[Federal Register Volume 67, Number 251 (Tuesday, December 31, 2002)]
[Rules and Regulations]
[Pages 79874-79879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32899]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7432-8]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is granting a 
petition submitted by Tokusen USA, Inc. (Tokusen) to exclude from 
hazardous waste control (or delist) a certain solid waste. This final 
rule responds to the petition submitted by Tokusen to delist F006 
dewatered sludge generated from the on-site Wastewater Treatment Plant 
(WWTP) from its electroplating operations.
    After careful analysis and use of the Delisting Risk Assessment 
Software, the EPA has concluded the petitioned waste is not hazardous 
waste when disposed of in Subtitle D landfills. This exclusion applies 
to 670 cubic yards annually of dewatered WWTP sludge resulting from its 
electroplating operations. Accordingly, this final rule excludes the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA) when disposed 
of in Subtitle D landfills.

EFFECTIVE DATE: December 31, 2002.

ADDRESSES: The public docket for this final rule is located at the U.S. 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in the EPA Freedom of 
Information Act review room on the 7th floor from 9 a.m. to 4 p.m., 
Monday through Friday, excluding Federal holidays. Call (214) 665-6444 
for appointments. The reference number for this docket is ``F-02-ARDEL-
TOKUSEN.'' 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 FURTHER INFORMATION CONTACT: For general information, contact 
Catherine E. Carter, U.S. Environmental Protection Agency, 1445 Ross 
Avenue, Dallas, Texas 75202 at (214) 665-6792. For technical 
information concerning this notice, contact Larry K. Landry, U.S. 
Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202, 
(214) 665-8134.

SUPPLEMENTARY INFORMATION:
    The information in this section is organized as follows:

I. Overview Information
    A. What Rule Is EPA Finalizing?
    B. Why Is EPA Approving This Delisting?
    C. What Are the Limits of This Exclusion?
    D. How Will Tokusen Manage the Waste if It Is Delisted?
    E. When Is the Final Delisting Exclusion Effective?
    F. How Does This Final Rule Affect States?
II. Background
    A. What Is a Delisting Petition?
    B. What Regulations Allow Facilities To Delist a Waste?
    C. What Information Must the Generator Supply?
III. EPA's Evaluation of the Waste Information and Data
    A. What Waste Did Tokusen Petition EPA To Delist?
    B. How Much Waste Did Tokusen Propose To Delist?
    C. How Did Tokusen Sample and Analyze the Waste Data in This 
Petition?
IV. Public Comments Received on the Proposed Exclusion
    A. Who Submitted Comments on the Proposed Rule?
    B. Response to Comments

I. Overview Information

A. What Action Is EPA Finalizing?

    After evaluating the petition, EPA proposed, on July 12, 2002 to 
exclude the Tokusen waste from the lists of hazardous waste under 
Sec. Sec.  261.31 and 261.32 (see 65 FR 75897). The EPA is finalizing:
    (1) The decision to grant Tokusen's petition to have its wastewater 
treatment sludge excluded, or delisted, from the definition of a 
hazardous waste, subject to certain continued verification and 
monitoring conditions; and
    (2) the decision to use the Delisting Risk Assessment Software to 
evaluate the potential impact of the petitioned waste on human health 
and the environment. The Agency used this model to predict the 
concentration of hazardous constituents released from the petitioned 
waste, once it is disposed.

B. Why Is EPA Approving This Delisting?

    Tokusen's petition requests a delisting for an F006 listed 
hazardous waste. Tokusen does not believe the petitioned waste meets 
the criteria for which EPA listed it as a hazardous waste. Tokusen also 
believes no additional constituents or factors could cause the waste to 
be hazardous. EPA's review of this petition included consideration of 
the original listing criteria and the additional factors required by 
the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) 
(hereinafter all sectional references are to 40 CFR unless otherwise 
indicated). In making the final delisting determination, EPA also 
evaluated the petitioned waste against the listing criteria and factors 
cited in Sec. Sec.  261.11(a)(2) and (a)(3). Based on this review, the 
EPA agrees with the petitioner that the waste is nonhazardous with 
respect to the original listing criteria. If the EPA had found, based 
on this review, that the waste remained hazardous based on the factors 
for which the waste was originally listed, EPA would have proposed to 
deny the petition. The EPA evaluated the waste with respect to other 
factors or criteria to assess whether there is a reasonable basis to 
believe that such additional factors could cause the waste to be 
hazardous. The EPA considered whether the waste is: (1) Acutely toxic; 
(2) the concentration of the constituents in the waste; (3) their 
tendency to migrate and to bioaccumulate; (4) their persistence in the 
environment once released from the waste; (5) plausible and specific 
types of management of the petitioned waste; (6) the quantities of 
waste generated; and (7) waste variability. The EPA believes the 
petitioned waste does not meet these criteria or the listing criteria. 
EPA's final decision to delist waste from Tokusen's facility is based 
on the information submitted by

