[Federal Register Volume 68, Number 221 (Monday, November 17, 2003)]
[Proposed Rules]
[Pages 64834-64843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28650]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7587-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA is proposing to grant a petition submitted by American 
Chrome & Chemicals L.P. (ACC) to exclude (or delist) certain dewatered 
sludge from the production of chrome oxide green pigments (K006) 
generated at its Corpus Christi, Texas 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 conditionally exclude the 
petitioned waste, the dewatered sludge, from the requirements of 
hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA).
    If finalized, the EPA would conclude that ACC's petitioned waste is 
nonhazardous with respect to the original listing criteria and will 
substantially reduce the likelihood of migration of constituents from 
this waste. The EPA would also conclude that their 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 January 2, 2004. 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 
December 2, 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), Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202. You should send a third

[[Page 64835]]

copy to Wade Wheatley, Industrial Hazardous Waste Permits Division, 
Technical Evaluation Team, Texas Commission on Environmental Quality 
(TCEQ), P.O. Box 13087, Austin, Texas, 78711-3087. Identify your 
comments at the top with this regulatory docket number: ``F-03-TXDEL-
ACC'' You may submit your comments electronically to 
[email protected].
    You should address requests for a hearing to the Director, Carl 
Edlund, Multimedia Planning and Permitting Division (6PD), 
Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.

FOR FURTHER INFORMATION CONTACT: Michelle Peace (214) 665-7430.

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 ACC manage the waste if it is delisted?
    D. When would the EPA finalize the proposed delisting?
    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 waste did ACC petition the EPA to delist?
    B. Who is ACC and what process does it use to generate the 
petitioned waste?
    C. How did ACC sample and analyze the waste in this petition?
    D. What were the results of ACC's analysis?
    E. How did the EPA evaluate the risk of delisting this waste?
    F. What did the EPA conclude about ACC's analysis?
    G. What other factors did the EPA consider in its evaluation?
    H. What is the EPA's Final evaluation of this delisting 
petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if ACC 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 Advancement Act
XIII. Executive Order 13132 Federalism

I. Overview Information

A. What Action Is the EPA Proposing?

    The EPA is proposing to grant ACC's petition to have its dewatered 
sludge (chromic oxide) excluded, or delisted, from the definition of a 
hazardous waste, subject to certain verification and monitoring 
conditions.

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

    ACC's petition requests a delisting for a listed hazardous waste. 
ACC does not believe that the petitioned waste meets the criteria of 
K006 for which the EPA listed it. ACC 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). See section 3001(f) of RCRA, 
42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all 
sectional references are to 40 CFR unless otherwise indicated). In 
making the initial delisting determination, the EPA evaluated the 
petitioned waste against the listing criteria and factors cited in 
Sec. Sec.  261.11(a)(2) and (a)(3). Based on this review, the EPA 
agrees with the petitioner that the petition 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 ACC's facility is based on the 
information submitted in support of this rule, including descriptions 
of the wastes and analytical data from the Corpus Christi, Texas 
facility.

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

    For the past 12 years, ACC's dewatered sludge (chromic oxide) has 
been transferred off-site for treatment/disposal at Texas Ecologists, 
Inc. a nondedicated, off-site, land-based hazardous waste unit in 
Robstown, Texas. The waste management method used for the wastewater 
sludge at Texas Ecologists, Inc. is landfilling. The most recent 
transfer of the petitioned waste to Texas Ecologists was October 17, 
2000.
    ACC originally proposed to dispose of the dewatered sludge in an 
on-site surface impoundment. However, because the DRAS model cannot 
accommodate ACC's site specific parameters for the surface impoundment 
scenario, accurate estimates of potential ground water risks could not 
be made. Therefore, ACC has determined that the delisted waste will be 
disposed of in a non-hazardous waste landfill. If the delisting 
exclusion is finalized, ACC will dispose of the petitioned waste, 
dewatered sludge, at a Subtitle D solid waste landfill.

D. When Would the EPA Finalize the Proposed Delisting?

    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 when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here, because this rule, if finalized, would reduce the existing 
requirements for 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 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

[[Page 64836]]

two categories of states: States having a dual system that includes 
Federal RCRA requirements and their own requirements, and states which 
have received authorization from the EPA to make their own delisting 
decisions.
    The EPA allows states to impose its 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.
    The EPA has also authorized some states (for example, Louisiana, 
Georgia, Illinois) to administer a RCRA delisting program in place of 
the Federal program, that is, to make state delisting decisions. 
Therefore, this exclusion does not apply in those authorized states 
unless that state makes the rule part of its authorized program. If ACC 
transports the petitioned waste to or manages the waste in any state 
with delisting authorization, ACC must obtain delisting authorization 
from that state before it can manage the waste as nonhazardous in the 
state.

