[Federal Register Volume 67, Number 120 (Friday, June 21, 2002)]
[Rules and Regulations]
[Pages 42187-42198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15612]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-7235-1]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA or Agency) today is 
granting a petition submitted by Nissan North America, Inc., Smyrna, 
Tennessee (Nissan), to exclude (or ``delist'') a certain hazardous 
waste from the lists of hazardous wastes. Nissan will generate the 
petitioned waste by treating wastewater from Nissan's automobile 
assembly plant in Smyrna, Tennessee 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

[[Page 42188]]

that the waste could be disposed in a landfill without harming human 
health and the environment. This action responds to Nissan's petition 
to delist this waste on a generator-specific basis from the hazardous 
waste lists, and to public comments on the proposed rule. EPA took into 
account all public comments on the proposed rule before setting the 
final delisting levels. Final delisting levels in the waste leachate 
are based on the EPA Composite Model for Leachate Migration with 
Transformation Products as used in EPA, Region 6's Delisting Risk 
Assessment Software. Today's rule also sets limits on the total 
concentration of each hazardous constituent in the waste. In accordance 
with the conditions specified in this final rule, Nissan's petitioned 
waste is excluded from the requirements of hazardous waste regulations 
under Subtitle C of the Resource Conservation and Recovery Act (RCRA). 
The petitioned waste remains subject to all applicable federal, state, 
and local requirements for nonhazardous waste.

EFFECTIVE DATE: This rule is effective on June 21, 2002.

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

FOR FURTHER INFORMATION CONTACT: For general and technical information 
concerning this final rule, please contact Judy Sophianopoulos, RCRA 
Enforcement and Compliance Branch (Mail Code 4WD-RCRA), U.S. 
Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal 
Center, 61 Forsyth Street, 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. Questions 
may also be e-mailed to Ms. Sophianopoulos at 
[email protected]. You may also contact Nina Vo, Tennessee 
Department of Environment and Conservation (TDEC), 5th Floor, L & C 
Tower, 401 Church Street, Nashville, Tennessee 37243-1535, (615) 532-
9268. If you wish to copy documents at TDEC, please contact Ms. Vo for 
copying procedures and costs.

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

I. Background
    A. What Is a Delisting Petition?
    B. What Laws and Regulations Give EPA the Authority to Delist 
Wastes?
    C. What is the History of this Rulemaking?
II. Summary of Delisting Petition Submitted by Nissan North America, 
Inc., Smyrna, Tennessee (Nissan)
    A. What Waste Did Nissan Petition EPA to Delist?
    B. What Information Did Nissan Submit to Support This Petition?
III. EPA's Evaluation and Final Rule
    A. What Decision Is EPA Finalizing and Why?
    B. What Are the Terms of This Exclusion?
    C. When Is the Delisting Effective?
    D. How Does This Action Affect the States?
IV. Public Comments Received on the Proposed Exclusion
    A. Who Submitted Comments on the Proposed Rule?
    B. Comments and Responses From EPA
V. Analytical and Regulatory Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. What Economic and Equity Analyses Were Completed in Support 
of the Proposed Delisting for Nissan's Wastewater Treatment Sludge?
    C. What Substantive Comments Were Received on the Cost/Economic 
Aspects of the Proposed Delisting for Nissan's Wastewater Treatment 
Sludge?
    D. What Are the Potential Costs and Benefits of Today's Final 
Rule?
    E. What Consideration Was Given to Small Entities Under the 
Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 
et. seq.?
    F. Was the Unfunded Mandates Reform Act Considered in this Final 
Rule?
    G. Were Equity Issues and Children's Health Considered in this 
Final Rule?
    1. Executive Order 12898: Environmental Justice
    2. Executive Order 13045: ``Protection of Children from 
Environmental Health Risks and Safety Risks''
    H. What Consideration Was Given to Tribal Governments?
    I. Were Federalism Implications Considered in Today's Final 
Rule?
    J. Were Energy Impacts Considered?
VI. Paperwork Reduction Act
VII. National Technology Transfer and Advancement Act of 1995
VIII. The Congressional Review Act (5 U.S.C. 801 et seq., as Added 
by the Small Business Regulatory Enforcement Fairness Act of 1996)

I. Background

A. What Is a Delisting Petition?

    A delisting petition is a request made by a hazardous waste 
generator to exclude one or more of his/her wastes from the lists of 
RCRA-regulated hazardous wastes in Sections 261.31, 261.32, and 261.33 
of Title 40 of the Code of Federal Regulations (40 CFR 261.31, 261.32, 
and 261.33). The regulatory requirements for a delisting petition are 
in 40 CFR 260.20 and 260.22. EPA, Region 6 has prepared a guidance 
manual, Region 6 Guidance Manual for the Petitioner,\1\, which is 
recommended by EPA Headquarters in Washington, D.C. and all EPA 
Regions.
---------------------------------------------------------------------------

    \1\ This manual may be down-loaded from Region 6's Web Site at 
the following URL address: http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dlistpdf.htm
---------------------------------------------------------------------------

