[Federal Register Volume 69, Number 103 (Thursday, May 27, 2004)]
[Rules and Regulations]
[Pages 30227-30232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11927]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-7667-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The EPA (also, ``the Agency'' or ``we'') in this preamble is 
granting a petition submitted by Bekaert Corporation (Bekaert) to 
exclude (or delist) a certain solid waste generated by its Dyersburg, 
Tennessee facility from

[[Page 30228]]

the lists of hazardous wastes. Sludge generated from the treatment of 
wastewaters generated from electroplating processes are listed as 
hazardous waste number F006 under the Resource Conservation and 
Recovery Act (RCRA).
    Today's action conditionally excludes the petitioned waste from the 
list of hazardous wastes only if the waste is disposed of in a Subtitle 
D landfill which is permitted, licensed, or registered by a State to 
manage industrial solid waste.

DATES: Effective Date: This rule is effective on May 27, 2004.

ADDRESSES: The RCRA regulatory docket for this final rule, number 
R4DLP-0401-Bekaert, is located at the RCRA Enforcement and Compliance 
Branch, Waste Division, U.S. Environmental Protection Agency Region 4, 
61 Forsyth Street, SW., Atlanta, Georgia 30303, and is available for 
viewing from 8 a.m. to 4 p.m., Monday through Friday, excluding Federal 
holidays. Call Daryl Himes at (404) 562-8614 for appointments. The 
public may copy material from the regulatory docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general and technical information 
about this final rule, contact Daryl Himes, South Enforcement and 
Compliance Section, (Mail Code 4WD-RCRA), RCRA Enforcement and 
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam 
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 
30303 or call (404) 562-8614.

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

I. Background
    A. What Is a Delisting Petition, and What Does It Require of 
Petitioner?
    B. What Regulations Allow a Waste To Be Delisted?
II. Bekaert's Delisting Petition
    A. What Wastes Did Bekaert Petition the EPA To Delist?
    B. What Information Must the Generator Supply?
    C. What Information Did Bekaert Submit To Support this Petition?
III. EPA's Evaluation and Final Rule
    A. What Decision Is EPA Finalizing and Why?
    B. What Are the Terms of This Exclusion?
    C. When Is the Delisting Effective?
    D. How Does This Action Affect the States?
IV. Public Comments Received on the Proposed Exclusion
V. Regulatory Impact
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
VIII. Unfunded Mandates Reform Act
IX. Executive Order 13045
X. Executive Order 13084
XI. National Technology Transfer and Advancements Act
XII. Executive Order 13132 Federalism

I. Background

A. 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 40 CFR 260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics 
(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.

B. What Regulations Allow a Waste To Be Delisted?

    Under 40 CFR 260.20 and 260.22, a generator may petition the EPA to 
remove its wastes from hazardous waste control by excluding it from the 
lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. 
Specifically, 40 CFR 260.20 allows any person to petition the 
Administrator to modify or evoke any provision of parts 260 through 
266, 268, and 273 of Title 40 of the Code of Federal Regulations. 40 
CFR 260.22 provides a generator the opportunity to petition the 
Administrator to exclude a waste on a ``generator specific'' basis from 
the hazardous waste lists.

II. Bekaert's Delisting Petition

A. What Wastes Did Bekaert Petition the EPA To Delist?

    On October 28, 2002, Bekaert petitioned the EPA to exclude from the 
lists of hazardous waste contained in 40 CFR 261.31 and 261.32, a 
dewatered WWTP sludge generated from the facility located in Dyersburg, 
Tennessee. The waste (EPA Hazardous Waste No. F006) is generated by 
treating wastewater from the copper and zinc electroplating of steel 
cords for the automobile tire industry. Specifically, in its petition, 
Bekaert requested that the EPA grant an exclusion for 1250 cubic yards 
per calendar year of dewatered WWTP sludge resulting from the treatment 
of waste waters from an electroplating operation at its facility.

