[Federal Register Volume 68, Number 184 (Tuesday, September 23, 2003)]
[Proposed Rules]
[Pages 55206-55217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24120]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW FRL-7562-9]


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

AGENCY: The Environmental Protection Agency (the EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA is proposing to grant a petition submitted by Teris 
LLC (Teris) to exclude (or delist) a certain solid waste generated by 
its El Dorado, Arkansas, facility from the lists of hazardous wastes.
    The EPA used the Delisting Risk Assessment Software (DRAS) in the 
evaluation of the impact of the petitioned waste on human health and 
the environment.
    The EPA bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would exclude the petitioned 
waste from the requirements of hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA).
    If finalized, the EPA would conclude that Teris' petitioned waste 
is nonhazardous with respect to the original listing criteria and that 
the stabilization of the incinerator ash generated from the hazardous 
waste incineration facility will adequately reduce the likelihood of 
migration of constituents from this waste. The EPA would also conclude 
that Teris' process minimizes short-term and long-term threats from the 
petitioned waste to human health and the environment.

DATES: The EPA will accept comments until November 7, 2003. The EPA 
will stamp comments received after the close of the comment period as 
late. These late comments may not be considered in formulating a final 
decision. Your requests for a hearing must reach the EPA by October 8, 
2003. The request must contain the information prescribed in 40 CFR 
260.20(d).

ADDRESSES: Please send three copies of your comments. You should send 
two copies to the Section Chief of the Corrective Action and Waste 
Minimization Section, Multimedia Planning and Permitting Division (6PD-
C), U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202. You should send a third copy to Derick Warrick, P.E., 
Hazardous Waste Division, Arkansas Department of Environmental Quality 
(ADEQ), P.O. Box 8913, Little Rock, Arkansas, 72219-8913. Identify your 
comments at the top with this regulatory docket number: [F-03-ARDEL-
TERIS]. You may submit your comments electronically to James Harris at 
[email protected].
    You should address requests for a hearing to Steve Gilrein, 
Associate Director of RCRA, Multimedia Planning and Permitting Division 
(6PD), U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202.

FOR FURTHER INFORMATION CONTACT: James Harris (214) 665-8302.

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

I. Overview Information
    A. What Action Is the EPA Proposing?
    B. Why Is the EPA Proposing To Approve This Delisting?
    C. How Will Teris Manage the Waste if It Is Delisted?
    D. When Would the Proposed Delisting Exclusion Be Finalized?
    E. How Would This Action Affect States?
II. Background
    A. What Is the History of the Delisting Program?
    B. What Is a Delisting Petition, and What Does It Require of a 
Petitioner?
    C. What Factors Must the EPA Consider In Deciding Whether To 
Grant a Delisting Petition?
III. The EPA's Evaluation of the Waste Information and Data
    A. What Wastes Did Teris Petition the EPA To Delist?
    B. Who Is Teris and What Process Do They Use To Generate the 
Petition Waste?
    C. How Did Teris Sample and Analyze the Data In This Petition?
    D. What Were the Results of Teris' Analysis?
    E. How Did the EPA Evaluate the Risk of Delisting This Waste?
    F. What Did the EPA Conclude About Teris' Analysis?
    G. What Other Factors Did the EPA Consider In Its Evaluation?
    H. What Is the EPA's Evaluation of This Delisting Petition?
IV. Next Steps
    A. With What Conditions Must the Petitioner Comply?
    B. What Happens if Teris Violates the Terms and Conditions?
V. Public Comments
    A. How May I as an Interested Party Submit Comments?
    B. How May I Review the Docket or Obtain Copies of the Proposed 
Exclusions?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancements Act
XIII. Executive Order 13132 Federalism

I. Overview Information

A. What Action Is the EPA Proposing?

    The EPA is proposing to grant the delisting petition submitted by 
Teris to have its stabilized hazardous waste incinerator ash excluded, 
or delisted, from the definition of a hazardous waste.

B. Why Is the EPA Proposing To Approve This Delisting?

    Teris' petition requests a delisting for the stabilized ash 
generated by its hazardous waste incinerator. Teris does not believe 
that the petitioned waste meets the criteria for which the EPA listed 
it. Teris also believes no additional constituents or factors could 
cause the waste to be hazardous. The EPA's review of this petition 
included consideration of the original listing criteria, and the 
additional factors required by the Hazardous and Solid Waste Amendments 
of 1984 (HSWA).

[[Page 55207]]

See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 
260.22(d)(1)-(4). In making the initial delisting determination, the 
EPA evaluated the petitioned waste against the listing criteria and 
factors cited in Sec.  261.11(a)(2) and (a)(3). Based on this review, 
the EPA agrees with the petitioner that the waste is nonhazardous with 
respect to the original listing criteria. (If the EPA had found, based 
on this review, that the waste remained hazardous based on the factors 
for which the waste was originally listed, the EPA would have proposed 
to deny the petition.) The EPA evaluated the waste with respect to 
other factors or criteria to assess whether there is a reasonable basis 
to believe that such additional factors could cause the waste to be 
hazardous. The EPA considered whether the waste is acutely toxic, the 
concentration of the constituents in the waste, their tendency to 
migrate and to bioaccumulate, their persistence in the environment once 
released from the waste, plausible and specific types of management of 
the petitioned waste, the quantities of waste generated, and waste 
variability. The EPA believes that the petitioned waste does not meet 
the listing criteria and thus should not be a listed waste. The EPA's 
proposed decision to delist waste from the Teris facility is based on 
the information submitted in support of this rule, including 
descriptions of the wastes and analytical data from the El Dorado, 
Arkansas facility.

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

    Teris currently sends the petitioned waste to a hazardous waste 
landfill. If the delisting exclusion is finalized, Teris intends to 
dispose of the petitioned waste (i.e., stabilized hazardous waste 
incinerator ash) in a subtitle D solid waste landfill in Arkansas.

