[Federal Register Volume 66, Number 92 (Friday, May 11, 2001)]
[Proposed Rules]
[Pages 24085-24092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11912]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6958-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: 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 Tenneco 
Automotive, Inc. (Tenneco) to exclude (or delist) certain solid wastes 
generated by its Paragould, Arkansas, facility from the lists of 
hazardous wastes contained in 40 CFR 261.24 and 261.31 (hereinafter all 
sectional references are to 40 CFR unless otherwise indicated).
    Tenneco submitted the petition under sections 260.20 and 260.22(a). 
Section 260.20 allows any person to petition the Administrator to 
modify or revoke any provision of 40 CFR parts 260 through 266, 268 and 
273. Section 260.22(a) specifically provides generators the opportunity 
to petition the Administrator to exclude a waste on a ``generator 
specific'' basis from the hazardous waste lists.
    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 Tenneco's petitioned waste is 
nonhazardous with respect to the original listing criteria and that the 
stabilization process Tenneco used 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.

DATES: We will accept comments until June 25, 2001. 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 June 11, 2001. 
The request must contain the information prescribed in 40 CFR 
260.20(d).

ADDRESSES: Please send three copies of your comments. You should send 
two copies to William Gallagher, 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 the 
Arkansas Department of Environmental Quality (ADEQ), P.O. Box 8913, 
Little Rock, Arkansas, 72209-8913. Identify your comments at the top 
with this regulatory docket number: ``F-00-ARDEL-TENNECO.''
    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.

FOR FURTHER INFORMATION CONTACT: Michelle Peace at (214) 665-7430.

SUPPLEMENTARY 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 Tenneco manage the waste if it is delisted?
    D. When would EPA finalize the proposed delisting?
    E. How would this action affect States?
II. Background
    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 Tenneco petition EPA to delist?
    B. What is Tenneco, and how did it generate this waste?
    C. What information and analyses did Tenneco submit to support 
its petition?
    D. What were the results of Tenneco's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about Tenneco's analysis?
    G. What other factors did EPA consider?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if Tenneco 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
X. Executive Order 13045
XI. Executive Order 13084
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 Tenneco's petition to have its stabilized 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?

    Tenneco's petition requests a delisting for listed hazardous 
wastes. Tenneco does not believe that the petitioned waste meets the 
criteria for which EPA listed it. Tenneco also believes no additional 
constituents or factors could cause the waste to be hazardous. The 
EPA's review of this petition 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). In making the initial 
delisting determination, EPA evaluated the petitioned waste against the 
listing criteria and factors cited in Sec. 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

[[Page 24086]]

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 these criteria. 
The EPA's proposed decision to delist waste from Tenneco's facility is 
based on the information submitted in support of today's rule, i.e., 
descriptions of the wastes and analytical data from the Paragould 
facility.

C. How Will Tenneco Manage the Waste if It Is Delisted?

    Tenneco currently stores the petitioned waste (stabilized sludge) 
generated in containment vaults on-site at its facility. If the 
delisting exclusion is finalized, Tenneco will dispose of the sludge in 
a solid waste landfill in Arkansas.

D. When Would EPA Finalize the Proposed 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 today's proposal.
    RCRA section 3010(b)(1) at 42 U.S.C. 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 today's 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 
Tenneco transports the petitioned waste to or manages the waste in any 
State with delisting authorization, Tenneco must obtain delisting 
authorization from that State before they can manage the waste as 
nonhazardous in the State.

II. Background

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 40 CFR 
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, sections 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 section 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 hazardous 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 section 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 Sec. 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

[[Page 24087]]

remain hazardous wastes until excluded.
    The ``mixture'' and ``derived-from'' rules are now final, after 
having been vacated, remanded, and reinstated. On December 6, 1991, the 
U.S. Court of Appeals for the District of Columbia vacated the 
``mixture/derived from'' rules and remanded them to EPA on procedural 
grounds. See Shell Oil Co. v. EPA., 950 F.2d 741 (D.C. Cir. 1991). EPA 
reinstated the mixture and derived-from rules, and solicited comments 
on other ways to regulate waste mixtures and residues. See 57 FR 7628 
(March 3, 1992). These rules became final on October 30, 1992. See 57 
FR 49278 (October 30, 1992). Consult these references for more 
information about mixtures and derived from wastes.

