[Federal Register Volume 68, Number 105 (Monday, June 2, 2003)]
[Rules and Regulations]
[Pages 32645-32656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13568]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-7505-6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on a petition submitted by 
Bekaert Steel, Dyersburg, Tennessee (``Bekaert''), to exclude (or 
``delist'' a certain hazardous waste from the lists of hazardous 
wastes. Bekaert will generate the petitioned waste by treating 
wastewater from Bekaert's steel plant, copper electroplating area where 
steel wire is used to manufacture copper and zinc coated steel wire for 
the tire industry. The waste so generated is a wastewater treatment 
sludge that meets the definition of F006. Bekaert petitioned EPA to 
grant a generator-specific delisting, because Bekaert believes that its 
F006 waste does not meet the criteria for which this type of waste was 
listed. EPA reviewed all of the waste-specific information provided by 
Bekaert, performed calculations, and determined that the waste could be 
disposed in a landfill without harming human health and the 
environment. This action responds to Bekaert's petition to delist this 
waste on a ``generator-specific'' basis from the hazardous waste lists, 
and the approved delisting petition for the Bekaert, Rogers, Arkansas 
facility which utilizes an identical process. EPA took into account the 
final delisting levels which are based on the EPACML model as performed 
by Region 6. Unless adverse comments are received with sixty days of 
this Direct Final Rule and in accordance with the conditions specified 
in this final rule, Bekaert's petitioned waste is excluded from the 
requirements of hazardous waste regulations under Subtitle C of the 
Resource Conservation and Recovery Act (RCRA).

DATES: This rule is effective on August 1, 2003 without further notice, 
unless EPA receives adverse comment by July 17, 2003. If we receive 
adverse comment, we will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: The RCRA regulatory docket for this final rule is located at 
the EPA Library, U.S. Environmental

[[Page 32646]]

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 R4-03-01-BekaertF. 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 
, please see below.

FOR FURTHER INFORMATION CONTACT: For general and technical information 
concerning this final rule, please contact David Langston, 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) 562-8588, 
or call, toll free, (800) 241-1754, and leave a message, with your name 
and phone number, for David Langston to return your call. Questions may 
also be e-mailed to David Langston at [email protected]. You may 
also contact Nina Vo,Tennessee Department of Environment and 
Conservation, Division of Solid Waste Management, 5th Floor L&C Tower 
401 Church Street, Nashville, Tennessee 37243-1535. 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 Laws and Regulations Give EPA the Authority to Delist 
Wastes?
    B. How did EPA Evaluate this Petition?
    1. What is the EPACML model that EPA used in the past for 
determining delisting levels?
    2. What is the DRAS that uses the new EPACMTP model to calculate 
not only delisting levels, but also to evaluate the effects of the 
waste on human health and the environment?
    3. Why is the EPACMTP an improvement over the EPACML?
    4. Where can technical details on the EPACMTP be found?
    5. What method is EPA proposing to use to determine delisting 
levels for this petitioned waste?
II. Disposition of Delisting Petition
    A. Summary of Delisting Petition Submitted by Bekaert Steel 
Corporation, Dyersburg, Tennessee (Bekaert)
    B. What Delisting Levels Did EPA Obtain with DRAS and EPACMTP?
    C. Conclusion
III. Limited Effect of Federal Exclusion
    Will this Rule Apply in All States?
IV. Effective Date
V. Paperwork Reduction Act
VI. National Technology Transfer and Advancement Act
VII. Unfunded Mandates Reform Act
VIII. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement and Fairness Act
IX. Executive Order 12866
X. Executive Order 13045
XI. Executive Order 13084 Affecting Indian Tribal Governments
XII. Submission to Congress and General Accounting Office
XIII. Executive Order 13132

I. Background

A. What Laws and Regulations Give EPA the Authority to Delist Wastes?

    On January 16, 1981, as part of its final and interim final 
regulations implementing section 3001 of RCRA, EPA published an amended 
list of hazardous wastes from non-specific and specific sources. This 
list has been amended several times, and is published in 40 CFR 261.31 
and 261.32. These wastes are listed as hazardous because they exhibit 
one or more of the characteristics of hazardous wastes identified in 
subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and 
toxicity) or meet the criteria for listing contained in Sec.  261.11 
(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be. For this reason, Sec. Sec.  260.20 and 260.22 
provide an exclusion procedure, allowing persons to demonstrate that a 
specific waste from a particular generating facility \1\ should not be 
regulated as a hazardous waste.
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    \1\ Although no one produces hazardous waste intentionally, many 
industrial processes result in the production of hazardous waste, as 
well as useful products and services. A ``generating facility'' is a 
facility in which hazardous waste is produced, and a ``generator'' 
is a person who produces hazardous waste or causes hazardous waste 
to be produced at a particular place. Please see 40 CFR 260.10 for 
regulatory definitions of ``generator,'' ``facility,'' ``person,'' 
and other terms related to hazardous waste, and 40 CFR part 262 for 
regulatory requirements for generators.
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    To have their wastes excluded, petitioners must show, first, that 
wastes generated at their facilities do not meet any of the criteria 
for which the wastes were listed. See Sec.  260.22(a) and the 
background documents for the listed wastes. Second, the Administrator 
must determine, where he/she has a reasonable basis to believe that 
factors (including additional constituents) other than those for which 
the waste was listed could cause the waste to be a hazardous waste, 
that such factors do not warrant retaining the waste as a hazardous 
waste. Accordingly, a petitioner also must demonstrate that the waste 
does not exhibit any of the hazardous waste characteristics (i.e., 
ignitability, reactivity, corrosivity, and toxicity), and must present 
sufficient information for the EPA to determine whether the waste 
contains any other toxicants at hazardous levels. See Sec.  260.22(a), 
42 U.S.C. 6921(f), and the background documents for the listed wastes. 
Although wastes which are ``delisted'' (i.e., excluded) have been 
evaluated to determine whether or not they exhibit any of the 
characteristics of hazardous waste, generators remain obligated under 
RCRA to determine whether or not their wastes continue to be 
nonhazardous based on the hazardous waste characteristics (i.e., 
characteristics which may be promulgated subsequent to a delisting 
decision.)
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See Sec.  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 Sec. Sec.  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

[[Page 32647]]

program in lieu of the Federal program. On March 11, 1996, the Regional 
Administrator of EPA, Region 4, redelegated delisting authority to the 
Director of the Waste Management Division (Regional Delegation of 
Authority 8-19).