B. What Information Must the Generator Supply?

    A generator must provide sufficient information to allow the EPA to 
determine that the waste does not meet any of the criteria for which it 
was listed as a hazardous waste. In addition, where there is a 
reasonable basis to believe that factors other than those for which the 
waste was listed (including additional constituents) could cause the 
waste to be hazardous, the Administrator must determine that such 
factors do not warrant retaining the waste as hazardous.

C. What Information Did Bekaert Submit To Support This Petition?

    To support its petition, Bekaert submitted detailed chemical and 
physical analysis of the dewatered WWTP sludge generated by its 
facility.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

    Today the EPA is finalizing an exclusion for 1250 cubic yards per 
calendar year of dewatered WWTP sludge resulting from the treatment of 
waste waters from an electroplating operation at its facility in 
Dyersburg, Tennessee.
    Bekaert petitioned EPA to exclude, or delist, the dewatered WWTP 
sludge because Bekaert believes that the petitioned waste does not meet 
the criteria for which it was listed and that there are no additional 
constituents or factors which could cause the waste to be hazardous. 
Review of this petition included consideration of the original listing 
criteria, as well as the additional factors required by the Hazardous 
and Solid Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42 
United States Code (U.S.C.) 6921(f), and 40 CFR 260.22(d)(2)-(4).
    On February 20, 2004, EPA proposed to exclude or delist Bekaert's 
dewatered WWTP sludge from the treatment of waste waters from an 
electroplating operation from the list of hazardous wastes in 40 CFR 
261.31 and accepted public comment on the proposed rule (69 FR 7888). 
EPA received no comments on the proposed rule and for the reasons 
stated in both the proposal and this document, EPA believes that

[[Page 30229]]

Bekaert's waste should be excluded from hazardous waste control.

B. What Are the Terms of This Exclusion?

    Bekaert must dispose of the WWTP sludge resulting from the 
treatment of waste waters from an electroplating operation at its 
facility in a Subtitle D landfill which is permitted, licensed, or 
registered by a state to manage industrial waste. Any amount of WWTP 
sludge which is generated in excess of 1250 cubic yards per calendar 
year is not considered delisted under this exclusion. This exclusion is 
effective only if all conditions contained in today's rule are 
satisfied.

C. When Is the Delisting Effective?

    This rule is effective May 27, 2004. The Hazardous and Solid Waste 
Amendments of 1984 amended section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. This rule 
reduces rather than increases the existing requirements and, therefore, 
is effective immediately upon publication under the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d).

D. How Does This Action Affect the States?

    Because EPA is issuing today's 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.
    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.
    EPA has also authorized some states to administer a delisting 
program in place of the federal program to make state delisting 
decisions. Therefore, this exclusion does not apply in those authorized 
states. If Bekaert transports the petitioned waste to or manages the 
waste in any state with delisting authorization, Bekaert must obtain a 
delisting from that state before it can manage the waste as 
nonhazardous in the state. Delisting petitions approved by the EPA 
Administrator under 40 CFR 260.22 are effective in the State of 
Tennessee only after the final rule has been published in the Federal 
Register.

IV. Public Comments Received on the Proposed Exclusion

    No comments were received from the public pursuant to the proposed 
rule delisting this action.

V. 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.

VI. 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 (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 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. Therefore, this regulation 
does not require a regulatory flexibility analysis.

VII. Paperwork Reduction Act

    Information collection and recordkeeping 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.

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
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. The 
alternatives must include 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.
    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.

IX. Executive Order 13045

    The Executive Order 13045 is entitled ``Protection of Children from

[[Page 30230]]

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 Executive Order 13045 because this is not an economically 
significant regulatory action as defined by Executive Order 12866.

X. 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.

XI. 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.

XII. 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.

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: May 18, 2004.
J. Scott Gordon,
Acting Director, Waste Management Division, Region 4.

