity Issues and Children's Health Considered in this
Final Rule?
1. Executive Order 12898: Environmental Justice
2. Executive Order 13045: ``Protection of Children from
Environmental Health Risks and Safety Risks''
H. What Consideration Was Given to Tribal Governments?
I. Were Federalism Implications Considered in Today's Final
Rule?
J. Were Energy Impacts Considered?
VI. Paperwork Reduction Act
VII. National Technology Transfer and Advancement Act of 1995
VIII. The Congressional Review Act (5 U.S.C. 801 et seq., as Added
by the Small Business Regulatory Enforcement Fairness Act of 1996)
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 Sections 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, D.C. 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
[[Page 42189]]
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 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. On May 16, 2001, EPA amended the mixture and derived-from rules
for certain types of wastes (66 FR 27218 and 66 FR 27266). The mixture
and derived-from rules are codified in 40 CFR 261.3, paragraphs
(a)(2)(iv) and (c)(2)(i). EPA plans to address all 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 Sections 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?
Nissan manufactures light-duty vehicles, 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 vehicle 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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Nissan petitioned EPA, Region 4, on October 12, 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). Nissan petitioned the EPA
to exclude its F019 waste because Nissan does not use either of these
constituents in the manufacturing process. Therefore, Nissan does not
believe that the waste meets the criteria of the listing.
Nissan 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. Nissan 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 Nissan's petition, the Agency
proposed to grant a delisting to Nissan on November 19, 2001. See 66 FR
57918-57930, November 19, 2001, for details. Today's rulemaking
addresses public comments received on the proposed rule and finalizes
the proposed decision to grant Nissan's petition for delisting.
II. Summary of Delisting Petition Submitted by Nissan North America,
Inc., Smyrna, Tennessee (Nissan)
A. What Waste Did Nissan Petition EPA To Delist?
Nissan petitioned EPA, Region 4, on October 12, 2000, to exclude a
maximum annual weight of 2,000 tons (2,400 cubic yards) of its F019
waste, on an upfront, generator-specific basis, from the list of
hazardous wastes in 40 CFR part 261, subpart D. The Nissan assembly
plant in Smyrna, Tennessee, manufactures light-duty vehicles, 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 vehicle 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 Nissan Submit To Support This Petition?
In support of its petition, Nissan 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 vehicles; (3) the minimum and maximum
annual amounts of wastewater treatment sludge typically generated, and
an estimate of the maximum annual amount expected to be generated in
the future; (4) results of analysis of the currently generated waste at
the Nissan plant in Smyrna, Tennessee for the chemicals in Appendix IX
of 40 CFR part 264: 17 metals; cyanide; 58 volatile organic compounds
and 124 semi-volatile organic compounds; and, in addition to the
Appendix IX list, hexavalent chromium; (5) results of analysis for
those chemicals (i.e., Appendix IX list, hexavalent chromium) and
fluoride in the leachate obtained from this waste by means of the
Toxicity Characteristic Leaching Procedure ((TCLP), SW-846 Method
1311); (6) results of determinations for the hazardous characteristics
of ignitability, corrosivity, and reactivity, in this waste; (7)
results of determinations of percent
[[Page 42190]]
solids; and (8) results of a dye tracer study and source inventory of
Nissan's industrial wastewater system.
The hazardous constituents of concern for which F019 was listed are
hexavalent chromium and cyanide (complexed). Nissan petitioned the EPA
to exclude its F019 waste because Nissan does not believe that the
waste meets the criteria of the listing.
Nissan submitted to the EPA analytical data from its plant in
Smyrna, Tennessee. As described in the petition, samples of wastewater
treatment sludge were collected from roll-off containers over a one-
month period, in accordance with a sampling and analysis plan approved
by EPA and the Tennessee Department of Environment and Conservation.
The maximum reported concentrations of the toxicity characteristic (TC)
metals barium, cadmium, chromium, and lead in the 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
268.48. Chromium was undetected in the TCLP extract of any sample.
Please see the proposed rule, 66 FR 57918-57930, November 19, 2001, for
details on Nissan'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.
