Environmental Protection Agency (EPA).
Proposed rule and request for comment.
The EPA is proposing to use the Delisting Risk Assessment Software (DRAS) in the evaluation of a delisting petition. Based on waste-specific information provided by the petitioner, EPA is proposing to use the DRAS to evaluate the impact of the petitioned waste on human health and the environment.
The EPA is also proposing to grant a petition submitted by Tokusen USA, Inc. (Tokusen) to exclude (or delist) a certain solid waste generated by its Conway, Arkansas, facility from the lists of hazardous wastes.
The Agency bases its proposed decision to grant the petition on an evaluation of waste-specific information provided by the petitioner. This proposed decision, if finalized, would exclude the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA).
If finalized, we would conclude that Tokusen's petitioned waste is nonhazardous with respect to the original listing criteria and that the dewatered sludge generated from the on-site Wastewater Treatment Plant (WWTP) and not from a manufacturing process will substantially reduce the likelihood of migration of constituents from this waste. We would also conclude that their process minimizes short-term and long-term threats from the petitioned waste to human health and the environment.
We will accept comments until August 26, 2002. We will stamp comments received after the close of the comment period as late. These late comments may not be considered in formulating a final decision. Your requests for a hearing must reach EPA by July 29, 2002. The request must contain the information prescribed in 40 CFR 260.20(d).
Please send three copies of your comments. You should send two copies to the Section Chief of the Delisting Section, Multimedia Planning and Permitting Division (6PD-O), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202. You should send a third copy to Ali Dorobati, Hazardous Waste Division, Active Sites Branch, Arkansas Department of Environmental Quality (ADEQ), P.O. Box 8913, Little Rock, Arkansas, 72219-8913. Identify your comments at the top with this regulatory docket number: “F-02-ARDEL-TOKUSEN.”
You should address requests for a hearing to the Director, Carl Edlund, Multimedia Planning and Permitting Division (6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Larry K. Landry (214) 665-8134.End Further Info End Preamble Start Supplemental Information
The information in this section is organized as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will Tokusen manage the waste if it is delisted?
D. When would the EPA finalize the delisting?
E. How would this action affect the states?
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a petitioner?
C. What factors must EPA consider in deciding whether to grant a delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What wastes did Tokusen petition EPA to delist?
B. What is Tokusen and how did it generate this waste?
C. What information and analyses did Tokusen submit to support its petition?
D. What were the results of Tokusen's analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What other factors did EPA consider?
G. What is EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if Tokusen violates the terms and conditions?
V. Public Comments
A. How can I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed exclusions?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
XII. National Technology Transfer and Advancements Act
XIII. Executive Order 13132 Federalism
I. Overview Information
A. What Action Is EPA Proposing?
The EPA is proposing:
(1) to grant Tokusen's petition to have its dewatered WWTP sludge excluded, or delisted, from the definition of a hazardous waste; and
(2) to use a fate and transport model to evaluate the potential impact of the petitioned waste on human health and the environment. The Agency would use this model to predict the concentration of hazardous constituents released from the petitioned waste, once it is disposed.
B. Why Is EPA Proposing To Approve This Delisting?
Tokusen's petition requests a delisting for an F006 listed hazardous waste. Tokusen does not believe that the petitioned waste meets the criteria for which EPA listed it. Tokusen also believes no additional constituents or factors could cause the waste to be hazardous. The EPA's review of this Start Printed Page 46140petition included consideration of the original listing criteria, and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all sectional references are to 40 CFR unless otherwise indicated). In making the initial delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees with the petitioner that the waste is nonhazardous with respect to the original listing criteria. (If the EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition.) The EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. The EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. The EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. The EPA's proposed decision to delist waste from Tokusen's facility is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data from the Conway, Arkansas facility.
C. How Will Tokusen Manage the Waste if It Is Delisted?
Tokusen currently sends the petitioned waste to Envirite Corporation, a hazardous landfill in Harvey, Illinois. If the delisting exclusion is finalized, Tokusen intends to dispose of the petitioned waste, dewatered WWTP sludge, in a solid waste landfill in Little Rock, Arkansas called Waste Management Industrial Landfill.
D. When Would the EPA Finalize the Delisting?
RCRA section 3001(f) specifically requires EPA to provide notice and an opportunity for comment before granting or denying a final exclusion. Thus, EPA will not grant the exclusion until it addresses all timely public comments (including those at public hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows 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, if finalized, would reduce the existing requirements for persons generating hazardous wastes.
The EPA believes that this exclusion should be effective immediately upon final publication because a six-month deadline is not necessary to achieve the purpose of section 3010(b), and a later effective date would impose unnecessary hardship and expense on this petitioner. These reasons also provide good cause for making this rule effective immediately, upon final publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).
