[Federal Register Volume 71, Number 38 (Monday, February 27, 2006)]
[Rules and Regulations]
[Pages 9723-9727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1790]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-8037-1]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Amendment
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or
we in this preamble) today is granting a petition to modify an
exclusion (or delisting) from the lists of hazardous waste previously
granted to Nissan North America, Inc. (Nissan) in Smyrna, Tennessee.
This action responds to a petition for amendment submitted by Nissan to
increase the maximum annual volume of waste and to eliminate the total
concentration limits in its wastewater treatment sludge covered by its
current exclusion. After careful analysis, we have concluded the
petitioned waste does not present an unacceptable risk when disposed of
in a Subtitle D (nonhazardous waste) landfill. This exclusion applies
to F019 wastewater treatment sludge generated by Nissan at its facility
in Smyrna, Tennessee. Accordingly, this final amendment conditionally
excludes a specific yearly volume of the petitioned waste from the
requirements of the hazardous waste regulations under the Resource
Conservation and Recovery Act (RCRA) when the petitioned waste is
disposed of in a Subtitle D landfill which is permitted, licensed, or
registered by a State to manage municipal or industrial solid waste.
DATES: Effective Date: February 27, 2006.
ADDRESSES: The RCRA regulatory docket for this final amendment 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 you to view from 9 a.m. to 4 p.m.,
Monday through Friday, except on Federal holidays. The public may copy
material from the regulatory docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For general and technical information
concerning this final rule, please contact Kris Lippert, 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.,
[[Page 9724]]
Atlanta, Georgia 30303, (404) 562-8605, or call, toll free (800) 241-
1754. Questions may also be e-mailed to Ms. Lippert at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Overview Information
A. What Action Is EPA Finalizing?
B. Why Is EPA Approving this Petition for Amendment?
C. What Are the Terms of this Exclusion?
D. When Is the Final Amendment Effective?
E. How Does this Action Affect States?
II. Background
A. What is a Delisting Petition?
B. What Regulations Allow Hazardous Waste Generators to Delist
Waste?
C. What Information Must the Generator Supply?
III. EPA's Evaluation of the Waste Data
A. What Waste Is the Subject of this Amendment?
B. How did EPA Evaluate this Petition?
IV. Public Comments on the Proposed Amendment
A. Who Submitted Comments on the Proposed Rule?
V. Administrative Assessments
I. Overview Information
A. What Action Is EPA Finalizing?
After evaluating Nissan's petition, we are amending the current
Nissan's delisting published in the Federal Register on June 21, 2002
(67 FR 42187) to increase the maximum annual waste volume that is
covered by its exclusion from 2,400 cubic yards to 3,500 cubic yards
and to eliminate the total concentration limits for barium, cadmium,
chromium, cyanide, lead, and nickel for its F019 wastewater treatment
sludge from the requirements of the hazardous waste regulations under
the Resource Conservation and Recovery Act (RCRA). The waste will still
be subject to local, State, and Federal regulations for nonhazardous
solid wastes.
B. Why Is EPA Approving This Petition for Amendment?
Nissan petitioned EPA to exclude the increased volume of its F019
wastewater treatment sludge because it does not believe, even at the
increased volume, that the petitioned waste meets the criteria for
which it was listed. EPA is also eliminating the total concentration
limits for barium, cadmium, chromium, cyanide, lead, and nickel from
its F019 wastewater treatment sludge.
Nissan believes that the waste does not contain any other
constituents that would render it hazardous. Review of this petition
included consideration of the original listing criteria, as well as
factors (including additional constituents) other than those for which
the waste was listed, as 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(a)(1) and (2).
For reasons stated in both the proposed amendment and this
document, we believe that Nissan's F019 wastewater treatment sludge
should continue to be excluded from hazardous waste control at the
increased volume. EPA also believes that eliminating all total
concentration limits will not harm human health and the environment
when disposed in a nonhazardous waste landfill, if the required
delisting levels are met. Therefore, we are granting the final
amendment to Nissan, located in Smyrna, Tennessee, for its F019
wastewater treatment sludge, generated at a maximum annual volume of
3,500 cubic yards.
C. What Are the Terms of This Exclusion?
This amended exclusion applies to the waste described in the
petition only if the requirements described above as well as in Table 1
of Appendix IX to part 261 of Title 40 of the Code of Federal
Regulations are satisfied. The maximum annual volume of the wastewater
treatment sludge is 3,500 cubic yards.