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 Agency 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.  260.22(a) and Section 
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 we 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 
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 ACC Petition the EPA To Delist?

    On April 17, 2002, ACC petitioned the EPA to exclude from the list 
of hazardous waste contained in Sec.  261.32, the dewatered sludge 
generated from its facility located in Corpus Christi, Texas. The 
waste, the EPA Hazardous Waste No. K006, falls under the classification 
of listed waste because of the ``derived-from'' rule in Sec.  261.3. 
Specifically, in its petition, ACC requested that the EPA grant an 
exclusion for 1450 cubic yards per year of dewatered sludge resulting 
from its process of manufacturing chromic oxide. The resulting waste is 
listed, in accordance with the ``derived-from'' rule.
    ACC's wastewater sludge contains approximately 11% solids. The 
petitioned waste is only the dewatered portion of the sludge, not the 
entire sludge (solids and wastewater) that is generated from the 
current wastewater treatment process. Currently, ACC discharges the 
wastewater sludge through Outfall 201, into an on-site storage tank. 
The discharge is permitted by Texas Commission on Environmental Quality 
(TCEQ) through a Texas Pollution Discharges Elimination System (TPDES) 
Permit No. 003490 (EPA NPDES Permit No. TX0004685).

B. Who Is ACC and What Process Does It Use To Generate the Petitioned 
Waste?

    The ACC facility is located in an industrial/commercial setting in 
the western portion of the City of Corpus Christi, Nueces County, 
Texas. ACC produces various grades of chromic oxide at their Corpus 
Christi, Texas facility. Chromic oxide is produced through the chemical 
reaction of sodium dichromate and ammonium sulfate. The produced 
chromic oxide is washed to create the desired purity of the final 
product. The sludge generated from this process is listed hazardous 
waste and identified as K006. The facility operates 24 hours per day, 7 
days per week, 365 days per year with the exception of periodic planned 
shutdowns for routine maintenance.

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

    To support its petition, ACC submitted:
    (1) historical information on past waste generation and management 
practices;
    (2) results of the total constituent list for 40 CFR part 264, 
appendix IX

[[Page 64837]]

volatiles, semivolatiles, metals, pesticides, herbicides, and PCBs;
    (3) results of the constituent list for appendix IX on Toxicity 
Characteristic Leaching Procedure (TCLP) extract;
    (4) results from total oil and grease analyses; and
    (5) multiple pH testing of the petitioned waste.

D. What Were the Results of ACC's Analyses?

    The EPA believes that the descriptions of the ACC hazardous waste 
process and analytical characterization in conjunction with the 
proposed verification testing requirements (as discussed later in this 
document), provide a reasonable basis to grant ACC's petition for an 
exclusion of the petitioned waste. The EPA believes the data submitted 
in support of the petition show the dewatered sludge is non-hazardous. 
Analytical data for the petitioned waste samples were used in the 
Delisting Risk Assessment Software (DRAS). The EPA has reviewed the 
sampling procedures used by ACC and has determined they satisfy the EPA 
criteria for collecting representative samples of the variations in 
constituent concentrations in the dewatered wastewater sludge. The data 
submitted in support of the petition show that constituents in ACC's 
waste are presently below health-based levels used in the delisting 
decision-making. The EPA believes that ACC has successfully 
demonstrated that the petitioned waste is non-hazardous.

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 ACC's 
petitioned waste. The EPA applied the 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 ACC's 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 0.1), the DRAS program can back-calculate the acceptable receptor 
well concentrations (referred to as compliance-point concentrations) 
using standard risk assessment algorithms and Agency 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 ground water.
    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). 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, ACC 
has never directly disposed of this material in an on-site solid waste 
landfill, so no representative data exists. Therefore, the EPA has 
determined that it would be unnecessary to request ground water 
monitoring data.
    The EPA believes that the descriptions of ACC's 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 
minimized.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste along with the data 
summary of the detected constituents are presented in Table I. Based on 
the comparison of the DRAS results and maximum TCLP concentrations, the 
petitioned waste should be delisted because no constituents of concern 
exceed the delisting concentrations.