B. What Laws and Regulations Give EPA the Authority To Delist Wastes?

    On January 16, 1981, as part of its final and interim final 
regulations implementing section 3001 of RCRA, EPA published an amended 
list of hazardous wastes from non-specific and specific sources. This 
list has been amended several times, and is published in 40 CFR 261.31 
and 261.32. These wastes are listed as hazardous because they exhibit 
one or more of the characteristics of hazardous wastes identified in 
subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and 
toxicity) or meet the criteria for listing contained in Sec. 261.11 
(a)(2) or (a)(3). Discarded commercial chemical product wastes which 
meet the listing criteria are listed in Sec. 261.33(e) and (f).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be. For this reason, Secs. 260.20 and 260.22 
provide an exclusion procedure, allowing persons to demonstrate that a 
specific waste from a particular generating facility should not be 
regulated as a hazardous waste.
    To have their wastes excluded, petitioners must show, first, that 
wastes generated at their facilities do not meet any of the criteria 
for which the wastes were listed. See Sec. 260.22(a) and the background 
documents for the listed wastes. Second, the Administrator must 
determine, where he/she has a reasonable basis to believe that factors 
(including additional constituents) other than those for which the 
waste was listed could cause the waste to be a hazardous waste, that 
such factors do not warrant retaining the waste as a hazardous waste. 
Accordingly, a petitioner also must demonstrate that the waste does not 
exhibit any of the

[[Page 42189]]

hazardous waste characteristics (i.e., ignitability, reactivity, 
corrosivity, and toxicity), and must present sufficient information for 
the EPA to determine whether the waste contains any other toxicants at 
hazardous levels. See Sec. 260.22(a), 42 U.S.C. 6921(f), and the 
background documents for the listed wastes. Although wastes which are 
``delisted'' (i.e., excluded) have been evaluated to determine whether 
or not they exhibit any of the characteristics of hazardous waste, 
generators remain obligated under RCRA to determine whether or not 
their wastes continue to be nonhazardous based on the hazardous waste 
characteristics (i.e., characteristics which may be promulgated 
subsequent to a delisting decision.)
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See 40 CFR 261.3 (a)(2)(iv) and 
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of 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).

C. What Is the History of This Rulemaking?

    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 automobile 
bodies are manufactured. However, the wastewater treatment sludge 
generated at automobile manufacturing plants where aluminum is used as 
a component of automobile bodies, meets the listing definition of F019 
in Sec. 261.31.\2\
---------------------------------------------------------------------------

    \2\ ``Wastewater treatment sludges from the chemical conversion 
coating of aluminum except from zirconium phosphating in aluminum 
can washing when such phosphating is an exclusive conversion coating 
process.''
---------------------------------------------------------------------------

    Nissan petitioned EPA, Region 4, on October 12, 2000, to exclude 
this F019 waste on a generator-specific basis from the lists of 
hazardous wastes in 40 CFR part 261, subpart D.
    The hazardous constituents of concern for which F019 was listed are 
hexavalent chromium and cyanide (complexed). 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 the additional factors required 
by the Hazardous and Solid Waste Amendments (HSWA) of 1984. See section 
222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). As a 
result of the EPA's evaluation of Nissan's petition, the Agency 
proposed to grant a delisting to Nissan on November 19, 2001. See 66 FR 
57918-57930, November 19, 2001, for details. Today's rulemaking 
addresses public comments received on the proposed rule and finalizes 
the proposed decision to grant Nissan's petition for delisting.

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

A. What Waste Did Nissan Petition EPA To Delist?

    Nissan petitioned EPA, Region 4, on October 12, 2000, to exclude a 
maximum annual weight of 2,000 tons (2,400 cubic yards) of its F019 
waste, on an upfront, generator-specific basis, from the list of 
hazardous wastes in 40 CFR part 261, subpart D. The Nissan assembly 
plant in Smyrna, Tennessee, 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 automobile bodies are manufactured. However, the 
wastewater treatment sludge generated at automobile manufacturing 
plants where aluminum is used as a component of automobile bodies meets 
the listing definition of F019 in Sec. 261.31.

B. What Information Did Nissan Submit To Support This 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 percent

[[Page 42190]]

solids; and (8) results of a dye tracer study and source inventory of 
Nissan's industrial wastewater system.
    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 believe that the 
waste meets the criteria of the listing.
    Nissan submitted to the EPA analytical data from its plant in 
Smyrna, Tennessee. As described in the petition, 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. 
The maximum reported concentrations of the toxicity characteristic (TC) 
metals barium, cadmium, chromium, and lead in the TCLP extracts of the 
samples were below the TC regulatory levels. The maximum reported 
concentration of total cyanide in unextracted waste was 3.35 milligrams 
per kilogram (mg/kg), which is greater than the generic exclusion level 
of 1.8 mg/kg for high temperature metal recovery (HTMR) residues in 40 
CFR 261.3(c)(2)(ii)(C)(1), and less than 590 mg/kg, the Land Disposal 
Restrictions (LDR) Universal Treatment Standards (UTS) level, in 
268.48. Chromium was undetected in the TCLP extract of any sample. 
Please see the proposed rule, 66 FR 57918-57930, November 19, 2001, for 
details on Nissan's analytical data, production process, and generation 
process for the petitioned waste. EPA does not generally verify 
submitted test data before proposing delisting decisions. The sworn 
affidavit submitted with this petition binds the petitioner to present 
truthful and accurate results. The Agency, however, has maintained a 
spot-check sampling and analysis program to verify the representative 
nature of data for some percentage of the submitted petitions. A spot-
check visit to a selected facility may be initiated before or after 
granting a delisting. Section 3007 of RCRA gives EPA the authority to 
conduct inspections to determine if a delisted waste is meeting the 
delisting conditions.
    After reviewing the analytical data and information on processes 
and raw materials that Nissan submitted in the delisting petition, EPA 
developed a list containing the following constituents of concern: 
Arsenic, Barium, Cadmium, Chromium, Cyanide, Lead, Nickel, Silver, 
Vanadium, Zinc, Acetone, Bis-2-ethylhexyl phthalate, 2-Butanone, 
Isobutyl alcohol, 4-Methyl phenol, Di-n-octyl phthalate, Phenol, and 
Xylenes. EPA calculated delisting levels and risks for these 
constituents using Delisting Risk Assessment Software (DRAS),\3\ 
developed by EPA, Region 6. The DRAS uses a new model, called the EPA 
Composite Model for Leachate Migration with Transformation Products 
(EPACMTP). Please see the proposed rule (66 FR 57918-57930, November 
19, 2001) for details. EPA requested and received public comment on the 
proposed use of DRAS and EPACMTP for calculating delisting levels and 
risks for Nissan's petitioned waste.
---------------------------------------------------------------------------