B. How Did EPA Evaluate This Petition?

    This petition requests a delisting for a hazardous waste listed as 
F006. In making the initial delisting determination, EPA evaluated the 
petitioned waste against the listing criteria and factors cited in 
Sec.  261.11 (a)(2) and (a)(3). Based on this review, the EPA agrees 
with the petitioner that the waste is nonhazardous with respect to the 
original listing criteria. (If EPA had found, based on this review, 
that the waste remained hazardous based on the factors for which the 
waste was originally listed, EPA would have proposed to deny the 
petition.) EPA then evaluated the waste with respect to other factors 
or criteria to assess whether there is a reasonable basis to believe 
that such additional factors could cause the waste to be hazardous. See 
Sec.  260.22 (a) and (d). The EPA considered whether the waste is 
acutely toxic, and considered the toxicity of the constituents, the 
concentration of the constituents in the waste, their tendency to 
migrate and to bioaccumulate, their persistence in the environment once 
released from the waste, plausible and specific types of management of 
the petitioned waste, the quantities of waste generated, and waste 
variability.
1. What Is the EPACML Model That EPA Used in the Past for Determining 
Delisting Levels?
    In the past, EPA used the EPA Composite Model for Landfills 
(EPACML) fate and transport model, modified for delisting, as one 
approach for determining the delisting levels for petitioned waste. See 
56 FR 32993-33012, July 18, 1991, for details on the use of the EPACML 
model to determine the concentrations of constituents in a waste that 
will not result in groundwater contamination. With the EPACML approach, 
as used in the past, EPA calculated a delisting level for each 
hazardous constituent by using the maximum estimated waste volume to 
determine a Dilution Attenuation Factor (DAF) from a table of waste 
volumes and DAFs previously calculated by the EPACML model, as modified 
for delisting. See 56 FR 32993-33012, July 18, 1991. The maximum 
estimated waste volume is the maximum number of cubic yards of 
petitioned waste to be disposed of each year. The delisting level for 
each constituent was equal to the DAF multiplied by the maximum 
contaminant level (MCL) which the Safe Drinking Water Act allows for 
that constituent in drinking water. The delisting level is a 
concentration in the waste leachate that will not cause the MCL to be 
exceeded in groundwater underneath a landfill where the waste is 
disposed. This method of calculating delisting levels resulted in 
conservative levels that were protective of groundwater, because the 
model did not assume that the landfill had the controls required of 
Subtitle D landfills. A Subtitle D landfill is a landfill subject to 
RCRA Subtitle D nonhazardous waste regulations, and to State and local 
nonhazardous waste regulations.
2. What Is the DRAS That Uses the New EPACMTP Model To Calculate Not 
Only Delisting Levels, But Also To Evaluate the Effects of the Waste on 
Human Health and the Environment?
    The EPA is proposing to use the Delisting Risk Assessment Software 
(DRAS),\2\ developed by EPA, Region 6, to evaluate this delisting 
petition. The DRAS uses a new model, called the EPA Composite Model for 
Leachate Migration with Transformation Products (EPACMTP). The EPACMTP 
improves on the EPACML model in several ways. EPA is proposing to use 
the DRAS to calculate delisting levels and to evaluate the impact of 
Bekaert's petitioned waste on human health and the environment. 
Delisting levels are the maximum allowable concentrations for hazardous 
constituents in the waste, so that disposal in a landfill will not harm 
human health and the environment by contaminating groundwater, surface 
water, or air.
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    \2\ For more information on DRAS and EPACMTP, please see 65 FR 
75637-75651, December 4, 2000 and 65 FR 58015-58031, September 27, 
2000. The December 4, 2000 Federal Register discusses the key 
enhancements of the EPACMTP and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR FR proposal 
docket (60 FR 66344, December 21, 1995). URL addresses for Region 6 
delisting guidance and software are the following:
    1. Delisting Guidance Manual http://www.epa.gov/earthlr6/6pd/rcra_c/pd-o/dlistpdf.htm
    2. Delisting Risk Assessment Software (DRAS) http://www.epa.gov/Arkansas/6pd/rcra_c/pd-o/dras/dras.htm
    3. DRAS Technical Support Document (DTSD) http://www.epa.gov/earthlr6/6pd/rcra_c/pd-o/dtsd.htm
    4. DRAS Users Guide http://www.epa.gov/earthlr6/6pd/rcra_c/pd-o/uguide.pdf Region 6 has made them available to the public, free of 
charge.
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    Today's proposal provides background information on the mechanics 
of the DRAS, and the use of the DRAS in delisting decision-making. 
Please see the EPA, Region 6, RCRA Delisting Technical Support Document 
(RDTSD) for a complete discussion of the DRAS calculation methods. The 
RDTSD, and Federal Registers, 65 FR 75637-75651, December 4, 2000, and 
65 FR 58015-58031, September 27, 2000, are the sources of the DRAS 
information presented in today's preamble, and are included in the RCRA 
regulatory docket for this proposed rule.
    The DRAS performs a risk assessment for petitioned wastes that are 
disposed of in the two waste management units of concern: surface 
impoundments for liquid wastes and landfills for non-liquid wastes. 
Bekaert's petitioned waste is solid, not liquid, and will be disposed 
in a landfill; therefore, only the application of DRAS to landfills 
will be discussed in this preamble.
    DRAS calculates releases from solid-phase wastes in a landfill, 
with the following assumptions: (1) The wastes are disposed in a 
Subtitle D landfill and covered with a 2-foot-thick native soil layer; 
(2) the landfill is unlined or effectively unlined due to a liner that 
will eventually completely fail. The two parameters used to 
characterize landfills are (1) area and (2) depth (the thickness of the 
waste layer). Data to characterize landfills were obtained from a 
nationwide survey of industrial Subtitle D landfills.\3\ Parameters and 
assumptions used to estimate infiltration of leachate from a landfill 
are provided in the EPACMTP Background Document and User's Guide, 
Office of Solid Waste, U.S. EPA, Washington, DC, September 1996.
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    \3\ Nationwide Survey of Industrial Subtitle D Landfills, 
Westat, 1987
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    DRAS uses the EPACMTP model to simulate the fate and transport of 
dissolved contaminants from a point of release at the base of a 
landfill, through the unsaturated zone and underlying groundwater, to a 
receptor well at an arbitrary downstream location in the aquifer (the 
rock formation in which the groundwater is located). DRAS evaluates, 
with the EPACMTP model, the groundwater exposure concentrations at the 
receptor well that result from the chemical release and transport from 
the landfill (Application of EPACMTP to Region 6 Delisting Program: 
Development of Waste Volume-Specific Dilution Attenuation Factors, U.S. 
EPA, August 1996). For the purpose of delisting determinations, 
receptor well concentrations for both carcinogens and non-carcinogens 
from finite-source degraders and non-degraders are determined with this 
model. Delisted waste is a finite source, because in a finite period of 
time, the