       Table I.--Maximum Total and TCLP Constituent Concentrations of the Dewatered Wastewater Sludge \1\
----------------------------------------------------------------------------------------------------------------
                                                                                             Maximum allowable
                 Constituent                    Total constituent  TCLP concentration (mg/   TCLP concentration
                                                analyses (mg/kg)             L)               from DRAS (mg/L)
----------------------------------------------------------------------------------------------------------------
Arsenic......................................                74.3                *0.00495                 0.0377
Barium.......................................                21.8                *5                     100
Chromium.....................................           113,000                   0.644                   5
Thallium.....................................                23                  *0.05                    0.355

[[Page 64838]]

 
Zinc.........................................                38.8                *0.1                 1130
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\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.
*Denotes that the constituent was not detected at the noted detection limit

F. What Did the EPA Conclude About ACC's Analysis?

    The EPA concluded, after reviewing ACC's processes that no other 
hazardous constituents of concern, other than those for which ACC 
tested, are likely to be present or formed as reaction products or by 
products in ACC's waste. In addition, on the basis of explanations and 
analytical data provided by ACC, pursuant to Sec.  260.22, the EPA 
concludes that the petitioned waste does 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 ACC's petition, the EPA also considered 
the potential impact of ACC's 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 ACC's petitioned waste is unlikely. Therefore, no 
appreciable air releases are likely from the petitioned waste under any 
likely disposal conditions. The EPA evaluated the potential hazards 
resulting from the unlikely scenario of airborne exposure to hazardous 
constituents released from ACC's petitioned waste 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 ACC's 
petitioned waste. A description of the EPA's assessment of the 
potential impact of ACC's petitioned waste, regarding airborne 
dispersion of waste contaminants, is presented in the RCRA public 
docket for this proposed rule, F-03-TXDEL-ACC.
    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 action due to the 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 ACC's petitioned waste 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 the petitioned waste 
would not present potential hazard to human health and the environment 
via the surface water exposure pathway.

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

    The descriptions of ACC's 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 I). We believe ACC's 
process will substantially reduce the likelihood of migration of 
hazardous constituents from the petitioned waste. ACC's process also 
minimizes short-term and long-term threats from the petitioned waste to 
human health and the environment.
    The EPA has reviewed the sampling procedures used by ACC and has 
determined they satisfy the EPA criteria for collecting representative 
samples of variable constituent concentrations in the petitioned 
sludge. The data submitted in support of the petition show that 
constituents in ACC's petitioned waste are presently below the 
compliance point concentrations used in the delisting decision-making 
and would not pose a substantial hazard to the environment.
    The EPA believes that ACC has successfully demonstrated that the 
petitioned waste is non-hazardous, and therefore, proposes to grant an 
exclusion to ACC, in Corpus Christi, Texas, for the dewatered sludge 
described in its petition. The EPA's decision to exclude this waste is 
based on descriptions of the treatment activities and characterization 
of the petitioned waste.
    If we finalize the proposed rule, the Agency will no longer 
regulate the petitioned waste 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, ACC, must comply with the requirements in 40 CFR 
part 261, appendix IX, Table 2 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 for which ACC 
must test the leachate from the dewatered sludge, below which the waste 
would be considered nonhazardous.
    The EPA selected the set of constituents specified in Paragraph (1)

[[Page 64839]]

of 40 CFR part 261, appendix IX, Table 2, based on information in the 
petition. We compiled the list from the composition of the waste, 
descriptions of ACC's treatment process, 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 of the waste.

(2) Waste Holding and Handling

    The purpose of this paragraph is to ensure that any dewatered 
sludge which might contain hazardous levels of constituents are managed 
and disposed of in accordance with Subtitle C of RCRA. Holding the 
petitioned waste until characterization is complete will protect 
against improper handling of hazardous material. If the EPA determines 
that the data collected under this Paragraph do not support the data 
provided in the petition, the exclusion will not cover the petitioned 
waste. The exclusion is effective when we sign it, but the disposal 
cannot begin until the verification sampling is completed. The 
dewatered sludge must pass paint filter test as described in EPA SW-
846, Method 9095 before it is allowed to be shipped off-site. ACC must 
maintain a record of the date and the actual volume of the dewatered 
sludge removed from the tank according to the requirements in Paragraph 
(5).

(3) Verification Testing Requirements

    ACC shall conduct verification testing each time it is ready to 
evacuate the tank sludge for disposal. Four (4) representative 
composite samples for verification shall be collected from the 
dewatered sludge. ACC shall analyze the verification samples according 
to the constituent list specified in Paragraph (1) of 40 CFR part 261, 
appendix IX, Table 2. The results from each event should be submitted 
to EPA within 10 days of receiving the results.
    If EPA determines that the data collected under this Paragraph do 
not support the data provided for the petition, the exclusion will not 
cover the generated wastes. The EPA will notify ACC of the decision in 
writing within two weeks of receiving this information.