    \3\ 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/dlistpdt.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.
---------------------------------------------------------------------------

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

    For reasons stated in both the proposal and this final rule, EPA 
believes that Nissan's petitioned waste should be excluded from 
hazardous waste control. EPA, therefore, is granting a final generator-
specific exclusion to Nissan North America, Inc., of Smyrna, Tennessee, 
for a maximum annual generation rate of 2,400 cubic yards of the waste 
described in its petition as EPA Hazardous Waste Number F019. This 
waste is required to undergo verification testing before being 
considered as excluded from Subtitle C regulation. Requirements for 
waste to be land disposed have been included in this exclusion. The 
exclusion applies only to the waste as described in Nissan's petition, 
dated October 2000.
    Although management of the waste covered by this petition is 
relieved from Subtitle C jurisdiction, the generator of the delisted 
waste must either treat, store, or dispose of the waste in an on-site 
facility, or ensure that the waste is delivered to an off-site storage, 
treatment, or disposal facility, either of which is permitted, licensed 
or registered by a State to manage municipal or industrial solid waste. 
Alternatively, the delisted waste may be delivered to a facility that 
beneficially uses or reuses, or legitimately recycles or reclaims the 
waste, or treats the waste prior to such beneficial use, reuse, 
recycling, or reclamation. See 40 CFR part 260, Appendix I. 
Nonhazardous waste management is subject to all applicable federal, 
state, and local regulations.

B. What Are the Terms of This Exclusion?

    In the rule proposed on November 19, 2001, EPA requested public 
comment on which of the following possible methods should be used to 
evaluate Nissan's delisting petition and set delisting levels for the 
petitioned waste (see 66 FR 57918-57930, November 19, 2001):
    (1) Delisting levels based on the EPA Composite Model for Leachate 
Migration with Transformation Products (EPACMTP model) as used in EPA, 
Region 6's Delisting Risk Assessment Software (DRAS); (2) use of DRAS-
calculated levels based on Safe Drinking Water Act Maximum Contaminant 
Levels (MCLs) if more conservative delisting levels would be obtained; 
(3) use of the Multiple Extraction Procedure (MEP), SW-846 Method 1320, 
to evaluate the long-term resistance of the waste to leaching in a 
landfill; (4) setting limits on total concentrations of constituents in 
the waste that are more conservative than results of calculations of 
constituent release from waste in a landfill to surface water and air, 
and release during waste transport; (5) setting delisting levels at the 
Land Disposal Restrictions (LDR) Universal Treatment Standards (UTS) 
levels in 40 CFR 268.48. See the proposed rule, 66 FR 57918-57930, 
November 19, 2001, for details of calculating delisting levels using 
these methods.
    After considering all public comments on the proposed rule, EPA is 
granting Nissan, in today's final rule, an exclusion from the lists of 
hazardous wastes in subpart D of 40 CFR part 261 for its petitioned 
waste when disposed in a Subtitle D \4\ landfill. Nissan must meet all 
of the following delisting conditions in order for this exclusion to be 
valid: (1) Delisting levels in mg/l in the TCLP extract of the waste 
based on

[[Page 42191]]

the DRAS EPACMTP model of 100.0 \5\ for Barium, 0.422\6\ for Cadmium, 
5.0 for Chromium, 10.1 for Cyanide, 5.0 for Lead, and 79.4 for Nickel; 
(2) the total concentration of cyanide (total, not amenable) in the 
waste, not the waste leachate, must not exceed 200 mg/kg; (3) the total 
concentrations, in mg/kg, of metals in the waste, not the waste 
leachate, must not exceed 20,000 for Barium, 500 for Cadmium, 1,000 for 
Chromium, 2,000 for Lead, and 20,000 for Nickel.
---------------------------------------------------------------------------

    \4\ The term, ``Subtitle D landfill,'' refers to a landfill that 
is licensed to land dispose nonhazardous wastes, that is, wastes 
that are not RCRA hazardous wastes. A Subtitle D landfill is subject 
to federal standards in 40 CFR parts 257 and 258 and to state and 
local regulations for nonhazardous wastes and nonhazardous waste 
landfills.
    \5\ Delisting levels cannot exceed the Toxicity Characteristic 
(TC) regulatory levels. Therefore, although the DRAS EPACMTP 
calculates higher concentrations (see the proposed rule, 66 FR 
57918-57930, November 19, 2001, and Table 1, below), the delisting 
levels in the final rule are set at the TC levels for barium, 
chromium, and lead. In order for the waste to be delisted, 
concentrations in the TCLP extract of the waste must be less than 
the TC levels. See the regulatory definition of a TC waste in 40 CFR 
261.24.
    \6\ Delisting levels for cadmium and cyanide are based on MCLs 
and are more conservative than calculations based on risk alone.
---------------------------------------------------------------------------