After reviewing the analytical data and information on processes
and raw materials that Nissan submitted in the delisting petition, EPA
developed a list containing the following constituents of concern:
Arsenic, Barium, Cadmium, Chromium, Cyanide, Lead, Nickel, Silver,
Vanadium, Zinc, Acetone, Bis-2-ethylhexyl phthalate, 2-Butanone,
Isobutyl alcohol, 4-Methyl phenol, Di-n-octyl phthalate, Phenol, and
Xylenes. EPA calculated delisting levels and risks for these
constituents using Delisting Risk Assessment Software (DRAS),\3\
developed by EPA, Region 6. The DRAS uses a new model, called the EPA
Composite Model for Leachate Migration with Transformation Products
(EPACMTP). Please see the proposed rule (66 FR 57918-57930, November
19, 2001) for details. EPA requested and received public comment on the
proposed use of DRAS and EPACMTP for calculating delisting levels and
risks for Nissan's petitioned waste.
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\3\ For more information on DRAS and EPACMTP, please see 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). URL addresses for Region 6
delisting guidance and software are the following:
1. Delisting Guidance Manual http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dlistpdt.htm
2. Delisting Risk Assessment Software (DRAS) http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm
3. DRAS Technical Support Document (DTSD) http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dtsd.htm
4. DRAS Users Guide http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/uguide.pdf
Region 6 has made them available to the public, free of charge.
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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 Nissan's petitioned waste should be excluded from
hazardous waste control. EPA, therefore, is granting a final generator-
specific exclusion to Nissan North America, Inc., of Smyrna, Tennessee,
for a maximum annual generation rate of 2,400 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 Nissan's petition,
dated October 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.
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 November 19, 2001, EPA requested public
comment on which of the following possible methods should be used to
evaluate Nissan's delisting petition and set delisting levels for the
petitioned waste (see 66 FR 57918-57930, November 19, 2001):
(1) 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); (2) use of DRAS-
calculated levels based on Safe Drinking Water Act Maximum Contaminant
Levels (MCLs) if more conservative delisting levels would be obtained;
(3) use of the Multiple Extraction Procedure (MEP), SW-846 Method 1320,
to evaluate the long-term resistance of the waste to leaching in a
landfill; (4) setting limits on total concentrations of constituents in
the waste 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; (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 57918-57930,
November 19, 2001, for details of calculating delisting levels using
these methods.
After considering all public comments on the proposed rule, EPA is
granting Nissan, 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. Nissan 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
[[Page 42191]]
the DRAS EPACMTP model of 100.0 \5\ for Barium, 0.422\6\ for Cadmium,
5.0 for Chromium, 10.1 for Cyanide, 5.0 for Lead, and 79.4 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 20,000 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
57918-57930, November 19, 2001, and Table 1, below), the delisting
levels in the final rule are set at the TC levels for barium,
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.
\6\ Delisting levels for cadmium and cyanide are based on MCLs
and are more conservative than calculations based on risk alone.
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EPA did not propose delisting levels for cobalt, copper, silver,
tin, vanadium, zinc, acetone, isobutyl alcohol, phenol, and xylenes,
because the DRAS-calculated TCLP levels for these constituents are at
least two orders of magnitude greater than the maximum reported
concentrations in the TCLP leachate of the petitioned waste. EPA did
not propose delisting levels for arsenic for the following reasons: (1)
TCLP leachate concentration was non-detect; (2) total concentration in
the unextracted waste was below the background soil concentration for
most of Tennessee, below the national average background, and three
orders of magnitude below the DRAS allowable total concentration; and
(3) DRAS found no ecological risk at the maximum reported
concentrations and a human cancer risk within the range of
10-4 to 10-6 assuming a TCLP concentration equal
to one-half the reporting limit of the analytical laboratory.
Therefore, today's final rule does not have delisting levels for
arsenic, cobalt, copper, silver, tin, vanadium, zinc, acetone, isobutyl
alcohol, phenol, and xylenes.
Delisting levels and risk levels calculated by DRAS, using the
EPACMTP model, are presented in Table 1 below. These levels promulgated
in today's final rule are the same as the levels proposed in Table 3 of
the proposed rule (66 FR 57918-57930, November 19, 2001). 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 Nissan's petitioned waste, 66 FR 57918-57930,
November 19, 2001.
Table 1.--Summary of Delisting Levels for Nissan's Petitioned Waste
------------------------------------------------------------------------
DRAS- Total
Calculated Concentrations
Constituent Delisting * (mg/kg in
Level (mg/ unextracted
l TCLP) waste)
------------------------------------------------------------------------
Inorganic Constituents
------------------------------------------------------------------------
Barium..................................... **100.0 20,000
Cadmium.................................... # 0.422 500
Chromium................................... **5.0 1,000
Cyanide (Total, not Amenable).............. # 10.1 200
Lead....................................... **5.0 2,000
Nickel..................................... 79.4 20,000
------------------------------------------------------------------------
Organic Constituents
------------------------------------------------------------------------
Bis(2-ethylhexyl) phthalate................ 0.0787 ..............