E. How Would This Action Affect the States?
Because EPA is issuing this exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received authorization from EPA to make their own delisting decisions.
Here are the details: We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the State regulatory authority to establish the status of their wastes under the State law.
The EPA has also authorized some States (for example, Louisiana, Georgia, Illinois) to administer a RCRA delisting program in place of the Federal program, that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States unless that State makes the rule part of its authorized program. If Tokusen transports the petitioned waste to or manages the waste in any State with delisting authorization, Tokusen must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.
A. What Is the History of the Delisting Program?
The EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA. The EPA has amended this list several times and published it in §§ 261.31 and 261.32.
We list these wastes as hazardous because: (1) They typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in subpart C of part 261 (that is, ignitability, corrosivity, reactivity, and toxicity) or (2) they meet the criteria for listing contained in §§ 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be hazardous.
For this reason, §§ 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.
B. What Is a Delisting Petition, and What Does It Require of a Petitioner?
A delisting petition is a request from a facility to EPA or an authorized State to exclude wastes from the list of hazardous wastes. The facility petitions the Agency because it does not consider the wastes hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which EPA lists a waste are in part 261 and further explained in the background documents for the listed waste.
In addition, under § 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (See part 261 and the background documents for the listed waste.)
Generators remain obligated under RCRA to confirm whether their waste remains nonhazardous based on the Start Printed Page 46141hazardous waste characteristics even if EPA has “delisted” the waste.
C. What Factors Must EPA Consider in Deciding Whether To Grant a Delisting Petition?
Besides considering the criteria in § 260.22(a) and section 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed wastes, EPA must consider any factors (including additional constituents) other than those for which we listed the waste if a reasonable basis exists that these additional factors could cause the waste to be hazardous.
The EPA must also consider as hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste. See §§ 261.3(a)(2)(iii and iv) and (c)(2)(i), called the “mixture” and “derived-from” rules, respectively. These wastes are also eligible for exclusion and remain hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Tokusen Petition EPA To Delist?
On October 24, 2001, Tokusen petitioned the EPA to exclude from the lists of hazardous waste contained in §§ 261.31 and 261.32, a dewatered WWTP sludge generated from the facility located in Conway, Arkansas. The waste falls under the classification of listed waste because of the “derived-from” rule in § 261.3. Specifically, in its petition, Tokusen requested that EPA grant an exclusion for 670 cubic yards of dewatered sludge resulting from its hazardous waste treatment process. The resulting waste is listed, in accordance with the “derived-from” rule.
B. What Is Tokusen, and How Did it Generate This Waste?
The Tokusen facility is located in an industrial/commercial setting in the southern portion of the City of Conway, Faulkner County, Arkansas. The 47.25 acre Tokusen property contains a production facility measuring approximately 400,000 square feet in size. Plant process operations at the Tokusen facility are in support of a singular finished product, namely high carbon steel tire cord for use in radial tire manufacturing. The facility operates 24 hours per day, 7 days per week, 365 days per year with the exception of periodic planned shutdowns for routine maintenance.
The Tokusen facility manufactures steel cord used to produce steel belted radial tires. The steel cord is produced from steel rod which has been reduced in size and electroplated with copper and zinc to produce a brass coating. The plant generates four major types of waste and they are process wastewater, F006 dewatered WWTP sludge, sanitary sewage and other solid waste (rod wrappers, lube sludge, soap dust and other solids). The petitioned waste is generated from the wastewater treatment plant and not from the manufacturing process. The electroplating units which contribute wastewater to the WWTP are the copper and zinc electroplating baths. The waste code of the petitioned waste is EPA Hazardous Waste No. F006. The constituents of concern for F006 are cadmium, hexavalent chromium, nickel, and cyanide (complexed).
C. What Information and Analyses Did Tokusen Submit to Support its Petition?
To support its petition, Tokusen submitted:
(1) Historical information on past waste generation and management practices;
(2) Results of the total constituent list for 40 CFR Part 264 Appendix IX volatiles, semivolatiles, metals, pesticides, herbicides, dioxins and PCBs;
(3) Results of the constituent list for Appendix IX on Toxicity Characteristic Leaching Procedure (TCLP) extract for volatiles, semivolatiles, and metals;
(4) Analytical constituents of concern for F006;
(5) Results from total oil and grease analyses;
(6) Multiple pH testing for the petitioned waste.
