[Federal Register Volume 66, Number 85 (Wednesday, May 2, 2001)]
[Rules and Regulations]
[Pages 21877-21886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10991]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6968-6]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is 
granting a petition submitted by BMW Manufacturing Corporation, Greer, 
South Carolina (BMW), to exclude (or ``delist'') a certain hazardous 
waste from the lists of hazardous wastes. BMW will generate the 
petitioned waste by treating wastewater from BMW's automobile assembly 
plant when aluminum is one of the metals used to manufacture automobile 
bodies. The waste so generated is a wastewater treatment sludge that 
meets the definition of F019. BMW petitioned EPA to grant a 
``generator-specific'' delisting because BMW believes that its F019 
waste does

[[Page 21878]]

not meet the criteria for which this type of waste was listed. EPA 
reviewed all of the waste-specific information provided by BMW, 
performed calculations, and determined that the waste could be disposed 
in a landfill without harming human health and the environment. This 
action responds to BMW's petition to delist this waste on a generator-
specific basis from the hazardous waste lists, and to public comments 
on the proposed rule. EPA took into account all public comments on the 
proposed rule before setting the final delisting levels. Final 
delisting levels in the waste leachate are based on the EPA Composite 
Model for Leachate Migration with Transformation Products as used in 
EPA, Region 6's Delisting Risk Assessment Software. Today's rule also 
sets limits on the total concentration of each hazardous constituent in 
the waste. In accordance with the conditions specified in this final 
rule, BMW's petitioned waste is excluded from the requirements of 
hazardous waste regulations under Subtitle C of the Resource 
Conservation and Recovery Act (RCRA).

EFFECTIVE DATE: This rule is effective on May 2, 2001.

ADDRESSES: The RCRA regulatory docket for this final rule is located at 
the EPA Library, U.S. Environmental Protection Agency, Region 4, Sam 
Nunn Atlanta Federal Center, 61 Forsyth Street, S.W., Atlanta, Georgia 
30303, and is available for viewing from 9:00 a.m. to 4:00 p.m., Monday 
through Friday, excluding Federal holidays.
    The reference number for this docket is R4-00-01-BMWF. The public 
may copy material from any regulatory docket at no cost for the first 
100 pages, and at a cost of $0.15 per page for additional copies. For 
copying at the South Carolina Department of Health and Environmental 
Control, please see below.

FOR FURTHER INFORMATION CONTACT: For general and technical information 
concerning this final rule, please contact Judy Sophianopoulos, RCRA 
Enforcement and Compliance Branch (Mail Code 4WD-RCRA), U.S. 
Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal 
Center, 61 Forsyth Street, S.W., Atlanta, Georgia 30303, (404) 562-
8604, or call, toll free (800) 241-1754, and leave a message, with your 
name and phone number, for Ms. Sophianopoulos to return your call. 
Questions may also be e-mailed to Ms. Sophianopoulos at 
[email protected]. You may also contact Cindy Carter, 
Appalachia III District, South Carolina Department of Health and 
Environmental Control (SCDHEC), 975C North Church Street, Spartanburg, 
South Carolina. If you wish to copy documents at SCDHEC, please contact 
Ms. Carter for copying procedures and costs.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline:

I. Background
    A. What Is a Delisting Petition?
    B. What Laws and Regulations Give EPA the Authority to Delist 
Wastes?
    C. What is the History of this Rulemaking?
II. Summary of Delisting Petition Submitted by BMW Manufacturing 
Corporation, Greer, South Carolina (BMW)
    A. What Waste Did BMW Petition EPA to Delist?
    B. What Information Did BMW Submit to Support This Petition?
III. EPA's Evaluation and Final Rule
    A. What Decision Is EPA Finalizing and Why?
    B. What Are the Terms of This Exclusion?
    C. When Is the Delisting Effective?
    D. How Does This Action Affect the States?
IV. Public Comments Received on the Proposed Exclusion
    A. Who Submitted Comments on the Proposed Rule?
    B. Comments and Responses From EPA
V. Regulatory Impact
VI. Congressional Review Act
VII. Executive Order 12875

I. Background

A. What Is a Delisting Petition?

    A delisting petition is a request made by a hazardous waste 
generator to exclude one or more of his/her wastes from the lists of 
RCRA-regulated hazardous wastes in Secs. 261.31, 261.32, and 261.33 of 
Title 40 of the Code of Federal Regulations (40 CFR 261.31, 261.32, and 
261.33). The regulatory requirements for a delisting petition are in 40 
CFR 260.20 and 260.22. EPA, Region 6 has prepared a guidance manual, 
Region 6 Guidance Manual for the Petitioner,\1\ which is recommended by 
EPA Headquarters in Washington, DC and all EPA Regions.
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    \1\ This manual may be down-loaded from Region 6's Web Site at 
the following URL address: http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dlistpdf.htm
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B. What Laws and Regulations Give EPA the Authority To Delist Wastes?

    On January 16, 1981, as part of its final and interim final 
regulations implementing section 3001 of RCRA, EPA published an amended 
list of hazardous wastes from non-specific and specific sources. This 
list has been amended several times, and is published in 40 CFR 261.31 
and 261.32. These wastes are listed as hazardous because they exhibit 
one or more of the characteristics of hazardous wastes identified in 
subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and 
toxicity) or meet the criteria for listing contained in Sec. 261.11 
(a)(2) or (a)(3). Discarded commercial chemical product wastes which 
meet the listing criteria are listed in Sec. 261.33(e) and (f).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be. For this reason, Secs. 260.20 and 260.22 
provide an exclusion procedure, allowing persons to demonstrate that a 
specific waste from a particular generating facility should not be 
regulated as a hazardous waste.
    To have their wastes excluded, petitioners must show, first, that 
wastes generated at their facilities do not meet any of the criteria 
for which the wastes were listed. See Sec. 260.22(a) and the background 
documents for the listed wastes. Second, the Administrator must 
determine, where he/she has a reasonable basis to believe that factors 
(including additional constituents) other than those for which the 
waste was listed could cause the waste to be a hazardous waste, that 
such factors do not warrant retaining the waste as a hazardous waste. 
Accordingly, a petitioner also must demonstrate that the waste does not 
exhibit any of the hazardous waste characteristics (i.e., ignitability, 
reactivity, corrosivity, and toxicity), and must present sufficient 
information for the EPA to determine whether the waste contains any 
other toxicants at hazardous levels. See Sec. 260.22(a), 42 U.S.C. 
6921(f), and the background documents for the listed wastes. Although 
wastes which are ``delisted'' (i.e., excluded) have been evaluated to 
determine whether or not they exhibit any of the characteristics of 
hazardous waste, generators remain obligated under RCRA to determine 
whether or not their wastes continue to be nonhazardous based on the 
hazardous waste characteristics (i.e., characteristics which may be 
promulgated subsequent to a delisting decision.)
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See 40 CFR 261.3 (a)(2)(iv) and 
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of