0
For the reasons set out in the preamble, 40 CFR part 261 is amended as 
follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

0
2. Tables 1, 2 and 3 of appendix IX of part 261 are amended by adding 
the following entry in alphabetical order in each table to read as 
follows:

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

----------------------------------------------------------------------------------------------------------------
              Facility                             Address                           Waste description
----------------------------------------------------------------------------------------------------------------
Bekaert Corp.......................  Dyersburg, TN......................  Dewatered wastewater treatment plant
                                                                           (WWTP) sludge (EPA Hazardous Waste
                                                                           Nos. F006) generated at a maximum
                                                                           rate of 1250 cubic yards per calendar
                                                                           year after May 27, 2004, and disposed
                                                                           in a Subtitle D landfill.
                                                                          For the exclusion to be valid, Bekaert
                                                                           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. Bekaert must use the
                                                                           leaching method specified at 40 CFR
                                                                           261.24 to measure constituents in the
                                                                           waste leachate.
                                                                          (A) Inorganic Constituents TCLP (mg/
                                                                           l): Cadmium--0.672; Chromium--5.0;
                                                                           Nickel--127; Zinc--1260.0.
                                                                          (B) Organic Constituents TCLP (mg/l):
                                                                           Methyl ethyl ketone--200.0.

[[Page 30231]]

 
                                                                          (2) Waste Holding and Handling:
                                                                          (A) Bekaert must accumulate the
                                                                           hazardous waste dewatered WWTP sludge
                                                                           in accordance with the applicable
                                                                           regulations of 40 CFR 262.34 and
                                                                           continue to dispose of the dewatered
                                                                           WWTP sludge as hazardous waste.
                                                                          (B) Once the first quarterly sampling
                                                                           and analyses event described in
                                                                           paragraph (3) is completed and valid
                                                                           analyses demonstrate that no
                                                                           constituent is present in the sample
                                                                           at a level which exceeds the
                                                                           delisting levels set in paragraph
                                                                           (1), Bekaert can manage and dispose
                                                                           of the dewatered WWTP sludge as
                                                                           nonhazardous according to all
                                                                           applicable solid waste regulations.
                                                                          (C) If constituent levels in any
                                                                           sample taken by Bekaert exceed any of
                                                                           the delisting levels set in paragraph
                                                                           (1), Bekaert must do the following:
                                                                           (i) notify EPA in accordance with
                                                                           paragraph (7) and (ii) manage and
                                                                           dispose the dewatered WWTP sludge as
                                                                           hazardous waste generated under
                                                                           Subtitle C of RCRA.
                                                                          (D) Quarterly Verification Testing
                                                                           Requirements: Upon this exclusion
                                                                           becoming final, Bekaert may begin the
                                                                           quarterly testing requirements of
                                                                           paragraph (3) on its dewatered WWTP
                                                                           sludge.
                                                                          (3) Quarterly Testing Requirements:
                                                                           Upon this exclusion becoming final,
                                                                           Bekaert may perform quarterly
                                                                           analytical testing by sampling and
                                                                           analyzing the dewatered WWTP sludge
                                                                           as follows:
                                                                          (A)(i) Collect four representative
                                                                           composite samples of the hazardous
                                                                           waste dewatered WWTP sludge at
                                                                           quarterly (ninety (90) day) intervals
                                                                           after EPA grants the final exclusion.
                                                                           The first composite sample may be
                                                                           taken at any time after EPA grants
                                                                           the final approval.
                                                                          (ii) Analyze the samples for all
                                                                           constituents listed in paragraph (1).
                                                                           Any roll-offs from which the
                                                                           composite sample is taken exceeding
                                                                           the delisting levels listed in
                                                                           paragraph (1) must be disposed as
                                                                           hazardous waste in a Subtitle C
                                                                           landfill.
                                                                          (iii) Within forty-five (45) days
                                                                           after taking its first quarterly
                                                                           sample, Bekaert will report its first
                                                                           quarterly analytical test data to
                                                                           EPA. If levels of constituents
                                                                           measured in the sample of the
                                                                           dewatered WWTP sludge do not exceed
                                                                           the levels set forth in paragraph (1)
                                                                           of this exclusion, Bekaert can manage
                                                                           and dispose the nonhazardous
                                                                           dewatered WWTP sludge according to
                                                                           all applicable solid waste
                                                                           regulations.
                                                                          (4) Annual Testing:
                                                                          (A) If Bekaert completes the quarterly
                                                                           testing specified in paragraph (3)
                                                                           above and no sample contains a
                                                                           constituent with a level which
                                                                           exceeds the limits set forth in
                                                                           paragraph (1), Bekaert may begin
                                                                           annual testing as follows: Bekaert
                                                                           must test one representative
                                                                           composite sample of the dewatered
                                                                           WWTP sludge for all constituents
                                                                           listed in paragraph (1) at least once
                                                                           per calendar year.
                                                                          (B) The sample for the annual testing
                                                                           shall be a representative composite
                                                                           sample (according to SW-846
                                                                           methodologies) for all constituents
                                                                           listed in paragraph (1).
                                                                          (C) The sample for the annual testing
                                                                           taken for the second and subsequent
                                                                           annual testing events shall be taken
                                                                           within the same calendar month as the
                                                                           first annual sample taken.
                                                                          (5) Changes in Operating Conditions:
                                                                           If Bekaert significantly changes the
                                                                           process described in its petition or
                                                                           starts any processes that generate(s)
                                                                           the waste that may or could affect
                                                                           the composition or type of waste
                                                                           generated as established under
                                                                           paragraph (1) (by illustration, but
                                                                           not limitation, changes in equipment
                                                                           or operating conditions of the
                                                                           treatment process), 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.
                                                                          (6) Data Submittals: Bekaert must
                                                                           submit the information described
                                                                           below. If Bekaert fails to submit the
                                                                           required data within the specified
                                                                           time or maintain the required records
                                                                           on-site for the specified time, the
                                                                           EPA, at its discretion, will consider
                                                                           this sufficient basis to reopen the
                                                                           exclusion as described in paragraph
                                                                           (7). Bekaert must:
                                                                          (A) Submit the data obtained through
                                                                           paragraph (3) to the Chief, North
                                                                           Section, RCRA Enforcement and
                                                                           Compliance Branch, Waste Division, U.
                                                                           S. Environmental Protection Agency
                                                                           Region 4, 61 Forsyth Street, SW.,
                                                                           Atlanta, Georgia, 30303, 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
                                                                           Tennessee 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.''