[[Page 32648]]

waste's constituents will leach and move out of the landfill. Since EPA 
has made a final decision to delist Bekaert's F006 waste, Bekaert must 
meet the delisting levels and dispose of the waste in a Subtitle D 
landfill, because EPA determined the delisting levels based on a 
landfill model.
3. Why Is the EPACMTP an Improvement Over the EPACML?
    The EPACMTP includes three major categories of improvements over 
the EPACML. The improvements include:

1--Incorporation of additional fate and transport processes (e.g., 
degradation of chemical constituents; fate and transport of metals);
2--Use of enhanced flow and transport equations (e.g., for calculating 
transport in three dimensions); and
3--Revision of the Monte Carlo methodology (e.g., to allow use of site-
specific, waste-specific data) (EPACMTP Background Document and User's 
Guide, Office of Solid Waste, U.S. EPA, Washington, DC, September 
1996).

    A summary of the key enhancements which have been implemented in 
the EPACMTP is presented here and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR Federal 
Register proposal docket (60 FR 66344, December 21, 1995). For more 
information, please contact David Langston, North Enforcement and 
Compliance Section, (Mail Code 4WD-RCRA), RCRA Enforcement and 
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam 
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 
30303, (404) 562-8588, or call, toll free, (800) 241-1754, and leave a 
message, with your name and phone number, for David Langston to return 
your call. You may also contact him by e-mail: [email protected].
    The EPACML accounts for: one-dimensional steady and uniform 
advective flow; contaminant dispersion in the longitudinal, lateral, 
and vertical directions; and sorption. However, advances in groundwater 
fate and transport have been made in recent years and EPA proposes and 
requests public comment on the use of the EPACMTP, which is a more 
advanced groundwater fate and transport model, for this RCRA delisting.
    The EPACML was limited to conditions of uniform groundwater flow. 
It could not handle accurately the conditions of significant 
groundwater mounding and non-uniform groundwater flow due to a high 
rate of infiltration from the waste disposal units. These conditions 
increase the transverse horizontal, as well as the vertical, spreading 
of a contaminant plume.
    The EPACMTP model overcomes the deficiencies of the EPACML in the 
following way: The subsurface as modeled with the EPACMTP consists of 
an unsaturated zone beneath a landfill and a saturated zone, the 
underlying water table aquifer. Contaminants move vertically downward 
through the unsaturated zone to the water table. The EPACMTP simulates 
one-dimensional, vertically downward flow and transport of contaminants 
in the unsaturated zone, as well as two-dimensional or three-
dimensional groundwater flow and contaminant transport in the 
underlying saturated zone. The EPACML used a saturated zone module that 
was based on a Gaussian distribution of the concentration of a chemical 
constituent in the saturated zone. The module also used an 
approximation to account for the initial mixing of the contaminant 
entering at the water table (saturated zone) underneath the waste unit. 
The module accounting for initial mixing in the EPACML could lead to 
unrealistic groundwater concentrations. The enhanced EPACMTP model 
incorporates a direct linkage between the unsaturated zone and 
saturated zone modules which overcomes these limitations of the EPACML. 
The following mechanisms affecting contaminant migration are accounted 
for in the EPACMTP model: transport by advection and dispersion, 
retardation resulting from reversible linear or nonlinear equilibrium 
sorption on the soil and aquifer solid phase, and biochemical 
degradation processes. The EPACML did not account for biochemical 
degradation, and did not account for sorption as accurately as the 
EPACMTP.
    The EPACMTP consists of four major components:

1--A module that performs one-dimensional analytical and numerical 
solutions for water flow and contaminant transport in the unsaturated 
zone beneath a waste management unit;
2--A numerical module for steady-state groundwater flow subject to 
recharge from the unsaturated zone;
3--A module of analytical and numerical solutions for contaminant 
transport in the saturated zone; and
4--A Monte Carlo module for assessing the effect of the uncertainty 
resulting from variations in model parameters on predicted receptor 
well concentrations.
4. Where Can Technical Details on the EPACMTP Be Found?
    For more information on DRAS and EPACMTP, please see 65 FR 75637-
75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000; and 66 
FR 9781-9798, February 12, 2001. The December 4, 2000 Federal Register 
discusses the key enhancements of the EPACMTP and the details are 
provided in the background documents to the proposed 1995 Hazardous 
Waste Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR FR proposal 
docket (60 FR 66344, December 21, 1995) A summary of DRAS is presented 
in 66 FR 9781-9798, February 12, 2001. Footnote 2 in Preamble section 
I.B.2. above lists the URL addresses for Region 6 guidance on DRAS.
5. What Method Is EPA Proposing To Use To Determine Delisting Levels 
for This Petitioned Waste?
    Bekaert submitted to the EPA analytical data from its Dyersburg, 
Tennessee plant and the Rogers, Arkansas plant. Samples of wastewater 
treatment sludge were collected from roll-off containers over a one-
month period. A summary of analytical data is presented in Table 1 of 
section II below, with analytical details in the Table footnotes.
    After reviewing the analytical data and information on processes 
and raw materials that Bekaert submitted in the delisting petition, EPA 
developed a list of constituents of concern and calculated delisting 
levels and risks using DRAS and EPACMTP DAFs as described above. EPA 
requests public comment on this proposed method of calculating 
delisting levels and risks for Bekaert's petitioned waste.
    EPA considered two additional methods of evaluating Bekaert's 
delisting petition and determining delisting levels: (1) Setting limits 
on total concentrations of constituents in the waste that are more 
conservative than results obtained by DRAS for total concentrations; 
and (2) setting delisting levels at the Land Disposal Restrictions 
(LDR) Universal Treatment Standards (UTS) levels in 40 CFR 268.48. The 
UTS levels for Bekaert's constituents of concern are the following:

Arsenic: 5.0 mg/l TCLP; Barium: 21 mg/l TCLP; Cadmium: 0.11 mg/l TCLP; 
Chromium: 0.60 mg/l TCLP; Cyanide Total: 590 mg/kg; Cyanide Amenable 30 
mg/kg; Lead: 0.75 mg/l

[[Page 32649]]

TCLP; Nickel: 11 mg/l TCLP; Silver: 0.14 mg/l TCLP; Vanadium: 1.6 mg/l; 
Zinc: 4.3 mg/l TCLP.

II. Disposition of Delisting Petition

A. Summary of Delisting Petition Submitted by Bekaert Steel 
Corporation, Dyersburg, Tennessee (Bekaert)

    Bekaert initially petitioned EPA, Region 6, in September 11, 1995, 
to exclude from the Rogers, Arkansas facility, a maximum annual weight 
of 1,250 cubic yards of its F006 waste, on a generator-specific basis, 
from the lists of hazardous wastes in 40 CFR part 261, subpart D. 
Because of the identical construction and operation of Rogers, Arkansas 
and the Dyersburg, Tennessee facilities, Bekaert petitioned EPA, Region 
4, in October 28, 2002, to consider a delisting based on equivalent 
data and operations. Bekaert petitioned the EPA to exclude from the 
lists of hazardous wastes contained in 40 CFR 261.31 and 261.32, its 
wastewater treatment sludges from its electroplating operations. 
Specifically, in its petition, Bekaert petitioned the Agency to exclude 
its wastewater treatment filter cake presently listed as EPA Hazardous 
Waste No. F006--``Wastewater treatment sludges from electroplating 
operations except from the following processes: (1) Sulfuric acid 
anodizing of aluminum; (2) tin plating on carbon steel; (3) zinc 
plating (segregated basis) on carbon steel; (5) cleaning/stripping 
associated with tin, zinc, and aluminum plating on carbon steel; and 
(6) chemical etching and milling of aluminum.'' The listed constituents 
of concern for EPA Hazardous Waste No. F006 are: cadmium, hexavalent 
chromium, nickel and cyanide (complexed). See 40 CFR part 261, Appendix 
VII. Bekaert petitioned the EPA to exclude this waste because it does 
not believe that the waste meets the criteria for which it was listed. 
Bekaert also believes that the waste does not contain any other 
constituents that would render it 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) through (4).

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

    In support of its petition, Bekaert submitted the previous petition 
for the Rogers, Arkansas facility and documentation which supported 
equivalency of the Dyersburg, Tennessee facility. Included within the 
petition are: (1) Descriptions of its manufacturing and wastewater 
treatment processes, including schematic diagrams; (2) a list of all 
raw materials and Material Safety Data Sheets (MSDSs) for all trade 
name products used in the manufacturing and waste treatment processes; 
(3) results from total constituent analyses for fourteen metals 
including the eight Toxicity Characteristic (TC) metals listed in Sec.  
261.24 (i.e., the TC metals) and antimony, beryllium, copper, nickel, 
thallium, and zinc from representative samples of the petitioned waste; 
(4) results from the Toxicity Characteristic Leaching Procedure (TCLP, 
SW-846 Method 1311) for fourteen metals which include the eight TC 
metals, and antimony, beryllium, copper, nickel, thallium, and zinc 
from representative samples of the petitioned waste; (5) results from 
total constituent analysis for total and reactive sulfide and cyanide 
for representative samples of the petitioned waste; (6) results from 
total oil and grease analyses from representative samples of the 
petitioned waste; (7) test results and information regarding the 
hazardous characteristics of ignitability, corrosivity, and reactivity; 
and (8) results from total constituent analyses for certain volatile 
and semi-volatile organic compounds from representative samples of the 
petitioned waste.
    The hazardous constituents of concern for which F006 was listed are 
hexavalent chromium and cyanide (complexed). Bekaert petitioned the EPA 
to exclude its F006 waste because Bekaert does not believe that the 
waste meets the criteria of the listing.

