[Federal Register Volume 66, Number 223 (Monday, November 19, 2001)]
[Proposed Rules]
[Pages 57918-57930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28624]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-7103-6]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA or Agency) today is 
proposing to grant a petition submitted by Nissan North America, Inc., 
Smyrna, Tennessee (Nissan), to exclude (or ``delist'') a certain 
hazardous waste from the list of hazardous wastes under RCRA 
regulation. Nissan will generate the petitioned waste by treating 
wastewater from Nissan'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. Nissan petitioned EPA to grant a generator-specific delisting, 
because Nissan believes that its F019 waste does not meet the criteria 
for which this type of waste was listed. EPA reviewed all of the waste-
specific information provided by Nissan, performed calculations, and 
determined that the waste could be disposed in a landfill without 
harming human health and the environment. Today's proposed rule 
proposes to grant Nissan's petition to delist its F019 waste, and 
requests public comment on the proposed decision. If the proposed 
delisting becomes a final delisting, Nissan's petitioned waste will no 
longer be classified as F019, and will not be subject to regulation as 
a hazardous waste under Subtitle C of the Resource Conservation and 
Recovery Act (RCRA). The waste will still be subject to local, State, 
and Federal regulations for nonhazardous solid wastes.

DATES: EPA is requesting public comments on this proposed decision. 
Comments will be accepted until January 3, 2002. Comments postmarked 
after the close of the comment period will be stamped ``late.'' These 
``late'' comments may not be considered in formulating a final 
decision.
    Any person may request a hearing on this proposed decision by 
filing a request with Richard D. Green, Director of the Waste 
Management Division, EPA, Region 4, whose address appears below, by 
December 4, 2001. The request must contain the information prescribed 
in section 260.20(d).

ADDRESSES: Send two copies of your comments to Jewell Grubbs, Chief, 
RCRA Enforcement and Compliance Branch, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
S.W., Atlanta, Georgia 30303. Send one copy to Nina Vo, Tennessee 
Department of Environment and Conservation, 5th Floor, L & C Tower, 401 
Church Street, Nashville, Tennessee 37243-1535. Identify your comments 
at the top with this regulatory docket number: R4-01-01-NissanP. 
Comments may also be submitted by e-mail to 
[email protected]. If files are attached, please identify the 
format.
    Requests for a hearing should be addressed to Richard D. Green, 
Director, Waste Management Division, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, Georgia 30303.
    The RCRA regulatory docket for this proposed rule is located at the 
EPA Library, U.S. Environmental Protection Agency, Region 4, Sam Nunn 
Atlanta Federal Center, 61 Forsyth Street, Atlanta, Georgia 30303, and 
is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, 
excluding Federal holidays. The docket contains the petition, all 
information submitted by the petitioner, and all information used by 
EPA to evaluate the petition.
    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.
    Copies of the petition are available during normal business hours 
at the following addresses for inspection and copying: U.S. EPA, Region 
4, Library, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303, (404) 562-8190; and Tennessee Department of 
Environment and Conservation, 5th Floor, L & C Tower, 401 Church 
Street, Nashville, Tennessee 37243-1535. The EPA, Region 4, Library is 
located near the Five Points MARTA station in Atlanta. The Tennessee 
Department of Environment and Conservation is located in downtown 
Nashville near the intersection of Church Street and 4th Avenue North, 
about 0.2 mile northwest of Riverfront Park and 0.2 mile southwest of 
Bicentennial Park. Documents are also available for viewing and 
downloading at the Web site of EPA, Region 4:
http://www.epa.gov/region4/index.html. At this site, click on 
``Waste,'' ``Resource Conservation and Recovery Act (RCRA),'' ``RCRA 
Program, and then on ``New'' under ``Enforcement and Compliance.''

FOR FURTHER INFORMATION CONTACT: For general and technical information 
about this proposed rule, contact Judy Sophianopoulos, South 
Enforcement and Compliance Section, (Mail Code 4WD-RCRA), RCRA 
Enforcement and Compliance Branch, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, Georgia 30303, (404) 562-8604, or call, toll free, (800) 
241-1754, and leave a message, with your name and phone number, for Ms. 
Sophianopoulos to return your call.

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

I. Background
    A. What Laws and Regulations Give EPA the Authority to Delist 
Wastes?
    B. How did EPA Evaluate this Petition?
    1. What is the EPACML model that EPA used in the past for 
determining delisting levels?
    2. What is the DRAS that uses the new EPACMTP model to calculate 
not only delisting levels, but also to evaluate the effects of the 
waste on human health and the environment?
    3. Why is the EPACMTP an improvement over the EPACML?
    4. Where can technical details on the EPACMTP be found?
    5. What methods is EPA proposing to use to determine delisting 
levels for this petitioned waste?
II. Disposition of Delisting Petition
    A. Summary of Delisting Petition Submitted by Nissan North 
America, Inc., Smyrna, Tennessee (Nissan)
    B. What Delisting Levels Did EPA Obtain with DRAS and EPACMTP?
    C. Should the Multiple Extraction Procedure (MEP) be Used to 
Evaluate this Delisting
    Petition?
    D. Conclusion
III. Limited Effect of Federal Exclusion Will this Rule Apply in All 
States?
IV. Effective Date
V. Paperwork Reduction Act
VI. National Technology Transfer and Advancement Act
VII. Unfunded Mandates Reform Act
VIII. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement and Fairness Act
IX . Executive Order 12866
X. Executive Order 13045
XI. Executive Order 13084 Affecting Indian Tribal Governments
XII. Submission to Congress and General Accounting Office
XIII. Executive Order 13132

[[Page 57919]]

I. Background

A. 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).
    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, sections 260.20 and 260.22 
provide an exclusion procedure, allowing persons to demonstrate that a 
specific waste from a particular generating facility \1\ should not be 
regulated as a hazardous waste.
---------------------------------------------------------------------------

    \1\ Although no one produces hazardous waste intentionally, many 
industrial processes result in the production of hazardous waste, as 
well as useful products and services. A ``generating facility'' is a 
facility in which hazardous waste is produced, and a ``generator'' 
is a person who produces hazardous waste or causes hazardous waste 
to be produced at a particular place. Please see 40 CFR 260.10 for 
regulatory definitions of ``generator,'' ``facility,'' ``person,'' 
and other terms relating to hazardous waste, and 40 CFR part 262 for 
regulatory requirements for generators.
---------------------------------------------------------------------------

    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 section 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 section 
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 Section 261.3(a)(2)(iv) and 
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of Columbia vacated the ``mixture/derived-
from'' rules and remanded them to the EPA on procedural grounds. Shell 
Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA 
reinstated the mixture and derived-from rules, and solicited comments 
on other ways to regulate waste mixtures and residues (57 FR 7628). 
These rules became final on October 30, 1992 (57 FR 49278), and should 
be consulted for more information regarding waste mixtures and solid 
wastes derived from treatment, storage, or disposal of a hazardous 
waste. On May 16, 2001, EPA amended the mixture and derived-from rules 
for certain types of wastes (66 FR 27218 and 66 FR 27266). The mixture 
and derived-from rules are codified in 40 CFR 261.3, paragraphs 
(a)(2)(iv) and (c)(2)(i). EPA plans to address all waste mixtures and 
residues when the final portion of the Hazardous Waste Identification 
Rule (HWIR) is promulgated.
    On October 10, 1995, the Administrator delegated to the Regional 
Administrators the authority to evaluate and approve or deny petitions 
submitted in accordance with sections 260.20 and 260.22, by generators 
within their Regions (National Delegation of Authority 8-19), in States 
not yet authorized to administer a delisting program in lieu of the 
Federal program. On March 11, 1996, the Regional Administrator of EPA, 
Region 4, redelegated delisting authority to the Director of the Waste 
Management Division (Regional Delegation of Authority 8-19).