Di-n-octyl phthalate....................... 0.0984 ..............
4-Methylphenol............................. 10 ..............
------------------------------------------------------------------------
* These total concentration levels are more conservative (less than)
DRAS-calculated total concentration levels.
** DRAS-calculated delisting level was higher than the TC level;
therefore, the delisting level was set at the TC level.
# DRAS-calculated delisting levels for cadmium and cyanide are based on
MCLs.
After taking into account all public comments on the proposed rule,
EPA is retaining in today's final rule to exclude Nissan's petitioned
waste all conditions (Conditions (1) through (7)) in Table 1, Appendix
IX of part 261 of the proposed rule (66 FR 57918-57930, November 19,
2001). The final delisting levels are the same as those proposed and
are presented in Table 1 above.
C. When Is the Delisting Effective?
This rule is effective on June 21, 2002. 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, Nissan 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 57918-57930, November 19, 2001, from (1) Alliance of Automobile
Manufacturers, Washington, DC; (2) Nissan North America, Inc., Smyrna,
Tennessee, (Nissan), the petitioner; (3) Alcoa, Inc., Pittsburgh,
Pennsylvania; 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: The Alliance of Automobile Manufacturers (Alliance) stated
that it strongly supports the proposed delisting, and agrees that fate
and transport models may be 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
[[Page 42192]]
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 Nissan's plant in Smyrna, Tennessee, 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. Please see 67 FR
10341-10353, March 7, 2002, for a proposal by EPA, Region 5, in a
cooperative project with the State of Michigan, to address this
concern.
Comment: The Alliance disagrees with EPA's proposed use of (1) the
MEP to evaluate Nissan's delisting petition; (2) establishing delisting
levels based on total concentrations; and (3) establishing delisting
levels based on LDR treatment standards.
Response: (1) EPA has used MEP analysis of petitioned wastes in the
past as a measure of the long-term resistance of the waste to leaching
(see, for example, 47 FR 52687, Nov. 22, 1982; 61 FR 14696-14709, April
3, 1996; 65 FR 48436, August 8, 2000; and 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. As explained in
the response to the Alliance's second comment, EPA has decided not to
use the MEP to evaluate Nissan's petitioned waste. (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. EPA has decided not to use the MEP to
evaluate Nissan's petitioned waste, but will set the following limits
on total concentrations (in mg/kg) which are the same as those
proposed: Barium: 20,000; Cadmium: 500; Chromium: 1,000; Cyanide
(Total, not Amenable): 200; Lead: 2,000; and Nickel: 20,000. (3) EPA
has decided not to set delisting levels based on LDR for Nissan'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 Nissan indicate that the petitioned waste,
when generated, would meet LDR Universal Treatment Standards (UTS) for
all constituents of concern except Nickel, Zinc, Bis(2-ethylhexyl)
phthalate, Di-n-octyl phthalate, 4-Methylphenol, and Phenol. The
petitioned waste as generated meets the LDR UTS for F019
nonwastewaters, namely, Chromium (Total): 0.60 mg/L TCLP; Cyanides
(Total): 590 mg/kg; and Cyanides (Amenable) 30 mg/kg. See the proposed
rule, 66 FR 57918-57930, November 19, 2001.
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. TheDecember 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 directed EPA's attention to the following
typographical errors in the proposed rule (66 FR 57918-57930, November
19, 2001): (1) On page 57923, the Reactive Sulfide result for Sample
NS-04a should be changed from 280U to 280; and the TCLP result for Tin
in Sample NS-02a should be changed from 0.01U to 0.10U, in accordance
with the report sheets from the analytical laboratory; (2) On page
57922, the TCLP result for Copper in Sample NS-02a is missing; the
value 0.05U should be added; and (3) Footnote 6 is missing from page
57924.
Response: EPA is grateful to Nissan for pointing out the above
errors and will make the indicated corrections. (The errors for Tin and
Reactive Sulfide also occur in Table 6-4 of the petition; Section F of
the petition contains the analytical laboratory report sheets which
indicate the correct results.) Footnote 6, to be added to page 57924
should read: 6 Because 4-methylphenol could not be
distinguished from 3-methylphenol in all samples, the values reported
for 4-methylphenol in Table 1 include the values for 3-methylphenol.
In addition, EPA discovered a typographical error in Footnote 7 on
page 57926: the plus sign (+) should be changed to a division sign (/).