D. What Were the Results of Tokusen's Analyses?
The EPA believes that the descriptions of the Tokusen analytical characterization provide a reasonable basis to grant Tokusen's petition for an exclusion of the dewatered WWTP sludge. The EPA believes the data submitted in support of the petition show the dewatered WWTP sludge is non-hazardous. Analytical data for the dewatered WWTP sludge samples were used in the DRAS. The data summaries for detected constituents are presented in Table I. The EPA has reviewed the sampling procedures used by Tokusen and has determined they satisfy EPA criteria for collecting representative samples of the variations in constituent concentrations in the dewatered WWTP sludge. The data submitted in support of the petition show that constituents in Tokusen's waste are presently below health-based levels used in the delisting decision-making. The EPA believes that Tokusen has successfully demonstrated that the dewatered WWTP sludge is non-hazardous.
|Constituent||Total constituent analyses (mg/kg)||TCLP leachate Concentration (mg/l)|
|1,4 Dichlorobenzene||* 0.020||0.019|
|Start Printed Page 46142|
|1 These levels represent the highest concentration of each constituent found in any one sample. These levels do not necessarily represent the specific levels found in one sample.|
|* Denotes that the constituent was not detected at the noted detection limit.|
E. How Did EPA Evaluate the Risk of Delisting the Waste?
For this delisting determination, EPA used such information gathered to identify plausible exposure routes (i.e., ground water, surface water, air) for hazardous constituents present in the petitioned waste. The EPA determined that disposal in a Subtitle D landfill is the most reasonable, worst-case disposal scenario for Tokusen's petitioned waste. EPA applied the Delisting Risk Assessment Software (DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 75637 (December 4, 2000), to predict the maximum allowable concentrations of hazardous constituents that may be released from the petitioned waste after disposal and determined the potential impact of the disposal of Tokusen's petitioned waste on human health and the environment. A copy of this software can be found on the world wide web at www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm. In assessing potential risks to ground water, EPA used the maximum estimated waste volumes and the maximum reported extract concentrations as inputs to the DRAS program to estimate the constituent concentrations in the ground water at a hypothetical receptor well down gradient from the disposal site. Using the risk level (carcinogenic risk of 10−5 and non-cancer hazard index of 0.1), the DRAS program can back-calculate the acceptable receptor well concentrations (referred to as compliance-point concentrations) using standard risk assessment algorithms and Agency health-based numbers. Using the maximum compliance-point concentrations and the EPA Composite Model for Leachate Migration with Transformation Products (EPACMTP) fate and transport modeling factors, the DRAS further back-calculates the maximum permissible waste constituent concentrations not expected to exceed the compliance-point concentrations in groundwater.
The EPA believes that the EPACMTP fate and transport model represents a reasonable worst-case scenario for possible ground water contamination resulting from disposal of the petitioned waste in a landfill, and that a reasonable worst-case scenario is appropriate when evaluating whether a waste should be relieved of the protective management constraints of RCRA Subtitle C. The use of some reasonable worst-case scenarios resulted in conservative values for the compliance-point concentrations and ensures that the waste, once removed from hazardous waste regulation, will not pose a significant threat to human health or the environment.
The DRAS also uses the maximum estimated waste volumes and the maximum reported total concentrations to predict possible risks associated with releases of waste constituents through surface pathways (e.g., volatilization or wind-blown particulate from the landfill). As in the above ground water analyses, the DRAS uses the risk level, the health-based data and standard risk assessment and exposure algorithms to predict maximum compliance-point concentrations of waste constituents at a hypothetical point of exposure. Using fate and transport equations, the DRAS uses the maximum compliance-point concentrations and back-calculates the maximum allowable waste constituent concentrations (or “delisting levels”).
In most cases, because a delisted waste is no longer subject to hazardous waste control, EPA is generally unable to predict, and does not presently control, how a petitioner will manage a waste after delisting. Therefore, EPA currently believes that it is inappropriate to consider extensive site-specific factors when applying the fate and transport model. The EPA does control the type of unit where the waste is disposed. The waste must be disposed in the type of unit the fate and transport model evaluates.
The EPA also considers the applicability of ground water monitoring data during the evaluation of delisting petitions. In this case, Tokusen has never directly disposed of this material in a solid waste landfill, so no representative data exists. Therefore, EPA has determined that it would be unnecessary to request ground water monitoring data.
The EPA believes that the descriptions of Tokusen's hazardous waste process and analytical characterization provide a reasonable basis to conclude that the likelihood of migration of hazardous constituents from the petitioned waste will be substantially reduced so that short-term and long-term threats to human health and the environment are minimized.
The DRAS results which calculate the maximum allowable concentration of chemical constituents in the waste are presented in Table II. Based on the comparison of the DRAS results and maximum TCLP concentrations found in Table I, the petitioned waste should be delisted because no constituents of concern which tested, are likely to be present or formed as reaction products or by products in Tokusen's waste. In addition, on the basis of explanations and analytical data provided by Tokusen, pursuant to § 260.22, the EPA concludes that the petitioned waste does not exhibit any of the characteristics of ignitability, corrosivity, or reactivity. See §§ 261.21, 261.22, and 261.23, respectively.