B. How Did EPA Evaluate This Petition?

    This petition requests a delisting for a hazardous waste listed as 
F019. In making the initial delisting determination, EPA evaluated the 
petitioned waste against the listing criteria and factors cited in 
Section 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 EPA had found, based on this review, 
that the waste remained hazardous based on the factors for which the 
waste was originally listed, EPA would have proposed to deny the 
petition.) EPA then 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. See 
section 260.22(a) and (d). The EPA considered whether the waste is 
acutely toxic, and considered the toxicity of the constituents, 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.
1. What Is the EPACML Model That EPA Used in the Past for Determining 
Delisting Levels?
    In the past, EPA used the EPA Composite Model for Landfills 
(EPACML) fate and transport model, modified for delisting, as one 
approach for determining the delisting levels for petitioned waste. See 
56 FR 32993-33012, July 18, 1991, for details on the use of the EPACML 
model to determine the concentrations of constituents in a waste that 
will not result in groundwater contamination. With the EPACML approach, 
as used in the past, EPA calculated a delisting level for each 
hazardous constituent by using the maximum estimated waste volume to 
determine a Dilution Attenuation Factor (DAF) from a table of waste 
volumes and DAFs previously calculated by the EPACML model, as modified 
for delisting. See 56 FR 32993-33012, July 18, 1991. The maximum 
estimated waste volume is the maximum number of cubic yards of 
petitioned waste to be disposed of each year. The delisting level for 
each constituent was equal to the DAF multiplied by the maximum 
contaminant level (MCL) which the Safe Drinking Water Act allows for 
that constituent in drinking water. The delisting level is a 
concentration in the waste leachate that will not cause the MCL to be 
exceeded in groundwater underneath a landfill where the waste is 
disposed. This method of calculating delisting levels resulted in 
conservative levels that were protective of

[[Page 57920]]

groundwater, because the model did not assume that the landfill had the 
controls required of Subtitle D landfills. A Subtitle D landfill is a 
landfill subject to RCRA Subtitle D nonhazardous waste regulations, and 
to State and local nonhazardous waste regulations.
2. What Is the DRAS That Uses the New EPACMTP Model to Calculate Not 
Only Delisting Levels, But Also To Evaluate the Effects of the Waste on 
Human Health and the Environment?
    The EPA is proposing to use the Delisting Risk Assessment Software 
(DRAS),\2\ developed by EPA, Region 6, to evaluate this delisting 
petition. The DRAS uses a new model, called the EPA Composite Model for 
Leachate Migration with Transformation Products (EPACMTP). The EPACMTP 
improves on the EPACML model in several ways. EPA is proposing to use 
the DRAS to calculate delisting levels and to evaluate the impact of 
Nissan's petitioned waste on human health and the environment. 
Delisting levels are the maximum allowable concentrations for hazardous 
constituents in the waste, so that disposal in a landfill will not harm 
human health and the environment by contaminating groundwater, surface 
water, or air.
---------------------------------------------------------------------------

    \2\ For more information on DRAS and EPACMTP, please see 65 FR 
75637-75651, December 4, 2000 and 65 FR 58015-58031, September 27, 
2000. The December 4, 2000 Federal Register discusses the key 
enhancements of the EPACMTP and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR FR proposal 
docket (60 FR 66344, December 21, 1995). URL addresses for Region 6 
delisting guidance and software are the following:
    1. Delisting Guidance Manual http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dlistpdf.htm.
    2. Delisting Risk Assessment Software (DRAS) http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm.
    3. DRAS Technical Support Document (DTSD) http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dtsd.htm.
    4. DRAS Users Guide http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/uguide.pdf.
    Region 6 has made them available to the public, free of charge.
---------------------------------------------------------------------------

    Today's proposal provides background information on the mechanics 
of the DRAS, and the use of the DRAS in delisting decision-making. 
Please see the EPA, Region 6, RCRA Delisting Technical Support Document 
(RDTSD) for a complete discussion of the DRAS calculation methods. The 
RDTSD, and Federal Registers, 65 FR 75637-75651, December 4, 2000, and 
65 FR 58015-58031, September 27, 2000, are the sources of the DRAS 
information presented in today's preamble, and are included in the RCRA 
regulatory docket for this proposed rule.
    The DRAS performs a risk assessment for petitioned wastes that are 
disposed of in the two waste management units of concern: surface 
impoundments for liquid wastes and landfills for non-liquid wastes. 
Nissan's petitioned waste is solid, not liquid, and will be disposed in 
a landfill; therefore, only the application of DRAS to landfills will 
be discussed in this preamble.
    DRAS calculates releases from solid-phase wastes in a landfill, 
with the following assumptions: (1) The wastes are disposed in a 
Subtitle D landfill and covered with a 2-foot-thick native soil layer; 
(2) the landfill is unlined or effectively unlined due to a liner that 
will eventually completely fail. The two parameters used to 
characterize landfills are (1) area and (2) depth (the thickness of the 
waste layer). Data to characterize landfills were obtained from a 
nationwide survey of industrial Subtitle D landfills.\3\ Parameters and 
assumptions used to estimate infiltration of leachate from a landfill 
are provided in the EPACMTP Background Document and User's Guide, 
Office of Solid Waste, U.S. EPA, Washington, DC, September 1996.
---------------------------------------------------------------------------

    \3\ Nationwide Survey of Industrial Subtitle D Landfills, 
Westat, 1987.
---------------------------------------------------------------------------

    DRAS uses the EPACMTP model to simulate the fate and transport of 
dissolved contaminants from a point of release at the base of a 
landfill, through the unsaturated zone and underlying groundwater, to a 
receptor well at an arbitrary downstream location in the aquifer (the 
rock formation in which the groundwater is located). DRAS evaluates, 
with the EPACMTP model, the groundwater exposure concentrations at the 
receptor well that result from the chemical release and transport from 
the landfill (Application of EPACMTP to Region 6 Delisting Program: 
Development of Waste Volume-Specific Dilution Attenuation Factors, U.S. 
EPA, August 1996). For the purpose of delisting determinations, 
receptor well concentrations for both carcinogens and non-carcinogens 
from finite-source degraders and non-degraders are determined with this 
model. Delisted waste is a finite source, because in a finite period of 
time, the waste's constituents will leach and move out of the landfill. 
If EPA makes a final decision to delist Nissan's F019 waste, Nissan 
must meet the delisting levels and dispose of the waste in a Subtitle D 
landfill, because EPA determined the delisting levels based on a 
landfill model.
3. Why Is the EPACMTP an Improvement Over the EPACML?
    The EPACMTP includes three major categories of improvements over 
the EPACML.
    The improvements include:
    1--Incorporation of additional fate and transport processes (e.g., 
degradation of chemical constituents; fate and transport of metals);
    2--Use of enhanced flow and transport equations (e.g., for 
calculating transport in three dimensions); and
    3--Revision of the Monte Carlo methodology (e.g., to allow use of 
site-specific, waste-specific data) (EPACMTP Background Document and 
User's Guide, Office of Solid Waste, U.S. EPA, Washington, DC, 
September 1996).
    A summary of the key enhancements which have been implemented in 
the EPACMTP is presented here 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 Federal 
Register proposal docket (60 FR 66344, December 21, 1995). For more 
information, please contact Judy Sophianopoulos, South Enforcement and 
Compliance Section, (Mail Code 4WD-RCRA), RCRA Enforcement and 
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam 
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 
30303, (404) 562-8604, or call, toll free, (800) 241-1754, and leave a 
message, with your name and phone number, for Ms. Sophianopoulos to 
return your call. You may also contact her by e-mail: 
[email protected].
    The EPACML accounts for: One-dimensional steady and uniform 
advective flow; contaminant dispersion in the longitudinal, lateral, 
and vertical directions; and sorption. However, advances in groundwater 
fate and transport have been made in recent years and EPA proposes and 
requests public comment on the use of the EPACMTP, which is a more 
advanced groundwater fate and transport model, for this RCRA delisting.
    The EPACML was limited to conditions of uniform groundwater flow. 
It could not handle accurately the conditions of significant 
groundwater mounding and non-uniform groundwater flow due to a high 
rate of infiltration from the waste disposal units. These conditions 
increase the transverse horizontal, as well as the vertical, spreading 
of a contaminant plume.
    The EPACMTP model overcomes the deficiencies of the EPACML in the