[[Page 79875]]

Tokusen in its petition, including descriptions of the dewatered WWTP 
sludge and analytical data from the Conway, Arkansas facility.

C. What Are the Limits of This Exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in Table 1 of 40 CFR part 261 and the 
conditions contained herein are satisfied.

D. How Will Tokusen Manage the Waste if It Is Delisted?

    Tokusen currently sends the petitioned waste (dewatered WWTP 
sludge) to Envirite Corporation, a hazardous landfill in Harvey, 
Illinois. If the delisting exclusion is finalized, Tokusen will dispose 
of the sludge in a permitted solid waste landfill. At this time, 
Tokusen is planning to dispose of the delisted sludge at Waste 
Management Industrial Landfill in Little Rock, Arkansas.

E. When Is the Final Delisting Exclusion Effective?

    This rule is effective December 31, 2002. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA, 42 USCA 
6930(b)(1), allow rules to become effective in less than six months 
after the rule is published when the regulated community does not need 
the six-month period to come into compliance. That is the case here 
because this rule reduces, rather than increases, the existing 
requirements for persons generating hazardous waste. This reduction in 
existing requirements also provides a basis for making this rule 
effective immediately, upon publication, under the Administrative 
Procedure Act, pursuant to 5 USCA 553(d).

F. How Does This Final Rule Affect States?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only States subject to Federal RCRA delisting 
provisions would be affected. This would exclude two categories of 
States: States having a dual system that includes Federal RCRA 
requirements and their own requirements, and States who have received 
EPA authorization to make their own delisting decisions.
    We allow states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 USCA 6929. These more stringent requirements may include a 
provision that prohibits a federally issued exclusion from taking 
effect in the State. Because a dual system (that is, both Federal 
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's 
waste, we urge petitioners to contact the State regulatory authority to 
establish the status of their waste under the State law. Delisting 
petitions approved by the EPA Administrator under 40 CFR 260.22 are 
effective in the State of Arkansas only after the final rule has been 
published in the Federal Register and the rule has been adopted and 
approved by the Arkansas Pollution Control and Ecology Commission in 
Regulation No. 23.
    EPA has also authorized some States (for example, Louisiana, 
Georgia, Illinois) to administer a RCRA delisting program in place of 
the Federal program, that is, to make State delisting decisions. 
Therefore, this exclusion does not apply in those authorized States. If 
Tokusen transports the petitioned waste to or manages the waste in any 
State with delisting authorization, Tokusen must obtain delisting 
authorization from that State before they can manage the waste as 
nonhazardous in the State.

II. Background

A. What Is a Delisting Petition?

    A delisting petition is a request from a generator to EPA or 
another agency with jurisdiction to exclude, or delist, from the RCRA 
list of hazardous waste, waste the generator believes should not be 
considered hazardous under RCRA.

B. What Regulations Allow Facilities to Delist a Waste?

    Under 40 CFR Sec. Sec.  260.20 and 260.22, facilities may petition 
the EPA to remove their wastes from hazardous waste regulation by 
excluding them from the lists of hazardous wastes contained in 
Sec. Sec.  261.31 and 261.32. Specifically, Sec.  260.20 allows any 
person to petition the Administrator to modify or revoke any provision 
of parts 260 through 265 and 268 of Title 40 of the Code of Federal 
Regulations. Section 260.22 provides generators the opportunity to 
petition the Administrator to exclude a waste from a particular 
generating facility from the hazardous waste lists.

C. What Information Must the Generator Supply?

    Petitioners must provide sufficient information to the EPA to allow 
the EPA to determine that the waste to be excluded does not meet any of 
the criteria under which the waste was listed as a hazardous waste. In 
addition, 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.