[[Page 21879]]

Columbia vacated the ``mixture/derived-from'' rules and remanded them 
to the EPA on procedural grounds. Shell Oil Co. v. EPA, 950 F.2d 741 
(D.C. Cir. 1991). On March 3, 1992, EPA reinstated the mixture and 
derived-from rules, and solicited comments on other ways to regulate 
waste mixtures and residues (57 FR 7628). These rules became final on 
October 30, 1992 (57 FR 49278), and should be consulted for more 
information regarding waste mixtures and solid wastes derived from 
treatment, storage, or disposal of a hazardous waste. The mixture and 
derived-from rules are codified in 40 CFR 261.3 (b)(2) and (c)(2)(i). 
EPA plans to address waste mixtures and residues when the final portion 
of the Hazardous Waste Identification Rule (HWIR) is promulgated.
    On October 10, 1995, the Administrator delegated to the Regional 
Administrators the authority to evaluate and approve or deny petitions 
submitted in accordance with Secs. 260.20 and 260.22 by generators 
within their Regions (National Delegation of Authority 8-19) in States 
not yet authorized to administer a delisting program in lieu of the 
Federal program. On March 11, 1996, the Regional Administrator of EPA, 
Region 4, redelegated delisting authority to the Director of the Waste 
Management Division (Regional Delegation of Authority 8-19).

C. What Is the History of This Rulemaking?

    BMW manufactures BMW automobiles, and is seeking a delisting for 
the sludge that will be generated by treating wastewater from its 
manufacturing operations, when aluminum will be used to replace some of 
the steel in the automobile bodies. Wastewater treatment sludge does 
not meet a hazardous waste listing definition when steel-only 
automobile bodies are manufactured. However, the wastewater treatment 
sludge generated at automobile manufacturing plants where aluminum is 
used as a component of automobile bodies, meets the listing definition 
of F019 in Sec. 261.31.\2\
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    \2\ ``Wastewater treatment sludges from the chemical conversion 
coating of aluminum except from zirconium phosphating in aluminum 
can washing when such phosphating is an exclusive conversion coating 
process.''
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    BMW petitioned EPA, Region 4, on June 2, 2000, to exclude this F019 
waste on a generator-specific basis from the lists of hazardous wastes 
in 40 CFR part 261, subpart D.
    The hazardous constituents of concern for which F019 was listed are 
hexavalent chromium and cyanide (complexed). BMW petitioned the EPA to 
exclude its F019 waste because BMW does not use either of these 
constituents in the manufacturing process. Therefore, BMW does not 
believe that the waste meets the criteria of the listing.
    BMW claims that its F019 waste will not be hazardous because the 
constituents of concern for which F019 is listed will be present only 
at low concentrations and will not leach out of the waste at 
significant concentrations. BMW also believes that this waste will not 
be hazardous for any other reason (i.e., there will be no additional 
constituents or factors that could cause the waste to be hazardous). 
Review of this petition included consideration of the original listing 
criteria, as well as the additional factors required by the Hazardous 
and Solid Waste Amendments (HSWA) of 1984. See section 222 of HSWA, 42 
U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). As a result of the EPA's 
evaluation of BMW's petition, the Agency proposed to grant a delisting 
to BMW, on February 12, 2001. See 66 FR 9781-9798, February 12, 2001, 
for details. Today's rulemaking addresses public comments received on 
the proposed rule and finalizes the proposed decision to grant BMW's 
petition for delisting.

II. Summary of Delisting Petition Submitted by BMW Manufacturing 
Corporation, Greer, South Carolina (BMW)

A. What Waste Did BMW Petition EPA To Delist?

    BMW petitioned EPA, Region 4, on June 2, 2000, to exclude a maximum 
annual weight of 2,400 tons (2,850 cubic yards) of its F019 waste, on a 
generator-specific basis, from the lists of hazardous wastes in 40 CFR 
part 261, subpart D. BMW manufactures BMW automobiles, and is seeking a 
delisting for the sludge that will be generated by treating wastewater 
from its manufacturing operations, when aluminum will be used to 
replace some of the steel in the automobile bodies. Wastewater 
treatment sludge does not meet a hazardous waste listing definition 
when steel-only automobile bodies are manufactured. However, the 
wastewater treatment sludge generated at automobile manufacturing 
plants where aluminum is used as a component of automobile bodies meets 
the listing definition of F019 in Sec. 261.31.

B. What Information Did BMW Submit To Support This Petition?

    In support of its petition, BMW submitted: (1) Descriptions of its 
manufacturing and wastewater treatment processes, the generation point 
of the petitioned waste, and the manufacturing steps that will 
contribute to its generation; (2) Material Safety Data Sheets (MSDSs) 
for materials used to manufacture automobiles and to treat wastewater; 
(3) the minimum and maximum annual amounts of wastewater treatment 
sludge generated from 1996 through 1999, and an estimate of the maximum 
annual amount expected to be generated in the future; (4) results of 
analysis for metals, cyanide, sulfide, fluoride, and volatile organic 
compounds in the currently generated waste at the BMW plants in Greer, 
South Carolina, and Dingolfing, Germany; (5) results of the analysis of 
leachate from these wastes, obtained by means of the Toxicity 
Characteristic Leaching Procedure ((TCLP), SW-846 Method 1311 \3\); (6) 
results of the determinations for the hazardous characteristics of 
ignitability, corrosivity, and reactivity in these wastes; (7) results 
of determinations of dry weight percent, bulk density, and free liquids 
in these wastes; and (8) results of the analysis of the waste currently 
generated at the plant in Greer, South Carolina, by means of the 
Multiple Extraction Procedure (MEP), SW-846 Method 1320, in order to 
evaluate the long-term resistance of the waste to leaching in a 
landfill.
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    \3\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for 
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this 
publication are referred to in today's proposed rule as ``SW-846,'' 
followed by the appropriate method number.
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    The hazardous constituents of concern for which F019 was listed are 
hexavalent chromium and cyanide (complexed). BMW petitioned the EPA to 
exclude its F019 waste because BMW does not believe that the waste 
meets the criteria of the listing.
    BMW submitted to the EPA analytical data from its Greer, South 
Carolina plant and from the BMW plant in Dingolfing, Germany. Four 
composite samples of wastewater treatment sludge, from approximately 60 
batches of wastewater, were collected from each plant over a three-week 
period. Based on this information, EPA identified the following 
constituents of concern: barium, cadmium, chromium, cyanide, lead, and 
nickel. The maximum reported concentrations of the toxicity 
characteristic (TC) metals barium, cadmium, chromium, and lead in the