D. When Would the Proposed Delisting Exclusion be Finazlized?

    RCRA section 3001(f) specifically requires the EPA to provide 
notice and an opportunity for comment before granting or denying a 
final exclusion. Thus, the EPA will not grant the exclusion until it 
addresses all timely public comments (including those at public 
hearings, if any) on this proposal.
    RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months after the EPA addresses public 
comments when the regulated facility does not need the six-month period 
to come into compliance. That is the case here, because this rule, if 
finalized, would reduce the existing requirements for persons 
generating hazardous wastes.
    The EPA believes that this exclusion should be effective 
immediately upon final publication because a six-month deadline is not 
necessary to achieve the purpose of section 3010(b), and a later 
effective date would impose unnecessary hardship and expense on this 
petitioner. These reasons also provide good cause for making this rule 
effective immediately, upon final publication, under the Administrative 
Procedure Act, 5 U.S.C. 553(d).

E. How Would This Action Affect the States?

    Because the 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 States who have 
received authorization from the EPA to make their own delisting 
decisions.
    The EPA allows the States to impose their own non-RCRA regulatory 
requirements that are more stringent than the EPA's, under section 3009 
of RCRA, 42 U.S.C. 6929. These more stringent requirements may include 
a provision that prohibits a Federally issued exclusion from taking 
effect in the State. Because a dual system (that is, both Federal 
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's 
waste, the EPA urges petitioners to contact the state regulatory 
authority to establish the status of their wastes 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 Arkasas Pollution Control and Ecology 
Commission in Regulation No. 23.

II. Background

A. What Is the History of the Delisting Program?

    The EPA published an amended list of hazardous wastes from 
nonspecific and specific sources on January 16, 1981, as part of its 
final and interim final regulations implementing section 3001 of RCRA. 
The EPA has amended this list several times and published it in 
Sec. Sec.  261.31 and 261.32.
    The EPA lists these wastes as hazardous because: (1) they typically 
and frequently exhibit one or more of the characteristics of hazardous 
wastes identified in Subpart C of Part 261 (that is, ignitability, 
corrosivity, reactivity, and toxicity) or (2) they meet the criteria 
for listing contained in 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 
described in these regulations generally is hazardous, a specific waste 
from an individual facility meeting the listing description may not be 
hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that the EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

B. What Is a Delisting Petition, and What Does It Require of a 
Petitioner?

    A delisting petition is a request from a facility to the EPA or an 
authorized State to exclude wastes from the list of hazardous wastes. 
The facility petitions the EPA because it does not consider the wastes 
hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which the EPA lists a 
waste are in Part 261 and further explained in the background documents 
for the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) and present 
sufficient information for the EPA to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste. (See Part 261 and the background documents for the 
listed waste.)
    Generators remain obligated under RCRA to confirm whether their 
waste remains nonhazardous based on the hazardous waste characteristics 
even if the EPA has ``delisted'' the waste.

C. What Factors Must the EPA Consider in Deciding Whether To Grant a 
Delisting Petition?

    Besides considering the criteria in Sec. Sec.  260.22(a) and 
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for 
the listed wastes, the EPA must consider any factors (including 
additional constituents) other than those for which the EPA listed the 
waste if a reasonable basis exists that these additional factors could 
cause the waste to be hazardous.
    The EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or

[[Page 55208]]

disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii) and 
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

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

A. What Waste Did Teris Petition the EPA To Delist?

    On June 3, 2002, Teris petitioned the EPA to exclude from the lists 
of hazardous waste contained in Sec. Sec.  261.31 and 261.32, a 
stabilized hazardous waste incinerator ash generated from the facility 
located in El Dorado, Arkansas. The waste falls under the 
classification of listed waste because of the ``derived-from'' rule in 
Sec.  261.3. Specifically, in its petition, Teris requested that the 
EPA grant an exclusion for 30,000 cubic yards per calendar year of 
stabilized incinerator ash resulting from its hazardous waste thermal 
treatment process.

B. Who Is Teris and What Process Do They Use To Generate the Petition 
Waste?

    Teris is a commercial hazardous waste treatment and storage 
facility located in an industrial/commercial setting in the southern 
portion of the City of El Dorado, Union County, Arkansas. The facility 
is located east of El Dorado, Arkansas.
    Teris thermally treats hazardous wastes (including listed hazardous 
wastes) that are generated at commercial and industrial facilities 
throughout the nation. The facility operates two rotary kilns that are 
used to destroy and remove the hazardous organic constituents found in 
the waste. These two kilns generate a solid residue (i.e., incinerator 
ash) in which most of the organic constituents have been destroyed. The 
incinerator meets the 99.99% Destruction and Removal Efficiency 
requirement under 40 CFR part 264. This incinerator ash contains trace 
amounts of regulated metallic constituents that are not destroyed by 
the incineration process. Teris operates a stabilization treatment 
system for the incinerator ash that chemically binds the metals so as 
to prevent their release into groundwater.

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

    To support its petition, Teris submitted:
    (1) Historical information on past waste generation and management 
practices;
    (2) results of the total constituent analysis for volatiles, 
semivolatiles, pesticides, herbicides and metals;
    (3) results of the Toxicity Characteristic Leaching Procedure 
(TCLP) extract for those organics detected in the above total 
constituent analysis;
    (4) results of the Multiple pH Protocol Procedure for metal 
constituents;
    (5) results of both total constituent and leachable analysis for 
total cyanide and sulfide.