(4) Changes in Operating Conditions

    Paragraph (4) would allow ACC the flexibility of modifying its 
processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment process. ACC must prove the 
effectiveness of the modified process by testing and request approval 
from the EPA. ACC must manage wastes generated during the new process 
demonstration as hazardous waste until it receives a written approval 
from the EPA and the delisting levels specified in Paragraph (1) are 
satisfied.
    If the proposed exclusion is made final, it will apply only to 1450 
cubic yards of dewatered sludge, generated annually at the ACC's 
facility after successful verification testing.
    ACC must manage waste volumes greater than 1450 cubic yards of 
petitioned waste as hazardous until the EPA grants a new exclusion.
    When this new exclusion becomes final, ACC's management of the 
waste covered by this petition would be relieved from Subtitle C 
jurisdiction. ACC must ensure that it delivers the waste to an off-site 
storage, treatment, or disposal facility that has a state permit, 
license, or registration to manage municipal or industrial solid waste.
    The EPA would require ACC to file a new delisting petition under 
any of the following circumstances:
    (a) If it significantly alters the manufacturing process treatment 
system except as described in Paragraph (4)
    (b) If it uses any new manufacturing or production process(es), or 
significantly changes from the current process(es) described in its 
petition; or
    (c) If it makes any changes that could affect the composition or 
type of waste generated.

(5) Data Submittals

    To provide appropriate documentation that ACC's facility is 
properly treating the waste, ACC must compile, summarize, and keep 
delisting records on-site for a minimum of five years. They must keep 
all analytical data obtained through Paragraph (3) including quality 
control information for five years. Paragraph (5) requires that ACC 
furnish these data when the EPA or the State of Texas request them for 
inspection.

(6) Reopener

    The purpose of Paragraph (6) is to require ACC 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. ACC must 
also use this procedure if the verification sampling testing fails to 
meet the delisting 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 Agency. 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 ACC to report differing site 
conditions or assumptions used in the petition in addition to failure 
to meet the verification 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 delisting decision. The EPA may reopen a delisting decision 
when we receive new information that calls into question the 
assumptions underlying the delisting.
    The Agency believes a clear statement of its authority in 
delistings is merited in light of Agency 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 Agency 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 section 553 (b).

(7) Notification Requirements

    In order to adequately track wastes that have been delisted, the 
EPA is requiring that ACC provide a one-time notification to any state 
regulatory agency through which or to which the delisted waste is being 
carried. ACC must provide this notification within 60 days of 
commencing this activity.

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

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

[[Page 64840]]

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 Section 
Chief, Corrective Action and Waste Minimization Section, Multimedia 
Planning and Permitting Division (6PD-C), Environmental Protection 
Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy 
to Industrial Hazardous Waste Permits Division, Technical Evaluation 
Team, Texas Commission on Environmental Quality (TCEQ), P.O. Box 13087, 
Austin, Texas, 78711-3087. Identify your comments at the top with this 
regulatory docket number: ``F-03-TXDEL-ACC.'' You may submit your 
comments electronically to [email protected].
    You should submit requests for a hearing to Carl Edlund, Director, 
Multimedia Planning and Permitting Division (6PD), 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 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, I hereby certify 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 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 regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising them on compliance with the regulatory requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon state, local, or 
tribal governments or the private sector.
    The EPA finds that this 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 Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This 
proposed rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866.

XI. Executive Order 13084

    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

[[Page 64841]]

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

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'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, the EPA may not issue a 
regulation that has federalism implications, that impose substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or 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 Agency consults with state and local officials early in the 
process of developing the proposed regulation.
    This action does not have federalism implication. It will not have 
a substantial direct effect on states, on the relationship between the 
national government and the states, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, because it affects only one facility.