Footnote 7 should read: 7 This estimate would be based on
the following type of calculation for a 100-gram sample, using nickel
as an example: % nickel leached out over a long period of time = 100 x
(total number of milligrams of nickel in all the sample MEP extracts) /
the number of milligrams of nickel originally present in the 100-gram
sample.
Comment: Nissan disagrees with EPA's proposed method of setting
delisting levels based on the Land Disposal Restrictions (LDR)
Universal Treatment Standards (UTS) in 40 CFR 268.48. Nissan believes
that UTS levels are inappropriate for setting delisting levels, because
UTS levels were not designed for such a use, but were established to
determine whether a hazardous waste could be land disposed.
Response: EPA has decided not to set delisting levels based on LDR
UTS for Nissan'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 UTS. The analytical data submitted by Nissan indicate that the
petitioned waste, when generated, would meet LDR UTS for all
constituents of concern except Nickel, Zinc, Bis(2-ethylhexyl)
phthalate, Di-n-octyl phthalate, 4-Methylphenol, and Phenol. The
petitioned waste meets the LDR UTS for F019 nonwastewaters, namely,
Chromium (Total): 0.60 mg/L TCLP; Cyanides (Total): 590 mg/kg; and
Cyanides (Amenable) 30 mg/kg. See the proposed rule, 66 FR 57918-57930,
November 19, 2001.
Comment: Nissan disagrees with EPA's proposed method of setting
delisting levels based on the DRAS EPACMTP. Nissan believes that these
levels are inappropriate because they are more stringent than the
Toxicity Characteristic (TC) levels used to determine if a waste is
hazardous.
Response: Although there is understandable confusion between the
definition of hazardous waste and the delisting process, EPA has
decided to use the DRAS EPACMTP as the basis for the delisting levels
in the TCLP extract of Nissan's waste. The DRAS levels minimize the
risk to human health and the environment of land disposal in a
nonhazardous (Subtitle D) landfill. As presented in Table 1, Section
III.B. of today's preamble, DRAS-calculated delisting levels are the
following concentrations in the TCLP extract of
[[Page 42193]]
the petitioned waste, in ppm (mg/L): Barium-100.0; \7\ Cadmium-0.422;
\8\ Chromium-5.0; Cyanide-10.1, Lead-5.0; Nickel-79.4; Bis(2-
ethylhexyl) phthalate-0.0787; Di-n-octyl phthalate-0.0984; and 4-
Methylphenol-10.0.
---------------------------------------------------------------------------
\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 delisting. Although the DRAS
EPACMTP calculates higher concentrations (see the proposed rule, 66
FR 57918-57930, November 19, 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, chromium, and lead.
\8\ DRAS-calculated delisting levels for cadmium and cyanide are
based on MCLs.
---------------------------------------------------------------------------
Comment: Nissan disagrees with EPA's proposal to set limits on
total concentrations for delisting. Nissan believes that limits on
total concentrations are an added burden without additional benefits,
that hazardous wastes are defined by TCLP concentrations rather than
total concentrations, and that TCLP limits should be sufficient.
Response: Nissan's points are well taken. However, EPA has decided
to promulgate in today's final rule the limits on total concentrations
that were proposed. EPA has decided not to require evaluation of the
waste by the MEP and believes that total concentration limits serve to
reassure the public that long term effects on human health and the
environment are minimized. It is true that TCLP concentrations are the
only consideration when identifying wastes that could be hazardous by
the Toxicity Characteristic of 40 CFR 261.24. However, EPA considers
total concentrations as well as TCLP concentrations when deciding
whether wastes should be listed hazardous wastes in Subpart D of 40 CFR
part 261.
Comment: Alcoa, Inc. (Alcoa) agrees with EPA's proposal to delist
Nissan's wastewater treatment sludge, but does not support the use of
the MEP to evaluate Nissan's waste, believing that the merits of the
MEP should be the subject of a separate Federal Register notice.
Response: EPA has used MEP analysis of petitioned wastes in the
past as a measure of the long-term resistance of the waste to leaching
(see, for example, 47 FR 52687, Nov. 22, 1982; 61 FR 14696-14709, April
3, 1996; 65 FR 48436, August 8, 2000; and 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. EPA has
requested in the past and will continue to request public comment on
the MEP and all other methods for evaluating delisting petitions each
time a proposed rule for delisting a waste is published in the Federal
Register.