D. What Were the Results of Teris' Analyses?

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

 Table 1.--Maximum TCLP Constituent Concentrations of the Stabilized Hazardous Incinerator Ash and Corresponding
                                              Delisting Limits \1\
----------------------------------------------------------------------------------------------------------------
                                                         Total constituent    TCLP leachate    Maximum allowable
                      Constituent                        analyses (mg/kg)      conc. (mg/l)    TCLP conc. (mg/l)
----------------------------------------------------------------------------------------------------------------
Antimony..............................................            1400.00             0.206              0.206
Arsenic...............................................             537.00             0.0395             0.096
Barium................................................            4500.00             1.40              21.00
Beryllium.............................................               2.17             0.004              0.416
Cadmium...............................................              49.60             0.0062             0.11
Chromium..............................................            1560.00             0.036              0.60
Cobalt................................................            1140.00             0.078             13.14
Copper................................................           12800.00             0.0243          9113.00
Lead..................................................             772.00             0.12               0.69
Mercury...............................................               0.15             0.00126            0.025
Nickel................................................            5190.00             0.11               3.98
Selenium..............................................             497.00             0.285              0.58
Silver................................................             212.00             0.007              0.14
Tin...................................................            1760.00             0.48             396.00
Thallium..............................................               1.75             0.0012             0.088
Vanadium..............................................             370.00             0.49               1.60
Zinc..................................................           10300.00             0.0152             2.61
Acenaphthylene........................................               2.0             ND                  0.059
Acetone...............................................               0.052           ND                  0.059
Acetophenone..........................................               1.80            ND                  0.01
Aniline...............................................               0.72            ND                  0.81
Anthracene............................................               1.90            ND                  0.059
Benzene...............................................               0.21            ND                  0.14
Benzo(a)pyrene........................................               0.70            ND                  0.0018
Benzo(ghi)perylene....................................               0.67            ND                  0.0036

[[Page 55209]]

 
Benzo(b)fluoranthrene.................................               0.70            ND                  0.0038
Benzo(k)fluoranthrene.................................               0.70            ND                  0.0038
Bis(2-................................................               0.86            ND                  0.114
Carbon disulfide......................................               0.057           ND                  3.80
Chrysene..............................................               1.90            ND                  0.059
Fluoranthene..........................................               2.30            ND                  0.068
Fluorene..............................................               1.60            ND                  0.059
Hexachlorobenzene.....................................               0.70            ND                  0.00822
Methylnaphthalene 2-..................................               0.830           ND                  0.059
Naphthalene...........................................               3.40            ND                  0.059
Phenanthrene..........................................              18.0             ND                  0.059
Phenol................................................               1.20            ND                  0.039
Pyrene................................................               3.90            ND                  0.067
Styrene...............................................               0.31            ND                  1.90
Toluene...............................................               0.078           ND                  0.08
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
ND Denotes that the constituent was not detected.

E. How Did the EPA Evaluate the Risk of Delisting This Waste?

    For this delisting determination, the EPA used such information 
gathered to identify plausible exposure routes (i.e., ground water, 
surface water, air) for hazardous constituents present in the 
petitioned waste. The EPA determined that disposal in a Subtitle D 
landfill is the most reasonable, worst-case disposal scenario for the 
petitioned waste. The EPA applied the most recent version of the 
Delisting Risk Assessment Software (DRAS) described in 65 FR 58015 
(September 27, 2000) and 65 FR 75637 (December 4, 2000), to predict the 
maximum allowable concentrations of hazardous constituents that may be 
released from the petitioned waste after disposal and determined the 
potential impact of the disposal of Teris' petitioned waste on human 
health and the environment. A copy of this software can be found on the 
World Wide Web at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm.
    In assessing potential risks to ground water, the EPA used the 
maximum estimated waste volumes and the maximum reported extract 
concentrations as inputs to the DRAS program to estimate the 
constituent concentrations in the ground water at a hypothetical 
receptor well down gradient from the disposal site. Using the risk 
level (carcinogenic risk of 10-5 and non-cancer hazard index of 1.0), 
the DRAS program can back-calculate the acceptable receptor well 
concentrations (referred to as compliance point concentrations) using 
standard risk assessment algorithms and the EPA's health-based numbers. 
Using the maximum compliance point concentrations and the EPA Composite 
Model for Leachate Migration with Transformation Products (EPACMTP) 
fate and transport modeling factors, the DRAS further back-calculates 
the maximum permissible waste constituent concentrations not expected 
to exceed the compliance point concentrations in groundwater.
    The EPA believes that the EPACMTP fate and transport model 
represents a reasonable worst case scenario for possible ground water 
contamination resulting from disposal of the petitioned waste in a 
landfill, and that a reasonable worst case scenario is appropriate when 
evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of some reasonable 
worst-case scenarios results in conservative values for the compliance-
point concentrations and ensures that the waste, once removed from 
hazardous waste regulation, will not pose a significant threat to human 
health or the environment.
    The DRAS also uses the maximum estimated waste volumes and the 
maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g., volatilization or wind-blown particulate from the landfill). As 
in the above ground water analyses, the DRAS uses the risk level, the 
health-based data and standard risk assessment and exposure algorithms 
to predict maximum compliance point concentrations of waste 
constituents at a hypothetical point of exposure. Using fate and 
transport equations, the DRAS uses the maximum compliance point 
concentrations and back-calculates the maximum allowable waste 
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, the EPA is generally unable to predict, and 
does not presently control, how a petitioner will manage a waste after 
delisting. Therefore, the EPA currently believes that it is 
inappropriate to consider extensive site-specific factors when applying 
the fate and transport model. The EPA does control the type of unit 
where the waste is disposed. The waste must be disposed in the type of 
unit the fate and transport model evaluates.
    The EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, Teris 
has directly disposed of this material in commercial hazardous waste 
landfills located at other facilities. Since the Teris waste is 
commingled with other wastes in these landfills, no representative 
ground water monitoring data specific to the Teris incinerator ash 
exists. Therefore, the EPA has determined that it would be unnecessary 
to request ground water monitoring data.
    The EPA believes that the descriptions made by Teris of the 
hazardous waste process and analytical characterization provide a 
reasonable basis to conclude that the likelihood of migration of 
hazardous constituents from the petitioned waste will be substantially 
reduced so that short-term and long-term threats to human health and 
the environment are adequately minimized.