F. What Other Factors Did EPA Consider?
During the evaluation of Tokusen's petition, EPA also considered the potential impact of the petitioned waste via non-ground water routes (i.e., air emission and surface runoff). With regard to airborne dispersion in particular, EPA believes that exposure to airborne contaminants from Tokusen's petitioned waste is unlikely. Therefore, no appreciable air releases are likely from Tokusen's waste under any likely disposal conditions. The EPA evaluated the potential hazards resulting from the unlikely scenario of airborne exposure to hazardous constituents released from Tokusen's waste in an open landfill. The results of this worst-case analysis indicated that there is no substantial present or potential hazard to human health and the environment from airborne exposure to constituents from Tokusen's dewatered WWTP sludge. A description of EPA's assessment of the potential impact of Tokusen's waste, regarding airborne dispersion of waste contaminants, is presented in the RCRA Start Printed Page 46143public docket for this proposed rule, F-02-ARDEL-Tokusen.
The EPA also considered the potential impact of the petitioned waste via a surface water route. The EPA believes that containment structures at municipal solid waste landfills can effectively control surface water runoff, as the Subtitle D regulations (See 56 FR 50978, October 9, 1991) prohibit pollutant discharges into surface waters. Furthermore, the concentrations of any hazardous constituents dissolved in the runoff will tend to be lower than the levels in the TCLP leachate analyses reported in this notice due to the aggressive acidic medium used for extraction in the TCLP. The EPA believes that, in general, leachate derived from the waste is unlikely to directly enter a surface water body without first traveling through the saturated subsurface where dilution and attenuation of hazardous constituents will also occur. Leachable concentrations provide a direct measure of solubility of a toxic constituent in water and are indicative of the fraction of the constituent that may be mobilized in surface water as well as ground water.
Based on the reasons discussed above, EPA believes that the contamination of surface water through runoff from the waste disposal area is very unlikely. Nevertheless, EPA evaluated the potential impacts on surface water if Tokusen's waste were released from a municipal solid waste landfill through runoff and erosion. See the RCRA public docket for this proposed rule for further information on the potential surface water impacts from runoff and erosion. The estimated levels of the hazardous constituents of concern in surface water would be well below health-based levels for human health, as well as below EPA Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 1987). The EPA, therefore, concluded that Tokusen's dewatered WWTP sludge is not a present or potential substantial hazard to human health and the environment via the surface water exposure pathway.
G. What Is EPA's Evaluation of This Delisting Petition?
The descriptions of Tokusen's hazardous waste process and analytical characterization, with the proposed verification testing requirements (as discussed later in this notice), provide a reasonable basis for EPA to grant the exclusion. The data submitted in support of the petition show that constituents in the waste are below the maximum allowable leachable concentrations (see Table II). We believe Tokusen's process will substantially reduce the likelihood of migration of hazardous constituents from the petitioned waste. Tokusen's process also minimizes short-term and long-term threats from the petitioned waste to human health and the environment.
Thus, EPA believes we should grant Tokusen an exclusion for the dewatered WWTP sludge. The EPA believes the data submitted in support of the petition show Tokusen's process can render the dewatered WWTP sludge non-hazardous.
We have reviewed the sampling procedures used by Tokusen and have determined they satisfy EPA criteria for collecting representative samples of variable constituent concentrations in the dewatered WWTP sludge. The data submitted in support of the petition show that constituents in Tokusen's waste are presently below the compliance point concentrations used in the delisting decision-making and would not pose a substantial hazard to the environment. The EPA believes that Tokusen has successfully demonstrated that the dewatered WWTP sludge is non-hazardous.
The EPA therefore, proposes to grant an exclusion to Tokusen, in Conway, Arkansas, for the dewatered WWTP sludge described in its petition. The EPA's decision to exclude this waste is based on descriptions of the treatment activities associated with the petitioned waste and characterization of the dewatered WWTP sludge.
If we finalize the proposed rule, the Agency will no longer regulate the petitioned waste under parts 262 through 268 and the permitting standards of part 270.
IV. Next Steps
A. With What Conditions Must the Petitioner Comply?
The petitioner, Tokusen, must comply with the requirements in 40 CFR part 261, appendix IX, Table 1. The text below gives the rationale and details of those requirements.
(1) Delisting Levels: This paragraph provides the levels of constituents that Tokusen must test the leachate from the dewatered WWTP sludge, below which these wastes would be considered non-hazardous.