[[Page 57921]]

following way: The subsurface as modeled with the EPACMTP consists of 
an unsaturated zone beneath a landfill and a saturated zone, the 
underlying water table aquifer. Contaminants move vertically downward 
through the unsaturated zone to the water table. The EPACMTP simulates 
one-dimensional, vertically downward flow and transport of contaminants 
in the unsaturated zone, as well as two-dimensional or three-
dimensional groundwater flow and contaminant transport in the 
underlying saturated zone. The EPACML used a saturated zone module that 
was based on a Gaussian distribution of the concentration of a chemical 
constituent in the saturated zone. The module also used an 
approximation to account for the initial mixing of the contaminant 
entering at the water table (saturated zone) underneath the waste unit. 
The module accounting for initial mixing in the EPACML could lead to 
unrealistic groundwater concentrations. The enhanced EPACMTP model 
incorporates a direct linkage between the unsaturated zone and 
saturated zone modules which overcomes these limitations of the EPACML. 
The following mechanisms affecting contaminant migration are accounted 
for in the EPACMTP model: Transport by advection and dispersion, 
retardation resulting from reversible linear or nonlinear equilibrium 
sorption on the soil and aquifer solid phase, and biochemical 
degradation processes. The EPACML did not account for biochemical 
degradation, and did not account for sorption as accurately as the 
EPACMTP.

    The EPACMTP consists of four major components:

    1--A module that performs one-dimensional analytical and 
numerical solutions for water flow and contaminant transport in the 
unsaturated zone beneath a waste management unit;
    2--A numerical module for steady-state groundwater flow subject 
to recharge from the unsaturated zone;
    3--A module of analytical and numerical solutions for 
contaminant transport in the saturated zone; and
    4--A Monte Carlo module for assessing the effect of the 
uncertainty resulting from variations in model parameters on 
predicted receptor well concentrations.

4. Where Can Technical Details on the EPACMTP Be Found?
    For more information on DRAS and EPACMTP, please see 65 FR 75637-
75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000; and 66 
FR 9781-9798, February 12, 2001. 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). A summary of DRAS is presented 
in 66 FR 9781-9798, February 12, 2001. Footnote 2 in Preamble Section 
I.B.2. above lists the URL addresses for Region 6 guidance on DRAS.
5. What Methods Is EPA Proposing To Use To Determine Delisting Levels 
for This Petitioned Waste?
    Nissan submitted to the EPA analytical data from its Smyrna, 
Tennessee plant. Samples of wastewater treatment sludge were collected 
from roll-off containers over a one-month period, in accordance with a 
sampling and analysis plan approved by EPA and the Tennessee Department 
of Environment and Conservation. A summary of analytical data is 
presented in Table 1 of section II below, with analytical details in 
the Table footnotes.
    After reviewing the analytical data and information on processes 
and raw materials that Nissan submitted in the delisting petition, EPA 
developed a list of constituents of concern and calculated delisting 
levels and risks using DRAS and EPACMTP DAFs as described above. EPA 
requests public comment on this proposed method of calculating 
delisting levels and risks for Nissan's petitioned waste.
    EPA also requests comment on three additional methods of evaluating 
Nissan's delisting petition and determining delisting levels: (1) Use 
of the Multiple Extraction Procedure (MEP), SW-846 Method 1320 \4\, to 
evaluate the long-term resistance of the waste to leaching in a 
landfill; (2) setting limits on total concentrations of constituents in 
the waste that are more conservative than results obtained by DRAS for 
total concentrations; and (3) setting delisting levels at the Land 
Disposal Restrictions (LDR) Universal Treatment Standards (UTS) levels 
in 40 CFR 268.48. The UTS levels for Nissan's constituents of concern 
are the following:
---------------------------------------------------------------------------

    \4\ ``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.

    Arsenic: 5.0 mg/l TCLP; Barium: 21 mg/l TCLP; Cadmium: 0.11 mg/l 
TCLP; Chromium: 0.60 mg/l TCLP; Cyanide Total: 590 mg/kg; Cyanide 
Amenable 30 mg/kg; Lead: 0.75 mg/l TCLP; Nickel: 11 mg/l TCLP; 
Silver: 0.14 mg/l TCLP; Vanadium: 1.6 mg/l; Zinc: 4.3 mg/l TCLP; 
Acetone: 160 mg/kg; Bis-2-ethylhexyl phthalate: 28 mg/kg; 2-
Butanone: 36 kg/kg; Isobutyl alcohol: 170 mg/kg; 4-Methyl phenol: 
5.6 mg/kg; Di-n-octyl phthalate: 28 mg/kg; Phenol: 6.2 mg/kg; and 
---------------------------------------------------------------------------
Xylenes: 30 mg/kg.

    The EPA provides notice and an opportunity for comment before 
granting or denying a final exclusion. Thus, a final decision will not 
be made until all timely public comments (including those at public 
hearings, if any) on today's proposal are addressed.

II. Disposition of Delisting Petition

A. Summary of Delisting Petition Submitted by Nissan North America, 
Inc., Smyrna, Tennessee (Nissan)

    Nissan manufactures light-duty vehicles and is seeking a delisting 
for the sludge that will be generated by treating wastewater from its 
manufacturing operations, when aluminum will be used to replace some of 
the steel in the vehicle bodies. Wastewater treatment sludge does not 
meet a hazardous waste listing definition when steel-only vehicle 
bodies are manufactured. However, the wastewater treatment sludge 
generated at manufacturing plants where aluminum is used as a component 
of vehicle bodies, meets the listing definition of F019 in Section 
261.3.\5\
---------------------------------------------------------------------------

    \5\ ``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.''
---------------------------------------------------------------------------

    Nissan petitioned EPA, Region 4, on October 12, 2000, to exclude 
this F019 waste, on an upfront, generator-specific basis, from the list 
of hazardous wastes in 40 CFR part 261, subpart D.
    The hazardous constituents of concern for which F019 was listed are 
hexavalent chromium and cyanide (complexed). Nissan petitioned the EPA 
to exclude its F019 waste because Nissan does not use either of these 
constituents in the manufacturing process. Therefore, Nissan does not 
believe that the waste meets the criteria of the listing.
    Nissan claims that its F019 waste will not be hazardous because the 
constituents of concern for which F019 is listed will be present only 
at low concentrations and will not leach out of the waste at 
significant concentrations. Nissan also believes that this waste will 
not be hazardous for any other reason (i.e., there will be no 
additional constituents or factors that could cause the waste to be 
hazardous). Review of this petition included consideration of the 
original listing criteria, as well as

[[Page 57922]]