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: November 6, 2003.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division.
    For the reasons set out in the preamble, 40 CFR part 261 is to be 
amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
    2. In Table 2 of Appendix IX of Part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

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

                                 Table 2.--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                                 Address                         Waste description
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
American Chrome & Chemicals...........  Corpus Christi, Texas.................  Dewatered sludge (the EPA
                                                                                 Hazardous Waste No. K006)
                                                                                 generated at a maximum
                                                                                 generation of 1450 cubic yards
                                                                                 per calendar year after
                                                                                 [publication date of the final
                                                                                 rule] and disposed in a
                                                                                 Subtitle D landfill.
                                                                                ACC must implement a
                                                                                 verification program that meets
                                                                                 the following Paragraphs:
                                                                                (1) Delisting Levels: All
                                                                                 leachable constituent
                                                                                 concentrations must not exceed
                                                                                 the following levels (mg/l).
                                                                                 The petitioner must use the
                                                                                 method specified in 40 CFR
                                                                                 261.24 to measure constituents
                                                                                 in the waste leachate.
                                                                                Dewatered wastewater sludge:
                                                                                 Arsenic-0.0377; Barium-100.0;
                                                                                 Chromium-5.0; Thallium-0.355;
                                                                                 Zinc-1130.0.
                                                                                (2) Waste Holding and Handling:
                                                                                (A) ACC is a 90 day facility and
                                                                                 does not have a RCRA permit,
                                                                                 therefore, ACC must store the
                                                                                 dewatered sludge following the
                                                                                 requirements specified in 40
                                                                                 CFR 262.34, or continue to
                                                                                 dispose of as hazardous all
                                                                                 dewatered sludge generated,
                                                                                 until they have completed
                                                                                 verification testing described
                                                                                 in Paragraph (3), as
                                                                                 appropriate, and valid analyses
                                                                                 show that paragraph (1) is
                                                                                 satisfied.
                                                                                (B) Levels of constituents
                                                                                 measured in the samples of the
                                                                                 dewatered sludge that do not
                                                                                 exceed the levels set forth in
                                                                                 Paragraph (1) are non-
                                                                                 hazardous. ACC can manage and
                                                                                 dispose the non-hazardous
                                                                                 dewatered sludge according to
                                                                                 all applicable solid waste
                                                                                 regulations.

[[Page 64842]]