    EPA did not propose 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 did 
not propose 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. 
Therefore, today's final rule does not have delisting levels for 
arsenic, cobalt, copper, silver, tin, vanadium, zinc, acetone, isobutyl 
alcohol, phenol, and xylenes.
    Delisting levels and risk levels calculated by DRAS, using the 
EPACMTP model, are presented in Table 1 below. These levels promulgated 
in today's final rule are the same as the levels proposed in Table 3 of 
the proposed rule (66 FR 57918-57930, November 19, 2001). DRAS found 
that the major pathway for human exposure to this waste is groundwater 
ingestion, and calculated delisting and risk levels based on that 
pathway. For details, see the following Federal Registers: 65 FR 75637-
75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000; and the 
proposed rule for Nissan's petitioned waste, 66 FR 57918-57930, 
November 19, 2001.

   Table 1.--Summary of Delisting Levels for Nissan's Petitioned Waste
------------------------------------------------------------------------
                                                DRAS-          Total
                                              Calculated  Concentrations
                Constituent                   Delisting    *  (mg/kg in
                                             Level  (mg/    unextracted
                                               l TCLP)        waste)
------------------------------------------------------------------------
                         Inorganic Constituents
------------------------------------------------------------------------
Barium.....................................   **100.0           20,000
Cadmium....................................     # 0.422            500
Chromium...................................     **5.0            1,000
Cyanide (Total, not Amenable)..............    # 10.1              200
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       ..............
------------------------------------------------------------------------
* These total concentration levels are more conservative (less than)
  DRAS-calculated total concentration levels.
** DRAS-calculated delisting level was higher than the TC level;
  therefore, the delisting level was set at the TC level.
# DRAS-calculated delisting levels for cadmium and cyanide are based on
  MCLs.

    After taking into account all public comments on the proposed rule, 
EPA is retaining in today's final rule to exclude Nissan's petitioned 
waste all conditions (Conditions (1) through (7)) in Table 1, Appendix 
IX of part 261 of the proposed rule (66 FR 57918-57930, November 19, 
2001). The final delisting levels are the same as those proposed and 
are presented in Table 1 above.

C. When Is the Delisting Effective?

    This rule is effective on June 21, 2002. The Hazardous and Solid 
Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here, because this rule reduces the existing requirements for 
persons generating hazardous wastes. In light of the unnecessary 
hardship and expense that would be imposed on this petitioner by an 
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of Section 3010, 
EPA believes that this exclusion should be effective immediately upon 
final publication.
    These reasons also provide a basis for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, pursuant to 5 U.S.C. 553(d).

D. How Does This Action Affect the States?

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

IV. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule?

    EPA received public comments on the proposed rule published in 66 
FR 57918-57930, November 19, 2001, from (1) Alliance of Automobile 
Manufacturers, Washington, DC; (2) Nissan North America, Inc., Smyrna, 
Tennessee, (Nissan), the petitioner; (3) Alcoa, Inc., Pittsburgh, 
Pennsylvania; and (4) The Aluminum Association, Washington, DC. EPA 
commends and appreciates the thoughtful comments submitted by all of 
the commenters.

B. Comments and Responses From EPA

    Comment: The Alliance of Automobile Manufacturers (Alliance) stated 
that it strongly supports the proposed delisting, and agrees that fate 
and transport models may be useful tools to evaluate delisting 
petitions. However, the Alliance believes that the F019 listing itself 
should be revised to exclude wastewater treatment sludges from 
automotive industry conversion

[[Page 42192]]