[[Page 55210]]

    DRAS calculates the maximum allowable concentration of chemical 
constituents in the incinerator ash. Since all maximum TCLP 
concentrations found in Table I are equal to or less than the maximum 
allowable TCLP concentration specified by DRAS and the associated risk 
assessment conducted by the EPA, the petitioned waste meets the 
applicable delisting criteria. In addition, on the basis of 
explanations and analytical data provided by Teris, pursuant to Sec.  
260.22, the EPA concludes that the petitioned waste does not exhibit 
any of the characteristics of toxicity, ignitability, corrosivity, or 
reactivity. See Sec. Sec.  261.21, 261.22, and 261.23, respectively.

F. What Did the EPA Conclude About Teris' Analysis?

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

G. What Other Factors Did the EPA Consider in Its Evaluation?

    During the evaluation of this petition, the EPA also considered the 
potential impact of the petitioned waste via non-ground water routes 
(i.e., air emission and surface runoff). With regard to airborne 
dispersion in particular, the EPA believes that exposure to airborne 
contaminants from the petitioned waste is unlikely. Therefore, no 
appreciable air releases are likely from the stabilized incinerator ash 
under any likely disposal conditions. The EPA evaluated the potential 
hazards resulting from the unlikely scenario of airborne exposure to 
hazardous constituents released from the stabilized incinerator ash in 
an open landfill. The results of this worst-case analysis indicated 
that there is no substantial present or potential hazard to human 
health and the environment from airborne exposure to constituents from 
the hazardous waste incinerator ash. A description of the EPA's 
assessment of the potential impact of incinerator ash, regarding 
airborne dispersion of waste contaminants, is presented in the RCRA 
public docket for this proposed rule. This docket is designated with 
the following code F-03-ARDEL-TERIS.
    The EPA also considered the potential impact of the petitioned 
waste via a surface water route. The EPA believes that containment 
structures at municipal solid waste landfills can effectively control 
surface water runoff, as the Subtitle D regulations (See 56 FR 50978, 
October 9, 1991) prohibit pollutant discharges into surface waters. 
Furthermore, the concentrations of any hazardous constituents dissolved 
in the runoff will tend to be lower than the levels in the TCLP 
leachate analyses reported in this notice due to the aggressive acidic 
medium used for extraction in the TCLP. The EPA believes that, in 
general, leachate derived from the waste is unlikely to directly enter 
a surface water body without first traveling through the saturated 
subsurface where dilution and attenuation of hazardous constituents 
will also occur. Leachable concentrations provide a direct measure of 
solubility of a toxic constituent in water and are indicative of the 
fraction of the constituent that may be mobilized in surface water as 
well as ground water.
    Based on the reasons discussed above, the EPA believes that the 
contamination of surface water through runoff from the waste disposal 
area is very unlikely. Nevertheless, the EPA evaluated the potential 
impacts on surface water if the stabilized incinerator ash were 
released from a municipal solid waste landfill through runoff and 
erosion. See the RCRA public docket for this proposed rule for further 
information on the potential surface water impacts from runoff and 
erosion. The estimated levels of the hazardous constituents of concern 
in surface water would be well below health-based levels for human 
health, as well as below the EPA Chronic Water Quality Criteria for 
aquatic organisms (USEPA, OWRS, 1987). The EPA, therefore, concluded 
that this stabilized hazardous waste incinerator ash is not a present 
or potential substantial hazard to human health and the environment via 
the surface water exposure pathway.

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

    The descriptions by Teris of the hazardous waste process and 
analytical characterization, with the proposed verification testing 
requirements (as discussed later in this notice), provide a reasonable 
basis for the EPA to grant the exclusion. The data submitted in support 
of the petition show that constituents in the waste are below the 
maximum allowable leachable concentrations (See Table 1). The EPA 
believes that the thermal treatment and subsequent stabilization 
process operated by Teris will substantially reduce the likelihood of 
migration of hazardous constituents from the petitioned waste. These 
treatment processes will also minimize short-term and long-term threats 
from the petitioned waste to human health and the environment.
    Thus, the EPA believes that it should grant to Teris an exclusion 
for the stabilized hazardous waste incinerator ash. The EPA believes 
the data submitted in support of the petition show the stabilization 
treatment process operated by Teris can render the hazardous waste 
incinerator ash nonhazardous.
    The EPA has reviewed the sampling procedures used by Teris and has 
determined they satisfy the EPA's criteria for collecting 
representative samples of variable constituent concentrations in the 
hazardous waste incinerator ash. The data submitted in support of the 
petition show that constituents in Teris' waste are presently below the 
compliance point concentrations used in the delisting decision-making 
process and would not pose a substantial hazard to the environment. The 
EPA believes that Teris has successfully demonstrated that the 
stabilized hazardous waste incinerator ash is nonhazardous.
    The EPA therefore proposes to grant an exclusion to Teris, in El 
Dorado, Arkansas, for the stabilized hazardous waste incinerator ash 
described in its petition. The EPA's decision to exclude this waste is 
based on descriptions of the treatment activities associated with the 
petitioned waste and characterization of the stabilized hazardous waste 
incinerator ash.
    If the EPA finalizes the proposed rule, the EPA will no longer 
regulate the stabilized incinerator ash under Parts 262 through 268 and 
the permitting standards of Part 270.