[[Page 21880]]

TCLP extracts of the samples were below the TC regulatory levels. The 
maximum reported concentration of total cyanide in unextracted waste 
was 3.35 milligrams per kilogram (mg/kg), which is greater than the 
generic exclusion level of 1.8 mg/kg for high temperature metal 
recovery (HTMR) residues in 40 CFR 261.3(c)(2)(ii)(C)(1), and less than 
590 mg/kg, the Land Disposal Restrictions (LDR) Universal Treatment 
Standards (UTS) level, in section 268.48. Chromium was undetected in 
the TCLP extract of any sample. The maximum reported concentration of 
chromium in unextracted samples was 100 mg/kg for the German plant and 
222 mg/kg for the Greer, South Carolina plant. The maximum 
concentration of nickel in the TCLP extract of any sample was 0.73 
milligrams per liter (mg/l) for the German plant and 6.25 mg/l for the 
Greer, South Carolina plant. The maximum reported concentration of 
nickel in unextracted samples was 6,500 mg/kg for the German plant and 
1,700 mg/kg for the Greer, South Carolina plant. See the proposed rule, 
66 FR 9781-9798, February 12, 2001, for details on BMW's analytical 
data, production process, and generation process for the petitioned 
waste. EPA does not generally verify submitted test data before 
proposing delisting decisions. The sworn affidavit submitted with this 
petition binds the petitioner to present truthful and accurate results. 
The Agency, however, has maintained a spot-check sampling and analysis 
program to verify the representative nature of data for some percentage 
of the submitted petitions. A spot-check visit to a selected facility 
may be initiated before or after granting a delisting. Section 3007 of 
RCRA gives EPA the authority to conduct inspections to determine if a 
delisted waste is meeting the delisting conditions.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

    For reasons stated in both the proposal and this final rule, EPA 
believes that BMW's petitioned waste should be excluded from hazardous 
waste control. EPA, therefore, is granting a final generator-specific 
exclusion to BMW, of Greer, South Carolina, for a maximum annual 
generation rate of 2,850 cubic yards of the waste described in its 
petition as EPA Hazardous Waste Number F019. This waste is required to 
undergo verification testing before being considered as excluded from 
Subtitle C regulation. Requirements for waste to be land disposed have 
been included in this exclusion. The exclusion applies only to the 
waste as described in BMW's petition, dated June 2000.
    Although management of the waste covered by this petition is 
relieved from Subtitle C jurisdiction, the generator of the delisted 
waste must either treat, store, or dispose of the waste in an on-site 
facility, or ensure that the waste is delivered to an off-site storage, 
treatment, or disposal facility, either of which is permitted, licensed 
or registered by a State to manage municipal or industrial solid waste. 
Alternatively, the delisted waste may be delivered to a facility that 
beneficially uses or reuses, or legitimately recycles or reclaims the 
waste, or treats the waste prior to such beneficial use, reuse, 
recycling, or reclamation. See 40 CFR part 260, appendix I. BMW's 
preferred method of waste management for its delisted waste is 
recycling, rather than land disposal. Nonhazardous waste management is 
subject to all applicable federal, state, and local regulations.

B. What Are the Terms of This Exclusion?

    In the rule proposed on February 12, 2001, EPA requested public 
comment on which of the following possible methods should be used to 
evaluate BMW's delisting petition and set delisting levels for the 
petitioned waste (see 66 FR 9781-9798, February 12, 2001):
    (1) Delisting levels based on the EPA Composite Model for Landfills 
(EPACML), modified for delisting; (2) delisting levels based on the EPA 
Composite Model for Leachate Migration with Transformation Products 
(EPACMTP model) as used in EPA, Region 6's Delisting Risk Assessment 
Software (DRAS); (3) use of the Multiple Extraction Procedure (MEP), 
SW-846 Method 1320, to evaluate the long-term resistance of the waste 
to leaching in a landfill; (4) setting limits on total concentrations 
of constituents in the waste that are more conservative than results of 
calculations of constituent release from waste in a landfill to surface 
water and air, and release during waste transport; and (5) setting 
delisting levels at the Land Disposal Restrictions (LDR) Universal 
Treatment Standards (UTS) levels in 40 CFR 268.48. See the proposed 
rule, 66 FR 9781-9798, February 12, 2001, for details of calculating 
delisting levels using these methods.
    After considering all public comments on the proposed rule, and the 
MEP analysis of the petitioned waste which indicated long-term 
resistance to leaching (see 66 FR 9793-9794, February 12, 2001), EPA is 
granting BMW, in today's final rule, an exclusion from the lists of 
hazardous wastes in subpart D of 40 CFR part 261 for its petitioned 
waste when disposed in a Subtitle D \4\ landfill. BMW must meet all of 
the following delisting conditions in order for this exclusion to be 
valid: (1) Delisting levels in mg/l in the TCLP extract of the waste 
based on the DRAS EPACMTP model of 100.0 \5\ for Barium, 1.0 for 
Cadmium, 5.0 for Chromium, 33.6 for Cyanide, 5.0 for Lead, and 70.3 for 
Nickel; (2) the total concentration of cyanide (total, not amenable) in 
the waste, not the waste leachate, must not exceed 200 mg/kg; (3) the 
total concentrations, in mg/kg, of metals in the waste, not the waste 
leachate, must not exceed 2,000 for Barium, 500 for Cadmium, 1,000 for 
Chromium, 2,000 for Lead, and 20,000 for Nickel.
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    \4\ The term, ``Subtitle D landfill,'' refers to a landfill that 
is licensed to land dispose nonhazardous wastes, that is, wastes 
that are not RCRA hazardous wastes. A Subtitle D landfill is subject 
to federal standards in 40 CFR parts 257 and 258 and to state and 
local regulations for nonhazardous wastes and nonhazardous waste 
landfills.
    \5\ Delisting levels cannot exceed the Toxicity Characteristic 
(TC) regulatory levels. Therefore, although the DRAS EPACMTP 
calculates higher concentrations (see the proposed rule, 66 FR 9793, 
February 12, 2001, and Table 1, below), the delisting levels in the 
final rule are set at the TC levels for barium, cadmium, chromium, 
and lead. In order for the waste to be delisted, concentrations in 
the TCLP extract of the waste must be less than the TC levels. See 
the regulatory definition of a TC waste in 40 CFR 261.24.
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    Delisting levels and risk levels calculated by DRAS, using the 
EPACMTP model, are presented in Table 1 below.\6\ DRAS found that the 
major pathway for human exposure to this waste is groundwater 
ingestion, and calculated delisting and risk levels based on that 
pathway. For details, see the following Federal Registers: 65 FR 75637-
75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000; and the 
proposed rule for BMW's petitioned waste, 66 FR 9792-9793, February 12, 
2001.
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    \6\ Table 1 is identical to Table 3B of the proposed rule (66 FR 
9793, February 12, 2001), except that typographical errors for the 
entries for lead and chromium have been corrected in response to 
verbal comments by BMW. Specifically, the DRAS-calculated delisting 
level for chromium was corrected to read ``5.39  x  10\5\*,'' 
instead of ``5.39  x  10\-\\5\,'' and the DAF for lead was corrected 
to read ``1.24  x  10\4\,'' instead of ``1.24  x  10-4.'' 
The acronym, ``DAF,'' in Table 1, means the Dilution Attenuation 
Factor calculated by DRAS. The ``*'' in Table 1 means that the DRAS-
calculated delisting level exceeds the Toxicity Characteristic 
regulatory level. See Footnote 5 above.