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

A. What Waste Did Tokusen Petition EPA To Delist?

    On October 24, 2001, Tokusen petitioned the EPA to exclude from the 
lists of hazardous waste contained in Sec. Sec.  261.31 and 261.32, a 
waste by-product (stabilized sludge from the wastewater treatment plant 
in Conway, Arkansas) which falls under the classification of listed 
waste because of the ``derived-from'' rule in RCRA, 40 CFR 261.3. 
Specifically, in its petition, Tokusen, located in Conway, Arkansas, 
requested that EPA grant an exclusion for 670 cubic yards annually of 
dewatered WWTP sludge generated from electroplating operations. The 
resulting waste is listed, in accordance with Sec.  261.3(c)(2)(i) 
(i.e., the ``derived-from'' rule). The waste code of the constituents 
of concern is EPA Hazardous Waste No. F006. The constituents of concern 
for F006 are cadmium, hexavalent chromium, nickel, and cyanide 
(complexed).

B. How Much Waste Did Tokusen Propose To Delist?

    Specifically, in its petition, Tokusen requested that EPA grant a 
conditional exclusion for 670 cubic yards annually of dewatered WWTP 
sludge.

C. How Did Tokusen Sample and Analyze the Waste Data in This Petition?

    To support its petition, Tokusen submitted:
    (1) Historical information on past waste generation and management 
practices;
    (2) Results of the total constituent list for 40 CFR part 264, 
appendix IX volatiles, semivolatiles, metals, pesticides, herbicides, 
and PCBs;
    (3) Results of the constituent list for appendix IX on Toxicity 
Characteristic Leaching Procedure (TCLP) extract for volatiles, 
semivolatiles, and metals;
    (4) Analytical constituents of concern for F006;
    (5) Results from total oil and grease analyses;
    (6) Multiple pH testing for the petitioned waste.

[[Page 79876]]

IV. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule?

    The EPA received public comments on August 6, 2002, from a business 
student with Florida International University.
    The student raised concerns that EPA had reached a quick decision 
to remove the waste from the hazardous list based on data submitted by 
the company. Also, the student felt more concrete evidence was needed 
to delist the waste. She stated that no evidence was given as to any 
test that proves or disproves hazardous content.
    Response: F006 is a listed hazardous waste but the regulations in 
Sec.  260.22 give individual facilities like Tokusen the ability to 
petition for ``delisting.'' The procedures outlined in Sec. Sec.  
260.20 and 260.22 provide EPA with the framework to consider these 
decisions. EPA believes that Tokusen has provided all the data 
requested in Sec. Sec.  260.20 and 260.22 and meets the requirement for 
excluding the waste at this particular facility.
    Tokusen provided analytical data for 5 representative samples of 
the sludge it has petitioned for delisting. This data has undergone 
review for quality control and quality assurance and EPA believes that 
the hazardous constituents detected through the Toxicity 
Characteristics Leaching Procedures (TCLP) as well as the Total 
analyses indicated the waste constituent concentrations do not pose a 
threat to human health and environment based on the risk assessment 
determined using the Delisting Risk Assessment Software (DRAS). We 
believed the potential effects determined from the DRAS model that if 
this waste were released into the environment, it is within the 
acceptable [protectiveness] risk range of 10-5 to 
10-6. Also EPA has required the company to submit samples 
quarterly for the first year and samples annually each subsequent year 
while the company is in business to demonstrate that the waste does not 
exceed the constituent levels listed in Table 1.

V. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions. The final rule to grant an exclusion is not significant, since 
its effect, if promulgated, would be to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. This 
reduction would be achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous waste, thereby enabling this 
facility to manage its waste as nonhazardous. There is no additional 
impact therefore, due to this final rule. Therefore, this proposal 
would not be a significant regulation and no cost/benefit assessment is 
required. The Office of Management and Budget (OMB) has also exempted 
this rule from the requirement for OMB review under section (6) of 
Executive Order 12866.

VI. Regulatory Flexibility 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 which 
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 the rule will not 
have any impact on small entities.
    This rule if promulgated, will not have an adverse economic impact 
on small entities since its effect would be to reduce the overall costs 
of EPA's hazardous waste regulations. Accordingly, I hereby certify 
that this regulation, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. This 
regulation therefore, does not require a regulatory flexibility 
analysis.