IV. Next Steps

A. With What Conditions Must the Petitioner Comply?

    The petitioner, Teris, must comply with the requirements in 40 CFR 
part 261, appendix IX, table 1 as amended by this notice. The text 
below gives the rationale and details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituents that Teris must 
test the leachate from the stabilized incinerator ash, below which 
these wastes would be considered nonhazardous.
    The EPA selected the set of inorganic and organic constituents 
specified in Paragraph (1) of 40 CFR part 261, appendix IX, table 1, 
based on

[[Page 55211]]

information in the petition. The EPA compiled the inorganic and organic 
constituents list from the composition of the waste, descriptions of 
the treatment process used by Teris, previous test data provided for 
the waste, and the respective health-based levels used in delisting 
decision-making. These delisting levels correspond to the allowable 
levels measured in the TCLP extract and total concentrations of the 
waste.
(2) Waste Holding and Handling
    The purpose of this paragraph is to ensure that Teris manages and 
disposes of any stabilized hazardous waste incinerator ash that might 
contain hazardous levels of inorganic and organic constituents 
according to Subtitle C of RCRA. Holding the stabilized hazardous waste 
incinerator ash until characterization is complete will protect against 
improper handling of hazardous material.
(3) Verification Testing Requirements
    Teris must complete a rigorous verification testing program on the 
incinerator ash to assure that the stabilized incinerator ash does not 
exceed the maximum levels specified in Paragraph (1). If the EPA 
determines that the data collected under this Paragraph does not 
support the data provided for in the petition, the exclusion will not 
cover the tested waste. This verification program operates on two 
levels.
    The first part of the verification testing program consists of 
testing every batch (i.e. roll-off) of incinerator ash for specified 
indicator parameters as per Paragraph (1). Levels of constituents 
measured in the samples of the stabilized hazardous waste incinerator 
ash that do not exceed the levels set forth in Paragraph (1) are 
nonhazardous. Teris can manage and dispose the stabilized nonhazardous 
incinerator ash according to all applicable solid waste regulations. If 
any roll-off fails to meet the specified limits, then Teris must 
retreat the batch (i.e., reburn and/or restabilize) until the limits 
are met or they must dispose of the waste as hazardous. Organic 
indicators are those specified in the Waste Analysis Plan of Teris' 
RCRA permit to verify that the incinerator operated as demonstrated in 
the trial burn. Analysis for total and TCLP arsenic must be conducted.
    The second part of the verification testing program is the 
quarterly testing of four representative composite samples of 
stabilized incinerator ash for all constituents specified in Paragraph 
(1). If Teris demonstrates for two consecutive quarters complete 
attainment of all specified limits, then Teris may request approval of 
the EPA to reduce the frequency of testing to annually. If, after 
review of performance of the treatment system, the EPA finds that 
annual testing is adequately protective of human health and the 
environment, then the EPA may authorize Teris to reduce the quarterly 
comprehensive sampling frequency to an annual basis. If the annual 
testing of the waste does not meet the delisting requirements in 
Paragraph 1, Teris must notify the EPA according to the requirements in 
Paragraph 6. The EPA will then take the appropriate actions necessary 
to protect human health and the environment per Paragraph 6. Teris must 
provide sampling results that support the rationale that the delisting 
exclusion should not be withdrawn.
    The exclusion is effective upon publication in the Federal Register 
but the disposal cannot begin until the verification sampling is 
completed. Disposal is also not authorized if Teris fails to perform 
the quarterly and yearly testing as specified herein. Should Teris fail 
to conduct the quarterly/yearly testing as specified herein, then 
disposal of stabilized incinerator ash as delisted waste may not occur 
in the following quarter(s)/year(s) until Teris obtains the written 
approval of the EPA.
(4) Changes in Operating Conditions
    Paragraph (4) would allow Teris the flexibility of modifying its 
processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment processes. However, Teris must 
prove the effectiveness of the modified process and request approval 
from the EPA. Teris must manage wastes generated during the new process 
demonstration as hazardous waste until it has obtained written approval 
and Paragraph (3), is satisfied.
(5) Data Submittals
    To provide appropriate documentation that Teris' facility is 
properly treating the incinerator ash, Teris must compile, summarize, 
and keep delisting records on-site for a minimum of five years. It 
should keep all analytical data obtained through Paragraph (3) 
including quality control information for five years. Paragraph (5) 
requires that Teris furnish these data upon request for inspection by 
any employee or representative of the EPA or the State of Arkansas.
    If the proposed exclusion is made final, then it will apply only to 
30,000 cubic yards per calendar year of stabilized hazardous waste 
incinerator ash generated at the Teris facility after successful 
verification testing.
    The EPA would require Teris to file a new delisting petition under 
any of the following circumstances:
    (a) If Teris significantly alters the manufacturing process 
treatment system except as described in Paragraph (4).
    (b) If Teris uses any new manufacturing or production process(es), 
or significantly change from the current process(es) described in its 
petition; or
    (c) If Teris makes any changes that could affect the composition or 
type of waste generated.
    Teris must manage waste volumes greater than 30,000 cubic yards per 
calendar year of stabilized hazardous waste incinerator ash as 
hazardous waste until the EPA grants a new exclusion. When this 
exclusion becomes final, the management by Teris of the stabilized 
incinerator ash covered by this petition would be relieved from 
Subtitle C jurisdiction. Teris must either (a) treat, store, or dispose 
of the waste in a State permitted on-site facility, or (b) Teris must 
ensure that it delivers the waste to an off-site storage, treatment, or 
disposal facility that has a State permit, license, or register to 
manage municipal or industrial solid waste.
(6) Reopener
    The purpose of Paragraph 6 is to require Teris to disclose new or 
different information related to a condition at the facility or 
disposal of the waste if it is pertinent to the delisting. Teris must 
also use this procedure if the waste sample in the annual testing fails 
to meet the levels found in Paragraph 1. This provision will allow the 
EPA to reevaluate the exclusion if a source provides new or additional 
information to the EPA. The EPA will evaluate the information on which 
it based the decision to see if it is still correct, or if 
circumstances have changed so that the information is no longer correct 
or would cause the EPA to deny the petition if presented.
    This provision expressly requires Teris to report differing site 
conditions or assumptions used in the petition in addition to failure 
to meet the annual testing conditions within 10 days of discovery. If 
the EPA discovers such information itself or from a third party, it can 
act on it as appropriate. The language being proposed is similar to 
those provisions found in RCRA regulations governing no-migration 
petitions at Sec.  268.6.
    The EPA believes that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a