[[Page 30232]]

 
                                                                          (7) Reopener:
                                                                          (A) If, anytime after disposal of the
                                                                           delisted waste Bekaert possesses or
                                                                           is otherwise made aware of any
                                                                           environmental data (including but not
                                                                           limited to leachate data or 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 ten (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), Bekaert must report
                                                                           the data, in writing, to the Regional
                                                                           Administrator or his delegate within
                                                                           ten (10) days of first possessing or
                                                                           being made aware of that data.
                                                                          (C) If Bekaert fails to submit the
                                                                           information described in paragraphs
                                                                           (5), (6)(A) or (6)(B) or if any other
                                                                           information is received from any
                                                                           source, the Regional Administrator or
                                                                           his delegate will make a preliminary
                                                                           determination as to whether the
                                                                           reported information requires 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 notification 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
                                                                           ten (10) days from the date of the
                                                                           Regional Administrator or his
                                                                           delegate's notice to present such
                                                                           information.
                                                                          (E) Following the receipt of
                                                                           information from the facility
                                                                           described in paragraph (6)(D) or (if
                                                                           no information is presented under
                                                                           paragraph (6)(D)) the initial receipt
                                                                           of information described in
                                                                           paragraphs (5), (6)(A) or (6)(B), the
                                                                           Regional Administrator or his
                                                                           delegate will issue a final written
                                                                           determination describing the 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.
                                                                          (8) Notification Requirements: Bekaert
                                                                           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, sixty
                                                                           (60) days before beginning such
                                                                           activities.
                                                                          (B) Update the one-time written
                                                                           notification if Bekaert 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.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 04-11927 Filed 5-26-04; 8:45 am]
BILLING CODE 6560-50-P