D. When Is the Final Amendment Effective?
This rule is effective February 27, 2006. HSWA 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, rather
than increases, the existing requirements for persons generating
hazardous wastes. For these same reasons, this rule can become
effective immediately (that is, upon publication in the Federal
Register) under the Administrative Procedure Act, pursuant to 5 U.S.C.
553(d).
E. How Does This Action Affect States?
Because EPA is issuing today's exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be directly affected. This would exclude two
categories of States: States having a dual system that includes Federal
RCRA requirements and their own requirements, and States who have
received EPA's authorization to make their own delisting decisions. We
describe these two situations below.
We allow states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA. These more stringent requirements may include a provision that
prohibits a Federally issued exclusion from taking effect in the State,
or that prohibits a Federally issued exclusion from taking effect in
the State until the State approves the exclusion through a separate
State administrative action. Because a dual system (that is, both
Federal and State programs) may regulate a petitioner's waste, we urge
petitioners to contact the applicable State regulatory authorities or
agencies to establish the status of their waste under that State's
program.
We have also authorized some States to administer a delisting
program in place of the Federal program; that is, to make State
delisting decisions. Therefore, this exclusion does not necessarily
apply within those authorized States. If Nissan transports the
petitioned waste to, or manages the waste in, any State with delisting
authorization, Nissan must obtain delisting approval from that State
before it can manage the waste as nonhazardous in that State.
In order for this amendment to be effective in an authorized State,
that State must adopt this amendment through its State administrative
process.
II. Background
A. What Is a Delisting Petition?
A delisting petition is a formal request from a generator to EPA or
another agency with jurisdiction to exclude from the lists of hazardous
waste regulated by RCRA, a waste that the generator believes should not
be considered hazardous.
B. What Regulations Allow Hazardous Waste Generators to Delist Waste?
Under 40 CFR 260.20 and 260.22, a generator may petition EPA to
remove its waste from hazardous waste control by excluding it from the
lists of hazardous wastes contained in 40 CFR 261.31, 261.32 and
261.33. Specifically, 40 CFR 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
266, 268 and 273 of Title 40 of the Code of Federal Regulations. 40 CFR
260.22 provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator-specific'' basis from
the hazardous waste lists. A generator can petition EPA for an
amendment to an existing exclusion under these same provisions of the
Code of Federal Regulations.
[[Page 9725]]
C. What Information Must the Generator Supply?
A petitioner must provide sufficient information to allow EPA to
determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine that the waste is not
hazardous for any other reason.
III. EPA's Evaluation of the Waste Data
A. What Waste Is the Subject of This Amendment?
Nissan operates a light-duty vehicle manufacturing facility in
Smyrna, Tennessee. As a result of Nissan's use of aluminum as a
component in its automobile bodies, Nissan generates a sludge meeting
the listing definition of F019 at 40 CFR 261.31. Nissan was granted its
current Federal delisting exclusion for this F019 wastewater treatment
sludge at a maximum annual volume of 2,400 cubic yards on June 21, 2002
(67 FR 42187).
A full description of this waste and the Agency's evaluation of the
original Nissan's petition are contained in the ``Proposed Rule and
Request for Comments'' published in the Federal Register on November
19, 2001 (66 FR 57918). After evaluating public comment on the proposed
rule, we published a final decision in the Federal Register on June 21,
2002 (67 FR 42187), to exclude Nissan's wastewater treatment sludge
derived from the treatment of EPA Hazardous Waste No. F019 from the
list of hazardous wastes found in 40 CFR 261.31. 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 did not believe that
the waste meets the criteria of the listing. EPA's final decision to
grant the delisting exclusion on June 21, 2002, was conditioned on the
following delisting levels: (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-7.73, Lead-5.0; and Nickel-60.7; Bis-(2-
ethylhexyl) phthalate-0.601; Di-n-octyl phthalate-0.0752; and 4-
Methylphenol-7.66; (2) the total concentration of cyanide (total, not
amenable) in the waste, not the waste leachate, must not exceed 200 mg/
kg; and (3) the total concentrations, in mg/kg, of the metals in the
waste, not the waste leachate, must not exceed the following levels:
Barium-20,000; Cadmium-500; Chromium-1,000; Lead-2,000; and Nickel-
20,000. If the waste exceeded any of the delisting limits, then the
waste has to be managed as hazardous waste.