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). Today's proposal to grant this petition 
for delisting is the result of the EPA's evaluation of Nissan's 
petition.
    In support of its petition, Nissan submitted: (1) Descriptions of 
its manufacturing and wastewater treatment processes, the generation 
point of the petitioned waste, and the manufacturing steps that will 
contribute to its generation; (2) Material Safety Data Sheets (MSDSs) 
for materials used to manufacture vehicles; (3) the minimum and maximum 
annual amounts of wastewater treatment sludge typically generated, and 
an estimate of the maximum annual amount expected to be generated in 
the future; (4) results of analysis of the currently generated waste at 
the Nissan plant in Smyrna, Tennessee for the chemicals in Appendix IX 
of 40 CFR part 264: 17 metals; cyanide; 58 volatile organic compounds 
and 124 semi-volatile organic compounds; and, in addition to the 
Appendix IX list, hexavalent chromium ; (5) results of analysis for 
those chemicals (i.e., Appendix IX list, hexavalent chromium) and 
fluoride in the leachate obtained from this waste by means of the 
Toxicity Characteristic Leaching Procedure ((TCLP), SW-846 Method 
1311); (6) results of determinations for the hazardous characteristics 
of ignitability, corrosivity, and reactivity, in this waste; (7) 
results of determinations of hexavalent chromium and percent solids; 
and (8) results of a dye tracer study and source inventory of Nissan's 
industrial wastewater system.
    The Nissan assembly plant in Smyrna, Tennessee, manufactures light-
duty vehicles. Nissan's Standard Industrial Classification (SIC) code 
is 3711. The manufacturing process that will cause F019 to be generated 
is conversion coating, when applied to vehicles that contain aluminum. 
Conversion coating takes place in three of Nissan's four paint plants 
and treats the metal surface of each vehicle body before painting to 
provide resistance to corrosion and to prepare the metal surface for 
optimum paint adhesion. Wastewater from all plant operations is treated 
at Nissan's industrial wastewater pretreatment plant. The wastewater is 
monitored for compliance with Nissan's Significant Industrial User's 
permit before discharging to the Town of Smyrna publicly owned 
treatment works. Treatment results in the formation of insoluble metal 
hydroxides. Wastewater treatment sludge is generated when these metal 
hydroxides are dewatered in a filter press. The sludge that exits from 
the filter press will be classified as F019 when the vehicle bodies 
contain aluminum, and the exit from the filter press will be the point 
of generation of F019.
    Nissan currently generates from 1,000 to 1,500 tons of wastewater 
treatment sludge per year at its Smyrna, Tennessee assembly plant, and 
estimated a future maximum annual generation rate of 2,000 tons.
    Table 1 below summarizes the hazardous constituents and their 
concentrations in Nissan's wastewater treatment sludge generated from 
the manufacture of steel-only vehicle bodies at the Smyrna, Tennessee 
plant.

                              Table 1.-- Nissan North America, Inc., Smyrna, Tennessee: Wastewater Treatment Sludge Profile
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Parameters \1\            NS-01a NS-02a        NS-03a            NS-04a            NS-05a             Max.           Mean       S.D.      C.V.
----------------------------------------\2\--------------------------------------------------------------------------------------------------------\3\--
                                                                         Metals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arsenic........................  4.2               3.2U              4.3               4.3               4.3                     3.8       0.64    17
                                 3.0
Arsenic--TCLP..................  0.050U            0.050U            0.050U            0.050U            0.050U                   NA         NA    NA
                                 0.050U
Barium.........................  6,200             3,400             2,100             3,400             6,600                  4340       1959  45.1
                                 6,600
Barium--TCLP...................  0.14              0.14              0.11              0.13              0.15                  0.134     0.0152  11.3
                                 0.15
Cadmium........................  0.61U             0.81              0.71U             0.81U             0.81                  0.708      0.103  14.5
                                 0.60U
Cadmium--TCLP..................  0.010U            0.010U            0.010U            0.010U            0.010U                   NA         NA    NA
                                 0.010U
Chromium--Total................  100               130               160               150               160                     132       23.9  18.1
                                 120
Chromium--Total TCLP...........  0.050U            0.050U            0.050U            0.050U            0.050U                   NA         NA    NA
                                 0.050U
Hexavalent Chromium............  0.80UN*           2.6U              2.9UN             3.2U              6.7                    3.24       2.15  66.3
                                 6.7N*
Hexavalent Chromium--TCLP......  0.25U             0.050U            0.050U            0.050U            0.25U                    NA         NA    NA
                                 0.25U
Cobalt.........................  22                21                8.7               16                24                     18.3       6.14  33.5
                                 24
Cobalt--TCLP...................  0.19              0.13              0.062             0.080             0.19                   0.12      0.053  43.0
                                 0.16
Copper.........................  820*              1,600             750               820               1,600                   972        354  36.4
                                 870*
Copper--TCLP...................  0.050U            0.050U            0.050U            0.050U            0.05U                    NA         NA    NA
Lead...........................  210               390               320               320               390                     294       73.7  25.1
                                 230
Lead--TCLP.....................  0.050U            0.050U            0.050U            0.050U            0.050U                   NA         NA    NA
                                 0.050U
Nickel.........................  3,000             4,200             4,100             4,100             4,200                 3,700      595.8  16.1
                                 3,100
Nickel--TCLP...................  32                46                41                31                46                     36.6       6.58  18.0
                                 33

[[Page 57923]]

 
Silver.........................  0.61U             0.68              0.71U             0.81U             0.81U                 0.682     0.0853  12.5
                                 0.60U
Silver--TCLP...................  0.010U            0.010U            0.010U            0.010U            0.010U                   NA         NA    NA
                                 0.010U
Tin............................  700               590               600               810               810                     682       90.4  13.2
                                 710
Tin--TCLP......................  0.10U             0.10U             0.10U             0.10U             0.10U                    NA         NA    NA
                                 0.01U
Vanadium.......................  190               52                18                48                190                    99.6       83.6  83.9
                                 190
Vanadium--TCLP.................  0.050U            0.050U            0.050U            0.050U            0.050U                   NA         NA    NA
                                 0.050U
Zinc...........................  15,000            15,000            20,000            17,000            20,000               16,800      2,049  12.2
                                 17,000
Zinc--TCLP.....................  17                17                16                7.2               17                     14.6       4.19  28.6
                                 16
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Inorganic Non-Metals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Cyanide..................  3.2               2.9               1.4               1.0               3.2                    2.32       1.04  44.7
                                 3.1
Total Cyanide--TCLP............  0.0095            0.0050U           0.0050U           0.0050U           0.0095              0.00636    0.00202  31.7
                                 0.0073
Fluoride--TCLP.................  0.23              2.1               1.7               1.8               2.1                    1.21      0.911  75.3
                                 0.22
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Hazardous Waste Characteristics
--------------------------------------------------------------------------------------------------------------------------------------------------------
Corrosivity: Measured pH         8.2               9.1               9.0               9.2               9.2 Minimum: 8.0        8.7       0.56   6.4
 [Regulatory limit: 2.0 or 12.5].
Ignitability: Measured Flash     >212              >212              >212              >212              >212                   >212          0     0
 Point,  deg.F [Regulatory       >212
 limit: 140 deg.F].
Reactive Sulfide: Measured       260               66U               280U              320               320                     227       98.4  43.3
 hydrogen sulfide released, mg/  210
 kg [Interim Guidance Level:
 500 mg/kg].
Reactive Cyanide: Measured       0.61U             0.66U             0.71U             0.81U             0.81U                    NA         NA    NA
 hydrogen cyanide released, mg/  0.60U
 kg [Interim Guidance Level:
 250 mg/kg].
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Other Properties
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent Solids.................  41                38                35                31                42                     37.4       4.51  12.0
                                 42
--------------------------------------------------------------------------------------------------------------------------------------------------------


 
         Parameters \1\           NS-01b  NS-02b        NS-03b            NS-04b            NS-05b            Max.          Mean       S.D.     C.V. \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Volatile Organic Compounds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acetone........................  0.570             4.500             0.130J            0.015U           4.500                 1.15       1.89        164
                                 0.530
Acetone--TCLP..................  0.120D            0.160D            0.093JD           0.240BD          0.240BD              0.137     0.0663       48.4
2-Butanone.....................  0.150J            1.000             0.028U            0.029U           1.000                0.287      0.407        142
                                 0.230J
2-Butanone--TCLP...............  0.020U            0.020U            0.020U            0.020U           0.020U                  NA         NA         NA
                                 0.020U
Isobutyl alcohol...............  0.024U            7.4               0.73              0.029U           7.4                   1.64       3.24        198
                                 0.024U
Isobutyl alcohol--TCLP.........  0.020UD           0.020UD           0.830D            0.020UD          0.830                0.182      0.362        199
                                 0.020UD
Xylenes (all isomers)..........  0.320             2.700             0.270             0.0029U          2.700                0.746       1.10        148
                                 0.440
Xylenes (all isomers)--TCLP....  0.0020U           0.033D            0.007JD           0.011JD          0.033               0.0110     0.0129        117
                                 0.0020U
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Semi-volatile Organic Compounds
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 57924]]