VII. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated 
with this final 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.

VIII. 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 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. The EPA 
finds that this final delisting decision is deregulatory in nature and 
does not impose any enforceable duty upon State, local, or tribal 
governments or the private sector. In addition, the final delisting 
does not establish any regulatory requirements for small governments 
and so does not require a small government agency plan under UMRA 
section 203.

IX. Congressional Review Act

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

X. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with

[[Page 79877]]

representatives of affected state, local, and tribal governments, the 
nature of their concerns, copies of written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' This rule does not create a 
mandate on state, local or tribal governments. The rule does not impose 
any enforceable duties on these entities. Accordingly, the requirements 
of section 1(a) of Executive Order 12875 do not apply to this rule.

XI. 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.

XII. Executive Order 13084

    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. This 
rule 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 rule.

XIII. National Technology Transfer and Advancement Act

    Under section 12(d) if the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) developed or adopted by voluntary consensus standard bodies. 
Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires that Agency to provide 
Congress, through the OMB, an explanation of the reasons for not using 
such standards.
    This rule does not establish any new technical standards and thus, 
the Agency has no need to consider the use of voluntary consensus 
standards in developing this final rule.

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: December 20, 2002.
Stephen A. Gilrein,
Acting Director, Multimedia Planning and Permitting Division (6PD).

    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 waste 
stream in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 
260.22

           Table 1.--Waste Excluded From Non-Specific Sources
------------------------------------------------------------------------
          Facility                  Address          Waste description
------------------------------------------------------------------------
Tokusen USA, Inc.,..........  Conway, AR........  Dewatered wastewater
                                                   treatment plant
                                                   (WWTP) sludge (EPA
                                                   Hazardous Waste Nos.
                                                   F006) generated at a
                                                   maximum annual rate
                                                   of 670 cubic yards
                                                   per calendar year
                                                   after December 31,
                                                   2002 and disposed of
                                                   in a Subtitle D
                                                   landfill.
                                                  For the exclusion to
                                                   be valid, Tokusen
                                                   must implement a
                                                   testing program that
                                                   meets the following
                                                   Paragraphs:
                                                  (1) Delisting Levels:
                                                   All leachable
                                                   concentrations for
                                                   those constituents
                                                   listed below in (i)
                                                   and (ii) must not
                                                   exceed the following
                                                   levels (mg/l). The
                                                   petitioner must use
                                                   an acceptable
                                                   leaching method, for
                                                   example SW-846,
                                                   Method 1311 to
                                                   measure constituents
                                                   in the waste
                                                   leachate.
                                                  Dewatered WWTP sludge
                                                   (i) Inorganic
                                                   Constituents Antimony-
                                                   0.360; Arsenic-
                                                   0.0654; Barium-51.1;
                                                   Chromium-5.0; Cobalt-
                                                   15.7; Copper-7,350;
                                                   Lead-5.0; Nickel-
                                                   19.7; Selenium-1.0;
                                                   Silver-2.68; Vanadium-
                                                   14.8; Zinc-196.
                                                  (ii) Organic
                                                   Constituents 1,4
                                                   Dichlorobenzene-3.03;
                                                   hexachlorobutadiene-0
                                                   .21.
                                                  (2) Waste Holding and
                                                   Handling:
                                                  Tokusen must store the
                                                   dewatered WWTP sludge
                                                   as described in its
                                                   RCRA permit, or
                                                   continue to dispose
                                                   of as hazardous all
                                                   dewatered WWTP sludge
                                                   generated, until they
                                                   have completed
                                                   verification testing
                                                   described in
                                                   Paragraph (3)(A) and
                                                   (B), as appropriate,
                                                   and valid analyses
                                                   show that paragraph
                                                   (1) is satisfied.