[[Page 21881]]



                           Table 1.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for BMW Petitioned Waste
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                                                                                                                                DRAS-calculated hazard
                                                                                                  DRAS-calculated risk for       quotient for maximum
             Constituent              Delisting level (mg/l TCLP)              DAF                maximum concentration of      concentration of non-
                                                                                                    carcinogen in waste          carcinogen in waste
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Barium..............................  182*                         69.2                         ...........................  4.87 x 10-2
Cadmium.............................  1.4*                         74.6                         1.62 x 10-13                 3.57 x 10-2
Chromium............................  5.39 x 105*                  9,580                        ...........................  5.8 x  10-7
Cyanide.............................  33.6                         44.8                         ...........................  1.49 x 10-3
Lead................................  187*                         1.24 x 104                   ...........................  Not Calculable; No
                                                                                                                              Reference Dose for Lead
Nickel..............................  70.3                         93.5                         ...........................  8.9 x 102
Total Hazard Quotient for All Waste   ...........................  ...........................  ...........................  0.187
 Constituents.
Total Carcinogenic Risk for the       ...........................  ...........................  1.62 x 10-13                 ...........................
 Waste (due to Cadmium).
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    EPA believes that the limits on total concentrations in conditions 
(2) and (3) above are protective of human health and the environment, 
and that they are appropriate, given that the delisted waste is not 
subject to regulation as a hazardous waste. EPA also believes that 
these limits are realistic, attainable values for wastewater treatment 
sludges that contain metals and cyanide. The limit for cyanide was 
chosen so that the waste could not exhibit the reactivity 
characteristic for cyanide by exceeding the interim guidance for 
reactive cyanide of 250 mg/kg of releasable hydrogen cyanide (SW-846, 
Chapter Seven, section 7.3.3.)
    After taking into account all public comments on the proposed rule, 
EPA is retaining in today's final rule to exclude BMW's petitioned 
waste Conditions (2) through (7) in Table 1, appendix IX of part 261 of 
the proposed rule (66 FR 9796-9798, February 12, 2001). In response to 
public comments, EPA is changing Condition (1) for BMW's waste in 
Appendix IX, by replacing the proposed delisting levels in the TCLP 
leachate with the leachate delisting levels in the first condition of 
today's Preamble, section III.B: delisting levels, in mg/l in the TCLP 
extract of the waste, of 100.0 \7\ for Barium, 1.0 for Cadmium, 5.0 for 
Chromium, 33.6 for Cyanide, 5.0 for Lead, and 70.3 for Nickel. The 
limits on total concentrations in today's final rule are the same as 
proposed in Condition (1) of Table 1, appendix IX, part 261: The total 
concentration of cyanide (total, not amenable) in the waste, not the 
waste leachate, must not exceed 200 mg/kg; the total concentrations, in 
mg/kg, of metals in the waste, not the waste leachate, must not exceed 
2,000 for Barium, 500 for Cadmium, 1,000 for Chromium, 2,000 for Lead, 
and 20,000 for Nickel.
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    \7\ Delisted wastes cannot exhibit a hazardous waste 
characteristic. Therefore, when delisting levels are set at the 
Toxicity Characteristic (TC) regulatory levels, the TCLP extract of 
the petitioned waste must have concentrations less than the TC 
levels in order to meet conditions for delisitng. Although the DRAS 
EPACMTP calculates higher concentrations (see the proposed rule, 66 
FR 9793, February 12, 2001, and Table 1, section III.B. of today's 
preamble), the delisting levels in the final rule are set at the TC 
levels for barium, cadmium, chromium, and lead.
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C. When Is the Delisting Effective?

    This rule is effective on May 2, 2001. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here, because this rule reduces the existing requirements for 
persons generating hazardous wastes. In light of the unnecessary 
hardship and expense that would be imposed on this petitioner by an 
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of section 3010, 
EPA believes that this exclusion should be effective immediately upon 
final publication.
    These reasons also provide a basis for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, pursuant to 5 U.S.C. 553(d).

D. How Does This Action Affect the States?

    The final exclusion being granted today is issued under the Federal 
(RCRA) delisting program. States, however, are allowed to impose their 
own non-RCRA regulatory requirements that are more stringent than 
EPA's, pursuant to section 3009 of RCRA. These more stringent 
requirements may include a provision which prohibits a Federally-issued 
exclusion from taking effect in the States. Because a petitioner's 
waste may be regulated under a dual system (i.e., both Federal (RCRA) 
and State (non-RCRA) programs, petitioners are urged to contact State 
regulatory authorities to determine the current status of their wastes 
under the State laws.
    Furthermore, some States are authorized to administer a delisting 
program in lieu of the Federal program, i.e., to make their own 
delisting decisions. Therefore, this exclusion does not apply in those 
authorized States. If the petitioned waste will be transported to and 
managed in any State with delisting authorization, BMW must obtain 
delisting authorization from that State before the waste may be managed 
as nonhazardous in that State.