The EPA selected the set of inorganic and organic constituents specified in Paragraph (1) of 40 CFR part 261, appendix IX, Table 1, based on information in the petition. We compiled the inorganic and organic constituents list from the composition of the waste, descriptions of Tokusen's treatment process, previous test data provided for the waste, and the respective health-based levels used in delisting decision-making. These delisting levels correspond to the allowable levels measured in the TCLP extract of the waste.
(2) Waste Holding and Handling: The purpose of this paragraph is to ensure that Tokusen manages and disposes of any dewatered WWTP sludge that might contain hazardous levels of inorganic and organic constituents according to Subtitle C of RCRA. Holding the dewatered WWTP sludge until characterization is complete will protect against improper handling of hazardous material. If EPA determines that the data collected under this Paragraph do not support the data provided for in the petition, the exclusion will not cover the petitioned waste. The exclusion is effective when we sign it, but the disposal cannot begin until the verification sampling is completed.
(3) Verification Testing Requirements: (A) Initial Verification Testing: If the EPA determines that the data from the initial verification period shows the treatment process is effective, Tokusen may request that EPA allow it to conduct verification testing quarterly. If EPA approves this request in writing, then Tokusen may begin verification testing quarterly.
The EPA believes that an initial period of 60 days is adequate for a facility to collect sufficient data to verify that the data provided for the dewatered WWTP sludge, in the 2001 petition, is representative.
If we determine that the data collected under this Paragraph do not support the data provided for the petition, the exclusion will not cover the generated wastes. If the data from the initial verification period demonstrate that the treatment process is effective, Tokusen may request quarterly testing. EPA will notify Tokusen, in writing, if and when they may replace the testing conditions in paragraph(3)(A)with the testing conditions in (3)(B).
(B) Subsequent Verification Testing: The EPA believes that the concentrations of the constituents of concern in the dewatered WWTP sludge may vary over time. As a result, to ensure that Tokusen's treatment process can effectively handle any variation in constituent concentrations in the waste, we are proposing a subsequent verification testing condition.
The proposed subsequent testing would verify that Tokusen operates the manufacturing of steel cord as it did during the initial verification testing. It would also verify that the dewatered WWTP sludge do not exhibit Start Printed Page 46144unacceptable levels of toxic constituents.
The EPA is proposing to require Tokusen to analyze representative samples of the dewatered WWTP sludge quarterly during the first year of waste generation. Tokusen would begin quarterly sampling on the anniversary date of the final exclusion as described in paragraph (3)(B).
(C) Termination of Organic Testing: The EPA is proposing to end the subsequent testing conditions for organics during the first year in paragraph (1)(C) after Tokusen has demonstrated that the waste consistently meets the delisting levels. Annual testing requires the full list of components in paragraph 1.
If the annual testing of the waste does not meet the delisting requirements in paragraph 1, Tokusen must notify the Agency according to the requirements in paragraph 6. We will take the appropriate actions necessary to protect human health and the environment. The facility must provide sampling results that support the rationale that the delisting exclusion should not be withdrawn.
To confirm that the characteristics of the waste do not change significantly over time, Tokusen must continue to analyze a representative sample of the waste for organic constituents annually. If operating conditions change as described in paragraph (4); Tokusen must reinstate all testing in paragraph (1)(A). They must prove through a new demonstration that their waste meets the conditions of the exclusion. Tokusen must continue organic testing of the dewatered WWTP sludge for the exclusion of that waste.
(4) Changes in Operating Conditions: Paragraph (4) would allow Tokusen the flexibility of modifying its processes (for example, changes in equipment or change in operating conditions) to improve its treatment process. However, Tokusen must prove the effectiveness of the modified process and request approval from the EPA. Tokusen must manage wastes generated during the new process demonstration as hazardous waste until they have obtained written approval and paragraph (3) is satisfied.
(5) Data Submittals: To provide appropriate documentation that Tokusen's facility is properly treating the waste, Tokusen must compile, summarize, and keep delisting records on-site for a minimum of five years. They should keep all analytical data obtained through Paragraph (3) including quality control information for five years. Paragraph (5) requires that Tokusen furnish these data upon request for inspection by any employee or representative of EPA or the State of Arkansas.
If the proposed exclusion is made final, it will apply only to 670 cubic yards of dewatered WWTP sludge, generated annually at the Tokusen facility after successful verification testing.
We would require Tokusen to file a new delisting petition under any of the following circumstances:
(a) If they significantly alter the manufacturing process treatment system except as described in paragraph (4);
(b) If they use any new manufacturing or production process(es), or significantly change from the current process(es) described in their petition; or
(c) If they make any changes that could affect the composition or type of waste generated.