EPA has decided not to use the MEP to evaluate Nissan's petitioned
waste, but has decided to promulgate in today's final rule the proposed
limits on total concentrations.
Comment: Alcoa does not support proposed limits on total
concentrations, because EPA did not establish a correlation between
groundwater contamination and total constituent concentrations.
Response: Alcoa's point is well taken, but EPA has decided to
promulgate the proposed limits on total concentrations as a condition
of delisting. EPA has decided not to evaluate Nissan's waste by means
of the MEP and believes that total concentration limits serve to
reassure the public that long term effects on human health and the
environment are minimized.
Comment: Alcoa does not support setting delisting levels based on
LDR UTS, believing that such levels would be ``arbitrary, inappropriate
and contradictory.'' Alcoa states that LDR UTS are technology-based,
while EPA's delisting evaluation is risk-based and that EPA concluded
that Nissan's waste presents no risk to human health and the
environment.
Response: EPA has decided not to set delisting levels based on LDR
UTS for Nissan'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 UTS. The analytical data submitted by Nissan indicate that the
petitioned waste, when generated, would meet LDR UTS for all
constituents of concern except Nickel, Zinc, Bis(2-ethylhexyl)
phthalate, Di-n-octyl phthalate, 4-Methylphenol, and Phenol. The
petitioned waste meets the LDR UTS for F019 nonwastewaters, namely,
Chromium (Total): 0.60 mg/L TCLP; Cyanides (Total): 590 mg/kg; and
Cyanides (Amenable) 30 mg/kg. See the proposed rule, 66 FR 57918-57930,
November 19, 2001.
Comment: The Aluminum Association (TAA) supports the proposed
delisting and the comments submitted by the Alliance of Automobile
Manufacturers. TAA believes that the F019 listing definition should be
revised to exclude automobile assembly plant wastewater treatment
sludge when aluminum parts are used in place of steel and the
conversion coating process does not use hexavalent chromium and
cyanides.
Response: Today's final rule is site-specific and waste-specific;
it applies only to Nissan's plant in Smyrna, Tennessee, 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 The Aluminum Association and
the Alliance of Automobile Manufacturers about the need for each
automobile manufacturer to submit a delisting petition. Please see 67
FR 10341-10353, March 7, 2002, for a proposal by EPA, Region 5, in a
cooperative project with the State of Michigan, to address this
concern.
Comment: TAA does not believe it is appropriate to set delisting
levels based on (1) the MEP; (2) LDR UTS; or (3) total concentrations.
Response: (1) EPA has used MEP analysis of petitioned wastes in the
past as a measure of the long-term resistance of the waste to leaching
(see, for example, 47 FR 52687, Nov. 22, 1982; 61 FR 14696-14709, April
3, 1996; 65 FR 48436, August 8, 2000; and 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. EPA has
requested in the past and will continue to request public comment on
the MEP and all other methods for evaluating delisting petitions each
time a proposed rule for delisting a waste is published in the Federal
Register.
EPA has decided not to use the MEP to evaluate Nissan's petitioned
waste, but has decided to promulgate in today's final rule the proposed
limits on total concentrations.
(2) EPA has decided not to set delisting levels based on LDR UTS
for Nissan'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 UTS. The analytical data submitted by Nissan indicate that the
petitioned waste, when generated, would meet LDR UTS for all
constituents of concern except Nickel, Zinc, Bis(2-ethylhexyl)
phthalate, Di-n-octyl phthalate, 4-Methylphenol, and Phenol. The
petitioned waste meets the LDR UTS for F019 nonwastewaters, namely,
Chromium (Total): 0.60 mg/L TCLP; Cyanides (Total): 590 mg/kg; and
Cyanides (Amenable) 30 mg/kg. See the proposed rule, 66 FR 57918-57930,
November 19, 2001.
(3) EPA has decided to promulgate the proposed limits on total
concentrations as a condition of delisting. EPA has decided not to
evaluate Nissan's waste by means of the MEP and believes that total
concentration limits serve to reassure the public that long term
effects on human health and the environment are minimized.
[[Page 42194]]
Comment: TAA believes that the use of DRAS and EPACMTP should be
the subject of a separate rulemaking.
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.
V. Analytical and Regulatory Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, EPA must determine whether a
regulatory action is significant and, therefore, subject to
comprehensive review by the Office of Management and Budget (OMB), and
the other provisions of the Executive Order. A significant regulatory
action is defined by the Order as one that may:
--Have an annual effect on the economy of $100 million or more, or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
--Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency;
--Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or rights and obligations or recipients thereof;
or
--Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866.