[[Page 79878]]

 
                                                  (B) Levels of
                                                   constituents measured
                                                   in the samples of the
                                                   dewatered WWTP sludge
                                                   that do not exceed
                                                   the levels set forth
                                                   in Paragraph (1) are
                                                   non-hazardous.
                                                   Tokusen can manage
                                                   and dispose the non-
                                                   hazardous dewatered
                                                   WWTP sludge according
                                                   to all applicable
                                                   solid waste
                                                   regulations.
                                                  (C) If constituent
                                                   levels in a sample
                                                   exceed any of the
                                                   delisting levels set
                                                   in Paragraph (1),
                                                   Tokusen must retreat
                                                   the batches of waste
                                                   used to generate the
                                                   representative sample
                                                   (according to SW-846
                                                   methodologies) until
                                                   it meets the levels.
                                                   Tokusen must repeat
                                                   the analyses of the
                                                   treated waste.
                                                  (D) If the facility
                                                   has not treated the
                                                   waste, Tokusen must
                                                   manage and dispose
                                                   the waste generated
                                                   under Subtitle C of
                                                   RCRA.
                                                  (3) Verification
                                                   Testing Requirements:
                                                   Tokusen must perform
                                                   sample collection and
                                                   analyses, including
                                                   quality control
                                                   procedures, according
                                                   to SW-846
                                                   methodologies. If EPA
                                                   judges the process to
                                                   be effective under
                                                   the operating
                                                   conditions used
                                                   during the initial
                                                   verification testing,
                                                   Tokusen may replace
                                                   the testing required
                                                   in Paragraph (3)(A)
                                                   with the testing
                                                   required in Paragraph
                                                   (3)(B). Tokusen must
                                                   continue to test as
                                                   specified in
                                                   Paragraph (3)(A)
                                                   until and unless
                                                   notified by EPA in
                                                   writing that testing
                                                   in Paragraph (3)(A)
                                                   may be replaced by
                                                   Paragraph (3)(B).
                                                  (A) Initial
                                                   Verification Testing:
                                                   After EPA grants the
                                                   final exclusion,
                                                   Tokusen must do the
                                                   following:
                                                  (i) Collect and
                                                   analyze composites of
                                                   the dewatered WWTP
                                                   sludge.
                                                  (ii) Make two
                                                   composites of
                                                   representative grab
                                                   samples (according to
                                                   SW-846 methodologies)
                                                   collected.
                                                  (iii) Analyze the
                                                   waste, before
                                                   disposal, for all of
                                                   the constituents
                                                   listed in Paragraph
                                                   1.
                                                  (iv) Sixty (60) days
                                                   after this exclusion
                                                   becomes final, report
                                                   to EPA the
                                                   operational and
                                                   analytical test data,
                                                   including quality
                                                   control information.
                                                  (B) Subsequent
                                                   Verification Testing:
                                                   Following written
                                                   notification by EPA,
                                                   Tokusen may
                                                   substitute the
                                                   testing conditions in
                                                   (3)(B) for (3)(A).
                                                   Tokusen must continue
                                                   to monitor operating
                                                   conditions, and
                                                   analyze
                                                   representative
                                                   samples (according to
                                                   SW-846 methodologies)
                                                   each quarter of
                                                   operation during the
                                                   first year of waste
                                                   generation. The
                                                   samples must
                                                   represent the waste
                                                   generated during the
                                                   quarter.
                                                  (C) Termination of
                                                   Organic Testing:
                                                  (i) Tokusen must
                                                   continue testing as
                                                   required under
                                                   Paragraph (3)(B) for
                                                   organic constituents
                                                   in Paragraph
                                                   (1)(A)(ii), until the
                                                   analytical results
                                                   submitted under
                                                   Paragraph (3)(B) show
                                                   a minimum of two
                                                   consecutive samples
                                                   below the delisting
                                                   levels in Paragraph
                                                   (1)(A)(i), Tokusen
                                                   may then request that
                                                   EPA stop quarterly
                                                   organic testing.
                                                   After EPA notifies
                                                   Tokusen in writing,
                                                   the company may end
                                                   quarterly organic
                                                   testing.
                                                  (ii) Following
                                                   cancellation of the
                                                   quarterly testing,
                                                   Tokusen must continue
                                                   to test a
                                                   representative
                                                   composite sample
                                                   (according to SW-846
                                                   methodologies) for