IV. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule?

    EPA received public comments on the proposed rule published in 66 
FR 9781-9798, February 12, 2001, from (1) BMW Manufacturing 
Corporation, Greer, South Carolina (BMW), the petitioner, (2) Alliance 
of Automobile Manufacturers, Washington, DC, (3) Nissan North America, 
Inc., Smyrna, Tennessee, and (4) The Aluminum Association, Washington, 
DC. EPA commends and appreciates the thoughtful comments submitted by 
all of the commenters.

B. Comments and Responses From EPA

    Comment: BMW stated that the Land Disposal Restrictions (LDR) 
should not be used to establish delisting levels, because there is no 
scientific or regulatory basis for their use. BMW also stated, in 
support of this position, that EPA had decided not to establish 
delisting levels based on LDR, in

[[Page 21882]]

response to public comments on a previously proposed rule to delist 
F019 waste (64 FR 55443, October 13, 1999).
    Response: EPA has decided not to set delisting levels based on LDR 
for BMW's petitioned waste, and the final delisting levels in appendix 
IX of part 261 established in today's final rule are not based on LDR. 
The analytical data submitted by BMW indicate that the petitioned 
waste, when generated, would meet LDR treatment standards. See the 
proposed rule, 66 FR 9790-9792, February 12, 2001, and today's 
preamble, section II.B.
    Comment: BMW disagrees with EPA's proposed method of setting 
delisting levels based on total concentrations, because there is no 
scientific correlation between total concentrations of metals and 
environmental impact. BMW stated that EPA modeling and testing 
demonstrate that harmful concentrations of constituents will not leach 
from the petitioned waste.
    Response: BMW brings up some significant issues in this comment and 
makes some good points. However, EPA feels that the proposed limits on 
total concentrations are reasonable, given that the delisted waste will 
not be subject to regulation as a hazardous waste under RCRA Subtitle 
C. These limits will provide added reassurance to the public that 
management of the waste as nonhazardous will be protective of human 
health and the environment.
    Comment: BMW disagrees with EPA's proposal to base delisting levels 
on the EPACML model (66 FR 9792-9793, 9797, February 12, 2001). BMW 
stated that if the new EPACMTP model ``is truly based on improved 
science, the concentration limits calculated by the model should be the 
basis for establishing delisting levels.''
    Response: EPA agrees with the points made in this comment, and 
today's final rule uses the DRAS EPACMTP as the basis for the delisting 
levels in the TCLP extract of the waste. As stated in today's preamble, 
section III.B., concentrations in the TCLP extract of the waste (in mg/
l) are limited to 100.0 \8\ for Barium, 1.0 for Cadmium, 5.0 for 
Chromium, 33.6 for Cyanide, 5.0 for Lead, and 70.3 for Nickel.
---------------------------------------------------------------------------

    \8\ Delisted wastes cannot exhibit a hazardous waste 
characteristic. Therefore, when delisting levels are set at the 
Toxicity Characteristic (TC) regulatory levels, the TCLP extract of 
the petitioned waste must have concentrations less than the TC 
levels in order to meet conditions for delisting. Although the DRAS 
EPACMTP calculates higher concentrations (see the proposed rule, 66 
FR 9793, February 12, 2001, and Table 1, section III.B. of today's 
preamble), the delisting levels in the final rule are set at the TC 
levels for barium, cadmium, chromium, and lead.
---------------------------------------------------------------------------

    Comment: The Alliance of Automobile Manufacturers (Alliance) stated 
that it strongly supports the proposed delisting, and agrees with EPA 
that fate and transport models are useful tools to evaluate delisting 
petitions. However, the Alliance believes that the F019 listing itself 
should be revised to exclude wastewater treatment sludges from 
automotive industry conversion coating on aluminum when hexavalent 
chromium and cyanides are not used in the process.
    Response: Today's final rule is site-specific and waste-specific; 
it applies only to BMW's plant in Greer, South Carolina, and only to 
the petitioned waste. An exclusion of general applicability would 
require a separate rule-making, with more extensive data collection and 
risk analysis. EPA understands the Alliance's concern about the need 
for each auto company to submit a delisting petition, but is unable to 
address this concern at the present time.
    Comment: The Alliance disagrees with EPA's proposed use of (1) the 
MEP to evaluate BMW's delisting petition; (2) establishing delisting 
levels based on total concentrations; and (3) establishing delisting 
levels based on LDR treatment standards.
    Response: (1) EPA used MEP analysis of the petitioned waste as a 
measure of the long-term resistance of the waste to leaching (see 66 FR 
9789, 9793-9794, February 12, 2001), which is an important 
consideration for waste to be disposed in a Subtitle D (nonhazardous 
waste) landfill. (2) The Alliance brings up some significant issues in 
this comment and makes some good points. However, EPA feels that the 
proposed limits on total concentrations are reasonable, given that the 
delisted waste will not be subject to regulation as a hazardous waste 
under RCRA Subtitle C. These limits will provide added reassurance to 
the public that management of the waste as nonhazardous will be 
protective of human health and the environment. (3) EPA has decided not 
to set delisting levels based on LDR for BMW's petitioned waste, and 
the final delisting levels in appendix IX of part 261 established in 
today's final rule are not based on LDR. The analytical data submitted 
by BMW indicate that the petitioned waste, when generated, would meet 
LDR treatment standards. See the proposed rule, 66 FR 9790-9792, 
February 12, 2001, and today's preamble, section II.B.
    Comment: The Alliance commented on the use of the EPACMTP and DRAS 
by saying that their use should be the subject of a separate rulemaking 
because they raise complex issues that EPA should not try to resolve in 
this delisting.
    Response: Use of the EPACMTP and DRAS has been described in detail 
in 65 FR 75637-75651, December 4, 2000, and 65 FR 58015-58031, 
September 27, 2000. The December 4, 2000 Federal Register discusses the 
key enhancements of the EPACMTP and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR FR proposal 
docket (60 FR 66344, December 21, 1995). For every delisting petition 
submitted to EPA, EPA proposes and requests comment on all available 
methods for evaluating the petition and setting delisting levels, 
including the EPACMTP and DRAS. Thus, these models, and future 
improvements, will be proposed for comment in every delisting 
rulemaking.
    Comment: Nissan North America, Inc. (Nissan) stated that none of 
the following methods proposed by EPA is appropriate for evaluating 
BMW's petition and setting delisting levels for the petitioned waste: 
(1) Use of the MEP; (2) setting limits on total concentrations; and (3) 
setting delisting levels at the LDR UTS levels in 40 CFR 268.48.
    Response: (1) EPA used MEP analysis of the petitioned waste as a 
measure of the long-term resistance of the waste to leaching (see 66 FR 
9789, 9793-9794, February 12, 2001), which is an important 
consideration for waste to be disposed in a Subtitle D (nonhazardous 
waste) landfill. (2) Nissan's points are well taken, but EPA feels that 
the proposed limits on total concentrations are reasonable, given that 
the delisted waste will not be subject to regulation as a hazardous 
waste under RCRA Subtitle C. These limits will provide added 
reassurance to the public that management of the waste as nonhazardous 
will be protective of human health and the environment. (3) EPA has 
decided not to set delisting levels based on LDR for BMW's petitioned 
waste, and the final delisting levels in appendix IX of part 261 
established in today's final rule are not based on LDR. The analytical 
data submitted by BMW indicate that the petitioned waste, when 
generated, would meet LDR treatment standards. See the proposed rule, 
66 FR 9790-9792, February 12, 2001, and today's preamble, section II.B.
    Comment: The Aluminum Association (TAA) stated that the 
restrictions imposed in the proposed