                                                   Table 1.--Waste Water Concentrations Zinc & Copper
                               [Metals Constituent Comparison Between Rogers, Arkansas F006 and Dyersburg, Tennessee F006]
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                                         Cell 1        Cell 2                Cell 3                Cell 4                Cell 5                Average
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Zinc Concentration mg/l:
    Dyersburg.......................         19875         20867  Inactive....................          9978  Not present.................         16907
    Rogers..........................         11480         14350  Inactive....................         16502  28700.......................         17758
Copper Concentration mg/l:
    Dyersburg.......................             0          22.6  Inactive....................           5.6  Not present.................          11.2
    Rogers..........................            70            50  Inactive....................            70  50..........................            60
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                                   Table 2.--Metals Analysis F006 Filter Cake
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                                                        Rogers,        Rogers,                        Rogers,
         Total Metals mg/kg             Dyersburg,     Arkansas:      Arkansas:        Rogers,       Arkansas:
                                        Tennessee       Petition         1997      Arkansas: 1998       1999
----------------------------------------------------------------------------------------------------------------
Arsenic.............................       <900             <5.00   .............  ..............  .............
Barium..............................         46.4            2.5    .............  ..............  .............
Cadmium.............................          0.24           3.1    .............  ..............  .............
Chromium............................         13.6           68      .............  ..............  .............
Copper..............................          7.81         580      .............  ..............  .............
Lead................................         12.5           <5.0    .............  ..............  .............
Selenium............................          3.5            6.4    .............  ..............  .............
Silver..............................         <0.9            1.2    .............  ..............  .............
Zinc................................        113          16000      .............  ..............  .............
TCLP Metals mg/l:
  Antimony..........................         <0.20   .............  .............  ..............  .............
  Arsenic...........................         <0.20          <0.05          <0.10           1.92           <0.085
  Barium............................         <0.050          1.3            0.18           0.078          <0.004
  Cadmium...........................         <0.040         <0.05          <0.01          <0.005          <0.005

[[Page 32650]]

 
  Chromium..........................         <0.050         <0.05          <0.01          <0.007          <0.007
  Copper............................         <0.050  .............  .............  ..............  .............
  Lead..............................         <0.10          <0.10          <0.10          <0.050          <0.05
  Nickel............................         <0.10   .............  .............  ..............  .............
  Selenium..........................         <0.20           0.091         <0.10          <0.10           <0.10
  Silver............................         <0.070          0.2           <0.01           0.0182          0.007
  Zinc..............................         26      .............  .............  ..............  .............
  Mercury Total mg/kg...............         <0.8           <0.125  .............  ..............  .............
  Mercury TCLP mg/l.................         <0.002         <0.005         <0.005         <0.002          <0.002
----------------------------------------------------------------------------------------------------------------

    EPA concluded after reviewing Bekaert's waste management and waste 
history information that no other hazardous constituents, other than 
those tested for, are likely to be present in Bekaert's petitioned 
waste. In addition, on the basis of test results and other information 
provided by Bekaert, pursuant to Sec.  260.22, EPA concluded that the 
petitioned waste will not exhibit any of the characteristics of 
ignitability, corrosivity, or reactivity. See Sec. Sec.  261.21, 
261.22, and 261.23, respectively.
    During its evaluation of Bekaert's petition, EPA also considered 
the potential impact of the petitioned waste on media other than 
groundwater. With regard to airborne dispersal of waste, EPA evaluated 
the potential hazards resulting from airborne exposure to waste 
contaminants from the petitioned waste using an air dispersion model 
for releases from a landfill. The results of this evaluation indicated 
that there is no substantial present or potential hazard to human 
health from airborne exposure to constituents from Bekaert's petitioned 
waste. (A description of EPA's assessment of the potential impact of 
airborne dispersal of Bekaert's petitioned waste is presented in the 
RCRA public docket for today's proposed rule.)
    EPA evaluated the potential impact of the petitioned waste on 
surface water resulting from storm water runoff from a landfill 
containing the petitioned waste, and found that the waste would not 
present a threat to human health or the environment. (See the docket 
for today's proposed rule for a description of this analysis). In 
addition, EPA believes that containment structures at municipal solid 
waste landfills can effectively control runoff, as Subtitle D 
regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant 
discharges into surface waters. While some contamination of surface 
water is possible through runoff from a waste disposal area, EPA 
believes that the dissolved concentrations of hazardous constituents in 
the runoff are likely to be lower than the extraction procedure test 
results reported in today's proposed rule, because of the aggressive 
acidic medium used for extraction in the TCLP. EPA also believes that, 
in general, leachate derived from the waste will not directly enter a 
surface water body without first traveling through the saturated 
subsurface where dilution of hazardous constituents may occur. 
Transported contaminants would be further diluted in the receiving 
water body. Subtitle D controls would minimize significant releases to 
surface water from erosion of undissolved particulates in runoff.
    In order to account for possible variability in the generation 
rate, EPA calculated delisting levels using a waste volume of 1,250 
cubic yards. Delisting levels and risk levels calculated by DRAS, using 
the EPACMTP model, are presented in Tables 3, 4, and 5 below. DRAS 
found that the major pathway for human exposure to this waste is 
groundwater ingestion, and the majority of the delisting and risk 
levels for the TCLP leachate of the waste were calculated based on that 
pathway. EPA used DRAS-calculated values based on MCLs, when these 
would result in more conservative delisting levels. The input values 
required by DRAS were the chemical constituents in Bekaert's petitioned 
waste; their maximum reported concentrations in the TCLP extract of the 
waste and in the unextracted waste (See Table 1, Preamble section 
II.A.); the maximum annual volume to be disposed (1,250 cubic yards) in 
a landfill; the desired risk level, which was chosen to be no worse 
than 10-5 for carcinogens; and a hazard quotient of no 
greater than 1 [1.48] for non-carcinogens. The only carcinogenic 
constituent detected in the waste is cadmium (arsenic not detected in 
the Dyersburg, TN, waste). Cadmium also has non-carcinogenic toxic 
effects.