                                                   all constituents
                                                   listed in Paragraph
                                                   (1) annually (by
                                                   twelve months after
                                                   final exclusion).
                                                  (4) Changes in
                                                   Operating Conditions:
                                                   If Tokusen
                                                   significantly changes
                                                   the process described
                                                   in its petition or
                                                   starts any processes
                                                   that generate(s) the
                                                   waste that may or
                                                   could affect the
                                                   composition or type
                                                   of waste generated as
                                                   established under
                                                   Paragraph (1) (by
                                                   illustration, but not
                                                   limitation, changes
                                                   in equipment or
                                                   operating conditions
                                                   of the treatment
                                                   process), they must
                                                   notify EPA in
                                                   writing; they may no
                                                   longer handle the
                                                   waste generated from
                                                   the new process as
                                                   nonhazardous until
                                                   the waste meets the
                                                   delisting levels set
                                                   in Paragraph (1) and
                                                   they have received
                                                   written approval to
                                                   do so from EPA.
                                                  (5) Data Submittals:
                                                   Tokusen must submit
                                                   the information
                                                   described below. If
                                                   Tokusen fails to
                                                   submit the required
                                                   data within the
                                                   specified time or
                                                   maintain the required
                                                   records on-site for
                                                   the specified time,
                                                   EPA, at its
                                                   discretion, will
                                                   consider this
                                                   sufficient basis to
                                                   reopen the exclusion
                                                   as described in
                                                   Paragraph 6. Tokusen
                                                   must:
                                                  (A) Submit the data
                                                   obtained through
                                                   Paragraph 3 to the
                                                   Region 6 Delisting
                                                   Program, EPA, 1445
                                                   Ross Avenue, Dallas,
                                                   Texas 75202-2733,
                                                   Mail Code, (6PD-O)
                                                   within the time
                                                   specified.
                                                  (B) Compile records of
                                                   operating conditions
                                                   and analytical data
                                                   from Paragraph (3),
                                                   summarized, and
                                                   maintained on-site
                                                   for a minimum of five
                                                   years.
                                                  (C) Furnish these
                                                   records and data when
                                                   EPA or the State of
                                                   Arkansas request them
                                                   for inspection.
                                                  (D) A company official
                                                   having supervisory
                                                   responsibility should
                                                   send along with all
                                                   data a signed copy of
                                                   the following
                                                   certification
                                                   statement, to attest
                                                   to the truth and
                                                   accuracy of the data
                                                   submitted:
                                                  Under civil and
                                                   criminal penalty of
                                                   law for the making or
                                                   submission of false
                                                   or fraudulent
                                                   statements or
                                                   representations
                                                   (pursuant to the
                                                   applicable provisions
                                                   of the Federal Code,
                                                   which include, but
                                                   may not be limited
                                                   to, 18 U.S.C. 1001
                                                   and 42 U.S.C. 6928),
                                                   I certify that the
                                                   information contained
                                                   in or accompanying
                                                   this document is
                                                   true, accurate and
                                                   complete.
                                                  As to the (those)
                                                   identified section(s)
                                                   of this document for
                                                   which I cannot
                                                   personally verify its
                                                   (their) truth and
                                                   accuracy, I certify
                                                   as the company
                                                   official having
                                                   supervisory
                                                   responsibility for
                                                   the persons who,
                                                   acting under my
                                                   direct instructions,
                                                   made the verification
                                                   that this information
                                                   is true, accurate and
                                                   complete.
                                                  If any of this
                                                   information is
                                                   determined by EPA in
                                                   its sole discretion
                                                   to be false,
                                                   inaccurate or
                                                   incomplete, and upon
                                                   conveyance of this
                                                   fact to the company,
                                                   I recognize and agree
                                                   that this exclusion
                                                   of waste will be void
                                                   as if it never had
                                                   effect or to the
                                                   extent directed by
                                                   EPA and that the
                                                   company will be
                                                   liable for any
                                                   actions taken in
                                                   contravention of the
                                                   company's RCRA and
                                                   CERCLA obligations
                                                   premised upon the
                                                   company's reliance on
                                                   the void exclusion.
                                                  (6) Reopener