Tokusen must manage waste volumes greater than 670 cubic yards of dewatered WWTP sludge as hazardous until we grant a new exclusion.
When this exclusion becomes final, Tokusen's management of the wastes covered by this petition would be relieved from Subtitle C jurisdiction. Tokusen must either treat, store, or dispose of the waste in an on-site facility. If not, Tokusen must ensure that it delivers the waste to an off-site storage, treatment, or disposal facility that has a State permit, license, or register to manage municipal or industrial solid waste.
(6) Reopener: The purpose of paragraph 6 is to require Tokusen to disclose new or different information related to a condition at the facility or disposal of the waste if it is pertinent to the delisting. Tokusen must also use this procedure, if the waste sample in the annual testing fails to meet the levels found in paragraph 1. This provision will allow EPA to reevaluate the exclusion if a source provides new or additional information to the Agency. The EPA will evaluate the information on which we based the decision to see if it is still correct, or if circumstances have changed so that the information is no longer correct or would cause EPA to deny the petition if presented.
This provision expressly requires Tokusen to report differing site conditions or assumptions used in the petition in addition to failure to meet the annual testing conditions within 10 days of discovery. If EPA discovers such information itself or from a third party, it can act on it as appropriate. The language being proposed is similar to those provisions found in RCRA regulations governing no-migration petitions at § 268.6.
The EPA believes that we have the authority under RCRA and the Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to reopen a delisting decision. We may reopen a delisting decision when we receive new information that calls into question the assumptions underlying the delisting.
The Agency believes a clear statement of its authority in delistings is merited in light of Agency experience. See Reynolds Metals Company at 62 FR 37694 and 62 FR 63458 where the delisted waste leached at greater concentrations in the environment than the concentrations predicted when conducting the TCLP, thus leading the Agency to repeal the delisting. If an immediate threat to human health and the environment presents itself, EPA will continue to address these situations case by case. Where necessary, EPA will make a good cause finding to justify emergency rulemaking. See APA section 553 (b).
(7) Notification Requirements: In order to adequately track wastes that have been delisted, EPA is requiring that Tokusen provide a one-time notification to any State regulatory agency through which or to which the delisted waste is being carried. Tokusen must provide this notification within 60 days of commencing this activity.
B. What Happens if Tokusen Violates the Terms and Conditions?
If Tokusen violates the terms and conditions established in the exclusion, the Agency will start procedures to withdraw the exclusion. Where there is an immediate threat to human health and the environment, the Agency will evaluate the need for enforcement activities on a case-by-case basis. The Agency expects Tokusen to conduct the appropriate waste analysis and comply with the criteria explained above in Condition 1 of the exclusion.
V. Public Comments
A. How Can I as an Interested Party Submit Comments?
The EPA is requesting public comments on this proposed decision. Please send three copies of your comments. Send two copies to Section Chief of the Delisting Section, Multimedia Planning and Permitting Division (6PD-O), Environmental Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to Ali Dorobati, Hazardous Waste Division, Active Sites Branch, Arkansas Department of Environmental Quality (ADEQ), P.O. Box 8913, Little Rock, Arkansas, 72219-8913 Identify your comments at the top with this Start Printed Page 46145regulatory docket number: “F-02-ARDEL-Tokusen.”
You should submit requests for a hearing to Carl Edlund, Director, Multimedia Planning and Permitting Division (6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.
B. How May I Review the Docket or Obtain Copies of the Proposed Exclusion?
You may review the RCRA regulatory docket for this proposed rule at the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. It is available for viewing in the EPA Freedom of Information Act Review Room from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call (214) 665-6444 for appointments. The public may copy material from any regulatory docket at no cost for the first 100 pages, and at fifteen cents per page for additional copies.
VI. Regulatory Impact
Under Executive Order 12866, EPA must conduct an “assessment of the potential costs and benefits” for all “significant” regulatory actions.
The proposal to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from EPA's lists of hazardous wastes, thus enabling a facility to manage its waste as nonhazardous.
Because there is no additional impact from this proposed rule, this proposal would not be a significant regulation, and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under Section (6) of Executive Order 12866.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities (that is, small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have any impact on a small entities.
This rule, if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of EPA's hazardous waste regulations and would be limited to one facility. Accordingly, I hereby certify that this proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation, therefore, does not require a regulatory flexibility analysis.
VIII. Paperwork Reduction Act
Information collection and record-keeping requirements associated with this proposed rule have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (Public Law 96-511, 44 U.S.C. 3501 et seq.) and have been assigned OMB Control Number 2050-0053.
IX. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which was signed into law on March 22, 1995, EPA generally must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year.