 Table 3.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for Bekaert's--Petitioned Waste Based
                                               on Limiting Pathway
----------------------------------------------------------------------------------------------------------------
                                                                                                 DRAS-calculated
                                                                               DRAS-calculated   hazard quotient
                                             Delisting level in               risk for maximum     for maximum
                Constituent                     TCLP based on        DAF      concentration of  concentration of
                                              limiting pathway                  carcinogen in    non-carcinogen
                                                                                    waste           in waste
----------------------------------------------------------------------------------------------------------------
                                             Inorganic Constituents
----------------------------------------------------------------------------------------------------------------
Antimony...................................                2.31         34.3  ................             1.300
Arsenic....................................              0.0419         19.2       1.01 x 10-5       4.39 x 10-2
Barium.....................................             \4\ 328         27.8  ................             1.000
Cadmium....................................             \4\2.52         30.0       3.45 x 10-5             0.999

[[Page 32651]]

 
Chromium...................................      \4\ 49.71 x 10         3850  ................             1.000
Copper.....................................       \4\ 4.71 x 10         7010  ................            10.000
Cyanide....................................                60.5           18  ................             1.000
Lead.......................................             \5\ 5.0         5000  ................  ................
Nickel.....................................                 127         37.6  ................             1.000
Selenium...................................            \6\ 9.74         11.6  ................             1.000
Silver.....................................            \6\ 17.2         20.5  ................             1.000
Mercury....................................           \6\ 0.364         74.5  ................             2.000
Zinc.......................................                1260         24.9  ................             1.000
                                            ---------------------
  Total Hazard Quotient for All Waste        ..................  ...........  ................            21.400
   Constituents............................
                                            =====================
  Total Carcinogenic Risk for the Waste      ..................  ...........       1.01 x 10-5  ................
   (due to Arsenic, Cadmium, Hexavalent
   Chromium)...............................
----------------------------------------------------------------------------------------------------------------
\4\ Level exceeds characteristic level for this constituent. Therefore, this concentration in TCLP cannot be
  used for means of delisting the waste.
\5\ Lead had no limiting value, therefore, characteristic level was used in place of limiting pathway.
\6\ Concentration calculated here exceeds characteristic level for this constituent. Although the carcinogenic
  risk is acceptable, the calculated hazard quotient exceeds the necessary standard. Additionally, 4
  constituents exceed the TCLP characteristic level for hazardous waste.


 Table 4.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for Bekaert's Petitioned Waste Based
                                                     on MCLS
----------------------------------------------------------------------------------------------------------------
                                                                                                 DRAS-calculated
                                                                               DRAS-calculated   hazard quotient
                               MCL or drinking  Delisting level               risk for maximum     for maximum
         Constituent            water standard    (mg/l TCLP)        DAF      concentration of  concentration of
                                    (mg/l)                                      carcinogen in    non-carcinogen
                                                                                    waste           in waste
----------------------------------------------------------------------------------------------------------------
                                             Inorganic Constituents
----------------------------------------------------------------------------------------------------------------
Antimony.....................           0.006            0.922          34.3  ................       4.00 x 10-1
Arsenic......................           0.010            0.516          19.2       6.16 x 10-5       2.67 x 10-1
Barium.......................           2.0        \7\ 249              27.8  ................       7.60 x 10-1
Cadmium......................           0.005            0.672          30.0      3.45 x 10-12       2.66 x 10-1
Chromium.....................           0.10      \7\ 1720              3850  ................       1.77 x 10-3
Copper.......................       \8\ 1.30         40800              7010  ................       8.66 x 10-1
Cyanide......................           0.20            16.1              18  ................       1.33 x 10-1
Lead.........................           0.015      \7\ 336              5000  ................  ................
Nickel.......................       \9\ 0.10            16.9            37.6  ................       1.34 x 10-1
Selenium.....................           0.05         \7\ 2.60           11.6  ................       1.33 x 10-1
Silver.......................       \8\ 0.10         \7\ 9.16           20.5  ................       2.66 x 10-1
Mercury......................           0.002            0.149          74.5  ................              1.83
Zinc.........................       \8\ 5.0            558              24.9  ................       4.44 x 10-1
                              ------------------
  Total Hazard Quotient for    ...............  ...............  ...........  ................              5.50
   All Waste Constituents....
                              ==================
  Total Carcinogenic Risk for  ...............  ...............  ...........       6.16 x 10-5  ................
   the Waste (due to Arsenic,
   Cadmium, Hexavalent
   Chromium).................
----------------------------------------------------------------------------------------------------------------
\7\ DRAS Calculated level exceeds TCLP Characteristic level for this constituent.
\8\ The Safe Drinking Water Act standard is a recommended secondary standard, rather than an enforceable MCL.
\9\ MCL for Nickel was remanded on February 9, 1995, such that no legal limit exists. However, it is still
  recommended that nickel be monitored and exposure minimized until such time EPA reconsiders the MCL standard.