coating on aluminum when hexavalent chromium and cyanides are not used 
in the process.
    Response: Today's final rule is site-specific and waste-specific; 
it applies only to Nissan's plant in Smyrna, Tennessee, and only to the 
petitioned waste. An exclusion of general applicability would require a 
separate rule-making, with more extensive data collection and risk 
analysis. EPA understands the Alliance's concern about the need for 
each auto company to submit a delisting petition. Please see 67 FR 
10341-10353, March 7, 2002, for a proposal by EPA, Region 5, in a 
cooperative project with the State of Michigan, to address this 
concern.
    Comment: The Alliance disagrees with EPA's proposed use of (1) the 
MEP to evaluate Nissan's delisting petition; (2) establishing delisting 
levels based on total concentrations; and (3) establishing delisting 
levels based on LDR treatment standards.
    Response: (1) EPA has used MEP analysis of petitioned wastes in the 
past as a measure of the long-term resistance of the waste to leaching 
(see, for example, 47 FR 52687, Nov. 22, 1982; 61 FR 14696-14709, April 
3, 1996; 65 FR 48436, August 8, 2000; and 66 FR 9789, 9793-9794, 
February 12, 2001), which is an important consideration for waste to be 
disposed in a Subtitle D (nonhazardous waste) landfill. As explained in 
the response to the Alliance's second comment, EPA has decided not to 
use the MEP to evaluate Nissan's petitioned waste. (2) The Alliance 
brings up some significant issues in this comment and makes some good 
points. However, EPA feels that the proposed limits on total 
concentrations are reasonable, given that the delisted waste will not 
be subject to regulation as a hazardous waste under RCRA Subtitle C. 
These limits will provide added reassurance to the public that 
management of the waste as nonhazardous will be protective of human 
health and the environment. EPA has decided not to use the MEP to 
evaluate Nissan's petitioned waste, but will set the following limits 
on total concentrations (in mg/kg) which are the same as those 
proposed: Barium: 20,000; Cadmium: 500; Chromium: 1,000; Cyanide 
(Total, not Amenable): 200; Lead: 2,000; and Nickel: 20,000. (3) EPA 
has decided not to set delisting levels based on LDR for Nissan's 
petitioned waste, and the final delisting levels in Appendix IX of part 
261 established in today's final rule are not based on LDR. The 
analytical data submitted by Nissan indicate that the petitioned waste, 
when generated, would meet LDR Universal Treatment Standards (UTS) for 
all constituents of concern except Nickel, Zinc, Bis(2-ethylhexyl) 
phthalate, Di-n-octyl phthalate, 4-Methylphenol, and Phenol. The 
petitioned waste as generated meets the LDR UTS for F019 
nonwastewaters, namely, Chromium (Total): 0.60 mg/L TCLP; Cyanides 
(Total): 590 mg/kg; and Cyanides (Amenable) 30 mg/kg. See the proposed 
rule, 66 FR 57918-57930, November 19, 2001.
    Comment: The Alliance commented on the use of the EPACMTP and DRAS 
by saying that their use should be the subject of a separate rulemaking 
because they raise complex issues that EPA should not try to resolve in 
this delisting.
    Response: Use of the EPACMTP and DRAS has been described in detail 
in 65 FR 75637-75651, December 4, 2000, and 65 FR 58015-58031, 
September 27, 2000. TheDecember 4, 2000 Federal Register discusses the 
key enhancements of the EPACMTP and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR FR proposal 
docket (60 FR 66344, December 21, 1995). For every delisting petition 
submitted to EPA, EPA proposes and requests comment on all available 
methods for evaluating the petition and setting delisting levels, 
including the EPACMTP and DRAS. Thus, these models, and future 
improvements, will be proposed for comment in every delisting 
rulemaking.
    Comment: Nissan directed EPA's attention to the following 
typographical errors in the proposed rule (66 FR 57918-57930, November 
19, 2001): (1) On page 57923, the Reactive Sulfide result for Sample 
NS-04a should be changed from 280U to 280; and the TCLP result for Tin 
in Sample NS-02a should be changed from 0.01U to 0.10U, in accordance 
with the report sheets from the analytical laboratory; (2) On page 
57922, the TCLP result for Copper in Sample NS-02a is missing; the 
value 0.05U should be added; and (3) Footnote 6 is missing from page 
57924.
    Response: EPA is grateful to Nissan for pointing out the above 
errors and will make the indicated corrections. (The errors for Tin and 
Reactive Sulfide also occur in Table 6-4 of the petition; Section F of 
the petition contains the analytical laboratory report sheets which 
indicate the correct results.) Footnote 6, to be added to page 57924 
should read: 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.
    In addition, EPA discovered a typographical error in Footnote 7 on 
page 57926: the plus sign (+) should be changed to a division sign (/). 
Footnote 7 should read: 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.
    Comment: Nissan disagrees with EPA's proposed method of setting 
delisting levels based on the Land Disposal Restrictions (LDR) 
Universal Treatment Standards (UTS) in 40 CFR 268.48. Nissan believes 
that UTS levels are inappropriate for setting delisting levels, because 
UTS levels were not designed for such a use, but were established to 
determine whether a hazardous waste could be land disposed.
    Response: EPA has decided not to set delisting levels based on LDR 
UTS for Nissan's petitioned waste, and the final delisting levels in 
Appendix IX of part 261 established in today's final rule are not based 
on LDR UTS. The analytical data submitted by Nissan indicate that the 
petitioned waste, when generated, would meet LDR UTS for all 
constituents of concern except Nickel, Zinc, Bis(2-ethylhexyl) 
phthalate, Di-n-octyl phthalate, 4-Methylphenol, and Phenol. The 
petitioned waste meets the LDR UTS for F019 nonwastewaters, namely, 
Chromium (Total): 0.60 mg/L TCLP; Cyanides (Total): 590 mg/kg; and 
Cyanides (Amenable) 30 mg/kg. See the proposed rule, 66 FR 57918-57930, 
November 19, 2001.
    Comment: Nissan disagrees with EPA's proposed method of setting 
delisting levels based on the DRAS EPACMTP. Nissan believes that these 
levels are inappropriate because they are more stringent than the 
Toxicity Characteristic (TC) levels used to determine if a waste is 
hazardous.
    Response: Although there is understandable confusion between the 
definition of hazardous waste and the delisting process, EPA has 
decided to use the DRAS EPACMTP as the basis for the delisting levels 
in the TCLP extract of Nissan's waste. The DRAS levels minimize the 
risk to human health and the environment of land disposal in a 
nonhazardous (Subtitle D) landfill. As presented in Table 1, Section 
III.B. of today's preamble, DRAS-calculated delisting levels are the 
following concentrations in the TCLP extract of