EPA has determined that today's final rule is not a significant
regulatory action as defined by Executive Order 12866 and is,
therefore, not subject to OMB comprehensive review and the other
provisions of the Executive Order.
B. What Economic and Equity Analyses Were Completed in Support of the
Proposed Delisting for Nissan's Wastewater Treatment Sludge?
No economic and equity analyses were required in support of the
November 19, 2001 proposed rule. The proposed rule applies only to a
single waste at a single facility. Therefore the proposal would have
had no generalized effect on industrial compliance costs and would have
reduced compliance costs for the single facility, Nissan.
C. What Substantive Comments Were Received on the Cost/Economic Aspects
of the Proposed Delisting for Nissan's Wastewater Treatment Sludge?
Public comments were received from four entities. None of the
comments dealt with economic effects of the proposed rule.
D. What Are the Potential Costs and Benefits of Today's Final Rule?
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. All other factors being
equal, a rule that generates positive net welfare would be advantageous
to society, while a rule that results in negative net welfare to
society should be avoided.
Today's final rule applies to a single waste at a single facility.
Therefore, EPA has determined that the rule is not expected to have any
generalized economic, health, or environmental effects on society.
E. What Consideration Was Given to Small Entities Under the Regulatory
Flexibility Act (RFA), as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.?
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute, unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions. For purposes
of assessing the impacts of today's final rule on small entities, a
small entity is defined either by the number of employees or by the
annual dollar amount of sales/revenues. The level at which an entity is
considered small is determined for each North American Industrial
Classification System (NAICS) code by the Small Business Administration
(SBA).
EPA has examined the potential effects today's final rule may have
on small entities, as required by the RFA/Small Business Regulatory
Enforcement Fairness Act (SBREFA). Today's final rule affects a single
waste at a single facility, Nissan. Therefore, EPA has determined and
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
F. Was the Unfunded Mandates Reform Act Considered in This Final Rule?
Executive Order 12875, ``Enhancing the Intergovernmental
Partnership'' (October 26, 1993), called on federal agencies to provide
a statement supporting the need to issue any regulation containing an
unfunded federal mandate and describing prior consultation with
representatives of affected state, local, and tribal governments.
Signed into law on March 22, 1995, the Unfunded Mandates Reform Act
(UMRA) supersedes Executive Order 12875, reiterating the previously
established directives while also imposing additional requirements for
federal agencies issuing any regulation containing an unfunded mandate.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
single year. Before promulgating an EPA rule for which a written
statement is needed, section 205 of the UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows EPA to adopt an alternative other
than the least costly, most cost-effective or least burdensome
alternative if the Administrator publishes with the final rule an
explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, the Agency must develop a small
[[Page 42195]]
government agency plan, as required under section 203 of UMRA. This
plan must provide for notifying potentially affected small governments,
enabling officials of affected small governments to have meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
Today's final rule is not subject to the requirements of sections
202 and 205 of UMRA. Today's final rule will not result in $100 million
or more in incremental expenditures. The aggregate annualized
incremental social costs for today's final rule are projected to be
near zero. Furthermore, today's final rule is not subject to the
requirements of section 203 of UMRA. Section 203 requires agencies to
develop a small government Agency plan before establishing any
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments. EPA has determined that this
final rule will not significantly or uniquely affect small governments.
G. Were Equity Issues and Children's Health Considered in This Final
Rule?
By applicable executive order, we are required to consider the
impacts of today's rule with regard to environmental justice and
children's health.
1. Executive Order 12898: Environmental Justice
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Population'' (February
11, 1994), is designed to address the environmental and human health
conditions of minority and low-income populations. EPA is committed to
addressing environmental justice concerns and has assumed a leadership
role in environmental justice initiatives to enhance environmental
quality for all citizens of the United States. The Agency's goals are
to ensure that no segment of the population, regardless of race, color,
national origin, income, or net worth bears disproportionately high and
adverse human health and environmental impacts as a result of EPA's
policies, programs, and activities. In response to Executive Order
12898, and to concerns voiced by many groups outside the Agency, EPA's
Office of Solid Waste and Emergency Response (OSWER) formed an
Environmental Justice Task Force to analyze the array of environmental
justice issues specific to waste programs and to develop an overall
strategy to identify and address these issues (OSWER Directive No.
9200.3-17). Today's final rule applies to a single waste at a single
facility. We have no data indicating that today's final rule would
result in disproportionately negative impacts on minority or low income
communities.