[[Page 55212]]

delisting decision. The EPA may reopen a delisting decision when it 
receives new information that calls into question the assumptions 
underlying the delisting.
    The EPA believes a clear statement of its authority in delistings 
is merited in light of the EPA experience. See Reynolds Metals Company 
at 62 FR 37694 (July 14, 1997) and 62 FR 63458 (December 1, 1997) where 
the delisted waste leached at greater concentrations in the environment 
than the concentrations predicted when conducting the TCLP, thus 
leading the EPA to repeal the delisting. If an immediate threat to 
human health and the environment presents itself, the EPA will continue 
to address these situations case by case. Where necessary, the EPA will 
make a good cause finding to justify emergency rulemaking. See APA 
Sec.  553 (b).
(7) Notification Requirements
    In order to adequately track wastes that have been delisted, the 
EPA is requiring that Teris provide a one-time notification to any 
State regulatory agency through which or to which the delisted waste is 
being carried. Teris must provide this notification within 60 days of 
commencing this activity.

B. What Happens if Teris Violates the Terms and Conditions?

    If Teris violates the terms and conditions established in the 
exclusion, the EPA will start procedures to withdraw the exclusion. 
Where there is an immediate threat to human health and the environment, 
the EPA will evaluate the need for enforcement activities on a case-by-
case basis. The EPA expects Teris to conduct the appropriate waste 
analysis and comply with the criteria explained above in Paragraph 1 of 
the exclusion.

V. Public Comments

A. How May I as an Interested Party Submit Comments?

    The EPA is requesting public comments on this proposed decision. 
Please send three copies of your comments. Send two copies to the 
Section Chief of the Corrective Action and Waste Minimization Section, 
Multimedia Planning and Permitting Division (6PD-C), U. S. 
Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202. 
Send a third copy to Derick Warrick, P. E., Hazardous Waste Division, 
Arkansas Department of Environmental Quality (ADEQ), P.O. Box 8913, 
Little Rock, Arkansas 72219-8913. You should identify your comments at 
the top with this regulatory docket number: F-03-ARDEL-TERIS.
    You should submit requests for a hearing to Steve Gilrein, 
Associate Director of RCRA, Multimedia Planning and Permitting Division 
(6PD-0), U. S. Environmental Protection Agency, 1445 Ross Avenue, 
Dallas, Texas 75202.

B. How May I Review the Docket or Obtain Copies of the Proposed 
Exclusion?

    You may review the RCRA regulatory docket for this proposed rule at 
the U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, 
Dallas, Texas 75202. It is available for viewing in the EPA Freedom of 
Information Act Review Room from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages, and at fifteen cents per page for 
additional copies.

VI. Regulatory Impact

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

VII. Regulatory Flexibility Act

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

VIII. Paperwork Reduction Act

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

IX. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Pub. L. 104-4, which was signed into law on March 22, 1995, the 
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 the EPA rules, under section 
205 of the UMRA the EPA must identify and consider alternatives, 
including the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The EPA must 
select that alternative, unless the Administrator explains in the final 
rule why it was not selected or it is inconsistent with law.
    Before the 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 the EPA's 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.

[[Page 55213]]

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

X. Executive Order 13045

    The Executive Order 13045 is entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997). This order applies to any rule that the 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 EPA 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 EPA. This proposed rule is not 
subject to E.O. 13045 because this is not an economically significant 
regulatory action as defined by Executive Order 12866.

XI. Executive Order 13084

    Because this action does not involve any requirements that affect 
Indian Tribes, the requirements of section 3(b) of Executive Order 
13084 do not apply.
    Under Executive Order 13084, the 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, the EPA must provide to the Office 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of the 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 the EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments to have ``meaningful and timely input'' in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities of Indian tribal governments. This 
action does not involve or impose any requirements that affect Indian 
Tribes. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

XII. National Technology Transfer and Advancement Act

    Under Section 12(d) of the National Technology Transfer and 
Advancement Act, the EPA 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 the EPA, the Act requires that the EPA 
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 EPA has no need to consider the use of voluntary consensus 
standards in developing this final rule.

XIII. Executive Order 13132 Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, the EPA may not issue a 
regulation that has federalism implications, that imposes 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 the 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 EPA 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: September 4, 2003.
William Luthans,
Acting Director, Multimedia Planning and Permitting Division, Region 6.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

    2. In Tables 1, 2 and 3 of Appendix IX of Part 261 add the 
following waste stream in alphabetical order by facility to read as 
follows:

[[Page 55214]]