III. EPA's Evaluation of the Waste Information and Data

A. What Waste Did Tenneco Petition EPA To Delist?

    On September 8, 2000, Tenneco petitioned the EPA to exclude from 
the lists of hazardous waste contained in Secs. 261.31 and 261.32, 
stabilized sludge excavated from the Finch Road Landfill in Paragould, 
Arkansas. The waste falls under the classification of listed waste 
because of the ``derived from'' rule in 40 CFR 261.3. Specifically, in 
its petition, Tenneco requested that EPA grant an exclusion for 1,800 
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 Tenneco, and How Did It Generate This Waste?

    In 1973, Monroe Auto Equipment Company (now Tenneco Automotive, 
Inc.) purchased a seven-acre tract of land, which included an inactive 
sand and gravel borrow pit. This site was approved by the State to be 
used as a landfill. Approximately 15,400 cubic yards of waste water 
treatment sludge was deposited in the borrow pit between 1973 and 1978, 
the sludge originated from settling ponds that were used for the 
treated waste water from Tenneco's Paragould manufacturing plant. In 
1996, a Superfund Record of Decision (ROD) was issued pursuant to the 
National Oil and Hazardous Substances Pollution Contingency Plan at 40 
CFR 300.430(f)(5) for the Finch Road Landfill. The ROD specified the 
requirements for remediation of the soil and groundwater at the site. 
In 1999, Tenneco submitted a petition to modify the ROD to include the 
excavation, treatment, and off-disposal of the waste in a Subtitle D 
landfill.
    The Superfund removal action consisted of the excavation and 
segregation of the sludge; stabilizing the sludge with 10 percent lime 
addition; and stockpiling the stabilized sludge in an on-site lined 
containment cell.
    The waste would not have been classified as RCRA hazardous waste in 
its original state because it was generated and placed in the Finch 
Road landfill prior to RCRA regulation. The stabilized sludge currently 
falls under the classification of listed waste because of the 
management (removal action) of the material occurred after the 
effective date of the rules in 1980. It is listed as F006, sludge from 
electroplating operations, based upon its original source. The waste 
code of the constituents of concern 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 Tenneco Submit To Support Its 
Petition?

    To support its petition, Tenneco 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, and metals except pesticides, 
herbicides, and PCBs;
    (3) results of the constituent list for appendix IX on Toxicity 
Characteristic Leaching Procedure (TCLP) extract for volatiles, 
semivolatiles, and metals;
    (4) results from total oil and grease analyses and pH measurements.

D. What Were the Results of Tenneco's Analysis?

    The EPA believes that the descriptions of the Tenneco analytical 
characterization provide a reasonable basis to grant Tenneco's petition 
for an exclusion of the stabilized sludge. The EPA believes the data 
submitted in support of the petition show the stabilized sludge is non-
hazardous. Analytical data for the stabilized sludge samples were used 
in the DRAS. The data summaries for detected constituents are presented 
in Tables I. The EPA has reviewed the sampling procedures used by 
Tenneco and has determined they satisfy EPA criteria for collecting 
representative samples of the variations in constituent concentrations 
in the stabilized sludge. The data submitted in support of the petition 
show that constituents in Tenneco's waste are presently below health-
based levels used in the delisting decision-making. The EPA believes 
that Tenneco has successfully demonstrated that the stabilized sludge 
is non-hazardous.

                Table I.--Maximum Total and TCLP Constituent Concentrations Stabilized Sludge \1\
----------------------------------------------------------------------------------------------------------------
                                                                                     Total
                                                                                  constituent     TCLP Leachate
                                  Constituent                                    analyses  (mg/   concentration
                                                                                      kg)             (mg/l)
----------------------------------------------------------------------------------------------------------------
Antimony......................................................................         13.4              0.00335
Arsenic.......................................................................         21.5              0.0125
Barium........................................................................          3.35             0.371
Benzene.......................................................................          0.008            0.050
Cadmium.......................................................................          0.423            0.050
cis-1,3-Dichloropropene.......................................................          0.023            0.050
Ethylbenzene..................................................................          0.04             0.0015
Lead..........................................................................        575                0.223
Mercury.......................................................................          0.00015          0.0006
Methyl ethyl ketone...........................................................          0.076            0.00015
Nickel........................................................................          7.32             0.07
Tetrachloroethylene...........................................................          0.014            0.0015
Toluene.......................................................................          0.073            0.0015
1,1,1-Trichloroethane.........................................................          0.011            0.005
Trichloroethylene.............................................................          0.029            0.0015

[[Page 24088]]

 
Xylenes (total)...............................................................          0.22             0.0015
----------------------------------------------------------------------------------------------------------------
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.