 
         Parameters \1\            NS-01a NS-02a        NS-03a            NS-04a            NS-05a            Max.          Mean       S.D.     C.V. \3\
----------------------------------------\2\-------------------------------------------------------------------------------------------------------------
Bis(2-ethylhexyl) phthalate....  520JD             45.0J             92.0J             22.0U            520                    222        235        106
                                 430JD
Bis(2-ethylhexyl) phthalate--    0.004U            0.020U            0.020U            0.020U           0.020U                  NA         NA         NA
 TCLP.                           0.004U
Di-n-octyl phthalate...........  390D              110               150               22.0JD           390                    198        152       76.8
                                 320D
Di-n-octyl phthalate--TCLP.....  0.004U            0.020U            0.020U            0.020U           0.020U                  NA         NA         NA
                                 0.004U
4-Methylphenol.................  17.0JD            4.2U              5.1U              3.4U             17.0                  6.96       5.66       81.3
                                 5.1JD
4-Methylphenol--TCLP...........  0.100D            0.040U            0.040U            0.040U           0.100               0.0632     0.0318       50.3
                                 0.096D
Phenol.........................  10.0JD            2.10U             2.60U             1.70U            10.0                  3.96       3.44       86.8
                                 3.40JD
Phenol--TCLP...................  0.036D            0.028JD           0.015JD           0.010U           0.038               0.0254     0.0125      49.1
                                 0.038D
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parameters are the chemicals or properties analyzed.
\2\ The first set of results for each chemical shows the concentrations determined by total analysis of the samples in milligrams of chemical per
  kilogram of waste (mg/kg). The second set of results for each chemical shows the concentrations determined by analysis of the TCLP extracts of the
  samples in milligrams of chemical per liter of TCLP extract of the waste (mg/L). The TCLP results are in the row where the name of the chemical is
  followed by ``--TCLP.'' B = Compound detected in blank; D = Sample had to be diluted; E = Parameter concentration estimated due to matrix
  interference; J = Estimated result; the actual result is likely to be greater than zero but less than the estimated value; N = Predigested spike
  recovery not within control limits; NA = Not applicable; U = Not detected above the method detection limit, which is the value preceding the U; * =
  Duplicate analysis was not within control limits. The metals, antimony, beryllium, mercury, selenium, and thallium were not detected by total analysis
  of samples and are not included in the table in order to save space. Xylene (including all its isomers), 2-butanone (methyl ethyl ketone or MEK),
  isobutyl alcohol, and acetone were the only volatile organic compounds (VOCs) found at a level equal to or greater than 1 part per million by total
  analysis of the waste and are the only VOCs included in the table. For the same reason, bis(2-ethylhexyl) phthalate, di-n-octyl phthalate, 4-
  methylphenol (p-cresol) \6\, and phenol are the only semi-volatile organic compounds included in the table. Columns 2 through 4 in the table heading
  contain sample identification numbers. ``NS'' stands for Nissan samples; numbers 01 through 05 are sequential numbers linking samples to the roll-offs
  from which they were collected. Numbers 01 and 02 were from the first roll-off sampled (see Note 4 below), and Numbers 03 through 05 were from roll-
  offs two through four, respectively. The letter ``a'' denotes a composite sample and the letter ``b'' denotes a grab sample. As described in the
  petition, four randomly selected roll-offs were sampled over the time period, by collecting one composite sample per roll-off. Each composite sample
  was a mixture of twelve vertical core samples. Each vertical core sample was approximately six to ten inches in depth and one inch in diameter; three
  vertical core samples were collected at each of four randomly selected locations per roll-off. Grab samples of each roll-off were collected for VOC
  analysis (see Note 4 below).
\3\ The last four columns contain a statistical analysis of the analytical results. Max. = maximum concentration found; Mean. = mean or average
  concentration found = sum of concentrations divided by the number of samples; S.D.= standard deviation = the square root of [(sum of squares of the
  differences between each measured concentration and the mean)divided by (the number of samples minus 1)]; C.V. = coefficient of variation, expressed
  as a percent = 100 times the standard deviation divided by the mean concentration. Statistical analyses were performed only if the parameter was
  detected in more than one sample. If a chemical was not detected in any of the samples, NA (not applicable) was written in the last three columns.
  Detection limits reported by the laboratory were used in the statistical calculations when chemicals were not detected (U) in some of the samples.
  This is a conservative assumption, which is likely to result in overestimation of the mean concentration.
\4\ One of the four composite samples was collected from a roll-off that was representative of plant maintenance activities and split into two samples
  for analysis: Sample Number NS-01a and its field duplicate, NS-02a. NS-01b was a grab sample from this roll-off, for VOC analysis, and NS-02b was a
  field duplicate of this sample. Composite samples NS-03a, NS-04a, and NS-05a were collected from three roll-offs that were representative of routine
  plant operations. Grab samples NS-03b, NS-04b, and NS-05b were collected from these three roll-offs for VOC analysis.

    EPA concluded after reviewing Nissan's waste management and waste 
history information that no other hazardous constituents, other than 
those tested for, are likely to be present in Nissan's petitioned 
waste. In addition, on the basis of test results and other information 
provided by Nissan, pursuant to section 260.22, EPA concluded that the 
petitioned waste will not exhibit any of the characteristics of 
ignitability, corrosivity, or reactivity. See Sections 261.21, 261.22, 
and 261.23, respectively.
    During its evaluation of Nissan's petition, EPA also considered the 
potential impact of the petitioned waste on media other than 
groundwater. With regard to airborne dispersal of waste, EPA evaluated 
the potential hazards resulting from airborne exposure to waste 
contaminants from the petitioned waste using an air dispersion model 
for releases from a landfill. The results of this evaluation indicated 
that there is no substantial present or potential hazard to human 
health from airborne exposure to constituents from Nissan's petitioned 
waste. (A description of EPA's assessment of the potential impact of 
airborne dispersal of Nissan's petitioned waste is presented in the 
RCRA public docket for today's proposed rule.)
    EPA evaluated the potential impact of the petitioned waste on 
surface water resulting from storm water runoff from a landfill 
containing the petitioned waste, and found that the waste would not 
present a threat to human health or the environment. (See the docket 
for today's proposed rule for a description of this analysis). In 
addition, EPA believes that containment structures at municipal solid 
waste landfills can effectively control runoff, as Subtitle D 
regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant 
discharges into surface waters. While some contamination of surface 
water is possible through runoff from a waste disposal area, EPA 
believes that the dissolved concentrations of hazardous constituents in 
the runoff are likely to be lower than the TCLP results reported in 
today's proposed rule, because of the aggressive acidic medium used for 
extraction in the TCLP. EPA also believes that, in general, leachate 
derived from the waste will not directly enter a surface water body 
without first traveling through the saturated subsurface where dilution 
of hazardous constituents may occur. Transported contaminants would be 
further diluted in the receiving water body. Subtitle D controls would 
minimize significant releases to surface water from erosion of 
undissolved particulates in runoff.