2. Executive Order 13045: ``Protection of Children From Environmental
Health Risks and Safety Risks''
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency. Today's final rule is not
subject to the Executive Order because it is not economically
significant, as defined in Executive Order 12866.
H. What Consideration Was Given to Tribal Governments?
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
Today's final rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in the Order. Today's final
rule will not significantly or uniquely affect the communities of
Indian tribal governments, nor impose substantial direct compliance
costs on them.
I. Were Federalism Implications Considered in Today's Final Rule?
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Today's 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 the Order. Thus, Executive Order 13132 does not apply
to this final rule.
J. Were Energy Impacts Considered?
Executive Order 13211, ``Actions Concerning Regulations That Affect
Energy Supply, Distribution, or Use'' (May 18, 2001), addresses the
need for regulatory actions to more fully consider the potential energy
impacts of the proposed rule and resulting actions. Under the Order,
agencies are required to prepare a Statement of Energy Effects when a
regulatory action may have significant adverse effects on energy
supply, distribution, or use, including impacts on price and foreign
supplies. Additionally, the requirements obligate agencies to consider
reasonable alternatives to regulatory actions with adverse effects and
the impacts the alternatives might have upon energy supply,
distribution, or use.
Today's final rule applies to a single waste at a single facility
and is not likely to have any significant adverse impact on factors
affecting energy supply. EPA believes that Executive Order 13211 is not
relevant to this action.
VI. Paperwork Reduction Act
This final 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 there are no paperwork requirements as part of
this final rule, EPA is not required to prepare an Information
Collection Request (ICR) in support of today's action.
[[Page 42196]]
VII. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This final rule involves environmental monitoring or measurement.
Consistent with the Agency's Performance Based Measurement System
(``PBMS''), EPA proposed not to require the use of specific, prescribed
analytical methods, except when required by regulation in 40 CFR parts
260 through 270. Therefore, today's final rule allows the use of any
method that meets the prescribed performance criteria. The PBMS
approach is intended to be more flexible and cost-effective for the
regulated community; it is also intended to encourage innovation in
analytical technology and improved data quality. EPA is not precluding
the use of any method, whether it constitutes a voluntary consensus
standard or not, as long as it meets the performance criteria
specified.
VIII. The Congressional Review Act (5 U.S.C. 801 et seq., as Added by
the Small Business Regulatory Enforcement Fairness Act of 1996)
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.
The EPA is not required to submit a rule report regarding today's
action under section 801 because this is a rule of particular
applicability. Section 804 exempts from section 801 the following types
of rules: rules of particular applicability; rules relating to agency
management or personnel; and rules of agency organization, procedures,
or practice that do not substantially affect the rights or obligations
of non-agency parties. See 5 U.S.C. 804(3). A ``major rule'' cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will become effective on the date of publication as a
final rule in the Federal Register.
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: June 13, 2002.
James S. Kutzman,
Acting 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--Wastes Excluded Under Secs. 260.20 and 260.22.
Table 1.--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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Nissan North America,Inc................ Smyrna, Tennessee.......... Wastewater treatment sludge (EPA
Hazardous Waste No. F019) that Nissan
North America, Inc. (Nissan) generates
by treating wastewater from the
automobile assembly plant located at 983
Nissan Drive in Smyrna, Tennessee. This
is a conditional exclusion for up to
2,400 cubic yards of waste (hereinafter
referred to as ``Nissan Sludge'') that
will be generated each year and disposed
in a Subtitle D landfill after June 21,
2002. Nissan must demonstrate that the
following conditions are met for the
exclusion to be valid.
(1) Delisting Levels: All leachable
concentrations for these metals,
cyanide, and organic constituents must
not exceed the following levels (ppm):
Barium--100.0; Cadmium--0.422; Chromium--
5.0; Cyanide--10.1, Lead--5.0; and
Nickel--79.4; Bis(2-ethylhexyl)
phthalate-0.0787; Di-n-octyl phthalate-
0.0984; and 4-Methylphenol--10.0. These
concentrations must be measured in the
waste leachate obtained by the method
specified in 40 CFR 261.24, except that
for cyanide, deionized water must be the
leaching medium. 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--20,000; 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 Nissan Sludge meet the delisting
levels in Condition (1).
[[Page 42197]]
(A) Initial Verification Testing: Nissan
must collect and analyze a
representative sample from each of the
first eight roll-off boxes of Nissan
sludge generated in its wastewater
treatment system after June 21, 2002.