[[Page 79879]]

 
                                                  (A) If, anytime after
                                                   disposal of the
                                                   delisted waste,
                                                   Tokusen possesses or
                                                   is otherwise made
                                                   aware of any
                                                   environmental data
                                                   (including but not
                                                   limited to leachate
                                                   data or groundwater
                                                   monitoring data) or
                                                   any other data
                                                   relevant to the
                                                   delisted waste
                                                   indicating that any
                                                   constituent
                                                   identified for the
                                                   delisting
                                                   verification testing
                                                   is at a level higher
                                                   than the delisting
                                                   level allowed by the
                                                   Regional
                                                   Administrator or his
                                                   delegate in granting
                                                   the petition, then
                                                   the facility must
                                                   report the data, in
                                                   writing, to the
                                                   Regional
                                                   Administrator or his
                                                   delegate within 10
                                                   days of first
                                                   possessing or being
                                                   made aware of that
                                                   data.
                                                  (B) If the annual
                                                   testing of the waste
                                                   does not meet the
                                                   delisting
                                                   requirements in
                                                   Paragraph 1, Tokusen
                                                   must report the data,
                                                   in writing, to the
                                                   Regional
                                                   Administrator or his
                                                   delegate within 10
                                                   days of first
                                                   possessing or being
                                                   made aware of that
                                                   data.
                                                  (C) If Tokusen fails
                                                   to submit the
                                                   information described
                                                   in paragraphs (5),
                                                   (6)(A) or (6)(B) or
                                                   if any other
                                                   information is
                                                   received from any
                                                   source, the Regional
                                                   Administrator or his
                                                   delegate will make a
                                                   preliminary
                                                   determination as to
                                                   whether the reported
                                                   information requires
                                                   Agency action to
                                                   protect human health
                                                   or the environment.
                                                   Further action may
                                                   include suspending,
                                                   or revoking the
                                                   exclusion, or other
                                                   appropriate response
                                                   necessary to protect
                                                   human health and the
                                                   environment.
                                                  (D) If the Regional
                                                   Administrator or his
                                                   delegate determines
                                                   that the reported
                                                   information does
                                                   require Agency
                                                   action, the Regional
                                                   Administrator or his
                                                   delegate will notify
                                                   the facility in
                                                   writing of the
                                                   actions the Regional
                                                   Administrator or his
                                                   delegate believes are
                                                   necessary to protect
                                                   human health and the
                                                   environment. The
                                                   notice shall include
                                                   a statement of the
                                                   proposed action and a
                                                   statement providing
                                                   the facility with an
                                                   opportunity to
                                                   present information
                                                   as to why the
                                                   proposed Agency
                                                   action is not
                                                   necessary. The
                                                   facility shall have
                                                   10 days from the date
                                                   of the Regional
                                                   Administrator or his
                                                   delegate's notice to
                                                   present such
                                                   information.
                                                  (E) Following the
                                                   receipt of
                                                   information from the
                                                   facility described in
                                                   paragraph (6)(D) or
                                                   (if no information is
                                                   presented under
                                                   paragraph (6)(D)) the
                                                   initial receipt of
                                                   information described
                                                   in paragraphs (5),
                                                   (6)(A) or (6)(B), the
                                                   Regional
                                                   Administrator or his
                                                   delegate will issue a
                                                   final written
                                                   determination
                                                   describing the Agency
                                                   actions that are
                                                   necessary to protect
                                                   human health or the
                                                   environment. Any
                                                   required action
                                                   described in the
                                                   Regional
                                                   Administrator or his
                                                   delegate's
                                                   determination shall
                                                   become effective
                                                   immediately, unless
                                                   the Regional
                                                   Administrator or his
                                                   delegate provides
                                                   otherwise.
                                                  (7) Notification
                                                   Requirements: Tokusen
                                                   must do following
                                                   before transporting
                                                   the delisted waste.
                                                   Failure to provide
                                                   this notification
                                                   will result in a
                                                   violation of the
                                                   delisting petition
                                                   and a possible
                                                   revocation of the
                                                   decision:
                                                  (A) Provide a one-time
                                                   written notification
                                                   to any State
                                                   Regulatory Agency to
                                                   which or through
                                                   which they will
                                                   transport the
                                                   delisted waste
                                                   described above for
                                                   disposal, 60 days
                                                   before beginning such
                                                   activities.
                                                  (B) Update the one-
                                                   time written
                                                   notification if they
                                                   ship the delisted
                                                   waste into a
                                                   different disposal
                                                   facility.
 
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[FR Doc. 02-32899 Filed 12-30-02; 8:45 am]
BILLING CODE 6560-50-P