[[Page 57925]]

B. What Delisting Levels Did EPA Obtain With DRAS and EPACMTP?

    In order to account for possible variability in the generation 
rate, EPA calculated delisting levels using Nissan's estimated maximum 
generation rate of 2,000 tons of wastewater treatment sludge per year. 
EPA converted the 2,000 tons to a waste volume of 2,400 cubic yards, by 
using the density of water for the density of the sludge. While the 
sludge is certainly more dense than water, using the lower density 
results in a higher value for the waste volume, and a lower, more 
conservative, Dilution Attenuation Factor (DAF).
    Delisting levels and risk levels calculated by DRAS, using the 
EPACMTP model, are presented in Table 2 below. DRAS found that the 
major pathway for human exposure to this waste is groundwater 
ingestion, and the majority of the delisting and risk levels for the 
TCLP leachate of the waste were calculated based on that pathway. EPA 
requests public comment on using DRAS-calculated values based on MCLs, 
when these would result in more conservative delisting levels. The 
input values required by DRAS were the chemical constituents in 
Nissan's petitioned waste; their maximum reported concentrations in the 
TCLP extract of the waste and in the unextracted waste (See Table 1, 
Preamble Section II.A.); the maximum annual volume to be disposed 
(2,400 cubic yards) in a landfill; the desired risk level, which was 
chosen to be no worse than 10-\6\ for carcinogens; and a 
hazard quotient of no greater than 1 for non-carcinogens. The 
carcinogenic constituents detected in the waste are cadmium, hexavalent 
chromium, and bis(2-ethylhexyl) phthalate. Cadmium also has non-
carcinogenic toxic effects. Allowable total concentrations in the 
waste, as calculated by DRAS for the waste, itself, not the TCLP 
leachate, were all at least 1,000 times greater than the actual maximum 
total concentrations found in the waste, and are not included in Table 
2, since many amount to metal or cyanide concentrations of several per 
cent. However, in addition to limits on the concentrations of 
constituents in the TCLP leachate of the petitioned waste, EPA does 
propose to set the following limits on total concentrations, in units 
of milligrams of constituent per kilogram of unextracted waste (mg/kg): 
Barium: 20,000; Cadmium: 500; Chromium: 1,000; Cyanide (Total, not 
Amenable): 200; Lead: 2,000; and Nickel: 20,000. EPA asks for public 
comment on these limits which were chosen to be both protective of 
human health and the environment and to be realistic, attainable values 
for wastewater treatment sludges that contain metals and cyanide. The 
maximum reported total concentrations for Nissan's petitioned waste 
were all well below these limits. 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.)
---------------------------------------------------------------------------

    \6\ Because 4-methylphenol could not be distinguished from 3-
methylphenol in all samples, the values reported for 4-methylphenol 
in Table 1 include the values for 3-methylphenol.

                         Table 2.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for Nissan's Petitioned Waste
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                  DRAS-Calculated Hazard
                                       Delisting Level (mg/l                                         DRAS-Calculated Risk for      Quotient for Maximum
             Constituent               TCLP)/Delisting level                  DAF                    Maximum Concentration of      Concentration of Non-
                                        in TCLP Based on MCL                                           Carcinogen in Waste          Carcinogen in Waste
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Inorganic Constituents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arsenic.............................  2.63  x  10-\3\/2.70...  54..............................  9.5  x  10-\6\.................  ......................
Barium..............................  206*/157*..............  78.2............................  ...............................  8.98  x  10-\4\.
Cadmium.............................  1.58*/0.422............  84.4............................  5.78  x  10-\15\...............  0.00316.
Chromium............................  6.10  x  10\5\*/1.08  x  ................................  1.08  x  10\4\.................  1.23  x  10-\7\.
                                        10\3\*.
Hexavalent Chromium.................  Not Calculable; Risk     43.6............................  9.11  x  10-\14\...............  ......................
                                       Based on Inhalation of
                                       Particles in Air.
Copper..............................  2.96  x  10\4\/2.56  x   1.97  x  10\4\..................  ...............................  3.23  x  10-\5\.
                                       10\4\.
Cyanide.............................  38.0/10.1..............  50.6............................  ...............................  2.50  x  10-\4\.
Lead................................  211*...................  1.41  x  10\4\..................  ...............................  Not Calculable; No
                                                                                                                                   Reference Dose for
                                                                                                                                   Lead.
Nickel..............................  79.4...................  106.............................  ...............................  0.579.
Zinc................................  789....................  70..............................  ...............................  0.0216.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Organic Constituents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acetone.............................  201....................  53.4............................    .............................  0.00125.
Bis(2-ethylhexyl)phthalate..........  0.0787/0.321...........  53.4............................  1.64  x  10-\7\................  ......................
4-Methylphenol......................  10.....................  53.4............................  ...............................  0.0119.
Di-n-octyl phthalate................  0.0984.................  75.9............................  ...............................  0.102.
Isobutyl alcohol....................  602....................  53.4............................  ...............................  0.00145.
Phenol..............................  1,200..................  53.4............................  ...............................  3.47  x  10-\5\.
Xylenes.............................  2,810/534..............  53.4............................  ...............................  2.23  x  10-\5\.
Total Hazard Quotient for All Waste   .......................  ................................  ...............................  0.726.
 Constituents.
Total Carcinogenic Risk for the       .......................  ................................  9.66  x  10-\6\ ...............
 Waste (due to Arsenic, Cadmium,
 Hexavalent Chromium, and Bis(2-
 ethylhexyl) phthalate).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* These levels are all greater than the Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24. A waste cannot be delisted if it exhibits a
  hazardous characteristic; therefore, the delisting level for each of these constituents could not be greater than the TC level of 100 for Barium; 1.0
  for Cadmium; 5.0 for Chromium; and 5.0 for Lead.
 The Safe Drinking Water Act standard for copper is a recommended secondary standard, rather than an enforceable MCL.


[[Page 57926]]

    EPA proposes to use the delisting levels in the TCLP leachate 
calculated by the DRAS, using the EPACMTP (Table 2), in combination 
with the limits on total concentrations proposed in the paragraph 
preceding Table 2. These proposed delisting levels are summarized in 
Table 3, below. EPA is proposing to base the delisting levels for 
chromium on analysis for total chromium, not hexavalent chromium, for 
the following reasons: (1) Hexavalent chromium was undetected in the 
TCLP leachate of the petitioned waste; (2) the maximum reported 
concentration of total chromium in the unextracted waste was only 160 
mg/kg; and (3) the maximum reported concentration of hexavalent 
chromium in the unextracted waste was only 6.7 mg/kg. EPA is not 
proposing delisting levels for cobalt, copper, silver, tin, vanadium, 
zinc, acetone, isobutyl alcohol, phenol, and xylenes, because the DRAS-
calculated TCLP levels for these constituents are at least two orders 
of magnitude greater than the maximum reported concentrations in the 
TCLP leachate of the petitioned waste. EPA is not proposing delisting 
levels for arsenic for the following reasons: (1) TCLP leachate 
concentration was non-detect; (2) total concentration in the 
unextracted waste was below the background soil concentration for most 
of Tennessee, below the national average background, and three orders 
of magnitude below the DRAS allowable total concentration; and (3) DRAS 
found no ecological risk at the maximum reported concentrations and a 
human cancer risk within the range of 10-\4\ to 
10-\6\ assuming a TCLP concentration equal to one-half the 
reporting limit of the analytical laboratory.

                       Table 3.--Summary of Delisting Levels for Nissan's Petitioned Waste
----------------------------------------------------------------------------------------------------------------
                                                DRAS-
                                             Calculated
               Constituent                    Delisting    Proposed Total  Concentrations  (mg/kg in unextracted
                                            Level  (mg/l                           waste)
                                                TCLP)
----------------------------------------------------------------------------------------------------------------
                                             Inorganic Constituents
----------------------------------------------------------------------------------------------------------------
Barium...................................          *100.0  20,000
Cadmium..................................           0.422  500.
Chromium.................................            *5.0  1,000
Cyanide..................................            10.1  200 (Total, not Amenable)
Lead.....................................            *5.0  2,000
Nickel...................................            79.4  20,000
----------------------------------------------------------------------------------------------------------------
                                              Organic Constituents
----------------------------------------------------------------------------------------------------------------
Bis(2-ethylhexyl) phthalate..............          0.0787  .....................................................
Di-n-octyl phthalate.....................          0.0984  .....................................................
4-Methylphenol...........................              10  .....................................................
----------------------------------------------------------------------------------------------------------------
* DRAS-calculated delisting level was higher than the TC level; therefore, the delisting level was set at the TC
  level.