B. How Did EPA Evaluate This Petition?
In support of its original 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
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 the 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 the determinations for the
hazardous characteristics of ignitability, corrosivity, and reactivity,
in these wastes; (7) results of determinations percent solids; and (8)
results of a dye tracer study and source inventory of Nissan's
industrial wastewater system.
EPA reviewed the allowable total concentrations in the waste, as
calculated by DRAS for the waste, to determine if increasing the
maximum annual waste volume from 2,400 cubic yards to 3,500 cubic yards
would be still protective to human health and the environment. The
allowable total concentrations, according to the DRAS, were all at
least 1,000 times greater than the actual maximum total concentrations
found in the waste. Based on the DRAS results, EPA grants Nissan's
petition for amendment to increase the maximum annual waste volume to
3,500 cubic yards and to eliminate all total concentration limits.
IV. Public Comments on the Proposed Amendment
A. Who Submitted Comments on the Proposed Rule?
We received no public comments on Nissan's Proposed Amendment and
Request for Comments published in the Federal Register on June 24, 2005
(70 FR 36547).
V. Administrative Assessments
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 particular facility, it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), or to sections 202, 203, 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
Indian tribal governments, as specified in Executive Order 13175 (65 FR
67249, November 6, 2000). 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(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272) do not apply. 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.). The
Congressional Review Act, 5 U.S.C. 801 et seq. as added by the Small
Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 804 exempts from section 801 the following types
of rules (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report regarding today's action under section
801 because this is a rule of particular applicability.
[[Page 9726]]
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Dated: December 1, 2005.
Beverly H. Banister,
Acting Director, Waste Management Division.
0
For the reasons set out in the preamble, 40 CFR part 261 is amended as
follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
0
2. In Table 1 of Appendix IX, part 261 revise the entry for Nissan
North America, Inc., 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
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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 American, Inc. (Nissan) generates
by treating wastewater from automobile
assembly plant located on 983 Nissan
Drive in Smyrna, Tennessee. This is a
conditional exclusion for up to 3,500
cubic yards of waste (hereinafter
referred to as ``Nissan Sludge'') that
will be generated each year and
disposed in a Subtitle D landfill after
February 27, 2006. Nissan must continue
to 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-7.73, Lead-5.0; and Nickel-
60.7; Bis-(2-ethylhexyl) phthalate-
0.601; Di-n-octyl phthalate-0.0752; and
4-Methylphenol-7.66. 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. Cyanide
concentrations in waste or leachate
must be measured by the method
specified in 40 CFR 268.40, Note 7.
(2) Verification Testing Requirements:
Sample collection and analyses,
including quality control procedures,
must be performed using appropriate
methods. As applicable to the method-
defined parameters of concern, analyses
requiring the use of SW-846 methods
incorporated by reference in 40 CFR
260.11 must be used without
substitution. As applicable, the SW-846
methods might include Methods 0010,
0011, 0020, 0023A, 0030, 0031, 0040,
0050, 0051, 0060, 0061, 1010A, 1020B,
1110A, 1310B, 1311, 1312, 1320, 1330A,
9010C, 9012B, 9040C, 9045D, 9060A,
9070A, (uses EPA Method 1664, Rev. A),
9071B, and 9095B. Methods must meet
Performance Based Measurement System
Criteria in which the Data Quality
Objectives are to demonstrate that
representative samples of the Nissan
Sludge meet the delisting levels in
Condition (1). Nissan must perform an
annual testing program to demonstrate
that constituent concentrations
measured in the TCLP extract do not
exceed the delisting levels established
in Condition (1).
(3) Waste Holding and Handling: Nissan
must hold sludge containers utilized
for verification sampling until
composite sample results are obtained.
If the levels of constituents measured
in Nissan's annual testing program 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.
[[Page 9727]]
(5) Data Submittals: Data obtained in
accordance with Condition (2) must be
submitted to Narindar M. Kumar, 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. The submission is due no later
than 60 days after taking each annual
verification samples 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 and Tennessee 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),
does not meet the delisting
requirements of Condition (1), Nissan
must report the data, in writing, to
EPA and Tennessee 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. (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. 06-1790 Filed 2-24-06; 8:45 am]
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