When such a statement is required for EPA rules, under section 205 of the UMRA EPA must identify and consider alternatives, including the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.
The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon state, local, or tribal governments or the private sector.
The EPA finds that this delisting decision is deregulatory in nature and does not impose any enforceable duty on any State, local, or tribal governments or the private sector. In addition, the proposed delisting decision does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.
The Executive Order 13045 is entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This order applies to any rule that EPA determines (1) is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has 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. This proposed rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.
Because this action does not involve any requirements that affect Indian Tribes, the requirements of section 3(b) of Executive Order 13084 do not apply.
Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments.
If the mandate is unfunded, EPA must provide to the Office Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.
In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments to have “meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their Start Printed Page 46146communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
XII. National Technology Transfer and Advancement Act
Under section 12(d) if the National Technology Transfer and Advancement Act, the Agency is directed 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, business practices, etc.) developed or adopted by voluntary consensus standard bodies. Where available and potentially applicable voluntary consensus standards are not used by EPA, the Act requires that Agency to provide Congress, through the OMB, an explanation of the reasons for not using such standards.
This rule does not establish any new technical standards and thus, the Agency has no need to consider the use of voluntary consensus standards in developing this final rule.
XIII. Executive Order 13132 Federalism
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” is 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.”
Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that impose substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This action does not have federalism implication. It will not have a substantial direct effect on 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, because it affects only one facility.Start List of Subjects
Lists of Subjects in 40 CFR Part 261End List of Subjects Start Signature
Dated: July 2, 2002.
Acting Director, Multimedia Planning & Permitting Division.
For the reasons set out in the preamble, 40 CFR part 261 is proposed to be amended as follows:Start Part
PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as follows:
2. In Table 1 of appendix IX of part 261 it is proposed to add the following waste stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261—Waste Excluded Under §§ 260.20 and 260.22
|* * * * * * *|
|Tokusen USA, Inc||Conway, AR||Dewatered wastewater treatment plant (WWTP) sludge (EPA Hazardous Waste Nos. F006) generated at a maximum annual rate of 670 cubic yards per calendar year after [insert publication date of the final rule] and disposed in a Subtitle D landfill. For the exclusion to be valid, Tokusen must implement a testing program that meets the following Paragraphs:|
|(1) Delisting Levels: All leachable concentrations for those constituents must not exceed the following levels (mg/1). The petitioner must use an acceptable leaching method, for example SW-846, Method 1311 to measure constituents in the waste leachate.|
|Dewatered WWTP sludge (i) Inorganic Constituents Antimony-0.360; Arsenic-0.0654; Barium-51.1; Chromium-5.0; Cobalt-15.7; Copper-7,350; Lead-5.0; Nickel-19.7; Selenium-1.0; Silver-2.68; Vanadium-14.8; Zinc-196. (ii) Organic Constituents 1,4 Dichlorobenzene-3.03; hexachlorobutadiene-0.21.|
|(2) Waste Holding and Handling: Tokusen must store the dewatered WWTP sludge as described in its RCRA permit, or continue to dispose of as hazardous all dewatered WWTP sludge generated, until they have completed verification testing described in Paragraph (3)(A) and (B), as appropriate, and valid analyses show that paragraph (1) is satisfied.|
|(B) Levels of constituents measured in the samples of the dewatered WWTP sludge that do not exceed the levels set forth in Paragraph (1) are non-hazardous. Tokusen can manage and dispose the non-hazardous dewatered WWTP sludge according to all applicable solid waste regulations.|
|(C) If constituent levels in a sample exceed any of the delisting levels set in Paragraph (1), Tokusen must retreat the batches of waste used to generate the representative sample until it meets the levels. Tokusen must repeat the analyses of the treated waste.|
|Start Printed Page 46147|
|(D) If the facility has not treated the waste, Tokusen must manage and dispose the waste generated under Subtitle C of RCRA.|
|(3) Verification Testing Requirements: Tokusen must perform sample collection and analyses, including quality control procedures, according to SW-846 methodologies. If EPA judges the process to be effective under the operating conditions used during the initial verification testing, Tokusen may replace the testing required in Paragraph (3)(A) with the testing required in Paragraph (3)(B). Tokusen must continue to test as specified in Paragraph (3)(A) until and unless notified by EPA in writing that testing in Paragraph (3)(A) may be replaced by Paragraph (3)(B).|
|(A) Initial Verification Testing: After EPA grants the final exclusion, Tokusen must do the following: (i) Collect and analyze composites of the dewatered WWTP sludge. (ii) Make two composites of representative grab samples collected. (iii) Analyze the waste, before disposal, for all of the constituents listed in Paragraph 1. (iv) Sixty (60) days after this exclusion becomes final, report the operational and analytical test data, including quality control information.|