[[Page 42193]]

the petitioned waste, in ppm (mg/L): Barium-100.0; \7\ Cadmium-0.422; 
\8\ Chromium-5.0; Cyanide-10.1, Lead-5.0; Nickel-79.4; Bis(2-
ethylhexyl) phthalate-0.0787; Di-n-octyl phthalate-0.0984; and 4-
Methylphenol-10.0.
---------------------------------------------------------------------------

    \7\ Delisted wastes cannot exhibit a hazardous waste 
characteristic. Therefore, when delisting levels are set at the 
Toxicity Characteristic (TC) regulatory levels, the TCLP extract of 
the petitioned waste must have concentrations less than the TC 
levels in order to meet conditions for delisting. Although the DRAS 
EPACMTP calculates higher concentrations (see the proposed rule, 66 
FR 57918-57930, November 19, 2001, and Table 1, Section III.B. of 
today's preamble), the delisting levels in the final rule are set at 
the TC levels for barium, chromium, and lead.
    \8\ DRAS-calculated delisting levels for cadmium and cyanide are 
based on MCLs.
---------------------------------------------------------------------------

    Comment: Nissan disagrees with EPA's proposal to set limits on 
total concentrations for delisting. Nissan believes that limits on 
total concentrations are an added burden without additional benefits, 
that hazardous wastes are defined by TCLP concentrations rather than 
total concentrations, and that TCLP limits should be sufficient.
    Response: Nissan's points are well taken. However, EPA has decided 
to promulgate in today's final rule the limits on total concentrations 
that were proposed. EPA has decided not to require evaluation of the 
waste by the MEP and believes that total concentration limits serve to 
reassure the public that long term effects on human health and the 
environment are minimized. It is true that TCLP concentrations are the 
only consideration when identifying wastes that could be hazardous by 
the Toxicity Characteristic of 40 CFR 261.24. However, EPA considers 
total concentrations as well as TCLP concentrations when deciding 
whether wastes should be listed hazardous wastes in Subpart D of 40 CFR 
part 261.
    Comment: Alcoa, Inc. (Alcoa) agrees with EPA's proposal to delist 
Nissan's wastewater treatment sludge, but does not support the use of 
the MEP to evaluate Nissan's waste, believing that the merits of the 
MEP should be the subject of a separate Federal Register notice.
    Response: EPA has used MEP analysis of petitioned wastes in the 
past as a measure of the long-term resistance of the waste to leaching 
(see, for example, 47 FR 52687, Nov. 22, 1982; 61 FR 14696-14709, April 
3, 1996; 65 FR 48436, August 8, 2000; and 66 FR 9789, 9793-9794, 
February 12, 2001), which is an important consideration for waste to be 
disposed in a Subtitle D (nonhazardous waste) landfill. EPA has 
requested in the past and will continue to request public comment on 
the MEP and all other methods for evaluating delisting petitions each 
time a proposed rule for delisting a waste is published in the Federal 
Register.
    EPA has decided not to use the MEP to evaluate Nissan's petitioned 
waste, but has decided to promulgate in today's final rule the proposed 
limits on total concentrations.
    Comment: Alcoa does not support proposed limits on total 
concentrations, because EPA did not establish a correlation between 
groundwater contamination and total constituent concentrations.
    Response: Alcoa's point is well taken, but EPA has decided to 
promulgate the proposed limits on total concentrations as a condition 
of delisting. EPA has decided not to evaluate Nissan's waste by means 
of the MEP and believes that total concentration limits serve to 
reassure the public that long term effects on human health and the 
environment are minimized.
    Comment: Alcoa does not support setting delisting levels based on 
LDR UTS, believing that such levels would be ``arbitrary, inappropriate 
and contradictory.'' Alcoa states that LDR UTS are technology-based, 
while EPA's delisting evaluation is risk-based and that EPA concluded 
that Nissan's waste presents no risk to human health and the 
environment.
    Response: EPA has decided not to set delisting levels based on LDR 
UTS for Nissan's petitioned waste, and the final delisting levels in 
Appendix IX of part 261 established in today's final rule are not based 
on LDR UTS. The analytical data submitted by Nissan indicate that the 
petitioned waste, when generated, would meet LDR UTS for all 
constituents of concern except Nickel, Zinc, Bis(2-ethylhexyl) 
phthalate, Di-n-octyl phthalate, 4-Methylphenol, and Phenol. The 
petitioned waste meets the LDR UTS for F019 nonwastewaters, namely, 
Chromium (Total): 0.60 mg/L TCLP; Cyanides (Total): 590 mg/kg; and 
Cyanides (Amenable) 30 mg/kg. See the proposed rule, 66 FR 57918-57930, 
November 19, 2001.
    Comment: The Aluminum Association (TAA) supports the proposed 
delisting and the comments submitted by the Alliance of Automobile 
Manufacturers. TAA believes that the F019 listing definition should be 
revised to exclude automobile assembly plant wastewater treatment 
sludge when aluminum parts are used in place of steel and the 
conversion coating process does not use hexavalent chromium and 
cyanides.
    Response: Today's final rule is site-specific and waste-specific; 
it applies only to Nissan's plant in Smyrna, Tennessee, and only to the 
petitioned waste. An exclusion of general applicability would require a 
separate rule-making, with more extensive data collection and risk 
analysis. EPA understands the concern of The Aluminum Association and 
the Alliance of Automobile Manufacturers about the need for each 
automobile manufacturer to submit a delisting petition. Please see 67 
FR 10341-10353, March 7, 2002, for a proposal by EPA, Region 5, in a 
cooperative project with the State of Michigan, to address this 
concern.
    Comment: TAA does not believe it is appropriate to set delisting 
levels based on (1) the MEP; (2) LDR UTS; or (3) total concentrations.
    Response: (1) EPA has used MEP analysis of petitioned wastes in the 
past as a measure of the long-term resistance of the waste to leaching 
(see, for example, 47 FR 52687, Nov. 22, 1982; 61 FR 14696-14709, April 
3, 1996; 65 FR 48436, August 8, 2000; and 66 FR 9789, 9793-9794, 
February 12, 2001), which is an important consideration for waste to be 
disposed in a Subtitle D (nonhazardous waste) landfill. EPA has 
requested in the past and will continue to request public comment on 
the MEP and all other methods for evaluating delisting petitions each 
time a proposed rule for delisting a waste is published in the Federal 
Register.
    EPA has decided not to use the MEP to evaluate Nissan's petitioned 
waste, but has decided to promulgate in today's final rule the proposed 
limits on total concentrations.
    (2) EPA has decided not to set delisting levels based on LDR UTS 
for Nissan's petitioned waste, and the final delisting levels in 
Appendix IX of part 261 established in today's final rule are not based 
on LDR UTS. The analytical data submitted by Nissan indicate that the 
petitioned waste, when generated, would meet LDR UTS for all 
constituents of concern except Nickel, Zinc, Bis(2-ethylhexyl) 
phthalate, Di-n-octyl phthalate, 4-Methylphenol, and Phenol. The 
petitioned waste meets the LDR UTS for F019 nonwastewaters, namely, 
Chromium (Total): 0.60 mg/L TCLP; Cyanides (Total): 590 mg/kg; and 
Cyanides (Amenable) 30 mg/kg. See the proposed rule, 66 FR 57918-57930, 
November 19, 2001.
    (3) EPA has decided to promulgate the proposed limits on total 
concentrations as a condition of delisting. EPA has decided not to 
evaluate Nissan's waste by means of the MEP and believes that total 
concentration limits serve to reassure the public that long term 
effects on human health and the environment are minimized.