[[Page 32652]]


 Table 5.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for Bekaert's Petitioned Waste Based
     on MCL/Limiting Pathway, Detection Level, and Performance Demonstrated Concentrations From F006 Testing
----------------------------------------------------------------------------------------------------------------
                                                                                                 DRAS-Calculated
                                                                               DRAS-Calculated   Hazard Quotient
                                                Delisting Level               Risk for Maximum     for Maximum
                  Constituent                     (mg/l TCLP)        DAF      Concentration of  Concentration of
                                                                                Carcinogen in    Non-Carcinogen
                                                                                    Waste           in Waste
----------------------------------------------------------------------------------------------------------------
                                             Inorganic Constituents
----------------------------------------------------------------------------------------------------------------
Antimony......................................           0.60           34.3  ................      2.60 x 10 -1
Arsenic.......................................          <0.20           19.2      2.39 x 10 -5      1.04 x 10 -1
Barium........................................          50              27.8  ................      1.53 x 10 -1
Cadmium.......................................           0.50           30.0     3.45 x 10 -12      1.98 x 10 -1
Chromium......................................           1.0            3850  ................      1.03 x 10 -6
Copper........................................         100              7010  ................      2.12 x 10 -3
Cyanide.......................................          <0.005            18  ................      4.13 x 10 -5
Lead..........................................          <0.10           5000  ................  ................
Nickel........................................          10              37.6  ................      7.90 x 10 -2
Selenium......................................          <0.20           11.6  ................      1.03 x 10 -2
Silver........................................           1              20.5  ................      5.82 x 10 -2
Mercury.......................................          <0.005          74.5  ................      3.95 x 10 -2
Zinc..........................................         125              24.9  ................      9.95 x 10 -2
                                               ------------------
  Total Hazard Quotient for All Waste           ...............  ...........  ................              1.00
   Constituents...............................
                                               ------------------
  Total Carcinogenic Risk for the Waste (due    ...............  ...........      2.39 x 10 -5  ................
   to Arsenic, and Cadmium, which were non-
   detect in the waste.)......................
                                               ==================
----------------------------------------------------------------------------------------------------------------
 The Safe Drinking Water Act standard for copper is a recommended secondary standard, rather than an enforceable
  MCL.

    EPA proposes to use the delisting levels in the TCLP leachate 
calculated by the DRAS, using the EPACMTP (Table 5) as well as the 
performance levels demonstrated during the F006 testing. These 
delisting levels are summarized in Table 6, below.

  Table 6.--Summary of Delisting Levels for Bekaert's Petitioned Waste
------------------------------------------------------------------------
                                                             Delisting
                       Constituent                          level (mg/l
                                                               TCLP)
------------------------------------------------------------------------
Antimony................................................           0.60
Arsenic.................................................          <0.20
Barium..................................................          50.0
Cadmium.................................................           0.50
Chromium................................................           1.0
Copper..................................................         100
Cyanide.................................................          <0.005
Lead....................................................          <0.10
Nickel..................................................          10.0
Selenium................................................          <0.20
Silver..................................................           1.0
Mercury.................................................          <0.005
Zinc....................................................         125
------------------------------------------------------------------------

C. Conclusion

    After reviewing Bekaert's processes, the EPA concludes that (1) no 
hazardous constituents of concern are likely to be present in Bekaert's 
waste at levels that would harm human health and the environment; and 
(2) the petitioned waste does not exhibit any of the characteristics of 
ignitability, corrosivity, or reactivity. See 40 CFR 261.21, 261.22, 
and 261.23, respectively.
    EPA believes that Bekaert's petitioned waste will not harm human 
health and the environment when disposed in a nonhazardous waste 
landfill if the delisting levels for land disposal as proposed in 
Preamble section II.B. are met.
    EPA is finalizing it's decision to exclude Bekaert's petitioned 
waste from being listed as F006, based on descriptions of waste 
management and waste history, evaluation of the results of waste sample 
analysis, and on the requirement that Bekaert's petitioned waste must 
meet proposed delisting levels before disposal. Thus, EPA's decision is 
based on verification testing conditions. When the rule becomes 
effective, the exclusion will be valid only if the petitioner 
demonstrates that the petitioned waste meets the verification testing 
conditions and delisting levels in the amended Table 1 of Appendix IX 
of 40 CFR part 261. When the rule becomes final and EPA approves that 
demonstration, the petitioned waste would not be subject to regulation 
under 40 CFR parts 262 through 268 and the permitting standards of 40 
CFR part 270. Although management of the waste covered by this petition 
would, upon final promulgation, be relieved from Subtitle C 
jurisdiction, the waste would remain a solid waste under RCRA. As such, 
the waste must be handled in accordance with all applicable Federal, 
State, and local solid waste management regulations. Pursuant to RCRA 
section 3007, EPA may also sample and analyze the waste to determine if 
delisting conditions are met.

III. Limited Effect of Federal Exclusion

Will this Rule Apply in All States?

    This Direct Final Rule, if promulgated, would be issued under the 
Federal (RCRA) delisting program. States, however, are allowed to 
impose their own, non-RCRA regulatory requirements that are more 
stringent than EPA's, pursuant to section 3009 of RCRA. These more 
stringent requirements may include a provision which prohibits a 
Federally issued exclusion from taking effect in the States. Because a 
petitioner's waste may be regulated under a dual system (i.e., both 
Federal and State programs), petitioners are urged to contact State 
regulatory authorities to determine the current status of their wastes 
under the State laws. Furthermore, some States are authorized to 
administer a delisting program in lieu of the Federal program, i.e., to 
make their own delisting decisions. Therefore, this exclusion, if 
promulgated, would not apply in those authorized States. If the 
petitioned

[[Page 32653]]

waste will be transported to any State with delisting authorization, 
Bekaert must obtain delisting authorization from that State before the 
waste may be managed as nonhazardous in that State.