 
                                                                                (C) If constituent levels in a
                                                                                 sample exceed any of the
                                                                                 delisting levels set in
                                                                                 Paragraph (1), ACC must retreat
                                                                                 the batches of waste used to
                                                                                 generate the representative
                                                                                 sample until it meets the
                                                                                 levels. ACC must repeat the
                                                                                 analyses of the treated waste.
                                                                                (D) If the facility does not
                                                                                 treat the waste or retreat it
                                                                                 until it meets the delisting
                                                                                 levels in Paragraph (1), ACC
                                                                                 must manage and dispose the
                                                                                 waste generated under Subtitle
                                                                                 C of RCRA.
                                                                                (E) The dewatered sludge must
                                                                                 pass paint filter test as
                                                                                 described in SW 846, Method
                                                                                 9095 before it is allowed to
                                                                                 leave the facility. ACC must
                                                                                 maintain a record of the actual
                                                                                 volume of the dewatered sludge
                                                                                 to be disposed of-site
                                                                                 according to the requirements
                                                                                 in Paragraph (5).
                                                                                (3) Verification Testing
                                                                                 Requirements: ACC must conduct
                                                                                 verification testing each time
                                                                                 it decides to evacuate the tank
                                                                                 contents. Four (4)
                                                                                 representative composite
                                                                                 samples shall be collected from
                                                                                 the dewatered sludge. ACC shall
                                                                                 analyze the verification
                                                                                 samples according to the
                                                                                 constituent list specified in
                                                                                 Paragraph (1) and submit the
                                                                                 analytical results to EPA
                                                                                 within 10 days of receiving the
                                                                                 analytical results. If the EPA
                                                                                 determines that the data
                                                                                 collected under this Paragraph
                                                                                 do not support the data
                                                                                 provided for the petition, the
                                                                                 exclusion will not cover the
                                                                                 generated wastes. The EPA will
                                                                                 notify ACC the decision in
                                                                                 writing within two weeks of
                                                                                 receiving this information.
                                                                                (4) Changes in Operating
                                                                                 Conditions: If ACC
                                                                                 significantly changes the
                                                                                 process described in its
                                                                                 petition or starts any
                                                                                 processes that may or could
                                                                                 affect the composition or type
                                                                                 of waste generated as
                                                                                 established under Paragraph (1)
                                                                                 (by illustration, but not
                                                                                 limitation, changes in
                                                                                 equipment or operating
                                                                                 conditions of the treatment
                                                                                 process), they must notify the
                                                                                 EPA in writing; they may no
                                                                                 longer handle the wastes
                                                                                 generated from the new process
                                                                                 as nonhazardous until the test
                                                                                 results of the wastes meet the
                                                                                 delisting levels set in
                                                                                 Paragraph (1) and they have
                                                                                 received written approval to do
                                                                                 so from the EPA.
                                                                                (5) Data Submittals: ACC must
                                                                                 submit the information
                                                                                 described below. If ACC 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.
                                                                                 ACC must:
                                                                                (A) Submit the data obtained
                                                                                 through Paragraph 3 to the
                                                                                 Section Chief, Corrective
                                                                                 Action and Waste Minimization
                                                                                 Section, Environmental
                                                                                 Protection Agency, 1445 Ross
                                                                                 Avenue, Dallas, Texas 75202-
                                                                                 2733, Mail Code, (6PD-C) within
                                                                                 the time specified.
                                                                                (B) Compile records of operating
                                                                                 conditions and analytical data
                                                                                 from Paragraph (3), summarized,
                                                                                 and maintained on-site for a
                                                                                 minimum of five years.
                                                                                (C) Furnish these records and
                                                                                 data when the EPA or the State
                                                                                 of Texas 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, ACC
                                                                                 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
                                                                                 Division Director in granting
                                                                                 the petition, then the facility
                                                                                 must report the data, in
                                                                                 writing, to the Division
                                                                                 Director within 10 days of
                                                                                 first possessing or being made
                                                                                 aware of that data.
                                                                                (B) If the verification testing
                                                                                 of the waste does not meet the
                                                                                 delisting requirements in
                                                                                 Paragraph 1, ACC must report
                                                                                 the data, in writing, to the
                                                                                 Division Director within 10
                                                                                 days of first possessing or
                                                                                 being made aware of that data.
                                                                                (C) If ACC 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
                                                                                 Division Director will make a
                                                                                 preliminary determination as to
                                                                                 whether the reported
                                                                                 information requires Agency
                                                                                 action to protect human health
                                                                                 or the environment. Further
                                                                                 action may include suspending,
                                                                                 or revoking the exclusion, or
                                                                                 other appropriate response
                                                                                 necessary to protect human
                                                                                 health and the environment.
                                                                                (D) If the Division Director
                                                                                 determines that the reported
                                                                                 information does require Agency
                                                                                 action, the Division Director
                                                                                 will notify the facility in
                                                                                 writing of the actions the
                                                                                 Division Director believes are
                                                                                 necessary to protect human
                                                                                 health and the environment. The
                                                                                 notice shall include a
                                                                                 statement of the proposed
                                                                                 action and a statement
                                                                                 providing the facility with an
                                                                                 opportunity to present
                                                                                 information as to why the
                                                                                 proposed Agency action is not
                                                                                 necessary. The facility shall
                                                                                 have 10 days from the date of
                                                                                 the Division Director's notice
                                                                                 to present such information.

[[Page 64843]]

 
                                                                                (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 Division Director
                                                                                 will issue a final written
                                                                                 determination describing the
                                                                                 Agency actions that are
                                                                                 necessary to protect human
                                                                                 health or the environment. Any
                                                                                 required action described in
                                                                                 the Division Director's
                                                                                 determination shall become
                                                                                 effective immediately, unless
                                                                                 the Division Director provides
                                                                                 otherwise.
                                                                                (7) Notification Requirements:
                                                                                 ACC must do the following
                                                                                 before transporting the
                                                                                 delisted waste: Failure to
                                                                                 provide this notification will
                                                                                 result in a violation of the
                                                                                 delisting petition and a
                                                                                 possible revocation of the
                                                                                 decision.
                                                                                (A) Provide a one-time written
                                                                                 notification to any State
                                                                                 Regulatory Agency to which or
                                                                                 through which they will
                                                                                 transport the delisted waste
                                                                                 described above for disposal,
                                                                                 60 days before beginning such
                                                                                 activities. If ACC transports
                                                                                 the excluded waste to or
                                                                                 manages the waste in any state
                                                                                 with delisting authorization,
                                                                                 ACC must obtain delisting
                                                                                 authorization from that state
                                                                                 before it can manage the waste
                                                                                 as nonhazardous in the state.
                                                                                (B) Update the one-time written
                                                                                 notification if they ship the
                                                                                 delisted waste to a different
                                                                                 disposal facility.
                                                                                (C) Failure to provide the
                                                                                 notification will result in a
                                                                                 violation of the delisting
                                                                                 variance and a possible
                                                                                 revocation of the Exclusion.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 03-28650 Filed 11-14-03; 8:45 am]
BILLING CODE 6560-50-P