[[Page 42194]]

    Comment: TAA believes that the use of DRAS and EPACMTP should be 
the subject of a separate rulemaking.
    Response: Use of the EPACMTP and DRAS has been described in detail 
in 65 FR 75637-75651, December 4, 2000, and 65 FR 58015-58031, 
September 27, 2000. The December 4, 2000 Federal Register discusses the 
key enhancements of the EPACMTP and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR FR proposal 
docket (60 FR 66344, December 21, 1995). For every delisting petition 
submitted to EPA, EPA proposes and requests comment on all available 
methods for evaluating the petition and setting delisting levels, 
including the EPACMTP and DRAS. Thus, these models, and future 
improvements, will be proposed for comment in every delisting 
rulemaking.

V. Analytical and Regulatory Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and, therefore, subject to 
comprehensive review by the Office of Management and Budget (OMB), and 
the other provisions of the Executive Order. A significant regulatory 
action is defined by the Order as one that may:

--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;
--Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;
--Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or rights and obligations or recipients thereof; 
or
--Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in Executive Order 
12866.

    EPA has determined that today's final rule is not a significant 
regulatory action as defined by Executive Order 12866 and is, 
therefore, not subject to OMB comprehensive review and the other 
provisions of the Executive Order.

B. What Economic and Equity Analyses Were Completed in Support of the 
Proposed Delisting for Nissan's Wastewater Treatment Sludge?

    No economic and equity analyses were required in support of the 
November 19, 2001 proposed rule. The proposed rule applies only to a 
single waste at a single facility. Therefore the proposal would have 
had no generalized effect on industrial compliance costs and would have 
reduced compliance costs for the single facility, Nissan.

C. What Substantive Comments Were Received on the Cost/Economic Aspects 
of the Proposed Delisting for Nissan's Wastewater Treatment Sludge?

    Public comments were received from four entities. None of the 
comments dealt with economic effects of the proposed rule.

D. What Are the Potential Costs and Benefits of Today's Final Rule?

    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. All other factors being 
equal, a rule that generates positive net welfare would be advantageous 
to society, while a rule that results in negative net welfare to 
society should be avoided.
    Today's final rule applies to a single waste at a single facility. 
Therefore, EPA has determined that the rule is not expected to have any 
generalized economic, health, or environmental effects on society.

E. What Consideration Was Given to Small Entities Under the Regulatory 
Flexibility Act (RFA), as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.?

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute, unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions. For purposes 
of assessing the impacts of today's final rule on small entities, a 
small entity is defined either by the number of employees or by the 
annual dollar amount of sales/revenues. The level at which an entity is 
considered small is determined for each North American Industrial 
Classification System (NAICS) code by the Small Business Administration 
(SBA).
    EPA has examined the potential effects today's final rule may have 
on small entities, as required by the RFA/Small Business Regulatory 
Enforcement Fairness Act (SBREFA). Today's final rule affects a single 
waste at a single facility, Nissan. Therefore, EPA has determined and 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.