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 
Tenneco'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 release from the 
petitioned waste after disposal and determined the potential impact of 
the disposal of Tenneco'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, 
Tenneco has never directly disposed of this material in its 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 Tenneco'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. Thus, EPA should grant Tenneco's petition for a one-time 
exclusion of the stabilized sludge.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste are presented in 
Table II. Based on the DRAS, the petitioned waste should be delisted 
because no constituents of concern exceed the maximum allowable 
concentrations.

   Table II.--DRAS Maximum Allowable Concentrations of Constituents in
                                Leachate
------------------------------------------------------------------------
                                                           DRAS maximum
                                                            allowable
                      Constituent                            Leachate
                                                          concentration
                                                              (mg/l)
------------------------------------------------------------------------
Antimony...............................................           15.1
Arsenic................................................            0.274
Barium.................................................          100
Benzene................................................            0.163

[[Page 24089]]

 
Cadmium................................................            1.0
Cis-1,3-Dichloropropene................................        93800
Ethylbenzene...........................................           55.8
Lead...................................................            5.0
Mercury................................................            0.2
Methyl ethyl ketone....................................          200
Nickel.................................................          827
Tetrachloroethylene....................................            0.7
Toluene................................................           98.5
1,1,1-Trichloroethane..................................           23.2
Trichloroethylene......................................            0.5
Xylenes (total)........................................         1750
------------------------------------------------------------------------

F. What Did EPA Conclude About Tenneco's Analysis?

    The EPA concluded, after reviewing Tenneco's processes that no 
other hazardous constituents of concern, other than those for which 
tested, are likely to be present or formed as reaction products or by 
products in Tenneco's waste. In addition, on the basis of explanations 
and analytical data provided by Tenneco, pursuant to section 260.22, 
the EPA concludes that the petitioned waste does not exhibit any of the 
characteristics of ignitability, corrosivity, or reactivity. See 
Secs. 261.21, 261.22, and 261.23, respectively.

G. What Other Factors Did EPA Consider?

    During the evaluation of Tenneco'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 Tenneco's petitioned waste is unlikely. Therefore, no 
appreciable air releases are likely from Tenneco'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 Tenneco'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 Tenneco's 
stabilized sludge. A description of EPA's assessment of the potential 
impact of Tenneco's waste, regarding airborne dispersion of waste 
contaminants, is presented in the RCRA public docket for today's 
proposed rule, F-00-ARDEL-TENNECO.
    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 today's 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 Tenneco's waste were released from a 
municipal solid waste landfill through runoff and erosion. See, the 
RCRA public docket for today's 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 Tenneco's 
stabilized sludge is not a present or potential substantial hazard to 
human health and the environment via the surface water exposure 
pathway.

H. What Is EPA's Evaluation of This Delisting Petition?

    The descriptions of Tenneco's hazardous waste process and 
analytical characterization, with the proposed verification testing 
requirements (as discussed later in this document), 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 Tenneco's process will substantially reduce the likelihood of 
migration of hazardous constituents from the petitioned waste. 
Tenneco'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 Tenneco an exclusion for the 
stabilized sludge. The EPA believes the data submitted in support of 
the petition show Tenneco's process can render the stabilized sludge 
nonhazardous.
    We have reviewed the sampling procedures used by Tenneco and have 
determined they satisfy EPA criteria for collecting representative 
samples of variable constituent concentrations in the stabilized 
sludge. The data submitted in support of the petition show that 
constituents in Tenneco'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 
Tenneco has successfully demonstrated that the stabilized sludge is 
nonhazardous.