[[Page 21883]]

rule (66 FR 9781-9798, February 12, 2001) may have an impact on future 
delistings submitted by aluminum industry customers that use aluminum 
parts in the manufacture of automobiles.
    Response: TAA's concern is understandable, but today's final rule 
is site-specific and waste-specific. It applies only to BMW's plant in 
Greer, South Carolina, and only to the petitioned waste. EPA evaluates 
every delisting petition on its own merits, in accordance with 40 CFR 
260.20 and 260.22, and every proposed and final rule on delisting is 
site-specific and waste-specific.
    Comment: TAA expressed support for the proposed delisting and the 
determination that BMW's petitioned waste is nonhazardous. TAA also 
expressed support for all of the comments on the proposal submitted by 
the Alliance of Automobile Manufacturers (Alliance): (1) The F019 
listing definition needs to be changed so that conversion coating 
processes are excluded when they don't use the constituents of concern 
that were the basis of the original listing; (2) BMW's waste should not 
be evaluated by means of the MEP; (3) limits for total concentrations 
in BMW's waste should not be set; (4) delisting levels for BMW's waste 
should not be based on the LDR UTS; and (5) EPA should use a separate 
notice and comment rulemaking for use of the EPACMTP and DRAS.
    Response: (1) Today's final rule is site-specific and waste-
specific; it applies only to BMW's plant in Greer, South Carolina, and 
only to the petitioned waste. An exclusion of general applicability 
would require a separate rule-making, with more extensive data 
collection and risk analysis. EPA understands the concern of TAA and 
the Alliance about the need for each auto company to submit a delisting 
petition, but is unable to address this concern at the present time. 
(2) EPA used MEP analysis of the petitioned waste as a measure of the 
long-term resistance of the waste to leaching (see 66 FR 9789, 9793-
9794, February 12, 2001), which is an important consideration for waste 
to be disposed in a Subtitle D (nonhazardous waste) landfill. (3) EPA 
feels that the proposed limits on total concentrations are reasonable, 
given that the delisted waste will not be subject to regulation as a 
hazardous waste under RCRA Subtitle C. These limits will provide added 
reassurance to the public that management of the waste as nonhazardous 
will be protective of human health and the environment. (4) EPA has 
decided not to set delisting levels based on LDR for BMW's petitioned 
waste, and the final delisting levels in appendix IX of part 261 
established in today's final rule are not based on LDR. The analytical 
data submitted by BMW indicate that the petitioned waste, when 
generated, would meet LDR treatment standards. See the proposed rule, 
66 FR 9790-9792, February 12, 2001, and today's preamble, section II.B. 
(5) Use of the EPACMTP and DRAS has been described in detail in 65 FR 
75637-75651, December 4, 2000 and 65 FR 58015-58031, September 27, 
2000. The December 4, 2000 Federal Register discusses the key 
enhancements of the EPACMTP and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR FR proposal 
docket (60 FR 66344, December 21, 1995). For every delisting petition 
submitted to EPA, EPA proposes and requests comment on all available 
methods for evaluating the petition and setting delisting levels, 
including the EPACMTP and DRAS. Thus, these models, and future 
improvements, will be proposed for comment in every delisting 
rulemaking.

V. Regulatory Impact

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a rule of general applicability and therefore is not a 
``regulatory action'' subject to review by the Office of Management and 
Budget. Because this action is a rule of particular applicability 
relating to a facility, it is not subject to the regulatory flexibility 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or 
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 
1995 (UMRA) (Pub. L. 104-4). Because the rule will affect only one 
facility, it will not significantly or uniquely affect small 
governments, as specified in section 203 of UMRA, or communities of 
tribal governments, as specified in Executive Order 13084 (63 FR 27655, 
May 10, 1998). For the same reason, this rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also 
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    This rule does not involve technical standards; thus, the 
requirements of section 12(c) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order.
    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

VI. Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.) as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, the Comptroller General of the United States prior to 
publication of the final rule in the Federal Register. This rule is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will become 
effective on the date of publication in the Federal Register.

VII. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting

[[Page 21884]]

elected officials and other representatives of state, local, and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: April 10, 2001.
Richard D. Green,
Director, Waste Management Division.

    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.