F. Was the Unfunded Mandates Reform Act Considered in This Final Rule?

    Executive Order 12875, ``Enhancing the Intergovernmental 
Partnership'' (October 26, 1993), called on federal agencies to provide 
a statement supporting the need to issue any regulation containing an 
unfunded federal mandate and describing prior consultation with 
representatives of affected state, local, and tribal governments.
    Signed into law on March 22, 1995, the Unfunded Mandates Reform Act 
(UMRA) supersedes Executive Order 12875, reiterating the previously 
established directives while also imposing additional requirements for 
federal agencies issuing any regulation containing an unfunded mandate.
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
single year. Before promulgating an EPA rule for which a written 
statement is needed, section 205 of the UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, the Agency must develop a small

[[Page 42195]]

government agency plan, as required under section 203 of UMRA. This 
plan must provide for notifying potentially affected small governments, 
enabling officials of affected small governments to have meaningful and 
timely input in the development of EPA regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    Today's final rule is not subject to the requirements of sections 
202 and 205 of UMRA. Today's final rule will not result in $100 million 
or more in incremental expenditures. The aggregate annualized 
incremental social costs for today's final rule are projected to be 
near zero. Furthermore, today's final rule is not subject to the 
requirements of section 203 of UMRA. Section 203 requires agencies to 
develop a small government Agency plan before establishing any 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments. EPA has determined that this 
final rule will not significantly or uniquely affect small governments.

G. Were Equity Issues and Children's Health Considered in This Final 
Rule?

    By applicable executive order, we are required to consider the 
impacts of today's rule with regard to environmental justice and 
children's health.
1. Executive Order 12898: Environmental Justice
    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Population'' (February 
11, 1994), is designed to address the environmental and human health 
conditions of minority and low-income populations. EPA is committed to 
addressing environmental justice concerns and has assumed a leadership 
role in environmental justice initiatives to enhance environmental 
quality for all citizens of the United States. The Agency's goals are 
to ensure that no segment of the population, regardless of race, color, 
national origin, income, or net worth bears disproportionately high and 
adverse human health and environmental impacts as a result of EPA's 
policies, programs, and activities. In response to Executive Order 
12898, and to concerns voiced by many groups outside the Agency, EPA's 
Office of Solid Waste and Emergency Response (OSWER) formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17). Today's final rule applies to a single waste at a single 
facility. We have no data indicating that today's final rule would 
result in disproportionately negative impacts on minority or low income 
communities.
2. Executive Order 13045: ``Protection of Children From Environmental 
Health Risks and Safety Risks''
    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have 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. Today's final rule is not 
subject to the Executive Order because it is not economically 
significant, as defined in Executive Order 12866.

H. What Consideration Was Given to Tribal Governments?

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    Today's final rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in the Order. Today's final 
rule will not significantly or uniquely affect the communities of 
Indian tribal governments, nor impose substantial direct compliance 
costs on them.

I. Were Federalism Implications Considered in Today's Final Rule?

    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'' are 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.''
    Today's final rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in the Order. Thus, Executive Order 13132 does not apply 
to this final rule.

J. Were Energy Impacts Considered?

    Executive Order 13211, ``Actions Concerning Regulations That Affect 
Energy Supply, Distribution, or Use'' (May 18, 2001), addresses the 
need for regulatory actions to more fully consider the potential energy 
impacts of the proposed rule and resulting actions. Under the Order, 
agencies are required to prepare a Statement of Energy Effects when a 
regulatory action may have significant adverse effects on energy 
supply, distribution, or use, including impacts on price and foreign 
supplies. Additionally, the requirements obligate agencies to consider 
reasonable alternatives to regulatory actions with adverse effects and 
the impacts the alternatives might have upon energy supply, 
distribution, or use.
    Today's final rule applies to a single waste at a single facility 
and is not likely to have any significant adverse impact on factors 
affecting energy supply. EPA believes that Executive Order 13211 is not 
relevant to this action.

VI. Paperwork Reduction Act

    This final rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). Because there are no paperwork requirements as part of 
this final rule, EPA is not required to prepare an Information 
Collection Request (ICR) in support of today's action.

[[Page 42196]]

VII. National Technology Transfer and Advancement Act of 1995

    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 final rule involves environmental monitoring or measurement. 
Consistent with the Agency's Performance Based Measurement System 
(``PBMS''), EPA proposed not to require the use of specific, prescribed 
analytical methods, except when required by regulation in 40 CFR parts 
260 through 270. Therefore, today's final rule allows 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.

VIII. The Congressional Review Act (5 U.S.C. 801 et seq., as Added by 
the Small Business Regulatory Enforcement Fairness Act of 1996)

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States.
    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. 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). A ``major rule'' cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will become effective on the date of publication as a 
final rule in the Federal Register.

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: June 13, 2002.
James S. Kutzman,
Acting Director, Waste Management Division.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

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

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

                               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 June 21,
                                                                        2002. 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).

[[Page 42197]]

 
                                                                       (A) Initial Verification Testing: Nissan
                                                                        must collect and analyze a
                                                                        representative sample from each of the
                                                                        first eight roll-off boxes of Nissan
                                                                        sludge generated in its wastewater
                                                                        treatment system after June 21, 2002.
                                                                        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 roll-offs
                                                                        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.
                                                                       (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, SW., 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.

[[Page 42198]]

 
                                                                       (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. 02-15612 Filed 6-20-02; 8:45 am]
BILLING CODE 6560-50-P