[[Page 24090]]

    The EPA therefore, proposes to grant a one-time exclusion to the 
Tenneco Automotive, in Paragould, Arkansas, for the stabilized 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 stabilized 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, Tenneco, 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.
    If the proposed exclusion is made final, it will apply only to 
1,800 cubic yards of stabilized sludge. This is a one-time disposal of 
the sludge. We would require Tenneco to file a new delisting petition 
if it generates more than 1,800 cubic yards of waste. Tenneco must 
manage waste volumes greater than 1,800 cubic yards of stabilized 
sludge as hazardous until we grant a new exclusion.
    If this exclusion becomes final, Tenneco's management of the wastes 
covered by this petition would be relieved from Subtitle C 
jurisdiction. Tenneco would be required to either treat, store, or 
dispose of the waste in an on-site facility that has a state permit, 
license, or is registered to manage municipal or industrial solid 
waste. If not, Tenneco must ensure that it delivers the waste to an 
off-site storage, treatment, or disposal facility that has a state 
permit, license, or is registered to manage municipal or industrial 
solid waste.
(1) Reopener Language
    The purpose of this condition is to require Tenneco 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. 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 Tenneco to report 
differing site conditions or assumptions used in the petition 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 section 268.6.
    The EPA believes that we have the authority under RCRA and the 
Administrative Procedures Act, 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 (July 14, 1997) and 62 FR 63458 (December 
1, 1997) 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).
(2) Notification Requirements
    In order to adequately track wastes that have been delisted, EPA is 
requiring that Tenneco provide a one-time notification to any State 
regulatory agency through which or to which the delisted waste is being 
carried. This notification requirement must be met if the waste is 
transported off-site. Tenneco must provide this notification within 60 
days of commencing this activity.

B. What Happens If Tenneco Violates the Terms and Conditions?

    If Tenneco 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 Tenneco 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 William 
Gallagher, Delisting Section, Multimedia Planning and Permitting 
Division (6PD-O), Environmental Protection Agency (EPA), 1445 Ross 
Avenue, Dallas, Texas 75202. Send a third copy to the Arkansas 
Department of Environmental Quality, P.O. Box 8913, Little Rock, 
Arkansas, 72209-8913 Identify your comments at the top with this 
regulatory docket number: ``F-00-ARDEL-TENNECO.''
    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 9:00 a.m. to 4:00 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 today's 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

[[Page 24091]]

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 today's 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.

X. Executive Order 13045

    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.

XI. Executive Order 13084

    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 
that 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 of 
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 meaningful and timely input'' in the 
development of regulatory policies on matters that significantly or 
uniquely affect their communities 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

[[Page 24092]]

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.

Lists 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: March 12, 2001.
Carl E. Edlund,
P.E., Director, Multimedia Planning and Permitting Division, Region 6.

    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be 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 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 Secs. 260.20 and 260.22

                               Table 1.--Waste Excluded from Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                            Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Tenneco Automotive..............  Paragould, AR...............  Stabilized sludge from electroplating
                                                                 operations, excavated from the Finch Road
                                                                 Landfill and currently stored in containment
                                                                 cells by Tenneco (EPA Hazardous Waste Nos.
                                                                 F006). This is a one-time exclusion for 1,800
                                                                 cubic yards of stabilized sludge. This
                                                                 exclusion was published on May 11, 2001.
                                                                (1) Reopener Language:
                                                                   (A) If, anytime after disposal of the
                                                                    delisted waste, Tenneco 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 Tenneco fails to submit the
                                                                    information described in (2)(A) 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.
                                                                   (C) 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.
                                                                   (D) Following the receipt of information from
                                                                    the facility described in (1)(C) or (if no
                                                                    information is presented under (1)(C)) the
                                                                    initial receipt of information described in
                                                                    (1)(A), 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.
                                                                   (2) Notification Requirements:
                                                                   Tenneco must do following before transporting
                                                                    the delisted waste off-site: Failure to
                                                                    provide this notification will result in a
                                                                    violation of the delisting petition and a
                                                                    possible revocation of the exclusion.
                                                                   (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 Tenneco ships the delisted waste to a
                                                                    different disposal facility.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 01-11912 Filed 5-10-01; 8:45 am]
BILLING CODE 6560-50-P