IV. Effective Date

    This rule, if made final, will become effective 45 days from this 
date of publication, unless adverse comments are received. The 
Hazardous and Solid Waste Amendments of 1984 amended section 3010 of 
RCRA to allow rules to become effective in less than six months when 
the regulated community does not need the six-month period to come into 
compliance. That is the case here, because this rule, if finalized, 
would reduce the existing requirements for the petitioner. In light of 
the unnecessary hardship and expense that would be imposed on this 
petitioner by an effective date six months after publication and the 
fact that a six-month deadline is not necessary to achieve the purpose 
of section 3010, EPA believes that this exclusion should be effective 
45 days from this date of publication. These reasons also provide a 
basis for making this rule effective immediately, upon final 
publication, under the Administrative Procedure Act, pursuant to 5 
U.S.C. 553(d).

V. Paperwork Reduction Act

    Information collection and record-keeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Public Law 96-511, 44 U.S.C. 3501 et seq.) and have been assigned 
OMB Control Number 2050-0053.

VI. National Technology Transfer and Advancement Act

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

VII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), Public Law 104-4, which was signed into law on March 22, 
1995, EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is required 
for EPA rules, under section 205 of the UMRA EPA must identify and 
consider alternatives, including the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. EPA must select that alternative, unless the Administrator 
explains in the final rule why it was not selected or it is 
inconsistent with law. Before EPA establishes regulatory requirements 
that may significantly or uniquely affect small governments, including 
tribal governments, it must develop under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, giving them meaningful and 
timely input in the development of EPA regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising them on compliance with the regulatory 
requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon State, local, or 
tribal governments or the private sector. EPA finds that today's 
delisting decision is deregulatory in nature and does not impose any 
enforceable duty on any State, local, or tribal governments or the 
private sector. In addition, the delisting does not establish any 
regulatory requirements for small governments and so does not require a 
small government agency plan under UMRA section 203.

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

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required, however, if the 
Administrator or delegated representative certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule, when promulgated, will not have an adverse economic 
impact on any small entities since its effect would be to reduce the 
overall costs of EPA's hazardous waste regulations and would be limited 
to one facility. Accordingly, I hereby certify that this 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.

IX. Executive Order 12866

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

[[Page 32654]]

review under section (6) of Executive Order 12866.

X. Executive Order 13045

    The Executive Order 13045 is entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997). This order applies to any rule that EPA determines (1) is 
economically significant as defined under Executive Order 12866, and 
(2) the environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This rule is 
not subject to Executive Order 13045 because this is not an 
economically significant regulatory action as defined by Executive 
Order 12866.

XI. Executive Order 13084 Affecting Indian Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to meaningful and timely input'' in the 
development of regulatory policies on matters that significantly or 
uniquely affect their communities of Indian tribal governments. Today's 
rulemaking does not significantly or uniquely affect the communities of 
Indian tribal governments. Accordingly, the requirements of section 
3(b) of Executive Order 13084 do not apply to this direct final rule.

XII. Submission to Congress and General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States.
    The EPA is not required to submit a rule report regarding today's 
action under section 801 because this is a rule of particular 
applicability, etc. Section 804 exempts from section 801 the following 
types of rules: rules of particular applicability; rules relating to 
agency management or personnel; and rules of agency organization, 
procedures, or practice that do not substantially affect the rights or 
obligations of non-agency parties. See 5 U.S.C. 804(3). This rule will 
become effective 45 days from the date of this publication as a direct 
final rule in the Federal Register.

XIII. Executive Order 13132

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

List of Subjects in 40 CFR Part 261

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

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

    Dated: May 12, 2003.
James S. Kutzman,
Acting Director, Waste Management Division.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

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


0
2. In Table 1 of appendix IX, part 261 add the following wastestream in 
alphabetical order by facility to read as follows:

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

                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                            Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Bekaert Industries, Inc........  Dyersburg, TN.................  Dewatered wastewater treatment plant (WWTP)
                                                                  sludge (EPA Hazardous Waste No. F006)
                                                                  generated at a maximum annual rate of 1,250
                                                                  cubic yards per calendar year after December
                                                                  31, 2002 and disposed of in a Subtitle D
                                                                  landfill. For the exclusion to be valid,
                                                                  Bekaert must implement a testing program that
                                                                  meets the following Paragraphs:

[[Page 32655]]

 
                                                                    (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 0.60; Arsenic <0.20;
                                                                     Barium 50; Chromium 1.0; Copper 100; Lead
                                                                     <0.10; Nickel 10.0; Selenium <0.20; Silver
                                                                     1.0; Zinc 125; and mercury <0.005.
                                                                    (2) Waste Holding and Handling:
                                                                      (A) Bekaert 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.
                                                                      (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. Bekaert
                                                                       can manage and dispose the nonhazardous
                                                                       dewatered WWTP.
                                                                      (A) Initial Verification Testing: After
                                                                       EPA grants the final exclusion, Bekaert
                                                                       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,
                                                                       Bekaert may substitute the testing
                                                                       conditions in (3)(B) for (3)(A). Bekaert
                                                                       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.
                                                                    (4) Changes in Operating Conditions: If
                                                                     Bekaert 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: Bekaert must submit the
                                                                     information described below. If Bekaert
                                                                     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. Bekaert must:
                                                                      (A) Submit the data obtained through
                                                                       Paragraph 3 to the Region 4 RCRA
                                                                       Enforcement & Compliance, U.S. EPA, 61
                                                                       Forsyth St SW, Atlanta, Georgia 30303
                                                                       8909, 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 Tennessee 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
                                                                      (A) If, anytime after disposal of the
                                                                       delisted waste, Bekaert 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.

[[Page 32656]]

 
                                                                      (B) If the annual testing of the waste
                                                                       does not meet the delisting requirements
                                                                       in Paragraph 1, Bekaert 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 Bekaert 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: Bekaert must
                                                                     do the 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. 03-13568 Filed 5-30-03; 8:45 am]
BILLING CODE 6560-50-P