|(B) Subsequent Verification Testing: Following written notification by EPA, Tokusen may substitute the testing conditions in (3)(B) for (3)(A). Tokusen must continue to monitor operating conditions, and analyze representative samples each quarter of operation during the first year of waste generation. The samples must represent the waste generated during the quarter.|
|(C) Termination of Organic Testing: (i) Tokusen must continue testing as required under Paragraph (3)(B) for organic constituents in Paragraph (1)(A)(ii), until the analytical results submitted under Paragraph (3)(B) show a minimum of two consecutive samples below the delisting levels in Paragraph (1)(A)(i), Tokusen may then request that EPA stop quarterly organic testing. After EPA notifies Tokusen in writing, the company may end quarterly organic testing. (ii) Following cancellation of the quarterly testing, Tokusen must continue to test a representative composite sample for all constituents listed in Paragraph (1) annually (by twelve months after final exclusion).|
|(4) Changes in Operating Conditions: If Tokusen significantly changes the process described in its petition or starts any processes that generate(s) the waste that may or could affect the composition or type of waste generated as established under Paragraph (1) (by illustration, but not limitation, changes in equipment or operating conditions of the treatment process), they must notify EPA in writing; they may no longer handle the wastes generated from the new process as nonhazardous until the wastes meet the delisting levels set in Paragraph (1) and they have received written approval to do so from EPA.|
|(5) Data Submittals: Tokusen must submit the information described below. If Tokusen fails to submit the required data within the specified time or maintain the required records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in Paragraph 6. Tokusen must:|
|(A) Submit the data obtained through Paragraph 3 to the Section Chief, Region 6 Delisting Program, EPA, 1445 Ross Avenue, Dallas, Texas 75202-2733, Mail Code, (6PD-O) within the time specified.|
|(B) Compile records of operating conditions and analytical data from Paragraph (3), summarized, and maintained on-site for a minimum of five years.|
|(C) Furnish these records and data when EPA or the State of Arkansas request them for inspection.|
|(D) Send along with all data a signed copy of the following certification statement, to attest to the truth and accuracy of the data submitted: Under civil and criminal penalty of law for the making or submission of false or fraudulent statements or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. § 1001 and 42 U.S.C. § 6928), I certify that the information contained in or accompanying this document is true, accurate and complete.|
|As to the (those) identified section(s) of this document for which I cannot personally verify its (their) truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete.|
|If any of this information is determined by EPA in its sole discretion to be false, inaccurate or incomplete, and upon conveyance of this fact to the company, I recognize and agree that this exclusion of waste will be void as if it never had effect or to the extent directed by EPA and that the company will be liable for any actions taken in contravention of the company's RCRA and CERCLA obligations premised upon the company's reliance on the void exclusion.|
|Start Printed Page 46148|
|(6) Reopener: (A) If, anytime after disposal of the delisted waste, Tokusen 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 for the delisting verification testing is at level higher than the delisting level allowed by the Regional Administrator or his delegate in granting the petition, then the facility must report the data, in writing, to the Regional Administrator or his delegate within 10 days of first possessing or being made aware of that data.|
|(B) If the annual testing of the waste does not meet the delisting requirements in Paragraph 1, Tokusen must report the data, in writing, to the Regional Administrator or his delegate within 10 days of first possessing or being made aware of that data.|
|(C) If Tokusen fails to submit the information described in paragraphs (5), (6)(A) or (6)(B) or if any other information is received from any source, the Regional Administrator or his delegate will make a preliminary determination as to whether the reported information requires Agency 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 the Regional Administrator or his delegate determines that the reported information does require Agency action, the Regional Administrator or his delegate will notify the facility in writing of the actions the Regional Administrator or his delegate believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to present information as to why the proposed Agency action is not necessary. The facility shall have 10 days from the date of the Regional Administrator or his delegate's notice to present such information.|
|(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no information is presented under paragraph (6)(D)) the initial receipt of information described in paragraphs (5), (6)(A) or (6)(B), the Regional Administrator or his delegate will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any required action described in the Regional Administrator or his delegate's determination shall become effective immediately, unless the Regional Administrator or his delegate provides otherwise.|
|(7) Notification Requirements: Tokusen must do the following before transporting the delisted waste: Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the decision.|
|(A) Provide a one-time written notification to any State Regulatory Agency to which or through which they will transport the delisted waste described above for disposal, 60 days before beginning such activities.|
|(B) Update the one-time written notification if they ship the delisted waste into a different disposal facility.|
|* * * * * * *|
[FR Doc. 02-17458 Filed 7-11-02; 8:45 am]
BILLING CODE 6560-50-P