C. Should the Multiple Extraction Procedure (MEP) Be Used To Evaluate 
This Delisting Petition?

    EPA developed the MEP test (SW-846 Method 1320) to help predict the 
long-term resistance to leaching of stabilized wastes, which are wastes 
that have been treated to reduce the leachability of hazardous 
constituents. The MEP consists of a TCLP extraction of a sample 
followed by nine sequential extractions of the same sample, using a 
synthetic acid rain extraction fluid (prepared by adding a 60/40 weight 
mixture of sulfuric acid and nitric acid to distilled deionized water 
until the pH is 3.0  0.2). The sample which is subjected to 
the nine sequential extractions consists of the solid phase remaining 
after, and separated from, the initial TCLP extract. EPA designed the 
MEP to simulate multiple washings of percolating rainfall in the field, 
and estimates that these extractions simulate approximately 1,000 years 
of rainfall. (See 47 FR 52687, Nov. 22, 1982.)
    MEP data can be used to indicate whether a petitioned waste would 
be expected to leach hazardous constituents over the life of a 
landfill.\7\ The average life of a landfill is approximately 20 years. 
(See 56 FR 32993, July 18, 1991; and 56 FR 67197, Dec. 30, 1991.)
---------------------------------------------------------------------------

    \7\ This estimate would be based on the following type of 
calculation for a 100-gram sample, using nickel as an example: % 
nickel leached out over a long period of time = 100  x  (total 
number of milligrams of nickel in all the sample MEP extracts) 
 the number of milligrams of nickel originally present in 
the 100-gram sample.
---------------------------------------------------------------------------

    EPA requests public comment on whether the MEP should be used in 
the evaluation of Nissan's petitioned waste.

D. Conclusion

    After reviewing Nissan's processes, the EPA concludes that (1) no 
hazardous constituents of concern are likely to be present in Nissan's 
waste at levels that would harm human health and the environment; and 
(2) the petitioned waste does not exhibit any of the characteristics of 
ignitability, corrosivity, or reactivity. See 40 CFR 261.21, 261.22, 
and 261.23, respectively.
    EPA believes that Nissan's petitioned waste will not harm human 
health and the environment when disposed in a nonhazardous waste 
landfill if the delisting levels for land disposal as proposed in 
Preamble section II.B. are met.
    EPA proposes to exclude Nissan's petitioned waste from being listed 
as F019, based on descriptions of waste management and waste history, 
evaluation of the results of waste sample analysis, and on the 
requirement that Nissan's petitioned waste must meet proposed delisting 
levels before disposal. Thus, EPA's proposed decision is based on 
verification testing conditions. If the proposed rule becomes 
effective, the exclusion will be valid only if the petitioner 
demonstrates that the petitioned waste meets the verification testing 
conditions and delisting levels in the amended Table 1 of Appendix IX 
of 40 CFR part 261. If the proposed rule becomes final and EPA approves 
that demonstration, the petitioned waste would not be subject to 
regulation under 40 CFR parts 262 through 268 and the permitting 
standards of 40 CFR part 270. Although management of the waste covered 
by this petition would, upon final promulgation, be relieved from 
Subtitle C jurisdiction, the waste would remain

[[Page 57927]]

a solid waste under RCRA. As such, the waste must be handled in 
accordance with all applicable Federal, State, and local solid waste 
management regulations. Pursuant to RCRA section 3007, EPA may also 
sample and analyze the waste to determine if delisting conditions are 
met.

III. Limited Effect of Federal Exclusion

Will This Rule Apply in All States?

    This proposed rule, if promulgated, would be 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 and State 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 proposed exclusion, 
if promulgated, would not apply in those authorized States. If the 
petitioned waste will be transported to any State with delisting 
authorization, Nissan must obtain delisting authorization from that 
State before the waste may be managed as nonhazardous in that State.

IV. Effective Date

    This rule, if made final, will become effective immediately upon 
final publication. 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, if finalized, would reduce the existing requirements for the 
petitioner. 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).

V. 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.

VI. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking involves environmental monitoring or 
measurement. Consistent with the Agency's Performance Based Measurement 
System (``PBMS''), EPA proposes not to require the use of specific, 
prescribed analytical methods, except when required by regulation in 40 
CFR parts 260 through 270. Rather the Agency plans to allow the use of 
any method that meets the prescribed performance criteria. The PBMS 
approach is intended to be more flexible and cost-effective for the 
regulated community; it is also intended to encourage innovation in 
analytical technology and improved data quality. EPA is not precluding 
the use of any method, whether it constitutes a voluntary consensus 
standard or not, as long as it meets the performance criteria 
specified.

VII. 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. 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. EPA finds that today's 
proposed 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 does not 
establish any regulatory requirements for small governments and so does 
not require a small government agency plan under UMRA section 203.

VIII. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement and Fairness Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., 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 a significant economic impact on a substantial number of small 
entities.
    This rule, if promulgated, will not have an adverse economic impact 
on any 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

[[Page 57928]]

a significant economic impact on a substantial number of small 
entities. This regulation, therefore, does not require a regulatory 
flexibility analysis.

IX. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition , jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal of policy issues arising out of legal 
mandates, the President's priorities or the principles set forth in the 
Executive Order.
    OMB has exempted this proposed rule from the requirement for OMB 
review under section (6) of Executive Order 12866.

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 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 Affecting Indian Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office 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. Today's 
proposed rulemaking does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this proposed 
rule.

XII. Submission to Congress and General Accounting Office

    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.
    The EPA is not required to submit a rule report regarding today's 
action under section 801 because this is a rule of particular 
applicability, etc. Section 804 exempts from section 801 the following 
types of rules: rules of particular applicability; rules relating to 
agency management or personnel; and rules of agency organization, 
procedures, or practice that do not substantially affect the rights or 
obligations of non-agency parties. See 5 U.S.C. 804(3). This rule will 
become effective on the date of publication as a final rule in the 
Federal Register.

XIII. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.''
    ``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that impose substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has federalism implications and that preempts State law 
unless the Agency consults with State and local officials early in the 
process of developing the proposed regulation.
    This action does not have federalism implication. It will not have 
a substantial direct effect on States, on the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, because it affects only one facility.

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: November 5, 2001.
James S. Kutzman,
Acting Director, Waste Management Division.

    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, part 261 add the following 
wastestream in alphabetical order by facility to read as follows:

Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22

[[Page 57929]]