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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Teris LLC.............................  El Dorado, AR.............  Stabilized hazardous waste incinerator ash
                                                                     bearing some or all of the following EPA
                                                                     Hazardous Waste Numbers: F001-F012, F019,
                                                                     F024, F025, F032, F034, F035, F037-F039.
                                                                     The stabilized hazardous waste incinerator
                                                                     ash is generated at a maximum rate of
                                                                     30,000 cubic yards per calendar year after
                                                                     [publication date of the final rule] and
                                                                     disposed in a Subtitle D landfill.
                                                                    For the exclusion to be valid, Teris must
                                                                     implement a verification testing program
                                                                     that meets the following Paragraphs:
                                                                    (1) Delisting Levels: All leachable
                                                                     concentrations for those constituents must
                                                                     not exceed the maximum allowable
                                                                     concentrations in mg/l specified in this
                                                                     paragraph. Teris must use the leaching
                                                                     method specified at 40 CFR Part 261.24 to
                                                                     measure constituents in the waste leachate.
                                                                     When analyzing for leachable metals, Teris
                                                                     must perform two runs using the Multiple
                                                                     Extraction Procedure. One run will use a pH
                                                                     7.0 leaching medium on inorganic and
                                                                     organic constituents and the other run will
                                                                     use a leaching medium adjusted to pH 4.9 on
                                                                     inorganic constituents.
                                                                    (A) Inorganic Constituents (from Table 1)
                                                                     TCLP (mg/l): Antimony--0.206; Arsenic--
                                                                     0.096; Barium--21.00; Beryllium--0.416;
                                                                     Cadmium--0.11; Chromium--0.60; Cobalt--
                                                                     13.14; Copper--9113.00; Lead--0.69;
                                                                     Mercury--0.025; Nickel--3.98; Selenium--
                                                                     0.58; Silver--0.14; Tin--396.00; Thallium--
                                                                     0.088; Vanadium--1.6; Zinc--2.61.
                                                                    (B) Organic Constituents (from Table 1) TCLP
                                                                     (mg/l): Acenapthylene--0.059; Acetone--
                                                                     0.059; Acetophenone--0.01; Aniline--0.81;
                                                                     Anthracene--0.059; Benzene--0.14;
                                                                     Benzo(a)pyrene--0.0018; Benzo(ghi)perylene--
                                                                     0.0036; Benzo(b)fluoranthrene--0.0038;
                                                                     Benzo(k)fluoranthrene--0.0038; Bis(2-
                                                                     ethylhexyl)phthalate--0.114; Carbon
                                                                     Disulfide--3.80; Chrysene--0.059;
                                                                     Fluoranthene--0.068; Fluorene--0.059;
                                                                     Hexachlorobenzene--0.00822; 2-
                                                                     Methylnapthalene--0.059; Napthalene--0.059;
                                                                     Phenanthrene--0.059; Phenol--0.039; Pyrene--
                                                                     0.067; Styrene--1.90; Toluene--0.08.
                                                                    (2) Waste Holding and Handling:
                                                                    (A) Teris must store the hazardous waste
                                                                     incinerator ash as described in its RCRA
                                                                     permit, or continue to dispose of as
                                                                     hazardous all hazardous waste incinerator
                                                                     ash generated, until the verification
                                                                     testing described in Paragraph (3)(A) and
                                                                     (B), as appropriate, is completed and valid
                                                                     analyses demonstrate that Condition (3) is
                                                                     satisfied.
                                                                    (B) Teris can manage and dispose the
                                                                     stabilized nonhazardous incinerator ash
                                                                     according to all applicable solid waste
                                                                     regulations when levels of constituents
                                                                     measured in the samples of the stabilized
                                                                     hazardous waste incinerator ash do not
                                                                     exceed the levels set forth in Paragraph
                                                                     (1) for two consecutive quarters.
                                                                    (C) If constituent levels in a sample exceed
                                                                     any of the delisting levels set in
                                                                     Paragraph (1), Teris must retreat the
                                                                     batches of incinerator waste used to
                                                                     generate the representative sample until
                                                                     they meet the levels specified in Paragraph
                                                                     1. Teris must repeat the analyses of the
                                                                     treated waste.
                                                                    (D) If the facility has not treated the
                                                                     incinerator ash as necessary to achieve the
                                                                     limits in Paragraph (1), then Teris must
                                                                     either manage and dispose the waste
                                                                     generated under Subtitle C of RCRA, or
                                                                     retreat the incinerator ash until it meets
                                                                     the requirements specified in Paragraph
                                                                     (1).
                                                                    (3) Verification Testing Requirements: Teris
                                                                     must perform sample collection and
                                                                     analyses, including quality control
                                                                     procedures, according to SW-846
                                                                     methodologies.
                                                                    (A) Verification Testing: At quarterly
                                                                     intervals for one year after the EPA grants
                                                                     the final exclusion, Teris must do the
                                                                     following:
                                                                    (i) Collect four representative composite
                                                                     samples of roll-off of the hazardous waste
                                                                     incinerator ash.
                                                                    (ii) Analyze each sample for all
                                                                     constituents listed in Paragraph 1. All
                                                                     samples exceeding delisting levels in
                                                                     Paragraph 1 will be retested. Any roll-off
                                                                     exceeding the delisting levels listed in
                                                                     Paragraph (1) must be retreated or disposed
                                                                     as hazardous waste in a Subtitle C
                                                                     landfill.
                                                                    (iii) Within sixty (60) days after this
                                                                     exclusion becomes final, Teris will report
                                                                     initial verification analytical test data,
                                                                     including analytical quality control
                                                                     information for the first thirty (30) days
                                                                     of operation after this exclusion becomes
                                                                     final of the stabilized incinerator ash
                                                                     treatment process. If levels of
                                                                     constituents measured in the samples of the
                                                                     stabilized hazardous waste incinerator ash
                                                                     that do not exceed the levels set forth in
                                                                     Paragraph (1) are also nonhazardous in two
                                                                     consecutive quarters after the first thirty
                                                                     (30) days of operation after this
                                                                     exclusion, Teris can manage and dispose the
                                                                     stabilized nonhazardous incinerator ash
                                                                     according to all applicable solid waste
                                                                     regulations.
                                                                    (B) Quarterly Testing:
                                                                    (i) Teris must test four representative
                                                                     composite samples of the stabilized
                                                                     incinerator ash for all constituents listed
                                                                     in Paragraph (1) at least once per calendar
                                                                     quarter.