    2. In Table 1 of appendix IX, part 261 add the following 
wastestream in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and 
260.22

           Table 1.--Wastes Excluded From Non-Specific Sources
------------------------------------------------------------------------
           Facility                  Address         Waste description
------------------------------------------------------------------------
 
      *                  *                   *                   *
                  *                   *                   *
BMW Manufacturing Corporation.  Greer, South       Wastewater treatment
                                 Carolina.          sludge (EPA
                                                    Hazardous Waste No.
                                                    F019) that BMW
                                                    Manufacturing
                                                    Corporation (BMW)
                                                    generates by
                                                    treating wastewater
                                                    from automobile
                                                    assembly plant
                                                    located on Highway
                                                    101 South in Greer,
                                                    South Carolina. This
                                                    is a conditional
                                                    exclusion for up to
                                                    2,850 cubic yards of
                                                    waste (hereinafter
                                                    referred to as ``BMW
                                                    Sludge'') that will
                                                    be generated each
                                                    year and disposed in
                                                    a Subtitle D
                                                    landfill after May
                                                    2, 2001. With prior
                                                    approval by the EPA,
                                                    following a public
                                                    comment period, BMW
                                                    may also
                                                    beneficially reuse
                                                    the sludge. BMW must
                                                    demonstrate that the
                                                    following conditions
                                                    are met for the
                                                    exclusion to be
                                                    valid.
                                                   (1) Delisting Levels:
                                                    All leachable
                                                    concentrations for
                                                    these metals must be
                                                    less than the
                                                    following levels
                                                    (ppm): Barium--
                                                    100.0; Cadmium--1.0;
                                                    Chromium--5.0; and
                                                    Lead--5.0. All
                                                    leachable
                                                    concentrations for
                                                    cyanide and nickel
                                                    must not exceed the
                                                    following levels
                                                    (ppm): Cyanide--
                                                    33.6; and Nickel--
                                                    70.3. These metal
                                                    and cyanide
                                                    concentrations must
                                                    be measured in the
                                                    waste leachate
                                                    obtained by the
                                                    method specified in
                                                    40 CFR 261.24,
                                                    except that for
                                                    cyanide, deionized
                                                    water must be the
                                                    leaching medium. The
                                                    total concentration
                                                    of cyanide (total,
                                                    not amenable) in the
                                                    waste, not the waste
                                                    leachate, must not
                                                    exceed 200 mg/kg.
                                                    Cyanide
                                                    concentrations in
                                                    waste or leachate
                                                    must be measured by
                                                    the method specified
                                                    in 40 CFR 268.40,
                                                    Note 7. The total
                                                    concentrations of
                                                    metals in the waste,
                                                    not the waste
                                                    leachate, must not
                                                    exceed the following
                                                    levels (ppm):
                                                    Barium--2,000;
                                                    Cadmium--500;
                                                    Chromium--1,000;
                                                    Lead--2,000; and
                                                    Nickel--20,000.
                                                   (2) Verification
                                                    Testing
                                                    Requirements: Sample
                                                    collection and
                                                    analyses, including
                                                    quality control
                                                    procedures, must be
                                                    performed according
                                                    to SW-846
                                                    methodologies, where
                                                    specified by
                                                    regulations in 40
                                                    CFR parts 260-270.
                                                    Otherwise, methods
                                                    must meet
                                                    Performance Based
                                                    Measurement System
                                                    Criteria in which
                                                    the Data Quality
                                                    Objectives are to
                                                    demonstrate that
                                                    representative
                                                    samples of the BMW
                                                    Sludge meet the
                                                    delisting levels in
                                                    Condition (1).
                                                   (A) Initial
                                                    Verification
                                                    Testing: BMW must
                                                    conduct verification
                                                    sampling initially
                                                    when test runs of
                                                    aluminum vehicle
                                                    parts are run and
                                                    again when
                                                    production of
                                                    vehicles with
                                                    aluminum body parts
                                                    commences. For
                                                    verification
                                                    sampling during the
                                                    test runs, BMW must
                                                    collect and analyze
                                                    a minimum of four
                                                    composite samples of
                                                    the dewatered sludge
                                                    that is generated
                                                    from wastewater
                                                    treated during the
                                                    time of the test
                                                    runs. For
                                                    verification
                                                    sampling at the
                                                    initiation of the
                                                    production of
                                                    vehicle models with
                                                    aluminum parts, BMW
                                                    must collect a
                                                    minimum of four
                                                    composite samples
                                                    from the first roll-
                                                    off box of sludge
                                                    generated after
                                                    production of
                                                    automobiles with
                                                    aluminum parts
                                                    reaches 50 units per
                                                    day. BMW must
                                                    analyze for the
                                                    constituents listed
                                                    in Condition (1). If
                                                    BMW chooses to
                                                    beneficially reuse
                                                    sludge, and the
                                                    reuse has been
                                                    approved by EPA,
                                                    following a public
                                                    comment period,
                                                    verification testing
                                                    of the sludge must
                                                    consist of analyzing
                                                    a minimum of four
                                                    composite samples of
                                                    the sludge for the
                                                    constituents listed
                                                    in Condition (1).

[[Page 21885]]