                                                   Table 1.--Wastes Excluded From Non-Specific Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Facility                                           Address                                    Waste description
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
Nissan North America, Inc................................  Smyrna, Tennessee........................  Wastewater treatment sludge (EPA Hazardous Waste
                                                                                                       No. F019) that Nissan North America, Inc.
                                                                                                       (Nissan) generates by treating wastewater from
                                                                                                       the automobile assembly plant located at 983
                                                                                                       Nissan Drive in Smyrna, Tennessee. This is a
                                                                                                       conditional exclusion for up to 2,400 cubic yards
                                                                                                       of waste (hereinafter referred to as ``Nissan
                                                                                                       Sludge'') that will be generated each year and
                                                                                                       disposed in a Subtitle D landfill after [insert
                                                                                                       date of final rule.] Nissan must demonstrate that
                                                                                                       the following conditions are met for the
                                                                                                       exclusion to be valid.
                                                                                                      (1) Delisting Levels: All leachable concentrations
                                                                                                       for these metals, cyanide, and organic
                                                                                                       constituents must not exceed the following levels
                                                                                                       (ppm): Barium-100.0; Cadmium-0.422; Chromium-5.0;
                                                                                                       Cyanide-10.1, Lead-5.0; and Nickel-79.4; Bis(2-
                                                                                                       ethylhexyl) phthalate-0.0787; Di-n-octyl
                                                                                                       phthalate -0.0984; and 4-Methylphenol-10.0. These
                                                                                                       concentrations must be measured in the waste
                                                                                                       leachate obtained by the method specified in 40
                                                                                                       CFR 261.24, except that for cyanide, deionized
                                                                                                       water must be the leaching medium. The total
                                                                                                       concentration of cyanide (total, not amenable) in
                                                                                                       the waste, not the waste leachate, must not
                                                                                                       exceed 200 mg/kg. Cyanide concentrations in waste
                                                                                                       or leachate must be measured by the method
                                                                                                       specified in 40 CFR 268.40, Note 7. The total
                                                                                                       concentrations of metals in the waste, not the
                                                                                                       waste leachate, must not exceed the following
                                                                                                       levels (ppm): Barium-20,000; Cadmium-500;
                                                                                                       Chromium-1,000; Lead-2,000; and Nickel-20,000.
                                                                                                      (2) Verification Testing Requirements: Sample
                                                                                                       collection and analyses, including quality
                                                                                                       control procedures, must be performed according
                                                                                                       to SW-846 methodologies, where specified by
                                                                                                       regulations in 40 CFR parts 260-270. Otherwise,
                                                                                                       methods must meet Performance Based Measurement
                                                                                                       System Criteria in which the Data Quality
                                                                                                       Objectives are to demonstrate that representative
                                                                                                       samples of the Nissan Sludge meet the delisting
                                                                                                       levels in Condition (1).
                                                                                                      (A) Initial Verification Testing: Nissan must
                                                                                                       collect and analyze a representative sample from
                                                                                                       each of the first eight rolloff boxes of Nissan
                                                                                                       sludge generated in its wastewater treatment
                                                                                                       system after [insert date of final rule]. Nissan
                                                                                                       must analyze for the constituents listed in
                                                                                                       Condition (1). Nissan must report analytical test
                                                                                                       data, including quality control information, no
                                                                                                       later than 60 days after generating the first
                                                                                                       Nissan Sludge to be disposed in accordance with
                                                                                                       the delisting Conditions (1) through (7).
                                                                                                      (B) Subsequent Verification Testing: If the
                                                                                                       initial verification testing in Condition (2)(A)
                                                                                                       is successful, i.e., delisting levels of
                                                                                                       condition (1) are met for all of the eight
                                                                                                       rolloffs described in Condition (2)(A), Nissan
                                                                                                       must implement an annual testing program to
                                                                                                       demonstrate that constituent concentrations
                                                                                                       measured in the TCLP extract and total
                                                                                                       concentrations measured in the unextracted waste
                                                                                                       do not exceed the delisting levels established in
                                                                                                       Condition (1).
                                                                                                      (3) Waste Holding and Handling: Nissan must store
                                                                                                       as hazardous all Nissan Sludge generated until
                                                                                                       verification testing, as specified in Condition
                                                                                                       (2)(A), is completed and valid analyses
                                                                                                       demonstrate that Condition (1) is satisfied. If
                                                                                                       the levels of constituents measured in the
                                                                                                       composite samples of Nissan Sludge do not exceed
                                                                                                       the levels set forth in Condition (1), then the
                                                                                                       Nissan Sludge is non-hazardous and must be
                                                                                                       managed in accordance with all applicable solid
                                                                                                       waste regulations. If constituent levels in a
                                                                                                       composite sample exceed any of the delisting
                                                                                                       levels set forth in Condition (1), the batch of
                                                                                                       Nissan Sludge generated during the time period
                                                                                                       corresponding to this sample must be managed and
                                                                                                       disposed of in accordance with Subtitle C of
                                                                                                       RCRA.
                                                                                                      (4) Changes in Operating Conditions: Nissan must
                                                                                                       notify EPA in writing when significant changes in
                                                                                                       the manufacturing or wastewater treatment
                                                                                                       processes are implemented. EPA will determine
                                                                                                       whether these changes will result in additional
                                                                                                       constituents of concern. If so, EPA will notify
                                                                                                       Nissan in writing that the Nissan Sludge must be
                                                                                                       managed as hazardous waste F019 until Nissan has
                                                                                                       demonstrated that the wastes meet the delisting
                                                                                                       levels set forth in Condition (1) and any levels
                                                                                                       established by EPA for the additional
                                                                                                       constituents of concern, and Nissan has received
                                                                                                       written approval from EPA. If EPA determines that
                                                                                                       the changes do not result in additional
                                                                                                       constituents of concern, EPA will notify Nissan,
                                                                                                       in writing, that Nissan must verify that the
                                                                                                       Nissan Sludge continues to meet Condition (1)
                                                                                                       delisting levels.

[[Page 57930]]

 
                                                                                                      (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, S.W., Atlanta, Georgia 30303. This
                                                                                                       submission is due no later than 60 days after
                                                                                                       generating the first batch of Nissan Sludge to be
                                                                                                       disposed in accordance with delisting Conditions
                                                                                                       (1) through (7). Records of analytical data from
                                                                                                       Condition (2) must be compiled, summarized, and
                                                                                                       maintained by Nissan for a minimum of three
                                                                                                       years, and must be furnished upon request by EPA
                                                                                                       or the State of Tennessee, and made available for
                                                                                                       inspection. Failure to submit the required data
                                                                                                       within the specified time period or maintain the
                                                                                                       required records for the specified time will be
                                                                                                       considered by EPA, at its discretion, sufficient
                                                                                                       basis to revoke the exclusion to the extent
                                                                                                       directed by EPA. All data must be accompanied by
                                                                                                       a signed copy of the certification statement in
                                                                                                       40 CFR 260.22(i)(12).
                                                                                                      (6) Reopener Language: (A) If, at any time after
                                                                                                       disposal of the delisted waste, Nissan possesses
                                                                                                       or is otherwise made aware of any environmental
                                                                                                       data (including but not limited to leachate data
                                                                                                       or groundwater monitoring data) or any other data
                                                                                                       relevant to the delisted waste indicating that
                                                                                                       any constituent identified in the delisting
                                                                                                       verification testing is at a level higher than
                                                                                                       the delisting level allowed by EPA in granting
                                                                                                       the petition, Nissan must report the data, in
                                                                                                       writing, to EPA within 10 days of first
                                                                                                       possessing or being made aware of that data. (B)
                                                                                                       If the testing of the waste, as required by
                                                                                                       Condition (2)(B), does not meet the delisting
                                                                                                       requirements of Condition (1), Nissan must report
                                                                                                       the data, in writing, to EPA within 10 days of
                                                                                                       first possessing or being made aware of that
                                                                                                       data. (C) Based on the information described in
                                                                                                       paragraphs (6)(A) or (6)(B) and any other
                                                                                                       information received from any source, EPA will
                                                                                                       make a preliminary determination as to whether
                                                                                                       the reported information requires that EPA take
                                                                                                       action to protect human health or the
                                                                                                       environment. Further action may include
                                                                                                       suspending or revoking the exclusion, or other
                                                                                                       appropriate response necessary to protect human
                                                                                                       health and the environment. (D) If EPA determines
                                                                                                       that the reported information does require Agency
                                                                                                       action, EPA will notify the facility in writing
                                                                                                       of the action believed necessary to protect human
                                                                                                       health and the environment. The notice shall
                                                                                                       include a statement of the proposed action and a
                                                                                                       statement providing Nissan with an opportunity to
                                                                                                       present information as to why the proposed action
                                                                                                       is not necessary. Nissan shall have 10 days from
                                                                                                       the date of EPA's notice to present such
                                                                                                       information.
                                                                                                      (E) Following the receipt of information from
                                                                                                       Nissan, as described in paragraph (6)(D), or if
                                                                                                       no such information is received within 10 days,
                                                                                                       EPA will issue a final written determination
                                                                                                       describing the Agency actions that are necessary
                                                                                                       to protect human health or the environment, given
                                                                                                       the information received in accordance with
                                                                                                       paragraphs (6)(A) or (6)(B). Any required action
                                                                                                       described in EPA's determination shall become
                                                                                                       effective immediately, unless EPA provides
                                                                                                       otherwise.
                                                                                                      (7) Notification Requirements: Nissan must provide
                                                                                                       a one-time written notification to any State
                                                                                                       Regulatory Agency in a State to which or through
                                                                                                       which the delisted waste described above will be
                                                                                                       transported, at least 60 days prior to the
                                                                                                       commencement of such activities. Failure to
                                                                                                       provide such a notification will result in a
                                                                                                       violation of the delisting conditions and a
                                                                                                       possible revocation of the decision to delist.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 01-28624 Filed 11-16-01; 8:45 am]
BILLING CODE 6560-50-P