Nissan must analyze for the constituents
listed in Condition (1). Nissan must
report analytical test data, including
quality control information, no later
than 60 days after generating the first
Nissan Sludge to be disposed in
accordance with the delisting Conditions
(1) through (7).
(B) Subsequent Verification Testing: If
the initial verification testing in
Condition (2)(A) is successful, i.e.,
delisting levels of condition (1) are
met for all of the eight roll-offs
described in Condition (2)(A), Nissan
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: Nissan
must store as hazardous all Nissan
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
Nissan Sludge do not exceed the levels
set forth in Condition (1), then the
Nissan Sludge is non-hazardous and must
be managed in accordance with all
applicable solid waste regulations. If
constituent levels in a composite sample
exceed any of the delisting levels set
forth in Condition (1), the batch of
Nissan Sludge generated during the time
period corresponding to this sample must
be managed and disposed of in accordance
with Subtitle C of RCRA.
(4) Changes in Operating Conditions:
Nissan must notify EPA in writing when
significant changes in the manufacturing
or wastewater treatment processes are
implemented. EPA will determine whether
these changes will result in additional
constituents of concern. If so, EPA will
notify Nissan in writing that the Nissan
Sludge must be managed as hazardous
waste F019 until Nissan has demonstrated
that the wastes meet the delisting
levels set forth in Condition (1) and
any levels established by EPA for the
additional constituents of concern, and
Nissan has received written approval
from EPA. If EPA determines that the
changes do not result in additional
constituents of concern, EPA will notify
Nissan, in writing, that Nissan must
verify that the Nissan Sludge continues
to meet Condition (1) delisting levels.
(5) Data Submittals: Data obtained in
accordance with Condition (2)(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, SW., Atlanta, Georgia 30303.
This submission is due no later than 60
days after generating the first batch of
Nissan Sludge to be disposed in
accordance with delisting Conditions (1)
through (7). Records of analytical data
from Condition (2) must be compiled,
summarized, and maintained by Nissan for
a minimum of three years, and must be
furnished upon request by EPA or the
State of Tennessee, and made available
for inspection. Failure to submit the
required data within the specified time
period or maintain the required records
for the specified time will be
considered by EPA, at its discretion,
sufficient basis to revoke the exclusion
to the extent directed by EPA. All data
must be accompanied by a signed copy of
the certification statement in 40 CFR
260.22(i)(12).
(6) Reopener Language: (A) If, at any
time after disposal of the delisted
waste, Nissan possesses or is otherwise
made aware of any environmental data
(including but not limited to leachate
data or groundwater monitoring data) or
any other data relevant to the delisted
waste indicating that any constituent
identified in the delisting verification
testing is at a level higher than the
delisting level allowed by EPA in
granting the petition, Nissan must
report the data, in writing, to EPA
within 10 days of first possessing or
being made aware of that data. (B) If
the testing of the waste, as required by
Condition (2)(B), does not meet the
delisting requirements of Condition (1),
Nissan must report the data, in writing,
to EPA within 10 days of first
possessing or being made aware of that
data. (C) Based on the information
described in paragraphs (6)(A) or (6)(B)
and any other information received from
any source, EPA will make a preliminary
determination as to whether the reported
information requires that EPA take
action to protect human health or the
environment. Further action may include
suspending or revoking the exclusion, or
other appropriate response necessary to
protect human health and the
environment. (D) If EPA determines that
the reported information does require
Agency action, EPA will notify the
facility in writing of the action
believed necessary to protect human
health and the environment. The notice
shall include a statement of the
proposed action and a statement
providing Nissan with an opportunity to
present information as to why the
proposed action is not necessary. Nissan
shall have 10 days from the date of
EPA's notice to present such
information.
[[Page 42198]]
(E) Following the receipt of information
from Nissan, as described in paragraph
(6)(D), or if no such information is
received within 10 days, EPA will issue
a final written determination describing
the Agency actions that are necessary to
protect human health or the environment,
given the information received in
accordance with paragraphs (6)(A) or
(6)(B). Any required action described in
EPA's determination shall become
effective immediately, unless EPA
provides otherwise.
(7) Notification Requirements: Nissan
must provide a one-time written
notification to any State Regulatory
Agency in a State to which or through
which the delisted waste described above
will be transported, at least 60 days
prior to the commencement of such
activities. Failure to provide such a
notification will result in a violation
of the delisting conditions and a
possible revocation of the decision to
delist.
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[FR Doc. 02-15612 Filed 6-20-02; 8:45 am]
BILLING CODE 6560-50-P