[[Page 55215]]

 
                                                                    (ii) Once the analytical results submitted
                                                                     under Paragraph (3)(B)(i) show two
                                                                     consecutive quarters below the delisting
                                                                     levels in Paragraph (1), Teris may then
                                                                     request that the EPA not require quarterly
                                                                     testing. After the EPA notifies Teris in
                                                                     writing, the company may end quarterly
                                                                     testing.
                                                                    (iii) Following cancellation of the
                                                                     quarterly testing, Teris must continue to
                                                                     test a representative composite sample
                                                                     (according to SW-846 methodologies) for all
                                                                     constituents listed in Paragraph (1) at
                                                                     least annually after the effective date of
                                                                     the final exclusion.
                                                                    (4) Changes in Operating Conditions: If
                                                                     Teris 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), it must notify the EPA in
                                                                     writing; it may no longer handle the wastes
                                                                     generated from the new process as
                                                                     nonhazardous until the wastes meet the
                                                                     delisting levels set in Paragraph (1) and
                                                                     it has received written approval to do so
                                                                     from the EPA.
                                                                    (5) Data Submittals: Teris must submit the
                                                                     information described below. If Teris fails
                                                                     to submit the required data within the
                                                                     specified time or maintain the required
                                                                     records on-site for the specified time, the
                                                                     EPA, at its discretion, will consider this
                                                                     sufficient basis to reopen the exclusion as
                                                                     described in Paragraph 6. Teris must:
                                                                    (A) Submit the data obtained through
                                                                     Paragraph 3 to the Section Chief, Region 6
                                                                     Oklahoma/Texas Section, U.S. EPA, 1445 Ross
                                                                     Avenue, Dallas, Texas 75202-2733, Mail
                                                                     Code, (6PD-O) within the time specified.
                                                                    (B) Compile records of analytical data from
                                                                     Paragraph (3), summarized, and maintained
                                                                     on-site for a minimum of five years.
                                                                    (C) Furnish these records and data when
                                                                     either the EPA or the State of Arkansas
                                                                     request them for inspection.
                                                                    (D) 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
                                                                     the 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 the 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 Teris possesses or is
                                                                     otherwise made aware of any environmental
                                                                     data (including but not limited to leachate
                                                                     data or ground water monitoring data) or
                                                                     any other data relevant to the delisted
                                                                     waste indicating that any constituent
                                                                     identified for the delisting verification
                                                                     testing is at level higher than the
                                                                     delisting level allowed by the Regional
                                                                     Administrator or his delegate in granting
                                                                     the petition, then the facility must report
                                                                     the data, in writing, to the Regional
                                                                     Administrator or his delegate within 10
                                                                     days of first possessing or being made
                                                                     aware of that data.
                                                                    (B) If either the quarterly or annual
                                                                     testing of the waste does not meet the
                                                                     delisting requirements in Paragraph 1,
                                                                     Teris 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 Teris 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 the EPA
                                                                     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 requires action the EPA, 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 the EPA
                                                                     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.

[[Page 55216]]

 
                                                                    (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
                                                                     EPA 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: Teris must do
                                                                     following before transporting the delisted
                                                                     waste:
                                                                    (A) Provide a one-time written notification
                                                                     to any State Regulatory Agency to which or
                                                                     through which it will transport the
                                                                     delisted waste described above for
                                                                     disposal, 60 days before beginning such
                                                                     activities.
                                                                    (B) Update the one-time written notification
                                                                     if Teris ships the delisted waste into a
                                                                     different disposal facility.
                                                                    (C) Failure to provide this notification
                                                                     will result in a violation of the delisting
                                                                     variance and a possible revocation of the
                                                                     decision.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


                                 Table 2.--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                           Address                         Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Teris LLC.............................  El Dorado, AR.............  Stabilized hazardous waste incinerator ash
                                                                     (at a maximum generation of 30,000 cubic
                                                                     yards per calendar year) bearing some or
                                                                     all of the following EPA Hazardous Waste
                                                                     Numbers: K001-K011, K013-K052, K060-K062,
                                                                     K064-K066, K069, K071, K073, K083-K088,
                                                                     K090-K091, K093-K118, K123-K126, K131-K132,
                                                                     K136, K141-K145, K147-K151, K156-K161, K169-
                                                                     K172, K174-K180 generated at Teris. Teris
                                                                     must implement the testing program
                                                                     described in Table 1. Waste Excluded From
                                                                     Non-Specific Sources for the petition to be
                                                                     valid.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


 Table 3.--Waste Excluded From Commercial Chemical Products, Off-Specification Species, Container Residues, and
                                              Soil Residues Thereof
----------------------------------------------------------------------------------------------------------------
               Facility                           Address                         Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Teris LLC.............................  El Dorado, AR.............  Stabilized hazardous waste incinerator ash
                                                                     (at a maximum generation of 30,000 cubic
                                                                     yards per calendar year) bearing some or
                                                                     all of the following EPA Hazardous Waste
                                                                     Numbers: P001-P008, P010-P018, P020-P024,
                                                                     P026-P031, P033-P034, P036-P051, P054, P056-
                                                                     P060, P062-P064, P066-P078, P081-P082, P084-
                                                                     P085, P087-P089, P092-P099, P101-P106, P108-
                                                                     P116, P118-P123, P127-P128, P185, P188-
                                                                     P192, P194, P196-P199, P201-P205, U001-
                                                                     U012, U014-U039, U041-U053, U055-U064, U066-
                                                                     U099, U101-U103, U105-U138, U140-U174, U176-
                                                                     U194, U196-U197, U200-U211, U213-U223, U225-
                                                                     U228, U234-U240, U243-U244, U246-U249,
                                                                     U271, U277-U280, U328, U353, U359, U364-
                                                                     U367, U372-U373, U375-U379, U381-U396, U400-
                                                                     U404, U407, and U409-U411 generated at
                                                                     Teris. Teris must implement the testing
                                                                     program described in Table 1. Waste
                                                                     Excluded From Non-Specific Sources Thereof
                                                                     for the petition to be valid.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 55217]]

[FR Doc. 03-24120 Filed 9-22-03; 8:45 am]
BILLING CODE 6560-50-P