 
                                                   (B) Subsequent
                                                    Verification
                                                    Testing: If the
                                                    initial verification
                                                    testing in Condition
                                                    (2)(A) is successful
                                                    for both the test
                                                    runs and the
                                                    commencement of
                                                    production, i.e.,
                                                    delisting levels of
                                                    Condition (1) are
                                                    met for all of the
                                                    composite samples,
                                                    BMW must implement
                                                    an annual testing
                                                    program to
                                                    demonstrate that
                                                    constituent
                                                    concentrations
                                                    measured in the TCLP
                                                    extract and total
                                                    concentrations
                                                    measured in the
                                                    unextracted waste do
                                                    not exceed the
                                                    delisting levels
                                                    established in
                                                    Condition (1).
                                                   (3) Waste Holding and
                                                    Handling: BMW must
                                                    store as hazardous
                                                    all BMW Sludge
                                                    generated until
                                                    verification
                                                    testing, as
                                                    specified in
                                                    Condition (2)(A), is
                                                    completed and valid
                                                    analyses demonstrate
                                                    that Condition (1)
                                                    is satisfied. If the
                                                    levels of
                                                    constituents
                                                    measured in the
                                                    composite samples of
                                                    BMW Sludge do not
                                                    exceed the levels
                                                    set forth in
                                                    Condition (1), then
                                                    the BMW Sludge is
                                                    non-hazardous and
                                                    must be managed in
                                                    accordance with all
                                                    applicable solid
                                                    waste regulations.
                                                    If constituent
                                                    levels in a
                                                    composite sample
                                                    exceed any of the
                                                    delisting levels set
                                                    forth in Condition
                                                    (1), the batch of
                                                    BMW Sludge generated
                                                    during the time
                                                    period corresponding
                                                    to this sample must
                                                    be managed and
                                                    disposed of in
                                                    accordance with
                                                    Subtitle C of RCRA.
                                                   (4) Changes in
                                                    Operating
                                                    Conditions: BMW must
                                                    notify EPA in
                                                    writing when
                                                    significant changes
                                                    in the manufacturing
                                                    or wastewater
                                                    treatment processes
                                                    are implemented. EPA
                                                    will determine
                                                    whether these
                                                    changes will result
                                                    in additional
                                                    constituents of
                                                    concern. If so, EPA
                                                    will notify BMW in
                                                    writing that the BMW
                                                    Sludge must be
                                                    managed as hazardous
                                                    waste F019 until BMW
                                                    has demonstrated
                                                    that the wastes meet
                                                    the delisting levels
                                                    set forth in
                                                    Condition (1) and
                                                    any levels
                                                    established by EPA
                                                    for the additional
                                                    constituents of
                                                    concern, and BMW has
                                                    received written
                                                    approval from EPA.
                                                    If EPA determines
                                                    that the changes do
                                                    not result in
                                                    additional
                                                    constituents of
                                                    concern, EPA will
                                                    notify BMW, in
                                                    writing, that BMW
                                                    must verify that the
                                                    BMW Sludge continues
                                                    to meet Condition
                                                    (1) delisting
                                                    levels.
                                                   (5) Data Submittals:
                                                    Data obtained in
                                                    accordance with
                                                    Condition (2)(A)
                                                    must be submitted to
                                                    Jewell Grubbs,
                                                    Chief, RCRA
                                                    Enforcement and
                                                    Compliance Branch,
                                                    Mail Code: 4WD-RCRA,
                                                    U.S. EPA, Region 4,
                                                    Sam Nunn Atlanta
                                                    Federal Center, 61
                                                    Forsyth Street,
                                                    Atlanta, Georgia
                                                    30303. This
                                                    submission is due no
                                                    later than 60 days
                                                    after filling the
                                                    first roll-off box
                                                    of BMW Sludge to be
                                                    disposed in
                                                    accordance with
                                                    delisting Conditions
                                                    (1) through (7) for
                                                    both the test runs
                                                    and again for the
                                                    commencement of
                                                    production. Records
                                                    of analytical data
                                                    from Condition (2)
                                                    must be compiled,
                                                    summarized, and
                                                    maintained by BMW
                                                    for a minimum of
                                                    three years, and
                                                    must be furnished
                                                    upon request by EPA
                                                    or the State of
                                                    South Carolina, and
                                                    made available for
                                                    inspection. Failure
                                                    to submit the
                                                    required data within
                                                    the specified time
                                                    period or maintain
                                                    the required records
                                                    for the specified
                                                    time will be
                                                    considered by EPA,
                                                    at its discretion,
                                                    sufficient basis to
                                                    revoke the exclusion
                                                    to the extent
                                                    directed by EPA. All
                                                    data must be
                                                    accompanied by a
                                                    signed copy of the
                                                    certification
                                                    statement in 40 CFR
                                                    260.22(i)(12).

[[Page 21886]]

 
                                                   (6) Reopener
                                                    Language: (A) If, at
                                                    any time after
                                                    disposal of the
                                                    delisted waste, BMW
                                                    possesses or is
                                                    otherwise made aware
                                                    of any environmental
                                                    data (including but
                                                    not limited to
                                                    leachate data or
                                                    groundwater
                                                    monitoring data) or
                                                    any other data
                                                    relevant to the
                                                    delisted waste
                                                    indicating that any
                                                    constituent
                                                    identified in the
                                                    delisting
                                                    verification testing
                                                    is at a level higher
                                                    than the delisting
                                                    level allowed by EPA
                                                    in granting the
                                                    petition, BMW must
                                                    report the data, in
                                                    writing, to EPA
                                                    within 10 days of
                                                    first possessing or
                                                    being made aware of
                                                    that data. (B) If
                                                    the testing of the
                                                    waste, as required
                                                    by Condition (2)(B),
                                                    does not meet the
                                                    delisting
                                                    requirements of
                                                    Condition (1), BMW
                                                    must report the
                                                    data, in writing, to
                                                    EPA within 10 days
                                                    of first possessing
                                                    or being made aware
                                                    of that data. (C)
                                                    Based on the
                                                    information
                                                    described in
                                                    paragraphs (6)(A) or
                                                    (6)(B) and any other
                                                    information received
                                                    from any source, EPA
                                                    will make a
                                                    preliminary
                                                    determination as to
                                                    whether the reported
                                                    information requires
                                                    that EPA take action
                                                    to protect human
                                                    health or the
                                                    environment. Further
                                                    action may include
                                                    suspending or
                                                    revoking the
                                                    exclusion, or other
                                                    appropriate response
                                                    necessary to protect
                                                    human health and the
                                                    environment. (D) If
                                                    EPA determines that
                                                    the reported
                                                    information does
                                                    require Agency
                                                    action, EPA will
                                                    notify the facility
                                                    in writing of the
                                                    action believed
                                                    necessary to protect
                                                    human health and the
                                                    environment. The
                                                    notice shall include
                                                    a statement of the
                                                    proposed action and
                                                    a statement
                                                    providing BMW with
                                                    an opportunity to
                                                    present information
                                                    as to why the
                                                    proposed action is
                                                    not necessary. BMW
                                                    shall have 10 days
                                                    from the date of
                                                    EPA's notice to
                                                    present such
                                                    information.
                                                   (E) Following the
                                                    receipt of
                                                    information from
                                                    BMW, as described in
                                                    paragraph (6)(D), or
                                                    if no such
                                                    information is
                                                    received within 10
                                                    days, EPA will issue
                                                    a final written
                                                    determination
                                                    describing the
                                                    Agency actions that
                                                    are necessary to
                                                    protect human health
                                                    or the environment,
                                                    given the
                                                    information received
                                                    in accordance with
                                                    paragraphs (6)(A) or
                                                    (6)(B). Any required
                                                    action described in
                                                    EPA's determination
                                                    shall become
                                                    effective
                                                    immediately, unless
                                                    EPA provides
                                                    otherwise.
                                                   (7) Notification
                                                    Requirements: BMW
                                                    must provide a one-
                                                    time written
                                                    notification to any
                                                    State Regulatory
                                                    Agency in a State to
                                                    which or through
                                                    which the delisted
                                                    waste described
                                                    above will be
                                                    transported, at
                                                    least 60 days prior
                                                    to the commencement
                                                    of such activities.
                                                    Failure to provide
                                                    such a notification
                                                    will result in a
                                                    violation of the
                                                    delisting conditions
                                                    and a possible
                                                    revocation of the
                                                    decision to delist.
 
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[FR Doc. 01-10991 Filed 5-1-01; 8:45 am]
BILLING CODE 6560-50-U